DPP v Rehal [2013] VCC 814

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:

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?

50 HIS HONOUR: Mr Martini, are there any matters arising out of that?

52 HIS HONOUR: Thank you. Would you remove, Mr Rehal, please?