R v Mustafa

[2004] VSC 27

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1486 of 2003

THE QUEEN

v

MAHDI MUSTAFA

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JUDGE:	THE CHIEF JUSTICE
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 January 2004
DATE OF SENTENCE:	2 February 2004
CASE MAY BE CITED AS:	R v Mahdi Mustafa
MEDIUM NEUTRAL CITATION:	[2004] VSC 27

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr W. Morgan-Payler Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Accused	Ms Spowart	Mr D. Conidi, Victoria Legal Aid

1           HER HONOUR:  Ms Spowart, you appear for the accused? 

2           MS SPOWART:  Yes, I do, Your Honour.

3           HER HONOUR:  Yes.  It is necessary, I understand, to swear in a new interpreter in this matter?

4           MR MORGAN-PAYLER:  Yes, there is another interpreter here, Your Honour.

5           HER HONOUR:  Yes, if the interpreter would come forward.

6           ABDUL RAHMAN EL-ALO , sworn as interpreter.

7           HER HONOUR:  Mr Mustafa, would you stand.  Mr Mustafa, in a moment I will set out my reasons for sentence and in the course of those reasons I will ultimately conclude that you should serve a custodial sentence with a minimum term of 14 months.  You will shortly, therefore, be eligible for parole.  You may be seated whilst I state the sentence.

8           Mahdi Mustafa, you have pleaded guilty to one count of intentionally causing serious injury.

9           The events occurred on 14 November 2002.  You were sharing accommodation in Noble Park with the victim, Abbas al Seedi.  You had met him in the course of travelling to Australia.  At the time both you and Mr al Seedi were on protection visas, each having claimed refugee status upon arriving in Australia.  When you and Mr al Seedi were released on protection visas you commenced sharing accommodation.

10          On the morning of 14 November Mr al Seedi awoke shortly before eight o'clock and he went about his normal tasks of the morning.  He went to his bedroom and saw you and greeted you in his usual way.  Apparently, it was unusual for you to be up that early.  Mr al Seedi was about to leave the premises when he stopped at the front door to put on his shoes.  He was bent over doing that when you approached him and asked him where he was going.  Mr al Seedi told you he was going to school.  The next thing Mr al Seedi knew was that he felt a pain and that you had stabbed him in the abdomen with a knife.

11          Mr al Seedi retreated to his bedroom and you remained outside the door of that bedroom endeavouring to gain entry.  You were also making various threatening remarks.  Mr al Seedi considered he needed to escape from the house and receive medical treatment.  He was bleeding from the stab wound.  He went outside the bedroom and was confronted by you who, on Mr al Seedi's versions of events, were armed with the original knife, being a short paring kitchen knife and also a piece of wood.  A conversation occurred between you and Mr al Seedi.  There are different versions between you and him as to the substance of the discussion.  In any event, Mr al Seedi talked to you for about 15 minutes hoping he could pacify you and then leave the house.  Eventually, in desperation, Mr al Seedi threw his mobile phone at you and ran out the front door.  Mr al Seedi said that he was pursued by you and struck with a piece of wood.  He said that you jumped on him and lunged with the knife but missed.  Mr al Seedi managed to escape and ran down the street.  He said that you did not pursue him any further than the front gate of the premises.

12          Mr al Seedi sought assistance and was taken to Dandenong Hospital where he underwent exploratory surgery.  In the upper quadrant of his abdomen a 1.5 centimetre incision was found.  Following surgical exploration the incision was seen to extend into the abdomen on a horizontal plane and the large bowel had been perforated.  There was internal bleeding.  Mr al Seedi remained in hospital for a week prior to his discharge.

13          Returning to the scene of the attack, when the police attended at the Noble Park premises you were still there and admitted stabbing Mr al Seedi.  Later, in the course of an interview with the police, you made frank disclosures as to most of the events but in particular the attack.  It would appear that there was a dispute between you and Mr al Seedi over the transfer of a cheap car by you to him.  You also told the police that Mr al Seedi made remarks concerning terrorism and links with Osama bin Ladin and your country of origin, the Sudan.  This upset you very much. 

14          Essentially, these were the facts alleged by the Crown but there were some aspects of the facts alleged that you disputed.

15          For present purposes, and given the way the Crown and the defence put matters on the plea submission, the differences are important but do not affect the plea of guilty.  They do not affect the Court's disposition of you.

16          The fact remains that you have pleaded guilty to a very serious offence.

17          The result of your actions inflicted a serious injury on your victim, Mr al Seedi.  I have already described the nature of the injuries.  Mr al Seedi has made a full recovery.

18          Your victim has made a victim impact statement.  In that statement Mr al Seedi described the fear and nervousness that he had suffered and continues to suffer following your attack.  Your actions changed his life and he cannot forget what you did to him.  I take the impact of your attack on Mr al Seedi into account in the sentence.

19          I turn to your personal background and circumstances.

20          You were born on 1 July 1965 and raised in Sudan.  You are now 38.  You lived in difficult circumstances of poverty in the Sudan, it seems, living with your parents.  You are a follower of Islam and fervent in the practice of your faith.  In the Sudan you faced the risk of being "press ganged" into service in an army fighting on one side of the civil war in that country.  As a consequence, you fled the Sudan travelling to Malaysia and Indonesia and on to Australia.  During this journey in Indonesia you formed a friendship with your victim, Mr al Seedi, that ultimately led to you and him living in the same accommodation at Noble Park.  Upon arrival in Australia you were held in detention and later granted a protection visa by the Australian Government.

21          Prior to coming to Australia you achieved a secondary school level education and worked as a construction labourer.  In Australia you worked as a printer's assistant and were employed up until the time of your attack on Mr al Seedi.  In all likelihood you hoped to become a permanent resident of Australia.

22          Since the incident you have remained in custody.  You have faced difficulty in prison because of your language problems, speaking only Arabic and little English, and requiring an interpreter.  Your religious commitment causes difficulty in prison also.  You have no family in Australia and save for attendances by your lawyers you have not had the benefit of visitors from family and friends in the community whilst in custody.

23          Since your arrival in Australia you have suffered minor health problems.  You were assessed by Dr Lester Walton, psychiatrist, who has provided a psychiatric report.  Dr Walton believes that you have a paranoid attitude that is a cultural problem that reflects your refugee experience and background.  Dr Walton assesses that at most at the time of your attack on Mr al Seedi it was possible that you suffered from paranoid delusions.  However, he does not consider you require psychiatric treatment.  Dr Walton made other important assessments:  first, that you show remorse for your attack; second, that your ongoing custody is more difficult because of your English language limitations.

24          I was informed by the Crown that the Australian Immigration authorities have taken an interest in your conduct.  It seems that there is a risk that as a result of your inevitable conviction your protection visa may be cancelled.

25          You have no prior convictions and so far as known, until this incident, there was no blemish on your character.  Originally you were also charged with one count of attempted murder.  Upon that count being withdrawn by the prosecution you pleaded guilty to the present charge at the first opportunity.

26          You have committed a very serious offence.  The maximum penalty for intentionally causing serious injury is 20 years' imprisonment.

27          The Crown, through Mr Morgan-Payler QC, submitted that there were matters that weighed in your favour.  First, the only evidence before the Court is the depositions, but insofar as there are differences as to the circumstances alleged the Crown relied upon Dr Walton's report, that is, the Crown relied upon the fact that at the time of the attack you were undergoing an irrational thought process.  The Crown acknowledged that this fact did assist you.  Furthermore, the Crown acknowledged, in your favour, that you were a person of apparent good character and that at the committal hearing your victim, Mr al Seedi, described you as "a respectable man".  It was also conceded by the Crown that your time in custody would be more onerous than for an ordinary prisoner.

28          It was submitted by Mr Georgiou on your behalf that your circumstances were such that you had served enough time in prison to the equivalent of the appropriate minimum term for an offence of this type in these circumstances.  The Crown made no submission one way or the other save that there was no suggestion that such disposition was inappropriate.  There was no suggestion by the Crown that a more severe sentence was warranted than the one contended for on your behalf by Mr Georgiou.

29          I accept you have demonstrated true remorse.  I accept that your behaviour was out of character and was a consequence of your difficult refugee circumstances.  I accept also that you may have been suffering irrational thought processes at the time of the attack.  I accept, further, that prison has been difficult for you, more difficult than would ordinarily be the case.

30          Weighing all these matters up I am satisfied that your conduct warrants a custodial sentence but of a lower order in light of all the circumstances before me.  I regard the seriousness of the offence to require a sufficient individual deterrence but that general deterrence is of lesser significance.  The necessary deterrence, in my view, should be reflected in the head sentence.  I consider your circumstances and your isolation in the community justify a longer parole period than might ordinarily be the case.  This need should be reflected in the minimum term to be imposed.

31          If you would stand up, Mr Mustafa.

32          Mahdi Mustafa, I sentence you to a sentence of 36 months.  I fix a minimum period of 14 months to be served by you before you become eligible for parole.  I declare that you have served 445 days in custody.  I direct that such period of custody be recorded.  The Parole Board will be notified forthwith by the Court of the sentence and my reasons.

33          I observe that I have previously made orders for forfeiture and the retention of records of bodily samples.

34          You may be seated.

35          Are there any other matters, Mr Morgan-Payler?

36          MR MORGAN-PAYLER:  No, thank you, Your Honour.

37          HER HONOUR:  Ms Spowart, are there any other matters? 

38          MS SPOWART:  No, Your Honour.

39          HER HONOUR:  The prisoner may be removed.

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