Director of Public Prosecutions v Bazi, Gavelan and Bazzi
[2013] VCC 2044
•17 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted (Suitable for Publication) |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00551
CR-13-00558
CR-13-00547
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMSON BAZI, DAVID GAVELAN and ALI BAZZI |
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JUDGE: | Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 November 2013 | |
DATE OF SENTENCE: | 17 December 2013 | |
CASE MAY BE CITED AS: | DPP v Bazi, Gavelan and Bazzi | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2044 | |
REASONS FOR SENTENCE
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Subject: Affray, assault, causing injury intentionally.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Sampson | Craig Hyland, Solicitor |
| for Public Prosecutions | ||
| For the Accused Samson Bazi | Mr P Dunn QC | Malkoun & Co |
| For the Accused David Gavelan | Mr G Turnbull SC | Zahr & Zahr Lawyers |
| For the Accused Ali Bazzi | Mr G Turnbull SC | Zahr & Zahr Lawyers |
HER HONOUR:
1 Samson Bazi, you have pleaded guilty before me to one charge of affray, two charges of causing injury intentionally and one charge of assault.
2 David Gavelan, you have pleaded guilty before me to one charge of affray, two charges of assault and one charge of causing injury intentionally.
3 Ali Bazzi, you have pleaded guilty before me to one charge of affray and one charge of assault.
4 The maximum penalty is five years' imprisonment for each charge of affray, five years' imprisonment for each charge of assault and ten years' imprisonment for each charge of causing injury intentionally.
5 Tendered as Exhibit A on the plea and read aloud in court was the Summary of the Prosecution Opening. The opening (with some concessions made by the prosecution during the hearing of the plea) was accepted as being accurate.
6 On Sunday 18 December 2011, Jeremy Dawson (Dawson), Lewis Ake (Ake), Nore Elgammal (Elgammal) and Harry Stamatiadis (Stamatiadis) were at the Spearmint Rhino gentleman’s club located at King Street Melbourne (the club) after a work Christmas function. Mark Buddle (Buddle), Ali Bazzi (Bazzi) and David Gavelan (Gavelan) arrived at the club at about 1.40am. Justin Clark (Clark) and Samson Bazi (Bazi) arrived and met up with Buddle, Bazzi and Gavelan at approximately 2.30 am.
7 At approximately 2.45am Buddle, who at the time was in the company of Clark, had a verbal argument with Stamatiadis who was standing near the bar at the end closest to the entry to the toilets. Dawson and Ake were trying to calm the situation. Buddle shook hands with Ake. Buddle and Clark walked a few steps away from the group and then Buddle returned, leaned around Dawson and punched Stamatiadis to the head. Dawson and Ake intervened by standing between Stamatiadis and Buddle and then Buddle punched Ake. Dawson became involved and Clark placed Dawson in a headlock and pulled Dawson to the other end of the bar, eventually ending up on the ground.
8 Buddle and Ake punched at each other along the bar. Elgammal followed behind Ake. During this time, Stamatiadis and Elgammal attempted to go and assist Ake and Dawson. At this point Bazi approached them with his fists raised in a fighting stance. Dawson and Ake returned to where Elgammal and Stamatiadis were standing. Bazi then came from Ake’s right side and hit Ake to the head forcing him backwards. Bazi then punched Elgammal to the head knocking him unconscious and to the ground.
9 Clark, Gavelan and Bazzi moved down the bar and approached Elgammal, Stamatiadis, Ake and Dawson. Bazi threw another punch at Ake’s head which Dawson tried to shield. Having returned with his shirt removed, Buddle together with Clark, Gavelan, Bazzi and Bazi surrounded the unknown male on the ground (either Ake or Dawson). Elgammal regained consciousness and got off the ground. Clark, Gavelan, Bazzi and Bazi assaulted the unknown male on the ground including kicking, punching, and stomping on him. Ake then managed to run into the hallway to the toilets.
10 Gavelan, Bazzi and Bazi followed after Clark and Ake while Buddle stood over Dawson and stomped to his upper body area. Bazi returned and kicked Dawson to the upper body area. Bazzi, Bazi and Buddle walked toward the exit.
11 Gavelan and Clark walked back from the hallway past Dawson who was still on the floor unconscious. Gavelan walked to a ledge, grabbed a bottle and returned to where Dawson was lying. At the time, someone was heard to say “Is he still breathing?” Counsel for Mr Gavelan denied that this was said. He submitted that Gavelan remembers stating “is he one of us?” because he could not recognise the victim that was lying on the ground.[1] Gavelan then struck Dawson to the head area with the bottle and stomped on the side of his torso.
[1]Exhibit G10.
12 Gavelan and Clark left the club. All the accused caught a taxi to get away from the club.
13 At the time of the fight the club was full of patrons and staff. The fight placed persons in fear.
14 The incident was captured on CCTV footage within the venue. Subsequent footage was also obtained from the ‘safe city’ cameras, the Hilton hotel and from the taxi caught by the offenders to the hotel. Tendered as Exhibits F-M were DVDs of the CCTV footage of the incident from different angles of the cameras at the club.
15 Whilst the camera angles suggest that there were two distinct periods of time, the incident occurred over a period of two minutes and one second, from the time of the first punch by Buddle to the time of Gavelan’s stomping on Dawson.
16 The facts in this case are very serious and involved a violent attack on persons unknown at a licensed venue in the very early hours of the morning.
17 The injuries suffered by the complainants were:
(a) Ake: 4cm long laceration in the upper lip, small superficial lacerations of the right cheek and bridge of the nose. The injuries required stitches. The prosecution did not submit that these lacerations were caused by the accused.
(b) Dawson: sustained superficial bruises of the right eye, tender swollen right cheek, three broken front teeth. Two teeth had been knocked out and one had been shattered.[2] He suffered a loss of consciousness.
[2]Report dated 25 February 2012 by Dr Andrew Navakas (dentist).
(c) Elgammel: Cuts and bruises to face and swelling. A broken right hand. He suffered a loss of consciousness.
The prosecution did not submit that the injury to his hand was caused by the accused.
(d) Stamatiadis: Swollen left cheek.
18 No victim impact statements have been tendered in this matter.
Samson Bazi
The commission of the offences
19 The prosecution puts the charge of affray against you, Bazi, as commencing at 2.50.11. (Charge 1).
20 The CCTV footage indicates that at 2.50.11 you, Bazi, were “shaping up” and then you moved towards Elgammel at 2.50.18. At 2.50.32 you punched the head of Ake. At 2.50.34 you punched the head of Elgammel causing him to be knocked to the floor in an unconscious state. (Charge 4 – causing injury intentionally).
21 At 2.50.44, 2.50.46 and 2.50.57 you can be seen on the CCTV punching, wrestling and knocking an unknown male on the ground. (Charge 5 – common assault).
22 At 2.51.08 you stomped on Dawson’s upper body area whilst Dawson was on the ground. (Charge 6 – Causing injury intentionally).
23 Your counsel, Mr Dunn, submitted that there are a number of relevant mitigating circumstances that explain, not excuse, your conduct. Mr Dunn submitted that these events occurred in the very early hours of the morning, in premises which were semi-darkened. Two groups were involved. One group was some concreters who had attended a Christmas break-up function and had been drinking heavily.
24 You were not involved in the initial confrontation. Mr Dunn referred to two snapshots of the CCTV footage which indicate that at 2.49.52 one of the concreters, Elgammel, had a bottle and appeared to be aiming to strike the back of somebody else. At 2.49.52 Elgammal struck Clark with a bottle, at 2.49.54 Elgammal struck Buddle with a bottle and at 2.49.56 Elgammel struck Buddle again with the bottle. Buddle and Ake exchanged punches and at 2.50.11 you appeared in a fighting stance. You punched Ake, who went down and then got up. You punched Elgammal and he went down. Ake came back and stepped towards you. You “shaped up” and there was a skirmish. You separated and then returned and stomped to Dawson’s upper body area on the ground. Your total involvement was less than 60 seconds.
25 Mr Dunn submitted that both groups felt a sense of loyalty to one another and you came to assist your friend when he had been attacked with a bottle. However this sense of loyalty was misplaced and cannot be condoned. Mr Dunn conceded that this is not an excuse but an explanation for your conduct.
Personal circumstances
26 Your family came to Australia from Iraq in 1969. You were born in Sydney on 13 April 1983 and are now 30 years old. Your father, Martin, has worked in the one job for City Rail in New South Wales. Your mother, Alice, is a florist. Your parents are both 63 years old. You have a sister, Julia, who is a professional soccer player and lives overseas. Your family are Assyrian and orthodox Christians. Your father attended court to support you.
27 You went to the school in the western suburbs of Sydney. You left school at the end of Year 11 and then worked in various manual jobs. In 2003-2004 you completed a personal trainer’s course at the Australian Institute of Fitness and have worked in the fitness area ever since. In addition you worked at a tattoo parlour in Hampton Park in 2013.
28 You had a previous relationship with Caroline and had a son, Gabriel, in 2008. You separated from Caroline but maintain a close relationship with Gabriel. Up until the time that you were incarcerated on 30 August 2013, you were seeing your son every second weekend.
29 You relocated to Melbourne in 2009.
30 You have one prior conviction, having been convicted and fined $500 on 19 November 2010 for assault occasioning bodily harm.
31 In 2011 you were involved in a fight in a place called Dreams Nightclub which is situated on the corner of Flinders and Elizabeth Street (the Dreams Nightclub offence). You surrendered yourself to the police in relation to the Dreams Nightclub offence and were released on bail. At the time of the commission of these offences, you were on bail in relation to the Dreams Nightclub offence. This is an aggravated feature of your offending.[3]
[3]R v Basso and Frazetto (1999) VSCA 201.
32 On January 12, 2012 you surrendered yourself voluntarily to the police. You were charged and interviewed. Bail was refused. You were bailed on 28 September 2012 but released on 1 October 2012 in this matter. Between 1 October 2012 and August 2013 you maintained employment and worked as a truck driver/loader and also a personal trainer in a gym.
33 You pleaded guilty to causing injury intentionally to Rongomai Wairu outside the male toilets of Dreams Nightclub. On 30 August 2013 you were sentenced in this Court to a term of imprisonment of 22½ months with a non-parole period of 12½ months (the sentence imposed on 30 August 2013).
34 After you were placed in custody on 30 August 2013, you were classified as a medium level offender and sent to Loddon Prison. You have had not had any problems within the prison system and do not belong to any gang or group within the prison.
35 Mr Dunn relied on your plea of guilty, the steps you have taken towards rehabilitation, and the fact that bail was refused in this matter from January 2012 through to the end of September 2012 after which you were released on fairly restricted bail.
36 I take your plea of guilty into account in your favour. This matter resolved after the commencement of the committal proceedings. The community has, by your plea, been spared the time and cost of a prolonged committal and a trial. Witnesses have been spared the ordeal of giving evidence.
Rehabilitation
37 Evidence has been led on your behalf. I have heard from your fiancé, Christie Tsakos. A written reference was also tendered.[4] She said that you plan to marry when you are released from custody. She also spoke of your loving and caring relationship with your son, Gabriel. She visits you every weekend. She said that you and your friend Andrei Meunier plan to establish a training gym and that she plans to assist you to set up that business. Your friend and training partner, Andrei Meunier, also attended court to support you. In a reference dated 4 November 2013, Mr Meunier spoke of his intention to form a partnership to open a gym and training institution.[5]
[4]Exhibit Bazi 5.
[5]Exhibit Bazi 6.
38 I take into account, too, the other material that has been put before me. I refer to the reference by Kellie Thornell[6] and Reverend Father John Kushaba[7].
[6]Exhibit Bazi 3.
[7]Exhibit Bazi 4.
39 I also take into account that you have not been charged with any further offences since these offences occurred two years ago.
40 Your counsel submitted that although you were a member of a motorcycle club when this event occurred, you are no longer a member of that club and that you have ceased any involvement with motorcycle clubs. Mr Dunn referred to the references tendered on your behalf and your intention to reside permanently in Victoria.
41 Taking these matters into account, I am, on balance, satisfied that the chances of your rehabilitation are reasonable.
42 However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence and bear in mind the likelihood of your re-offending. I accept the prosecution’s submission that there is a need for specific deterrence given that you have a relevant prior for assault. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
Verdins
43 A report by Tim Watson-Munro dated 5 November 2013[8] was tendered. He stated:
He concedes that he was affected by the breakdown of the relationship and certainly earlier on, he was suffering a degree of depression and anxiety, referable to difficulties in seeing his son. He conceded that his symptoms have improved since contact was re-established but notwithstanding this, it is apparent that his incarceration and his appreciation of the gravity of his current situation has led to a recrudescence of his anxiety and depression.
[8]Exhibit Bazi 1
44 Mr Dunn did not seek to rely on the principles set out in R v. Verdins.[9]
[9](1997) 16 VR 269.
45 A report by Dr Lindsay Margaret Vowels[10], neuropsychologist, dated 1 August 2013, was also tendered. Dr Vowels referred to several minimal but significant cognitive disabilities which were most likely caused by a prolonged period of heavy alcohol and steroids consumption plus the amount of quite forceful trauma applied to your head as a younger man. In her opinion:
His ABI [acquired brain injury] problems would be best described by the diagnosis Dysexecutive Syndrome with the greatest problems being impulsivity and failure to inhibit inappropriate behaviours in a voluntary reliable way, increased perseveration, and failure to self-monitor and utilise error feedback and reduce conceptual reasoning overall lending to abnormal problem-solving and decision making.
Within the area of memory and attention, his ABI was seen as reduced short term recall, slowed working memory and with difficulties with making verbal associations and retaining verbal information reliably over time or interfering activities. This would in combination constitute the diagnosis of Amnesic Syndrome at the mild end of the spectrum.
[10]Exhibit Bazi 2.
46 Dr Vowels has stated that there was no evidence of psychotic disorder or an easily diagnosed personality disorder.
47 The prosecutor in sentencing submissions submitted that taking into account the need for specific and general deterrence the appropriate sentence would be a head sentence in the range of 12 to 15 months. Mr Dunn conceded that a custodial sentence is within the range.
48 I am bound and do take into account parity of sentence with your co-offenders. Each of the co-offenders is to be sentenced for affray and other offences arising out of the same incident. However the backgrounds, antecedents and the roles of each of you are different. I must balance all of these matters in coming to a just sentence for you individually, whilst applying the principles of parity.
49 These are very serious offences. In the circumstances I have no alternative to the imposition of a custodial sentence. I propose to record convictions on all charges and sentence you, Bazi, as follows:
· On Charge 1 – affray – to a term of imprisonment of nine months;
· On Charge 4 – causing injury intentionally - to a term of imprisonment of ten months;
· On Charge 5 – assault – to a term of imprisonment of nine months;
· On Charge 6 – causing injury intentionally – to a term of imprisonment of twelve months.
50 The base sentence is the term of imprisonment imposed on Charge 6. I direct that one month of each of the sentences imposed on Charges 1, 4 and 5 be served cumulatively on each other and on the sentences imposed on Charge 6. That results in a total effective sentence of 15 months.
51 On 30 August 2013 Judge Ryan sentenced you in relation to a similar offence of intentionally causing injury which occurred in April 2011. As you were on bail when you committed these offences, s.16(3B) of the Sentencing Act applies in relation to cumulation. The prosecution submitted that a degree of cumulation is required.
52 This offending took place eight months after the Dreams Nightclub offence. In Postiglione v The Queen[11] McHugh J stated:
in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.
[11](1997) 189 CLR 295.
53 Having regard to the principles of totality and the need to impose a just and appropriate sentence, there will be a measure of concurrency with the sentence you are currently serving for the Dreams nightclub offence, the subject of the sentence imposed on 30 August 2013. I order that ten months of this sentence be served cumulatively upon the sentence of 22½ months that you are already serving. I declare that you have served a period of 267 days by way of pre-sentence detention in relation to this matter.
54 To avoid any doubt, it is not necessary for me to fix a new single non-parole period pursuant to s.14 of the Sentencing Act 1991 and the provisions of s.15 of the Sentencing Act 1991 will apply and you will first be required to serve the unexpired portion of this sentence.
55 I declare pursuant to s6AAA of the Sentencing Act 1991, that but for your plea of guilty I would have sentenced you to 23 months' imprisonment.
David Gavelan
56 The prosecution put the charge of affray against you as commencing at 2.50.15. (Charge 1).
57 The CCTV footage indicates that you kicked the unknown male (with others) at 2.50.49. You can be seen punching towards the unknown male at 2.50.52 and stomping at the unknown male on the ground at 2.50.54 and again kicking the unknown male on the ground at 2.50.57. (Charge 5 – common assault).
58 At 2.51.42, after observing Dawson lying on the ground in an unconscious state, you approached Dawson and hit the left side of Dawson’s head with a bottle. The prosecution do not assert that the bottle broke. (Charge 7 – common assault).
59 At 2.51.45 you can be seen stomping on the side of the body of Dawson when he was lying on the ground. (Charge 6 – causing injury intentionally).
60 Mr Turnbull, counsel for both Gavelan and Bazzi, also referred to the statement by Mr Glewis, a security guard employed by the club. Mr Glewis adopted his statement at the committal proceedings and said that he had spoken to the complainants earlier as they appeared to be drunk. [12]
[12]Depositions p 99.
61 Mr Turnbull referred to the CCTV footage which was tendered as Exhibit GB1 and submitted that the perception of Gavelan and Bazzi when they came from the back and went through the crowd, was that Clark was on the ground with Dawson on top of him and that Buddle was being attacked by more than one person.
62 Mr Turnbull submitted that Gavelan and Bazzi were late joiners to the affray which limits their culpability to some degree. He submitted that there was no pre-planning and that this was a spontaneous affray. The victims were heavily intoxicated and in the early stages of the affray, the victims were willing participants in circumstances where they appeared to have had a numerical advantage. At least one of them was using a weapon.
63 Mr Turnbull conceded that the most serious phase of the affray was towards the end when you, Gavelan, struck Dawson on the ground. Mr Turnbull submitted that Gavelan did not arm himself with a bottle with the intention of going over and delivering a blow. That was something that arose subsequent to him finding out that Dawson “wasn’t one of us”.
64 Mr Turnbull conceded that Gavelan and Bazzi went well beyond what would be “remotely arguable as self defence”.
65 I take into account that each of Gavelan and Bazzi pleaded guilty and that they intimated early their intention to plead guilty to the offences they have been charged with. I also take into account that each of Gavelan and Bazzi handed themselves in to the police.
66 I also take into account the report dated 5 November 2013 by Hanan Dover, clinical and forensic psychologist[13] which recorded that you, Gavelan, expressed remorse for your conduct and the injuries that were occasioned.
[13]Exhibit G 10.
Personal circumstances
67 You, Gavelan, were born on 14 October 1982 and are now 31 years old.
68 You had a difficult upbringing. Your father was an alcoholic and you witnessed constant physical and verbal abuse by your father against your mother. Your mother left the relationship when you were four years old.
69 You attended Bidwill High School and completed your HSC in 2000.
70 You commenced working part-time as a labourer in the construction industry in 1998 working on weekends. You continued to work full time in the construction industry after you left school. You are currently employed by your brother in the metal roofing industry as a site manager.
71 Your father passed away in 2008. You became involved in a motorcycle club soon after your father passed away. You told Hanan Dover that friends who were also part of the motorcycle club provided support and company. You used steroids during intermittent periods to build your body muscle.
72 Your mother was diagnosed with cancer in 2010 and is still undergoing treatment.
73 In April 2013 you became engaged to Sandra Okaro and hope to get married in 2014.
74 You have no prior convictions. I sentence you as a person of previous good character.
75 I take into account the letters tendered on your behalf which include a reference by your eldest sister Mary Stone[14], your brother Andrew Gavelan[15], your accountant Fred Khalil[16], Reverend Father John Kushaba, Parish priest Holy Apostolic Catholic Assyrian Church of the East Archdiocese of Australia[17], your fiancé Sandra Okaro[18], your friends Gareth Wood[19], Turgay Kopuz[20], Jade Scott[21] and Peter Abboud[22] who speak of you as a hard worker and an honest man of integrity.
[14]Exhibit G1.
[15]Exhibit G8.
[16]Exhibit G6.
[17]Exhibit G9.
[18]Exhibit G11.
[19]Exhibit G2.
[20]Exhibit G3
[21]Exhibit G5.
[22]Exhibit G7.
76 I also take into account the letter dated 1 November 2013 by Mehmet Yagci[23] and accept that that you have made contributions to the community by your involvement in the Roosters Football Club.
[23]Exhibit G4.
Rehabilitation
77 You have been in no further trouble since this matter. You have complied with fairly onerous bail conditions. You have severed your association with your previous associates and are currently working full-time for your brother as a site manager in the metal roofing industry. You make your contribution to the community by coaching a football team[24]. You are involved with, and seek counselling from, Reverend John Father Kushaba.
[24]Exhibit G4.
78 I am, on balance, satisfied that your chances of your rehabilitation are reasonable.
79 Your counsel submitted that the delay of some 24 months since the commission of these offences should be taken into account because of the anxiety and uncertainty you have experienced and the inability to make plans for the future including confirming a wedding date and committing to business. It is a matter I take into account in your favour in relation to sentence.
80 I also take into account that any period in custody would be served away from your family and loved ones.
81 The prosecutor in sentencing submissions submitted that the appropriate sentence would be a head sentence in the range of 12 to 15 months. Mr Turnbull did not demur from that.
82 Mr Turnbull submitted that a wholly suspended sentence was appropriate in your case. He relied upon your plea of guilty, that you handed yourself in, your expressions of contrition and remorse, the absence of any prior convictions, the fact that you have not been involved in criminal activity since the commission of these offences, your excellent work record and participation in the community, that you have distanced yourself from previous associates, the references tendered on your behalf, that you are soon to be married, that the offence was of short duration and that the injuries suffered by the victims were not as bad as one might have feared.
83 The prosecution submitted that a wholly suspended sentence was not appropriate. The prosecutor submitted that an essential feature to take into account in sentencing you is that there was a period of some 12 seconds after Bazi had stomped in the vicinity of the upper body of Mr Dawson at 2.51.07. At that stage you left but returned 15 seconds later with a bottle in your hand and approached Mr Dawson who was unconscious on the ground and hit the bottle to the side of Mr Dawson’s head and then stomped to the side of his body. The prosecution submitted that these particular acts were removed in time from the general assault, at a time when Mr Dawson was lying on the ground.
84 In my judgment the imposition of a wholly suspended sentence in this case would not give sufficient effect to the principles of general deterrence, specific deterrence, the community’s denunciation of your conduct and the need to impose a just punishment. The assault committed by you included cowardly assaults of significant violence against an unconscious man on the ground. In the circumstances I have no alternative to the imposition of a custodial sentence.
85 I propose to record convictions on all charges and sentence you as follows:
· On Charge 1 – affray – to a term of imprisonment of eight months;
· On Charge 5 – common assault – to a term of imprisonment of eight months.
· On Charge 6 – causing injury intentionally – to a term of imprisonment of nine months.
· On Charge 7 – common assault – to a term of imprisonment of six months.
86 The base sentence is the term of imprisonment imposed on Charge 6. I direct that one month of each of the sentences imposed on Charges 1, 5 and 7 be served cumulatively on each other and on the sentences imposed on Charge 6. That results in a total effective sentence of 12 months. I direct that you serve a period of six months before becoming eligible for parole.
87 I declare, pursuant to 6AAA of the Sentencing Act 1991, that but for your plea of guilty, I would have sentenced you to 18 months' imprisonment with a non-parole period of twelve months.
Ali Bazzi
88 The prosecution puts the charge of affray against you as commencing at 2.50.30 when you moved towards the hallway end of the bar with Clark, Gavelan and Bazzi. (Charge 1 – affray).
89 The CCTV footage indicates that at 2.50.39 you were moving towards the hallway with Clark, Gavelan and Bazi.
90 You kicked an unknown male (with others) on two occasions at 2.50.49 and 2.50.52 when he was on the ground.
91 You were not present when the fight broke out. You told John Machlin, clinical psychologist, that upon entering the scene you saw one member of your group bleeding from a wound to the head and entered the fray at that point. You said that it was not your intention to get involved in a fight. You expressed your regret over the victims’ injuries.
92 Your counsel, Mr Turnbull, submitted that your role is a lesser role than that of Mr Gavelan. You did not use a weapon. You were a late joiner and thereafter did not involve yourself in the same level of violence as any of the others. From time to time you tried to restrain people by pulling them back and ushering some of those involved, such as Mr Gavelan, away.
Personal circumstances
93 You were born in Sydney on 6 July 1978 and are 35 years old. You are the eldest son in a family of 12 children. You have older sisters who were born overseas. You have two younger brothers and another sister. Your parents fled Lebanon in 1976 where their town was heavily affected by war.
94 You had a stable upbringing. Your father initially worked with the railways, then in an ice cream factory and subsequently established a clothing store assisted by your mother.
95 You attended primary school in Arncliffe and high school at Hurstville Boys where you completed Year 12. You were among a small minority of “ethnic kids” at that time, especially in primary school. There were racial tensions and fighting was described as a necessary part of life.
96 You lived out of home intermittently from the age of 19. Upon leaving school, you commenced a TAFE course in real estate which was disrupted when you were remanded in custody for 10 or 11 months when you were 20 years old. This was the first time anyone in your family had encountered serious difficulties with the law.
97 On 14 May 2004 you were convicted of supplying a prohibited drug. You spent a lengthy period of time in custody and received a good behaviour bond for two years which was reflective of the time served.
98 To assist with a fresh start, your father bought a pizza shop in Bondi which you ran for six years. You sold the business and subsequently opened another pizza shop in Wolli Creek which has been running well for the past eight years. You have recently opened a frozen yoghurt shop in Haymarket with a business partner and aim to continue expanding the business.[25]
[25]Exhibit B2.
99 You are married to Zeinab and have a close relationship with your two young sons. You also maintain close contact with your extended family including your nephews and nieces.
100 Your mother died in July 2013. Your father is now a pensioner and is struggling to adjust to the loss of his wife after over 50 years of marriage. As the eldest son, you assume a large share of the responsibility in caring for your father. You and your wife now reside in the family home to be with your father to support him through this period. Your father suffers from poor health, having undergone heart surgery.
101 When your mother died, her remains were taken back to Lebanon to be buried. You applied to have your passport back. The court granted that application but the police could not find your passport. You were not able to obtain a passport in time and could not return to Lebanon for the burial.
102 Your counsel referred to the report by John Machlin dated 31 October 2013.[26] In that report your wife confirmed that you are not a violent man. You have been disassociating yourself from the motorcycle club. You told John Machlin that you have been “pushing away from those guys” in favour of “normal people” to avoid the risk of being involved in any further incidents.
[26]Exhibit B1.
103 I also take into account the references by Con Tsokos dated 1 November 2013[27], Vas Brsakovski[28], your accountant Ali Saab[29] and the president of the Arncliffe Aurora Football Club, Ali Jomaa.[30] I accept that you have made a contribution to the community by coaching a team of 11 and 12 year old boys at the Arncliffe Aurora Football Club.
[27]Exhibit B3.
[28]Exhibit B4.
[29]Exhibit B5.
[30]Exhibit B6.
104 I am, on balance, satisfied that the chances of your rehabilitation are reasonably good.
105 In his report John Machlin described the stress of the charges for you and your family over the period of nearly two years since your arrest.[31] I take this delay into account in your favour in sentencing you.
[31]Exhibit B1.
106 In relation to you, Ali Bazzi, the prosecutor submitted that a sentence of within the range of six to nine months' imprisonment wholly suspended for a period of between 12 and 24 months would be within the range given the seriousness of the offences.
107 These are serious offences. In all the circumstances, I have no alternative to the imposition of a custodial sentence. I propose to record convictions on all charges and sentence you as follows:
· On Charge 1 – affray – to a term of imprisonment of seven months;
· On Charge 5 – common assault – to a term of imprisonment of eight months.
108 The base sentence is the term of imprisonment imposed on Charge 5. I direct that one month of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 5. That results in a total effective sentence of nine months.
109 Mr Turnbull relied on your excellent work history, that you have severed ties with your associates, that you have committed no further offences, your contributions to the community, the support you receive from your family and submitted that a wholly suspended would be appropriate in the circumstances of your case. You are a married man and a father of two. Your wife confirmed to the psychologist, John Machlin, that you are not violent man.[32] I accept your counsel’s submissions that in terms of the objective seriousness of your offending, it is clear that you, Ali Bazzi, played the least serious role. Although you were involved in the affray, you made some attempts to put a stop to the fighting.
[32]Exhibit B1.
110 Having considered the submissions made by your counsel, I have come to the conclusion that because of the circumstances existing in your case, it is a proper exercise of my discretion to wholly suspend the sentence. I therefore direct that the whole of the sentence be suspended for a period of 18 months.
111 Within the next 18 months, you must not commit another offence punishable by imprisonment. If that occurs you will be in breach of the terms of the suspended sentence and you should expect to be brought back before the court and ordered to serve the sentence that was suspended. Do you understand the consequences of breaching a suspended sentence?
112 OFFENDER: Yes.
113 HER HONOUR: I declare, pursuant to s.6AAA of the Sentencing Act 1991, that but for your plea of guilty, I would have sentenced you to 14 months' imprisonment.
114 MR JASSAR: Just one matter. The pre-sentence detention, Your Honour, in relation to Samson Bazi.
115 HER HONOUR: Yes.
116 MR JASSAR: Your Honour declared 264 days pre-sentence detention. My calculations are, I have got about 267 days.
117 HER HONOUR: Was that a matter that was the subject of emails? No? Just one moment.
118 MR JASSAR: May I just go through it, Your Honour.
119 HER HONOUR: Just one moment, just let me turn it up.
120 MR JASSAR: Pardon me, Your Honour.
121 HER HONOUR: Yes.
122 MR JASSAR: There are eight days that was declared on the other sentence but. Your Honour, he was remanded eight days in the previous plea. He was remanded on the 22nd and he was sentenced on the 30th, so that was the eight days, so none of the other pre-sentence detention has been taken into account in the previous sentence in His Honour Judge Ryan's sentence for Mr Bazi. In relation to this matter I can go through the dates. On 10 January - - -
123 HER HONOUR: Just one moment. Just one moment. Are you saying that the eight days has been taken into account in the 264 days, or not?
124 MR JASSAR: No, it has not, Your Honour. That is separate altogether.
125 HER HONOUR: Did Judge Ryan take it into account?
126 MR JASSAR: The eight days is from when he remanded Mr Bazi to the time of sentence.
127 HER HONOUR: He took that into account?
128 MR JASSAR: Yes.
129 HER HONOUR: Yes.
130 MR JASSAR: That is not part of this, Your Honour.
131 HER HONOUR: Yes, yes.
132 MR JASSAR: He attended on 10 January at the police station by appointment and was remanded on that day. He appeared at court the next day at the Magistrates' Court but he was still remanded. He was granted bail on 28 September 2012. Albeit he did not get out on that day, he was only released on - - -
133 HER HONOUR: 2012? You are talking about 10 January 2012.
134 MR JASSAR: 2012. That is correct, Your Honour.
135 HER HONOUR: Yes, yes.
136 MR JASSAR: I apologise.
137 HER HONOUR: Yes, he was granted - - -
138 MR JASSAR: He was only released on 2 October 2013 - 12, sorry.
139 HER HONOUR: Released.
140 MR JASSAR: Even though he was granted bail on 28 September.
141 HER HONOUR: Yes, yes.
142 MR JASSAR: From 10 January to the end, so taking 10 January into account as well, that gives us 22 days in January. It is a Leap Year, so there are 29 days in February. March we have got 31 days. April 30. May 31. June 30. July 31. August 31. September 30, and then 1 and 2 October.
143 HER HONOUR: Which is a total of?
144 MR JASSAR: 267 days.
145 HER HONOUR: Yes, thank you. What do you say, Madam Prosecutor?
146 MS TAYLOR: That is correct addition, Your Honour, 267.
147 HER HONOUR: Very well, I will correct, amend the sentence so that where I have said "I declare that you have served 264 days by way of pre-sentence detention in this matter," that will be amended to read, "I declare that you have served a period of 267 days by way of pre-sentence detention in relation to this matter." Does that accord with your instructions?
148 MR JASSAR: Yes Your Honour, if the court pleases.
149 HER HONOUR: Yes, thank you. Any further matters?
150 MR ZAHER: No.
151 HER HONOUR: Very well. Please take Mr Gavelan into custody. So we shall stop the video to Mr Bazi. Thank you. Yes, thank you, Mr Bazi.
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