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County Court of Victoria |
Last Updated: 27 August 2013
AT
SHEPPARTON
CRIMINAL
DIVISION
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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Subject: Intentionally Cause Serious Injury
Catchwords:
Verdins
Legislation Cited:
Sentence: 5 Years'
Imprisonment With 3 Years, 4 Months Non-Parole
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APPEARANCES:
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Counsel
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Solicitors
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For the DPP
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Mr T. Hoare
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For the Accused
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Mr R. Martini
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1 Mian Rehal, you have pleaded guilty to one charge of intentionally causing
serious injury. The maximum penalty for this offence
is 20 years imprisonment.
In passing sentence on you for your offending I have had regard to the maximum
penalty as I must.
2 The victim was your wife, Ghazala Rehal. Your offending
occurred on 10 May 2012. The circumstances of your offending are set out
in a
prosecution summary which was tendered in evidence as Exhibit A on the plea. It
was read in open court by the prosecutor Mr
Hoare and was accepted by your
counsel Mr Martini as being accurate and as forming a proper basis upon which I
can proceed to pass
sentence. It is not necessary that I repeat what is set out
in the summary in full but these sentencing remarks must be read in
conjunction
with what is contained in that document.
3 Your marriage to your wife has
been characterised by periods in which you have abused her verbally and
physically. Prior to this
offending she had to resort to obtaining two
intervention orders against you. There had been short periods where you had
separated
from each other.
4 In December 2011 after a brief separation your
wife agreed to you returning to the home and she also agreed to having an
existing
intervention order against you removed. Within a short time you had
began to again verbally abuse her and make untrue allegations
against her. All
of this is a brief summary of the long background to the offending which
occurred on 10 May 2012 at your home in
Shepparton.
5 On that day in the
morning you and your wife disagreed about family finances. Your wife went about
her business caring for your
three children and working. You were at home
drinking a number of beers and some rum. You denigrated your wife to your
eldest son,
Maaz, then aged 11. Your wife over heard this and went to you where
you continued to verbally abuse her in the presence of your
son. A
confrontation developed. Your wife pushed you in the face with an open hand.
You reacted first by hitting her in the face
and shoulder also with an open
hand. You then grabbed your wife in a bear hug position and commenced punching
her in the head with
both hands. Your second son Mussad then came into the room
and screamed at you to stop. You then said you were going to get a knife
and
declared “I am going to kill you” and “I wanna kill your
mum”. Your wife then ran to the bathroom and
locked herself in.
6 You
went to the kitchen where you selected a knife that you had recently sharpened.
You broke through the bathroom door and started
hitting your wife in the face
and head with the knife. You then dragged you wife into the kitchen where in
the presence of two of
your children your wife threw a chair at you for
protection. But you continued to assault your wife in the kitchen near the sink
with the knife. There was then a struggle where the children in attempting to
help their mother tried to take the knife from you.
You dragged your wife to
the dining room and then the sitting room. During this time there was a lot of
shouting and screaming
all going on in the presence of two of your children.
Your wife managed to flee from you and with the assistance of neighbours police
were called and you were arrested. Your wife was conveyed by ambulance to
Goulbourn Valley Hospital and then by helicopter to the
Alfred Hospital in
Melbourne where she underwent surgery to treat the facial injury you inflicted
on her.
7 The youngest child, your daughter Malladt, fortunately slept
through this ordeal and did not witness your vicious assault.
8 You are older
and much larger and physically stronger than your wife. There is nothing in the
circumstances of this offending that
justifies your conduct in any way. It was
a vicious assault on a weaker, defenceless woman in her own home in the presence
of two
of your children.
9 The injuries you inflicted are properly described
as serious. Your wife suffered a facial laceration from the forehead to the
nasal
labia fold approximately 7 cm long and jagged. Photographs 115 to 118 in
Exhibit D shows the extent of the cut after being sutured.
Your wife was present
in the Courtroom. The scarring to her face was visible from the Bench. There
were numerous other cuts and
bruises inflicted by you to your wife’s head,
face and body. These are also depicted in photographs of your wife in Exhibits
C (photographs 23 to 29) and Exhibit D (photographs 119 to 128.)
10 Sentences
for offending of this kind are almost always guided by proper application of the
principle of general deterrence and
any sentence must reflect the court’s
and community’s denunciation of offending of this kind. Family violence
particularly
where the stronger male physically assaults his female partner is
always to be appalled. This is especially so where, as here, the
male assailant
arms himself with and uses a weapon such as a knife and stabs his partner and
punches her in the presence of children.
11 In this state men who assault,
injure and wound their partners in this fashion will not be tolerated. In your
case however, because
of a number of mitigating factors relating to your health
now, and at the time of the offending, which are connected to the offending,
the
law dictates that I must moderate any sentence I impose on you. For this and
other reasons later explained the sentence I will
impose has been
moderated.
12 Your offending was not planned but was a spontaneous reaction
to a situation that had developed during the day. In my opinion
your offending
is a particularly bad example of the offence of intentionally causing serious
injury committed in the circumstances
of family violence. Affected by
consumption of alcohol you armed yourself with a knife and used it to assault
your wife in the presence
of your children, inflicting terrible injury to her.
Unfortunately, violence in the home is prevalent. The community needs to be
protected from your kind. In short, by its sentence a court must try to ensure
that offenders such as you and others who might be
likeminded do not offend in
this way.
13 You have some prior convictions but not for offending of this
kind. In 2006 you appeared in Shepparton Magistrates’ Court
and were
convicted of what appears to be a low level stalking offence. I was told and
accept this related to a dispute with a neighbour
over the shooting of a pet
cocky. In 2002 you were convicted of an indecent assault and fined $1,000. The
allegation was you touched
and kissed a younger woman. In 1998 you appeared in
the Prahran Magistrates’ Court where a non conviction bond appears to
have
been imposed on a charge of Threat to Inflict Serious Injury. This related to a
threat you apparently made to a WorkCover officer
over workers compensation
payments. In passing sentence I take these prior matters into account although
I am of the view that my
sentence does not need to be weighted to reflect
application of specific deterrence.
14 Section 5(2)(e) of the Sentencing Act
1991 (“the Act”) provides that I must have regard to the fact that
you have pleaded guilty to the charge and the time at which
you indicated that
you would do so. You were arrested on 10 May 2012. You were interviewed and
charged on 11 May 2012. You made
a “no comment” record of
interview as is your right. You were remanded in custody on that day and have
remained in custody.
You have served 379 days pre-sentence detention on remand.
A hand up brief was served and you were committed on the basis of the
hand up
brief on 5 December 2012. You pleaded not guilty at committal but guilty to
recklessly causing serious injury. Discussions
with the prosecution followed
and through your solicitor you indicated you would plead guilty to the charge
earlier this year. You
pleaded guilty to the charge on 18 March 2013.
15 In
sentencing you I treat you as having indicated an intention to plead guilty at
an early time and well before trial. Because
of your plea of guilty you have
saved the time and the costs of a trial. In this case the trial would have been
lengthy and would
have involved the calling of many witnesses and would have
taken up much court time. In particular your wife and children have been
saved
the embarrassment and the indignity of having to give evidence against you in a
trial. Your plea of guilty have saved all
of that as well as the obvious costs.
Because you have pleaded guilty to the charge and indicated an intention to do
so at an early
time you are entitled in my view to a reduced sentence and this
is also reflected in the overall sentence I will shortly pass.
16 Whilst I
give full value to your plea of guilty I cannot say you are remorseful for your
actions. I have not seen any evidence
of remorse in any of the evidence put
before the court.
17 Also I cannot say you have good prospects for
rehabilitation. Whether or not you re-offend will very much depend I think on
the
treatment you receive for your mental health problems whilst in prison and
after you are released. Any forecast as to your likely
rehabilitation must
remain guarded in my view.
18 I admitted into evidence as Exhibits E, F, G
and H respectively Victim Impact Statements from your wife and three children.
Your
wife’s statement shows the hurt and fear that she suffered and
continues to suffer as a result of your offending upon her.
The photographs of
your wife’s face indicate she will be scarred for life. Your
children’s statements also reflect
the fact they still live in fear of you
and do not want you returning to Shepparton. The feelings expressed in the
victim impact
statements are not unusual and are often expressed in offending of
this kind. In sentencing you I have taken into account the contents
of the
Victim Impact Statements as I must.
19 I turn to your background and personal
circumstances. You were born on 1 June 1954 in Pakistan. You are approaching
your 59th
birthday. You are one of 8 children. You were educated in Pakistan
to Year 10 level. You migrated to Australia approximately 34
years ago and in
October 1998 you married your wife, Ghazala, in Pakistan after an arranged
marriage. Your wife is 22 years your
junior.
20 After your marriage you
returned to live in Australia. Your wife followed in March 1999. You have
three children, two boys aged
12 and 11 and a daughter aged 8 years. The family
live in a house registered in your name in Shepparton. There is a mortgage on
the house presently unserviced.
21 In Australia you did mostly manual type
work. You have not been able to work since 1997 when you were disabled by a
back injury
at work. You have had a number of physical and mental health
problems since that time which have been well documented in exhibits
tendered in
the course of the plea.
22 Exhibit 5 is a series of reports from Fiona
Batchelor, a treating psychologist. Her report of 18 April 2013 helpfully
summarises
some of your health difficulties. I borrow from that
report.
23 In 1997 you suffered a low back injury at work from which you
suffered low back pain, leg pain and sciatica. You underwent decompression
surgery in 1997 which was largely unsuccessful and you developed neuropathic
pain afterwards.
24 The back pain worsened following two later car accidents
on 4 July 2001 and 5 October 2001 respectively. In the latter car accident
you
sustained a closed head injury with prolonged unconsciousness.
25 On 3 July
2002 you suffered a heart attack resulting in the placement of two stents. Also
at that time you were diagnosed as being
diabetic.
26 Following the back
surgery in 1997 you were diagnosed with anxiety and depression. This worsened
significantly after the car accidents
and following the closed head injury you
were diagnosed as having developed paranoid ideation. You have been admitted
for psychiatric
care to the Melbourne clinic on at least three occasions once in
1997 and twice in 2002. In May 2006 you were assessed by Community
Corrections
for court purposes as being mentally unstable. In July 2007 you were admitted
to Shepparton Hospital for psychiatric
reasons. In July 2011 you were admitted
to North Park Hospital. You have been assessed by a WorkCover Medical Panel as
being too
psychiatrically unstable to self-manage your condition and as needing
long term psychiatric, psychological and pain management treatment.
27 Dr
Brendan Holwill has been your long term treating psychiatrist. He has provided
a number of reports dating from 11 July 1998
to 23 October 2012. Rarely does
the criminal court have before it such a comprehensive history of medical
treatment. I admitted
these reports as Exhibit 1.
28 Dr Holwill has treated
you since 1995. In his latest report dated 23 October 2012 Dr Holwill opines,
inter alia, as follows:
“He initially presented with a severe back injury and associated depression. Subsequently, he was involved in two serious motor vehicle accidents causing major physical injuries, and serious head injuries.
Following the motor vehicle accidents, he developed an organic psychosis, with marked paranoid delusions of persecution by his neighbours, the police and then his wife. His psychosis was quite resistant to inpatient and out patient treatment. The head injuries also resulted in some decrease in impulse control.
Because of his ongoing severe pain symptoms, and his psychiatric illnesses of depression and organic psychosis, Mr Rehal was on high doses of sedative medication, both narcotic analgesics and anti psychotics.
His psychotic illness alone would impair his judgment, and that combined with medication effects would impair his judgment.
His medication prescribed or supervised by me at his last consultation in March 2012 was:
• Solian 800 mg nocte (sedative antipsychotic)
• Panadeine forte
8 daily (analgesic)
• Avanza 60 mg nocte (antidepressant)
In addition he was prescribed slow release morphine by Dr L Rose of The Melbourne Pain Management Clinic.”
29 Dr Holwill’s earlier reports which I have had full regard to give
further detail of the matters I have set out above. In
those reports he refers
to the closed head injury as an “acquired brain injury”.
30 I
also admitted into evidence as Exhibit 2 an extensive list of prescribed
medications from Steve Reid, pharmacist.
31 I also admitted into evidence a
report from Dr Lester Walton, psychiatrist, who saw you for reporting purposes.
I also received
a report from consultant physician, Dr Nihal Nanayakkara. In
sentencing you I have taken these reports into account.
32 Fiona Batchelor
has been a long term treater of you. She is a psychologist. In her report of 18
April 2013 she opined, inter alia:
“Opinion Regarding Capacity to Cope with Lengthy Jail Sentence:
A concern would be that when Mr Rehal’s mental state becomes unstable his blood sugar levels are (sic) become elevated. Anxiety and depression are known to increase risks in diabetes management. In addition anxiety and depression are known to increase the risks of complications with Coronary Heart Disease – both of which are relevant to Mr Rehal. He needs to exercise regularly to maintain his physical state and reduce agitation. Mr Rehal benefited from regular psychiatric, psychological, pain management and chiropractic treatment plus prescribed medication and this assisted in maintaining his equilibrium and reduced the likelihood of admissions to hospital. Whilst awaiting prosecution he may be maintaining hope and become a suicide risk (suicidal ideation has prompted admissions to hospital previously). If he receives a lengthy jail sentence then contact with his children may be curtailed and this may also impact on his mental state.”
33 I admitted into evidence a report (Exhibit 6) from chiropractor Dr Robert
Testaz which I have taken into account.
34 Mr Martini conceded at the outset
that the only proper sentence to impose on you was a term of imprisonment with
immediate custody.
However, he submitted that having regard to the length of
time you have been on remand you should be released in the not too distant
future. He also asked me to contemplate releasing you now on a Community
Corrections Order. The latter disposition I regard as
being totally
inappropriate.
35 Mr Martini accepted the seriousness of your offending which
he conceded in normal circumstances would call for the imposition of
a lengthy
prison term. However he submitted the medical evidence here shows that at the
time of the offending you were suffering
from an organic psychosis, with marked
paranoid delusions of persecution by amongst others your wife. Mr Martini
submitted there
was a direct causal connection between your diagnosed
psychiatric illness and your offending within the principles in R v Verdins.
In
those circumstances he submitted any sentence of imprisonment should be
moderated because he argued your moral culpability is
reduced and there is less
need for the sentence to reflect application of the principle of general
deterrence.
36 He further submitted that because of all of your diagnosed
mental health problems and physical illnesses your time whilst in prison
will be
harder to endure than for most others and this alone should result in the
overall sentence being reduced and for a non parole
period to be fixed at the
earliest possible date. Mr Martini submitted you and the community would be
better served by you having
a lengthy period on parole. He made the point which
I accept that, apart from the prior convictions referred to above by age 57,
you
had not previously acted violently in this manner.
37 Despite concerns at
you being incarcerated you seem to have settled well and have undertaken various
courses available to you and
have received the Muslim chaplain regularly. You
have been mostly at Port Phillip prison whilst on remand and it would appear you
have been properly medicated. I admitted into evidence various certificates of
courses completed and a reference from the chaplain
(Exhibit 7). When released
from prison you may be able to stay with a friend at Laverton.
38 Mr Hoare on
instructions submitted that the offending here called for the imposition of a
head sentence in the range of 6 to 8
years with a non parole period in the range
of 4 to 6 years. Mr Hoare conceded the fact that your mental condition reduces
your
moral culpability and he conceded there is a connection here between your
mental illness and your offending on this night. But he
argued you are a person
who harbours a grudge and there is no evidence of your remorse. He placed
reliance on what the Court of
Appeal said in DPP v. Kao [2009] VSCA 373.
39 I
have given this case a great deal of consideration. I agree with the
prosecution submissions that this case represents serious
offending and in
normal circumstances would call for the imposition of a substantial prison term.
But this case is very different
to Kao, with respect. In passing sentence I
have not adopted the prosecution submissions as to appropriate range of either
the head
sentence or the non parole period. In my view they do not reflect
proper application of Verdins principles accepted as being applicable
in
sentencing in this case.
40 I generally accept the submissions of Mr Martini
that in your circumstances each of the principles in Verdins has application.
Accordingly the sentence I impose reflects your reduced moral culpability
because of your mental illness suffered at the time of
offending and there is
less need for the sentence to reflect application of the principle of general
deterrence. I also think the
sentence needs adjustment because your time in
prison will be made more difficult than for most because of your mental health
problems,
your physical ailments, most notably your back injury, your heart
disease and your diabetes each of which requires ongoing treatment
and
medication but which at the present time appears to be stable. I have moderated
the length of the head sentence because of those
matters and the non parole
period I have fixed is calculated by reference to the head sentence.
41 In
passing sentence I have had regard to current sentencing practices for this
offence. Sentencing Snapshot 125 published by the
Sentencing Advisory Council
in June 2012 is of some assistance, as are the recent sentences of the Court of
Appeal published in the
Sentencing Manual published by the Judicial College of
Victoria which highlight a number of cases dealt with where the offence is
committed in a family violence context. The Sentencing Snapshot shows that of
the cases dealt with by the higher courts between
2006/07 and 2010/11 the median
length of imprisonment was four years. The average length of imprisonment
imposed was 3 years and
8 months in 2008/09 rising to 4 years and 9 months in
2010/11 indicating higher sentences were being imposed. This is consistent
with
a number of statements from various courts of the need to increase sentences for
this offence. The statistics of course do
not give the particulars of the
circumstances of offending and only give some indication of range of sentence.
As I have said, your
offending having occurred in a context of family violence,
it is a bad example of what is a serious offence.
42 On the charge of
intentionally causing serious injury you are convicted and sentenced to a term
of imprisonment of 5 years.
43 I direct that you serve a minimum term of
three 3 years and 4 months before being eligible for release on parole.
44 I
declare there has been 379 days pre-sentence detention and that 379 days be
reckoned as having been already served under the
sentence passed this day and be
deducted administratively.
45 For the purposes of s.6AAA of the Act I state I
have imposed a sentence being a term of imprisonment and I have reduced the
overall
sentence I would have imposed but for your plea of guilty. Had it not
been for your plea of guilty to the charge I would have imposed
a total
effective term of imprisonment of 8 years and I would have fixed a non parole
period of five years and four months.
46 The prosecution seeks an order for
retention of a forensic sample previously provided by you by consent. The
application was not
opposed and it being in the public interest and having
regard to the seriousness of your offending I have signed that order.
47 The
prosecution also seeks disposal orders for various items which were not opposed
and I have signed those orders.
48 Are there any matters arising out of that,
Mr Hoare?
49 MR HOARE: No, Your Honour.
50 HIS HONOUR: Mr Martini, are
there any matters arising out of that?
51 MR MARTINI: No, Your Honour, thank
you.
52 HIS HONOUR: Thank you. Would you remove, Mr Rehal, please?
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