R v Umar
[2014] VSC 645
•16 December 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0011
| THE QUEEN |
| v |
| ABDULAAHI UMAR |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 11 September and 4 December 2014 |
DATE OF SENTENCE: | 16 December 2014 |
DATE OF REASONS: | 17 December 2014 |
CASE MAY BE CITED AS: | R v Umar |
MEDIUM NEUTRAL CITATION: | [2014] VSC 645 |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Stabbing –Methylamphetamine use - Plea of guilty - Serious violent offender – Offender affected by post-traumatic stress disorder and intellectual disability - Poor prospects of rehabilitation – Protection of community
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P D’Arcy | Office of Public Prosecutions |
| For the Accused | Mr J Shaw | David Barrese & Associates |
HIS HONOUR:
Please stand, Mr Umar.
You have pleaded guilty to one charge of intentionally causing serious injury contrary to s 16 of the Crimes Act 1958 (Vic).
The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment.
I sentence you to 6 years’ imprisonment with a non-parole period of 4 years.
I declare that you have already served 556 days (excluding today) by way of presentence detention.
I declare pursuant to s 6AAA of the Sentencing Act 1991 (Vic) (‘the Act’) that, but for your plea of guilty, I would have sentenced you to 8 years, with a non-parole period of 5 years and 6 months.
I declare that I have sentenced you as a serious violent offender pursuant to Part 2A of the Act and note that the Crown did not seek a disproportionate sentence under s 6D(b) of the Act.
I make the disposal order sought against you.
I will now give my reasons for the sentence that I have imposed. You may be seated.
The offence
On 8 June 2013, you and a friend, Abdulla Hassan, the victim in this matter, purchased some methylamphetamine or ‘ice.’
Later that day, the two of you visited Hassan’s friend, John Samele, at his home in Footscray. There, all three of you injected yourselves with ice,[1] after which you all drove to an address in Kew to collect some of Hassan’s belongings and then onto your unit in Reservoir.
[1]I note that your counsel told me during the plea hearing on 11 September 2014 (Plea transcript 15.13-15.16) that in addition to injecting yourself with ice on the day of the offence, you also consumed six cans of mixed bourbon and smoked 3g of cannabis (similarly, see also the report of neuropsychologist Associate Professor Warrick Brewer, dated 2 September 2014 (‘Brewer’) at p 4). Psychiatrist Dr Danny Sullivan who, at the request of your lawyers, assessed you in prison in October 2013 and compiled a report dated 16 January 2014 (‘Sullivan’) noted at [28] of his report that ‘[a]t the time of the alleged offence, Mr Umar stated that he would have had ice in his system but had had no other drugs all day.’
Whilst the three of you were driving to Kew and Reservoir, Hassan was continually abusive and threatening towards you. In Samele’s statement, he said that Hassan was raising his voice and raising his hand as if he was going to hit you and that the abuse went on for over an hour and that you were passive.[2]
[2]Depositions, 118-119.
When you got to your unit in Reservoir, Hassan placed various drug paraphernalia and a hammer on the coffee table in the lounge room. You and Hassan began arguing. According to Samele, the argument was over drugs. Hassan continued to abuse you and threaten you. At the committal hearing, Samele was asked about the nature of the threats Hassan was making to you at your unit and replied:[3]
You know, things like, I’ll smash you you cunt and things like that, you know, saying that like he was going to beat him up, and you know that he should have shut up, that he’s an idiot, he’s this, he’s that. And it was quite consistent.
[3] Depositions, 64.17-64.30.
In response to these threats and abuse, you eventually left the lounge room and went into the kitchen and obtained two knives. The first had a 20 cm long blade, the second an 8.5 cm blade. Armed with these two knives, you went back into the lounge area whereupon Hassan stood up and hit you on the head with the hammer which he had earlier placed on the coffee table.[4] You then punched Hassan and hit him in the neck with the butt of one of the knives. Hassan grabbed you and threw you over a coffee table and stomped on your head and chest. You were still holding both knives as the two of you continued to wrestle, progressing along the hallway to the front door. Samele went to intervene but was warned off by you.
[4]Surprisingly, the agreed Prosecution Opening asserted that this blow to your head ‘did not appear to cause injury’ to you. Your counsel said the Opening was accepted in total, but I note your counsel also said during the plea on 11 September 2014 that you still have a mark from that blow to your forehead (Plea transcript, 28.31). I also note that, at the committal hearing, Samele said that Hassan hit you with the hammer ‘pretty hard’ to the middle of your forehead (see Depositions, 65.7-65.24).
The wrestling continued between you and Hassan. You grabbed Hassan around the back of his head, and cut him on the top of his head. He yelled out in pain. You then stabbed Hassan to the torso.[5]
[5]According to the Prosecution Opening, ‘approximately three times.’
Hassan struggled free and ran down the driveway. You chased him. He tripped on a tree root on the nature strip and landed on the road. You walked up to Hassan and stood with your legs over Hassan’s torso and yelled something about drugs. Hassan handed you a quantity of ice and you started to walk away.
But then you turned around and stabbed Hassan to the left upper thigh. Hassan screamed out in pain. You came back again to Hassan and stabbed him in the right leg, just above the knee.
As you began to move away, Hassan yelled out ‘you’re fucking going to jail, you dog’. You then walked back to Hassan, who was then in the middle of the road and stabbed him twice more in the torso. The full-length of the larger knife was embedded in Hassan’s stomach and the blade of the knife bent. The next stabbing went about three quarters of the way into the stomach. You then walked back towards the unit, throwing the larger knife onto the roof of your garage and hiding the smaller knife in the bushes under the clothesline.
Hassan stumbled across the road and collapsed. Neighbours administered first aid to him and called 000. Paramedics attended the scene. Hassan was conveyed to the Royal Melbourne Hospital.
The police also attended the scene. Investigators, assisted by Samele, located the two knives. You were arrested and conveyed to the Heidelberg police station where you participated in a taped record of interview, making admissions to stabbing Hassan. During your interview, you alternated between expressing regret over your actions and acknowledging that they were unjustified[6] and declaring that Hassan deserved what he got.[7]
[6]See Q1791 to 1794, Depositions, 630.
[7]See Q1890, Depositions, 639.
Hassan underwent emergency surgery for several hours at the Royal Melbourne Hospital. He needed several blood transfusions, was placed in an induced coma and was in intensive care. Four days after the initial surgery, he had to have further surgery because of the injuries sustained to his bowel and pancreas.
In a report dated 27 February 2014, Dr Jason Schreiber, a forensic physician employed by the Victorian Institute of Forensic Medicine reviewed the medical treatment of Hassan, based on the Royal Melbourne Hospital file. Schreiber listed the following injuries and problems noted in hospital concerning Hassan:
· Altogether at least 5 stab injuries
· Stab wounds to left chest and to left and right abdomen
· Left haemo- and pneumothorax with decreased air entry
· Small bowel, stomach and pancreas lacerations requiring surgery
· Left thigh and right knee lacerations
· Dropped blood pressure with under 40 systolic
· Blood loss and blood in his urine
· Psychiatric problems
·Complication of fevers and large vomiting from the third day after admission requiring second major surgery
Dr Schreiber opined that:
[Hassan] sustained a combination of substantial, severe and life-threatening injuries with high risk of future impairment. There is no doubt whatsoever that these injuries would have been fatal without the extensive medical treatment…
Victim Impact Statement
Hassan made a victim impact statement on 29 August 2014, approximately 14 months after the incident. He said he experiences pain now all the time from his injuries and moved house with his family because you knew where he lived. In describing the emotional trauma caused by your offending, he said he was traumatised, adding:
I have nightmares. I have been diagnosed with PDSD [sic]. I have fears of going out with my family. I am worried that this man gets out of jail that he might find me and hurt me and my family.
Under the heading ‘other relevant information,’ he said:
I drink alcohol to try to block out what happened to me.…This has really changed my whole life. My wife and I just had twin babies we should be really happy but I just don’t stop thinking about what happened to me.
Plea of Guilty
You were originally charged, amongst other things, with attempted murder. After a contested committal on 29 January 2014, at which Hassan gave evidence, you were committed to stand trial on attempted murder and alternative charges. At committal, you pleaded not guilty to all charges. The matter was set down for trial, to commence 1 September 2014.
On 26 August 2014, you offered to plead guilty to intentionally causing serious injury and that offer was accepted by the Crown on the same day. The Prosecutor informed me that through your legal representatives you had been in discussion with the Crown as far back as the committal regarding pleading to something, though the precise charge was not settled until 26 August 2014.
On 1 September 2014, in this court, you were arraigned and pleaded guilty to one count of intentionally causing serious injury.
Criminal Record
From nine court appearances, beginning in August 2005 when you were 21, until December 2012, you have accumulated 52 convictions and two findings of guilt. You received multiple sentences of immediate imprisonment between 2007 and 2011, the longest being a sentence of 30 months’ imprisonment with a non-parole period of 10 months imposed in November 2007.
Many of your prior offences have been dishonesty offences, mainly thefts, but there are a number of offences involving violence and/or weapons. You have been punished for those offences already, and are not to be punished for them again, but they are relevant to your prospects of rehabilitation, which is a matter I must take into account in sentencing you for the current offence.
At the Broadmeadows Magistrates’ Court on 8 February 2007, you were convicted of, amongst other things, making a threat to kill and unlawful assault. Your counsel told me[8] that the victims were your mother and one of your brothers and that these offences were associated with the four breaches of intervention orders that were also dealt with by the court on that day. The intervention orders had been taken out by members of your family against you, prohibiting you from attending the family home. For the offences heard on 8 February 2007, you received a jail sentence of 60 days, all but 6 days of which were suspended. There was a declaration of 6 days’ presentence detention. You subsequently breached the suspended sentence and, in November 2007, you were ordered to serve the balance of 54 days.
[8]Plea transcript, 45.
On 20 November 2007, you were convicted in the County Court of armed robbery and sentenced by Judge Gullaci to 30 months’ jail with a non-parole period of 10 months. There was a declaration of 187 days of presentence detention. The armed robbery was on a licensed grocery. You threatened the husband and wife owners with a knife, in order to take a bottle of Jim Beam.
On 8 November 2010, you were convicted at the Colac Magistrates’ Court of, amongst other things, carrying a dangerous article in a public place and two counts of possessing a controlled weapon without excuse, for which you received a sentence of 2 months’ jail, wholly suspended. You subsequently breached that suspended sentence, resulting in the restoration of the sentence.
On 3 August 2011, at the Sunshine Magistrates’ Court, you were convicted of amongst other things, attempted robbery, unlawful assault and recklessly causing injury. You received a total effective sentence of 14 months with a non-parole period of 8 months. There was a declaration of 222 days of presentence detention. Your counsel informed me that the attempted robbery involved you grabbing a bottle of alcohol at a bottle shop and trying to make off with it. He said the unlawful assault involved some pushing and shoving with one of your brothers. As for the recklessly causing injury offence, your counsel was not able to obtain instructions from you about that, other than that the victim was a stranger. I note it attracted a sentence of 8 months’ imprisonment, 4 months of which was to be served cumulatively.
It is agreed that you fall to be sentenced today as a serious violent offender under Part 2A of the Act by reason of the fact that you were previously sentenced in 2007 to imprisonment for making a threat to kill (you were 22 at the time) and the offence for which you are being sentenced today is defined as a serious violent offence.[9] I observe that the current offence involves a marked escalation in violence on your part when compared with your prior convictions for violence.
[9]Intentionally causing serious injury and making a threat to kill are serious violent offences pursuant to s 6B and clause 3(b)(i) of Schedule 1 of the Act. You were convicted of making a threat to kill at the Broadmeadows Magistrates’ Court on 8 February 2007 for which you received a partly suspended sentence of imprisonment, which you breached and which was wholly restored at the Broadmeadows Magistrates’ Court on 22 November 2007.
I also note that you have numerous prior convictions for being drunk in a public place and a prior conviction for using heroin. Drug and alcohol abuse loom large in your personal history, to which I now turn.
Personal History
You were born in Somalia on 26 June 1984. You were therefore aged 28 at the date of the offence (8 June 2013) and are now aged 30.
Your parents were subsistence farmers and your father was also in the army. You were the first born child. You have three younger brothers, and a younger sister. You also have a half-sister.
When you were 8 years of age, your family was subjected to extreme violence by rebel forces who came to your village. You witnessed your father being tortured (both his ears were cut off and shoved in his mouth) and murdered. Your mother was also beaten and raped and your younger brother’s hand was chopped off. The next day, with your mother’s help, you dug a grave and buried your father. The rebel forces committed other atrocities in your village and you saw the beheaded bodies of several people that you knew. You still suffer from Post-Traumatic Stress Disorder (‘PTSD’) stemming from this tragic incident when you were very young.
After the death of your father, the family was split up. Between the ages of 8 and 18, you lived in a refugee camp in Kenya, separated from your mother and some of your siblings. Two of your brothers were in the same camp as you. According to various reports, you witnessed more violence at the refugee camp, including several murders. You were also sexually assaulted. Neither your counsel or the reports reveal the nature or severity of that sexual assault: your counsel thought it best not to explore the details of that matter with you.
Whilst in the camp, you received some education, up to Year 11. You went to school a couple of days each week but you were often truant.
At the age of 12, you were injured in a bus accident. Several people died in that accident[10]. You were in a coma for several days.
[10]Brewer, 3.8.
According to your counsel, at about the age of 15[11] you started using cannabis, and heavily. You were using approximately 2 grams per day.
[11]Various reports suggest that your use of cannabis commenced when you were younger (see Brewer, 6.7) or older (see Brewer, 5.9; Sullivan, [18]) than 15. Whilst your reliability as an historian is questionable, I have no reason to doubt that your dependency on cannabis is long term.
In 2003, when you were 18 or 19, you migrated to Australia as part of the Red Cross Family Reunification Program. Your mother and some of your siblings were already living here. In 2004, when you were 19 or 20, you married but the marriage lasted less than a year before you got divorced. There were no children from that marriage.
Your work history in Australia is patchy. You have done some labouring and factory work and some fruit picking. You worked in a recycling plant for several months. You were unemployed for several years leading up to the current offence.
In addition to your long term heavy use of cannabis, you have had a longstanding problem with alcohol. You began drinking heavily soon after your arrival in Australia. Your counsel told me that you would drink several litres of wine per day, as well as using two to three grams of cannabis per day.
As your problems with drugs and alcohol escalated, it led not only to offending but to increased conflict with your family. As I previously mentioned, intervention orders were obtained which prohibited you from living in the family home. You spent time living on the streets. There have been several times when you have overdosed.[12] You have also experienced psychotic episodes.[13]
[12]See Brewer, 7.3.
[13]See for example: Brewer, 10.1; Sullivan, [27]; Report of psychiatric registrar Dr Wickramasinghe, dated 12 July 2012, 1.5; Report of neuropsychologist Dr Linda Borg, dated 26 April 2011 (‘Borg’), 3.1-3.3.
When you were about 25,[14] you started using heroin regularly. I note that you were convicted of using heroin in August 2011, when you were aged 27.
[14]See Brewer, 4.5.
You started using methylamphetamine or ‘ice’ 3 to 4 years ago. You used 2 to 3 points of ice per day.[15] Your counsel submitted that your ‘reliance on drugs could be traced back to PTSD’[16] arising from the horrific violence you witnessed when you were 8.
[15] A ‘point’ being a tenth of a gram.
[16]Plea transcript, 38.
You have been on a disability pension due to mental health issues for much of the time that you have been in Australia. There have been incidences of self-harm and attempted suicide.[17]
[17]Brewer, 3.3 and 9.5.
Mental Health Issues
I turn now to consider your mental health issues in more detail. Two matters stand out from the expert reports provide to me. You suffer from an entrenched PTSD stemming from your traumatic childhood experiences and you also have a mild to moderate intellectual disability as a result of acquired brain injury (‘ABI’).
Over several years, a number of experts have diagnosed you with PTSD. Dr Danny Sullivan, a consultant psychiatrist, recently confirmed that diagnosis in a report dated 16 January 2014 (‘Sullivan’). [18] Dr Sullivan also noted that:
[Mr Umar] described re-experiencing past traumas and has auditory and visual hallucinations which appeared to be associated with this.[19]
[18]Sullivan, [23].
[19]Sullivan, [24].
These hallucinations are continuing despite the fact that you are being medicated in jail. Dr Sullivan stated that:
Ideally he would be engaged in trauma-focused cognitive-behavioural therapy in addition to antidepressant medication…[but] Mr Umar is unlikely to be able to access sustained and appropriate psychological treatment in the correctional system….On this basis his mental disorder will render incarceration more burdensome than for someone without mental disorder.[20]
[20]Sullivan, [32].
Your drug and alcohol abuse over the years appears to have been, at least in part, a form of self-medication for your PTSD. Dr Sullivan stated in his report that:
It is likely that Mr Umar is predisposed to substance use due to [PTSD]. There are no simple explanations why an individual develops problems with substance use, but a history of significant trauma and anxiety symptoms may result in increased propensity to substance use which a person discovers may reduce distress or anxiety. Consequently there is at least a weak link between the mental disorder and the substance use which was associated with the offending.[21]
[21]Sullivan, [31].
Regarding you intellectual disability, Associate Professor Brewer, a clinical neuropsychologist who formally tested you in August 2014, stated in his report dated 2 September 2014 (‘Brewer’) that:
Mr Umar’s overall intellectual ability fell within the “Impaired” range (Full Scale IQ = 54-62; 0.2nd percentile[22] (…) Mr Umar’s current cognitive profile (…) reflects a man with a mild-moderate intellectual disability[23] (…) This pattern is consistent with a mild moderate acquired brain injury.[24]
[22]Brewer, 8.2.
[23]Brewer, 10.9.
[24]Brewer, 11.5. I note that Sullivan found ‘no clear indication of cognitive impairment’ ([28]) but he did not have the benefit of the results of formal testing administered by Brewer.
Brewer also opined that:
The available evidence suggests that a given sentence will weigh significantly more heavily on Mr Umar than it would on a person in normal health.[25] (…) [T]here is a serious risk that ongoing imprisonment will continue to have a significant adverse effect on Mr Umar’s mental health.[26]
[25] Brewer, 14.
[26]Brewer, 15.2.
As regards your mental and cognitive state at the time of the current offence, and the part that your PTSD and intellectual disability had to play in it, I will refer first to the report of Associate Professor Brewer. He begins his discussion of the subject by mentioning that on the day of the offence, on your report, you were not taking your prescribed medication and were using alcohol and cannabis as well as ice, which he describes as an ‘amalgam of risks.’ I note that your counsel also said that on the day of the offence you used alcohol, cannabis and ice[27] but the reliability of those instructions is questionable given that you told Dr Sullivan when he assessed you in October 2013 that the only drug you used on the day was ice.[28] Even if you were only using ice on the day of the offence, what Brewer goes on to say still strikes me as pertinent:
Whilst this amalgam of risks would leave the average person [of] Mr Umar’s age at very high risk for impulsive, disorganised and erratic behaviour, his established history of PTSD and psychosis, specifically associated with highly traumatic personal threats, ongoing instability of mental status and cognitive vulnerabilities associated with his ABI would be expected to leave Mr Umar highly likely to react with extreme and mindless aggression in situations of high emotional arousal. His learned response from early childhood is fight or flight with extreme personal consequences either way…[29] (emphasis added)
[27]Your counsel told me during the plea (Plea transcript 15.13 -15.16) that in addition to injecting yourself with ice on the day of the offence, you also consumed six cans of mixed bourbon and smoked 3 g of cannabis.
[28]See Sullivan, [28]: ‘At the time of the alleged offence, Mr Umar stated that he would have had ice in his system but had had no other drugs all day.’
[29]Brewer, 11.7.
Dr Sullivan had this to say about your mental state at the time of the offence:
At the time of the (…) offence Mr Umar [was] intoxicated with methamphetamine. The effect of intoxication with ice was to impair Mr Umar’s judgment and his capacity to think clearly or make calm and rational choices. He was disinhibited. His perception was that the others were going to steal from him or cheat him. His perception of threat was likely influenced by his intoxication and methamphetamine use is associated with aggression. In addition people with [PTSD] are prone to hypervigilance and increased perception of threat, although on the account provided the issues germane to offending appeared to be intoxication and reality based threat…[30] (emphasis added)
[30]Sullivan, [30].
Counsels’ Submissions
Your counsel relied on your impaired mental functioning as a significant mitigating factor. He submitted[31] that, having regard to your PTSD and your intellectual disability, all of the principles enumerated in R vVerdins[32] at [32] applied, save for the second principle.
[31]Plea transcript, 44.10.
[32]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
The prosecution conceded that the Verdins’ principles in relation to sentencing offenders with impaired mental function (save for principle two) have some application to you but submitted in effect that they are outweighed or at least counterbalanced by the need to protect the community from you. I will return to that submission after considering the application of the Verdins’ principles.
I accept that your moral culpability is reduced significantly by your PTSD and intellectual disability but when you stabbed Hassan twice in the stomach, he was already seriously injured and posed no physical threat to you and I consider that you would have appreciated that. The weight to be given to denunciation of your conduct is reduced, but not altogether eliminated. I take a similar view in relation to the considerations of specific and general deterrence.
I accept the opinions of Dr Sullivan and Associate Professor Brewer that imprisonment will be more burdensome for you because of your mental condition. I was informed in a presentence report that much of the time you have been on remand you have been in protection units, mainly because of altercations with fellow prisoners. Consideration of your history on remand for the current offence supports the experts’ opinions regarding your vulnerability in a prison environment.
Your counsel informed me on the plea[33] that you have been the victim of four assaults in prison whilst on remand. First, he said that in July 2013 at the Melbourne Assessment Prison you were punched by another prisoner. Second, he said that in November 2013 at Port Phillip Prison (‘PPP’), you were bashed, suffering a fractured skull which required a metal plate to be inserted in your head. He said you also lost six teeth, had a broken nose and that you were in a coma for two weeks. Third, he said that on 27 February 2014 at PPP, two prisoners assaulted you, breaking your nose again and your cheekbone. Fourth, he said that in May 2014 at PPP, another prisoner stabbed you in the back of the head with a ‘shiv’ fashioned from a toothbrush and you needed six stitches to the back of the head.
[33]Plea transcript, 31-33.
I requested a presentence report (‘PSR’) from the Department of Justice under s 8A of the Act about, amongst other things, your difficulties on remand. I was provided with two PSRs, one dated 31 October 2014 by Brendan Money, Assistant Commissioner, Sentence Management Branch (‘Money’s PSR’) and one dated 24 October 2014 by Dr McLaren of St Vincent’s Correctional Health (‘McLaren’s PSR’). Although the details provided in these PSRs were not as dramatic as those provided by your counsel, they were nonetheless very concerning.
Money’s PSR records that you were physically assaulted in jail on 21 October 2013 and on 27 February 2014.[34] It does not detail the nature of the injuries sustained by you.
[34]The report also acknowledges that you were threatened by another prisoner on 4 November 2013.
McLaren’s PSR records that:
Mr Umar was involved in an altercation or assault on 23 October 2014. He appears to have suffered a significant head injury and had at least one generalised seizure during the ambulance transfer. The ambulance eventually took him to the major trauma centre at the Alfred Hospital. Investigation show no brain or skull injury but significant facial injuries around the left eye. These were repaired surgically in November 2013 with good results. Mr Umar had a repair of fractured nose in March [2014].[35] I believe this injury was incurred at the same time.
[35]The report says 2013 but that must be a mistake.
Money’s PSR refers to a number of incidents where you are alleged to have assaulted other prisoners. In sentencing you for the current offence, I do not count those incidents against you or make any findings that you were the wrongdoer. Rather, I regard the multiplicity of altercations as confirmation that, by reason of your PTSD and intellectual disability, you are more likely to come into conflict with other prisoners, even in protection units, and to consequently find prison more burdensome.
From my reading of Money’s PSR, it is likely that you will continue in protection units after being sentenced. Being a protection prisoner will impose restrictions on you over and above the restrictions experienced by prisoners in mainstream units but Money’s PSR suggests that the restrictions will not be as severe as one might have at first imagined. The main restriction appears to be in relation to the range of prisoners with whom you will be able to associate. Money writes that:
protection prisoners at Port Phillip have the same out of cell hours as mainstream prisoners, which is 11.5 hours every day.[36]
[36]Money’s PSR, 2.7.
As regards visitors, Money writes:
Visitors may visit prisoners 7 days a week, between 9am and 5pm. However, mainstream prisoner do not have access to the visit centre on Tuesday afternoons, Sunday mornings and all day Thursdays, which are times allocated for protection prisoners. If protection prisoners want to have visitors outside the allocated times, arrangements can usually be made.[37]
[37]Money’s PSR, 3.3.
According to Money, there is not a great deal of difference in the treatment of protection and mainstream prisoners as regards access to work and other programs. But, in summary, being a protection prisoner means greater restrictions and I take this into account in your favour in sentencing you.
Turning to the last of the six principles in Verdins, the fact that you are unlikely to receive appropriate psychological intervention whilst in prison lends some support to Brewer’s opinion that ‘there is a serious risk that ongoing imprisonment will continue to have a significant adverse effect on Mr Umar’s mental health.’ As against that, the fact that you do not have as ready access to drugs and alcohol in prison may contribute to some improvement in your mental health, even without appropriate therapy for your PTSD.
According to Money’s PSR, you were urine tested for illicit drugs in prison on six occasions[38] in 2013 and on four occasions[39] in 2014. Of these 10 urine tests, the report comments that you had negative results for the last three, that is, on 16 and 22 September and 16 October 2014, which tends to suggest you tested positive for illicit drugs on the other seven occasions. However, your counsel provided me with seven urine test result printouts,[40] covering both 2013 and 2014, all negative for illicit drugs, including three recent tests in November 2014. I rely on these results rather than Money’s PSR. Your counsel also provided me with a number of certificates regarding your positive involvement in drug and alcohol rehabilitation courses in jail. I encourage you to continue your involvement with such programs and your abstinence from illicit drugs.
[38]6 July, 10 August, 9 and 18 September, 24 November and 31 December 2013.
[39]28 May, 16 and 22 September and 16 October 2014.
[40]24 November 2013, 31 December 2013, 28 May 2014, 17 September 2014, 6, 11 and 21 November 2014.
Protection of the Community
Notwithstanding your favourable urine screen results and the observation in Money’s PSR that of late you ‘appear to be more settled’[41] and your ‘present interaction with staff is positive and [your] current prison officer case manager notes reflects good behaviour,’[42] the prosecution submitted that your prospects of rehabilitation are bleak. It based that submission primarily on three considerations: your intellectual disability, your PTSD and your history of poly drug abuse and drug induced psychoses. The prosecution submitted that when you combine those considerations with your criminal history and the fact that the current offence is a serious example of intentionally causing serious injury, the protection of the community becomes the dominant feature of the sentencing process. The Prosecutor relied on what was said in Veen v R (No 2)[43] and Muldrock v R[44] in this regard. In Veen v R (No.2), Mason CJ and Brennan, Dawson and Toohey JJ said:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality… (emphasis added)
[41]Money’s PSR, 6.6.
[42]Money’s PSR, 6.6.
[43]Veen v R (No 2) (1988) CLR 465 (‘Veen v R (No 2)’).
[44]Muldrock v R (2011) CLR 20 (‘Muldrock v R’). See, for example, Muldrock v R, [60].
Your counsel disputed that your prospects of rehabilitation are ‘bleak’. He submitted that you have reasonable prospects of rehabilitation if you receive all the supports you need, both inside and outside prison.
Unfortunately, you are unlikely to receive in prison the sort of counselling you need to ameliorate your PTSD, which I regard as the root cause of many of your problems. It will be recalled that Dr Sullivan, who is very familiar with what the prison system provides by way of psychiatric and psychological services, stated in his report that:
Mr Umar is unlikely to be able to access sustained and appropriate psychological treatment in the correctional system…[45]
[45]Sullivan, [32].
Nothing in the PSRs provided to me suggests otherwise.[46] You will continue to be medicated in prison but you will have to wait until you are released before any meaningful psychological treatment is available to you. I urge those supervising your parole in due course to make such treatment a high priority, for your sake and the community’s. Even then, it is difficult to be optimistic that your condition will significantly improve, given the longevity and severity of your PTSD.
[46]Although I requested that the PSR deal with whether psychological treatment for your PTSD will be made available to you in custody, the issue was ignored in the two reports that were prepared. I did not request a further PSR because of the considerable delay in the provision of the PSRs.
In summary, your PTSD is a deep-seated problem. Your intellectual disability though labelled mild to moderate is profound when comparison is made with the rest of the population. Your history of alcohol and drug abuse is long term. You have received immediate terms of imprisonment before and you have continued to offend upon your release. As Associate Professor Brewer commented:
Mr Umar is highly likely to react with extreme and mindless aggression in situations of high emotional arousal. His learned response from early childhood is fight or flight with extreme personal consequences either way.[47]
[47]Brewer, 11.7.
I also note the observation of neuropsychologist Dr Linda Borg in an earlier report dated 26 April 2011 that:
Mr Umar’s current cognitive and psychological state is significantly impacting on his behaviour. He is hyper-vigilant and constantly on edge. He is also rigid in thinking and has difficulty foreseeing potential problems and how to avoid these in daily life. So if for example Mr Umar were to be in a situation where he perceived himself to be under threat in some way because of his rigidity of though he will revert to maladaptive behaviours previously used when under pressure. Mr Umar’s ability to truly appreciate the consequences of his actions and alter his behaviour to prevent future offending is compromised.[48](emphasis added)
[48]Report of neuropsychologist Dr Linda Borg dated 26 April 2011, 7.4.
Regretfully, I accept the prosecution’s submission as to your prospects of rehabilitation. Further, over and above what was said by the High Court in Veen (No 2), s 6D(a) of the Act requires me in sentencing you to treat the protection of the community as the principal purpose for which the sentence is imposed.
Current Sentencing Practices
Section 5(2)(b) of the Act requires sentencers to have regard to current sentencing practices. The prosecution referred me to Tasevski v The Queen[49] where many sentences for intentionally causing serious injury are discussed, especially matters involving stabbings. In Tasevski, the Court of Appeal by majority rejected an appeal against the severity of sentences imposed on the appellant for intentionally causing serious injury and intentionally causing injury, offences which involved two separate stabbings in public places. The primary judge sentenced Tasevski to 7 years 6 months for the offence of intentionally causing serious injury, committed whilst he was on bail for the other stabbing, for which he was charged with intentionally causing injury and was sentenced to 3 years 6 months, 18 months of which was ordered to be cumulative. This made for a total effective sentence of 9 years with a non-parole period of 7 years. In Tasevski, Tate JA, who was in the minority, closely analysed and compared a number of stabbing cases which had resulted in sentences for the offence of intentionally causing serious injury.
[49]Tasevski v The Queen [2014] VSCA 135 (‘Tasevski’).
In DPP v Briggs,[50] the drug affected offender stabbed a victim multiple times with a kitchen knife while in a public place, causing serious injuries. Briggs, who pleaded guilty and who undertook to give evidence against a co-offender, fell to be sentenced as a serious violent offender. The trial judge gave him a sentence of 2 years and 6 months’ imprisonment. Briggs breached his undertaking to give evidence against the co-offender and, on the application of the Director of Public Prosecutions, was resentenced by the Court of Appeal to 3 years and 9 months’ jail for the offence of intentionally causing serious injury. Tate JA noted that the Court of Appeal was ‘constrained in resentencing by the indication given by the sentencing judge below of the sentence he would have imposed but for the undertaking.’[51]
[50][2010] VSCA 82.
[51]Tasevski [2014] VSCA 135, [39] per Tate JA.
In DPP v Kao,[52] the offender inflicted life threatening injuries on the victim in an unprovoked knifing. He also fell to be sentenced as a serious violent offender. The primary judge sentenced Kao to 4 years’ imprisonment with a non-parole period of 2 years and 6 months. On a Crown appeal, the Court of Appeal found the original sentence to be manifestly inadequate for what was an offence in the upper end of the range of seriousness and resentenced Kao to 6 years with a non-parole period of 4 years. The principle of double jeopardy was still applicable at the time Kao was resentenced.
[52]DPP v Kao [2009] VSCA 237.
In Priestley v The Queen,[53] the offender, without any provocation, stabbed a drug dealer in the stomach with a pocket knife, perforating his anterior distal colon. The primary judge sentenced Priestley to 5 years’ imprisonment with a non-parole period of 3 years. The Court of Appeal reduced the sentence to 4 years’ imprisonment with a non-parole period of 2 years and 6 months to take into account that Priestley would serve his sentence in protection.
[53]Priestley v The Queen [2014] VSCA 135.
In determining the sentence to be imposed on you, I have had regard to the range of sentences for intentionally causing serious injury helpfully discussed in Tasevski, whilst also bearing in mind that ‘the complexities of sentencing are not susceptible to precise mathematical comparisons’[54] and that ‘[while] current sentencing practices are important, care must be exercised when having regard to sentences passed in other cases because while past sentences provide a historical account of what has happened previously, they do not themselves fix boundaries which must dictate future sentences.’[55]
[54]Tasevski [2014] VSCA 135, [4] per Nettle JA.
[55]Tasevski [2014] VSCA 135, [51] per Tate JA.
Summary of Sentencing Considerations
To summarise, I take into account in mitigation of the penalty that I have imposed on you, the following matters:
· your tragic childhood;
· the connection between your tragic childhood and your history of substance abuse;
· the fact that prior to your commission of the offence, you were subjected to continual abuse and threats from Hassan;
· your impaired mental functioning, which brings into play to a significant extent five of the six principles enunciated in Verdins;
· your plea of guilty, both for its value in facilitating the course of justice and as some evidence of remorse on your part;
· the injuries you have sustained whilst on remand; and
· your efforts at rehabilitation whilst on remand.
The matters which militate in favour of a longer sentence include:
· the life threatening nature of the injuries inflicted on Hassan and the long term physical and mental suffering associated with them;
· the fact that you stabbed him twice in the stomach when he was effectively defenceless, having already been seriously injured;
· your poor prospects of rehabilitation, having regard to your PTSD, intellectual disability, history of drug abuse and drug induced psychoses and criminal history; and
· the fact that you fall to be sentenced as a serious violent offender, making protection of the community the principal sentencing consideration.
Synthesising these competing considerations as best I can, I consider that a sentence of 6 years’ imprisonment with a non-parole period of 4 years is an appropriate penalty.
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