R v Ahmed [2006] VSCA 200

2 The appellant pleaded guilty to one count of false imprisonment, and one count of rape. He was sentenced to 18 months' imprisonment on the false imprisonment count, and four years on the count of rape. Six months of the false imprisonment sentence was to be cumulative on the rape sentence, resulting in a total effective sentence of four years and six months' imprisonment with a three year non-parole period. He now appeals against that sentence.

Background

3 In May 1998, the appellant and his brother were outside Crown Casino nightclub where they met the complainant, who knew the offender's brother. The complainant returned with the appellant and his brother to their flat in Ascot Vale to obtain or smoke marijuana.

4 The appellant tried to kiss the complainant, who then asked to go home. The appellant agreed to walk the complainant to a nearby service station, so that the complainant could call a taxi.

5 While walking towards the service station, the appellant grabbed the complainant around her left shoulder and placed a sharp edged metal instrument to her rib cage. He forced her into a disused utility room in the block of flats, saying "I'm going to have my way with you bitch." The complainant replied "you don't need the knife, you're in control." It was the appellant's conduct in forcing the complainant into the room that was the subject of the false imprisonment count.

6 Once in the utility room, the appellant told the complainant to remove her skirt, and to put her hands against the wall. She complied because she was frightened. The appellant then moved behind her, and placed his penis inside her vagina, thrusting until ejaculation. The appellant then left the room. This conduct was the basis of the rape count.

7 The complainant went to a nearby service station to make a phone call to her boyfriend. She told the console operator that she had been raped. The police attended, and took the complainant to the Royal Women's Hospital for treatment and examination.

8 The appellant was apprehended a few days later. In his police interview, he denied all allegations, saying that he and the complainant had had consensual intercourse both at his house and in the utility room.

9 In March 1999, the appellant fled to London using a relative's passport. It was only upon his return to Australia in April 2004 that he was apprehended, and committed for trial. The appellant entered a not guilty plea on both counts. After a jury was empanelled the appellant pleaded guilty on both counts.

Grounds of Appeal

10 The appellant now appeals against his sentence on the grounds that -

(1) The sentences on the individual counts and the total effective sentences are manifestly excessive.

(2) The learned sentencing Judge erred in finding that the appellant was not suffering from post traumatic stress disorder and other pre-existing psychiatric difficulties.

(3) The learned sentencing Judge erred in failing to properly take into account in mitigation of sentence the fact that the appellant at the time of sentence was suffering from a serious psychiatric illness.

(4) The learned sentencing Judge erred by finding that the appellant's "present condition is a reaction to ...[his] ...imprisonment".

(5) In light of fresh evidence obtained, and admissible on this appeal, the sentencing discretion is re-opened and the appellant ought be re-sentenced.

Failure to take account of the appellant's psychiatric illness

11 The nub of the appellant's complaint in Grounds 2, 3 and 4 is that the learned sentencing judge gave insufficient weight to a psychological report from Mr Joblin, which said that the appellant was suffering from severe post traumatic stress disorder, caused by his experiences as a young boy in Somalia.

The psychiatric report

12 In his interview with Mr Joblin, a forensic psychologist, the appellant said that members of his family were bashed, raped and abused in Somalia and that from the age of 13 he carried a gun and had the job of keeping members of another tribe from crossing a bridge. He also said he had accidentally shot and killed a friend when he was a boy.

13 Although Mr Joblin's report said that the appellant was suffering from a serious psychiatric condition, the nature of which is discussed below, it expressed the opinion that the appellant's disturbance had little bearing on the commission of the offences some years later.

..."he seems to have quite good recall for events although it has been some seven years since the offending occurred. While he is quite obviously disturbed presently, it is difficult to report that that disturbance had any direct bearing on these offences."

14 Mr Joblin also said that the record of interview conducted some three days after the offences were reported to the police did not indicate the presence of any particular mental disturbance at that time.

15 Although Mr Joblin did not report any connection between the commission of the offences and Mr Ahmed's mental state he said that his symptoms were consistent with a severe and chronic post-traumatic stress disorder.

"His high level of anxiety, depression, self-mutilation, drug use, lack of sleep, hallucinations and not eating are consistent with such a diagnosis."

The appellant had harmed himself while on remand at Port Phillip prison and continued to threaten to kill himself.

Relevance of the psychiatric condition

16 In R. v. Tsiaras[1] the Court of Appeal identified five ways in which a serious psychiatric illness falling short of insanity may be relevant to sentencing.

"First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health."

The appellant's submission

(i) Effect of illness on moral culpability

17 Counsel for the appellant, Mr Boyce, did not rely on a direct causal link between Mr Ahmed's mental state and the offences for which he was sentenced. This was inevitable, in light of the expert evidence. He contended, however, that his Honour had not given sufficient weight to the broad effect of Mr Ahmed's damaging experiences in Somalia, and to his consequent mental condition, in reducing his moral culpability.

18 I do not accept that submission. His Honour referred to the fact that Mr Ahmed came from a country that was severely affected by civil war, that he was separated from his family, that he saw members of his family shot and joined rebel forces when he was very young and that he had been found by his family in a refugee camp, where he was ill with malaria. His Honour also discussed Mr Ahmed's symptoms and referred to Mr Joblin's diagnosis that Mr Ahmed was suffering from a serious and chronic case of post-traumatic stress disorder. Although his Honour did not explicitly state that these matters were relevant in assessing Mr Ahmed's moral culpability, I am satisfied that he took them into account, in a general way, as mitigating factors.

(ii) General and specific deterrence and the burden of imprisonment

19 Counsel for the appellant submitted that his Honour gave no or insufficient weight to the third, fourth and fifth principles in Tsiaras.[2] In particular it was said that his Honour did not take account of the extent to which the appellant's mental illness made his imprisonment more burdensome than would otherwise have been the case, consistently with R. v. Van Boxtel.[3] Nor did he consider whether the appellant's mental condition required that less weight be given to the sentencing objectives of general and specific deterrence. The appellant's counsel contended that his Honour had not considered these matters because he had treated Mr Ahmed's mental condition as "a reaction to his imprisonment" rather than as a pre-existing and severe post-traumatic stress disorder caused by his experiences as a young boy in Somalia.

20 It was submitted that this finding was not open to his Honour, in light of Mr Joblin's expert evidence about the nature of Mr Ahmed's mental condition. The appellant's counsel said that his Honour had erred by giving too much weight to the evidence of Mr Ahmed's sister. This evidence was to the effect that Mr Ahmed did not have any mental problems when he returned to Australia in 2004, although he sometimes had nightmares during which he screamed and jumped out of bed.

21 In response to this contention, counsel for the Crown submitted that his Honour's statement that Mr Ahmed's mental condition was "a reaction to his imprisonment" should be read in light of the preceding and following material in the sentencing remarks. The preceding material referred to the difficulties of managing Mr Ahmed's behaviour in prison. The statement that the offender's mental condition was "a reaction to his imprisonment" was simply a preface to the proposition that it did not cause him to commit the relevant offences, a conclusion supported by Mr Joblin's report. Counsel for the Crown also submitted that his Honour was justified in taking the view that Mr Ahmed's mental condition was largely the result of his imprisonment, in light of his sister's evidence that since his return from England he had been a responsible citizen who had lived with his family without causing any trouble.

Did the sentencing judge take insufficient account of the appellant's mental illness?

22 In his sentencing remarks his Honour made specific reference to Mr Joblin's report that Mr Ahmed was suffering from "severe and chronic post-traumatic stress disorder"; to the problems which prison authorities had had in managing him; to his attempted self-harm; to his need for hospital and psychiatric care and to the fact that he sometimes had aural hallucinations. However his Honour did not explicitly refer to the relevance of general or specific deterrence in sentencing a person suffering from a psychiatric condition, or to the burden of imprisonment upon him. In my view it would have been preferable for his Honour to explain precisely how he took account of the third, fourth and fifth principles in R. v. Tsiaras.[4]

23 Although his Honour failed to mention these matters, I am not convinced that that he failed to consider them, or gave them insufficient weight in sentencing the appellant, in light of the attention he paid to Mr Ahmed's mental condition and his sad history in Somalia. In the context in which it appears, I do not regard his statement that Mr Ahmed's mental condition was "a reaction to his imprisonment" as inconsistent with his Honour taking his mental condition into account in considering these matters. I also think that his Honour was entitled to give some weight to the evidence of Mr Ahmed's sister about the absence of symptoms other than nightmares, before Mr Ahmed was imprisoned. It would have been open to the defence to call Mr Joblin, so that this matter could be further explored. Although the case is close to the line, in my view there is a sufficient basis for inferring that Mr Ahmed's psychiatric condition was appropriately taken into account by his Honour, in reaching his instinctive synthesis as to the sentence to be imposed on the offender.

24 If I am wrong, however, it would be necessary to consider the sentence which this Court would impose if the sentence were to be vitiated by error, and the sentencing discretion re-opened.[5] That sentence must reflect the harsh and brutal nature of the false imprisonment and rape and the effect of these offences on the victim, which is described in his Honour's sentencing remarks. Mitigating factors include the appellant's guilty plea, the fact that he has not offended since these offences were committed, and the effect of his terrible experiences as a child in a war-torn country on his moral culpability.

25 The Court must also take account of the extent and nature of Mr Ahmed's current psychiatric condition, the extent to which that condition should affect the objectives of general and specific deterrence and the burden which imprisonment will impose upon him because of his mental state.

26 Mr Ahmed's mental state is discussed in a report prepared by Dr Ryan for the purpose of these proceedings. Despite Mr Ahmed having some anxiety about these proceedings, the report says that there is nothing to suggest that he has a major mood disorder, though "he has nothing to look forward to" and "feels empty". It says that he has features "consistent with post-traumatic stress disorder, past poly-substance abuse and significant disturbance of affect regulation and impulse control". It cautions that he will need regular psychiatric assessment of "his mood and self-harm ideation" in prison.

27 The report does not support the proposition that specific deterrence should be given little weight because of Mr Ahmed's condition. It should be given some weight in this case because of the offender's poor impulse control, particularly when he has consumed alcohol.

28 Nor is this a case, in my view, where an offender's psychiatric condition makes it inappropriate to give some weight to the objective of general deterrence. In R. v. Yaldiz, Batt, J.A. commented that:

" ... general deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder ... "[6]

29 I would, however, give considerable weight to the fact that Mr Ahmed's severe post-traumatic stress disorder will make imprisonment particularly burdensome for him.[7] Dr Ryan's report of 25 May 2006 comments that "Mr Ahmed has clearly struggled in prison though reports feeling 'alright' at the moment". I note that he has spent time in the Acute Assessment Unit and the psycho-social rehabilitation unit at Port Phillip Prison and was taken to St Vincent's Hospital after swallowing a razor blade some months ago.

30 Taking account of all the factors to which I have alluded, including the appellant's guilty plea, I am not inclined to alter the sentence imposed by the learned sentencing judge, which is well within the range for the serious offences of rape and false imprisonment. This conclusion makes it unnecessary for me to consider the ground of appeal which alleges that the sentence was manifestly excessive.

Fresh evidence

31 The final ground of appeal asserts that fresh evidence relevant to Mr Ahmed's mental condition justified the re-opening of the sentence imposed. In order to succeed on this ground the appellant must show that the extent of his illness or mental condition was not known or not fully appreciated at the time of imposition of the original sentence.[8] The contents of Dr Ryan's report provide only faint support for this submission, which was not strongly put by counsel. Dr Ryan says that Mr Ahmed has repeatedly attracted the attention of prison psychiatric services and that he -

" ... has features consistent with post-traumatic stress disorder, past poly-substance abuse and significant disturbance of affect regulation and impulse control."

32 His report is, if anything, less helpful to the offender than the report of Mr Joblin, although it confirms that Mr Ahmed has continuing symptoms. Since I have taken account of Dr Ryan's report in relation to the exercise of the re-sentencing discretion, it is unnecessary to consider this ground of appeal further.

33 To conclude, even if the sentencing judge erred, I would not impose a different sentence. Accordingly the appeal should be dismissed.

34 I accept the contention of counsel for the appellant that the judge largely rejected Mr Joblin's opinion on the basis of the appellant's sister's evidence. In my view it was open to his Honour to do so, even though, as was submitted, he may have done less than was required of him in expressing the process of reasoning which led him to that conclusion. Despite such deficiencies as there may be in the expression of his Honour's reasons, however, I do not consider that they vitiate the

sentence which was imposed. Like Neave, J.A., therefore, I would dismiss the appeal.

35 I agree, for the reasons given by Neave, J.A. and the learned presiding judge, that the appeal should be dismissed.

36 The formal order of the Court will be that the appeal is dismissed.

[1] [1996] VicRp 26; [1996] 1 V.R. 398 at 400.

[2] Ibid.

[3] [2005] VSCA 175; (2005) 11 V.R. 258 at 259.

[4] A sentencing Judge, as with all Judges, is under a general duty to state the findings of fact and the reasons for decision, with sufficient clarity that the basis for the sentence may be understood, see for example, Pettitt v. Dunkley [1971] 1 N.S.W.L.R. 376.

[5] Such an exercise would take account of the facts and law as they are now; see Director of Public Prosecutions (Cth) v. Gaw [2006] VSCA 51 at [18] per Callaway, J.A.

[6] (1998) 2 V.R. 376 at 381.

[7] R. v. Eliasen (1991) 53 A.Crim.R. 391.

[8] R. v. Eliasen (1991) 53 A.Crim.R. 391; R. v. Rostom [[1996] VicRp 60; 1996] 2 V.R. 97; approved of and applied in R. v. S H [2006] VSCA 83, at [25].