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[2009] VSC 651
defendant. Convicted and sentenced to seven years' imprisonment with a non-parole period of four years; court declared that but for the guilty plea the sentence would have been approximately eight years with...
The accused, a 33 year old refugee with diagnosed PTSD and major depressive disorder, pleaded guilty to intentionally causing serious injury to his wife by stabbing and cutting her in the presence of their children after bringing a knife to the family home in breach of an intervention order. The court accepted psychiatric evidence that his depressive condition substantially contributed to his conduct and applied Verdins/Tsiaras principles to reduce his moral culpability and moderate deterrence. Balancing aggravating facts (premeditation, breach of order, serious injury, children present) and mitigating matters (mental illness, remorse, guilty plea, no prior convictions, rehabilitation prospects), the court sentenced him to seven years' imprisonment with a four year non-parole period, and recorded a notional eight year/ five year NPP sentence but for the plea. Pre-sentence detention of 378 days was credited (paras 1–17).
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The accused, Halusm Mohammed El Tahir, pleaded guilty to one count of intentionally causing serious injury to his wife, Samya Bashir. On 6 June 2008 he visited his children's childcare and primary school area in breach of an intervention order, having earlier purchased a knife and alcohol that day. He attended the family flat in Carlton, produced a knife, told his wife he did not want her to be the children's mother any more, and in a struggle stabbed her in the back and inflicted deep lacerations to the right hand while the children were present. A neighbour intervened and the attack ceased. The victim suffered a two centimetre stab wound to the back and multiple deep lacerations to the right palm and fingers, causing significant blood loss and nerve and tendon damage; she remained impaired and unable to make a fist at the time of sentencing [3]–[4].
Shortly after the attack the accused presented voluntarily at Carlton Police Station, admitted involvement, and was detained. He was later found in custody with socks tied around his throat, assessed as suicidal, and sent to hospital; a forensic medical officer assessed him as unfit to be interviewed and in need of urgent psychiatric assessment [5]–[6]. Psychiatric evidence from Dr Lester Walton diagnosed chronic post-traumatic stress disorder with a major depressive disorder; the psychiatrist opined the depressive condition contributed substantially to the offending, that the accused was deeply remorseful, and that his prospects for rehabilitation were reasonably favourable [10].
At sentence the Crown did not dispute the applicability of Verdins and Tsiaras principles and Curtain J accepted that the accused's mental functioning had been affected at the time of the offending such that his moral culpability was reduced and sentencing should sensibly moderate deterrence. The judge balanced the serious aggravating features of the offending against mitigating matters including genuine remorse, co‑operation, an early guilty plea, no prior convictions, traumatic refugee history and psychiatric illness. The accused was sentenced to seven years' imprisonment with a non‑parole period of four years, with a declaration under s 6AAA of the Sentencing Act that but for the guilty plea the sentence would have been in the vicinity of eight years with a five year non‑parole period, and 378 days of pre‑sentence detention was recorded [11], [13]–[17].
Two central considerations drove the decision.
First, the court recognised the inherent gravity of the offence. Intentionally causing serious injury attracts a maximum penalty of 20 years, reflecting Parliament's view of the seriousness of the crime; the circumstances here involved premeditation (the accused purchased and took a knife with him), a breach of an intervention order, violence in the presence of the children, prior threats, and significant physical injury including nerve and tendon damage to the victim's dominant hand. Those factors required a substantial sentence to satisfy punishment, denunciation and deterrence principles [12]–[14].
Second, the court accepted reliable psychiatric material indicating the accused suffered chronic PTSD with a major depressive disorder and that the depressive disorder contributed substantially to his misconduct. The accused's immediate post‑offence behaviour, an attempted suicide, assessment by a forensic officer as depressed and unfit for interview, and subsequent psychiatric treatment in custody, supported the psychiatrist's opinion. Applying the sentencing principles discussed in Verdins and Tsiaras, Curtain J treated the mental impairment as reducing the accused's moral culpability and therefore requiring sensible moderation of deterrence in the sentencing calculus [10]–[11].
The judge then performed the usual balancing exercise: giving weight to mitigation (remorse, guilty plea, co‑operation, no prior convictions, prospects for rehabilitation, traumatic life history and the greater onerousness of imprisonment for a refugee with PTSD) but not allowing those matters to obscure the offence's seriousness. The net result was a substantial, but not maximum, sentence: seven years' imprisonment, NPP four years, with notation of what would have been imposed absent the plea [15]–[17].
The judgment expressly invokes the principles of Verdins and Tsiaras as applicable authorities for the proposition that where an offender's mental functioning substantially contributes to their offending, moral culpability can be reduced and sentencing may sensibly moderate deterrence [11]. Curtain J does not recite or restate the full doctrinal detail of those authorities, but applies their principles to the psychiatric findings in this case.
This decision sits within established Australian sentencing practice: psychiatric impairment that diminishes moral culpability is a recognised mitigating element, to be assessed with care and weighed against aggravating features. The court's approach follows that pattern by accepting psychiatric opinion, observing objective indicia (suicidality, behaviour after the offence), and then adjusting deterrence considerations accordingly.
The judgment does not attempt to modify or expand the doctrinal boundaries of Verdins/Tsiaras, it simply applies their principles to the facts at hand. The decision therefore reinforces rather than changes existing law: mental disorder, where sufficiently causative, can justify moderation of sentence without displacing the need to account for the offence's inherent seriousness [11], [12], [14]–[17].
"I accept that your mental functioning was affected at the time you committed this offence so that your moral culpability for the offence is reduced and it is appropriate to sensibly moderate considerations of general and specific deterrence." [11]
"The maximum penalty for the offence of intentionally causing serious injury is 20 years' imprisonment. Thus Parliament regards it as a serious offence ..." [12]
"You had developed an increasing dependence on alcohol... I accept that it is likely that you were depressed at the time you committed this offence as you were suicidal and assessed as depressed in the hours afterwards." [14]
"I take into account your genuine and deep remorse ... you surrendered to the police ... you admitted your involvement ... I take into account also your plea of guilty and give you a discount for it." [16]
"Without in any way diminishing the nature and gravity of the offence here committed, you are convicted and sentenced to seven years' imprisonment with a non-parole period of four years." [17]
This judgment is a clear example of sentencing where:
Where those elements co‑exist, the reasoning in this decision supports moderating general and specific deterrence and calibrating the sentence lower than it otherwise might have been even though the offence remains serious.
This judgment itself does not record any subsequent appellate consideration or later treatment. The judge applied Verdins and Tsiaras as existing authority, but Curtain J did not purport to create new legal tests. Therefore, from the face of this judgment, one cannot identify any later judicial treatment of R v El Tahir. Any analysis of subsequent treatment would require a search of appellate and later sentencing authority beyond the text of this decision.
Several questions remain for future courts to consider or clarify, which are evident from the judgment's limits:
Concluding note: The judgment illustrates orthodox sentencing practice in serious violent offending where credible psychiatric impairment exists. It is a careful balancing exercise rather than a doctrinal innovation; practitioners should rely on the recorded factual findings and the court's explicit application of Verdins/Tsiaras when arguing mitigation in comparable fact patterns, but must be ready to address the open evidentiary and weighting issues identified above.
INTENTIONALLY CAUSING SERIOUS INJURY - Victim of the offence spouse - Guilty plea - No prior convictions - Remorse - Early life as a refugee traumatic prior to coming to Australia - Post traumatic stress disorder - Principles of Verdins and Tsiaras applied - TES: 7 years with a non-parole period of 4 years.
1 Halusm Mohammed El Tahir, you have pleaded guilty to one count of intentionally causing serious injury to Samya Bashir. No prior convictions are alleged against you.
2 Samya Bashir is your wife. You and she met and married in a refugee camp in Somalia in the year 2000. You both came to Australia with your son, Ziyad, in June 2003, settling in Adelaide. The marriage encountered difficulties and your wife, then six months pregnant, and Ziyad, came to live in Melbourne, eventually residing in the Housing Commission flats in Carlton. Your wife gave birth to your second son, Tofick, and in the latter part of 2006 you came to Melbourne and eventually you, your wife and children resumed living together. The marriage, nonetheless, continued to encounter difficulties. It appears that you were drinking and at one point threatened your wife with violence. An interim intervention order was obtained on 14 April 2008 and, with your consent, a final order was made one month later. As a consequence, you vacated the flat, being the family home. You then lived in your car and, on 31 May 2008, after the car was written off in an accident in which you were injured you then resorted to sleeping in a park. It is in these circumstances that, one week later, you committed this offence.
3 On Friday 6 June 2008, you attended Tofick's childcare centre and there spoke to him. You were observed by one staff member to be affected by alcohol. You left the centre and went to St Brigid's Primary School where your son, Ziyad, is a pupil. You spoke to the teacher and left, having arranged a parent/teacher meeting at a later date. All of this was in contravention of the intervention order and, although apparently being affected by alcohol, other than that there was nothing untoward about your behaviour. However, your wife was alerted to the fact that you had been seen in the vicinity of the school and childcare centre and so she went first to the childcare centre to take Tofick away. A staff member then drove her to St Brigid's where Ziyad was collected, and then they were all driven home to the flat in Carlton. When Ms Bashir got to the flat, she unlocked the door, put the children inside and turned around only to see you standing there. You told her that you did not want her to be the children's mother any more, which Ms Bashir said, because of your earlier threats, made her very scared. You and she pulled at the front door and eventually you pulled Ms Bashir and the children out of the flat. You grabbed Ms Bashir at the back of her collar and, at this point, she felt something in her back. You continued saying that you did not want her to be the children's mother and at this point Ms Bashir saw that you had a knife in your hand. She grabbed your hand and a struggle ensued, during the course of which Ms Bashir's right hand was badly cut. The struggle spilled out into the courtyard and the children were also pulling and pushing you and yelling at you to stop. It appears at this point you dropped the knife and started punching and kicking Ms Bashir, and it was at this point that a neighbour came out and reprimanded you in Arabic, which brought the attack to an end. You left and the neighbour then took Ms Bashir into her unit and the children went into the home of another neighbour for safekeeping.
4 Samya Bashir was taken to the Royal Melbourne Hospital and diagnosed with a two centimetre stab wound to the back and multiple deep lacerations to the right palm, index, middle and ring fingers of the right hand, which caused significant blood loss and nerve and tendon damage. Ms Bashir underwent surgery and was discharged on 10 June. As she is right handed, the doctors describe the injury to the hand as having a significant impact and, indeed, in the victim impact statement made on 15 June of this year, Ms Bashir reports that she is still unable to make a fist with that hand. Although the injuries to the hand are the most significant injuries sustained by Ms Bashir, the Crown relies upon the combination of injuries as constituting the serious injury inflicted in circumstances which no doubt were very frightening to Ms Bashir and, indeed, the children.
5 A very short time after you attacked your wife, you presented yourself at the Carlton Police Station saying, "I am a criminal. I have done something criminal. I am bad". You remained at the police station voluntarily while inquiries were made and then you were briefly interviewed, during which you admitted kicking your wife. You were placed in the cells. Later that evening, you were found there virtually unconscious, with your socks tied around your throat. The police cut the socks from your neck, which appeared to revive you, and you were taken to St Vincent's Hospital. Despite being assessed as suicidal, you were released back into police custody.
6 At midnight that night, a forensic medical officer, Dr Debra Bernstein, assessed you as unfit to be interviewed and in need of fairly urgent formal psychiatric assessment. However, you were conveyed to the Prahran Police Station and interviewed at 12.40 pm on the Saturday. In that interview, you admitted your responsibility for your actions, although you placed your actions in the context of what you perceived was your wife's association with another man and your concern for your children. You said you had seen your wife coming from this man's house with your children and that you had taken the knife with you with the intention only of scaring your wife and that you were concerned that this man may have been present and may have threatened you. Neither contention is supported by the evidence, your wife and children having been driven to the flat by the childcare worker, and only your wife and children were present when you produced the knife. Therefore, I do not accept your answers to the police in that regard. Nonetheless, you accepted your responsibility for your conduct and you acknowledged that what you did was wrong.
7 Further police inquiries ascertained that you had purchased a knife and what appeared to have been a small bottle of scotch from your local supermarket earlier that afternoon. So at the very least your taking the knife to the flat in Carlton is indicative of a degree of premeditation and planning and I acknowledge that by your plea, despite your answers in your interview, you have admitted each of the elements of the crime of intentionally causing serious injury.
8 You are 33 years old and have no prior convictions. You were born in the Sudan, completed secondary school, which studies included learning English, and then, at the age of 17, conscripted into military service. Your country has been torn by civil war and your brother and father lost their lives in military service. It appears that you and others were able to escape and took a small boat, eventually coming to shore in Jibuti, a small French colony. You were held in prison for three months accused of being a spy and suffered assaults and depravation, and eventually deported to Somalia, where you were placed in an immigration detention centre for two months and, upon being granted asylum, you then lived in a refugee camp for 12 months and met your wife during this time. After the birth of your son, Ziyad, you were told that you were accepted into Australia and it is in that way that you came to this country.
9 Since coming to Australia, you have participated in an English language course and have been gainfully employed. You have completed a welding course, trained in security and, at the time of this offence, you were working as a welder and had been sending home $200 per month to support your extended family and that of your wife. You have also been industrious while on remand, working as a billet and completing various courses as evidenced by Exhibit 2.
10 A report by Dr Lester Walton, psychiatrist, was tendered in evidence as Exhibit 1. He notes that as at September 2008, while in custody, you were seeing a psychiatrist fortnightly and psychiatric nurses twice a week. You have also been placed on medication. Dr Walton has diagnosed you as suffering from chronic post-traumatic stress disorder, the most prominent feature being a major depressive disorder, the catalyst being the breakdown of your marriage. In Dr Walton's opinion, you are in need of psychiatric treatment, including long-term therapy to address the psychological damage caused by your experiences prior to coming to Australia and he opined that as a refugee from a war torn country where your only surviving immediate family member is your mother and where you remain in the grip of a major depressive disorder, you will experience imprisonment more onerously than would otherwise be the case. In Dr Walton's opinion, you are deeply remorseful and that, as your conduct appears to be out of character, your prospects for rehabilitation appear to him to be "reasonably favourable".
11 Your counsel has submitted, and it is not disputed by the Crown, that the principles of Verdins and Tsiaras are here applicable and I propose to sentence you on that basis. This is so because Dr Walton has diagnosed you as suffering a major depressive disorder and, in his opinion, your depressive condition contributed substantially to your misconduct. That opinion is supported by the fact that in the hours after you committed this offence you attempted to commit suicide. You were assessed at St. Vincent's Hospital as being suicidal and you were observed by the forensic officer, Dr Bernstein, to be depressed and you were assessed by her as unfit to be interviewed and in need of urgent formal psychiatric assessment. Accordingly, I accept that your mental functioning was affected at the time you committed this offence so that your moral culpability for the offence is reduced and it is appropriate to sensibly moderate considerations of general and specific deterrence.
12 The maximum penalty for the offence of intentionally causing serious injury is 20 years' imprisonment. Thus Parliament regards it as a serious offence and in sentencing you I must take into account the nature and gravity of the offence here committed and your role in it.
13 By your own admission, you had consumed alcohol and purchased a knife, which you took with you to the childcare centre, the primary school and to the flat. So to that extent the use of the knife was premeditated, although you said your intention was only to scare Samya. Having said that you did not want your wife to be the children's mother any more, you attacked her with the knife, stabbing her in the back and cutting her on the right hand as she sought to defend herself. You kicked her, punched her and pulled out some of her hair, all this in the presence of your two children and in circumstances which were in breach of the intervention order and where you had previously threatened violence to your wife.
14 The victim impact statement tendered on behalf of your wife speaks of the physical, psychological, emotional and social consequences to her and the two boys which have not resolved with the passage of time. It follows that this offence is here committed to a significant degree. However, the circumstances surrounding its commission are also relevant and significant. You had developed an increasing dependence on alcohol. Your marriage had broken down, you were rendered homeless as a consequence. You then lived in your car. Your car was written off in an accident where you drove whilst under the influence of alcohol and in which you suffered injury. So that you lost your accommodation, such as it was, and then lived in a park. Yet you were still able to hold down your job while homeless and injured. Your perception was that your wife had a boyfriend, although in her statement she denies this and this denial is perhaps corroborated by the fact that she also has an intervention order out against that man. I accept that it is likely that you were depressed at the time you committed this offence as you were suicidal and assessed as depressed in the hours afterwards, and it appears that you were suffering post-traumatic stress arising from your life experiences before coming to Australia and you were suffering depression. It appears also that when you spoke to the teacher at St Brigid's school, you were concerned for the welfare of Ziyad, so that all of this may be said to be factors which contributed to your offending conduct on that day and insofar as they relate to your mental condition, may be said to have affected your judgment and, consequently, your moral responsibility for your conduct.
15 Any sentence I impose must also serve to punish you and act in denunciation of your conduct and signal to like-minded members of the community that such conduct will be met with condign punishment. The sentence must also seek to specifically deter you from reoffending in a like manner, although I accept that these considerations must be sensibly moderated, and that given that you are otherwise a hard-working person of good character and that you have no prior convictions, it may be said that this was out of character for you and you are unlikely to reoffend in the future. Thus, your prospects for rehabilitation are favourable.
16 I take into account your genuine and deep remorse as expressed to Dr Walton, the fact that you surrendered to the police within a very short time of committing the offence and you co-operated with them. You admitted your involvement and took full responsibility for it. I take into account also your plea of guilty and give you a discount for it, and I take into account that you indicated your preparedness to plead guilty to this offence in September 2008, although that offer was rejected on the factual basis sought to be relied upon, and that you pleaded guilty at the committal, obviating the need for a hearing, and that your wife and possibly your children were spared from giving evidence at the committal and at the trial. Further, by your plea the community has been saved the cost of a trial.
17 In sentencing you, I take into account your age and the traumatic circumstances of your life before coming to Australia, that you have been hard-working since coming here and, indeed, you have been industrious while on remand. I take into account also that you suffer from post-traumatic stress disorder and that you will require long-term psychiatric treatment to address your traumatic background. I take into account also that you have been diagnosed as suffering a major depressive disorder and that you were suffering such a disorder at the time you committed this offence. I take into account also that you are genuinely remorseful, that you co-operated with the authorities, that your prospects for rehabilitation are favourable, that you have no prior convictions and that this is the first time that you have been before the courts. I also take into account that you have received no visits while in custody and you remain estranged from your wife and children and that you are therefore somewhat isolated and will bear the burden of imprisonment more onerously than the general prison population. In short, I take into account all matters which go in your favour and, applying the principles of Verdins and Tsiaras' cases, without in any way diminishing the nature and gravity of the offence here committed, you are convicted and sentenced to seven years' imprisonment with a non-parole period of four years. I declare, pursuant to s 6AAA of the Sentencing Act, that but for the plea of guilty, which would, of course, affect other sentencing considerations, in particular that a trial would have necessitated your wife and possibly your children giving evidence, I would have imposed a sentence in the vicinity of eight years with a non-parole period of five years. I declare that you have already served by way of pre-sentence detention a period of 378 days.
18 Do you understand the sentence I have imposed upon you, Mr El Tahir?
19 I have signed the disposal orders and I have made an order requiring you to provide a scraping from your mouth for the purposes of the DNA database, Mr El Tahir, and I am obliged to tell you that the police are entitled to use reasonable force to obtain such sample, so you can readily see that the better course is to cooperate with that procedure.
20 I order that my declaration as to the pre-sentence detention, that of 378 days, be noted in the records of the Court.
R
El Tahir [2009] VSC 651
Convicted and sentenced to seven years' imprisonment with a non-parole period of four years; court declared that but for the guilty plea the sentence would have been approximately eight years with a non-parole period of five years; pre-sentence detention of 378 days noted (para 17).