The State of Western Australia v Zahidi [No 3]
[2024] WASC 457
•3 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ZAHIDI [No 3] [2024] WASC 457
CORAM: MCGRATH J
HEARD: 3 DECEMBER 2024
DELIVERED : 3 DECEMBER 2024
FILE NO/S: INS 22 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
LIAQAT ALI ZAHIDI
Accused
Catchwords:
Criminal law - Accused acquitted of charge of attempted murder on the grounds of insanity - Subject to custody order made under repealed legislation - Application to set limiting term of custody order
Legislation:
Criminal Code (WA)
Criminal Law (Mental Impairment) Act 2023 (WA)
Criminal Procedure Act 2004 (WA)
Result:
Limiting term set as 10 years
Category: B
Representation:
Counsel:
| Prosecution | : | Ms A J Finn |
| Accused | : | Mr T Hager |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Geoffrey Miller Chambers |
Case(s) referred to in decision(s):
Ammoun v The State of Western Australia [2009] WASCA 182
Garlett v The State of Western Australia [2009] WASCA 44
Lawson v The Queen (Unreported, WASCA, Library No 940439, 24 August 1994
The State of Western Australia v Chokolich [2024] WASC 346
The State of Western Australia v Radovic [2020] WASCA 46
The State of Western Australia v Smith [2024] WASC 361
The State of Western Australia v Zahidi [No 2] [2024] WASC 8
MCGRATH J:
(This judgment was delivered extemporaneously and has been edited to include full references to relevant evidence and authorities).
Introduction
The Director of Public Prosecutions has applied to the Court under s 261 of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act) to set a limiting term in respect to Mr Zahidi's existing custody order.
By indictment dated 1 September 2022, Mr Zahidi was charged with one count of attempted murder of Muhammad Danial Waheed, contrary to s 283(1) of the Criminal Code (WA).
On 17 January 2024, following a one‑day trial before Whitby J, Mr Zahidi was found not guilty of the count of attempted murder of Mr Waheed on account of unsoundness of mind.[1]
[1] The State of Western Australia v Zahidi [No 2] [2024] WASC 8 (Zahidi [No 2]).
As a result of that finding, Whitby J made a custody order in respect of Mr Zahidi pursuant to s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (repealed Act). Therefore, Mr Zahidi became a 'mentally impaired defendant' within the meaning of pt 5 of the repealed Act and subject to a custody order under that Act. The repealed Act was replaced by the CLMI Act, which commenced on 1 September 2024.
The transitional provisions in pt 14 of the CLMI Act provide that a custody order made under the repealed Act which was in effect immediately before the commencement date of the CLMI Act (existing custody order), has the effect as if it were a custody order made under pt 5 of the CLMI Act.[2] Mr Zahidi is, therefore, subject to an existing custody order.
[2] CLMI Act, s 254.
Mr Zahidi has, accordingly, been subject to a custody order pursuant to the repealed Act, and now the CLMI Act, for a period of almost 11 months.
I am required to set a limiting term for Mr Zahidi's existing custody order, being the best estimate of the term of imprisonment that the Court would, in all of the circumstances, have imposed if the Court were sentencing Mr Zahidi and he had pleaded guilty to the count on the indictment at the earliest opportunity and his mental impairment was not taken into account.
Relevant legal principles
Quinlan CJ considered the applicable relevant legal principles in The State of Western Australia v Chokolich,[3] and in The State of Western Australia v Smith.[4] I will outline the relevant legal principles that I must apply in setting the limiting term for Mr Zahidi.
[3] The State of Western Australia v Chokolich [2024] WASC 346 (Chokolich).
[4] The State of Western Australia v Smith [2024] WASC 361 (Smith).
The requirement to set a limiting term for a custody order is found in s 50 of the CLMI Act. Section 50(2) provides that the limiting term is the best estimate of the term of imprisonment (or term of detention) that the Court would, in all the circumstances, have imposed if the Court were sentencing the person for the offence and any mental impairment of the person were not taken into account.
Section 50(3) provides that for the purposes of s 50(2), the Court must assume that the person had pleaded guilty to the charge at the earliest opportunity and there is no other option but to impose a term of imprisonment or term of detention.
In determining the 'best estimate of sentence', the Court should follow, as far as practicable, but with the necessary modifications, the procedure and legal principles applicable to a sentencing hearing in the Court and therefore, must have regard to the principles in s 6 of the Sentencing Act1995 (WA) in light of the ordinary sentencing principles.[5] Therefore, the limiting term must be commensurate with the seriousness of the offence. The seriousness of the offence is to be determined by taking into account the statutory penalty for the offence, the circumstances of the offence, including the vulnerability of any victim of the offence, and any aggravating factors and mitigating factors.
[5] Smith [17]; Chokolich [50] - [51].
Whilst the person is taken to have pleaded guilty at the earliest opportunity, this does not require the Court to impose the maximum discount.
The formulation of the limiting term is necessarily an exercise that requires the Court to 'stand in the shoes' of a hypothetical sentencing court.[6] It is an estimate that acknowledges the compromised nature of the court's estimate of sentence when bound to apply the assumptions in s 50(2)(b) and s 50(3) of the CLMI Act.
[6] Chokolich[60], [61].
In determining the limiting term on a custody order, s 50(2)(b) of the CLMI Act requires the Court to estimate the sentence it would have imposed 'if any mental impairment of the person were not taken into account'.
That the offender's mental impairment is not to be taken into account means that general deterrence is not reduced in formulating the limiting term on the basis that the person is not an appropriate vehicle for the application of the principle of general deterrence. That is, the Court may have regard to the importance of general deterrence by reference to authorities that apply to the category of offending in question. General deterrence is to be assessed by reference to the objective seriousness of the offending.[7]
[7] Smith [98].
Similarly, specific deterrence is not to be discounted in formulating the limiting term on the basis that it is more difficult to achieve, or not worth pursuing, as a consequence of the mental impairment of the offender.
Further, the person's mental impairment can neither reduce the limiting term by reason of diminished responsibility, nor increase it, for example by reason of callous premeditation or disregard of the victims.[8]
[8] Chokolich [73].
The Court need not engage in any weighing of the countervailing effects of mental impairment on the hypothetical sentence. The protection of the community and the rehabilitation of the person by provision of treatment, care and support are, separately, the paramount considerations and principles to be considered pursuant to s 7(2) when determining the limiting term.
The Court may still take into account the person's antecedents in determining the limiting term. Further, the offender's criminal history remains relevant when considering the aims of punishment, deterrence and the protection of the community, which would ordinarily be relevant to the imposition of a sentence for the relevant offence.
It is appropriate for the Court to confine its consideration of the personal circumstances of the respondent to those at the time of the making of the custody order, and not to take into account subsequent charges or other matters.
The Court makes the best estimate based on what it would have imposed if it were sentencing the person today by reference to current sentencing standards and without reference to later offending.[9]
[9] Smith [42] - [57].
Factual circumstances of the count on the indictment
A statement of agreed facts was prepared for the trial before Whitby J.[10] At the hearing of this application, counsel for the State read an amended statement of material facts, which was accepted by Mr Zahidi as the facts upon which this application will be determined.[11] The amended statement of material facts are in the following terms:
[10] Agreed facts dated 12 January 2024.
[11] Amended statement of material facts dated 18 November 2024.
1.On 7 September 2021, Liaqat Ali Zahidi was residing at the Koala Backpackers hostel at 286 Hay Steet Perth (hostel). Mr Zahidi had been residing at the hostel on and off over the preceding 18 months.
2.Muhammad Daniel Waheed (victim) and his friend Ricky Belmonte were also residing at the hostel on 7 September 2021. There was no history of any negative interaction or ill‑feeling between Mr Zahidi, the victim or Mr Belmonte.
3.At 11pm on the evening of 7 September 2021, the victim was in the communal kitchen area of the hostel, speaking with Mr Belmonte. The kitchen contained a bank of fridges, a wall of cooktops and ovens, a long wall of bench space with sinks, a microwave and a kettle, and an island food preparation bench in the middle of the kitchen.
4.The kitchen area where the stabbing occurred was filmed by CCTV which recorded video and sound. The CCTV clock was inaccurate, in that the time it displayed was approximately 12‑13 minutes later than the actual time.
5.The following narrative of the CCTV footage of the incident was contained in a statement of facts which were agreed to by the parties at trial (time references are to the time on the hostel CCTV).[12]
[12] Two changes have been agreed between the parties. Paragraph [22] has been altered to refer to the victim's 'upper back' rather than 'back of the neck' as the parties agree that description is more accurate, based on the CCTV footage and the medical report of the victim's injuries. Paragraph [30] has changed 'neck' to 'upper back' in describing the stab wounds.
The incident
6.At 23:16:24, Mr Zahidi entered the kitchen and took a cup from a shelf against a wall in the central part of the kitchen. He placed the cup on the bench next to a kettle and walked to the opposite side of the kitchen, returning with a bag of CSR raw sugar which he poured into the cup.
7.At 23:17:18, Mr Zahidi walks past the victim towards the fridges in the kitchen and removes a carton of milk. He pours some milk into the cup and returns the carton to the fridge.
8.Neither Mr Belmonte nor the victim were physically obstructing access to the fridges, the island or the bench, except to the extent that Mr Zahidi had to walk around that portion of the island bench that they were standing in front of.
9.At 23:18:12, after dipping a tea bag into the cup, Mr Zahidi stands motionless for about 15 seconds (until 23:18:27) when he tops off his drink with water from the kettle. Mr Zahidi then moves towards the island bench to the left of where the victim is standing. No interaction occurs.
10.At 23:18:40, Mr Zahidi bends over the island bench to obtain what appears to be a spoon from a lower shelf of the island bench. The victim presents no impediment to this action and again no interaction between Mr Zahidi and the victim occurs.
11.A third man (wearing thongs, glasses with a ponytail) who had been cleaning the kitchen is standing near to where Mr Zahidi was; there is also no interaction with this man.
12.The victim and Mr Belmonte continue their conversation (totally unrelated to Mr Zahidi).
13.In the following 3‑5 seconds, Mr Zahidi straightens up with the spoon, transfers it to his left hand and takes a step back toward the side bench. He then reaches for a knife contained in a knife block on the side bench and aggressively tries to remove the knife he selected.
14.Mr Zahidi is initially unable to properly remove the knife and throws his hand up and down violently in an attempt to take the knife from the block. In doing so the knife is eventually removed (approximately 1 second later) with sufficient force to cause the knife block to be thrown up into the air, landing on the ground in between the two benches.
15.The noise made by the removal of the knife attracts the attention of the victim who turns slightly to look in the direction of Mr Zahidi.
16.As the victim turns to look toward him, Mr Zahidi takes a short step toward the victim whilst holding the knife in his right hand and thrusts the knife forward to (and it appears into) the midriff of the victim.
17The victim retreats from Mr Zahidi, backwards around the island bench. Mr Zahidi follows the victim, clearly seeking to stab him further.
18.As the victim starts to move away, Mr Zahidi reaches out to grab the victim's clothing with his left hand, whilst continuing to hold the knife in his right. Mr Zahidi stabs the victim again as the victim starts to fall to the ground. At this point Mr Zahidi has stabbed or tried to stab the victim in the midriff area three times.
19.The victim falls against the island bench causing it to move and causing the victim to lose his balance and fall to the floor of the kitchen. The third man retreats as Mr Belmonte has moved cautiously around to the other side of the kitchen.
20.As the victim fell, Mr Zahidi also stumbled to the floor and dropped the knife. The victim repeatedly is saying 'what have I done'. Mr Zahidi says nothing throughout the entire attack.
21.Mr Zahidi quickly regains the knife whilst maintaining a grip on the victim.
22.The victim attempts to stand and rotate away from Mr Zahidi. Mr Zahidi continues to attack the victim with the knife thrusting it into the upper back of the victim. At this time Mr Zahidi has a hold of the victim's wrist and preventing him from moving out of reach.
23.Mr Zahidi raises his hand up over his head and thrusts the knife down toward the head of the victim in a stabbing motion. The victim loses his balance and again falls to the floor whilst Mr Zahidi stands up and continues to attack the victim with the knife.
24.The victim, on his back raises his hands in a defensive manner and attempts to use his legs to repel Mr Zahidi. The victim tries to roll away as Mr Belmonte attempts to distract Mr Zahidi and stop the attack. The victim eventually manages to get to his feet and flees the kitchen.
25.The whole attack from grabbing the knife until the victim manages to flee the kitchen takes about 30 seconds.
26.At 23:19:20, Mr Zahidi abruptly stops seeking to attack the victim and walks back to the sink, tossing the knife under a running tap.
Immediate aftermath
27.Whilst other people at the hostel tended to the wounds of the victim, Mr Zahidi walked aimlessly around the kitchen/office area, not speaking to anyone, for about 30 seconds.
28.At 23:19:54, Mr Zahidi kicked the victim's phone on the floor and then washed his hands in the sink where he had earlier thrown the knife. Mr Zahidi washed the knife and then tried to put it back into the knife block. Unable to put the knife back, he put the knife back in the sink and walked out of the hostel.
29.The police were called at 11:06 pm (real time, not CCTV time) and upon arrival found Mr Zahidi in an area adjacent to the hostel. He was taken to Perth Police Station and charged.
30.The victim was taken to Royal Perth Hospital in a critical condition and underwent emergency surgery. The victim had sustained multiple penetrating stab wounds and lacerations to his torso, chest, buttocks, forearm, upper back and back of the head. He lost a significant amount of blood and his left lung had collapsed, requiring a blood transfusion.
31.The injuries were life threatening. Without medical treatment the victim would likely have died from loss of blood.
32.The injuries resulted in permanent scarring to multiple areas of the victim's body. The victim experienced a complication from these scars in the form of keloid development (thick raised scarring). The victim's gait and mobility were significantly impaired on the left‑hand side requiring long‑term physiotherapy and a foot brace.
33.The victim's psychological injuries were recorded to be acute stress response, hypervigilance, agitation and restlessness.
34.Mr Zahidi appeared for a one‑day trial before her Honour Justice Whitby in the Supreme Court of Western Australia on 15 January 2024.
35.On 17 January 2024, her Honour found Mr Zahidi not guilty by reason of unsoundness of mind of the attempted murder on Supreme Court Indictment 22 of 2022: State of Western Australia v Zahidi [No 2] [2024] WASC 8. He was made subject to a custody order pursuant to s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (in conjunction with sch 1 of that Act).
Time spent in custody
The limiting term is taken to have commenced on 17 January 2024, being the date on which the existing custody order was made.[13]
[13] CLMIAct, s 264(3).
It is accepted by the State that Mr Zahidi has spent the period of 8 September 2021 to 16 January 2024 in custody prior to the making of the existing custody order. This period of 861 days includes a period of involuntary treatment at the Frankland Centre.
Therefore, the limiting term may commence on 8 September 2021.
I now turn to assess the relevant sentencing factors and determine the limiting term.
Relevant sentencing term
Maximum penalty
The maximum penalty for the count of attempted murder is life imprisonment.
Mr Zahidi's personal circumstances
In her reasons for decision, Whitby J referred to the personal circumstances of the respondent as contained in the agreed facts prepared for trial.[14] Whitby J determined that Mr Zahidi suffers from a mental impairment namely, schizophrenia, PTSD and major depressive disorder.
[14] Zahidi [No 2] [33]; Statement of agreed facts dated 12 January 2024, [5] - [15].
Relevantly, Mr Zahidi is 30 years of age, having been born on or about 31 December 1993. At the time of the offence he was 27 years of age.
Mr Zahidi was born in Afghanistan and travelled to Australia from Indonesia by boat when he was 15 or 16 years of age. He was initially detained on Christmas Island, before being transferred to Port Augusta and later Melbourne. On 15 December 2010, he was granted a permanent residence visa.
Mr Zahidi moved to Perth after obtaining permanent residency and has no family in Australia. Mr Zahidi purchased a truck and worked as a delivery driver for a number of years.
The State referred to Mr Zahidi's childhood trauma, which was also outlined by Whitby J.[15] Dr Brett, consultant psychiatrist, stated in his report before Whitby J that his previous psychiatric history reveals that he suffered trauma at a young age after witnessing people being killed by the Taliban. This made him fearful for his life and his family's wellbeing. Further, when Mr Zahidi travelled by boat to Australia, he thought he would die. Dr Brett stated Mr Zahidi has flashbacks of these experiences and has described increasing anxiety. I take these personal circumstances and historical challenges into account in determining the limiting term.
Previous convictions
[15] Zahidi [No 2] [43].
Mr Zahidi has a criminal record for other offending prior to the offence which is the subject of this application.
His previous convictions include committing the offence of trespass and stealing, for which a conditional suspended imprisonment order was imposed in the District Court on 28 June 2019. Mr Zahidi breached that order three times, resulting in his incarceration in June 2020.
In addition, Mr Zahidi has an earlier conviction for assault occasioning bodily harm on 26 March 2018 in respect of an offence committed on 9 June 2017.
The fact that Mr Zahidi has a criminal record is not an aggravating factor but the limiting term is not to be determined on the basis that he is a person of good character.
Seriousness of the offending
I now turn to the seriousness of the offending.
There are a number of aggravating features in respect to Mr Zahidi's offending.
First, the offence was entirely unprovoked.
Second, Mr Zahidi armed himself with a lethal weapon, namely a knife. The victim was unable to defend himself and was particularly vulnerable to the unprovoked attack.
Third, the attack was persistent, with Mr Zahidi pursuing the victim around the kitchen bench to continue the attack. When Mr Zahidi dropped the knife he retrieved it and recommenced stabbing the victim. The victim was asking why Mr Zahidi was doing this to him.
Fourth, the infliction of the stab wounds was to the vulnerable parts of the victim's body, including the middle of his chest, the interscapular region, his anterior chest wall and his head. The extent of the injuries to the victim were life threatening. If the victim had not received medical treatment he would have died from blood loss. The injuries included 12 stab wounds, including a 14 cm laceration to his back and a 6 cm laceration to his chest, a haemothorax in the chest causing total collapse of the left lung, rib fracture and significant blood loss.
The victim suffered immediate psychological symptoms including hypervigilance, agitation, and restlessness consistent with an acute stress response. The victim was in Royal Perth Hospital for 17 days and had at least four months of outpatient treatment. The victim has gait and mobility impairments requiring a foot brace and lifelong physiotherapy.
Mitigating factors
The principal mitigating factor for Mr Zahidi is that he is deemed to have pleaded guilty at the first reasonable opportunity. Accordingly, I grant a 25% discount under s 9AA of the Sentencing Act.
I find that Mr Zahidi is remorseful for his act. Mr Zahidi’s counsel read a letter of apology during the hearing. In that letter, Mr Zahidi expressed his remorse and contrition for his acts.
As I have previously stated, I will take into account your personal circumstances and in particular, your challenging historical background.
Best assessment of the sentence that would have been imposed
The sentences imposed for attempted murder are variable and there is no tariff or usual sentencing range.[16]
[16] The State of Western Australia v Radovic [2020] WASCA 46 [61].
Counsel for the State referred to a number of authorities by way of comparison: The State of Western Australia v Radovic, Garlett v The State of Western Australia,[17]Ammoun v The State of Western Australia,[18] and Lawson v The Queen.[19] I have considered those authorities.
[17] Garlett v The State of Western Australia [2009] WASCA 44.
[18] Ammoun v The State of Western Australia [2009] WASCA 182.
[19] Lawson v The Queen (Unreported, WASCA, Library No 940439, 24 August 1994).
After considering all relevant sentencing factors, including the discount for a plea of guilty and customary standards of sentencing, I have determined that the sentence that would have been imposed for the count on the indictment is 10 years' immediate imprisonment. I therefore set a limiting term of 10 years for Mr Zahidi's existing custody order pursuant to s 264 of the CLMIAct.
In accordance with s 264(3) of the CLMI Act, that limiting term is taken to have commenced on the day on which the existing custody order was made, unless the Court orders that the term be taken to have commenced on an earlier date. Given that Mr Zahidi spent 861 days in custody in respect to the offence prior to the making of the existing custody order on 17 January 2024, I order that the limiting term is taken to have commenced on 8 September 2021.
Orders
For these reasons, I order that the limiting term for the custody order in respect of Mr Zahidi made on 17 January 2024 pursuant to s 21 of the repealed act, and further continued as a custody order under the CLMI Act, be set as 10 years.
As the limiting term has not yet expired, Mr Zahidi remains a supervised person pursuant to the CLMIAct. His custody order will continue to be administered by the Mental Impairment Review Tribunal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
PB
Associate to the Judge
4 DECEMBER 2024
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