Abdelmalak v The The Queen

[2022] NSWDC 569

District Court

New South Wales

Medium Neutral Citation:	Abdelmalak v R [2022] NSWDC 569
Hearing dates:	3 August 2022
Date of orders:	3 August 2022
Decision date:	03 August 2022
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See pars [26]-[28].
Catchwords:	CRIME – APPEAL – SEVERITY OF SENTENCE – Period of imprisonment issued by Magistrate sitting in the Local Court – Course of offending conduct.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Sentence
Parties:	Appellant – Mina Abdelmalak R - Crown
Representation:	Appellant – Srour R – Gunter, D.
File Number(s):	2021/00298712; 2022/00056740; 2022/00057645; 2022/00087394
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: This is an appeal against the severity of a sentence passed by Magistrate Stewart sitting in the Local Court at Sutherland on 2 May 2022. The Appellant appeared before his Honour on five substantive charges.

2. The first was that on 20 July 2021, he drove a vehicle whilst under the influence of drugs. This was a subsequent offence. The maximum penalty for that crime in the Local Court is imprisonment for two years. His Honour was to impose an aggregate sentence. The indicative sentence for that offence was said by his Honour to be nine months.

3. The second offence was of the same nature, that was alleged to have occurred on 18 October 2021. For that offence, his Honour again fixed an indicative sentence of nine months.

4. The third offence was a common assault on a former domestic partner, Ms Susanna Carter. The assault occurred on 26 February 2022. At the time, the Appellant was 23 years old. His Honour fixed an indicative sentence of eight months.

5. The final two offences occurred on 27 March 2022 and, again, involved Ms Susanna Carter. The first offence was an allegation of stalking or intimidation intending to cause Susanna Carter to fear physical or mental harm. The second offence was contravening a prohibition in an Apprehended Domestic Violence Order (“ADVO”). For the first of those two offences, his Honour fixed an indicative sentence of six months, and for the second, an indicative sentence of four months.

6. The total of his Honour’s indicative sentences amounts to 36 months, or a total of three years. His Honour fixed a head sentence of 15 months and imposed a non-parole period of eight months.

7. The Appellant’s antecedents contained in the facts sheet for the first of the five offences with which I am concerned, are:

“The Accused has one prior traffic conviction for ‘drive motor vehicle whilst licence suspended’ dating back to June 2016. In addition to this, the Accused has also received a traffic infringement notice for drive vehicle with prescribed illicit drug present in oral fluid in December 2020.

Furthermore, the Accused has only had a licence in New South Wales since May 2015. During this time, he has accumulated 46 demerit points and been subject [to] several suspensions, disqualifications and refusals. The Accused evidently has no regard for road safety and his requirements to hold a licence, and this is clearly shown by the latest incident where he was driving with a cocktail of drugs, causing him to crash on a major Sydney motorway, which had potential to be catastrophic. Police hold serious concerns for the safety of the public should the Accused be permitted to continue driving for the foreseeable future.”

I have consulted the accused’s driving history and his criminal record and the averments of fact made in that statement appear to me to be correct.

8. On Tuesday 20 July 2021, the Appellant was the driver of a silver Kia Cerato sedan. He was travelling east along the M5 motorway at Prestons. The Appellant lost consciousness, veered from the lanes of travel onto the shoulder of the motorway, and collided with a concrete barrier which brought his vehicle to a stop.

9. Staff attached to the M5 motorway response crew arrived at the scene of this crash and attempted to communicate with the Appellant with no success. Police and ambulance were called to the scene. Police arrived at the scene a short time later and observed the front nearside of the Appellant’s vehicle to have collided with the left-hand concrete barrier in the breakdown lane. All the doors of the vehicle were locked and the attempt by police to wake the Appellant by banging on the windows was unsuccessful. They had fears that the Appellant may have lost consciousness, and therefore they smashed the rear offside passenger window, unlocking the rear door before unlocking the driver’s door.

10. Initial attempts to bring the Appellant from a state of unconsciousness to consciousness were unsuccessful. Eventually he gained consciousness and became initially hostile in a slight fashion towards police, but that is explicable by being suddenly woken up.

11. The facts sheet continues thus:

“Overall, the Accused’s behaviour, including being unconscious or asleep whilst in the driver’s seat, failing to wake up to loud banging or physical movement from Police, as well as his pinpoint pupils and glazed eyes, which were constantly wandering and bouncing around whilst dealing with Police and his extreme unsteadiness on his feet. The Accused’s attitude was poor and it appeared that he was unaware of what had occurred, asking Police in a rhetorical manner ‘what happened’. An opinion was subsequently formed that the Accused was likely to be under the influence of an illicit drug.”

12. The police arrested the Appellant and took him to Liverpool Hospital. Blood testing there indicated that he was affected by a mixture of drugs, and a police pharmacist and forensic pharmacologist ascertained that the Appellant was, at the time of the driving, under the combined influence of cocaine and Gamma-hydroxybutyrate (“GHB”) to the extent that his driving ability was significantly impaired.

13. The second offence of the same nature occurred on 18 October 2021 and is the second of the offences that was dealt with by the learned Magistrate. On this occasion at 6.30am on Monday 18 October 2021, the Appellant was driving a white Toyota Hilux in an easterly direction along Morgan Street, Beverly Hills. After passing Colwell Street, the vehicle veered left and collided with a white Toyota Hiace van. That caused that van to be pushed into a second white Toyota Hiace van. The Appellant then left his vehicle. Members of the public contacted the police and called also for an ambulance.

14. The ambulance arrived first. Ambulance officers observed the Appellant to be very sluggish and his behaviour was erratic. The ambulance officers formed the view that the Appellant might be under the influence of some substance.

15. When police arrived, they observed his eyes to be drooping heavily and when he spoke, his speech was slow and slurred. During the period of time when the police were talking to the Appellant, the Appellant was staggering on the footpath and was unsteady on his feet. The police also observed that his eyes were enlarged and glazed. His fine motor skills were slow and clumsy when he sought to count out a sum of money in bank notes.

16. He was arrested and blood was taken at the St. George Hospital. It was ascertained that the Appellant was driving under the combined influence of the rebound sedation of cocaine withdrawal and, again, of GHB to the extent that his driving ability had been impaired.

17. The learned Magistrate gave indicative sentences of nine months for each of those events. I would give the first event a lesser indicative sentence, and clearly the second event required a higher indicative sentence because it was a subsequent offence in a relatively short period of time and involved property damage. I would reduce the indicative sentence for the first offence to six months.

18. The common assault upon Susanna Carter attested to in the Facts Sheet was serious and the conduct of the Appellant was, to put it bluntly, appalling. I agree with the learned Magistrate’s indicative sentence of eight months.

19. The final two offences were the result of the Appellant’s turning up at Ms Carter’s home on Sunday 27 March 2022 at 5.45pm. He knocked on her door and asked for a cigarette lighter. Clearly Ms Carter answered the door, but she refused his request and refused him entry to her home. The Appellant then started calling her vulgar names and commenced kicking the flyscreen door, causing damage to it. The damage was estimated by the police to amount to $300.

20. Ms Carter told the Appellant through the wire flyscreen door that she was calling the police, and that caused the Appellant to make a threat against her. She became extremely distraught. She ran to the back of her house and contacted the police, and that caused the Appellant to leave the premises.

21. Clearly, this was an event of intimidation and a breach of the ADVO, but to assign to it a total indicative term of ten months is far in excess of what was required, bearing in mind the very serious common assault committed on 26 February 2022. I would reduce each indicative sentence for the final two offences to three months each. The total of my indicative sentences is 29 months compared to the Magistrate’s 36 months. That indicates a reduction of some 20%. Applying the same ratio between the sum of the indicative sentences and the head sentence, the new head sentence should be 12 months and, again, applying a similar ratio between the head sentence and the non-parole period, the non-parole period should be seven months.

22. For those reasons, in lieu of that sentence, I impose the following aggregate sentence. I set a non-parole period of seven months commencing on 27 March 2022 and expiring on 26 October 2022. I impose a further period of imprisonment of five months to commence upon the expiration of the non-parole period and expiring on 26 March 2023. The total sentence is therefore one year comprising the non-parole period and the balance of the sentence.

23. I have found special circumstances. You are eligible to be considered for release on parole at the expiration of the non-parole period.

24. Indicative sentences for the offences are as follows:

1. H83768212 Sequence 1: 6 months;

2. H86889328 Sequence 1: 9 months;

3. H86320304 Sequence 1: 8 months;

4. H32449598 Sequence 1: 3 months; and

5. H32449598 Sequence 2: 3 months.

25. Any other orders sought?

SROUR: No.

GUNTER: Not by the Crown.

HIS HONOUR: Thank you.

Decision last updated: 18 November 2022