R v Saweqa
[2002] VSC 82
•26 March 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1409 of 2001
| THE QUEEN |
| v |
| TOORIALAY SAWEQA |
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JUDGE: | FLATMAN J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 February 2002 | |
DATE OF SENTENCE: | 26 March 2002 | |
CASE MAY BE CITED AS: | R v Saweqa | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 82 | Revised 27 June 2002 |
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CRIMINAL LAW – Sentence - Intentionally cause serious injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused | Ms J. Sutherland | Victoria Legal Aid |
HIS HONOUR:
Toorialay Saweqa, on 5 February 2002 you were presented in this Court on a two count presentment. The first count alleged that on 22 April 2001, at Hopper's Crossing, you attempted to murder your wife, Roia Saweqa. There was an alternative count on the presentment, namely, Count 2, that on the same date you intentionally caused serious injury to Roia Saweqa.
On 15 February 2002, the jury returned a verdict of not guilty on Count 1, but guilty on Count 2.
The circumstances surrounding the commission of this crime have been canvassed in the course of the trial and the plea, but it is important to refer to them so that the full context in which the crime took place can be properly understood.
Background
You were born in Kabul, Afghanistan on 25 December 1953 and married the victim, Roia Saweqa, some 25 years ago. Your wife gave evidence that she was 17 years of age at the time of the marriage and that you have nine children to that marriage, ranging in age from 23 years to six years.
You had a good work history in Afghanistan as a driver and selling imported clothing and cosmetics. You also saw army service there. You were the breadwinner.
Together with your family you migrated to Australia via Pakistan on 26 October 1996. You were sponsored by your wife's family.
Upon arriving in Australia you initially lived with your wife's family and some 14 months later moved to the Housing Commission home in Baggott Drive, Hopper's Crossing, where this crime took place. You have not been able to obtain employment in this country. It was common ground that your marital relationship gradually deteriorated with escalating discord after you came to Australia.
Circumstances of this offence
Turning to the circumstances of this offence, on the day of the offence, Roia Saweqa was in the kitchen of the house at Baggott Drive at the front kitchen bench, depicted in photographs 25 and 29 of Exhibit B, preparing the school lunches for your children for the following day when an argument commenced between you.
Whilst on the face of it, the argument arose because of a minor dispute about the appropriate place for watching television, it was submitted by your Counsel that the argument was symptomatic of the deeper marital discord.
That being the catalyst however, you became very angry and set about assaulting your wife.
Having regard to the objective evidence contained in the photographs and the account given by Roia Saweqa, I am satisfied beyond reasonable doubt that you went to the cupboard depicted in photographs 38, 39 and 41 of Exhibit B and took up the meat cleaver which you then used as a weapon. I note that even on your own account you went to another part of the kitchen, namely, the back bench next to the stove, depicted in photographs 25 and 29 of Exhibit B, in order to take possession of the cleaver. Whatever the source of the meat cleaver, it is quite clear that you became angry and chose to arm yourself with it in order to assault your wife.
You then assaulted her whilst she was bending over putting rubbish in the rubbish bin. Again, her evidence was strongly supported by the objective facts depicted in photographs 32, 36, 43, 44 and 45 of Exhibit B. You commenced your attack by striking your wife on the left side of the temple with the meat cleaver, resulting in the fracture of the left frontal sinus. You then struck her on the back of the head, causing a laceration eight centimetres long and extending down to the bone. You then caused two further lacerations of a much less serious kind to the base of her neck and to her back on the left side. On any view, it was a continuing and savage attack on a defenceless, unarmed woman whilst she was retreating.
This attack was in fact interrupted by your daughters, Yalda Saweqa and Paymana Saweqa. Ultimately, your daughter Paymana was able to get possession of the cleaver and throw it outside the house. Whilst I am not certain that you did anything positive to assist your wife, the evidence at least suggests that you calmed down and did nothing to stand in the way of your daughters arranging to get your wife to hospital as soon as possible. Indeed, you suggested that the police be contacted and you co-operated with them.
Mrs Saweqa was taken to the Werribee Mercy Hospital where she was treated in order to stem the blood loss and close the wounds. Dr Noonan gave evidence that if the bleeding had been allowed to occur for very much longer, Roia Saweqa would have died. Although the injuries were life threatening, fortunately treatment was available and a full recovery was expected once treatment had been completed.
Prior History
The circumstances of this offence must be viewed in the context of the prior history of marital discord between the parties. In 1999 your wife obtained an Intervention Order against you because of an incident which occurred on 23 July 1999. This Intervention Order lasted for one year during which time you lived in Dandenong. At the end of that period there was a reconciliation and you moved back into the matrimonial home at Hopper's Crossing. I note that at Broadmeadows Magistrates' Court on 27 July 1999 you were convicted of two charges of recklessly causing injury, one charge of assault with a weapon, two charges of making a threat to kill, and one charge of unlawful assault. These charges arose out of the incident on 23 July 1999. You were sentenced to an aggregate term of imprisonment of six months on all charges, such sentences to be served by way of an Intensive Correction Order.
Your personal circumstances have also been canvassed in the course of the trial and various matters put in mitigation in the course of the plea by your Counsel. I have been provided with reports from Dr Lester Walton (dated 26 October 2001) and Mr Bernard Healey (dated 26 September 2001).
Although your Counsel conceded that general deterrence had a significant part to play in sentencing considerations, she sought to distinguish this offence from one involving greater premeditation and planning. She argued that this offence arose out of marital discord and was to that extent spontaneous and in "the heat of the moment". It was submitted that I should not find that this attack was a “planned one” in the sense that the Crown put it as an aspect of its case for attempted murder. Whilst I accept that proposition, it is nevertheless a significant aggravating feature that you sought to arm yourself with a meat cleaver and attack your unarmed and defenceless wife.
It was further put that it was a mitigating feature that you suffered a lack of self‑esteem in your transition from the culture of your birthplace in Afghanistan to this country. It was said that not only did you have difficulties finding employment and had lost your position as a breadwinner, but that you came from a different cultural background, in a war-torn environment where violence was the norm. It was also said that this loss of self-esteem was accentuated to some extent by your children being more productive in their new environment, leading to a greater sense of isolation and emasculation on your part. Whilst it is true that this may help explain your own circumstances in leading to marital discord, the fact remains that society must be also be vigilant to prevent recourse to this kind of violence.
My attention has also been drawn to your state of health in that you suffer from a lower back problem, and over the last three years from diabetes. You are suffering from depression and receiving medication in the form of Tryptanol, an anti-depressant. Again, whilst I am prepared to take these circumstances into account, they remain limited matters when considered against the general sentencing considerations.
It was also submitted that because of your language and cultural differences you are finding your prison experience difficult in the sense that you are isolated within the prison community. It was also said that you have no family or friends in Australia and lack any support structure to assist in rehabilitation. I take this into account although, again, it is a relative consideration to be weighed against the wider sentencing considerations.
You made an offer to plead guilty to the lesser count of intentionally causing serious injury at the earliest opportunity and I take that into account in the same way as a plea of guilty being made at the earliest stage.
It was submitted that the plea of guilty constituted a reflection of remorse on your behalf. I also note your behaviour immediately after the assault upon your wife, whereby you did not obstruct arrangements for her hospitalisation and that you co‑operated with the police. In the circumstances, I take into account an element of remorse.
It emerged in the course of the plea that there was some motivation for your rehabilitation. It was said that the fact that you had been able to get a job in the kitchen at Port Phillip Prison and that you had been working in that job for some ten months, indicated some positive prospects. Although in a sense, in conflict with your Counsel’s submission that you were unable to speak English and therefore had difficulty within the prison system, further instructions revealed that you had been able to survive for the 12 months of the Intervention Order without the support of Afghani speaking friends and that you were gradually learning English whilst in gaol. It was said that the other prisoners in the kitchen were helping you with your language skills. On the other hand, in regard to the prospects of reconciliation with your wife, it was conceded that these prospects are minimal, and it would also seem that future reconciliation with your children will be difficult given the cultural problems and the history of the parties. Although your prospects of finding an appropriate lifestyle in the community are bleak, I am prepared to accept that there is some hope of rehabilitation for you.
I turn now to the broader sentencing considerations.
The maximum term of imprisonment was increased from 12½ years to 20 years by the Sentencing Act and other Acts (Amendments Act) 1997. In terms of the gravity and seriousness of the offence, there can be no doubt that this must be regarded by the courts as a serious offence. The resort to physical violence by a man who is unable to resolve personal conflict in his marriage is at the core of this crime. Unfortunately, these cases come before the courts all too often and invariably, it is the physically stronger male who is the aggressor. It is perhaps this aspect that calls for condign punishment, with significant weight to be given to the consideration of general deterrence.
The Victim Impact Statement reflects a predictable response to your crime. The events were not only witnessed by some of your children, but two of your daughters were forced to assist in the protection of your wife. The family is understandably concerned about their security.
As Vincent J. said in Farfalla [2001] VSC 99:
"The Court, through the sentences that they impose upon persons who act as you have done, must vindicate the rights of these victims, give practical effect to the stated values of the society which they represent, and make it clear that the resort to violence to resolve personal issues will simply not be tolerated."[1]
[1]R v Francesco Carmelo Farfalla [2001] VSC 99, Vincent J., entirely apposite comments made in a manslaughter case arising out of the inability of the perpetrator to resolve personal issues.
Whilst the prior attack on your wife cannot affect the penalty to be imposed on the basis of the objective facts, it is relevant to your prognosis upon your release. Your behaviour has been described as “circumscribed behaviour” in that it is directed towards your wife and, in a lesser patriarchal sense, your children. I am satisfied that you do present an ongoing risk to your wife and family and that due weight must be given to specific deterrence.
There are further aggravating features including:
· The fact that you chose to use the weapon in the form of the meat cleaver;
· The fact that it was a continuing attack in that you pursued your wife after the first blow;
· The fact that it took place in the family home in the presence of the children; and
· The fact that the injuries were life threatening.
I need to mention two further aspects of your plea. In the course of argument your Counsel suggested that because of your guarded prospects of rehabilitation this may well be a case where a longer than usual non-parole period ought to be imposed. This approach however, does not seem to me to be appropriate. I note the remarks of Jenkinson J. in Morgan v Morgan (1980) 7 ACR 146. At 155,
"The minimum term is fixed by reference to both misericordious and utilitarian considerations. Nor is the minimum term fixed without regard to all those other interests of the community which imprisonment of the offender is designed to serve…. They will be considered again when the minimum term is being fixed when they will be balanced against the advantages to the community which release on parole is thought likely in a particular circumstances to confer, and against whatever degree of mitigation mercy the offender may claim without injustice.”
Applying that principle and the principles set out in the cases of Power (1974) 131 CLR 623 and Bugmy (1990) 169 CLR 525, my task in fixing the non-parole period requires a consideration of what is the minimum custodial period that is needed to serve the objectives of the sentence.
The case of Salew [1998] VSCA 141 was also raised by your Counsel in the course of argument and I have now read that case. That case involved a quite different fact situation whereby the victim initiated the altercation by the production of a knife. In general terms, I am familiar with, and have had regard to the sentences imposed in this Court over recent years, and I am conscious that they can provide only limited assistance as each case and each offender must be considered in the light cast by all the circumstances relevant to the offence and the offender involved.
In the end, I must balance the principles of sentencing enunciated in the Sentencing Act 1991, including punishment, denunciation, specific and general deterrence and rehabilitation. I have concluded that the appropriate sentence is that you be imprisoned for a period of six and a half years. I fix a minimum period of four and a half years before you become eligible for parole. Further, I declare that the period to be reckoned as already served under the sentence is 339 days inclusive of today’s date. I direct that there be noted in the records of the Court the fact that such declaration is made and its details.
Orders
I further order pursuant to Section 78(1) Confiscation Act 1997, the forfeiture to the State of the property referred to in the schedule to the Disposal Order filed with the Court, namely a meat cleaver and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by her until 28 days from this date or the conclusion of any appeal proceedings and then to be destroyed by her.
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