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[2019] VCC 1146
General information, not legal advice.
County Court of Victoria
2019-07-24
Mr J, Ms P
Original judgment source is linked above.
Sentence: Ghadami-Loran: total effective sentence of 20 months imprisonment with non-parole period of 14 months. 6AAA declaration - 30 months imprisonment. Samimi: Total effective sentence of 10 months imprisonment followed by 2 years Community Correction Order. 6AAA declaration - 15 months impriosonment.
1 On 19 June 2019, in relation to Indictment No. C1912352, pleas of guilty were entered to each of the following charges:
CHARGE 1 - that you, Maziar Ghadami-Loran who I shall refer to as Ghadami, at Preston and diverse places in Victoria, on 25 December 2018, unlawfully took and carried away Arian Daneshvar who I shall refer to as Daneshvar against his will.
The offence of kidnapping is contrary to common law and carries a maximum penalty of 25 years' imprisonment.
CHARGE 2 - that you, Ali Samimi who I shall refer to as Samimi, at Preston and diverse places in Victoria, on 25 December 2018, unlawfully imprisoned Daneshvar and detained him against his will.
The offence of false imprisonment is contrary to common law and carries a maximum penalty of ten years' imprisonment.
CHARGE 3 - that both you, Samimi and Ghadami, at Preston and diverse places in Victoria, on 25 December 2018, without lawful excuse, intentionally caused injury to Daneshvar.
The offence of causing injury intentionally is contrary to s18 of the Crimes Act 1958 and carries a maximum penalty of ten years' imprisonment.
2 Pursuant to s145 of the Criminal Procedure Act 2009 the following summary charges were transferred to this Court:
(a) (Charge) 20, that you, Ghadami, at Preston on 25 December 2018, did unlawfully assault Daneshvar, with, namely, a red-handled knife. You pleaded guilty to that offence on 19 June 2019.
Such summary offence is contrary to the Summary Offences Act 1966 and carries a maximum penalty of two years' imprisonment;
(b) Charge 20, that you, Samimi, at numerous locations on 25 December 2018, did commit an indictable offence whilst on bail.
3 Section 3(1) of the Sentencing Act 1991 defines a "Category 2 offence" to mean an offence committed by a person who is 18 years of age or more at the time of the commission of the offence and includes the offence of kidnapping at common law (see s3(1)(f) of the Sentencing Act 1991).
4 Section 5(2H) of the Sentencing Act 1991 provides that in sentencing an offender for a "Category 2 offence", the Court must make an order under Division 2, Part 3 - that is to say a custodial order - other than a sentence of imprisonment imposed in addition to making a community correction order unless there is satisfaction of one of the exceptions set out in the Sentencing Act 1991. During the course of this plea, counsel for you, Ghadami, did not seek to rely on exceptions.
5 Counsel for the prosecution tendered a document headed "Prosecution Opening" (exhibit 1). I will not refer to all aspects of that document, but only those matters which give an understanding of the offending. I do direct that a copy of the Prosecution Opening be attached to these reasons for sentence.
6 On Christmas Day 2018 at approximately 8.15pm you, Ghadami, convinced the victim, Daneshvar, to come for a drive in your car with you, Samimi, under the false pretence of getting cigarettes. You, Ghadami, drove the victim to your house instead, and later that evening drove him back to his friends, Charge 1 on the Indictment - kidnapping.
7 During the car trip, your time at the house, and the subsequent drive, you, Samimi, detained Daneshvar against his will, Charge 2 on the Indictment - false imprisonment. Both of you also intentionally caused injury to Daneshvar (Charge 3 on the Indictment - causing injury intentionally).
8 You were both very angry at Daneshvar as he had recently commenced a relationship with Nadia Mamosi who I shall refer to as Mamosi, with whom you, Ghadami, had had a relationship for about three years, having separated approximately six to eight months prior to the offending.
9 You, Ghadami, were born on 8 October 1996 and are presently twenty-two years of age - the same age as when you committed the subject offending. You, Samimi, were born on 8 May 1998 and presently are twenty-three years of age, but at the time of the offending you were twenty-two years of age. At that time, you were friends with each other.
10 Mamosi was also a family friend of you, Samimi, and the pair of you had become very close in the months preceding the subject offending. Furthermore, at the time of the offending, Daneshvar was nineteen years of age and working as a painter. From mid-December 2018, he had commenced a relationship with Mamosi.
11 Prior to the offending, you, Ghadami, and you, Samimi, moved in the same circles as Mamosi and Daneshvar, and were known to each other.
12 Over the last few days before Christmas 2018, you, Ghadami, sent messages to both Mamosi and Daneshvar. In particular, on Friday 21 December 2018:
13 On Sunday, 23 December 2018 you, Ghadami, used a mutual friend to telephone Daneshvar, telling Daneshvar that you wanted to meet him, but Daneshvar was busy and said he would call you back later. Later, at 9.21pm that night you, Ghadami, sent a message to Daneshvar stating:
"You come with yourself. I'm not going to do anything to you. Don't walk away from me you child. Otherwise if I happen to see you somewhere it wouldn't be good for you. You know what I want to do with you. So just come over I want to see you"
On Monday, 24 December 2018, Daneshvar did not contact you, Ghadami, as he wanted you to stop contacting him. That night you, Samimi, slept the night at Ghadami's house.
14 On Tuesday, 25 December 2018 you, Ghadami, through a series of conversations, ascertained that Daneshvar was at a café in Preston and at about 8.12pm you arrived at such café with several friends, including you, Samimi. You, Ghadami, were initially friendly with Daneshvar and it was agreed that Daneshvar and you, Ghadami, would have a chat in your car. Inside the car, you said you wanted to get some cigarettes and although Daneshvar offered you a cigarette, you said you did not smoke that type, and ultimately you went off to get some cigarettes elsewhere.
15 At that time you, Ghadami, instructed Samimi to get into the car and another of your friends, Milad Roostaee (Roostaee), got into the car as well.
16 The prosecution allege that you, Ghadami, kidnapped Daneshvar by fraud, in that the initial taking away of Daneshvar and deprivation of his liberty was under the false pretence of purchasing cigarettes and returning (that is, Charge 1 on the Indictment, Kidnapping).
17 You, Ghadami, drove the group into a side street and stopped the car and instructed Roostaee and Daneshvar to change places so that Daneshvar was sitting in the back beside you, Samimi. After the switch, the doors of the car were locked and you, Ghadami, began driving again. The prosecution do not allege that you, Samimi, were a party to Ghadami's decision to kidnap the victim, or were aware that Ghadami intended to lure Daneshvar the way that he did. However, the prosecution allege that after the switch of seats and locking of doors you, Samimi, thereafter falsely imprisoned Daneshvar (Samimi, Charge 2- false imprisonment).
18 In the car you, Ghadami, told Daneshvar to give you his phone and when handed over, you told him a story about another man who had been involved with Mamosi, stating "I put a bag on his head and took him somewhere far away".
19 At the end of the story, you instructed Samimi to hold Daneshvar's head down, and when Daneshvar asked what was wrong and struggled while Samimi attempted to grab your head, you turned around from the driver's seat and slapped him on his head.
20 When Daneshvar continued to struggle you Ghadami, held out a red-handled kitchen knife in your left hand so that the victim could see the knife, (related Summary Charge assault with weapon). When he saw the knife, Daneshvar stopped struggling.
21 When Daneshvar did agree to put his head down you, Ghadami, began swearing at him, telling him that you had been trying to find him for the past three days, in particular, you were angry and asked Daneshvar why would he go after someone's girlfriend, and each time Daneshvar tried to respond to you, Samimi, slapped him to the head and neck with an open hand.
22 On arrival at your house, Ghadami, you told Samimi to take Daneshvar into a garage where you, Ghadami, asked Daneshvar for his phone password. At that time, Daneshvar offered to open it with his fingerprint, but you, Ghadami, swore at him and slapped him to the left side of his face, after which Daneshvar provided the password. You, Ghadami, began searching the messages and when you searched the photographs on the phone you found images of Daneshvar and Mamosi and you said "Aw you're fucked".
You, Ghadami, then came towards Daneshvar and began punching and slapping him to the head and you, Samimi, attempted to join in. You, Ghadami, stopped him, telling him that you were the one who would hit Daneshvar. At the time, Daneshvar covered his face and began to feel pain in the back of his head.
23 You, Ghadami, again reviewed the photographs and after querying Daneshvar why he would hug Mamosi, as seen in the photo you, Ghadami, began punching Daneshvar in the head and kicking his legs. At that time you, Samimi, also joined in, punching Daneshvar to the top of the head. Both of you continued to attack Daneshvar for about twenty seconds.
24 You, Ghadami, instructed you, Samimi, to start recording on the phone and while you, Samimi, filmed you, Ghadami, told Daneshvar "You don't ever go to someone's girlfriend". You also told Daneshvar to put his hands down and when Daneshvar refused you slapped him on the face, and when his hands were put down, you punched him in the head.
25 When you, Ghadami, took the phone from Samimi, you told Samimi to hit Daneshvar, after which you, Samimi, began kicking the victim's legs, punching his head and back and continued to attack him for approximately thirty seconds.
26 You, Ghadami, also called Mamosi on Daneshvar's phone, instructing Daneshvar to ask whether she wanted to go out with him somewhere and then you, Ghadami, revealed that you were with Daneshvar, and asked Mamosi whether she was in a relationship with him. At that time, Mamosi began panicking, and asked where you were.
27 You, Ghadami, instructed Samimi to start recording on the phone again, and when such recording commenced you, Ghadami, told Daneshvar that you were going to make him naked and show everyone. You told Daneshvar to take his shirt off and he complied, after which you, Ghadami and Samimi, again approached Daneshvar and hit him. Later, you, Ghadami, approached the victim and punched and slapped him.
28 You, Ghadami, told Samimi and Roostaee to go inside and close the door, leaving you alone with Daneshvar. You told Daneshvar:
"You are going to block Nadia from everything on social media. She can't hang around you or any of your mates... If I see you with her or if I find out that you are speaking to her again, trust me I will do something worse than this... Did you see how I got you. There were no cameras at the place where you got in the car. I could kill you right now without anyone finding out."
29 At the time you, Ghadami, were smoking and pressed the lit cigarette against Daneshvar's arm, causing Daneshvar to feel immediate pain and move his arm, which caused you to laugh in response.
30 Later, you, Ghadami, instructed Samimi to again start recording, after which you requested Daneshvar to get naked. Initially, Daneshvar refused to take his shorts off, causing you, Ghadami, to punch him to the head. Later still, you Ghadami and Samimi, again struck Daneshvar with you, Samimi repeatedly asking you, Ghadami, if he could hit him.
31 Because of neighbours next door, then you, Ghadami, decided to move from the garage into your house and you took Daneshvar upstairs to your bedroom. In the bedroom, Daneshvar began crying and asked you, Ghadami, to delete the videos of him, to which you replied you would keep them for a few months to ensure he stayed away from Mamosi.
32 The group returned to the car and during the trip back you, Ghadami, hit Daneshvar's head.
33 You, Ghadami, agreed to meet Mamosi to discuss what happened, during which time you told her that you loved her and wanted to resume your relationship. At that time, you said you had done nothing to Daneshvar and that Daneshvar was drinking with you. While that discussion was going on you, Samimi, told Daneshvar "You're lucky that Maziar didn't let me hit you". When queried why you hated him, you, Samimi, replied "Cos you're a dog and Nadia's dad treats me like a son". You, Samimi, asked about the photos on Daneshvar's phone and you, Samimi, called Daneshvar a liar and began slapping and punching him to the head, causing Roostaee to stop you.
34 Ultimately, Daneshvar was dropped back with his friends and had visible bruises to his face, was shaking and looked scared.
35 On Wednesday, 26 December 2018, Daneshvar was taken by family to the Royal Melbourne Hospital, where he was discharged a few hours later. His injuries were later assessed and included:
(a) bruising to his cheek, nose, head, neck, back and inner surface of the bottom lip;
(c) tenderness to the jaw, right ear and right thigh; and
(d) a blister to the arm, consistent with a burn mark.
(Ghadhami and Samimi, Charge 3 - causing injury intentionally).
The prosecution alleges that you are jointly liable for all injuries sustained by Daneshvar. At the time of the offending you, Samimi, were on bail (related summary charge, commit indictable offence whilst on bail).
36 On Wednesday, 26 December 2018, police arrested you, Ghadhami, at which time you indicated you could not believe the police were involved and said that you had driven around with Daneshvar but never brought him back to your house.
37 Later that day you, Samimi, were arrested and at that time activated a recording device, after which you made some partial admissions. You stated:
38 Later you, Samimi, participated in a recorded interview and again made partial admissions. You stated:
"because I was gunna do something... Because I know what he... has on his mind. I was - I'm a really angry person. I once tried to bash him, straight up. I once tried to bash him, it's true... Because She's my best friend... I can't accept that DANESHVAR's is going with someone because he's a motherfucker, like, he's not a good boy to go in relationship..." (Q378-383)
"It was Nadia and him. So from that time I lost it so I just bashed him. Didn't bash him with, like, punches or anything, I just, like, slapped him two times... Even hugging her, even being next to her just makes me so angry. It does"; (Q394, 398-399)
"I'm sitting next to him. He say something, I just want to, like, bash him so bad but Maziar doesn't let me. So he knows if he doesn't give it I will bash so... I said it to him. I was like 'I'll bash you if you don't give it..." (Q413, 416-417)
"...Maziar still loves Nadia, yeah, and everybody know, even the victim know it. So - so you never gunna go with his girlfriend. Like, that's in our culture. It's really bad if you do that, it's really bad." (Q460)
"'I knew - I knew. Like, most of Persian boys does the same thing, like, you can tell easy what he was gunna do." (Q543)
39 You, Ghadami, participated in a Record of Interview and stated:
"'Aren't we friends? Why did you go after her? There are so many girls why do you have to go after mine?' So I slapped him... And even though when I did slap him I immediately after that I cuddled him. I did that. As I hugged him he actually - basically the reason I wanted to cuddle him I just wanted to show him that you are like my younger brother and I basically didn't mean to hurt you or upset you. I just wanted to show repentant to him by hugging him. It took only for two, three seconds that he pushed me back and he throw a punch at me to my left eye and there was a few slaps and punches exchanged between both of us." (Q40) (sic)
40 Counsel for the prosecution also notes that Mamosi visited you in custody on
2 January 2019. You were crying when you met and told her you did not do this. (Statement of Mamosi page 82)
41 Counsel for the prosecution noted that both you, Ghadami, and you, Samimi, pleaded guilty at the committal hearing at the Melbourne Magistrates' Court on 26 March 2019 after the complainant - that is, Daneshvar - gave evidence over two days. Counsel for the prosecution acknowledges that Samimi indicated a preparedness to plead guilty to a charge of false imprisonment prior to the committal hearing. Roostaee was arrested and charged, however, the charges were withdrawn at a special mention on 20 March 2019.
42 Applications were made by counsel for the prosecution for a forensic sample order in relation to you, Ghadami.
43 After your arrests both you, Ghadami, and you, Samimi, were remanded in custody from 26 June 2018, and as at the date of the plea hearing on 19 June 2019, had served 175 days pre-sentence detention, up to but not including, 19 June 2019.
44 Your counsel tendered the following documents:
(a) a document headed "Accused's Outline of Submissions", dated 18 June 2018 (exhibit A);
(b) a letter from the Department of Home Affairs to you, dated 22 March 2019 (exhibit B);
(c) a bundle of certificates of courses completed by you while in prison. They consist of:
(d) a letter from you to the Court dated 11 June 2019 (exhibit D).
45 Partly on the basis of these documents, and partly on the basis of various submissions made by your counsel, I note the following:
46 Your counsel conceded that the circumstances of the offending, although serious, are not in the very serious - or even moderate- category for these types of offences. It was submitted that little aggravating factors were present in the offending.
47 Your counsel also submitted that the motivation of the offending was your ongoing romantic interest in your then ex-girlfriend, Mamosi, who had formed a recent romantic relationship with Daneshvar, the complainant in the proceeding. It was submitted that the motivation for the kidnapping was certainly not in the category of more serious categories of kidnapping and, indeed, the period of kidnapping was of "short duration".
48 Your counsel further submitted that the injuries caused to Daneshvar were "varied" and that it was accepted that the injuries were caused by multiple instances of violence over the period that Daneshvar was detained. Again, it is conceded by your counsel that the injury sustained by you burning the victim with a cigarette cannot be characterised as low level, but it is submitted equally it is not charged as a "serious injury". Your counsel points out there is nothing in the prosecution opening which suggests that Daneshvar continues to suffer any ongoing physical injury or psychological issues as a result of the offending.
49 In particular, your counsel also submitted that your relationship with Mamosi commenced when you were eighteen or nineteen and continued for about three years, ceasing a few months earlier. He described your actions as "foolish", "jealous" and "immature", which manifested in rage and anger.
50 Your counsel also informed the Court that, on your instructions, you had been smoking cannabis and drinking on the day of offending. Your counsel submitted that your cannabis use had increased over the three months leading up to the offending, to the extent that you were using cannabis on a daily basis. He noted such use was, unfortunately, coupled with your impetuous behaviour of a "youthful" man.
51 Your counsel also informed the Court that there is a pending matter in the Magistrates' Court involving an assault charge, which predates the circumstances of this matter. Although predating this matter, you were not charged until relatively recently.
52 In particular, your counsel submitted the following matters to be relevant in mitigation of any sentence to be imposed on you:
(a) your indication to plead guilty immediately following the committal hearing has facilitated the course of justice, in that such a plea provides a utilitarian benefit and has spared witnesses in particular Daneshvar - the ordeal of giving evidence at a trial. Reference was made to the well-known case of Phillips v R [2012] VSCA 140. Furthermore, it was submitted that your plea of guilty also "evinces" some remorse. Reference was again made to Phillips (op cit).
Your counsel also highlighted that following the committal, the number of charges against you were reduced from twenty-three to the present two Indictable charges, and one summary charge.
(b) you have no prior convictions for any type of criminal act;
(c) you have expressed remorse to your Pastor, who was present in Court, with your mother and has visited you in prison. Furthermore, your counsel makes reference to exhibit "D" - the letter you authored on 11 June 2019 - wherein you state that you were conscious of the effect your offending has had on your victim and that your conduct was reprehensible and never shall be repeated;
(d) given that you were twenty-two years of age at the time of the offending, you must be viewed as a youthful offender and reference was made to the leading cases of R v Mills [1998] 4 VR 235 and, in particular, at pages 241 per Batt JA, and Azzopardi v R; Baltatzis v R; Gabriel v R [2011] VSCA 372; (2011) 35 VR 43 and, in particular, at paragraphs [34]-[36] per Redlich JA. In this respect, it was submitted that rehabilitation of young offenders is a paramount consideration.
(e) seemingly based on the letter from Victoria Immigration Lawyers, dated 13 June 2019, your counsel submitted:
(i) if you were to be sentenced to an imprisonment term of twelve months or more in relation to the subject offending, your future appeals to the Immigration Department to have the cancellation of your temporary protection visa revoked would most likely fail;
(ii) when you have completed your period of imprisonment you will be transferred to an Immigration Detention Centre in circumstances where you will be offered the option of a voluntary return to Iran by the Immigration Department in circumstances where, probably, Iran would refuse to accept "an Iranian asylum seeker", leaving you in the situation where you would be in "indefinite" detention in Australia, unless the Minister intervened in your case.
(iii) subsequent to your plea, your counsel forwarded the Court a copy of the recent decision of Director of Public Prosecutions (DPP) v Za Lian [2019] VSCA 75, wherein the Court of Appeal consisting of Ferguson CJ, Kaye and Weinberg JJA dismissed a Director's appeal that the sentence given to both offenders was "manifestly inadequate". In general terms, both offenders faced uncertain futures as to deportation, and the consequences if they did not voluntarily return to their country of birth, Myanmar. The Court of Appeal stated at paragraphs [107]-[108]:
"The respondents were also entitled to have taken into account, to some degree, the fact that they were very young at the time of the commission of these offences. They had no prior convictions, or were able to call in aid unusually powerful evidence of good character. Their prospects of rehabilitation had to be regarded as good, as the judge properly found.
Indeed, the uncertainty concerning the immigration status of the respondents, and the fact that they were likely to be detained in immigration detention for an indefinite period, was an important and significant mitigating factor in determining the sentence to be imposed on each of them. During their young lives, they had both already departed from their homeland as refugees from it. As a consequence of their offending in this case, they each faced the very real prospect of being deported from the country in which they have found refuge and in which they had been accepted. In addition, they each faced the real possibility, if not probability, of spending some indefinite further time after the completion of their prison sentences in immigration detention, following which they may well be required to leave Australia for some other unknown destination. The uncertainty which would hang over each of the two respondents while they serve their prison terms would, realistically, add significantly to the burden of the term of imprisonment to be served by each of them. Moreover, the prospect the likelihood of which cannot, at this time, be determined that they will ultimately be deported from this country could well constitute a further punishing circumstance arising from the offences to which they each pleaded guilty. In that way, and for those reasons, the issues relating to the immigration status of each of the two respondents was, as already stated, a significant mitigating factor in their favour."
(Footnotes omitted);
(f) Your counsel submits that you have "very good prospects of rehabilitation" for the following reasons:
(iii) your plea of guilty reflecting remorse by you; and
(iv) the life-changing impact of your offending will continuously act as a form of specific deterrence to you.
53 Ultimately, it was submitted by your counsel that a term of imprisonment with a non-parole period equal, or not significantly more than, your pre-sentence detention, was open in all the circumstances.
54 Your counsel tendered the following documents:
(a) a document headed "Outline of Submissions for the Accused", dated 18 June 2019, (exhibit D2.1);
(c) a copy of an intervention order made on 28 December 2018 against you, Samimi, setting out various conditions prohibiting any contact with Daneshvar.
55 Partly on the basis of these documents, and partly on the basis of various submissions made by your counsel, I note the following:
(a) you were born in Iran on 8 May 1996 and have one older sister. Your biological father abandoned you and the family when you were one year old;
(b) you completed eight years of schooling in Iran and thereafter worked in a pizza parlour;
(c) you came to Australia in 2011, when you were fifteen years old, together with your mother and sister. In Australia, you have completed two years of English studies at Werribee and also a Diploma of Building Technology over an eighteen-month period at the Doncaster TAFE;
(d) you have worked in Epping at the Melbourne Wholesale Fruit and Vegetable Market, and also as a forklift driver;
(e) on coming to Australia, you resided in Greenvale with your mother, sister and later a stepfather, who has been with your mother for the last seven years;
(f) you apparently are no longer close to your sister after a falling out about three years ago, and at one stage you moved out of the family home to live with friends in Lara, but later returned home after about nine months. You stated that your family relationships were up and down, although you think highly of your stepfather;
(g) you had been in a relationship from the age of fourteen, with a girl that you had met in Iran, who was your neighbour. After coming to Australia you continued a "long-distance relationship" and it was intended that she would also come to Australia. This did not occur, and the relationship ended, causing you to experience a difficult time in adjusting to this relationship breakdown. Over the years, you have been involved in three motor vehicle accidents; one in Iran when you were twelve and broke two ribs, the second when you were a learner driver in Australia on 10 August 2017, and another driver hit your car from behind. Apparently you remained conscious and went home after the accident, but later attended the Royal Melbourne Hospital in pain, and was ultimately diagnosed to have suffered neck, shoulder and back problems as a result of that accident. There was a further accident in April 2018, when you hit a tree while dodging an animal on the road. As a result of that accident, you suffered more pain;'
(h) you also reported that on 13 June 2019 you were assaulted in prison, which you assert was related to current matters and involving your co-accused. As a result of that attack, you sustained a left orbital fracture, the area around your eye was black and bruised, and bruising on your forehead;
(i) you told the psychologist, Ms Cidoni, that you commenced to have mental-health issues after your girlfriend's failed attempt to come to Australia. You described developing depression, for which you have been prescribed various medication. Also, you were aware that you had been diagnosed with Borderline Personality Disorder, characterised by frequent mood swings, anger issues, relationship difficulties, impulsivity, chronic suicidality and deliberate self-harm. Apparently this condition was notably pre-existing the two motor vehicle accidents in 2017 and 2018;
(j) you informed Ms Cidoni that you had been self-harming since the age of twelve by cutting yourself, and the last time this had occurred was approximately two years ago. At that time, you were upset over your father and the life he was living, and the trauma you had been witnessing during your time spent in Iran;
(k) you commenced using cannabis for when you came to Australia, up to when you were remanded in custody. Such use was excessive and daily but helped ease your psychological symptoms and the physical pain. At the time of the offending, you had been using cannabis that day and also had been binge-drinking;
(l) because of the recent assault, you are serving prison in protection.
56 I refer briefly to the medical evidence tendered:
(a) In his report dated 7 October 2018, Dr Asadi reported that he had consulted with you twice, being on 22 September 2017 and 11 May 2018, on referral from your general practitioner. At that time, Dr Asadi obtained a history of you experiencing mood swings, depressed mood, anxiety and anger issues for a few years, which you attributed to the emotional issues following your relationship with a girlfriend of seven years who lives in Iran. You also had frequent arguments with your sister, mother and friends. You also gave a history of your various car accidents. Dr Asadi diagnosed you to be suffering Borderline Personality Disorder, together with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. At that stage, he recommended you be referred to a clinical psychologist and you were commenced on various medications to assist your condition.
(b) in a report dated 5 September 2017, Dr Ali Mohtaji diagnosed you to be suffering from Post-Traumatic Stress Disorder as a result of, presumably, the second motor car accident, and noted you required referral to a psychologist.
(c) you were seen by the consultant psychologist, Ms Gina Cidoni, on 15 June 2019 at the behest of your solicitors. Ultimately, she was of the opinion that you suffer from a variety of psychological conditions, all of which were most probably exacerbated by your recent assault in prison. In particular, Ms Cidoni states:
"Ali Samimi was obviously affected by a recent severe assault in prison. This no doubt impacted upon attention and concentration and potentially showed an exacerbation of psychological/emotional symptoms.
His test scores on the WAIS IV and neurological screening test indicated there are problems with cognitions and memory. Again his performance was most likely affected by his very recent experience.
He has previous diagnoses of borderline personality, also adjustment disorder, PTSD, anxiety and depression. He has a history of self-harm and unstable mood. Harming himself that may well be linked to personality dysfunction. He feels resentment towards his father who left when he was age one and he has feelings of abandonment. He said self-harm occurring since age 12, was orientated towards letting out frustration and anger.
His chronic pain condition arising from two motor vehicle accidents in 2017 and 2018, may also produce symptoms of fluctuating mood. Adjusted disorder most likely emerged as a result of his inability to work and disability.
He functions at high strain, and he shows operative and interpersonal difficulties, depression and anxiety. Testing indicated agitation and unstable mood states.
Chronic cannabis use commenced in 2011 when he came to Australia. No doubt there were probably adjustment difficulties and drug use provided escape. This escalated when his long distance relationship failed.
Regarding the offending, substance abuse is a major contributing factor, underlying his poor mental health.
He didn't seem to understand the gravity of his participation in the offending and his attitude with police following his arrest would indicate both a disturbed and disordered mood state. He said he since feels remorseful that is, after he sobered up and realised the extent his behaviour."
57 Your counsel was instructed by you that on the day of offending you had drunk about twelve full-strength beers and had smoked cannabis.
58 In particular, your counsel submitted the following matters to be relevant in mitigation of any sentence to be imposed on you:
(a) your plea of guilty was entered at the first opportunity, allowing for negotiations with the withdrawal of alternative charges. While the complainant was cross-examined, it allowed clarity in your role in the offending and enabled negotiations with the prosecution. Furthermore, the plea has resulted in a utilitarian benefit in the elimination of the cost of a trial and avoids the need for the complainant to give evidence and relive the circumstances of the offending. Your counsel also notes that you offered a plea of guilty to the charge of false imprisonment prior to the committal hearing;
(b) that your preparedness to plead guilty to charges prior to the complainant giving evidence at the committal in addition to the ultimate plea of guilty, is evidence of genuine contrition. Furthermore, reliance is based on the history that you gave to the psychologist, Ms Cidoni, wherein you stated that you were very remorseful for your actions and that you never intended to hurt the victim;
(c) that given you were twenty-two years of age at the time of the offending, you must be viewed as a youthful offender and reference was made to the leading cases of Mills (op cit) and Azzopardi (op cit). In particular, it was submitted that your rehabilitation should be given weight in the sentencing considerations and general deterrence reduced;
(d) in relation to your prospects of rehabilitation, your counsel noted that you have no prior criminal convictions, a supportive family, and no former court treatment orders. In particular, reference was made to the CISP Remand Outreach Program and on 11 February 2019 you were assessed as suitable, being recommended for case management on bail (obviously this did not occur);
(e) your counsel noted that you are a "non-citizen" of Australia and a permanent resident of Australia. Your status has implications pursuant to the Migration Act 1958, in that it is probable that there will be deportation of non-citizens in Australia for less than ten years for those sentenced to periods of imprisonment for one year or more. In this respect, your counsel referred to the well know case of Guden v R [2010] VSCA 196; 2010 28 VR 288 at paragraph [25], where it is stated:
"...the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his or her release."
Your counsel stresses that your permanent residence was based on your status as a political refugee. If you are sentenced to a period of imprisonment of twelve months or more you will be confronting the same situation as Ghadami, in that you would be stateless and facing an indefinite period of immigration detention.
In particular, your counsel also made the following points:
Although your counsel, in her written submissions, sought to rely on various principles enunciated in R v Verdins; R v Buckley; R v Vo ([2007] VSCA 102; 2007) 16 VR 269, ultimately she withdrew from such position. In particular, she submitted that Verdins' principles were not enlivened by the report from Ms Cidoni based on the current diagnosis, that is, substantially a Personality Disorder, giving rise to impairment of thinking et cetera. However, you counsel did state, in a general way, that the various psychological conditions suffered by you would, in general terms, make your term of imprisonment harder than a prisoner who does not have these various psychological conditions.
59 Ultimately, your counsel submitted that an appropriate disposition would be a "combined custody treatment order". In this respect, I understand the submission to mean that a community correction order be commenced in the near future, with rehabilitative conditions.
60 Counsel for the prosecution submitted the following:
(a) in relation to you, Ghadami, there should be a head term of immediate imprisonment, together with a non-parole period. In this respect, counsel notes that the kidnapping and false imprisonment were affect in company, with weapons - a knife and a baseball bat - and was over a period from about one-and-a-half to two hours, which is not fleeting. Furthermore, the assaults and filming the complainant when naked, involved degradation and humiliation;
(b) a combined sentence in relation to you, Samimi, would be open in all the circumstances. Counsel also noted the contents of the Records of Interview by you, Ghadami, and you, Samimi, wherein there were few admissions made in relation to the offending.
61 The Court directed that both you, Ghadami, and you, Samimi, be assessed to determine your suitability for a community correction order. In so doing, the Court stressed to all concerned that such a course was not necessarily indicative that community correction orders would be made in either case.
62 In relation to your assessment, Ghadami, the Community Corrections officer noted that although you demonstrate some insight into your offending behaviour and some little remorse for the victim, you were found a suitable candidate for the imposition of a community-based order, with the Community Corrections officer noting that you were a "medium risk of re-offending". Various conditions were recommended. You, Samimi, were also assessed on 12 July 2019, and were also found to be a suitable candidate for the imposition of a community-based order. You were also assessed to be a "medium risk of re-offending".
63 It was further recommended that there be orders for supervision, assessment and treatment for drug use and dependency, assessment and treatment for mental health, and programs targeted to reduce the risk of re-offending.
64 Prior to your offending on 21 December 2018 you, Ghadami, and you, Samimi, were good friends, and also knew Mamosi and the complainant, Daneshvar, who had worked for you, Ghadami, in the past.
65 In particular you, Ghadami, had been in a relationship with Mamosi for about three years, having separated approximately six or eight months prior to the offending. The complainant, Daneshvar, who was nineteen years old at the time of the offending, had commenced a relationship with Mamosi in mid-December 2018.
66 Over a few days leading up to the date of offending you, Ghadami, sent a number of text messages to Mamosi and Daneshvar, some of which were abusive and making clear that Daneshvar should not be involved with Mamosi.
67 During Christmas Day 2018 - that is, the date of offending- both of you consumed a large amount of alcohol and cannabis. Later on that day you, Ghadami, ascertained the whereabouts of Daneshvar and in the company of several of your friends, including you Samimi, arrived at the café where Daneshvar was situated at about 8.12pm. Both you, Ghadami, and you, Samimi, approached Daneshvar, and shortly afterwards you, Ghadami, had a discussion with Daneshvar in your car, and under the ruse of you seeking to get cigarettes you drove off with Daneshvar in the car, and also two of your friends, you, Samimi, and Roostaee.
68 It was at this point that the kidnap of Daneshvar occurred. During the plea hearing the Court queried the parties as to the length of time over which the kidnapping and other offending occurred before Daneshvar was brought back to his friends. Reference was made to a petrol receipt in relation to filling up your car, Ghadami, and such receipt was timed at 10.03pm on 25 December 2018. In such circumstances, the parties accepted that the period of kidnapping was in the order of one-and-a-half to two hours.
69 Although I accept that such kidnapping is far from the worst type of kidnapping, the circumstances surrounding this kidnapping must have been extremely frightening to Daneshvar, who knew that you, Ghadami, did not approve of his relationship with Mamosi.
70 Although there is no Victim Impact Statement from Daneshvar, it takes little imagination to understand what his state of mind would have been, sitting in a car with you, Ghadami, you, Samimi and also Roostaee, who was holding a baseball bat.
71 Shortly after the commencement of such drive you, Ghadami, instructed Roostaee and Daneshvar to change places, so that Daneshvar was sitting in the back beside you, Samimi. Those actions constitute you, Samimi, falsely imprisoning Daneshvar which, again, would add to Daneshvar's fear as to what was going to occur.
72 Over the ensuring period you, Ghadami, drove to your residence and directed that Daneshvar be taken to the garage and later to a room in your house, and then later on again, Daneshvar was driven back by you to join his friends. Throughout the period of time that Daneshvar was driven to your residence, the period of time that he was present at your residence and, indeed, on the drive back to his friends, he was smacked on the head, punched and kicked by you, Ghadami, and you, Samimi. Although Ghadami made clear that you, Samimi, should not strike Daneshvar, the evidence establishes that you were both keen to do so, and did strike Daneshvar on many occasions.
73 Both of you are charged with intentionally causing injury and this offence occurred during the cause of the kidnapping. In particular, you, Ghadami, are also charged with assault with a weapon, and this was constituted by you holding out a red-handled kitchen knife so that Daneshvar could see it, in circumstances where Daneshvar had been requested to pull his head down and had consistently refused to do such act. In the circumstances you, Ghadami, turned around from the driver's seat, slapped Daneshvar on the head and then held out the red-handled kitchen knife, causing Daneshvar to stop struggling when he viewed the knife. I consider any offence involving a knife a serious offence given the potential for serious injury or death.
74 Although not the subject of a separate charge, part of the crime of intentionally causing injury alleged against you, Ghadami, involves, in part, you pressing a lit cigarette against Daneshvar's arm, causing Daneshvar to experience immediate pain and move his arm which, in turn, you responded by laughing. I consider this incident the worst in a large number of incidents whereby the complainant was slapped, pushed or kicked.
75 When Daneshvar was seen at the Royal Melbourne Hospital, his injuries were assessed as I have said:
(a) bruising to his cheek, nose, head, neck, back and inner surface of the bottom lip;
(c) tenderness to the jaw, right ear and right thigh; and
(d) a blister to the arm, insistent with a burn mark.
76 Your offending, Samimi, occurred while you were on bail for a summary offence involving the theft of petrol, which was ultimately dealt with in February 2019, where you were fined and no conviction recorded.
77 Seemingly, the motivation for your offending, Ghadami, was your reaction to Daneshvar commencing a relationship with Mamosi, notwithstanding that your relationship with her had ceased some months prior to the offending. As submitted by your counsel, such action on your part does demonstrate a degree of immaturity, but even allowing for your degree of jealousy, I consider that your reaction was extreme and your actions chilling. It is also to be noted that during the course of the kidnapping of Daneshvar you took a video of him naked, which was intended to be used against him if he continued to see Mamosi.
78 In relation to you, Samimi, it was submitted that your actions reflected misplaced loyalty to Ghadami. Although I accept that misplaced loyalty may have formed part of your reason for assisting, I consider that the attitude you displayed, both at the time of the offending and, indeed, in your Record of Interview, would suggest you believed that Ghadami had been "wronged" and that Daneshvar had to be appropriately "warned off" Mamosi.
79 Neither of you made full and frank admissions during your Records of Interview and, in particular, there are denials in relation to various matters, more so from you, Ghadami. In this respect, I accept that you, Samimi, made some admissions, but also commented in your Record of Interview that "If Maziar would've let me, I would've broken his bones that night".
80 In mitigation of your sentences, I do accept that your pleas of guilty, although not early, did have utilitarian value in that the time and cost of a trial is avoided and, more particularly, the complainant Daneshvar did not have to give evidence and relive the circumstances of the kidnapping.
81 I also note that although the indication to plead guilty were finalised following the committal hearing (which did involve the complainant being cross-examined for nearly two days) such hearing had the result of refining the charges and permitted agreement to be reached amongst the parties.
82 It is always a matter for the sentencing judge whether remorse or a willingness to facilitate the course of justice and acceptance of responsibility is to be inferred from a plea of guilty (see Phillips v R (2012) VSCA 140 at [96]).
Taking account of the plea and comments made by both of you, in recent times- you Samimi to the psychiatrist Ms Cidoni, and you Ghadami in your letter- I consider that you have both shown some remorse, perhaps in part because the matter has come this far.
You both also come to the court with no prior convictions for any type of offending. However, I do consider that, even allowing for your youth, your prospects for rehabilitation are 'guarded'. In this respect you were both assessed by Corrections Victoria and as already recorded, found to be of medium risk of reoffending.
83 I also accept that both of you will experience greater hardship in prison compared to others because of whether you will be deported and if so, when, after the completion of your sentences. I also accept that you, you Samimi will experience generally greater hardship in prison because of your:
(a) various psychological conditions beyond any personality disorder;
(b) you by being confined to protective custody which will inhibit you mixing with us;
(c) and, of course, your deportation issues- that is to whether you will be deported and if so when that would occur after your prison sentence or after your prison sentence is completed.
I consider that the following factors are relevant to determining an appropriate sentence: general deterrence, specific deterrence, denunciation, just punishment and protection of the community. By general deterrence, I mean that a sentence must deter others from committing a similar offence- that is particularly relevant to the kidnapping offence, the assaults with the knife and the intentionally causing injury charges.
By specific deterrence, I mean that the sentence should deter you from re-offending.
84 However, the most powerful mitigating factor is your youth in circumstances where neither of you have prior convictions or, of course, have been in prison prior to this event. Pursuant to the decisions of Mills (op cit) and Azzopardi (op cit) the rehabilitation of young offenders assumes far greater importance. To that end I have moderated the factors of general and specific deterrence together with just punishment and denunciation. Indeed in some ways your subject offending reflects your immaturity, rash decision making and impulsivity.
85 In all circumstances I intend to sentence you Ghadami to an immediate period of imprisonment and fix a non-parole period. In respect to you Samimi I consider it is more appropriate in your circumstances that there be a combined order of imprisonment and a community corrections order. Such an order will assist you with your rehabilitation.
(a) in relation to Charge 1 on the Indictment you, Ghadami, are convicted and sentenced to twelve months' imprisonment;
(b) in relation to Charge 2 on the Indictment you, Samimi, are convicted and sentenced to a period of four months;
(c) in relation to Charge 3 on the Indictment you, Samimi, are convicted and sentenced to a period of six months;
(d) in relation to Charge 3 on the Indictment you, Ghadami, are convicted and sentenced to a period of imprisonment of nine months;
(e) in relation to the uplifted summary charge involving assault with a weapon you, Ghadami, are convicted to a period of imprisonment of three months;
(f) in relation to the uplifted summary charge involving committing an indictable offence whilst on bail you, Samimi, will be convicted and sentenced to one month's imprisonment;
(g) in relation to you, Ghadami, six months of the sentence in relation to Charge 3 on the Indictment and two months of the sentence in relation to the summary matter are to be served cumulatively upon each other and upon the sentence imposed in relation to Charge 1 on the Indictment. The total effective sentence is twenty months imprisonment. I order that there be a non-parole period of fourteen months.
(h) in relation to you, Samimi, I direct that three months of the sentence in relation to Charge 2 on the Indictment be served cumulatively with the sentences in relation to Charge 3 on the indictment and the uplifted summary charge of committing an indictable offence whilst on bail. The total effective sentence is ten months' imprisonment.
(i) in relation to you, Samimi, I further order that you be sentenced in relation to Charges 2 and 3 on the indictment to a community correction order for a period of two years. On release from prison, you must attend the Coolaroo Community Correctional Service within two days from being released. In relation to the mandatory terms, there will be the following orders:
(i) pursuant to s48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary for the Department of Justice and Regulation for the duration of the community correction order;
(ii) pursuant to s48D(3)(e) of the Sentencing Act 1991, you are to undergo assessment and treatment, including testing for any mental-health conditions;
(iii) pursuant to s48D(3)(f) of the Sentencing Act 1991, you are to undergo any program that addresses factors relating to your offending behaviour;
(iv) pursuant to s48D(3)(b) of the Sentencing Act 1991, you are to undergo assessment and treatment including testing for alcohol abuse or dependence;
(v) pursuant to s48D(3)(a) of the Sentencing Act 1991, you are to undergo any assessment and treatment, including testing for any drug abuse or dependency;
(j) I declare that in respect of each of you, you have served up to, but not including, this day 210 days in pre-sentence detention and each period should be administratively deducted from the sentence ordered against each of you;
(k) I grant the application made by counsel for the prosecution for a forensic sample in relation to you, Ghadami.
87 Pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty, I would have sentenced you, Ghadami, to a period of thirty months' imprisonment and you, Samimi, to a period of fifteen months' imprisonment, followed by a community correction order.
88 Gentleman, have I got my figures, right? I think so, haven't I.
89 MR MANNING: Yes, Your Honour, can I just clarify the indictable offence whilst on bail for Mr Samimi that one is cumulative.
92 HIS HONOUR: Yes, yes, the only - there is only one part of his sentence that which was cumulated - sorry, yes, only one, I think one of the first sentence I took so many days - so many months of that. Yes, one month, is - - -
93 MR MANNING: Six months, 1 Charge of false imprisonment.
95 MR MANNING: Sorry for the injury Charge, 3 months cumulated from the false imprisonment and one month from the bail for the ten months in total. Thank you.
97 MR MANNING: And Your Honour, the only other matter two matters, firstly I understand that there is a disposal order that has previously been filed with respect to the weapons - - -
98 HIS HONOUR: Yes - sorry I make the note. Yes, I will just amend the - amend what I have ordered. I grant the application made by counsel for the prosecution for a forensic sample order and a disposal order.
100 HIS HONOUR: - - - in relation to both or Mr Ghadami?
105 MR MANNING: Yes, yes, thank you, Your Honour, the only final matter was the email that was sent to Your Honour's associate in relation to the case of (indistinct) was from myself, but Mr Sim did approve of that prior to sending it.
108 HIS HONOUR: Yes, thank you. I think I understood that, thank you. Anything else to raise? It will be necessary for you, Mr Samimi, to sign the CCO to which he's already agreed upon.
109 MS MARCOU: Would Your Honour allow me to approach the dock and - - -
110 HIS HONOUR: Yes, by all means, yes. I decided I wouldn't explain it myself. I think technically I am supposed to but he has already agreed to the CCO when he approached the corrections, but if there is any issue at all.
113 MS MARCOU: I'm sure there won't be Your Honour.
114 HIS HONOUR: No, thank you. (indistinct). Yes, anything else arising ladies and gentlemen.
117 HIS HONOUR: I do apologise - just a changing it this morning, but as it turned out the plea which was going to be given this morning the solicitor had informed her clerk that was this afternoon. So we - morning. Okay, yes, take the prisoners, thank you.
DPP
Ghadami & Samimi [2019] VCC 1146
(2011) 35 VR 43
(2010) 28 VR 288
(2007) 16 VR 269