DPP v Asgar [2024] VCC 425 (5 April 2024)

Last Updated: 3 June 2024

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-01668

DIRECTOR OF PUBLIC PROSECUTIONS
v
ZAFIR ASGAR

---

JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2024, 5 March 2024, 14 March 2024, 18 March 2024
DATE OF SENTENCE:	5 April 2024
CASE MAY BE CITED AS:	DPP v Asgar
MEDIUM NEUTRAL CITATION:	[2024] VCC 425

REASONS FOR SENTENCE
---

Subject: CRIMINAL LAW SENTENCE

Catchwords: Sentencing – intentionally cause injury, recklessly cause injury, false imprisonment, make threat to kill, theft, possession of drug of dependence, unlawful assault.

Legislation Cited: s6AAA Sentencing Act 1991

Cases Cited: R v Verdins [2007] VSCA 102; Bugmy v R [2013] HCA 37; (2013) 302 ALR 192

Sentence: Imprisonment, total effective sentence 5 years imprisonment, non-parole period, 3 years. Forfeiture and disposal orders.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Zammit	Office of Public Prosecutions
For the Accused	Ms K. Farrell	Sling & Keating

HIS HONOUR:

1. Zafir Asgar, you have pleaded guilty to one charge of intentionally cause injury, one charge of false imprisonment, one charge of making a threat to kill, one charge of theft and one charge of possess methamphetamine. You pleaded guilty after a sentence indication hearing before me. The facts of your offending are set out in Exhibit A, the prosecution plea summary. I was informed by your counsel that I could treat that document as an agreed statement of fact. I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein. There is no need therefore to exhaustively deal with the facts of your offending.
2. Briefly stated, you were allowed to stay at your victim, Nicole Sheldon's^[1] home in Ringwood in early 2022. You had suffered from mental health and drug abuse issues.
3. On 14 February 2022, Ms Sheldon asked you to leave. You then struck her several times to the face and head with a hammer. She was bleeding and afraid. You dragged her into her bedroom and told her that you were going to kill her and then kill yourself. You told her to say to anybody that she had hurt herself. She managed to run out the backdoor but could not get the gate open before you grabbed her, threw her to the ground and hit her to the back of the head with the hammer again.
4. You forced your victim back inside the house where you allowed her to shower and to try and stop her bleeding. She wanted to go to hospital for treatment and she told you that she would claim to have been in a car accident. She was kept in her home, falsely imprisoned for about five hours. Finally, you allowed her to leave, but demanded her house keys, which she gave you. You had earlier taken her mobile phone. Ms Sheldon walked to the nearby shops where an off-duty police officer called Triple 0. Ultimately, she was taken to the Royal Melbourne Hospital.
5. As a result of your attack, Ms Sheldon sustained two deep scalp lacerations that went down to the bone and required stitches. She had a significant headache, bruising to the left eye, lacerations to the back of her head and a bruise at C7 on her back. She had multiple other bruises on her back, soft tissue contusions over both her buttocks, a laceration to the side of her nose, multiple bruises on her arms and bruises to her forehead. Both you and she are lucky the injuries she sustained were not more serious.
6. You left Ms Sheldon’s home and went and stayed in the garage of a friend's house nearby. Police located you there the next day and arrested you. You were found to be in possession of your victim's mobile phone and house keys. You were also in possession of a small quantity of methylamphetamine and an ice pipe. A forensic medical officer found you unfit for police interview, and you have been in custody since your arrest.
7. Your offending is aggravated by the fact that you were undergoing a community correction order at the time of your offending. Ms Sheldon completed a victim impact statement which I will mark as Exhibit E. She says that the incident has caused her a lot of emotional distress, she does not trust people and will not let people stay with her anymore. She has anxiety and stress. She has become hypervigilant, and she is scared that you will come and find her.
8. She has scarring and believes that she has suffered brain damage as a result of your attack. There is no evidence to sustain that. I take the victim impact statement into account in sentencing you. Ms Sheldon was clearly terrified and thought she would die. As I said, she was lucky not to be more severely injured in a more permanent way.

Prior offending

9. You have admitted an extensive relevant prior criminal history. I will refer to some of the more relevant prior convictions.
10. On 1 December 2015 at Dandenong you were sentenced to six months' imprisonment for trafficking cannabis and other charges including possessing a prohibited weapon, carrying a prohibited weapon, possessing a controlled weapon, possessing amphetamine, reckless conduct endangering serious injury, false imprisonment and intentionally causing injury. You received prison terms for those offences.
11. In 2018 you have a prior conviction and a gaol sentence for possession of methylamphetamine and other charges.
12. In September of 2018, you were before the Ringwood Magistrates' Court on drug charges and carrying a prohibited weapon, possessing a controlled weapon, and also possessing methylamphetamine.
13. In 2019 you were imprisoned for possession of methylamphetamine and other charges.
14. In May 2019, again at Melbourne you were convicted of possessing methylamphetamine and possessing GHB. You have a long-standing history of drug abuse and drug offending.
15. On 23 October 2019 at Dandenong, you were sentenced to imprisonment for reckless conduct endangering serious injury which appears to me to involve driving offences. You were convicted on the same day of attempted carjacking and again imprisoned for that offence.
16. On 24 November of 2020, you were sentenced to a three-month term of imprisonment on two charges of assaulting an emergency worker on duty and committing indictable offence whilst on bail.
17. Finally, on 14 April 2021, you received a 74-day term of imprisonment for making threat to kill, two charges, and contravening conditions of bail. The court noted that you suffered from schizophrenia requiring depot injections and you were being managed by Casey Hospital.

Personal circumstances

18. You are now 37 years of age, being born in July 1986 in Fiji. Your history is set out in detail in the psychological report of Mr Ian McKinnon, Exhibit 2. He writes that you could recall your mother had a history of hospital admissions for mental health and when you were 10 years old, she committed suicide by hanging herself. You told Mr McKinnon that you were 13 years old when your father remarried, and you stated that you had mostly a happy childhood in Fiji. However, after losing your mother, whilst you were grieving over her death, you claimed to have been sexually abused by a youth leader at an Islamic camp.
19. When you were 17, your parents brought you and their family to reside in Australia and you settled in Hampton Park. However, tragically, when you were 24 years of age, your stepmother died from cancer. You then, as you admit yourself, lapsed into drug abuse. You left home, became itinerant and spent your time drinking and spending time with your friends.
20. You were schooled at an Islamic college in Melbourne, but you got expelled from that school and then went to TAFE and studied cooking.
21. At 19 years of age you found casual employment as a warehouse labourer and subsequently have worked as a dishwasher and kitchen hand, but it seems to me your working has been sporadic.
22. You are currently, since being in custody, being treated with antipsychotic medications and as Mr McKinnon notes, you have a history of psychiatric admissions dating back to 2010 and you have been admitted on about
    15 different occasions and diagnosed with schizoaffective disorder and treated with depot antipsychotic injections, oral antipsychotic medication, and psychotherapeutic medication.
23. You were admitted in 2019 as an involuntary patient at Casey with a diagnosis of schizophrenia.
24. Subsequent to your stepmother's death, you have become a polysubstance abuser, drinking alcohol, using ecstasy, amphetamine, cocaine, GHB, benzodiazepam, methylamphetamine, that is ice, and ice, smoking ice has been your preferred substance abuse.
25. Mr McKinnon diagnosed you as suffering from schizophrenia and polysubstance abuse disorder. Your schizophrenia is currently being managed satisfactorily by the provision of antipsychotic medicines and Mr McKinnon opines:

In my opinion, during the time of the offences, Mr Asgar was probably suffering from symptoms that met the clinical criteria for the major diagnosable psychological disorders of schizophrenia and polysubstance abuse disorder. Those conditions probably made a significant contribution to your offending by degrading your ability to reason and make sound judgment, distorting your cognition and general perceptions, fuelling paranoia and delusional ideas, elevating your impulsivity, lowering your powers of consequential thinking, and lowering your tolerance levels.

26. I take your psychotic illness into account in sentencing you. Your moral culpability is accordingly reduced, reduced, but not eliminated.
27. There appears to be a strong correlation between your substance abuse and your mental illness. Dr Deacon in Exhibit 3 says that it is likely that your methylamphetamine-induced psychotic state compromised your capacity to remember your experience accurately and wholly. Dr Deacon's report connects your drug abuse with your mental illness. I take into account also your pleas of guilty. By pleading guilty, you have saved the community the time and expense of a criminal trial and perhaps more significantly your victim the trauma of giving evidence.
28. I accept that your pleas have a greater value because they were entered at the time the legal system was still recovering from the disruption caused by
    COVID-19. You have been in remand now for nearly two years and that has caused you increased stress which I take into account.
29. Your counsel sought to rely on Verdin's^[2] principles and Bugmy^[3] principles. I accept that you were mentally unwell and that represents some mitigation of your moral culpability, however your illness is prompted by drug abuse, and you well knew this but continued your drug abuse. As for the purported Bugmy principles, for the reasons discussed with your counsel on your plea, I do not accept that the principles expounded in that case have relevance to sentencing you.
30. You accepted the sentence indication I gave. Your counsel attempted to convince me to further reduce the sentence indication I gave. I am strongly of the view that the sentence indication I gave you is exceptionally lenient. The nature of your offending and the repeated violent assaults on your victim cannot be condoned in any way. You kept her prisoner in her own home for five hours, you threatened to kill her and grossly assaulted her with a hammer.
31. General deterrence, specific deterrence, just punishment and denunciation of your conduct are central sentencing considerations in your case.
32. Allowing for the matters of mitigation, I am still of the view that the effective sentence I am about to impose is inadequate. However, legally, I am obliged to impose the sentence I indicated I would impose. I cannot impose a higher sentence, even if I now think I should.

Sentence

33. On all charges, you are convicted.
34. On Charge 1, of intentionally causing injury, you are sentenced to be imprisoned for four years.
35. On Charge 2, false imprisonment, you are sentenced to be imprisoned for
    12 months.
36. On Charge 3, threat to kill, you are sentenced to be imprisoned for 12 months.
37. On Charge 4, theft of the keys and phone, you are sentenced to be imprisoned for one month.
38. On Charge 5, possession of a drug of dependence, methylamphetamine, you are sentenced to be imprisoned for one month.
39. I order that six months of the sentences imposed on Charges 2 and 3, each of those charges, be served cumulatively on the sentence imposed on Charge 1, which I declare to be the base sentence. That is an effective term of imprisonment of five years, and I order that you serve three years before being eligible for parole.
40. Can anyone tell me what the accurate PSD is?
41. MS ZAMMIT: It is agreed, Your Honour, 780.
42. HIS HONOUR: Not counting today?
43. MS ZAMMIT: Not counting today.
44. HIS HONOUR: I declare that 780 days, not counting today, of the sentence I have just imposed, has already been served by way of pre-sentence detention.
45. Given your two prior convictions for threat to kill, you fall to be sentenced as a serious violent offender on Charge 3. I must regard protection of the community from you as the principal sentencing purpose. To achieve that end, I am entitled to impose a disproportionate sentence. The prosecution do not ask for such a sentence, and I do not need to impose such a sentence. I believe I can adequately protect the community with the sentences otherwise available.
46. I direct that it be recorded in the records of the court that you have been sentenced as a serious violent offender in respect of Charge 3.
47. Pursuant to s6AAA of the Sentencing Act^[4], I indicate that but for your pleas of guilty, plural, I would have imposed a term of imprisonment of seven years and six months with a non-parole period of five years.
48. Are there any other orders required, Ms Zammit?
49. MS ZAMMIT: Your Honour, there was a disposal order in relation to the drugs, but ‑ ‑ ‑
50. HIS HONOUR: Yes, any disposal order sought by the prosecution I will make.
51. MS ZAMMIT: Thank you, Your Honour.
52. HIS HONOUR: All right. Is that all?
53. MS ZAMMIT: Yes, Your Honour.
54. HIS HONOUR: All right. Thank you.

‑ ‑ ‑

---

^[1] A pseudonym

^[2] R v Verdins [2007] VSCA 102

^[3] Bugmy v R [2013] HCA 37; (2013) 302 ALR 192

^[4] s6AAA Sentencing Act 1991