R v Rahimi

[2024] NSWDC 538

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Rahimi [2024] NSWDC 538
Hearing dates:	14 June and 11 October 2024
Decision date:	15 November 2024
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 3 years 7 months with a non parole period of 2 years 7 months.
Catchwords:	CRIME - SENTENCE - wound with intent to cause grievous bodily harm
Legislation Cited:	Crimes Act 1900 (NSW), s33(1)(a)
Cases Cited:	DPP (C’th) v De La Rosa (2010) 79 NSWLR 1
Category:	Sentence
Parties:	Rex (Crown) Sedaqat Rahimi (Offender)
Representation:	Ms Diggins (ODPP Parramatta) Mr Thorpe (Counsel for the offender)
File Number(s):	2022/00281108
Publication restriction:	Nil

judgment

1. Sedaqat Rahimi, you appear for sentence today in relation to one offence, and that is wounding a person with intent to cause grievous bodily harm.

2. The offence involves a contravention of s33(1)(a) of the Crimes Act 1900 (NSW).

3. The maximum penalty for the offence is 25 years imprisonment; and there is a standard non-parole period of 7 years imprisonment.

4. The facts surrounding the offending are contained in a statement of agreed facts which forms part of Exhibit A.

5. Recast by me as to style, but not substance, those facts are as follows.

6. Some years before 2022, you came to know Mr Reza Ishaq and, in the time that followed, you would occasionally encounter him socially.

7. As at August / September 2022, you were 26 years old and Mr Ishaq was 22 years old.

8. At about mid-August 2022, a friend of Mr Ishaq’s told him that you were looking for Mr Ishaq because you believed that Mr Ishaq had hacked your phone.

9.  On receiving this information, Mr Ishaq asked his friend for your mobile phone number, which was provided, and he then called you.

10.  In that phone call, Mr Ishaq asked: why you were looking for him; and denied hacking your phone.

11. You then invited Mr Ishaq to “hang out” [with you], but your invitation was declined.

12. On 18 September 2022, you called Mr Ishaq and again told him that you wanted to “hang out”; and, again, Mr Ishaq declined your invitation and told you he was busy with family.

13. The next day, Monday 19 September 2022, Mr Ishaq went to work (he was a bricklayer working in the Parramatta area), but he sustained some form of heatstroke which caused him to vomit.

14. At approximately 2:00pm on 19 September 2022, you called Mr Ishaq and asked to meet up with him. This was the first of four phone calls that you made to him on that day. Mr Ishaq, again, declined your invitation, making up an excuse that his mother was ill. Mr Ishaq offered to meet you the following weekend and you agreed, and the call ended.

15. Shortly afterwards, you made the second of these four phone calls to Mr Ishaq. You told him that the next weekend was too far away, and that you wanted to meet him on that day. Mr Ishaq, again, told you that his mother was ill. You told Mr Ishaq that your encounter with him would only take around 10 minutes and then the phone call ended.

16. At about 4:00pm on 19 September 2022, you placed the third call to Mr Ishaq, but it was a missed call. Later that afternoon, Mr Ishaq returned the missed call. In the conversation which took place between the two of you, you said to Mr Ishaq: “You’re a good boy. You’re not smoking. Not drinking. I want to ask you something about someone. I’m not smashing you. Don’t be scared. I swear to God.” Mr Ishaq agreed to meet you, but, unsurprisingly given the things you said, he was confused and scared.

17. Shortly after, you placed the fourth phone call to Mr Ishaq and asked him where he was. The statement of agreed facts does not record your answer to that question. However, Mr Ishaq, shortly thereafter, was in the vicinity of the Merrylands railway station where he met two friends. 

18. At approximately 6:26pm, Mr Ishaq left his friends and began to walk towards the railway station.

19. When he arrived at the railway station, Mr Ishaq began to walk up the station stairs. You were standing at the top of those stairs. How it was that you came to be at the same place as Mr Ishaq at this time is not made clear in the statement of agreed facts.

20. In any event, as Mr Ishaq was walking up the stairs, he bent over and vomited.

21. After finishing vomiting, Mr Ishaq continued to walk up the stairs. His head was facing in a downwards direction.

22. You walked down the stairs towards Mr Ishaq as he was half bent over.

23. Whilst Mr Ishaq was in this vulnerable position, he felt something sharp hitting his head from above. He felt a sharp item hit his left cheek. He looked up and saw you holding something sharp in your hands. There is no express agreement between you and the Crown in the statement of agreed facts as to what this sharp object was that you were holding in your hand.

24. CCTV footage of the incident showed you forcefully striking Mr Ishaq with your right hand, at least 8 times, to his head, chest and torso.

25. The incident was effectively over by approximately 6:30pm.

26. Somehow, in the course of striking Mr Ishaq in the course of this unprovoked attack, you inflicted two lacerations to him: one was a laceration to his left cheek, approximately 3cm in length, which penetrated the skin down to the muscle, but which did not breach the muscle layer; the other was a superficial laceration to his torso near the left nipple, approximately 1cm in length, which penetrated the dermis and into the subcutaneous tissue, but which did not pass that layer. It is the infliction of those two lacerations which constitutes the offence for which you are to be sentenced today.

27. After you left the scene, Mr Ishaq ran to the friends he had earlier been with and who were still in the vicinity. Blood was dripping from his face.

28. Mr Ishaq’s friends took him to the Merrylands Police Station. He was subsequently taken to Westmead Hospital. The two lacerations I have mentioned were the only detected injuries; and those lacerations were sutured.

29. Mr Ishaq was discharged from the hospital the next day (20 September 2022) and his sutures were removed 5 to 7 days later.

30. In the meantime, approximately 1.5 hours after the incident, you telephoned 000 and informed the operator: “I stabbed someone in Merrylands and I’m gonna hand myself in in half an hour.”

31. That did not immediately take place. But, however, the next day (20 September 2022), your brother contacted police and provided them with your address. I am prepared to assume, although it is not expressly stated in the statement of agreed facts, that your brother’s actions were undertaken at your request. The police subsequently attended those premises where you were arrested.

32. You have been in custody continuously since the date of that arrest to today, but that has not been solely referrable to this offence.

33. Mr Ishaq provided the Court with a written victim impact statement dated 21 May 2024. Although the physical injuries which he sustained (within the wide range of matters that might be described as grievous bodily harm) were not at the most serious end of the spectrum, he, nevertheless, has been, and remains, emotionally disturbed by the incident – and notwithstanding that it occurred two years before the date of the victim impact statement.

34. It is necessary for the Court to make a finding of the objective seriousness of the offending for an offence of its kind. The Crown initially submitted that it is a serious example of that offence – but that was in circumstances where the Crown was submitting: (a) that you had stabbed Mr Ishaq eight times with a knife (a submission which was ultimately withdrawn); and (b) that the victim’s injuries “…could have been catastrophic” – for which submission there was no evidence. Your counsel has submitted that it is within the low range. In my opinion, it is somewhere approximately equidistant between the middle and the bottom of the range of objective seriousness.

35. The offence is additionally aggravated by 2 factors. First, because I am satisfied beyond reasonable doubt that it was not spontaneous or opportunistic. It was clearly planned. Secondly, because of your history of similar offending to what I shall soon refer.

36. You did not give sworn oral evidence in the sentence proceedings. Rather, your subjective circumstances were placed before the Court through the following documents:

(a) a report by Dr Richard Furst, psychiatrist, dated 16 February 2023 (a report obtained to determine whether you were fit for trial – which Dr Furst was of the opinion that you were);

(b) a letter from Ms Hebblewhite, a clinical nurse consultant (mental health) with Justice Health;

(c) a second report by Dr Furst dated 7 June 2024; and

(d) a bundle of records from Justice Health.

37. By having regard to these documents, I am satisfied of the following facts on the balance of probabilities.

38. You are 28 years old.

39. You were born in Afghanistan. You have three other brothers.

40. At some point when you were a child, your parents, you and your siblings migrated to Australia. You attended primary school in Auburn and high school in Parramatta.

41. You left high school during Year 10, but you did not complete that year, nor gain your school certificate.

42. You are an apprentice plumber but, for various reasons, that apprenticeship has been interrupted over the years and not completed.

43. Your relevant criminal history commenced in 2014 when you were 18 years old.

44. In that history, amongst other things, you have been sentenced to terms of imprisonment for the offence of custody of a knife in a public place (date of offence: 21 April 2015); affray (date of offence: 9 April 2016); common assault (date of offence: 8 December 2016); reckless wounding (date of offence: 17 November 2019); reckless wounding (date of offence: 10 December 2019); and wielding a knife in a public place (date of offence: 25 June 2022). For a more comprehensive chronology of your offending, see MFI-1. Insofar as that history is concerned, I note that on 22 October 2020, Hanley SC DCJ, in dismissing your appeal against the sentence imposed upon you in the Local Court for the offences of reckless wounding which you committed on 17 November and 10 December 2019, described you as "...a concern to the community and a danger.".

45. The facts of some of these offences (including those of 17 November and 10 December 2019) bear a concerning similarity to the offending for which you are to be sentenced today.

46. In his second report, Dr Furst expressed the opinion that, between 2019 and the early months of 2023, you were experiencing your first episode of psychosis. However, in this context, it is not clear to me that Dr Furst was aware of the first three offences in 2015 and 2016 to which I have referred in [44] above.

47. In Dr Furst’s opinion, the “…first episode of psychosis is a particularly dangerous phase of psychosis / schizophrenia, in terms of both functional impairment and serious adverse outcomes [including suicide and homicide], much more so than later phases of psychotic conditions / illness when in remission and / or stabilised on medication.”

48. Ultimately, Dr Furst diagnosed you as suffering from schizophrenia and that you were acutely psychotic at the time of your current offending.

49. You did not receive any active mental health treatment until you were 26 years of age in about June 2022. At that time, you were admitted to Cumberland Hospital where you were treated with antipsychotic medication. You were discharged from Cumberland Hospital after one month after you untruthfully told staff you were no longer experiencing psychotic symptoms. Your follow up with the local community mental health team in Auburn was described by Dr Furst as erratic.

50. And following your discharge from Cumberland Hospital, you stopped taking your antipsychotic medication - that is, only a matter of some weeks before the offending which brings you before the Court today.

51. Since you have been in custody following your arrest for this offence on 20 September 2022, you have, under the close supervision of Justice Health, adhered to an appropriate treatment regime, and some weight was placed on those records in the sentencing hearing by your counsel.

52. However, three entries in those records are of particular concern to me.

53. In a Justice Health note created by Christine Muller (a nurse practitioner) on 1 February 2024, amongst other things, she recorded the following:

“Plan

1.          Discussed medications, patient keen to continue with current dose of 10 milligrams olanzapine at least until next [Court] appearance” (emphasis added) (see page 3 of 3).

54. In another Justice Health note, dated 15 May 2024, created by Govero Maposa (another nurse practitioner), the following two entries were made:

“Assessment / analysis:

…

Reasonable insight - - he’s happy to have olanzapine reviewed after sentencing (emphasis added)

…

Plan

…

- - Discussed medications, patient keen to continue with current dose of 10 mgs olanzapine at least until he gets sentenced” (emphasis added) (again, see page 3 of 3).

55. There is no evidence that you have any meaningful insight into your offending (although the 000 call made shortly after the incident at Merrylands railway station is indicative of some insight and remorse), and I am not persuaded, on the balance of probabilities, that the prospects of your adhering to your antipsychotic medication, once you are released from the custodial setting, are good.

56. There is no evidence that, at present, you have any (meaningful) support from your family or from any other source in the community.

57. I have concluded, in all the circumstances, that your prospects for rehabilitation, at best, are guarded.

58. Whilst, because of your mental illness the sentencing considerations of general and specific deterrence are somewhat reduced (cf DPP (C’th) v De La Rosa (2010) 79 NSWLR 1), the nature of your illness, and your past failure to adhere to your treatment regime, means that the other sentencing consideration of the protection of the public is considerably enlivened. In this regard, I accept the Crown’s specific submission (and find beyond reasonable doubt) that you pose “a real danger to the community” (see the Crown’s written submissions dated 11 October 2024 at [13]).

59. You did not plead guilty at any early opportunity. Rather, you pleaded guilty 10 days before a trial date. You, therefore, are entitled to a discount of 10 per cent on the sentence which would otherwise have been imposed on you.

60. No sentence other than a term of full-time imprisonment is appropriate.

61. As I have said, you have been in custody since the date of your arrest on 20 September 2022. However, part of that period (26 July to 25 October 2023) was also referrable to a fixed term of imprisonment in matter H78486769. Nevertheless, by having regard to totality, the start date of the sentence that I shall impose will be backdated to the date of your arrest.

62. I have had to give careful consideration as to whether I should meaningfully vary the ratio of the head sentence to the non-parole period by making a finding of special circumstances. In this context, I have noted Dr Furst’s opinion in his second report that your history of schizophrenia places you at increased vulnerability compared to other inmates and would likely make a custodial sentence more onerous for you. I have also noted his opinion that “the stress of being incarcerated would probably make the risk [you] relapsing into more acute phases of schizophrenia higher.” However, you have been in the custodial setting on remand for over 2 years and nothing in the Justice Health records establishes either of those potential scenarios.  

63. In addition, this is not your first time in custody; and I am not persuaded, on the balance of probabilities, that your prospects of rehabilitation would be enhanced by a meaningfully longer period on parole.

64. In the result, I have decided to make a finding of special circumstances, but only to a very modest extent.

65. Sedaqat Rahimi, for the offence of wound person with intent to cause grievous bodily harm, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 4 years.

66. After the discount of 10 per cent, the term of imprisonment is 3 years 7 months.

67.  I fix a non-parole period of 2 years 7 months to date from 20 September 2022 and which will expire on 19 April 2025.

68. I fix a balance of 12 months to date from 20 April 2025 and which will expire on 19 April 2026.

69. I direct that the 2 reports of Dr Furst go with the sentencing warrant. 

Amendments

18 November 2024 - x3 "emphasis added" in [53] and [54] - underlined portions.

[65], "expect" changed to " except".

Decision last updated: 18 November 2024