Assaad v The State of Western Australia
[2021] WASCA 219
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ASSAAD -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 219
CORAM: BUSS P
HEARD: 15 DECEMBER 2021
DELIVERED : 15 DECEMBER 2021
FILE NO/S: CACR 182 of 2021
BETWEEN: IMRAN KHLIED ASSAAD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: FLYNN DCJ
File Number : IND 241 of 2019
Catchwords:
Criminal law - Appeal against sentence - Application for bail - Whether exceptional reasons why the appellant should not be kept in custody pending the determination of the appeal
Legislation:
Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)
Criminal Code (WA), s 317(1)
Result:
Application for bail dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr L A Margaretic |
| Respondent | : | Mr T B L Scutt |
Solicitors:
| Appellant | : | MGM O'Connor Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Castrilli v The State of Western Australia [2019] WASCA 135
Serukai v The State of Western Australia [2020] WASCA 127
Spirovski v The State of Western Australia [2017] WASCA 230
The State of Western Australia v Saleh [2020] WASCA 205
BUSS P:
The appellant Imran Assaad (whom I will refer to as the appellant) and four other offenders, namely Ebraheem Assaad (whom I will refer to as Mr Assaad), Ibraheem Saleh, Maywand Babakarkhil and Abaseen Kakar, were jointly charged on an indictment with two counts.
Count 1 alleged that on 9 July 2017, at Northbridge, the five men unlawfully did grievous bodily harm to Blake Joseph Slatter, contrary to s 297(1) of the Criminal Code (WA) (the Code). Count 2 alleged that, on the same date and at the same place, the five men unlawfully assaulted Joshua Jon Pointing and thereby did him bodily harm, contrary to s 317(1) of the Code.
The appellant was acquitted after a trial by jury of count 1 and convicted, on his plea of guilty, of count 2. The maximum penalty for count 2 is 5 years' imprisonment.
On 26 November 2021, Flynn DCJ sentenced the appellant to 8 months' immediate imprisonment. A parole eligibility order was made. The appellant’s sentence started on the date that it was imposed. The appellant’s earliest release date is 26 March 2022.
Mr Assaad pleaded guilty to both counts. Mr Assaad's initial sentence was appealed successfully by the State. See The State of Western Australia v Saleh.[1] This court resentenced Mr Assaad to 2 years 9 months' immediate imprisonment on count 1 and 10 months' immediate imprisonment on count 2. The sentence on count 2 was reduced to 3 months' immediate imprisonment for totality reasons and ordered to be served cumulatively upon the sentence for count 1, resulting in a total effective sentence of 3 years’ immediate imprisonment. A parole eligibility order was made. Mr Assaad’s earliest release date is 23 August 2022.
[1] The State of Western Australia v Saleh [2020] WASCA 205.
The appellant has appealed against sentence. In a minute of proposed grounds of appeal, filed on 6 December 2021, the appellant proposes two grounds of appeal. Ground 1 alleges that the sentence of 8 months' immediate imprisonment was manifestly excessive as to type. Ground 2 alleges that the sentence imposed infringed the parity principle. In particular, in the appellant’s submissions in support of bail filed on the same date, the appellant raises the parity issue in relation to Mr Assaad's sentence on count 2. It is therefore unnecessary to consider the sentencing factors relevant to the other offenders.
The State opposes the application for bail.
I have decided that the application for bail should be dismissed. However, the hearing of the appeal should be expedited. The appeal will be heard on 21 January 2022. I will make the requisite programming orders today. My reasons for dismissing the application for bail are as follows.
Facts of the offending
The primary judge's findings, with the exception of findings made in relation to part of the assault of Mr Pointing which was obscured, were based on his Honour's interpretation of CCTV footage of the incident (sentencing ts 3). The appellant's proposed grounds of appeal do not challenge any of his Honour's findings of fact. I have, however, watched the CCTV footage.
The offending took place outside the Galaxy Lounge, a karaoke bar in Northbridge, at around 2.45 am on Sunday 9 July 2017. Mr Slatter (the victim of count 1), Mr Pointing (the victim of count 2) and Mr Slatter's younger brother, Rhys Slatter (whom I will refer to as Mr Rhys) had left a friend's birthday celebration and were standing on the footpath outside the Galaxy Lounge. Each of them was intoxicated.
The appellant's group was also standing on the footpath outside the Galaxy Lounge. Some antagonism between the two groups occurred, but the primary judge was unable to make a finding as to the basis for this antagonism (sentencing ts 4). There had been no prior interaction or altercation between the groups.
Mr Slatter and Mr Rhys began stepping backwards on the footpath as four of the offenders, including the appellant and Mr Assaad, advanced on them. Mr Kakar was at the front with his hands raised in a fighting stance. The appellant was attempting to restrain Mr Assaad from getting closer to the conflict (sentencing ts 4).
At some point Mr Slatter and Mr Rhys stopped retreating. Mr Kakar kicked at Mr Rhys, following a small gesture made by Mr Rhys. In response, Mr Slatter attempted to punch Mr Kakar. Mr Babakarkhil intervened and punched at Mr Slatter as Mr Slatter began retreating into the car park with Mr Rhys.
Inside the car park, Mr Slatter and Mr Rhys stood with their backs to a railing, facing Mr Kakar and Mr Babakarkhil, who were 'shaping up at them' (sentencing ts 5). Mr Assaad joined them and gestured towards Mr Slatter and Mr Rhys, seemingly inviting them to engage in a fight. At this point, the appellant was observing the conflict from 'a distance' behind the others (sentencing ts 5).
Mr Saleh then moved quickly into the car park from the Galaxy Lounge and threw a single powerful punch to Mr Slatter's head. Mr Slatter fell backwards into the railing. Mr Assaad then struck two or three blows to the upper part of Mr Slatter's body. Mr Slatter began to move towards a vehicle in the corner of the car park and received a blow from Mr Kakar while retreating.
Next, Mr Slatter received a series of blows from Mr Assaad while pressed up against the vehicle. Mr Rhys re-entered the car park in an attempt to get to Mr Slatter, but Mr Rhys was intercepted by Mr Kakar who delivered a blow 'towards' him (sentencing ts 6).
At this point, the appellant became involved in the fight for the first time. The appellant threw a punch at Mr Rhys, which Mr Rhys avoided. Mr Pointing, who had been standing outside the car park entrance, entered the car park and headed towards Mr Rhys. After the appellant threw the punch at Mr Rhys, Mr Pointing interacted with the appellant and pushed the appellant. The appellant and Mr Kakar then backed Mr Pointing against a wall. Mr Assaad moved to join the appellant and Mr Kakar. The appellant threw a punch to the upper body of Mr Pointing. Mr Assaad took hold of Mr Pointing's arm and started slinging him while continuing to deliver blows. While Mr Pointing was incapacitated by Mr Assaad’s hold, the appellant raised his left knee with force into the upper part of Mr Pointing's body and the appellant then delivered one punch to the upper part of Mr Pointing's body and another punch to the front of Mr Pointing's head.
Next, Mr Kakar moved in and delivered a punch to the upper part of Mr Pointing's body. At this point, Mr Assaad, the appellant, Mr Kakar and Mr Pointing moved behind a pillar and the CCTV footage was obscured. The primary judge was satisfied that during this time Mr Pointing ended up on the ground and was kicked and/or punched. However, it could not be ascertained which of Mr Assaad, the appellant and Mr Kakar were responsible for the blows (sentencing ts 8).
The offenders left and later Mr Pointing moved slowly out of the car park. The assault of Mr Pointing lasted for less than 15 seconds (sentencing ts 8).
Mr Pointing was taken to Joondalup Health Campus where he was treated for a laceration to the back of his head which required four stitches. Mr Pointing also suffered facial injuries, a stiff jaw and tenderness of the torso.
Sentencing remarks relevant to the appellant and Mr Assaad
The primary judge noted that the offending was made more serious by the fact that it occurred in a public place where young people were expected to be (sentencing ts 10).
Further, in Saleh this court noted that the offending was in company and the appellant's group were the aggressors in the confrontation [58]. The offending fell towards the higher end of the scale, as compared to many other cases which involve drunken one-on-one violence between strangers, due to the following [58]:
(a)The victims, including Mr Pointing, did not fight back for the most part. Rather, the victims were backing away or trying to retreat from their attackers.
(b)At each stage the appellant's group outnumbered the victims. Relevantly, the attacks on Mr Pointing involved three men against one.
The appellant's personal circumstances and the primary judge's sentencing remarks
The appellant was aged 24 at the time of the offending and was 28 when sentenced.
The appellant had numerous prior convictions including for 'serious offences of violence' (sentencing ts 12). Most notably, in 2014 the appellant received a term of imprisonment for two counts of unlawful assault occasioning bodily harm and one count of unlawfully doing grievous bodily harm with intent. The prosecutor submitted that this violence also occurred in a group situation with Mr Assaad (ts 829). Additionally, the appellant received a fine for an unlawful assault occasioning bodily harm in 2011. The primary judge noted that the appellant had not committed any relevant offences since the assault of Mr Pointing.
The primary judge accepted that the appellant's life had changed since his offending in 2017. The appellant was married and had a child who was two years of age at the time of sentencing. The appellant had an 'impressive business and employment record' which included owning a small business (sentencing ts 12). Consistently with these changes, the appellant was no longer going to the type of events which led to the offending.
The primary judge accepted that the appellant had demonstrated remorse (sentencing ts 13). The appellant received a 20% discount pursuant to s 9AA of the Sentencing Act1995 (WA) for his plea (sentencing ts 14).
The primary judge noted that the appellant assaulted Mr Pointing while Mr Pointing was 'effectively disabled, not that [Mr Pointing was] offering resistance' (sentencing ts 7). His Honour considered the appellant's culpability compared to that of Mr Kakar and, in particular, Mr Assaad. His Honour said (sentencing ts 9 ‑ 10):
[W]hen it comes to [the appellant's] culpability – [the appellant's] involvement compared to others, in this case particularly compared to the involvement of Mr Saleh and [Mr Assaad], and also to Mr Kakar, [the appellant] did deliver blows that were amongst the blows that caused bodily harm. It's not possible to identify what injuries [the appellant] caused, but I've described where those blows were delivered.
It's difficult for me to distinguish [the appellant's] involvement as being at any lower level than [Mr Assaad's] having regard to [the appellant's and Mr Assaad's] respective roles save for this. It's apparent from my viewing of the CCTV that [the appellant's] initial involvement, certainly in delivering the blows, was apparently prompted by Mr Rhys Slatter heading in the direction of [the appellant's] brother and that it is the case that Mr Pointing initially made contact with [the appellant].
But from very early on in [the appellant's] involvement in that offence where the victim was Joshua Pointing, it was apparent to [the appellant] that Pointing was vulnerable, and [the appellant] continued to deliver the blows that I've described.
The primary judge stated that he had come to the conclusion that 8 months' immediate imprisonment was appropriate after considering the maximum penalty for the offence; the circumstances of the offending; the aggravating factors; the mitigating factors including the appellant's 20% discount for his plea of guilty; and parity considerations, including the sentence imposed on Mr Assaad by this court in Saleh.
The primary judge concluded that it was not appropriate to suspend the appellant's sentence given the nature of the appellant's involvement in the offence and his criminal history. There was a need for personal deterrence.
Mr Assaad's personal circumstances and this court’s remarks on his resentencing
In Saleh, this court outlined Mr Assaad's personal circumstances at [31] ‑ [48]:
Mr Assaad was 22 years old at the time of the offending and 25 years old when he came to be sentenced. His parents separated when he was 14 years old due to domestic violence on the part of his father. His father was a heavy user of cannabis and was physically and emotionally abusive towards his wife and children. After the separation his father had no further involvement in his life. His mother met a new partner in 2012 when Mr Assaad was 18. Mr Assaad has a close relationship with his mother, stepfather and half siblings.
After leaving school Mr Assaad undertook an electrical apprenticeship which he did not finish. He then worked on a sporadic basis for an uncle who has a bricklaying business. He was not working at the time of sentencing, although there was the prospect of work in the future.
A pre‑sentence report prepared in respect of another matter in 2013 identified a number of unresolved issues including trauma, abandonment, victimisation, poor coping methods, poor problem solving skills and a tendency towards violence. It did not appear that any treatment for those issues was received.
Mr Assaad has a history of alcohol abuse. He started drinking in his teen years and by the age of 20 it was a problem. He would drink excessively and his behaviour became out of control. When he was 19 he started to use cannabis but stopped after two years because of the negative impact it was having.
Mr Assaad has a criminal history, though much of it is as a juvenile. Prior to these offences he had not committed any offences of violence as an adult, although there were juvenile convictions in 2013 for grievous bodily harm with intent and two counts of assault occasioning bodily harm for which he received a sentence of imprisonment. Those offences occurred in July 2012 when he was 17 years old. He also had a conviction for assault occasioning bodily harm on 5 December 2019 which occurred whilst he was remanded in custody on other matters after being charged with the present offences. That offence is of limited relevance having regard to the fact that it occurred after the present offences.
As at the date of the present offences Mr Assaad was on bail for an unrelated matter. On 2 February 2017 he committed an offence of obstructing a public officer, which was dealt with on 31 July 2017. It was accepted that he was on bail for that matter as at 9 July 2017, when the present offences were committed.
Two personal references from members of Mr Assaad's family spoke of his remorse, growing maturity since the time of the offences and willingness to take steps to address the causes of the offending.
A pre‑sentence report in respect of Mr Assaad noted that he had accepted full responsibility for his behaviour, acknowledged the seriousness of the injuries that were caused and expressed empathy for the victims. He had taken steps to reduce his drinking and had stopped drinking altogether nearly 12 months prior to the sentencing. It was also reported that he was avoiding attending high risk areas such as Northbridge and had distanced himself from negative peers. However, similar claims about changing his lifestyle had been made in 2013.
On the basis of Mr Assaad's history of violent offending he was considered to present a risk of offending and of harm to the community. On the other hand, the sentencing judge noted that he had a number of protective factors including significant family support and a constructive relationship with his partner. The sentencing judge concluded that in the absence of intervention in respect of underlying issues and in light of his history of offences, Mr Assaad was at some risk of reoffending in a similar manner.
Mr Assaad had spent 9 months in custody prior to his release on bail on 7 October 2019. From that time he was on what the sentencing judge described as 'stringent bail conditions' which included a curfew and reporting conditions. The conditions were described as being more onerous than those imposed on Mr Saleh in that there was an earlier curfew and more frequent reporting, at least initially. The sentencing judge treated compliance with these conditions for an 11 month period as a mitigating factor.
Mr Assaad pleaded guilty on 12 March 2020. That plea had been indicated to the prosecution three weeks prior to the trial, which was due to commence on 16 March 2020. The sentencing judge described this plea as 'relatively late'. It was accepted as having the capacity to materially reduce the length and complexity of the trial. The sentencing judge determined that the appropriate discount under s 9AA of the Sentencing Act was 10%. That assessment of the value of the pleas is not disputed.
This court described Mr Assaad's involvement in count 2 as 'active and significant' [71]. The fact that Mr Assaad's offending on count 2 was close in time to count 1 was offset by the fact that there was a different victim involved in each count.
In resentencing Mr Assaad, this court considered additional evidence filed on 12 November 2020, comprising an affidavit of Alexander Smith and annexures to that affidavit. These annexures evidenced that Mr Assaad had attended three sessions with a clinical psychologist, was engaging well with his weekly supervision, was engaging in fortnightly relapse prevention counselling and had participated in multiple urinalysis tests which produced negative results to illicit substances.
Differences between the appellant's and Mr Assaad’s offending and their sentencing
The facts and circumstances which were more favourable to Mr Assaad than the appellant include the following:
(a)The appellant had a criminal history which included previous serious violent offending as an adult. While Mr Assaad also had a criminal history, at the time of the offending he had only committed previous offences of violence as a juvenile.
(b)The appellant was aged 24 at the time of the offending. Mr Assaad was aged 22 at the time of the offending.
(c)Mr Assaad had a traumatic childhood and submitted to this court evidence of his engagement with psychologists and counsellors. The appellant did not provide any personal information of that kind to the primary judge.
(d)Mr Assaad was on bail at the time of the offending. However, the judge who sentenced Mr Assaad at first instance saw his compliance with 'stringent bail conditions' prior to sentencing as a mitigating factor.
The facts and circumstances which were more favourable to the appellant than Mr Assaad include the following:
(a)The appellant received a 20% sentencing discount for his plea of guilty. Mr Asaad received a 10% sentencing discount for his plea.
(b)The appellant initially tried to stop Mr Assaad from getting involved in the confrontation prior to its escalation.
(c)While both the appellant and Mr Assaad claimed they had made lifestyle changes and no longer visited areas that increased their risk of offending, Mr Assaad had previously made similar claims prior to reoffending.
(d)The appellant had an impressive business and employment history. Mr Assaad was not working at the time of sentencing, although he had prospects of work in the future.
The appellant submits that the appellant was not involved in the assault upon Mr Slatter in contrast to Mr Assaad.[2] However, Mr Assaad was punished for this involvement by his sentence of 2 years 9 months’ immediate imprisonment for count 1. Further, the appellant submits that initially the appellant responded to Mr Pointing in self-defence.[3] However, this submission appears to be doubtful in circumstances where Mr Pointing approached the appellant because of the appellant's assault on Mr Rhys.
[2] Appellant’s submissions in support of bail filed 6 December 2021, [12.2].
[3] Appellant’s submissions in support of bail filed 6 December 2021, [12.4].
The State submits that of the blows that can be seen on the CCTV footage the appellant delivered more blows than each of Mr Kakar and Mr Assad.[4] However, some of the blows which were inflicted on Mr Pointing are not captured on the CCTV footage.
[4] Respondent’s submissions in opposition to bail filed 13 December 2021, [10].
The merits of the application for bail
The principles relating to the granting of bail pending the determination of an appeal are well established. See, for example, Serukai v The State of Western Australia.[5]
[5] Serukai v The State of Western Australia [2020] WASCA 127 [12] ‑ [15].
In the present case, I will deal with the application for bail by considering whether the appellant has a strongly arguable case that a different sentence should have been imposed. See s 31(3) read with s 31(4) of the Criminal Appeals Act 2004 (WA).
I have considered the material relied upon by the appellant in support of his application for bail, including his written submissions on the application and the oral submissions made by his counsel today.
I am not satisfied, at this stage, that the merits of the appellant's appeal, including whether a different sentence should have been imposed, are of sufficient strength to justify a grant of bail.
As to proposed ground 1, I have had regard to the sentencing pattern disclosed by previous decisions of this court with some features comparable to the appellant and his offending, including the cases cited by counsel for the appellant and counsel for the State. See, for example, Spirovski v The State of Western Australia;[6] and Castrilli v The State of Western Australia.[7] I have also taken into account a number of other matters including the maximum penalty for the offence, the objective seriousness of the appellant's offending and the mitigating factors (including the appellant's personal circumstances) mentioned by his Honour.
[6] Spirovski v The State of Western Australia [2017] WASCA 230.
[7] Castrilli v The State of Western Australia [2019] WASCA 135.
As to proposed ground 2, I have had regard to the similarities and the differences between the appellant's offending and his personal circumstances, on the one hand, and Mr Assaad's offending and his personal circumstances, on the other.
In all the circumstances, I am not satisfied that there are exceptional reasons why the appellant should not be kept in custody pending the determination of his appeal.
The appellant's application for bail must therefore be dismissed.
However, as I have mentioned, I will make an order expediting the hearing of the appeal. I will also make programming orders to enable the appeal to be heard on 21 January 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
17 DECEMBER 2021
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