R v Rahmanian
[2017] SADC 99
•30 August 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RAHMANIAN
[2017] SADC 99
Decision of Her Honour Judge McIntyre
30 August 2017
CRIMINAL LAW
Under s269MB(5)(b) of the Criminal Law Consolidation Act 1935 (the Act) the defendant was declared mentally unfit to stand trial on charges of Aggravated Threatening Life (4); False Imprisonment (3); Aggravated Endangering Life (3); Threatening a Person involved in a Criminal Investigation; Aggravated Assault; Aggravated Causing Harm with Intend to Cause Harm (7) Aggravated Causing Serious Harm with Intent to Cause Serious Harm; Aggravated Creating Likelihood of Harm; Rape; Aggravated Possessing a Firearm without a Licence; Failing to Store Ammunition in a Locked Container Separately from Firearms.
Objective elements of offences established beyond reasonable doubt.
Defendant declared liable to supervision under Part 8A of the Act. Single limiting term fixed under s269O(2) of the Act. Supervision order that the defendant be detained in a secure forensic mental health facility.
Criminal Law Consolidation Act 1935 (SA) s269O, s269W, s269MA(5)(b), s269Q, s269R, s269T, s269T(1), s8A, s269(2),, referred to.
R v Brown [2006] SADC 82, considered.
R v RAHMANIAN
[2017] SADC 99
The defendant, Vafa Rahmanian, has been declared liable to supervision in respect of 24 offences under part 8A of the Criminal Law Consolidation Act 1935 (“the Act”). Mr Rahmanian has recently changed his name to Cyrus Mason; for the purposes of consistency and to avoid confusion I will refer to him as Mr Rahmanian.
I have determined that a single limiting term of 15 years and six months is appropriate in respect of all of the matters in relation to which the defendant has been declared liable to supervision under s.269O of the Act.
These are the reasons for my decision.
Background
Mr Rahmanian was charged on Information in this court with:
·four counts of aggravated threatening life;
·three counts of false imprisonment;
·three counts of aggravated endangering life;
·one count of threatening a person involved in a criminal investigation;
·one count of aggravated assault;
·seven counts of aggravated causing harm with intent to harm;
·one count of aggravated causing serious harm with intent to cause serious harm;
·one count of aggravated creating likelihood of harm;
·one count of rape;
·one count of aggravated possession of a firearm without a licence; and
·one count of failing to store ammunition in a locked container separately from firearms.
These offences took place between 11 April 2008 and 13 April 2015 in the context of the defendant’s domestic relationship. The victim of all the offences, apart from the firearms offences, was his former partner.
An investigation into the defendant’s mental fitness to stand trial was ordered under s.269M. Reports were obtained from a psychiatrist, Dr Jules Begg, dated 26 July 2016 and 3 April 2017 and a psychiatrist, Dr Paul Furst, dated 28 January 2016; 1 July 2016 and 16 February 2017. Both psychiatrists concluded that the defendant suffers from severe treatment resistant schizophrenia characterised by persecutory delusional beliefs. It appears that the court process is incorporated into his delusional system. Both psychiatrists considered that the defendant did not have the ability to understand and follow proceedings, nor, could he give meaningful instructions about the charges.
On 29 May 2017 counsel for the Director of Public Prosecutions and the defendant agreed that, in light of the expert reports, it was appropriate to dispense with the investigation into Mr Rahmanian’s mental fitness to stand trial. Mr Woods who represents Mr Rahmanian made this concession in the exercise of his independent discretion under s.269W of the Act. I was satisfied on the basis of the material before me that Mr Rahmanian was mentally unfit to stand trial and recorded a finding to that effect under s.269MA(5)(b) of the Act.
I proceeded to consider whether the objective elements of each offence had been proved. Mr Woods, again exercising his discretion under s.269W, agreed the evidence contained in the declarations. Having considered the content of the declarations, I was satisfied that the objective elements of each offence had been proved beyond reasonable doubt. I declared Mr Rahmanian liable to supervision under Part 8A of the Act and I ordered reports under s.269Q, s.269R and s.269T.
I was subsequently supplied with the following reports.
·Dr O Haeney, Consultant Forensic Psychiatrist two reports dated 1 August 2017;
·Report by Dr J Begg, Psychiatrist dated 4 August 2017;
·Dr P Furst, Consultant Forensic Psychiatrist dated 25 August 2017; and
·Ms A D’Alessandro (Forensic Social Worker) dated 28 August 2017.
The statutory scheme
Section 269O of the Act provides that a court by which a person is declared liable to supervision may release the defendant unconditionally, make a supervision order committing the defendant to detention or release the defendant on a licence with conditions decided by the court and specified in the licence.
Section 269O(2) requires that if a court makes a supervision order it must fix a limiting term equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would have been appropriate if the defendant had been convicted of the relevant offences. Section 269O(2) further authorises the fixing of a single limiting term in respect of all matters in relation to which the defendant has been declared liable to supervision.[1]
[1] R. v Brown [2006] SADC 82
The court must have regard to all matters that would usually be relevant to the fixing of a sentence except matters that are based upon or which arose out of the defendant’s mental impairment. The limiting term must be fixed by reference to the head sentence of imprisonment that would have been appropriate and not the non-parole period. Furthermore the court is obliged to have regard to the matters specified in s.269T (1) of the Act.
The defendant’s personal circumstances and mental condition
Mr Rahmanian is 34 years of age. He is an Iranian man of Baha’i ethnicity. He and his family were forced to leave Iran due to persecution of the Baha’i. They escaped to Pakistan and were granted UN refugee status finally arriving in Australia in 2000. Mr Rahmanian’s antecedent report indicates that he has few prior convictions and none of relevance.
Unfortunately Mr Rahmanian suffers paranoid schizophrenia. According to the medical reports this condition dates back to at least 2009 but possibly as far back as 2003. He has a well-documented history of persecutory, grandiose and bizarre delusions involving aliens and monitoring by the CIA. He has engaged in serious self-harm. His psychosis has proved resistant to conventional treatment over a number of years. He also has a history of intermittent drug use and a documented history of cognitive impairment likely secondary to a head injury sustained in a serious motor vehicle accident in 2004.
Mr Rahmanian was in a relationship with the victim, VD, for about 10 years. They have two children together; a boy and a girl. The offences were committed in the context of that relationship.
The defendant has been in custody as a result of these charges since 8 May 2015. He was placed in James Nash House from 8 May 2015 to 9 June 2015. He was diagnosed with a relapse of schizophrenia. It appeared that he had stopped taking his anti-psychotic medication some 6 months earlier. He was placed back on medication and his condition improved. He was discharged into prison where he remained on remand for the current offences in Yatala from 10 June 2015 to 3 November 2015. Unfortunately his mental state quickly deteriorated whilst in prison. He was in hospital between 8 and 17 July 2015 and then returned to prison. He struggled within the prison environment and continued to suffer from psychotic symptoms. This led to his readmission to James Nash House on 4 November 2015. He has remained there since.
He is now taking anti-psychotic medication, clozapine, which is specifically for use in treatment resistant schizophrenia. This has resulted in an improvement to his mental state but he continues to suffer persecutory delusions including that aliens have inserted a microchip into his brain to allow them to communicate with him. He further believes that the CIA are persecuting him to obtain this microchip and that his life is in jeopardy. He believes that the CIA have infiltrated the court, the prison and possibly the hospital. His offending against his former partner appears to have been as a result of these beliefs. He appears to consider that the offending did not occur and must be the result of a conspiracy between her and the CIA. I note from the declarations of VD that the defendant often accused her of working for the CIA and made other accusations that are consistent with these persecutory beliefs.
Dr Haeney, who is the treating psychiatrist, says that Mr Rahmanian’s prognosis is extremely guarded because of his poor response to medication and his tendency to decompensate when discharged from James Nash House. As a result of this he recommends that Mr Rahmanian continue to undergo continued inpatient treatment in hospital. He says further:
It is not envisaged that he would be suitable for licence conditions, transition to the community or community care currently or imminently. He requires treatment in hospital to allow further changes to medication and ongoing psychological and social therapies to continue. In due course, it is anticipated that he will need very gradual transition to the community, for example, via the forensic step down service at Ashton House.[2]
[2] Dr Haeney’s s269Q report 1/8/2017
Dr Furst, in his report dated 25 August 2017, agrees with Dr Haeney’s recommendation particularly in view of the fact that in his view Mr Rahmanian continues to pose a risk to others. Dr Begg also concurs saying:
The recommended treatment plan is to continue with the antipsychotic medications, psychological rehabilitation, and continued observation of his living skills and interactions with other patients. This is recommended to occur in a secure forensic mental health facility.[3]
[3] Report dated 4 August 2017
In the light of the material before me I consider that it is appropriate to make a supervision order committing the defendant to detention in a secure forensic mental health facility in order that he undergo continued inpatient treatment as recommended.
The limiting term
It is necessary to fix a limiting term under s269O by reference to the head sentence that would have been appropriate if the defendant had been convicted of each of the offences for which the objective elements have been established. Separate consideration is required of the factual circumstances of each of the charged offences and whether the terms of imprisonment would have been concurrent or cumulative.
The Information dated 8 April 2016 charges 24 counts over a period of some years. The maximum penalties for each of these offences can be summarised as follows:
·Counts 1, 9, 11 and 21 charge the offence of aggravated threatening life, the maximum penalty for which is 12 years imprisonment.
·Counts 2, 7 and 14 charge the offence of false imprisonment, the penalty for which is at large.
·Counts 3, 8 and 22, charge the offence of aggravated endangering life, the maximum penalty for which is 18 years imprisonment.
·Counts 4 is a count of threatening a person involved in a criminal investigation, the maximum penalty for which is 10 years imprisonment.
·Count 5 charges the offence of aggravated assault, the maximum penalty for which is three years imprisonment.
·Counts 6, 10, 12, 13, 16, 17 and 18 charge the offence of aggravated causing harm with intent to cause harm, the maximum penalty for which is imprisonment for 13 years.
·Count 15 charges the offence of aggravated causing serious harm with intent to cause serious harm, the maximum penalty for which is 25 years imprisonment.
·Count 19 charges the offence of aggravated causing likelihood of harm, the maximum penalty for which is 7 years imprisonment.
·Count 20 is a charge of rape, the maximum penalty for which is life imprisonment.
·Count 23 charges the offence of aggravated possessing a class H firearm without a Licence, the maximum penalty for which is $55,000 or 10 years imprisonment,
·Count 24 charges the offence of failing to store ammunition in a locked container separately from firearms, the maximum penalty for which is a fine of $2,500.
The circumstances of the offences
All of the offences took place in the accused’s domestic relationship with the mother of his two children; VD. The offending took place over a long period of time and constituted an extremely serious campaign of domestic violence towards the victim. I shall deal briefly with the charges in chronological order.
On 11 April 2008 the defendant threatened to kill the victim (count 1), he handcuffed her to a towel rail in the laundry (count 2) and shot a firearm at her twice narrowly missing her (count 3).
Between 12 November 2008 and 31 December 2008 the defendant attempted to get the victim to drop the charges in relation to the April 2008 offences (count 4).
Between 5 September and 4 September 2014 the victim and the defendant were arguing in the bedroom when the defendant slapped the victim across the face three times (count 5).
On 29 November 2014 the defendant slapped the victim with an open hand on the right side of her face causing her nose to break (count 6).
Between 31 December 2014 and 2 January 2015 the defendant held the victim captive. At various times she was handcuffed (count 7). The defendant poured methylated spirits on the victim’s lap causing a burning sensation (count 8). He threatened to kill her and said she could choose between methylated spirits or acid (count 9). Later he poured methylated spirits onto the floor in front of her and set it alight. Her tights caught fire and her left ankle was burnt (count 10).
Between 5 January 2015 and 28 March 2015 the defendant told the victim that once he had killed her he would kill the children by an explosion using the gas oven (count 11). The defendant hit the victim across the left side of her head around her ear causing her pain and discomfort (count 12).
Between 27 March 2015 and 5 April 2015 the defendant became paranoid and confronted the victim. He slapped her to the head several times and punched her in the head like a punching bag also kicking her legs (count 13). He tied her hands and feet with handcuffs and tied a necktie around her neck (count 14). The defendant poured methylated spirits over the victim’s head she had trouble breathing and passed out (count 15). During the same period of time the defendant punched the victim to the left kidney area making her feel sick and causing strong stabbing pains (count 16).
Between 15 April 2015 and 12 April 2015 the defendant hit his victim in the head about 20 times, kicked her about 10 times and stamped on her left foot causing a cut to her foot (count 17). The defendant also zapped the victim with a tazer on her right upper arm, left chest, left side of back, right upper thigh, left rib cage and twice on the back (count 18). The defendant made the victim take an anti-psychotic drug and ice making her feel sick and causing her to go in and out of consciousness (count 19). The defendant made the victim perform an act of fellatio upon him whilst under the influence of these drugs (count 20).
On 13 April 2015 the accused got a gun from the wardrobe and threatened to kill the victim (count 21), they went downstairs to the laundry and he splashed her with methylated spirits (count 22). In consequence of this, the Police attended at the defendant’s home. They found a loaded Liege automatic pistol located underneath a child’s seat in the rear of his vehicle. The accused does not hold a firearms licence authorising him to possess a class H firearm (counts 23 and 24). An unsecured, loaded firearm in the possession of a person with mental health issues and a predisposition to violence is very concerning.
This is a tragic case. These offences are very serious and sustained. The unpredictability and violence of the defendant’s behaviour must have been terrifying. It has had a devastating effect upon the victim and her two children. It is clear from the very detailed and eloquent victim impact statement that the victim has suffered not only physical injuries but also she and her children have suffered serious psychological consequences as a consequence of this offending. This is hardly surprising in the circumstances. The victim has had to move houses and change her children’s schools. She says she is constantly looking over her shoulder and sometimes wishes she had died because this is not the way she wishes to live her life. She says that the only reason she gets up every day is because of her children. Unfortunately there is little that the Court can do to improve this situation. Hopefully the finalisation of this matter will help her to achieve some sort of peace.
There is considerable artificiality about setting penalties that would have been imposed in this matter had the defendant been convicted of the offences; it is not an easy process to explain. If the defendant had been convicted of these offences I would have imposed single penalties under section 18A of the Criminal Law Sentencing Act for certain groups of offences because they were effectively one course of action. My starting points for each group of offences would have been as follows:
·Counts 1, 2 and 3; a starting point of 5 years imprisonment.
·Count 4, my starting point would have been 6 months imprisonment.
·Count 5, my starting point would have been 6 months imprisonment.
·Count 6, my starting point would have been 2 years.
·Counts 7 to 10 my starting point would have been 6 years imprisonment.
·Counts 11 and 12 my starting point would have been 4 years.
·Counts 13 to 16, my starting point would have been 6 years.
·Counts 17 to 20, my starting point would have been 8 years.
·Counts 21 to 22, my starting point would have been 3 years.
·Count 23 my starting point would have been 2 years imprisonment; and
·Count 24 I would have imposed a conviction but no further penalty;
This results in a total notional head sentence of 37 years assuming these sentences were served cumulatively. In my view there would however need to be a degree of partial concurrency. It would then be necessary to allow for a reduction of the notional head sentence on account of the defendant’s cooperation in agreeing, through his counsel, the objective elements of the various charges. In my view it would be appropriate to reduce the notional head sentence by approximately 30% on account of this factor. There are no factors personal to the defendant that would warrant any further reduction. By reason of his mental condition considerations of contrition and remorse have no relevance. However, even allowing for a degree of concurrency and a discount of 30%, the sentence would be a crushing sentence in the order of 22 years. I would therefore have invoked the totality principle to reduce the notional head sentence in the order of 18 years. The defendant would further be entitled to credit for his time in custody of 2 years 3 months and 20 days.
Taking all of those matters into account I conclude that an appropriate limiting term is 15 years and 6 months.
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