R v Wahani
[2009] VSC 319
•13 August 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No 1431 of 2009
| THE QUEEN |
| v |
| MOHAMED ABDI WAHANI |
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JUDGE: | WEINBERG J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 5 & 6 August 2009 | |
DATE OF SENTENCE | 13 August 2009 | |
CASE MAY BE CITED AS: | R v Wahani | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 319 | |
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Plea of guilty to intentionally causing serious injury – Boiling oil poured over victim – Whether prisoner suffering mental impairment, possibly drug-induced psychosis, because of medication he had been prescribed or by virtue of neurological conditions – No relevant mental impairment – R v Verdins (2006) 16 VR 269 not applicable – Prisoner sentenced to six years’ imprisonment with four-year non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Lynch | Office of Public Prosecutions |
| For the Accused | Mr I Crisp | Michael J Gleeson & Associates |
HIS HONOUR:
Mohamed Wahani, you have pleaded guilty to one count of having, at Fitzroy, on 28 August 2008, intentionally caused serious injury to Sehal Said. That is a Level 3 offence, the maximum penalty for which is 20 years’ imprisonment.
You were, at the time, sharing a housing commission flat in Fitzroy with three other men, one of whom was Mr Said. On the evening of Wednesday 27 August 2008, there was an altercation between you. It arose out of your having purchased an entire Nando’s chicken, rather than the quarter chicken that Mr Said had asked you to buy for him. Regrettably, what began as nothing more than a minor spat soon led to a serious argument between the two of you.
You made it clear to Mr Said that you resented his tone of voice, and what you regarded as his officious manner. You said to him: ‘You can’t talk to me that way … If you do, see what is going to happen to you.’
Mr Said asked you what your problem was. You replied by saying that he could not talk to you in that way. He said that he had finally had enough of you. He asked you why you had, over the previous weeks, kept trying to pick a fight with him. He suggested that if there was a problem, you were both men and should go outside and sort it out. You responded by threatening him, saying: ‘You just wait and see tonight.’ He told you to stop saying that, but you kept repeating: ‘You just wait and see tonight.’
After that, tensions appeared to ease. Eventually, Mr Said retired to his bedroom and went to sleep. You occupied the lounge room. It appears that you too went to sleep. For several hours, nothing happened.
At about 3:30 am, you awoke and began to prepare a meal for yourself. You put some oil in a silver pot and heated it to boiling. For reasons that are difficult to fathom, you went into Mr Said’s bedroom and poured the boiling oil all over his body. Not surprisingly, he screamed in agony at the excruciating pain which you inflicted upon him. Your actions resulted in burns to 12 per cent of his body, including his face, arms, chest and legs. He received third-degree burns to his hands.
You left the flat and went to a friend’s place. He advised you to go to the police, which you did. You were formally interviewed and made a number of admissions.
Mr Said suffered horribly from what you did to him. He had to be put into an induced coma for a number of days, so great was the pain of his injuries. He was in hospital for several weeks. He still bears dreadful scars over his face, body and, in particular, his hands. In his victim impact statement, he says that he was profoundly traumatised by your actions, and that he has been permanently affected as a result. He has been psychologically damaged, and has also suffered significant financial loss. One can only hope that over time his condition will improve.
From an early stage, you offered to plead guilty to the lesser offence of recklessly causing serious injury. However, the Crown, as it was well entitled to do, rejected that offer. You were ultimately presented on one count of intentionally causing serious injury and, in the alternative, one count of recklessly causing serious injury. Up until almost the last moment, there was to be a trial.
Sensibly, however, you agreed to plead guilty to the first count on the presentment. I have little doubt that a jury would have convicted you on that count had you been so unwise as to contest it. Nonetheless, your early offer to plead guilty to recklessly causing serious injury is of some value to you. More importantly, your plea of guilty to intentionally causing serious injury (which saved the cost of a trial and spared your victim from having to relive his trauma by giving evidence), coupled with your genuine remorse, means that you are entitled to an appropriate discount which will be reflected in the sentence that will be imposed upon you.
I should say something about your background. You are now just 24 years of age. You were born in Mogadishu, in Somalia, in August 1985. Your formative years were spent in that blighted country. However, as a result of the civil war that began in the early 1990s, your family was forced to flee. They eventually settled in Egypt. During that early period of your life, your schooling was severely disrupted. A number of your close relatives went missing, and your family was split up. You have relatives who now live in Canada, the United Kingdom and the United States.
In 2001, you and your mother came to this country as refugees. Subsequently, you became an Australian citizen. You had, by then, been separated for many years from your father. He had remained in Somalia while you and your mother lived in Egypt. You did not see your father from 1993 to 2006. You have two older brothers and a younger sister.
After arriving in Australia, you lived in Melbourne for a short time. You and your mother then moved to Perth. However, you found yourself somewhat isolated as the Somali community in that city was very small. You therefore returned to Melbourne some months later.
You attended a year of English classes, and then commenced Year 10 studies. You required extra assistance with learning. You struggled due to difficulties with English. You were, however, said to be good at mathematics. You socialised well and had no behavioural problems. You went on to complete Year 11 in 2003 but you did not attempt Year 12, undertaking instead TAFE studies. You obtained a certificate level 2 in mechanics. You worked at Harar Motors in Footscray as an apprentice. However, you found it difficult to live on an apprentice wage, as you had cousins to support.
Since then you have had a number of different jobs. You have worked in food processing, in restaurants, as a storeman and, in more recent times, at Coles Supermarkets. By all accounts, you have been an honest and reliable employee.
Prior to the commission of this offence last year, you moved around a good deal. You stayed with friends in Fitzroy and also in Hoppers Crossing. As I previously indicated, you were living with three other men at the flat in Fitzroy where this incident took place.
Your medical history is said to be of some importance. In late 2007, you attended St Vincent’s Hospital because you were persistently febrile. You were diagnosed with Kikuchi Disease, a rare, non-cancerous enlargement of the lymph nodes. You underwent surgery to remove those enlarged lymph nodes from the left side of your neck. A biopsy showed that you had contracted tuberculous lymphadenitis. Accordingly, from January 2007, you were treated with antibiotics to deal with that condition. You were also prescribed a combination of three drugs: Ethambutol, Rifampicin and Pyrazinamide.
In September 2008, whilst you were in custody, you were seen by Dr Danny Sullivan, a consultant psychiatrist, in relation to a proposed bail application. You told him that you had scrupulously followed the instructions that you had been given in relation to the medication that had been prescribed for you. Importantly, you told him that the medication had no significant adverse effect upon you, apart from making your eyes red. You denied having had any other past medical problems.
In his report, a copy of which was tendered before me, Dr Sullivan concluded that you had no apparent history of psychiatric disorder. He said that there was no evidence of cognitive impairment and nothing to indicate that you were suffering from any personality disorder. He said that the medication that you had been taking was unlikely to have brought about any mental disorder. He added that there was no indication of any such disorder having been associated with the commission of this offence.
Dr Sullivan said that you accepted responsibility for what you had done to Mr Said. He noted that you denied having been intoxicated, or under the influence of any illicit drugs, on the night in question. You told Dr Sullivan that the argument had been about food, and that it had escalated. You said that Mr Said had been rude and aggressive towards you, and that he had intruded into your personal space. You told him that this had left you ‘scared and shaking’. You described your actions as impulsive, and ill considered. You said that you were shocked by what you had done, and that you were ashamed of your behaviour.
Dr Sullivan’s opinion was broadly consistent with that of Dr Craig Aboltins, a physician who specialises in the treatment of infectious diseases, and who had been your treating doctor at St Vincent’s Hospital. He was asked, on 5 September 2008, to indicate whether, in his opinion, the medication that you had been prescribed might be affecting your emotional state. He said that he had seen you every month since February 2008, and that he had last seen you about a week before the commission of this offence. He said that you had never once complained of any emotional or mental state disturbance. He said that he had found no evidence of any of these conditions on examination. He referred to the medication that you were taking, and said that none of the drugs was commonly associated with any mental disturbance.
Despite these opinions, your counsel urged upon me that I should find that you were, at the time of this offence, suffering from a mental impairment, perhaps a drug-induced psychosis. He submitted that your moral culpability in respect of this offence was thereby reduced and that this should be reflected in any sentence imposed upon you. He referred in that regard to the well-known decision of the Court of Appeal in R v Verdins.[1]
[1](2007) 16 VR 269.
Your counsel based that submission, at least initially, upon a report dated 3 August 2009, prepared by a clinical psychologist, Dr Michael King. Dr King said that he had seen you on that very day and that he had performed a number of tests upon you. He described you as a man of about average intelligence. He said, however, that your mental profile showed clear signs of there having been a deleterious effect upon your brain function.
In Dr King’s view, your intellectual profile showed that you had sustained a serious chemical assault, or a physical trauma. Because your history ruled out any such physical trauma, he considered chemical vectors to be the likely causative agent. He noted that you had been treated for tuberculosis with a blend of prescribed drugs. He said that it was known, and had been reported in the professional literature, that these exact drugs could, and occasionally did, produce psychotic attacks. He expressed the opinion that you had suffered from medication-induced psychosis, and that the attack upon Mr Said occurred as a consequence of, and in the midst of, such an attack.
Because of the potential significance of this evidence, I indicated that I was not prepared to act upon Dr King’s report alone, but would require him to give evidence before me. That was speedily arranged, and Dr King gave detailed oral evidence expanding upon his earlier findings. He said that since preparing his report, he had done further research into the three drugs that you had been taking, and confirmed that, in some cases, these drugs had led to psychosis. He accepted that this phenomenon was not common, and even acknowledged it as rare. He said that he believed that there may have been some 20 or so reported instances of psychosis (out of, no doubt, many thousands of cases where these drugs had been used worldwide).
Dr King also elaborated upon the results of the psychological tests that he had administered. He said that these showed that although you were of about average intelligence, using the Wechsler Adult Intelligence Scale, additional tests which he had performed reflected significant impairment of various cognitive faculties. He said that you were in the lowest 5 per cent of the population in determining ‘spatial alignment’, and in the poorest 0.01 per cent in remembering ‘strings of numbers’. In his opinion, this was a potent indicator of ‘brain damage’ (by which he meant, he said, that something either transient, or otherwise, had significantly affected, negatively, your brain function).
Dr King presented as an honest and obviously highly qualified witness. At the same time, he freely acknowledged that both Dr Sullivan and Dr Aboltins were much better qualified than he to comment upon the effect, if any, that the medication you had been taking had had upon you. He knew nothing of that medication apart from what he had read through his internet search.
The literature search that Dr King conducted ranged over the period 1963 to 2008. It spoke of Ethambutol-induced psychosis as a recognised condition, but one which was extremely rare. Much the same was said about Rifampicin and Pyrazinamide. The former was said to have occasional side-effects involving cognitive impairment, sometimes culminating in depression.
Dr King again acknowledged that no more than a few cases involving actual drug-induced psychosis stemming from the use of these drugs had been reported in the literature. He conceded that such an outcome would be uncommon, but would not exclude the possibility that it had occurred in your case.
On the question whether you were suffering from drug-induced psychosis when you committed this offence, I prefer the opinions of Dr Sullivan and Dr Aboltins to that of Dr King. They are the true experts in this area. Dr King is not.
Dr Aboltins, a specialist in the very treatment that you were receiving, was your treating doctor over a number of months in the period leading up to this offence. He saw no sign of any psychosis, or other mental disturbance, resulting from your use of these drugs. Even allowing for your counsel’s submission that cultural factors may have caused you to refrain from drawing these matters to Dr Albotins’ attention, I find no basis for the submission that the medication that you were taking contributed in any way towards your actions.
As regards Dr King’s assessment of you as being mentally impaired by reason of some neurological problem, resulting in a deficiency in your capacity for spatial alignment, and your ability to recall strings of numbers, it seems to me that neither condition, even assuming that it exists, has any causal connection with what you did on the night in question. Yours was an act of extraordinary violence, brought about by your feelings of anger and resentment towards your victim. It had nothing to do with any lack of capacity to visualise spatially, or your inability to remember sequences of numbers.
It follows that I reject the submission that your moral culpability for your actions should be regarded as having been reduced by reason of mental impairment, whether through your use of medication, or through neurological difficulties that you may have had. I am not persuaded that either of the two conditions that Dr King diagnosed had anything to do with your mental state at the time of your offending, or in the lead-up to it. Nor, I should add, do I believe that either condition is likely to affect you in the future in such a way as to call for some amelioration of your penalty. In other words, this is not a case to which R v Verdins[2] has any application.
[2]Ibid. See also, R v White [2009] VSCA 177.
That leaves me with the difficult task of having to sentence you, as a relatively young man, with no prior convictions, for an offence that can only be regarded as being one of the utmost gravity. I, of course, take into account, in your favour, your early offer to plead guilty, and your ultimate plea of guilty, your evident remorse, your prior good character, and the fact that you have good prospects of rehabilitation. I also take into account, in your favour, your deprived background, and the many obstacles which you have had to overcome throughout your life.
On the other hand, I must balance against these factors the nature and gravity of your offence. Yours was a cowardly act, and one of great cruelty, brought about by a dispute over almost nothing. That anyone could even contemplate tipping boiling oil over someone else is utterly repellent. Whatever feelings of resentment you may have harboured towards Mr Said, and for whatever reason, you had no justification for assaulting him, still less, for causing him serious injury. By your actions, you have left him scarred for life, both physically and emotionally. You must have appreciated, at least in general terms, what the consequences of your actions would be. For that alone, you must be punished severely.
Doing the best that I can to balance all the sentencing considerations relevant to your case, including of course general deterrence, a matter of particular importance in relation to the offence of intentionally causing serious injury, the only disposition that could be contemplated is one that involves an immediate custodial sentence. That sentence must be one of some duration.
Mohamed Wahani, the sentence of this Court is that you be imprisoned for a term of six years. I fix a non-parole period of four years. I am required, pursuant to s 6AAA of the Sentencing Act, to indicate what sentence I would have imposed but for your plea of guilty, which, as I have said, I am prepared to treat as having been offered early, and as being accompanied by remorse. I indicate that, but for your plea of guilty, you would have received a sentence of eight years’ imprisonment with a non-parole period of six years. It goes without saying that, were it not for the other mitigating circumstances that you were able to call in aid, conduct such as you exhibited would warrant a sentence significantly longer than even that of eight years’ imprisonment.
I declare that the period of 21 days is to be reckoned as time already served under the sentence I have imposed and I order that there be noted in the records of the Court the fact that the declaration was made and its details.
I also order that a disposal order be made pursuant to s 78(1) of the Confiscation Act 1997, that the silver-coloured pot and black handle remnants of that pot used in the commission of this offence, be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date, or the conclusion of any appeal proceedings, where it may then be destroyed.
I further order, pursuant to s 464ZF(2) of the Crimes Act 1958, that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with subdivision 30A of Part 3 of the Crimes Act 1958. If at the time that the request is made, you do not consent to the taking of a mouth scraping, under the supervision of an authorised member of the police, then a blood sample will be taken and police may use reasonable force to enable that procedure to be conducted.
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