Ms R Khalilizadeh (Offender)
File Number(s): 2017/277777
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Judgment
More than 13 years ago, on 14 January 2006 Marguerite Warn and a number of work colleagues were at a function at the Westin Hotel in Martin Place in the city of Sydney. It had a Pirates of the Caribbean theme. The group was dressed as West Indian cricketers and during the night they went outside into Martin Place to play cricket. Three men, including the offender, approached them at about 9.45 and started intervening in the game of cricket.
The offender, Hayden Jones, who was born in 1986, pushed one of the group named Peter Lotz. Lotz then punched the offender because he thought he was going to be hit by the three members of the group. The other two men began to punch Lotz in the head. Jones then took a cricket bat from a woman who was batting at the time, and he started swinging it at people who were in the group, including the victim. Lotz tried to get the bat off him, but he continued to swing with the bat and chase after other people. As Marguerite was trying to get away with her back to the offender, he deliberately, but recklessly as to committing grievous bodily harm, swung the bat which forcefully hit the left hand side of her face in the vicinity of her left eye socket. She dropped to the ground unconscious. He continued to chase other people while holding the bat before someone took it off him, and then the three of them left in a northerly direction on Pitt Street. An ambulance was called, blood was located on the scene and it was ultimately analysed in 2016 and matched the offender's DNA profile.
Ms Warne was taken to St Vincent's Hospital and found to have a blowout fracture of the floor of the left orbit, an orbital haemorrhage with signs of optic nerve compromise and facial lacerations, including one on the left side of the forehead above the eyebrow, a full thickness laceration, laceration on the left upper eyelid and laceration on the upper and lower eye lids involving the tarsal plates. She underwent surgery and was released on 16 January and made a satisfactory recovery. She then returned to hospital for further surgery on 20 January for the insertion of the implant into the left side of her face to repair the fracture of the orbit.
As a result of the injury she has had ten separate surgical procedures performed and she has ongoing medical problems, including chronic double vision in her left eye, chronic pain in the peri orbital area of her face and radiating down her left arm, with chronic ingrown eyelashes. Photographs in the Crown bundle depict the shocking injuries to the left eye.
The victim impact statement is to be taken into account in the way Basten JA suggested in R v Thomas [2007] NSWCCA 269. Notwithstanding that it is not tested and subject to challenge is a clear indication of the effects of this injury upon Marguerite Warn. I take into account those very significant and long lasting effects upon her as I must, being one of the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.
As I said after the DNA match was carried out the offender was arrested on 12 September 2017. He declined to participate in an interview but he was put in a cell with two undercover operatives who elicited a number of admissions from him, indicating that he knew the people had masks on but he had no idea who they were on the night. He did not remember who he was with, and he just wanted to join the game of cricket. He was banged or punched and then he went ballistic, and he took the bat and he was going wild with the bat and was not looking. He did know the person he hit was a girl and he was after Lotz the person who hit him, but the victim got in the way.
He was originally charged with a more serious offence under s 33 of the Crimes Act 1900. Negotiations occurred in the Local Court where he offered to plead guilty to a charge under s 35(2) of the Crimes Act 1900, which was rejected by the Crown. The offer was repeated and accepted prior to a trial date. The full details of the successful representations made by Ms Harris on behalf of the offender are set out in an affidavit dated 7 May 2019. The Crown concedes that in those circumstances a 25% discount for the utilitarian value of the plea should be applied to any term of imprisonment.
The maximum penalty provided by the law for this offence under s 35(2) is ten years imprisonment, with no standard non-parole period, which is a yardstick to be used in the sentencing process carried out against the background of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
He has been in custody since his arrest on 12 September 2017. He has not served any time in custody before and his record is relatively limited. There are offences of resisting police and goods in custody dealt with under section 10; in 2006 a possess prohibited drug; in 2012 an assault office dealt with by bonds and further offences leading to section 9 bonds of destroy damage property and resisting officers in 2015 and 2016.
He has been diagnosed in recent years with schizophrenia and there is a wealth of medical material to support that diagnosis, notwithstanding that the offender has not given evidence and affirmed the history upon which the diagnoses are made. The diagnoses have been made not only by a forensic psychiatrist retained for the purposes of these proceedings, but also by treating practitioners both in and out of custody.
The reports of forensic psychiatrist Dr Eagle in March 2017 and February 2019 summarise the history in significant detail. The first report was prepared before his arrest and related to some criminal damage charges which led to section 9 bonds in May 2016. At that time he was 30 years old, single and had no children. He had been living at this uncle's house for five years, his parents having been separated some time previously. He had a treating psychiatrist Dr Andrew White at that stage. He was hearing voices and he was on medication and he recognised himself that he had paranoid schizophrenia and there was a history of that illness in his paternal grandmother.
In 2016, he had been taking methamphetamines nearly every day for about two years and also inhaling butane. He was admitted to Concord Mental Health Centre for a month in early 2016 because he was experiencing "voices and stuff." He jumped off a bridge in an attempted of suicide. He had a history of using cannabis from the age of 13 and was smoking up to 20 or 30 cones a day for several years. He had been to secondary school until Year 10 but never had a serious relationship. He was close to his mother, father and his uncle. He believed that his sister also had schizophrenia.
The Concord Mental Health records for the admission in 2015 showed psychotic symptoms including bizarre persecutory delusions and auditory hallucinations associated with increased aggressive behaviours. A psychiatrist saw him for the first time in June 2016 and diagnosed schizophrenia and prescribed the medication.
His father Mr Keith Jones spoke to Dr Eagle and said that his son had been out of control in the period before the earlier offences. He referred to an incident where his son was the victim of a serious assault at age 16, when he was bashed unconscious and robbed and that is the subject of a statement of 15 March 2004 setting out the details of that assault.
His father said that there was a lot of family support and he had been visiting him every second week in custody. He recognised that his son seemed to have lost his "inner self" and he would be welcome to live with either his father or his uncle and I accept that that remains the situation and note he has the support of his parents here in court today.
Dr Eagle says he has few criminogenic factors. He does not have an antisocial personality pattern nor pro-criminal attitudes. He has a number of supportive factors and that his prospects of future offending are favourable or optimistic, given those supportive factors. The doctor prescribed drug and alcohol rehabilitation in a residential facility.
In a second report Dr Eagle set out the information contained in an interview while in custody in November 2018 and had a significant quantity of medical material available at the time of the preparation of that report. The offender was at the time housed in Hamden, a mental health pod, under the care of Dr White. He continued to be on antidepressants and antipsychotic medication.
He said that at the time of this offence he was 19 years old and he was living on his own because his parents had not wanted him anymore at home because he had been smoking weed and drinking alcohol. He said he was just wandering around with his friends looking for things to do and he found himself in Martin Place.
The Justice Health records set out a regular pattern of assessment and treatment over the period from 2015 to 2018. Dr Eagle confirmed the previous diagnosis of schizophrenia. As it was put by counsel for the offender, in a sense he has been deprived of the opportunity of attempting to establish a causal link between any mental health symptoms and the offending in 2006 and that is the reason for the tentative expression of opinion by Dr Eagle on the last page of her report, where she says that his symptoms may have played a role in his substance use disorder, even though the offender did not maintain that symptoms of psychosis played a role in the offence. She acknowledges that symptoms associated with schizophrenia can commence during a prevailed period which may have resulted in impairments in problem solving, attention and overall judgment.
I take account of the handwritten letters of remorse and apology addressed to the Court and to the victim. I accept that the offender is remorseful and disappointed for his actions and that he has sincerely apologised to the victim, the Court and the community for being out of control on that night and for the consequences of this offence.
There is no doubt that his was a very serious assault and the objective seriousness of it must be assessed, as counsel submits, by reference to injuries and the extent of the medical attention required, the duration of the offence, the absence of any premeditation or planning and the recognition of some provocation, due to the fact that he had been just struck himself by Lotz causing a bleeding nose. However, it is appropriate to assess the offence as in the order of mid-range of objective seriousness.
The aggravating factors that are conceded are that the offence was committed without regard for public safety and there was the use of a weapon, being the bat.
A number of mitigating factors are not contested by the Crown, namely the offence was not part of an organised criminal activity, there was a degree of provocation, and the offender had no significant record at the time of the offence, indeed no record at all and was of good character at the time of the offence. He is unlikely to re-offend assuming that he engages in the type of treatment regime that has been recommended by the experts, so that he has good prospects of rehabilitation. He has expressed remorse both in his letters and by his plea of guilty. Notwithstanding, that the offender did not give evidence, the material to which I have referred indicates a clear basis for a finding of schizophrenia.
As to the delay between the commission of the offence and the sentencing process the Crown points firstly to what was said by the Street CJ in R v Todd (1982) 2 NSWLR 517 at 519.
As counsel has submitted, the offender has in a sense been deprived of the opportunity of exploring how his mental illness impacted the commission of the offences. If he had been able to do so he would have been, in accordance with cases such as DPP (Cth) v De La Rosa (2010) 79 NSWLR 1,, a significant lessening of the need to emphasise general and specific deterrence. There is no doubt that a treatment regime such as that suggest by Dr Eagle is likely to be a condition of any grant of parole.
I take account of the limitations of the sentencing statistics to which I have had reference and I also note the outcomes in R v Ryan; R v MacPherson [2006] NSWCCA 394 and R v Formosa [2005] NSWCCA 363 relied upon by counsel for the offender. As the Crown pointed out, in R v Spiers [2008] NSWCCA 107 at [38], Giles J referred to R v Shorten [2005] NSWCCA 106 in support of the proposition that any suspense or uncertainty on the part of an offender as to whether the committing of an offence will ever be detected is not to be taken into account and it is not put he should be in this case.
The Crown acknowledges in the light of statements of principle in R v Wright (1997) 93 A Crim R 48 at 51 and in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177], there are a number of bases upon which this offender is an inappropriate vehicle for general deterrence, and that a custodial sentence may way more heavily upon him. It points to the fact that indications as to whether he is a danger to the community as a result of the diagnosis of schizophrenia are in this case assessed in favour of the offender, there being no record of violence apart from this incident in 2006.
The ultimate submission by Ms Kalilizadeh for the offender is that the time in custody may constitute an appropriate non-parole period. The orders that I make will come close to accepting that proposition.
Although there were no specific submissions directed to the matter, the material to which I have referred indicates the need for an extended period of supervision, and the fact that this is his first time in custody are themselves a proper basis for a finding of special circumstances.
The orders that I make are:
1. The offender is convicted of the offence.
2. I impose a sentence of imprisonment of 3 years, 4 months to commence on 12 September 2017 and expiring on 11 January 2021.
3. I impose a non-parole period of 1 year, 9 months expiring on 11 June 2019.
4. I find special circumstances.
Note - These extempore remarks were revised without access to the court file.
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Decision last updated: 25 July 2019