Abdelmeseeh v The Queen

[2016] NSWCCA 312

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Abdelmeseeh v R [2016] NSWCCA 312
Hearing dates:	1 December 2016
Decision date:	16 December 2016
Before:	Meagher JA at [1] Johnson J at [2] Rothman J at [67]
Decision:	Leave to appeal against sentence refused.
Catchwords:	CRIMINAL LAW – appeal against sentence –offence of assault occasioning actual bodily harm in company contrary to s 59(2) Crimes Act 1900 – applicant targets victim on public transport – victim attacked in street after leaving a train – victim punched in face and kicked and punched while on ground – serious offence under s.59(2) – applicant on parole at time of offence – whether sentencing judge failed to give effect to finding of special circumstances and/or failed to correctly apply the totality principle – whether sentence imposed was otherwise manifestly excessive – no error demonstrated – leave to appeal against sentence refused
Legislation Cited:	Crimes Act 1900
Cases Cited:	House v The King [1936] HCA 40; 55 CLR 499 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 Mill v The Queen [1988] HCA 70; 166 CLR 59 Quayle v R [2010] NSWCCA 16 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 RR v R [2011] NSWCCA 235; 216 A Crim R 489 Ruttley v R [2010] NSWCCA 118 Shortland v R [2013] NSWCCA 4; 224 A Crim R 486 Sorensen v R [2016] NSWCCA 54 Spark v R [2012] NSWCCA 140
Category:	Principal judgment
Parties:	Peter Abdelmeseeh (Applicant) Regina (Respondent)
Representation:	Counsel: Mr S Corish (Applicant) Ms S Dowling SC (Respondent)   Solicitors: Trimmer Criminal Defence Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/46936
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 2 May 2016 Before: His Honour Acting Judge Hosking SC File Number(s): 2015/46936

Judgment

1. MEAGHER JA: I agree with Johnson J that leave to appeal should be refused.

2. JOHNSON J: The Applicant, Peter Abdelmeseeh, seeks leave to appeal against sentence imposed in the Sydney District Court on 2 May 2016 with respect to an offence of assault occasioning actual bodily harm in company contrary to s.59(2) Crimes Act 1900.

3. Following a plea of guilty, the Applicant was sentenced to imprisonment comprising a non-parole period of 18 months commencing on 6 September 2015 and expiring on 5 March 2017, with a balance of term of 18 months commencing on 6 March 2017 and expiring on 5 September 2018.

4. The maximum penalty for an offence under s.59(2) Crimes Act 1900 is imprisonment for seven years. There is no standard non-parole period for this offence.

Facts of Offence

5. A Statement of Agreed Facts was tendered at the sentencing hearing which revealed the following.

6. At about 7.02 pm on Tuesday, 25 November 2014, the victim, William Louie (aged 48 years), boarded a train at Central Railway Station bound for Arncliffe. Mr Louie entered the first carriage behind the driver and stood in the vestibule area of the train. At this time, Mr Louie was holding a large black duffle bag which contained his personal belongings.

7. At Sydenham Railway Station, Mr Louie observed the Applicant (then aged 21 years) and his 17-year old brother enter the carriage. The young males sat in the carriage in a seat facing Mr Louie and stared at him for the duration of the journey.

8. CCTV footage obtained from Arncliffe Railway Station depicted the Applicant and his brother. Each had a distinctive mullet-style haircut.

9. The train stopped at Arncliffe Railway Station at about 7.17 pm and Mr Louie disembarked from it. As he did this, he noticed the Applicant and his brother following him off the train and up the station steps. As he swiped his Opal Card, Mr Louie noticed the two men hovering near him, apparently waiting for him. Mr Louie walked past them and descended the station steps. Mr Louie stopped at the post office to check his post box and noticed that the two men were still in the vicinity.

10. Mr Louie looked around and could not see the two men. He walked back down Firth Street to the bus stop where he waited for a bus to take him to Turrella. Whilst he was waiting, he noticed the Applicant approach where he was standing.

11. When the Applicant was about three metres away, Mr Louie started to cross the road to get away from him. The Applicant punched Mr Louie with a right-closed fist to the left side of his face, causing immediate pain to his cheek. At this time, the Applicant’s brother approached and punched Mr Louie on the right cheek. The victim fell to the ground and the two men hit him on the face and kicked him on the face and back.

12. Mr Louie called out in pain and this attracted the attention of persons in the street. The Applicant and his brother fled down Firth Street and jumped the fence into the railway station. They ran across the railway lines and over the opposite fence.

13. Ambulance paramedics soon arrived and transported Mr Louie to St George Hospital where he was treated for his injuries. As a result of the attack, Mr Louie had bruising to his head, abrasions, dried blood from a bleeding nose and swelling to his upper lip.

14. On the morning of 11 December 2014, a search warrant was executed at a Kogarah unit where the Applicant and his younger brother resided. During the execution of this warrant, clothing was seized which was identical to that depicted on the assailants in the CCTV footage from Arncliffe Railway Station.

15. On the afternoon of 14 February 2015, the Applicant was observed walking with another male in Blakehurst. The Applicant was arrested and taken to St George Police Station. He participated in an electronically recorded interview where he told police he went to Arncliffe Railway Station on 25 November 2014 with his brother, but denied committing an offence.

16. As will be seen, the Applicant was on parole at the time of this offence. He remained in custody from the time of his arrest on 14 February 2015, serving the balance of his parole from that day until 5 September 2015.

17. The Applicant’s younger brother was sentenced in the Parramatta Children’s Court for his involvement in this incident, following his plea of guilty to a charge of aggravated assault with intent to rob contrary to s.95(1) Crimes Act 1900. He was sentenced to a control order for six months, with a non-parole period of three months commencing on 26 June 2015.

The Applicant’s Subjective Circumstances

18. The Applicant was born in October 1993. He was 21 years old at the time of the offence and 22 years at the time of sentence.

19. The Applicant has a prior criminal history. In 2012, he was sentenced in the Children’s Court to probation for assault with intent to rob and robbery whilst armed with an offensive weapon.

20. In 2012, he was placed on a good behaviour bond in Burwood Local Court for possession of a prohibited drug. Later in 2012, he was fined for offences of possession of a prohibited drug and having custody of a knife in a public place. He was placed on a bond in October 2012 at the Parramatta Local Court for cultivating a prohibited plant.

21. In April 2013, the Applicant was sentenced in the Local Court by way of a 12-month good behaviour bond for contravening an apprehended violence order and failing to appear in accordance with his bail undertaking.

22. In September 2014, the Applicant was sentenced in the Parramatta District Court for offences of entering a building with intent to commit an indictable offence and stalking or intimidation, to imprisonment for two years from 28 August 2013 with a non-parole period of one year. The Applicant was released on parole on 2 October 2014.

23. The Applicant was soon in breach of his parole conditions. On 22 January 2015, a breach report issued recommending that his parole be revoked. The breaches included failure of the Applicant to attend scheduled appointments at Community Corrections on three occasions in November 2014 and January 2015, positive tests for cannabis on two occasions in December 2014 and failure to attend appointments with a psychologist in January 2015. An order was made on 5 February 2015 revoking the Applicant’s parole. As mentioned, the Applicant was arrested on 14 February 2015 and served the balance of his parole until 5 September 2015.

24. A report of Mr Tim Watson-Munro, psychologist, dated 21 April 2016 was tendered for the Applicant on sentence, together with references and a letter from the Applicant.

25. The Applicant did not give evidence at the sentencing hearing.

The Grounds of Appeal

26. By Notice of Application for Leave to Appeal filed on 11 October 2016, the Applicant relies upon the following grounds of appeal:

1. 1(a)   Failure to give full and proper effect to the finding of special circumstances; and/or

2. 1(b)   failure to correctly apply the totality principle.

3. 2.   The sentence imposed was otherwise manifestly excessive.

Some Findings of the Sentencing Judge

27. The sentencing Judge delivered ex tempore sentencing remarks following the sentencing hearing on 2 May 2016.

28. His Honour was well aware that the Applicant was on parole at the time of the commission of this offence, and that he had served a period of imprisonment by way of balance of parole. His Honour said (ROS1-2):

“At the time of the commission of this offence, and at the time of the offender's arrest, he was on parole for other matters, being entering a building or land with an intent to commit an indictable offence, and stalking or intimidation intending fear or physical harm for which he had been sentence to an aggregate sentence in the District Court at Parramatta for two years with a non-parole period of one year.

Accordingly, his parole was revoked on 5 February 2015, and following his arrest and up until 6 September 2015, the offender was in custody, parole revoked in relation to his earlier convictions. He has been in custody solely referrable to this matter from 6 September 2015 to today, a period said to be seven months and 27 days.”

29. The sentencing Judge characterised the offence in the following way (ROS4-5):

“My characterisation of this offence, and the offender's part in it is as follows. A man travelling on a train, minding his own business, is stared at by the offender and his brother, pursued on alighting from the train, bashed, knocked to the ground, and then for good measure, while on the ground, kicked to his face, with the result that Mr Louie sustained, as I said, cuts and abrasions.

Mr Louie must have been significantly traumatised by this seriously criminal incident, and unless Mr Louie is a particularly remarkable individual, he will not forget this incident for a very long time, if ever. The fact is, as experience over the years sitting in this Court, and also reading the news papers and watching the evening news on television shows, that this kind of offence is depressingly common in the Sydney metropolitan area, and other areas of New South Wales.

The plain fact is that there is a need for a sentence in a case like this to reflect considerations of general deterrence as a warning to other thugs who are thinking about acting in this way, that if they do so and are apprehended by the police, they can expect significant custodial sentences.”

30. His Honour had regard to the Applicant’s criminal history, and the fact that he had committed this offence whilst on parole (ROS5-6):

“To state the obvious, the offender's criminal record hardly assists him here, and the fact that he committed this offence while on parole in my view is a factor of significant aggravation. See s 21A of the Sentencing Act. In my view the fact that the offender, with his record, chooses or chose to commit this seriously criminal offence while he was on parole demonstrates to me that there is also a need here for a sentence that reflects considerations of specific deterrence in the hope that the offender may be deterred from committing further serious criminal offences by this very sentence.”

31. The sentencing Judge allowed a discount of 10% for the Applicant’s late plea of guilty and concluded that the Applicant’s offence “represented at least the mid-range of objective seriousness of this kind of offence, if not more” (ROS7).

32. A finding of special circumstances was made, and his Honour said immediately prior to imposition of sentence (ROS7):

“His sentence will be a sentence of three years imprisonment. I will make a finding of special circumstances. The offender's non-parole period will be a non-parole period of 18 months. Even though he has been in custody for some time, parole revoked, I see no particular reason to back date his sentence, and for good measure my view is that he should serve no less a time than 18 months for this particular offending.”

Ground 1 - Special Circumstances and Totality

Submissions of the Parties

33. Mr Corish, counsel for the Applicant, submitted that error was demonstrated on the part of the sentencing Judge, in particular with respect to application of the totality principle. It was submitted that the non-parole period was fixed by reference to the sentence to be passed, effectively without reference to the total unbroken period for which the Applicant had been in custody (including for his breach of parole) being the period from 14 February 2015 to 5 September 2015.

34. Although the non-parole period comprised 50% of the total term of imprisonment, when the additional period comprising the balance of parole was added, the effective minimum term was close to 60%. In this way, it was submitted, in support of Ground 1(a), that the sentence did not give full and proper effect to the finding of special circumstances made in this case.

35. In addition, it was submitted, in support of Ground 1(b), that the sentencing Judge had failed to apply the totality principle in that his Honour had not paused to have a “last look” at the total period in custody, in accordance with the principles in Mill v The Queen [1988] HCA 70; 166 CLR 59 at 62-63, before fixing the sentence for the subject offence.

36. The Crown submitted that a finding of special circumstances is discretionary. It was acknowledged that accumulation of sentences may be a basis for a finding of special circumstances, but that this was not an automatic result, and that a sentencing Judge has a wide discretion as to whether accumulation itself qualifies as special circumstances: Spark v R [2012] NSWCCA 140 at [35].

37. The Crown submitted that the Applicant’s counsel at first instance had invited the Court to impose a sentence commencing from 6 September 2015. It was submitted that the effective non-parole period if account was made for the balance of parole, still only reflected 57.7% of the total term. Further, the Crown emphasised that the sentencing Judge had made clear that an actual minimum sentence of 18 months was what was necessary given the objective gravity of the Applicant’s offence. It was submitted that the sentencing Judge was aware of the total period in custody and had regard to it in passing sentence.

38. The Crown submitted that no error had been demonstrated in accordance with this ground.

Decision

39. It is, of course, necessary for the Applicant to demonstrate error on the part of the sentencing Judge in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499.

40. In considering this ground of appeal, this Court should keep in mind that his Honour sentenced the Applicant by way of ex tempore remarks following the sentencing hearing. In R v Speechley [2012] NSWCCA 130; 221 A Crim R 175, the Court said at 180-181 [34]:

“… it is necessary to keep in mind that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour’s reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be ‘as robustly structured as they might otherwise have been’ (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may ‘lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing’ (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]).”

41. The sentencing Judge was well aware of the term of imprisonment served by the Applicant for breach of parole. The Applicant’s counsel in the District Court submitted that it was appropriate to backdate the sentence for this offence to 6 September 2015 and his Honour accepted this submission.

42. No express submission was made at first instance that the Court should have regard to the balance of parole period for the purpose of a finding of special circumstances. This Court has said that it is difficult to demonstrate error in this respect where no argument was advanced at first instance that special circumstances should be found on the basis propounded in this Court: Quayle v R [2010] NSWCCA 16 at [41].

43. In any event, the finding of special circumstances in this case was a generous one and remained a generous one even when the balance of parole period was notionally taken into account. The effective minimum term component of the sentence still only comprised 57.7%.

44. The Applicant has not demonstrated error on the part of the experienced sentencing Judge in this case. The law does not require a formulaic approach in applying the totality principle. His Honour was well aware of the components to be considered for the purpose of sentence and fashioned the sentence accordingly. In particular, his Honour made clear that the minimum term for which the Applicant should be imprisoned by reference to this offence was one of 18 months.

45. No error has been demonstrated in the manner asserted in Ground 1(a) and (b). I reject this ground of appeal.

Ground 2 - Claim that the Sentence was Otherwise Manifestly Excessive

Submissions of the Parties

46. Counsel for the Applicant submitted that the sentence imposed was otherwise manifestly excessive having regard to the maximum penalty of seven years, the finding that the offence was at least mid-range, and the fact that the starting point (before a 10% discount) comprised a period of 40 months.

47. Counsel for the Applicant sought to rely upon the sentencing outcome in Sorensen v R [2016] NSWCCA 54 in support of this argument.

48. It was noted that the Applicant’s brother had been sentenced in the Children’s Court for the more serious offence of aggravated assault with intent to rob under s.95(1) Crimes Act 1900 and received a control order of six months with a non-parole period of three months.

49. Upon these bases, the Applicant submitted that the sentence imposed was manifestly excessive.

50. The Crown submitted that the sentence in this case was not unreasonable or plainly unjust.

51. The Crown submitted that no assistance was to be obtained from a comparison with the decision in Sorensen v R. The Crown referred to authority in this Court disapproving of comparison of one case with another for the purpose of supporting a claim of manifest excess.

52. The Crown pointed to features of the case which supported a finding that the sentence was not manifestly excessive. It was submitted that the Applicant was not assisted by the sentencing outcome for his younger brother in the Children’s Court which operated within its own sentencing regime: Ruttley v R [2010] NSWCCA 118 at [55]-[58].

53. The Crown submitted that error had not been demonstrated.

Decision

54. To succeed on this ground of appeal, the Applicant must establish that the sentence imposed was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [24].

55. This was a serious example of an offence of assault occasioning actual bodily harm in company. It is clear that the Applicant and his younger brother targeted the victim whilst he was travelling home by means of public transport. The offenders followed the victim from the train to a location where they attacked him by striking him to the head and then, whilst the victim lay on the ground, punching and kicking him to the head. It may be inferred that the attack came to an end when the victim called out for help and citizens in the area responded to that call.

54. This Court has made clear that severe punishment is required in circumstances where members of the public are attacked on public transport or after leaving public transport. In R v JW [2010] NSWCCA 49; 77 NSWLR 7, McClellan CJ at CL, Howie J and I said at 41-42 [207]-[208]:

“207    It is important to bear in mind that the offences were committed by a group of young men on persons using the public transport system at night. There is no doubt that in the first offence the group were waiting for a likely candidate to rob as he made his way through a secluded park from the station. The group then went to another station and again selected a likely victim and chased him to his home. But even there he was not safe. Crimes of violence committed in those circumstances warranted severe punishment notwithstanding the age of members of the group or the other sentencing principles that apply to the sentencing of young offenders. Persons who are required to use public transport at night should be considered as vulnerable and protected by the sentences imposed in the courts.

208    In R v Kelly [2005] NSWCCA 280; 155 A Crim R 499, a case concerning an offence of violence committed at a railway station at night, Johnson J wrote:

‘6    In R v Ranse (Court of Criminal Appeal, 8 August 1994, BC9402928), Gleeson CJ said at page 8:

‘One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others.’

This statement has been adopted recently by this Court with respect to the protection of citizens who use public transport late in the evening, thereby placing themselves in a position of some vulnerability: R v Ibrahimi [2005] NSWCCA 153 at paragraphs 22-24.”

57. The sentencing Judge applied these principles appropriately in this case, by reference to the objective gravity of the offence and the importance of both specific and general deterrence on sentence.

58. The injuries suffered by Mr Louie constituted a serious form of actual bodily harm: McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 558 [44]. The written description of his injuries was confirmed by the photographs tendered on sentence, which depicted significant injury in and around his mouth and nose.

59. This was not a spur of the moment offence or one which sprung suddenly from unexpected circumstances. The victim was followed from the train by his assailants who proceeded to attack him when they considered the time was right to do so. Undoubtedly, Mr Louie experienced a developing sense of anxiety as his fear that he had been targeted for attack came to pass.

60. The Applicant had a history of offences of violence and was on parole at the time of the commission of the offence. As the sentencing Judge observed, there was a significant need for specific deterrence in this case.

61. The Applicant is not assisted by the sentencing outcome in the Children’s Court with respect to his younger brother: Ruttley v R at [55]-[58]; Shortland v R [2013] NSWCCA 4; 224 A Crim R 486 at 504 [121].

62. I accept the Crown submission that the Applicant’s reliance upon the decision in Sorensen v R is misconceived. There are obvious and significant differences between that case and this. Further, this Court has consistently disapproved of a manifest excess ground being argued by reference to a few sentencing decisions, let alone a single one: RR v R [2011] NSWCCA 235; 216 A Crim R 489 at 517 [137]. As was said in RR v R at 519 [152]:

“Appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the reasons: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 605 [58]; Hili v the Queen at 538-539 [58]-[59]. That this Court may have exercised the sentencing discretion differently is not the test: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15].

63. When regard is had to the maximum penalty for a s.59(2) offence, the circumstances of this offence, the fact that the Applicant was on parole at the time of the offence, his criminal history and other subjective circumstances together with the need for specific and general deterrence, the sentence in this case lies well within the bounds of the exercise of reasonable sentencing discretion.

64. The Applicant has failed to demonstrate that the sentence was manifestly excessive. Ground 2 should be rejected.

Conclusion

65. The Applicant has failed to make good any of his grounds of appeal.

66. I propose that leave to appeal against sentence ought be refused.

67. ROTHMAN J: I agree with Johnson J.

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Decision last updated: 16 December 2016