Director of Public Prosecutions v Ayyad
[2014] VSC 670
•17 December 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 60
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| WAGDY AYYAD | Accused |
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JUDGE: | Bongiorno JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 November 2014, 12 December 2014 |
DATE OF JUDGMENT: | 17 December 2014 |
CASE MAY BE CITED AS: | DPP v Ayyad |
MEDIUM NEUTRAL CITATION: | [2014] VSC 670 |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Multiple stab wounds – Life threatening injuries – Residual physical and psychological effects – No remorse – No point of principle
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P D’Arcy | Office of Public Prosecutions |
| For the Accused | Mr D Sheales | Maselli & Associates |
HIS HONOUR:
On 6 November 2014, Wagdy Ayyad was found guilty by a jury of intentionally causing serious injury to Mina Bastawros, a 45 year old man who was his sister, Randa Barsoum’s, then fiancé. He was acquitted of the principal offence on the indictment, attempted murder. Intentionally causing serious injury carries a maximum sentence of 20 years’ imprisonment.
At about 3 am on 4 February 2013, Ms Barsoum, the prisoner’s sister, received a phone call informing her that staff at a 24 hour 7-Eleven store that she owned in Kings Park, a western suburb of Melbourne, had been robbed. She arranged by telephone to be driven to the shop by Mr Bastawros and went to his house to meet him.
They then travelled together to Ms Barsoum’s shop to deal with the problem of the robbery. Some hours later they returned to Mr Bastawros’ home where they stayed until about 10.30 am. Mr Bastawros went to his motor vehicle, a Mazda Tribute SUV parked in his driveway and sat in the driver’s seat, waiting for Ms Barsoum to join him. As she got into the passenger’s side of the car, Mr Bastawros saw her brother, the prisoner, walking up the driveway from the street. He asked Mr Bastawros what he was doing. Mr Bastawros told him he was about to drive Ms Barsoum back to her home. The prisoner asked why he and his sister were together. Mr Bastawros told him about the robbery.
At about this point, according to the evidence of Mr Bastawros, the prisoner produced a knife from his back pocket and yelled, ‘I’ve told you to keep away from her. I will kill you. I will kill you now. I told you to keep away’. At this point, again according to Mr Bastawros’ evidence, the prisoner stabbed him in the right eye and then, twice, in the left hand, through the open car window. Ms Barsoum began screaming. Mr Bastawros attempted to reverse his car down the drive but could not get it out of the driveway because the prisoner’s van was blocking the exit. He then drove forwards causing the car to collide with a palm tree in front of his house, at which point the prisoner stabbed him again a number of times to the right upper chest and throat. Mr Bastawros stumbled from his vehicle and staggered to the nature strip on the street and collapsed. His next recollection was of being in hospital about a week later.
Medical evidence established Mr Bastawros’ injuries as comprising a laceration to his right eye lid, a stab wound to the neck, another stab wound to a point just below his chin and two further stab wounds to his right upper anterior chest. These injuries were, unsurprisingly, regarded by the doctor who treated Mr Bastawros on his arrival in hospital as life threatening. Although he recovered, he has been left with residual physical disability, particularly with respect to his neck injury and the underlying structures in that area, and significant psychological injury.
A victim impact statement filed by Mr Bastawros, consisting of a report by a psychologist, Mr John Karamanos, of 21 June 2013, notes ongoing psychological problems suffered by Mr Bastawros including depression, flashbacks of the assault, interrupted sleep with nightmares, a pre-occupation with his own security, slow and confused thinking, indecision and poor judgment and social withdrawal. Mr Bastawros also complained to the psychologist of constant right sided chest pain, pain and numbness in his left hand and headaches with occasional dizziness. Mr Karamanos was of the opinion that it was too early to predict Mr Bastawros’ psychological outcome but that he would require psychiatric assessment and treatment.
Upon his trial, the prisoner maintained that he acted in self-defence and that the knife used to injure Mr Bastawros was in fact his, Mr Bastawros’ own knife, which he had had on the dashboard of his motor vehicle and which he had grabbed at the beginning of the altercation. The jury, unsurprisingly, rejected the prisoner’s self-defence claim. If, as he claimed, Mr Bastawros was the aggressor, he, the prisoner, could have simply walked away from the car.
As to who produced the knife, the only evidence apart from that given by Mr Bastawros and that found in the prisoner’s record of interview, was the evidence of the prisoner’s sister, Ms Barsoum. However, no reliance whatever can be placed on Ms Barsoum’s evidence. Initially, she signed a police statement, with jurat, in which she said that her brother had produced the knife, only to change her story in this Court to say that it was Mr Bastawros who produced it, not from the dashboard as the prisoner had maintained in his police interview, but from a pocket on the driver’s side door of the car.
The reasons she gave for this dramatic and completely unconvincing reversal was that she was scared and under pressure. She said that Mr Bastawros had forced her to provide police with the version in her statement. For this and other reasons associated with her evidence generally and the credit issues arising therefrom, I place no credence whatsoever on Ms Barsoum’s evidence in this respect or indeed in any other. It is clear from the serious injuries sustained by Mr Bastawros and the almost total lack of any evidence of assault on the prisoner — he had at most a few superficial scratches — the prisoner inflicted these injuries in the course of committing this serious crime.
I accept the evidence of the victim, Mr Bastawros, on the issue of who produced the knife. I am satisfied beyond reasonable doubt that the prisoner had the knife at all relevant times, that he produced it, that he stabbed Mr Bastawros with it and, for what it is worth, that he threw it away afterwards.
The prisoner is almost 40. He was born in Egypt, the eldest of three children. He migrated to Australia in about 2007 on a student visa. His sister, Ms Barsoum, had migrated about 10 years earlier. On arrival he worked for his sister in her 7-Eleven store doing 12 hour night shifts. Eventually he bought a van and worked as a courier, a job he was still doing when the event which led to his present situation occurred.
The prisoner is married to a woman who has two children from a previous relationship. The couple have had the custody of those children but have no children of their own. The prisoner has no prior convictions of any kind although he admitted to a psychologist who recently examined him and whose report was tendered without objection that he had used illicit drugs. This occurred, on some occasions, in the company of the victim, Mr Bastawros. Those drugs included methamphetamine.
The psychologist’s report was written by Mr Warwick Arblaster, a counselling psychologist, following a consultation at the Metropolitan Remand Centre on 30 November 2014. Mr Arblaster was not called as a witness. The prisoner told Mr Arblaster that he had attended a general practitioner about a month prior to committing this offence and that the general practitioner, a Dr Bach, had prescribed both Valium and Avanza, a drug Mr Arblaster recognised as being used to treat major depressive disorders.
The prisoner also told the psychologist that he had been referred to a psychiatrist, Dr Ramzi Mohammed, and had consulted another psychologist, Dr Tony Berotta, for ‘anger management intervention’. These practitioners, who it can be inferred could have shed much light on the prisoner’s psychological state immediately before this offence, were not called on the prisoner’s plea hearing and no reports from them were produced. The prisoner’s counsel said he had been given a report of Dr Ramzi Mohammed, but did not seek to tender it. It is also clear from Mr Arblaster’s report that he did not have the benefit of any information from the prisoner’s treating psychiatrist, or his treating psychologist. In the circumstances the evidence provided by Mr Arblaster must be viewed in light of the absence of evidence from experts who had seen the prisoner professionally at a highly relevant time.
Mr Arblaster reported that the prisoner said he was very depressed leading up to the time of his offence due to his concern for his sister and her children. He had also recently ingested methamphetamine. The psychologist appears to have accepted without question the prisoner’s assertion in this regard and was prepared to reach a conclusion that he was psychologically distressed and impacted up to the time of the offence. He is, said the psychologist, ‘an individual who is unhappy, angry, resentful and confused presenting in a state of crisis’. He concluded his report by proffering the opinion that the prisoner requires a ‘full psychiatric assessment and probably requires pharmacological intervention and is very likely to suffer psychological impact and hardship if sentenced to a lengthy gaol term’.
It is not easy to evaluate the real worth of this opinion in the circumstances of this case. Not only was independent evidence, which clearly existed, not before the Court, but Mr Arblaster considered the prisoner’s condition against a factual background, namely, that he acted in self-defence, when that defence had been rejected by the jury. Nevertheless the prisoner’s counsel urged a conclusion that included taking into account ‘what was operational’ at the time of the commission of the crime.
The only conclusion I am prepared to draw from this material favourable to the prisoner, is that a combination of stress about his sister’s welfare and her relationship with Mr Bastawros and perhaps the ingestion of illicit drugs may have affected his mental functioning at the time of this offence. However I do not accept that his volition was in any way affected or that he lacked an appreciation of the full impact of what he was doing when he attacked Mr Bastawros.
His sentence should be determined on the basis that his moral culpability for what he did is reduced to a very small degree by those circumstances so that the element of punishment is slightly reduced as a sentencing consideration as is the element of denunciation.
The sentencing considerations relevant to this case, apart from those already mentioned, are general deterrence, specific deterrence, rehabilitation and the protection of the community. That the actions of the prisoner in seeking to resolve an interpersonal dispute by the use of a knife are to be deplored is obvious. The Court’s response must be to impose a sentence which has the object of deterring others from doing the same thing in similar circumstances.
As far as specific deterrence is concerned, it should be inferred from the prisoner’s previously unblemished criminal record that he is unlikely to offend in this way again. Hence specific deterrence is, I consider, of less importance than it might be in another case. Likewise, as sentencing considerations the prisoner’s rehabilitation and the protection of the community do not require much attention. Unless very similar circumstances presented themselves to him in the future it is unlikely he would offend in this way again. As antisocial as his conduct might have been, this offence (his only criminal offending apart from illegal drug use) has concerned a victim in a close specific relationship, not the public at large.
As far as the prisoner personally is concerned, it is clear that he has shown no remorse for his actions. He has not accepted the jury’s verdict, as evidenced by the history he gave to Mr Arblaster. He is thus deprived of the further consideration he might have received had he even now expressed some contrition for what he did. However, it is also clear that he has the support of his family and will, upon his release, probably continue to have that support as a further aid to his not offending further. Taking into account all of the matters to which I have referred, the objective gravity of this offence must not be overlooked. The inflicting of multiple stab wounds to the upper body of a person seated in a motorcar, unable to take effective evasive or defensive action, is a serious crime. It must be visited with serious consequences.
It is the sentence of the Court that the prisoner be imprisoned for seven years. It is further ordered that he serve a minimum of four and a half years before being eligible for parole.
There will be a declaration that the prisoner has already served 41 days of relevant pre-sentence detention and I direct that that declaration and its effect be entered into the records of the Court.
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