Director of Public Prosecutions v El-Nasher
[2013] VCC 1317
•5 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00840
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI EL-NASHAR ABDULLAH EL-NASHER |
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JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 – 5 September 2013 | |
DATE OF SENTENCE: | 5 September 2013 | |
CASE MAY BE CITED AS: | DPP v El-Nasher & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1317 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms F. Skepper | |
| For the Accused | Mr L. Gwynn (Ali) Mr J. Hannebery (Abdullah) |
HIS HONOUR:
1 Abdullah El-Nasher, you have pleaded guilty to a charge of intentionally causing injury to Clinton Harris on 27 September last year and to an offence of driving in a manner dangerous. You, Ali El-Nashar, have also pleaded guilty to the same two offences. The maximum term of imprisonment for intentionally causing injury is ten years' imprisonment and for driving in a manner dangerous, two years' imprisonment.
2 You, Ali El-Nashar, have admitted one prior court appearance, that on 22 July 2008, for common law affray, recklessly causing serious injury and recklessly causing injury. With conviction, you were fined an aggregate sum of $800. Those, of course, are serious offences, but they were dealt with by a fine, so one may reasonably infer that the magistrate who dealt with them in the Children's Court was satisfied that they did not amount to offences at the top end of the range of seriousness. I also note that they were committed five years ago - more - and that you were 17 or 18 at the time that the offences were committed.
3 The prosecution has tendered and relied upon a summary of prosecution opening dated 22 August this year. That is Exhibit A on the plea. It was read in full yesterday and accepted on your behalf by your counsel as being an accurate statement of the facts relevant to this matter, and a proper basis upon which I might proceed to sentence you.
4
I am not going to read it again but I will summarise the effect of the document which refers to the fact that, on 27 September last year at about 10.45 pm, the victim of the assault, Mr Clinton Harris, then aged 38 years, was driving his car along Harrison Street in Brunswick East for the purposes of parking it in an underground car park in that vicinity. He came upon a group of about
30 people, of which you were each apparently part, and a number of vehicles in the street which were apparently, at least in part, interfering with his progress along the street.
5
When he got to the group of people, he wound down his window and asked if someone could help guide his vehicle through. One of the males in the group yelled out, "You dumb fuck, you can't drive, you stupid skip." One of the males in the group kicked the rear passenger side panel of his car. Another jumped on the roof and another smashed the driver's side rear window. He was then punched through the window of his car. He noticed that one assailant was of a very large build and black hair, another of smaller build wearing a white
T-shirt and gold-coloured chain. You, Abdullah, attempted to remove the keys from the ignition of his vehicle and yelled at him to give you the key and get out of the car.
6 I was concerned to enquire during the plea as to whether that action on your part occurred after you had received the injury to your leg. It seems that that was not the case. It seems that the injury occurred as a result of the victim starting his car, putting it into reverse, accelerating hard. He thought he might have hit some vehicles. It may be that he hit you, although it is not apparent exactly how you came by the injury to your leg, given that what you told the police in the interview was, in relation to that aspect of events, "Then he drives off. Runs a bit, runs us over, then obviously I fell down, whatever, cut my legs."
7 In any event, there seems to be no evidence either placed before me in the summary of prosecution opening or otherwise to suggest that the actions of the victim in reversing his car and accelerating hard and making good his escape, were to achieve anything other than to escape the violence that was being perpetrated on him and his vehicle.
8 He said that he was in fear of his life at that time. He could feel blood running down his face and he drove off towards Sydney Road. You two got into your vehicles and chased him. There was then a chase which involved you driving through public streets with a speed limit of 50 or 60 km/h at speeds of up to 100 km/h until you finally trapped him. In my opinion, that nature of that driving was very serious dangerous driving, in that you were chasing somebody, you knew that he realised he was being chased, your two vehicles were travelling essentially in convoy, involved in that chase at high speed and in circumstances that were extremely likely to have placed members of the public in danger. I regard the dangerous driving as being of a high order.
9 Eventually, you trapped the victim in the vicinity of Albion Street and Lygon Street. When you did that, the two of you opened the driver's side door, pulled the victim part of the way out of the car, slammed his head into the door a number of times, threw him onto the road and punched and kicked him to his body and head, not alone but with the help of others who were holding him down. He, the victim, defecated himself out of fear and thought he was going to die. I am not surprised that he thought that he was going to die, in those circumstances.
10 Your conduct was appalling and utterly inexcusable. You both behaved like brutal, cowardly thugs, no doubt emboldened by a mob of your peers and those of that mob that joined you in the pursuit. You showed your victim absolutely no mercy, consideration or normal feelings of humanity.
11
Police and ambulance attended the scene and the victim was taken to the Royal Melbourne Hospital. He was in hospital for a period of two days, had plastic surgery to his top lip and he had a small abrasion to the right forehead, right periorbital haematoma and maxillary tenderness, left smaller periorbital haematoma, full thickness laceration to the upper lip, four chipped teeth, bruising to the left posterolateral chest wall. He described, since the events, experiencing nightmares of the incident and suffering heavy anxiety. He said, in his statement, "Every time I see a similar vehicle or similar group of males, it gives me immense fear and anxiety. Immediately, flashbacks come back. It has caused a large negative impact in both my private and professional life.
I have lost significant confidence in myself. I don’t feel safe where I live. I will have to move to a new location. I feel, if the police had not arrived at that time, they would have killed me."
12 He also describes in his victim impact statement, which is Exhibit B, damage to the retina of his right eye and having to receive treatment for post traumatic stress disorder arising from this incident. He says of the damage to the retina of his right eye that it requires further specialist assessment and may lead to the degeneration of vision in the right eye in later life. "I get light flashes along a specific arc in my field of vision." It is apparent, from the reading of the victim impact statement, that he suffers considerable psychological effect from the events and it is reasonable to infer that he will continue to suffer those effects for some very considerable period of time.
13
I was also provided with photographs of the injury to the victim. It might be said that the photographs are not of particularly good quality and it is always difficult to assess, from the photographs, the nature of the injuries.
I think I have sufficiently described them. Suffice it to say that the photographs bear out what I have just described and show that it is clear that the victim received a beating, and a significant beating at that.
14 The matters personal to you I will deal with individually, dealing first with you, Abdullah El-Nashar. Your counsel helpfully provided me with an outline of submissions, along with references and also a letter from your doctor, outlining the nature of the injury that you received during the first part of the incident that gave rise to these charges. I was also shown a photograph of what appears to be quite a significant cut to your leg.
15 It is apparent, from the material provided on your behalf, that you come from a good family and you have led a blameless life up to the point of this offending conduct. Indeed, you have impressed people with your attitude and it seems that you are well on the way to being a qualified electrician, and to having the opportunity of following that trade and earning good money and leading a prosperous life.
16 You were 20 years old at the time of the offending. You are only 21 now. As your counsel submitted on your behalf, you are to be sentenced as a youthful offender and the principles of law which apply underscore the proposition that rehabilitation is a primary sentencing consideration. Apart from having previous good character and substantial support from your family and good personal references, I would assess your prospects of rehabilitation, staying out of trouble in the future and leading a decent life, putting this behind you, as good. I think you have every chance of leading a blameless life in the future.
17 It is of course to your credit that you pleaded guilty to these offences, and perhaps more importantly that you indicated a willingness to plead guilty at an early stage, albeit to other offences. Nevertheless the offences gave rise to the ultimate offences on this indictment and the further summary offence that was uplifted from the Magistrates' Court. By pleading guilty and indicating an early plea, you have saved the State the cost and inconvenience of a trial, and you have saved your victim the trauma of having to give evidence, and of course the inconvenience of having to give evidence, and that is significant and should result in a substantial discount of sentence.
18 It was submitted on your behalf that your willingness to plead guilty and the indication of an early plea supports the proposition that you are remorseful. It was also submitted that your substantial, if not complete, admissions to the police also supported the proposition that you were remorseful. As to the first, certainly a guilty plea is consistent with remorse. As to the second, I do not see any sign of remorse in the answers you gave to the police, which were designed to exculpate you and amounted to false denials and an attempt to mislead the police as to what genuinely occurred on that particular night. You did not come close to 'fessing up on that night as to what you had done.
19 I find it difficult, frankly, to see any evidence of remorse. I would be inclined to think that, with your background and with your family support and your family around you, that you probably are remorseful, although I find it difficult, as I say, to see any evidence of remorse. Nevertheless, as I have said, I do take into account your plea of guilty as being consistent with that proposition, and of course entitling you to a discount, in any event, for the promotion of the interests of justice that that plea of guilty involves.
20 Turning to you, Ali El-Nashar, much the same I think can be said of you. The same certainly may be said so far as your family history is concerned, in that you are part of a large and, it seems, very functional and loving family, and supportive family. I have no doubt it is correct that the death of your father will have had a significant impact upon you and will have affected your formative years. It is very much to your credit and very much to your brother's credit that you have come through all of that well, and that in your case also, Ali El-Nashar, you have pursued a trade, you have obtained your qualifications as a plumber and have a very good work history behind you. I again have little doubt that although you had a serious brush with the law five years ago, that you are capable of putting all of this behind you and leading a decent life. I suspect strongly that your family will be very encouraging of you to do that and to remain out of trouble in the future, and I have significant confidence, looking at them here today and your other friend, that that will occur.
21 Again, it was submitted on your behalf that your plea of guilty was at an early stage, and that I should take into account, of course, all of the benefits, in terms of the administration of justice, that that early plea entails, particularly the fact that you spared the victim the trauma of having to give evidence.
22 Again, as to remorse, the material tendered on your behalf is generally supportive of the fact that you are a decent person and that you have many very good human qualities, and that you know how to behave properly and decently, and treat people decently. Other than the fact that you have been quieter than usual and not your usual self, I have difficulty in finding evidence to really support the conclusion that you are remorseful. Again, in your case, you told the police a pack of lies. Although you admitted what you had to admit, you certainly did everything to mislead the police as to what actually occurred on that night. So I do not see any evidence of remorse in what you said to the police.
23
I think your prospects of rehabilitation and staying out of trouble in future are good, and I say that without ignoring the prior brush with the courts.
I think that that can be seen as an aberration of youth. This is more difficult to explain as an aberration of youth, but nevertheless I think this will have taught you a very significant lesson, that fact that you had to appear in this court and face the prospect of a term of imprisonment.
24 I am certain that your family will help you stay on the straight and narrow, and you have every prospect of making a good career for yourself. I note that it was specifically submitted on your behalf that you have got no drug, alcohol, mental health or gambling issues standing in the way of rehabilitation. I rather infer that that is the same with your brother, Abdullah.
25 I do not think I need say any more about your personal history and I think that it supports the proposition that I have already accepted: that you are a good candidate for rehabilitation and have a good future ahead of you.
26 It was submitted on behalf of each of you that I can properly discharge my duty as a judge in this case by imposing a Community Corrections Order. You will appreciate, because I am sure it will have been explained to you by your counsel, that I have to take into account a number of matters in determining an appropriate sentence. One of those is denunciation. That is, making it clear that the courts regard this kind of offending conduct as very serious. Another is that I am required to punish you adequately for your offending conduct. I am also required to consider deterring each of you from committing an offence of this kind in the future. I think this court appearance will have taught you such a lesson that I do not regard that as being the most significant sentencing consideration.
27 More significantly, and this I think was accepted very clearly on behalf of each of you by your counsel, I have to give proper effect to general deterrence - that is, deterring others from behaving in this way in the future. I am also required to pay proper regard to your rehabilitation and to facilitate that, as consistent with a proper regard for the other sentencing considerations.
28 You are both to be regarded as youthful offenders. There is no doubt that facilitating your rehabilitation is a primary object of sentencing, but I have to balance that against other considerations. You may remember that, in the course of the plea, I posed the question. "What would an independent observer think about the events of that night if they had seen the whole thing?" Whilst I did not see the whole thing, I have to go on the facts as disclosed on the evidence that is put before me. It seems to me that the characterisation that I made of your conduct on that night is an accurate one. It was submitted on your behalf that I can discharge my duty by treating the punitive aspects of a Community Corrections Order as sufficient punishment and deterrence to meet the needs of the principle of general deterrence, in all the circumstances.
29 The prosecution submitted that no sentence other than an immediate custodial sentence was open on the facts, and that there were a number of aggravating features which militated against any other sentence than a term of immediate imprisonment. It was submitted that your actions amounted to a serious example of the offence of intentionally causing injury. It involved two separate incidents, punching and kicking when the victim was on the ground, aggravated by the fact that all of that was done in company in a public place, and caused members of the public to be frightened about what they saw, and that I should pay proper regard to the victim impact statement as to the physical injuries and the fear that the victim was undoubtedly put under by your conduct. It was submitted that this was a sustained attack and that it was pursued at high speed in your motor vehicles, and that I should pay some regard to specific deterrence, but that denunciation and general deterrence required me to impose a term of imprisonment.
30 I am always hesitant about imposing a term of imprisonment on people as young as you and with as good prospects as you have, but I think denunciation and general deterrence require me to do it in this case.
31
I note the prosecution proposed range, that my sentencing should be within the range of between - in your case, Abdullah - 12 and
18 months' imprisonment with a non parole period of between six and nine months, and in your case, Ali El-Nashar, a total effective sentence of between 14 and 18 months, with a non parole period of between eight and 12 months. It seems to me that the range is a reasonable one but that I should be looking to impose the shortest possible non parole period, in all the circumstances. That is what I propose to do.
32 Abdullah El-Nasher, for the offence of intentionally causing injury, I sentence you to 12 months' imprisonment.
33 For the offence of driving in a manner dangerous, I sentence you to two months' imprisonment.
34 I order that those sentences be served cumulatively, one upon the other. It makes a total effective sentence of 14 months' imprisonment. I order that you serve a minimum of six months before becoming eligible for parole.
35 But for your pleas of guilty, I would have sentenced to a total of 20 months' imprisonment with a non parole period of 12 months.
36 In your case, Ali El-Nashar, for the offence of intentionally causing injury, I sentence you to 12 months' imprisonment.
37 For the offence of driving in a manner dangerous, I sentence you to two months' imprisonment.
38 The total effective sentence is therefore 14 months, however you are a little older and you do have a prior conviction. I reflect that in a slightly higher minimum non parole period, which I set at 7 months' imprisonment.
39 But for your pleas of guilty, I would have sentenced you to 20 months' imprisonment with a non parole period of 13 months' imprisonment.
40 I make the Disposal Orders that are set out in the drafts, which I have signed.
41 Are there any other orders?
42 MS SKEPPER: Just the issue of the licence calculation.
43 HIS HONOUR: Yes. Your licences - the maximum disqualification is four years, is it?
44 MS SKEPPER: Sorry, Your Honour, I know the minimum is six months.
45 HIS HONOUR: Minimum is six months.
46 MS SKEPPER: I am not sure what the maximum is.
47 HIS HONOUR: Yes. Can somebody help me there?
48 MR GWYNN: I am certain it is a minimum of six months, Your Honour.
49 HIS HONOUR: Certain it is a minimum of six months?
50 MR GWYNN: Yes.
51 HIS HONOUR: I think, in all the circumstances, given you are going to be in prison for the next six months, that the appropriate order I make is that it be 12 months, because I think that should carry some punitive element as well. So I will make the orders 12 months from today's date.
52 Are we confident, gentlemen, that that is correct?
53 MR GWYNN: Yes, Your Honour.
54 MR HANNEBERY: Yes, Your Honour.
55 HIS HONOUR: Yes, very well. I will rise now, thank you.
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