R v Samani-Alizadeh
[2018] QCA 72
•19 APRIL 2018
[2018] QCA 72
COURT OF APPEAL
SOFRONOFF P
MULLINS J
BOND J
CA No 358 of 2016
DC No 579 of 2016
THE QUEEN
v
SAMANI-ALIZADEH, Ellias Applicant
BRISBANE
THURSDAY, 19 APRIL 2018
JUDGMENT
SOFRONOFF P: The applicant pleaded guilty to 10 counts arising from his participation in a brutal home invasion. On the charge of burglary in the night with violence in company he was convicted and sentenced to imprisonment for three years. On four of the other counts - two charges of assault occasioning bodily harm while armed in company and two charges of assault occasioning bodily harm in company - he was sentenced to imprisonment for two years and six months. On the remaining counts he was sentenced to imprisonment for six months. All sentences were to be served concurrently. The applicant was sentenced on 6 December 2016 and the sentencing judge Kent DCJ ordered that he be released on parole three months later on 6 March 2017.
An agreed schedule of facts was tendered at the sentence proceeding which contained the following facts. Mr Jason Thomas had bought a car from one Chao Lin. Mr Thomas found that the vehicle had been stolen and he informed police, who impounded it. On 27 January 2015 Lin contacted Mr Thomas and arranged to come to his house, he said, to pay him some money that he owed him. At about nine o’clock that evening Mr Thomas arrived home. Mr Thomas was there with Ms Amber Kelly, a friend of his. He heard his name being called outside. When he went to see who it was he saw Lin, the applicant, Lin’s brother and the applicant’s brother.
Lin demanded the return of the car he had sold to Thomas. He was shouting. He wanted to look inside Thomas’ shed because he thought that the car might be there. Thomas refused to let Lin and the others into his property. He told Lin that the car was at the police station. Lin then jumped over the fence and called Thomas a dog. He punched Thomas in the face. The three other men then entered into Thomas’ yard. One of these was Lin’s brother, Victor. Another, as I have said, was the applicant’s brother. The fourth man was the applicant.
All four began to beat Thomas. One of them was using a baton to do this. Lin kicked Thomas several times in the ribs. This assault lasted about five minutes and left Thomas on the ground. The applicant asked Thomas to get up. He grabbed Thomas’ arm and walked him into the house. Thomas tried to run away. The four men caught up to him. The applicant’s brother entered the house and called out. He then went upstairs where he found Ms Kelly. He dragged her downstairs and threw her onto the lounge. He then dragged her upstairs again and demanded the keys to Thomas’ Nissan Skyline motorcar. Ms Kelly told him she didn’t know where they were. He grabbed her around the neck and pushed her up against the wall and put his hand over her mouth. He then dragged her by the hair out to the front of the house.
Thomas then tried to run away a second time. Lin caught him, grabbed him and began punching him again. Lin’s brother began punching Thomas to his head. This caused him to fall to the ground. The men then began to kick and punch him as he lay there. They then picked him up and walked him back into the house. They made demands for the keys to the front gate. Lin’s brother punched Thomas about the head and the applicant then slammed Thomas’ head into the concrete wall. Thomas’ vision went blurry.
They dragged Thomas into the house, punching him as they did so. In the house each of the men took a knife out of a knife block in the kitchen and threatened Thomas. Again, they asked him where his Nissan Skyline motor vehicle was. Thomas told them he didn’t know where the keys were. The applicant’s brother then dragged Ms Kelly by her hair back upstairs to look for the keys. He punched her and pushed his finger, painfully, into the back of her ear.
In the meantime, the Lin brothers and the applicant were assaulting Thomas. They each used knives to slap him against his back. They punched him in the head and stomach. This assault continued for about 41 minutes. At one point the applicant held Thomas’ arm on the kitchen table while Lin’s brother held a knife to Thomas’ fingers and threatened to cut them off. He then took a pair of pliers and tried to hold Thomas’ hand while threatening to chop his fingers off. While Lin’s brother held Thomas’ hand on the table, the applicant had obtained a pair of secateurs and place the blades around one of Thomas’ fingers.
Ms Kelly heard somebody say, “What one do you want first, mate?” Ms Kelly was on the couch. She had been made to empty her handbag. They found Mr Thomas’ wallet. It contained $1,000. The applicant took the money and said, “No junkie deserves their money.” Thomas was in fear for his life. He recalls vomiting onto the floor. He pretended to suffer an asthma attack to induce his attackers to stop. This didn’t work. The applicant kept kicking him.
The applicant had found the keys to the Nissan Skyline. The keys to the front gate were on the same keychain. Thomas heard the Lin brothers and the applicant’s brother discussing a plan to take Thomas away with them to silence him. They remarked that Kelly had seen too much and they had to take her as well. The applicant tried to put a towel over Thomas’ head and into his mouth. The Lin brothers attempted to tie Thomas’ hands behind his back. They tied him to a chair. The applicant’s brother said, “You’re done.”
When these attackers first arrived at Mr Thomas’ house, Ms Kelly had had the coolness and foresight to ring triple 0. Consequently, at this point in the attack, the police arrived with their guns drawn and entered the house. Lin and the applicant were arrested. The other two assailants were arrested subsequently. The Thomas had suffered a fracture to his ribs and a pneumothorax. He suffered bruising and soreness all over this ribcage, his head and his body. These injuries were described as evidencing significant trauma. There were marks on his body from the metal bar and the knives that had been used. Ms Kelly suffered bumps to her head and bruising to her left arm and left leg.
At about 4 am on the following morning the applicant was interviewed by police. He replied, “No comment,” to most of the questions. He admitted going to Thomas’ house with Lin but said falsely that Thomas had invited them in and he denied that any assault had been committed by anyone. These were cruel and terrifying assaults inflicted upon the victims in their home. The offences are, therefore, very serious ones. Ordinarily they would call for substantial terms of imprisonment to be imposed and served.
The applicant, however, contends that the learned sentencing judge erred in two respects. First, it is said that his Honour erred in principle in his treatment of the applicant’s mental health issues. Second, it is said that the learned judge erred in finding that there was a need to protect the community from the risk of physical harm imposed by the applicant.
The facts put forward on the applicant’s behalf at the sentence hearing were not challenged. He had been asked by his brother to give one of the Lin brothers a lift home. He had not met either of these people before. When he arrived at their house he was asked to drive both brothers to another address so that they could recover a motorcar. He thought they were going to recover it lawfully. On any view, he had no personal interest in the recovery of anything from Mr Thomas’ premises. He did not become involved in the initial verbal altercation that occurred from outside the premises. He became involved when his brother and the Lin brothers began to assault Mr Thomas.
Having regard to the nature of the offending acts, his lack of motivation and his lack of initial involvement would not count for very much in his favour. However, there are some substantial matters going to the applicant’s character that need to be considered. He was brought up by parents who are happily married. His father is a retired electrician. He had a happy childhood. He was educated to grade 12 and, it is said, was an above average student. He then completed three years of a four year apprenticeship to qualify as an electrician but did not complete it, for the reason that, after he was charged for these offences, he found it too stressful and debilitating to continue.
In March 2016, shortly after these charges were laid, he suffered a breakdown and began to see a psychologist. He spent days not sleeping or eating. A psychologist whom he had consulted sought to persuade him to see a psychiatrist, but he refused to do so. He was becoming increasingly paranoid. In about September, the psychologist arranged for a taxi to collect him and to bring him to Ashmore medical health clinic. Upon assessing him there, she arranged for an ambulance to take him immediately to the psychiatric ward of Robina Hospital.
He was diagnosed with schizophrenia and immediately placed on anti-psychotic medication. The applicant hears voices, and one voice in particular. This voice, he told a psychologist, would normally control his whole day and would, from time to time, tell him to kill himself and not to eat or to sleep. A report was tendered at the sentence hearing that had been prepared by a psychologist, Mr Peter Stoker. Mr Stoker said that the voice told the applicant that his food was poisoned and that he could not trust his psychologist, among other things. For the three weeks before the sentence hearing, he had been attending an early psychosis intervention program. He had begun eating more. He had, in fact, lost 17 kilograms in weight since he suffered his psychotic episode in March 2016. Mr Stoker said that, at the time he saw the applicant, the applicant would stay in his room for most of the day.
The applicant told Mr Stoker that he was hearing voices at the time of the commission of the offences. These voices told him that his brother’s friends were trying to set him up. As it happened, this was true in a way. The applicant has no criminal history and no history of violence. His previous good character was the subject of two references. One of these, which was quite dated by the time of the sentence hearing, was by the deputy principal of his high school. She congratulated him on his outstanding effort that year. She observed that every teacher considered that his effort in every class was at a high level.
The other reference had been prepared for the purpose of sentence. It was a reference written by a family friend and work colleague of the applicant, Mr John Cevik. He had known the applicant for about 10 years. He had worked on numerous carpentry and shop fitting contracts with the applicant and the applicant’s father. He said that he considered the applicant to be a polite, considerate, respectable young man. He said that the applicant had always shown respect for his colleagues and his work.
The applicant’s mother also gave a reference. The applicant is the youngest of her seven children. She said that he had excelled at school, and after graduating from school, had begun his four year apprenticeship. She said that her son had never taken drugs and neither smokes nor drinks alcohol.
Mr Stoker administered several psychological tests to the applicant. These show that he was suffering from:
“Extremely severe depression, as well as some suicidal ideation.”
The tests also show that he was suffering from:
“Severe levels of anxiety.”
Mr Stoker diagnosed the applicant as suffering from paranoid schizophrenia. He said that schizophrenia is a serious psychiatric disorder. It usually manifests itself in a person’s late teens or early twenties. This was consistent with the psychotic phenomena which emerged in the applicant when he was 18, when he began to have paranoid ideation and when he committed these offences. He was then suffering from auditory hallucinations. At the time of his offending the applicant’s schizophrenia had not been diagnosed, although he was in fact suffering from what Mr Stoker described as:
“Quite severe paranoid ideation and auditory hallucinations, which would have made him much more compliant to people’s suggestions and vulnerable to following other people’s instructions.”
It was Mr Stoker’s opinion that the applicant would not reoffend. Mr Stoker was of the view that the applicant was remorseful. This was also the view of Mr Cevik and of the applicant’s mother, as expressed by them in their respective written references. None of this evidence concerning the applicant’s character, antecedents, medical condition or remorse was challenged or contradicted. The applicant submits that it has been well established in the case authorities that the presence of psychiatric illness in an offender may tend to mitigate punishment for a number of reasons. He refers to R v Tsiaras [1996] 1 VR 398 and R v Verdins (2007) 16 VR 269 at [32].
These two Victorian cases were cited with approval in R v Yarwood (2011) 220 A Crim R 497 at [24]. Relevantly for the present case, a psychiatric illness may influence a sentence in two ways:
The condition may reduce the moral culpability of the offender, notwithstanding that it does not constitute a legal answer to an offender’s criminal responsibility. The reduction in moral culpability would render denunciation a lesser factor than it would otherwise be.
General deterrence and specific deterrence might be moderated or eliminated as a sentencing consideration.
Unfortunately, these cases and the principles referred to in them were not cited to the learned sentencing judge by counsel who appeared for the applicant, who was not counsel who appeared on this appeal. Nor was a great deal made of the significance of the applicant’s undiagnosed illness to either his moral culpability or to the effect upon him of a sentence of imprisonment that might be thought to be appropriate to be imposed upon a healthier offender. During the course of sentencing submissions, the applicant’s counsel drew the learned judge’s attention to Mr Stoker’s report. The following exchange took place. The defence counsel:
“Your Honour made the comment that it does belie – I should say, the seriousness of the offending does belie his youth. That is true and, prior to my reading yesterday of Mr Stoker’s report I would have agreed with you, but there is some explanation in Mr Stoker’s report and I refer to page 5, and your Honour’s already correctly recited the various [passages] in terms of the voice that was talking to him at the time telling him, “There’s something not right,” when they got there. So clearly there was some or there has been some decomposition of an already existing condition that he had at the time. That may be some explanation.”
His Honour:
“I must say maybe I had a wrong impression of it, but my interpretation of that passage was more that the voice was warning him off the offending, rather than –”
Defence counsel:
“Well, that is true, but still it’s the same voice that he had been hearing earlier on and also which has exacerbated over the – particularly this year in 2016.”
His Honour:
“Yes.”
Defence counsel:
“[In] relation to his schizophrenia which would appear, on all accounts from Mr Stoker, to be reasonably severe.”
His Honour:
“See, if the voice said to him that his brother’s friends were trying to set him up, in one object, it seems it’s perfectly accurate. It might not be the voice.”
Defence counsel:
“It’s to leave.”
His Honour:
“It might be just a correct judgment of the situation.”
The submissions then turned to the fact that the applicant had no financial or other interest in the outcome of the dispute between Lin and Mr Thomas. Some time later it was pointed out to his Honour that the treatment that the applicant was undergoing was resulting in some improvement in his condition. From these exchanges to which I have referred, it might be thought that the applicant’s mental illness was not regarded as a mitigating factor, but was seen as, if anything, an aggravating factor because he had failed to listen to the voices telling him that the people that he was associating with were up to no good. Accordingly, while his Honour made express reference to the applicant’s significant mental health problem in the course of his sentencing remarks, his Honour said:
“You have been subject to auditory hallucinations for some time. According to your version to Mr Stoker, you were hearing voices at the time of your offending, telling you things such as your brother’s friends were trying to set you up, and the voice telling you that something was not right when you arrived at the house. And, of course, that was, in fact, completely correct; something wasn’t right. As a result of your schizophrenia, you have problems sleeping and eating properly and you have lost a lot of weight, which is concerning, of course, for both you and your parents. On the positive side, your problems are being managed now with medication and have improved, although, you have some way to go before you will attain full health again. So you are suffering from a serious psychiatric condition at the moment, but one which is receiving appropriate treatment. Mr Stoker ventures the opinion that your hallucinations would have made you more complaint to suggestions at the time. I note that opinion, and I respect it, although, I also note that his recording of the statements made by the voices were the kinds of things that would deter you from taking part in the offending, rather than any direction to actually assault anyone.”
His Honour then went on to observe that he accepted the Crown’s submissions that deterrence, both personal and general, were important factors in this particular case. He referred to the applicant’s role in the attack as one that was “far from one that was minor” which was undoubtedly true. After referring to submissions about the length of the appropriate sentence that ought to be imposed, his Honour said:
“The purposes for which sentence is imposed on you today include punishing you to an extent and in a way that is just in all of the circumstances; secondly, providing conditions in the court’s order that will assist your rehabilitation; thirdly, deterring you or others from committing the same or similar offences, and, in my view, given the seriousness of this conduct, that is an important principle; fourthly, making it clear that the community, acting through the court denounces the kind of conduct in which you were involved; and, finally, protecting the Queensland community from you.
In sentencing in an offence of this kind, I’m required by the law to have regard primarily to the risk of physical harm to any members of the community if a custodial sentence is not imposed; secondly, the need to protect any members of the community from that risk; thirdly, the personal circumstances of the victim, and as I’ve noted previously, this had an enormous impact on him; fourthly, the circumstances of the offence, including loss and damage resulting from it, the nature and extent of the violence used, your antecedents, age and character, and as I’ve said a couple of times now, you have no criminal history at all and you were only 18 at the time. I am regarded to have primarily to any remorse or lack of remorse; and, also, any medical, psychiatric or other relevant report in relation to you, and here, of course, as I’ve said, the report of Mr Stoker is quite important.”
His Honour then concluded:
“It is to be hoped that your rehabilitation will continue and that in the future you will not pose any risk to the Queensland community. But at the present stage, in my view, there is a degree of need to protect members of the community from the risk of physical harm that you may pose.”
There are difficulties with this process of reasoning that led to the orders that his Honour made. First, Mr Stoker had said that the applicant’s undiagnosed schizophrenia would have made him much more compliant to people’s suggestions and vulnerable to following other people’s instructions. It was the applicant’s older brother who had induced him to come along. The applicant’s willing participation in the assaults aggressively initiated by others is consistent with this expert view. The opinion about his state of mind in terms of being vulnerable to so being induced was, as I have said, neither challenged nor contradicted. Secondly, although the learned sentencing judge said that he had to have regard to any remorse or lack of remorse, he made no reference to the facts relating to that issue.
The opinion of Mr Stoker on this issue, although not an expert opinion, carries a great deal of weight. It was backed up by the opinion of Mr Cevik and is consistent with the applicant’s previous good character as well as the schizophrenic abyss into which he fell soon after he was charged. The remorse was a weighty consideration in this case because it was consistent with these acts of the applicant having been aberrant. However, not having his attention drawn to the relevant authorities or to the significance of these matters, his Honour understandably emphasised the other factors that were prominent in this case, namely the general and specific deterrence called for by the nature of the acts carried out by the applicant. His Honour was also not assisted by the absence of any direct evidence that the applicant’s acts constituting the offences were, in fact, carried out by him directly because of the condition from which he was suffering.
For the reasons given in the authorities concerning the significance of mental illness in sentencing offenders, in this case general and specific deterrence are not factors of the greatest moment. Moreover, on the unchallenged evidence that I have referred to, the appellant needs treatment for his schizophrenia, but does not require rehabilitation as such, at least as that term is usually understood in this context. Mr Stoker’s opinion about the effect of schizophrenia upon the applicant’s preparedness to go along with these assaults would substantially reduce the applicant’s moral culpability. He was suffering, at the time of these offences, from an undiagnosed, untreated and unmedicated serious mental illness that, on the evidence, rendered him vulnerable to submitting to group pressure.
He found himself unexpectedly in a situation in which three men with whom he was in company, one of them his older brother who had persuaded him to come, had begun to engage in a frenzied attack. Nothing in the applicant’s previous life history except this illness can explain this aberrant behaviour. Consequently, in my respectful opinion, his Honour was led into the error of failing to attach the appropriate significance to the evidence of Mr Stoker.
In my respectful opinion, his Honour was wrong in accepting the Crown’s submission that personal and general deterrence were important in this case. Further, not only was there no evidence that the applicant posed any further risk to the community, but the evidence was expressly to the contrary. It follows that I accept Mr Crowley’s submissions in support of the first two grounds in the notice of appeal and I am of the view that leave to appeal should be granted and the appeal should be allowed. The question arises whether, in these circumstances, in the exercise of its own discretion, the court should impose any different sentence from that which was imposed.
The applicant submits only that he should serve no sentence of actual imprisonment and that parole should be ordered immediately. In support of that submission, Mr Crowley has submitted that the short period of actual imprisonment that had been imposed would merely interrupt the applicant’s treatment for his severe disorder. This would do no service to the community and was capable of doing harm to the applicant. Secondly, Mr Crowley submitted that there was no need to protect the community from the applicant because, on the evidence, there was no risk to the community from him.
The absence of any such risk means that that is absent as a factor to justify any interruption to his treatment. I would accept those submissions. I would set aside the sentences that had been imposed and instead of them impose sentences of imprisonment in substance the same as those that had been imposed, but with an order that the applicant be released on parole immediately.
MULLINS J: I agree with the reasons of the President. The applicant was 18 years old when he offended, and was not involved in any planning for the offences. Ground 1 of the application for leave to appeal was that the learned sentencing judge erred in principle in his treatment of the applicant’s mental health issues. Ground 2 was that the learned sentencing judge erred in finding that there was a need to protect the community from the risk of physical harm posed by the applicant. As the President’s reasons show, the applicant has succeeded in establishing both grounds 1 and 2 of his application.
I particularly want to refer to the second ground of appeal. The material that was placed before the learned sentencing judge did not support a finding that the applicant posed a risk of physical harm to the community by the date of the sentence. It therefore did not support the conclusion of the sentencing judge that protection of the community from a risk of physical harm from the applicant unless an actual custodial sentence were imposed was a primary purpose of the sentencing. Apart from the opinion of the psychologist, Mr Stoker, that the applicant would not reoffend, there was evidence of the compliance with the bail conditions from the date that the applicant was charged until the date of sentence, and also evidence of his compliance with the treatment that he was receiving for his paranoid schizophrenia.
I therefore agree that it is appropriate that this court resentence the applicant. He had approximately 17 days in custody before he was released on bail on 22 December 2016. I propose that the sentence for count 5 be two years, 11 months imprisonment, and that the sentences for the other offences remain the same as those imposed by the learned sentencing judge. Because of the mitigating features referred to by the President that apply to the applicant, particularly his mental illness that was a factor at the time that he committed the offending, but remains a matter that affects him in an ongoing way, for which he is receiving treatment, I consider that an immediate parole release date as of today is an appropriate way to structure the sentence.
BOND J: The most significant consideration affecting the disposition of this appeal is the unchallenged evidence which was before the learned primary judge and is before this court which outlines the nature of the applicant’s mental illness, its effect on him at the time of the offences, and its ongoing impact on him now. I agree with the reasons given by the President and Mullins J in identifying error by the learned primary judge. In particular, I agree that the learned primary judge erred in principle in failing to analyse the unchallenged evidence to which I have adverted through the prism of the law governing the way in which an offender’s mental health might be relevant to the exercise of a sentencing discretion.
As the President identified, the principles are not in doubt and are sufficiently stated for present purpose in R v Verdins (2007) 16 VR 269 and R v Yarwood (2011) 220 A Crim R 497. On the unchallenged evidence to which I have adverted, the applicant’s mental illness must be regarded as reducing his moral culpability in relation to the offence because the evidence demonstrated that it was likely (a) to impair his ability to exercise appropriate judgment at the time of the offence, and (b) to impair his ability to make calm and rational choices or to think clearly: cf R v Verdins at [26](a)-(b).
A submission was made by the applicant that a causal connection between his mental illness and his offending was established because it ought be inferred that the circumstances of the offending meant that his tendency to be compliant to suggestions and vulnerability to other people’s instructions was a likely explanation of the circumstances of his participation in the offending. I am not persuaded to draw that inference. However I do conclude that the nature of his illness does reduce his moral culpability for the reasons indicated.
Otherwise I agree with the reasons for judgment of both the President and Mullins J. I also agree with the proposal that each have made as to the appropriate manner of structuring a sentence by this court in exercise of the discretion consequent upon the error that we have found.
SOFRONOFF P: Mr Crowley, I will read the proposed order ‑ ‑ ‑
MR CROWLEY: Yes, your Honour.
SOFRONOFF P: So that you and Mr Wallis can make submissions about it if you think fit.
MR CROWLEY: Yes.
SOFRONOFF P: The order that the court proposes to make is this:
Upon the undertaking of the solicitor for the applicant to explain forthwith to the applicant the requirements set out in s 160G(3)(b) of the Penalties and Sentences Act, 1992, it is ordered:
1.The application for leave to appeal is granted.
2.The appeal is allowed.
3.The sentences imposed at the District Court at Southport on 6 December 2016 be set aside.
4.The applicant be sentenced as follows: count 5, two years, 11 months imprisonment; each of counts 2, 4, 6, and 7, two years, six months imprisonment; each of counts 1, 3, 8 to 11, six months imprisonment.
5.The date the applicant is to be released on parole is fixed at 19 April 2018.
MR CROWLEY: If your Honour will just pardon me.
SOFRONOFF P: Yes.
MR CROWLEY: Yes. I don’t have any submission to make about that, your Honour. That seems appropriate.
SOFRONOFF P: Yes. And your solicitor is prepared to offer that undertaking?
MR CROWLEY: Yes.
SOFRONOFF P: Mr Wallis, do you have anything to say about the order?
MR WALLIS: I have no submissions. Thank you, your Honour.
SOFRONOFF P: Then the order is as I have proposed it. Anything further?
MR CROWLEY: Nothing further, your Honour.
MR WALLIS: Nothing further, thank you.
SOFRONOFF P: Thank you both for your assistance.
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