R v Tamuryani
[2010] VSC 318
•9 July 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0059 of 2010
| THE QUEEN | |
| v | |
| BILAL TAMURYANI | Accused |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 June 2010 | |
DATE OF JUDGMENT: | 9 July 2010 | |
CASE MAY BE CITED AS: | R v Tamuryani | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 318 | |
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CRIMINAL LAW – Common Law Assault – Causing Serious Injury Intentionally – Drug and alcohol abuse – Diagnosis of paranoid schizophrenia – Possible drug induced psychosis – Principles of general and specific deterrence – Family support – Prospects of rehabilitation – Youthful offender - R v Verdins, Buckley & Vo (2007) 16 VR 269 - R v Sebalj [2006] VSCA 106.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Hevey | Office of Public Prosecutions |
| For the Accused | Ms S. Gardner | Galbally & O’Bryan |
HIS HONOUR:
Bilal Tamuryani, on 18 June 2010 you pleaded guilty before me to one count of common law assault on David Marsh and one count of causing serious injury intentionally to Stuart Burley. The events giving rise to the counts occurred on 1 September and 2 September 2009.
Count 1
On 1 September 2009, at Dandenong Shopping Plaza, you approached a group of young persons including David Marsh. You punched him to the face and head more than once and kneed him to the right side of his jaw. He recognised you. He suffered bruising, swelling and some chipped teeth on the right side of his mouth.
In the past you had been friends, but you believed that he had been responsible for some racial abuse towards you. Mr Marsh told the police that some unknown person had been sending out messages in his name without his authority and some of those messages had been offensive. You were not the only recipient, but for reasons I will address later, they were perhaps more significant from your perspective.
There was another incident the following day at the Parkmore Shopping Centre where Marsh says that you approached him carrying a knife. He left the area and nothing came of that incident. That matter was not opened before me on the plea and I draw no adverse conclusions toward you for the purposes of this sentence.
Count 2
At some time after 8pm on 2 September 2009, Stuart Burley was in his car outside Marsh’s home with two other young men. Marsh was talking to Burley. You had driven past the area and phoned Marsh and, shortly afterwards, drove up to where the other young men were. You started talking to the group, but then noticed Mr Burley and almost immediately, you punched him twice to the right cheek with your left fist through the open window of his car. Burley attempted to arm himself with the handle of a hydraulic jack to defend himself. You continued to punch him. As he attempted to get out of the car, he noticed that you had a knife in your right hand. You punched him, as he was getting out of the car, with your right hand. He felt the knife cut the left‑hand side of his face. You made other attempts to stab him in what followed afterwards but do not appear to have been successful.
Mr Burley, by the time he got out of the car, was armed with a substantial hydraulic jack handle and attempted to defend himself. He subsequently managed to drive himself to hospital.
He suffered a deep cut to his face from the hairline to a place on his cheek level with the bottom of his ear, just behind the centre of his cheek. It was about 12 centimetres in length. It required plastic surgery involving 21 stitches under general anaesthetic. He also had an injury to his right cheek. The more serious injury has healed to a large degree, but is still visible.
A pole about a metre in length or slightly longer was recovered from the scene and that does support the proposition (that Mr Burley conceded), that he did arm himself or attempt to arm himself. The circumstances arose however, because you were the aggressor and you yourself were armed with a knife.
I do accept that your conduct, which had been largely pro‑active (you started the fight), did have a reactionary element to it upon seeing the hydraulic jack handle. You do, however, by your plea, accept legal responsibility for your actions.
At the outset, you were charged with attempted murder. That was partly as a result of what you had said to the police in your record of interview. That interview took place on 3 September 2009 after you voluntarily attended the Dandenong Police Station. A number of aspects of that interview do not accurately reflect the facts, particularly in relation to the nature of the injuries suffered by Mr Burley. You showed no remorse in that interview and acted with a fair amount of bravado which did not do your cause much good. All of that might be better understood given the evidence which was put before me with regard to your mental state at the time.
The crime of causing serious injury intentionally carries a maximum of 20 years and that of common law assault carries five years.
On the plea I received a victim impact statement from Mr Stuart Burley, who has concerns for his safety in the areas where these events occurred. Further, and as I have already observed, he has some residual scarring on the left side of his face.
You are now 21 years of age. Your family background is Afghani although you were born in Pakistan, it was from there your family migrated when you were two years old. Although you were brought up in the Muslim tradition, you regularly abused alcohol and other substances, beginning from the age of about 14. You have been regularly intoxicated, particularly at weekends. You have used up to eight grams a day of cannabis and used ecstasy in relatively large quantities on occasions. You have also used cocaine and amphetamine.
It was in the context of that drug use that you became increasingly paranoid and were eventually referred to Dr Mahalingam, after having first been referred to Dr Das at Pine Lodge. Dr Mahalingam diagnosed you as suffering from paranoid schizophrenia, which he thought you had been suffering from since about the age of 19, that is, from about 2008. He prescribed you the anti‑psychotic medication Ziprasidone. In a short report from him, which I received on the plea, he said that he regarded your illness as, “Well controlled”. He also repeated that you had ceased the use of cannabis in May 2009. He last saw you just under two weeks before these incidents.
On the plea I also received a detailed report from Dr Lester Walton, a very experienced forensic psychiatrist, who saw you on 9 June 2010. He reported that when you were diagnosed with paranoid schizophrenia it had been managed by a series of antipsychotic medications, but all that medication was discontinued in about March of this year and your paranoia, as he put it, “remains in abeyance”.
The most important feature of that is that you have not used illicit substances for more than nine months.
You have four sisters, and in usual circumstances you get on well with them and with your parents. Your family continues to give you their support.
Dr Walton regards you as being of normal intelligence. He is of the opinion that your psychotic symptoms in the past have almost certainly been as a result of your abuse of illicit substances, rather than as a result of a serious psychotic illness, that is, you suffered from a drug‑induced psychosis.
There are many elements of your behaviour on this occasion which would lead to the conclusion that you were paranoid which led you, in the context, to develop an animosity to Mr Marsh in particular, and to perhaps overreact to the presence of Mr Burley when you saw him, having had some minor history with him in the past.
Although Dr Walton did add, ‘I could not exclude the possibility that he is in the very early stages of schizophrenia but as yet that illness is not established’.
More importantly, you now appear to understand that illicit drugs have led you into trouble. You are at the moment, drug free.
Dr Walton made a number of observations under the heading of “Opinion”. At paragraph 2 he said:
I appreciate Mr Tamuryani intends to plead to his charges which, amongst other things, squarely reflects he is accepting responsibility for his misconduct. However, simply as a matter of completeness, this man does not have a defence of mental impairment available to him because he is not suffering from the type of mental illness which gives rise to that defence. However, I have no doubt that his drug‑induced psychosis was relevant. In particular, he seems to have been in the grips of fairly florid paranoia which would have rendered him vulnerable to misinterpreting other person's actions in an adverse fashion and he likely would perceive threat when none existed. In my opinion, this pathological frame of mind made a very direct contribution to the series of altercations in which Mr Tamuryani engaged leading up to the final knife‑wielding incident.
3. Mr Tamuryani impresses as a psychologically immature man. He certainly does thoroughly castigate himself for his misconduct but his capacity for fully‑fledged victim empathy remains undeveloped. That said, this man does show some evidence of being appropriately remorseful, concretely demonstrated by his handing himself into the police and, again, his preparedness to plead.
4. Mr Tamuryani does not require any active psychiatric treatment at present. He has now completed acute drug and alcohol detoxification but he requires follow‑up education and rehabilitation. While it is the case that drug induced psychoses cannot form the basis of a defence of mental impairment, my understanding is that sentencers have accepted that type of mental disorder as relevant to Verdins’ considerations. It is certainly my view that this man's psychotic disturbance made a direct contribution to his misconduct. While he does not require active psychiatric treatment any longer, it certainly would be prudent if there is further monitoring of Mr Tamuryani’s mental state and there does need to be follow‑up drug and alcohol rehabilitation. I doubt that it could be said that imprisonment would be unusually onerous for Mr Tamuryani compared other inexperienced prisoners. Now that he is drug and alcohol free and his mental state is normal there is no reason to expect that Mr Tamuryani would other than fully appreciate the specific deterrent component of any particular sentence.
I am prepared to accept those opinions of Dr Walton and it is true to say that there are many features of your offending which do show a degree of paranoia about what occurred in these circumstances. (I might say that Mr Marsh, who had known you over a number of years, himself had observed changes in your behaviour over the more recent period of time in which these matters arose.)
It should be noted although it was put that your observance of Ramadan, which I suspect would have been imposed on you rather than being a matter of your choice, had led you to vary your intake of your medication. Regardless, it was accepted that you were still using illicit drugs. Although there is no direct evidence before me, I am prepared to conclude that taking illicit substances in combination with your medication would always have had a deleterious effect upon your mental health. Those matters have to be taken in conjunction with Mr Walton's opinions, in any event.
On the plea I was referred to relevant authorities, in particular R v Verdins, Buckley & Vo[1] and R v. Tsiaras.[2] I have regard to the principles laid down in those authorities. I have also had regard to what was said by the Court of Appeal in R v. Sebalj.[3] It is in that case that the question of drug‑induced psychosis was first discussed as being relevant to sentence separate from any formal mental disorder. Sebalj was an extreme case because his psychotic state was taken to have deprived him of the ability to reason as to the wrongfulness of his actions, that is the equivalent of the defence of mental impairment if mental impairment could have been established. That his psychosis was an important feature of sentence and a very important one is not surprising. However, Vincent JA observed in Sebalj, in paragraph 14:
[1](2007) 16 VR 269.
[2][1996] 1 VR 398.
[3][2006] VSCA 106.
Nevertheless, as Mr Gamble submitted, it is important to bear in mind that where the psychotic state of an applicant was the consequence of his ingestion of drugs or other conduct deliberately chosen by him, the extent to which it can be asserted that his level of moral culpability is reduced may become very much problematic.
His Honour said then, at paragraph 15:
In so doing, I wish to emphasise that I regard the present case as being particularly unusual in a number of respects. It would be seldom that a self‑ induced psychosis would result in a significant lowering of the sentence to be imposed.
You are, to a large degree, in that category, but I am prepared to accept that because of the diagnosis that you had then received - by virtue of the fact that you had been prescribed anti‑psychotic medication - I am prepared to give some weight to your paranoid state going to reducing your moral culpability and moderating the extent to which you ought to be regarded as a vehicle for general and specific deterrence. I do not regard it as a particularly significant feature but it is present nonetheless and you should have the benefit of it.
I accept as a very important consideration, as I have already observed, that you have the support of your family and, in particular, you have the support from them to ensure that you will have the opportunity for useful employment when released, and I find that you have at least reasonable prospects of rehabilitation. That, taken together with your more recent diagnosis from Dr Walton and your apparent insight into your drug taking ‑ and I have taken that principally into account in the non‑parole period which I have fixed.
I regard your plea of guilty as significant because, it does in a way that you may not have been prepared to do so in the past, recognise your acceptance of responsibility for what you have done.
You have prior convictions which, although not all that serious, are relevant. One, at least, seems to have arisen as a result of your mental state and you were convicted of both sets of matters at a time when you were beginning to show a deterioration. They are relevant in that you do not come here as a person who has had no experience with the Courts, but they are not particularly important.
The offending on Count 1 is an ordinary example of offending of its kind which, were it not for the other offending, would have been dealt with in the Magistrates’ Court.
Count 2 is a serious offence. The damage inflicted was not as serious as it might otherwise have been (that was no result of what you had done one way or another, it might well have been very serious in the circumstances alone), but in the final result Mr Burley has the fears that I have already outlined, in addition to the scar to remind him constantly of what happened to him. The community abhors the use of knives.
You were young, and I have taken that into account, again particularly in regard to the non‑parole period that I have fixed.
On Count 1 you are sentenced to be imprisoned for six months. On Count 2 you are sentenced to be imprisoned for three years nine months. I direct that three months of the sentence on Count 1 be served cumulatively upon the sentence on Count 2. That is a total effective sentence of four years. I fix a period of 22 months before you are eligible for parole. I would have sentenced you to be imprisoned for a total of five years six months with a non‑parole period of three years six months had it not been for your plea of guilty
I direct that this statement and its details be entered into the records of the Court.
I declare that 310 days be reckoned as having been served under this sentence and I direct that this declaration and its details be entered in the records of the Court.
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