R v Naddaf
[2018] VSC 429
•20 July 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0284
| THE QUEEN |
| v |
| MOHAMED NADDAF |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 April 2018 & 18 June 2018 |
DATE OF SENTENCE: | 20 July 2018 |
CASE MAY BE CITED AS: | R v Naddaf |
MEDIUM NEUTRAL CITATION: | [2018] VSC 429 |
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CRIMINAL LAW – Sentence – Manslaughter by criminal negligence – Duty of care owed –Failure to seek medical assistance for wife seriously injured – Very serious instance of offence – Prolonged period over which offending occurred – Diagnoses of anti-social personality disorder; adjustment disorder; and low general intellectual functioning with mild intellectual development disorder – Verdins principles – Whether causal connection between mental impairment and offending – Moral culpability – Plea of guilty – Weight to general deterrence and denunciation – Less weight to specific deterrence and protection of community – Sentence of eleven years’ imprisonment with non-parole period of eight years – But for plea of guilty, sentence of thirteen years’ imprisonment with non-parole period of ten years – Sentencing Act1991 – Crimes Act1958 – R v Blackwell [2013] VSC 499 – Reid v R (2010) 29 VR 446; [2010] VSCA 234 – R v Jagroop (2009) 22 VR 80; [2009] VSCA 46– R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson Mr P Bourke | Office of Public Prosecutions |
| For the Accused | Mr D Cronin | Doogue + George |
HIS HONOUR:
Introduction
Mohamed Naddaf, on 16 November 2017, you pleaded guilty to the manslaughter of Ashlee Brown at Craigieburn between 2 November 2016 and 6 November 2016. Your plea was put on the basis of manslaughter by criminal negligence. It was accepted on your behalf, that you were negligent in failing to obtain medical assistance for Ms Brown after she received multiple injuries from an assault inflicted upon her in a car located in the garage at your family home.
On 30 April 2018, I heard an opening on behalf of the Director of Public Prosecutions, victim impact statements, and submissions on sentence from your counsel and that of the Director. Further submissions were made on 18 June 2018.
The Crown is apparently not in a position to prove who inflicted the injuries upon Ms Brown. You cannot, and will not, therefore be sentenced on the basis that you caused, or had any part to play in the infliction of the multiple injuries to Ms Brown.
Background to the offending
Circumstances of the offending
At the time of her death, Ms Brown was 25 years old and you were aged 37. You both resided at 40 Kernan Court, Craigieburn and had been in a relationship for five to six years. Living at the home with you were your three children; a son aged three years, a daughter aged two years and a son who was then six months old.
At approximately 10.55am on 6 November 2016, you rang 000 and requested ambulance assistance. You told the 000 operator that you had found your wife in the car in your garage some days ago, she was now cold to touch, and her body was stiff. When the ambulance arrived at your house, Ms Brown was lying on the floor in the bathroom, and you lay by her side. It was quickly apparent to the ambulance officers that Ms Brown had been dead for a considerable period of time before they arrived, but you were seen to be attempting CPR. Your two year old daughter was also in the bathroom at the time. Ambulance officers stopped you from continuing CPR due to the fact that Ms Brown was, by then, plainly deceased.
When found by the ambulance officers, Ms Brown was lying on her back on the bathroom floor on top of a flannelette sheet. She was situated in front of the basin, with her head oriented towards the northern end of the bathroom. The bathroom was in an untidy state. There was a bath along the east wall, a shower recess, with a portable panel heater placed nearby, and a mobile telephone on the floor near to Ms Brown’s left side.
Ms Brown was of average build and had short, dark blonde hair. She was wearing a brown coloured dress with straps and was partially covered with a floral valance with her head, left arm, upper left side and lower legs exposed. Despite being covered, there were visible injuries on her wrists, arms and legs.
The ambulance officers observed obvious bruising, scratches and cuts all over Ms Brown’s face, arms and legs. She had a bandage on her lower leg. Photographs taken of the scene as it presented to the attending ambulance officers depicted the dreadful state Ms Brown’s body was in.
On speaking with you, the ambulance officers became concerned about your account of the circumstances surrounding the Ms Brown’s death and contacted police. Police subsequently attended the scene and took you into custody, having determined that your conduct may have had a connection to the death of Ms Brown.
The address at 40 Kernan Court, Craigieburn, is a single storey, brick veneer dwelling, consisting of three bedrooms, a large open lounge room, an open plan kitchen, dining area and a bathroom, toilet and laundry.
Whilst investigating, police investigators located two wheelie bins on the western side of the property, in which lengths of yellow cord, packing tape wrapper, and clumps of dark blonde hair were located. The yellow cord recovered from the bin appeared to be the same as other clothesline cord found at the property.
Inside the garage at the residence was a red Hyundai sedan. A roller door was fitted to the south side of the garage, which was closed and locked. Inside the garage there were areas of bloodstaining in the following locations:
·on the side of the internal door, below the door lock;
·on the internal door frame;
·on the west side garage wall;
·on boxes leaning against the west wall;
·on the roller door adjacent to the rear of the red Hyundai;
·on the floor, adjacent to the front driver’s door of the Hyundai;
·on a wood panel leaning against the east wall, adjacent to the driver’s side door of the Hyundai; and
·on the east side wall, south of the wood panel.
Extensive blood staining, both visible and non-visible to the naked eye, was also located within the red Hyundai, most extensively on the front passenger seat.
From the evidence at the scene it can be concluded that Ms Brown was seriously assaulted inside the car and garage of the premises. It further appears she was tied up with the clothesline cord.
Post mortem examination
An autopsy was conducted on Ms Brown’s body. The examination showed that she had suffered multiple blunt and sharp force injuries to various parts of her body, including her head, torso, buttocks, arms and legs. Her injuries included two stab injuries to the right thigh, one to her right knee and four to her left thigh, incised injuries to the right ankle, and three lacerations to the scalp. Some of the sharp force injuries were superficial, up to ten centimetres in length, others were three to four centimetres deep stab wounds.
There was extensive deep bruising to Ms Brown’s left scalp, left side of her face, right breast, right arm, left forearm and inner lips. Areas of band-like bruising were observed around each wrist, consistent with her being bound by her wrists. Her nasal bone was fractured.
The number and type of injuries inflicted on Ms Brown were extensive and are graphically depicted in the autopsy photographs of her body. The extent and particular nature of her injuries are disturbing aspects of the offending committed against her.
The forensic pathologist, Dr Greg Young, stated that the cause of Ms Brown’s death was complications arising from the multiple injuries inflicted upon her. Those complications were renal failure, bleeding, ‘shock liver’, gastric mucosal erosions and systemic inflammatory response. It was the opinion of the forensic pathologist that these conditions developed because of Ms Brown’s internal and external bleeding, which resulted in low blood circulation around her body for an extended period.
The forensic pathologist further concluded that some of Ms Brown’s wounds were infected. A maggot colonisation was found, which was estimated to have been established between 5 and 7 November 2016.
In your record of interview with police, you told the interviewers that Ms Brown lay injured on the bathroom floor since the preceding Tuesday or Wednesday. Accordingly, on the basis of what you say, it appears she lay in that situation for some four to five days from the point at which she was first placed there until she died.
It is clear Ms Brown had been subjected to a terrible beating. The binding of her wrists and the scale and number of her injuries suggest a deliberate and frenzied assault. However, no explanation has been given as to how, or at whose hands, she was treated so brutally. The circumstances surrounding the receipt of her injuries are perplexing.
At some point after Ms Brown received these injuries, you removed her from the garage, took her to the bathroom and put her on the floor. There she remained for the four to five days that followed. It is not possible to say exactly when Ms Brown died, but it is reasonable to conclude that, given her injuries, she suffered a considerable degree as she lay in a state of deterioration over that period. You could have taken steps to avoid that occurring. It was plain beyond dispute that she had been seriously injured and required urgent medical assistance.
Arrest and interview
You were arrested on Sunday 6 November 2016 in relation to what police regarded as the suspicious death of Ms Brown. You were interviewed and, during the course of that interview, you stated that:
·you found Ms Brown in the car in the garage some time between 1.00pm and 2.00pm on either the Tuesday or Wednesday prior to the interview;
·you had gone to bed at home with Ms Brown at about 10.00pm or 11.00pm the night before you found her injured;
·you take your medication at night and, when you go to sleep, you do not hear anything and there is nothing that will wake you until the morning;
·when you found her in the car, there was ‘blood everywhere’, ‘over her whole body’, ‘covered in blood head to toe’, and ‘bruising everywhere’; her face was ‘all blown up, she had so many cuts’; she had ‘cuts on the back of her head’, and ‘her neck was swollen’;
·Ms Brown’s injuries ‘got worse over the days … cuts and these red spots that turned black on the breast’;
·you wanted to call an ambulance for Ms Brown, but she did not want you to, and begged you not to call the police;
·she was worried that the Department of Health and Human Services (DHHS) would take your three children;
·you said to Ms Brown, ‘You’re gonna die baby, you’re gonna die’;
·you threw the cord that Ms Brown had been tied up with into the bin;
·you had to give her water using a syringe, and soup that you gave her mostly leaked out of her mouth;
·you had crushed up medication and poured it into her mouth using a bent piece of cardboard or paper, then squirting water into her mouth with a syringe to help her digest the medication because she could not swallow tablets;
·you treated her injuries by cleaning them up and putting bandages on her;
·on the Saturday night you went to bed between 9.00pm and 10.00pm, and Ms Brown was alive then because you had spoken to her in the bathroom;
·you believed you went to bed between 10.00pm and 11.00pm on the Saturday night, 5 November 2016 because you had gone to Woolworths to buy nappies and it was closed, and Woolworths closes at 10.00pm;
·you took your medication as normal and woke up on the Sunday at about 11.00am;
·your three children slept with you in the bedroom on the Saturday night;
·during the days the deceased was hurt, the children were ‘getting up and they were looking at her’;
·injuries to your chest and left arm occurred when you were helping Ms Brown into the house from the garage; Ms Brown was a big woman and you had troubling carrying her inside; she had to half walk in as well as you trying to carry her; and you both fell over in the hallway;
·she seemed to be rambling and incoherent.
Current sentencing practices
The maximum penalty for manslaughter is 20 years’ imprisonment.[1] While manslaughter is one of the more serious crimes known to the law, the circumstances of its commission vary greatly. As observed by Weinberg JA in R v Jagroop:[2]
This makes it impossible to accept any notion of a ‘tariff’ for this offence. Manslaughter is a crime that attracts a wide range of sentences, which can vary from lengthy terms of imprisonment to non-custodial dispositions.
[1]Crimes Act 1958 (Vic) s 5.
[2](2009) 22 VR 80 [63]; [2009] VSCA 46 (‘Jagroop’).
In that case, Tate JA further stated ‘the search for identical cases by which to evaluate the appropriate range for any particular instance of manslaughter is likely to prove fruitless’.[3]
[3]Ibid [35] (Tate JA).
Nonetheless, pursuant to s 5(2)(b) of the Sentencing Act 1991, I have had regard to current sentencing practices for manslaughter, including by reference to recent sentencing statistics.[4]
[4]See Sentencing Advisory Council, Sentencing Snapshot: Manslaughter No 199, April 2017.
During the hearing, I was also referred to the cases of Reid v R,[5] R v Blackwell,[6] and Jagroop, which involved somewhat comparable instances of manslaughter by negligence. By way of brief summary, in Reid, the Court of Appeal upheld a sentence of five years with a non-parole period of three years; in Jagroop, the offender was re-sentenced to eight years’ imprisonment with a non-parole period of five years and six months’; and in Blackwell, for the charge of manslaughter, a sentence of three years and nine months’ imprisonment was imposed. I have carefully considered the circumstances and sentences imposed in those cases and will refer to them further throughout my decision.
[5](2010) 29 VR 446; [2010] VSCA 234 (‘Reid’).
[6][2013] VSC 499 (‘Blackwell’).
In Jagroop, the Court of Appeal considered a case of manslaughter by negligence which involved an offender who assaulted his wife. The offender then failed to seek medical help for the victim, where it was clearly urgently required, and left her in a secluded and dangerous location for a prolonged period. The Court enunciated a number of principles relevant to the sentencing of an offender in such a case, including that:
·manslaughter by negligence is relatively unusual;[7]
·an assessment of the offending should begin with an assessment of the objective gravity of the instant offence;[8]
·in making as assessment of moral culpability, it is important to discern the motivating factors for the offending, such as whether the offender acted out of panic and stupidity, or in any overtly malicious way;[9]
·an absence of intention to harm is a significant factor in assessing the quality of an offender’s actions;[10]
·denunciation and general deterrence are of particular significance.[11]
[7]Jagroop [39] (Dodds-Stretton JA).
[8]Ibid [62] (Weinberg JA).
[9]Ibid [70].
[10]Ibid [66].
[11]Ibid [72].
Weinberg JA also noted there is no inflexible rule that governs the approach to sentencing for the different sub-categories of manslaughter.[12] While manslaughter by negligence generally involves less culpability as there is an absence of intention to harm, everything must turn on the particular circumstances of the case. Indeed, some cases of manslaughter by negligence may have aggravating factors that make it appropriate to impose more significant punishment.[13]
[12]Ibid [58].
[13]Ibid [67].
I consider these principles in my discussion of further sentencing factors below.
Nature and gravity of the offence
In determining an appropriate sentence, I must make an assessment of the nature and gravity of your offence.[14] It is important that I come to a view about the seriousness of your offending.
[14]Sentencing Act 1991 s 5(2)(c).
Defence submissions
It was acknowledged on your behalf that you owed Ms Brown a duty of care, which you failed to fulfil by not seeking medical attention for her. It was argued that in pleading guilty to the charge, you recognise you should have called an ambulance or other help, but that I should find you demonstrated a level of compassion towards your wife by attempting to provide care and assistance.
It was put on your behalf that, on the basis of what you told the police, I should be satisfied that you cared for the deceased during the time she lay injured at your house. It was submitted that you attempted to dress her wounds and provide medication through a syringe. My attention was also drawn to aspects of the bathroom, including a pillow you provided, a sheet covering Ms Brown, a television, and a panel heater which was apparently operating when the ambulance officers arrived to assist.
It was pointed out that when Ms Brown was found by ambulance officers, you were hugging her and you were emotional, and wound dressings were observed on her body and nearby in the bathroom. It was pointed out the autopsy revealed that there were various pieces of tape placed in locations on her body, and a crepe bandage around her right lower leg.
It was put that these factors demonstrate you showed compassion and attempted to attend to and care for Ms Brown while she lay in the bathroom, and that I could not be satisfied you simply left her to die. It was submitted that this case should be contrasted with a situation where you may have completely denied assistance or ignored her needs. It was contrasted with a situation where you could have left her locked on the bare floor of a cold bathroom, without any thought or consideration, or further moved her to hide her body from discovery.
It was also put on your behalf that the objective evidence collected by police established there was a ‘000’ call made by you, and that there was a recording of it.
As to the motivation for your offending, your counsel referred me to your comments to police that indicated Ms Brown entreated you not to call the ambulance because the DHHS may get involved, and take the children away from the family. It was submitted that there was some independent support for that in a letter from DHHS dated 26 April 2018. The letter indicated there was DHHS interest expressed in January 2013 and in 2016 regarding the level of care provided in respect of two of your three children. It was argued this letter provided some support for the argument that Ms Brown requested that you not call the ambulance because DHHS will become involved.
With respect to this issue, it was also argued that the photographs tendered in this hearing indicated that areas of your house were unkempt and dirty, and, when the children were taken by police and assessed by a forensic medical officer, they were found to be unkempt and with dirty nappies.
It was argued it is reasonable to conclude on these bases that there were a number of problems in the house at that time. It was said this supported the proposition that Ms Brown insisted she not receive any medical assistance, as this would inspire the interest of the DHHS, and you were acting on her wishes in denying her medical assistance.
As to the characterisation of your offending, it was submitted that you did not commit violence upon Ms Brown. Rather, it was put that your actions and criminal responsibility should be characterised as passive inaction, as distinct from active or actual physical abuse. As to this proposition, your counsel again pointed to the physical evidence in the bathroom that you demonstrated a level of care in relation to Ms Brown.
Your counsel contrasted the circumstances of your case with those in Reid, where it was evident the offender was the aggressor who struck the deceased with a cup, causing a significant cut to her head. There was significant bleeding, and the offender left the victim in that state, leaving the house and making no effort to assist. It was submitted that the important distinction in the current case from Reid is the factor of care provided. It was argued that in your case there was no evidence that you were the aggressor against Ms Brown and that you made efforts to make her more comfortable in the bathroom. It was submitted that I should find you demonstrated genuine concern for the deceased.
Reference was also made to the case of Jagroop, which involved previous physical violence between a husband and wife. The husband was the aggressor and hit the victim and then left her. He returned and then moved the victim down an embankment to a position where she was out of view, effectively concealing her in a remote location. It was submitted that this case was also distinct from the current circumstances, where it was argued you extended a level of care and compassion towards the deceased, and there was no evidence that you inflicted the original injuries.
Counsel also referenced the case of Blackwell, which also involved an offender who was the initial aggressor, and thereafter criminally negligent in not seeking medical assistance. The victim also died in that case.
Ultimately, the point made on your behalf was that each of these three cases were more serious instances of negligently criminal conduct than yours. It was contended these cases should be contrasted with yours because, although the conditions in the bathroom were not acceptable and what you did failed to reach anywhere near an appropriate level, you cannot be sentenced as the original aggressor and you demonstrated some level of care for Ms Brown.
Prosecution submissions
The prosecution submitted that, when looked at objectively, your offending represented a serious example of manslaughter by criminal negligence. This was submitted to be the case, even though your offending was not to be assessed as involving the commission of active physical violence by you upon your wife which caused the injuries.
It was submitted that your duty of care towards Ms Brown stemmed from the fact that she was your wife of some six or seven years, and the mother of your three children; you owed a duty of care to protect her, particularly when she was in a very vulnerable position. The prosecutor noted this duty of care to your wife was distinguishable from a situation where someone might just walk past another in the street who was suffering an injury or an illness of some kind. In the present case you were continually observing and aware of your wife’s condition and deciding to do nothing to call for assistance.
It was also submitted that it was ‘blindingly obvious’ that Ms Brown required immediate medical attention from the time you found her injured and for the duration of the period you left her in the bathroom in that condition. The prosecutor submitted it was obvious that Ms Brown was suffering from sharp force injuries and blunt force trauma, and that she urgently needed medical care when you decided to move her from the garage, as she was bleeding significantly. The prosecutor pointed to your own comment that she was ‘covered in blood from head to toe’, and submitted it was clear she had been the subject of a serious assault.
Further, over the subsequent days, it was likely that bruising became obvious. The prosecutor pointed to your record of interview in which you said that, over that period of time, Ms Brown was unable to take water in the normal way and had become incoherent, and that you told her that she would die if she did not get help.
In regards to whether you appreciated the seriousness of Ms Brown’s situation, the prosecutor referred to the case of Reid. In that case, the Court of Appeal concluded that, despite the applicant stating in his interview that he loved the deceased and that it did not occur to him she would die if he left her unattended, it was clear that he knew she had suffered significant and serious blood loss, and required medical attention. It was submitted that you, over a continuous and prolonged period of time, omitted to seek medical assistance for your wife.
The prosecutor also highlighted that the action required of you in seeking medical assistance was no more difficult than picking up a telephone and calling for assistance.
Counsel again referred to the case of Reid in which the Court of Appeal stated, in the circumstances of that case, it was open for the applicant to have called an ambulance immediately, or to have kept the victim under observation to see if her condition worsened and then call an ambulance. The Court expressed the view that, ‘On any reasonable assessment of the situation it was an extraordinary reaction on the part of the applicant to just walk out and leave the deceased in her condition’.
The prosecution contrasted that case from yours where, rather than leaving home never to return, you continued to be present and observe Ms Brown’s poor condition. Yet you told the police that on the evening before you finally called the ambulance, you simply took your own medication at about 10.00 or 11.00pm, which completely knocked you out, while your wife remained in a depleted condition on the bathroom floor.
It was argued that these factors went to the assessment of exactly how far short your actions fell below the standard of care owed to your wife.
Conclusions on level of seriousness
Taking all factors into account, I regard your offending as a very serious example of manslaughter by criminal negligence.
It is clearly evident Ms Brown was in a serious condition when you made the decision to move her into the bathroom. You left her lying on the floor of the bathroom for four to five days while you watched her deteriorate and eventually die. You allowed her to die in circumstances that were completely avoidable. All it would have taken for you to summon assistance was to make a phone call, and it was likely that she would have then survived. I consider the prolonged period over which this offending took place to be an aggravating factor in assessing your conduct.
Ms Brown’s death was slow and miserable. Whilst it was submitted that you did your best to care for her over the time she lay on the floor and her condition deteriorated, I regard those efforts as pathetically weak compared to the level of care she clearly needed. You treated her with a gross lack of respect in circumstances where she was your partner, where she was vulnerable and in need of care, and you had a duty to care for her. I accept nevertheless that you did not ignore her completely.
As to your motivation, I find this remains unclear. I find it very hard to accept, given the nature of Ms Brown’s injuries, that you failed to call assistance upon her request because of a risk that DHHS may become involved and take your children. Whilst I do not regard this as a credible explanation, I cannot safely conclude what your motivations were in committing the offending.
Victim impact statements
During the hearing I was provided with five victim impact statements. Two were read to me, and I read the other three. Each statement reflected the great sense of loss and impacts experienced due to the death of Ms Brown.
Ms Brown’s mother spoke of her overwhelming sadness, frustration, shocking numbness and other ‘indescribable’ impacts, following her daughter’s death. She spoke of her slow progress towards healing, and how her daughter had been a big part of her life. She said her daughter’s death had left her ‘completely destroyed and heartbroken’.
Ms Brown’s father spoke of his despair, anger and emotional trauma since the death of his daughter, and his feelings of helplessness in not being able to stop the events that occurred. He expressed how the death of his daughter has had wider impacts on his immediate and extended family. He stated he feels angry and helpless, and continually distressed and traumatised, particularly when he thinks about how his daughter’s life ended in what he described as an ‘inhumane way’.
I also received victim impact statements from Braiden Eldershaw-Brown, Dakota-Lee Friedrich, and Aiden Freidrich. These three statements, as well as the two I have read from, all express considerable grief and describe the personal impacts arising from the death of Ms Brown.
I have been assisted by and taken into account these statements in determining the sentence that should be imposed upon you.
Personal circumstances
You were born in 1979 in Victoria. You attended Thomastown High School and became a spray painter. You have worked as a spray painter for several different companies. You had difficulties in sustaining employment, apparently due to behavioural and substance abuse issues. At the time of Ms Brown’s death you were unemployed and had been so for several years. According to a psychological assessment prepared by Dr Matthew Barth, dated 6 February 2018, it appears you have received a disability support pension for a number of years on the basis you suffer from hypothyroidism. You were diagnosed with this condition when you were 16 years old.
You are the third eldest of seven siblings, and were supported in the Court hearing by members of your family. I was referred to various character references which were tendered on the plea hearing. I have read these and given them consideration.
It appears there has been conflict between you and some members of your family, largely caused by your behaviour. It appears that since the age of approximately 15, you have been using illicit substances including cannabis and heroin, as well as alcohol. It seems this was a prominent factor in creating tensions within your family. You were asked to leave school during year 10 and asked to leave home when you were 18 years old. It was noted you view yourself as the black sheep of the family, but despite that you had strong support from a large extended family. Following your release from custody, it appears there is a plan for you to live with your parents or your brother, Mohammed, who has a farm.
In the period leading up to your arrest on the present charge you were a user of methylamphetamine. Your prior convictions confirm you have a history of drug abuse.
You have had a previous relationship to that which you shared with Ms Brown. You have two children from that relationship.
Your Counsel acknowledged that you will require significant interventions in respect to your drug use, but submitted that you have strong family support. That provides some degree of confidence that your prospects of rehabilitation are not closed, notwithstanding your relatively lengthy criminal history.
Due to being charged with the current offence, there is an intervention order against you in respect of your children. As a result, you have not spoken to your children for some time and it was acknowledged that, ultimately, there would need to be further proceedings to allow you to interact with your children in future.
It was submitted that a desire to resurrect your relationship with your children would be a powerful motivating factor for you to engage in rehabilitation and remain drug-free. It was submitted on your behalf that you have been drug-free since being in a custodial setting.
You have prior convictions, but the last conviction was in 2010 and I am told none involve violent conduct relating to the abuse of a partner or women. I do not regard your prior history as playing a particularly adverse role in the conclusion I have come to in respect of your prospects of rehabilitation, or the need for a sentence weighted significantly in favour of community protection.
In all the circumstances, I do not regard your prospects of rehabilitation as closed, but note some concerns about your future in this regard. I shall return to this issue later. I do not consider that the sentence I will pass requires a significant component directed towards protection of the community.
Culpability and degree of responsibility
Psychological assessment
Two psychological assessment reports were initially provided on your behalf, one by Dr Barth dated 6 February 2018 and a second by Matthew Staios dated 21 March 2018. Dr Barth also prepared a supplementary report, dated 20 May 2018.
Dr Barth carried out a comprehensive assessment of your mental status, including your mood, thought processes, personality functioning, and degree of insight. He noted that you are an unsophisticated man, of below average intelligence with simplistic social reasoning; had reported periods of intense sadness and helplessness during your childhood; felt rejected and resentful towards your family; and experienced deep seated feelings of inadequacy. He noted your depressed moods have continued throughout your adult life; your main coping mechanism was to turn to the abuse of illicit drugs; and you have experienced periods of drug-induced psychosis.
Dr Barth stated you have low self-esteem, a deep sense of inadequacy, and regard yourself as being unable to function successfully. He formed the opinion that you lack fundamental emotional and behavioural controls to function effectively in society. He concluded you possess a series of traits that warrant a diagnosis of an antisocial personality disorder, and you have poor ability to manage stress, generate solutions, and deal with the inevitable complications of life. He also opined that you warranted a diagnosis of adjustment disorder, with mixed disturbance of emotions and conduct, and you were further at risk of developing more intense depressive symptoms in the period following sentencing.
Dr Barth also expressed some reservations about your prospects for rehabilitation on the basis of his conclusions regarding your anti-social personality disorder, severe substance abuse issue, prior convictions for violence, and poor adjustment abilities. Dr Barth also diagnosed you as having a cannabis-use disorder, stimulant use disorder, and opioid use disorder. Ultimately Dr Barth concluded that you presented with ‘significant emotional, interpersonal, and behavioural problems’.
Mr Staios conducted a neuropsychological evaluation which revealed that your intellectual functioning was in the ‘borderline’ to ‘low average range’, your level of intellect fell within the extremely low range, you had general intellectual functioning at the level of intellectual disability, and you had a mild intellectual development disorder, which was developmental in nature and further impacted by significant chronic substance abuse.
Mr Staios was of the opinion that your neuropsychological profile indicated a limited ability to reason with and understand basic verbal information, limited non-verbal problem solving and pattern recognition skills, poor working memory capacity, extremely low speed of information processing, limited learning capacity, and difficulty monitoring behaviours.
Overall, your psychological and intellectual issues fall short of providing some cogent reason as to why you committed the offending. It was acknowledged on your behalf that the decision you needed to make in November 2016 about whether you should seek medical assistance for Ms Brown was not a difficult decision. It was not submitted that the decision was so complicated that you were unable to make it, or that your decision making ability was compromised to a significant extent. It was submitted, nevertheless, that these issues were factors operating at the time of your offending and so should be taken into account.
On the first day of hearing, the plea was adjourned so that your Counsel could obtain a supplementary report from Dr Barth. The purpose of this report was to address the issue of whether any deficiency in intellect, or mental health condition, may have affected or contributed to your understanding of the significance of your actions, or inaction, in making the decision not to seek help for Ms Brown.
In his supplementary report dated 20 May 2018, Dr Barth confirmed his opinion that you suffer from low self-esteem, experience periods of depressed mood, and are prone to impulsive and irresponsible behaviour and a propensity to engage in anti-social conduct. He said that the significance of your emotional and behavioural dysfunction means you are prone to making poor and short-sighted decisions. He said your impulsiveness and irresponsibility contribute to your limited ability to fully consider the entire range of available options. Your relatively low intelligence compounds the difficulty you have in thinking though decisions thoroughly and choosing the ‘most salient option’.
Significantly, Dr Barth expressed the opinion that:
Notwithstanding the severity of these issues and the fact that he presents with impulsive and irresponsible and simplistic decision making skills, there was no indication from my assessment that Mr Naddaf’s cognitive function was impaired to the degree that he was incapable of fully understanding the wrongfulness of his offending behaviour.[15]
I have no reason to reject that opinion.
[15]Report of Dr Mathew Barth dated 24 January 2018.
Dr Barth further opined that the fact you are prone to periods of depression, have reported transient suicidal ideation and have ‘poor coping skills’ is likely make the custodial environment ‘relatively difficult’ for you. However, he also stated your issues are not so severe that he would consider gaol to be more onerous for you when compared to other prisoners. He stated your emotional distress should be manageable with antidepressant medication and counselling.
It was submitted that you were not trained in medical treatment so would not know the effects of what your inaction, though, by your plea, you accepted intervention was clearly required and you failed to provide it. It was nonetheless put that your offending should be viewed in the context of your very low general intellectual functioning, ability to generate solutions and deal with complications in life.
General principles
In R v Verdins,[16] the Court of Appeal set out a series of principles which must be considered in formulating an appropriate sentence when an offender presents with impaired mental functioning (‘Verdins principles’). Impaired mental functioning is not restricted to mental illness and can include intellectual disability. In your case, the potentially relevant Verdins principles include considerations as to whether your mental impairment:
·reduces your moral culpability for the offending you committed;
·should moderate the weighting of sentencing purposes, particularly denunciation and general and specific deterrence; and
·means there is a serious risk a custodial sentence may have an adverse effect on your mental health.
[16][2007] VSCA 102; (2007) 16 VR 269 (‘Verdins’).
Reduced moral culpability and moderated general deterrence
You have been diagnosed with low general intellectual functioning at the level of intellectual disability, and a mild intellectual development disorder. Further you are diagnosed with an anti-social personality disorder, and adjustment disorder, with mixed disturbance of emotions and conduct. It appears that you suffer from a mixture of issues that result in some impairment to your mental functioning.
I am satisfied your level of intellectual disability qualifies as impaired mental functioning within the meaning set out in Verdins. However, the extent to which any sentence imposed should reflect the impact of your impaired mental functioning, depends on whether there is a link between that impairment and your offending. That is, your impaired mental functioning ‘must have some “realistic connection” with the offending; or have “caused or contributed” to the offending; or be “causally linked” to the offending’.[17] There also remains the question as to the extent of any such impact. These matters require rigorous evaluation.
[17]DPP v O’Neill (2015) 47 VR 395 [74]; [2015] VSCA 325 (‘O’Neill’), citing Charles v The Queen (2011) 34 VR 41, 70 [162]; [2011] VSCA 399.
As to whether your intellectual disability justifies a moderation in moral culpability and general deterrence, I am unable to conclude that your particular disabilities are causally linked to your offending. Despite his diagnoses, Dr Barth opined that your cognitive function was not impaired to the degree that you were incapable of fully understanding the wrongfulness of your offending behaviour. I cannot conclude your impairment diminished your capacity to understand the nature and gravity of your offending. Nor can I conclude that the level of your mental functioning was such that it affected your capacity to exercise appropriate judgment, or make rational choices in the circumstances.
As to general deterrence, whether it should be moderated or eliminated as a sentencing consideration depends on the severity of the condition, and the effect of the condition on the mental capacity on you. I cannot conclude your low level of intellectual disability and functioning is such that the component of general deterrence should be moderated in determining your sentence.
Further, I do not find Verdins principles are enlivened by your personality disorders. In some instances a complex personal disability matrix can be relevant to the sentencing equation.[18] In the case of O’Neill there was a connection due to the types of disorders the offender suffered, which provided some explanation for the offending and were capable of reducing the offender’s moral culpability.
[18]See O’Neill [71], [85], [96].
In your case, I cannot conclude there was such a connection. There has been limited evidence to indicate how your disorders might explain your conduct, or reduce your level of moral culpability. While I accept you have antisocial and adjustment disorders, it is not clear how these have any causal relevance or connection to your offending. Thus no moderation of moral culpability or general or special deterrence on the basis of the personality disorders can properly take place.
Consequences of imprisonment
It was submitted on your behalf that, in light of Dr Barth’s evaluation, it was appropriate to consider that your time in custody would be more onerous than someone without your diagnoses. I accept, to some extent, this is likely to be the case and have taken into account that your psychological condition will impact on your ability to cope in serving your sentence. However, the weight I attribute to this is limited by Dr Barth’s conclusions that your issues should be manageable and are not so severe as to make gaol more onerous for you as compared to other prisoners.
Factors in mitigation
Plea of guilty
The fact that you pleaded guilty to this offence requires recognition. It was submitted on your behalf that you acknowledged the significant harm that your actions caused to a number of different people. It was further submitted that you were acutely conscious of the three children you had with Ms Brown, who are now without a mother and have a father in custody.
You offered to plead guilty to the offence of manslaughter on 14 November 2017 as the committal hearing approached. That offer was accepted by the Crown and you pleaded guilty at the committal hearing on 15 November 2016. As such, the proceedings did not require a contested committal or cross-examination of witnesses. It was submitted on your behalf that your guilty plea was made at an early stage of proceedings, was of clear utilitarian benefit and saved further trauma and stress to those involved. I accept those submissions.
Remorse
Your Counsel submitted you are remorseful, as demonstrated by your plea of guilty, your expression of remorse to a reporting psychologist, your expressions of acceptance that you should have done things differently, and recordings of the 000 call you made which indicated your level of distress. Reference was also made to aspects of the record of interview, which were said to be examples of you being upset, emotional and distressed, and trying to give an explanation for what happened.
I am prepared to accept you have now exhibited a degree of remorse for your offending against Ms Brown, but it is difficult for me to attribute great weight to it. Your offending took place over a lengthy period of time, during which you had the opportunity to reflect on your conduct and make other decisions, but did not do so. While your remorse must be evaluated in that context, I will give you the benefit of my conclusion that you now exhibit sorrow for what you have done.
Sentencing purposes
Section 5(1) of the Sentencing Act 1991 provides the purposes for which sentence may be imposed are general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
Rehabilitation
It is accepted by your Counsel that in the circumstances of your offending a period of imprisonment with a non-parole period is the only sentencing option reasonably available. This is clearly the case. It was submitted, however, that due to your mental health and drug addiction issues, a long period on parole should be imposed. In this respect I am mindful that I have assessed your prospects of rehabilitation as reasonably open.
Specific deterrence and community protection
Specific deterrence does not loom as a large factor in this case, as the type of offending that has occurred is unusual and I am of the view it is not likely that this type of conduct will occur again at your hands. You do not have a criminal history that is of particular concern in this respect. For like reasons, I do not consider that your sentence requires an increased component for the protection of the community from you committing this type of offending in future.
General deterrence and denunciation
The prosecutor submitted that the principles of general deterrence and denunciation were significant in this case. It was submitted that the community expects the law to respond to extreme situations like the present. It was also argued that there has been nothing in the expert assessments to suggest you were not fully capable of appreciating the seriousness of Ms Brown’s condition, highlighting the ease with which you could have acted in accordance with your duty of care.
I find the sentencing purpose of general deterrence is important in this type of offending.[19] Actions or inactions that lead to the taking of a human life are most serious and require the passing of sentences that deter others from engaging in similar conduct.
[19]Jagroop [58] (Tate JA).
In my opinion, denunciation of your conduct is also an important factor in this case. The community expects that the sort of conduct that occurred here be strongly denounced, as you failed to adequately care for and protect another vulnerable human being, who was your partner. You engaged in a course that failed to properly protect and respect your wife. Your inaction allowed her to die with a lack of dignity, and she died alone with you and her children only metres away.
The expert reports tendered on your behalf give little indication that your psychological conditions or your intellectual functioning contributed in any significant way to your offending. I am at a loss to understand why you acted in the way you did.
Conclusions
In my opinion, taking into account the circumstances and principles outlined above, your case represents a particularly serious case of manslaughter by criminal negligence.
In a grossly negligent way, you left your wife, a young woman, who was vulnerable and in urgent need of medical assistance to deteriorate and die not only before your eyes, but also those of your children. You placed her on a hard, tiled bathroom floor and left her there for four to five days on a sheet. The appalling and heartbreaking scene depicted in the photographs brings to mind how some people might have left a wounded animal. Placing and leaving her in that place, on the floor, was a lamentable act, which is hard to fathom. I utterly reject your assertion that you placed her there in accordance with her wishes.
The period over which you left her was unconscionably prolonged and, as her condition deteriorated, she must have suffered considerably. That your offending occurred over a period of up to five days, in my opinion, significantly elevates the gravity of your criminal behaviour. It was obvious to you when you decided to take her to the bathroom, where she ultimately died, that she had been brutally assaulted. Your failure to seek help for her fell very far short of the standard of care which a reasonable person in our community would have expected, and as such was seriously morally blameworthy conduct.
Your stated attempts to care for your wife over the period leading to her demise were feeble and derisory, and deserving of condemnation rather than praise. Your explanation for acting in the way you did was equally deplorable, and hard to accept. Your behaviour is to be condemned as being pitiless, and lacking basic human compassion.
It was also avoidable as the simplest and uncomplicated of actions – the making a mere telephone call – would have likely saved Ms Brown’s life. At the very least, obtaining proper assistance would have eased her suffering. It is difficult to understand why you did not make the call.
Sentence
Having weighed all the matters before me you will be sentenced to 11 years’ imprisonment.
In all the circumstances I will direct that you serve a period of 8 years’ imprisonment before you are eligible for release on parole.
I declare that your pre-sentence detention is a period of 621 days, not including this day, and I direct that this period be entered in the records of the Court and reckoned as time already served pursuant to s 18(1) of the Sentencing Act 1991.
I also declare pursuant to s 6AAA of the Sentencing Act 1991 that had you not pleaded guilty to this offence the total effective sentence that I would have imposed would have been 13 years’ imprisonment with a non-parole period of 10 years.
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