Ahmed El-Haouli v The Queen
[2014] VSCA 5
•6 February 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0230
| AHMED EL-HAOULI | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | PRIEST and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 February 2014 |
| DATE OF JUDGMENT | 6 February 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 5 |
| JUDGMENT APPEALED FROM | R v El-Haouli (Unreported, County Court of Victoria, Judge Pullen, 8 November 2013) |
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CRIMINAL LAW – Appeal against conviction – Applicant convicted of once charge each of aggravated burglary, intentionally causing serious injury, making a threat to kill and reckless conduct endangering life – Charges relate to two separate incidents in Benalla – Trial judge provided a map to the jury following a request through the Tipstaff – Counsel were advised subsequently of the request and the provision of the map – No objection immediately taken – Later a request to discharge the jury – Application for discharge refused – Whether the trial judge erred in providing the map without first communicating that fact to counsel and inviting submissions – Whether providing the map to the jury was a serious departure from the prescribed processes for trial – Appeal against conviction dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr T Alexander with Ms Y Mik | Garde-Wilson Lawyers |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
PRIEST JA:
Introduction
There is a single ground of appeal in this application for leave to appeal against sentence which asserts that: ‘The sentence imposed is manifestly excessive in that it is outside the sentencing range for the relevant category of intentionally causing serious injury’.
For the reasons that follow I would refuse leave to appeal.[1]
[1]In an exercise of some optimism, the applicant had also filed an application for bail. Given my conclusions on the application for leave to appeal, the application for bail is redundant.
The sentence
On 30 October 2013 the applicant pleaded guilty in the County Court to one charge of intentionally causing injury[2] (charge 1) and one charge of intentionally causing serious injury[3] (charge 2); and on 8 November 2013 he was sentenced to be imprisoned on the first charge for 10 months, and on the second charge for two (2) years. Five (5) months of the sentence on the first charge was ordered to be served cumulatively with the sentence on the second, leading to a total effective sentence of two (2) years and five (5) months’ imprisonment, upon which the sentencing judge fixed a non-parole period of eight (8) months’ imprisonment.
[2]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 16. The maximum penalty is 20 years’ imprisonment.
Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that but for the plea of guilty she would have imposed a total effective sentence of four (4) years’ imprisonment with a non-parole period of two (2) years and six (6) months.
The offending
The offending conduct occurred on 24 March 2013 and involved violence perpetrated by the applicant, aged 24 years, and two co-offenders, against two brothers, Peter Augusti-Alexis (PA), aged 23 years, and Alexi Augusti-Alexis (AA), aged 25 years.
PA had been in a relationship with Shanttel Leon, aged 19, for about two years. In June 2012 she gave birth to their son, Xavier. Their relationship ended in December 2012 when PA discovered that Ms Leon was involved in an affair with the applicant. PA had known the applicant for five years and thought him to be a good friend.
Issues relating to Xavier’s custody caused some tension between PA and Ms Leon. There were no formal orders in place relating to custody, but several weeks preceding the offences on 24 March 2014 PA and Ms Leon had made a written agreement setting out the time each of them was to spend with Xavier.
PA resided in a house in Beauchamp Street, Preston, with his mother, father and AA. When with his father, Xavier also resided at that address.
It had been arranged that Xavier was to be baptised at the Preston Greek Orthodox Church on 24 March 2012 at 2.30pm. It seems that Ms Leon did not want Xavier to be baptised in the Greek Orthodox faith. It also seems that Ms Leon felt unhappy about PA preventing her from seeing Xavier. Her attitude to those matters provides some context for the critical events that follow.
Around midday on 24 March 2013 Ms Leon, her mother, Selena Sanchez, and another female, Michelle Mariona, went to the Beauchamp Street address with the intention of taking Xavier away. They stayed until about 1.30pm. Realising that she would have been prevented from leaving the address with the baby, Ms Leon told PA she was going to get something to eat and would later meet him at the church. She and her mother went to a McDonald’s restaurant in Preston. Whilst she was there, PA received a phone call from Ms Leon’s uncle, Frank Sanchez, who told him that Ms Leon was planning to take Xavier before the baptism.
At about 2.10pm, Ms Leon, her mother and Ms Mariona returned to Beauchamp Street. The three of them got out of the car, and Ms Leon gave her mobile telephone to Ms Mariona. The applicant was on the line. Ms Leon instructed Ms Mariona to inform the applicant when the baby was emerging from the house.
PA, AA and others of their family came out of the house to go to the church. PA was holding Xavier. He headed towards his car intending to put Xavier into the baby seat. On the footpath in front of the gate, either Ms Leon or her mother snatched Xavier from PA’s arms. In any event, Ms Leon ended up with Xavier in her arms and started to run towards her car.
The applicant, accompanied by his cousin, Omar Hayek, and an unnamed male, then exited their car close to the house. Either Hayek or the unknown male was carrying an extendable baton. The three men ran towards PA and AA, who were following Ms Leon to her car so as to try and get Xavier back.
Having run at AA and collided with him, the applicant fell to the ground. AA then was involved in a fight with one of the co-offenders who was holding a baton. (This is part of the offending constituting charge 1, intentionally causing injury.)
Hayek and the unknown male then ran towards PA. One of them struck PA in the face with the baton, causing him to fall to the ground. While he was on the ground, Hayek and the unknown male hit PA to the face and head with the baton. The applicant joined Hayek and the other male, and the three of them kicked PA in the back and ribs. PA was also struck in the back with the baton, although the applicant did not use a weapon. The applicant punched PA in the face; and when PA got up from the ground he was again struck to the face with the baton, causing him to fall to the ground once more. (This conduct relates to the charge of intentionally causing serious injury, charge 2.)
The applicant then returned to AA. He started kicking or hitting AA on the legs and ribs whilst he was on the ground.
AA managed to get up and run towards the baby, who was the subject of a ‘tug-of-war’ involving Ms Leon, PA, and other family members. PA managed to take hold of the baby and take him back into the house.
The applicant and his co-offenders ran from the scene.
Shortly afterwards, police and ambulance attended and PA was taken to the Austin Hospital. He had sustained serious injury, including displacement of four lower incisors and fractures of supporting bone; lacerations to his right eyebrow requiring stitches; contusion over the left scapula; a split lip; lacerations to his chin; abrasions to both knees; bruising to his head and back; pain all over his body, particularly his face; and (temporarily) blurred vision in his right eye. PA underwent maxillofacial surgery that day and two metal plates were inserted into his jaw. He remained in hospital overnight and was not allowed to eat solid foods for approximately six weeks thereafter. Further treatment relevant to the metal plate that was inserted into his jaw may be required.
As a result of the assault on him, AA had a blood nose and his nose was bruised and swollen. He also sustained abrasions and bruising to his face; a split lip; abrasions and swelling to his left hand; and grazing on his legs.
Relevantly, Sergeant Jim Petsas, a police officer, later saw a text message on Ms Leon’s phone which had been sent by the applicant at 2.37pm (that is, after the assaults), which read: ‘U got to say u had the kid and they ripped it from u and bashed u’.
It was conceded by the defence that the applicant had recruited the co-offenders, and that at relevant times the three were involved in a joint criminal enterprise. While the applicant was aware of the presence of a weapon, namely the extendable baton, he was not so aware until he reached the scene and he and the co-offenders exited the vehicle.
Subsequent events
Although there was some dispute about it on the plea – which occasioned evidence being called on the subject from the informant and the applicant – it seems the applicant contacted the police on 24 March 2013. On 28 March 2013 he attended the Preston Police Station where he was arrested and interviewed. He answered ‘no comment’ to police questions.
The applicant did, however, indicate a plea of guilty at a committal mention on 9 July 2013.
Submissions on the plea
Defence counsel conceded that the offending was serious. He argued, however, that the injuries sustained by PA were not at the most serious end of the scale (provoking an observation by the judge that there were not, however, at the ‘lower’ end). Significant reliance was placed on the early plea of guilty; remorse; an absence of prior convictions; a steady work history; good character references; ongoing family support; relative youth; prospects of rehabilitation. Reference was made to my observations in Jackson v The Queen[4] to support a submission that that the offence of intentionally causing serious injury varies in seriousness and does not automatically result in a term of imprisonment. Ultimately, the imposition of a community corrections order was urged on the sentencing judge.
[4]Jackson v The Queen [2013] VSCA 14.
The prosecutor submitted that since intentionally causing serious injury is a ‘serious offence’, by virtue of s 27(2B) of the Sentencing Act1991 the court could not make an order suspending any part of a sentence of imprisonment. Attention was drawn to the fact that the applicant’s was serious offending occurring in a public place in the presence of women and small children; there were two victims; there was a weapon involved; there was a degree of planning involved and the other two people were recruited by the applicant; the injuries were serious; and the victims remain apprehensive. The prosecutor submitted that a community corrections order was not open in the circumstances. She provided a sentencing range of a head sentence of two (2) to three and a half (3½)years’ imprisonment, and a non-parole period of six (6) months to two (2)years.
Sentencing remarks
The sentencing judge referred to several aggravating features of the offending: it occurred with two co-offenders; the applicant recruited the other offenders; there was some pre-planning involved following the telephone call from Ms Leon; and at least one weapon involved (and the applicant was aware of its presence, albeit not until he reached the scene and he and the co-offenders exited the vehicle). The judge observed that the applicant had the opportunity to desist (but did not), and had put himself in a position where, had he not attended, the assaults would not have happened.
Some aspects of a forensic psychologist’s report tendered on the plea were singled out for criticism. Thus, for example, the judge did not accept that the applicant had acted in a ‘fairly spontaneous way’. Psychometric assessment and testing confirmed the psychologist’s impression that the applicant was suffering features of a major depressive illness and an anxiety disorder with escalating agitation as his plea date approached. Counsel, however, eschewed reliance on any Verdins[5] considerations.
[5]R v Verdins (2007) 16 VR 269.
The judge accepted that the applicant indicated at the earliest opportunity his intention to plead guilty. Further, remorse was apparent from the plea of guilty, the contact with police on 24 March 2013 and his expressions to others of his remorse. The applicant does not have any prior or subsequent convictions.
Whilst he was not a ‘young offender’ within the meaning of the Sentencing Act1991, the judge accepted that the applicant was a youthful offender and as such his prospects of rehabilitation are relevant, and that those prospects are good.
Reference was made to PA’s and AA’s Victim Impact Statement. The judge noted that while the injury to PA was not at the most serious end of the scale neither were his injuries at the lower end.
The judge observed that the seriousness of the offence of intentionally causing serious injury is reflected in the maximum penalty applicable. Parliament had classified intentionally causing serious injury as a ‘serious’ offence so as to limit sentencing options. General deterrence, the judge remarked, is of considerable importance in a case such as this, although specific deterrence did not loom large in the sentencing process. Her Honour was ‘conscious that a term of imprisonment must always be the last resort’, but a community corrections order as urged by the defence was not appropriate in all the circumstances including the gravity of the offending.
Specifically with respect to the non-parole period, the judge said: ‘In so sentencing you to only 8 months with a head sentence of 2 years and 5 months as a non parole period, I have imposed what I regard as a longer period on parole to assist your rehabilitation following release from custody’.
Submissions on the application for leave to appeal
Counsel for the applicant submitted that the applicable sentencing range for an offence is determined by reference to sentences passed in comparable cases in the relevant category of seriousness for that particular offence.[6] In the applicant’s written case, counsel asserted that ‘[w]hat constitutes comparable cases of comparable severity is the issue in this appeal’. It was acknowledged, however, that there is ‘a vast spectrum of circumstances’ in which the offence of intentionally causing serious injury may occur, and that ‘courts have imposed sentences which mirror that diversity’. It was asserted that although the offending was serious, the ‘sentence of immediate imprisonment is so markedly harsh compared to similar offenders who have engaged in similar offending, that it is outside the range of sentences reasonably open to the sentencing judge’. That proposition was supported, so it was argued, by two considerations. First, unlike some other serious offences, the exercise of the sentencing discretion for intentionally causing serious injury ‘does not necessarily commence with immediate imprisonment’. Secondly, so it was submitted, in this case immediate imprisonment is in fact outside of the sentencing range when that sentencing range is properly identified. Counsel sought to make that submission good by reference to several cases.[7]
[6]Ashdown v The Queen (2011) 219 A Crim R 454, [174]; Nash v The Queen [2013] VSCA 172, [1]; Anderson v The Queen [2013] VSCA 138, [22]; Kumar v The Queen [2013] VSCA 191.
[7]DPP v Bulut; DPP v Terzi [2007] VSCA 69; DPP v Hooker [2006] VSCA 95; DPP v Kosmidis [2008] VSCA 66; DPP v Fevaleaki (2006) 165 A Crim R 524.
The applicant’s counsel submitted that the relevant features for comparative purposes between the cited cases and the present included participation in violence resulting in serious but not life-threatening or permanent injury or disability; youth at the time of offending; the limited role of the applicant in the incident as compared with that of the co-offenders; the applicant not using a weapon; the applicant’s lack of history of criminality or violent behaviour; the applicant’s otherwise good character and remorse; the applicant’s very good prospects of rehabilitation; and the applicant’s guilty plea at the earliest opportunity.
It was submitted that, although the applicant fell to be sentenced as part of a joint criminal enterprise with the co-offenders, he played a far less significant role in the infliction of the injuries than the co-offenders. He was not armed and did not use a weapon during the attack. Ultimately it was submitted that the sentencing discretion miscarried by the judge’s failure to pay sufficient regard to the relative roles of the offenders.
The respondent submitted that the sentence imposed was not outside the range of sentences reasonably open. Comparative cases provide a general guide or impression as to the appropriate range of sentences and can only provide limited assistance to the Court. The appropriate sentencing range is informed by current sentencing practices. Consistency in sentencing refers to consistency in the application of relevant legal principles rather than numerical equivalence.[8] Counsel drew attention to the fact that the cases relied upon by the applicant as comparators were all Director’s appeals, subject to the principle of double jeopardy, and must be viewed in that light. The respondent submitted that the applicant has not identified any comparable case that establishes an immediate term of imprisonment was not within range.
[8] Hili v The Queen; Jones v The Queen (2010) 242 CLR 520, 535-536 [48], [49].
Counsel for the respondent drew attention to the fact that the applicant engaged in an attack in the company of two others at the request of his then partner. He enlisted the assistance of the two co-offenders and attended upon the victims. The applicant was aware of the presence of a weapon but continued to assault two victims whilst they were on the ground and being assaulted by the co-offenders. Further, the attack was in public whilst the victims and their family were preparing to take a child to be baptised. Shortly following the offence, the applicant sent a text message to Ms Leon advising her to allege that she was assaulted. It was submitted that the sentencing judge properly characterised the offending as ‘very serious and disturbing’.
It was repeated that the applicant was part of a joint criminal enterprise. He had orchestrated the assaults and engaged in the attacks whilst the co-offenders were armed. Although he played a lesser physical role, the applicant’s moral culpability remained high. In the end it was submitted that the sentence imposed was ‘merciful’.
Resolution
I agree with the characterisation of the sentence as merciful. It was, in my opinion, in all the circumstances a very lenient sentence. Neither the individual sentences on each count nor the total effective sentence can properly be described as manifestly excessive; and, if anything, the non-parole period is, in my view, manifestly lenient.
As has often been remarked, a contention that a sentence is manifestly excessive does not permit of sustained argument. When all of the relevant features of the offence and the offender are weighed on the scale of instinctive synthesis, and all features of aggravation and mitigation are blended into the mix, it is either plainly apparent that a sentence is manifestly (rather than arguably) excessive or it is not. Sentencing judges arrive at an appropriate sentence after instinctively synthesising all relevant factors. When faced with a contention that a sentence is manifestly excessive, members of an appellate court assess the sentence – and thus the merit of such a contention – in much the same way.
The applicant submitted that that the sentence was wholly outside the available range. Although the ground of appeal as drafted was wide enough to embrace the individual sentences on each charge, the total effective sentence and non-parole period, it is fair to say, I think, that the principal focus of the submissions of counsel was on the sentence for intentionally causing serious injury. I approach the matter the same way.
Weighing all relevant factors, I find it impossible to say that the impugned sentence is manifestly excessive. The attack on the two victims in a public street in broad daylight was ferocious. At the least, as counsel for the applicant conceded on the plea, it was ‘ugly’. In my opinion, the applicant’s culpability is not much mitigated by the fact that he did not personally wield the weapon. He knew it was to be used to strike another. Being an extendable baton, it is an instrument uniquely designed to inflict disabling injuries, a fact that must have been known to the applicant. He may not personally have wielded it, but he recruited the individual who did, and did nothing to discourage its use. Indeed, so it seems to me, by physically joining in the attack by the individual using the baton, he encouraged that individual in its use.Moreover, although the injuries to PA were not at the high end of the spectrum of serious injuries, they did not fall at the other end of the spectrum.
I do not find the applicant’s resort to comparative cases (so described) to be particularly enlightening. As I observed in Nash:[9]
Experience shows that the circumstances of the commission of the offence of intentionally causing serious injury are almost infinitely variable, and thus the sentences commonly imposed widely vary. There are cases which involve protracted savagery, while others are constituted by one punch. Some involve the use of a variety of weapons. Moreover, the injuries caused widely vary, from gross and permanently disabling injuries to others that barely cross the threshold of ‘serious’. Accordingly, sentences widely vary, from suspended sentences of imprisonment at the low end of the spectrum,[10] to head sentences of imprisonment in double figures at the high end.[11]
[9]Nash v The Queen [2013] VSCA 172, [55]. See also Jackson v The Queen [2013] VSCA 14, [34].
[10]For example, DPP v Gerrard (2011) 211 A Crim R 171 (a three year suspended sentence for what is colloquially referred to as a ‘glassing’).
[11]For example, Robbins v R [2012] VSCA 34 (an attack with a claw hammer, where on appeal a head sentence of 11 years’ imprisonment was upheld, but a non-parole period of seven years was substituted); DPP v Terrick (2009) 24 VR 457 (where sentences of 11½ years’ imprisonment, with non-parole periods of 9 years, against two respondents were substituted on appeal, for a savage attack on an innocent victim which resulted in catastrophic injuries).
There were a number of mitigating factors to which I have already made reference. In my opinion these factors are reflected in the individual sentences and total effective sentence, but most particularly in the non-parole period that was fixed. The non-parole period was designed to foster the applicant’s rehabilitation upon his release from prison, and, so it seems to me, was fixed in recognition of the applicant’s sound prospects for rehabilitation. It is fanciful to suggest that it is excessive.
Conclusion
For the reasons set out, in my view it cannot reasonably be argued that the sentence passed is manifestly excessive.
The application for leave to appeal against sentence must thus be refused.
COGHLAN JA:
I agree that leave should be refused for the reasons stated by the learned presiding judge and only for myself, that I am satisfied with the sentences imposed in this case, indicate that her Honour gave appropriate weight to the matters of aggravation on the one hand and the matters in litigation on the other.
This was not a case where it could be said that any sentence other than an immediately custodial sentence was within the range.
As had already been observed, in any event, the sentences were merciful.
PRIEST JA:
The order of the Court will be that the application for leave to appeal against sentence is refused.
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