Director of Public Prosecutions v Eldayar - [2016] TASCCA 16

[2016] TASCCA 16

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Director of Public Prosecutions v Eldayar [2016] TASCCA 16

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  ELDAYAR, Elsawi Ahmed

FILE NO:  CCA 1838/2016
DELIVERED ON:  4 October 2016
DELIVERED AT:  Hobart
HEARING DATE:  27 September 2016
JUDGMENT OF:  Blow CJ, Tennent and Brett JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Causing grievous bodily harm – Sentence of 15 months' imprisonment with 6 months suspended and parole eligibility after 4½ months manifestly inadequate.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  A Shand
           Respondent:  R Mainwaring
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2016] TASCCA 16
Number of paragraphs: 20

Serial No 16/2016
File No CCA 1838/2016

DIRECTOR OF PUBLIC PROSECUTIONS v ELSAWI AHMED ELDAYAR

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
TENNENT J
BRETT J
4 October 2016

Orders of the Court

Appeal allowed.

Sentence of 15 months' imprisonment with effect from 1 January 2016 varied by increasing the head sentence from 15 months to 27 months.

Order suspending part of that sentence quashed.

Order of the learned sentencing judge as to parole quashed.

Respondent not to be eligible for parole until he has served half of the sentence of 27 months' imprisonment, and half of the suspended sentence of 12 months' imprisonment activated by the learned sentencing judge.

Serial No 16/2016
File No CCA 1838/2016

DIRECTOR OF PUBLIC PROSECUTIONS v ELSAWI AHMED ELDAYAR

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ

4 October 2016

In the early hours of the morning of 25 December 2015 the respondent, Elsawi Eldayar, committed the crime of causing grievous bodily harm by punching another man to the face, causing him to fall backwards and hit his head on the ground. He was charged with that crime, and pleaded guilty before Estcourt J, who sentenced him to 15 months' imprisonment, suspended 6 months of that sentence, and made an order that would result in him being eligible for parole after serving half of the operative part of that sentence. That is to say, he made an order to the effect that the respondent will be eligible for parole after serving 4½ months of the sentence. His Honour also made a probation order, to operate for 12 months from the respondent's release from prison, with special conditions that he must attend education and other programs as directed by the Court or a probation officer, and must undergo assessment and treatment for alcohol or drug dependency as directed by a probation officer. This is an appeal by the Director of Public Prosecutions against that sentence. The Director contends that the sentence was manifestly inadequate.
The victim of this crime was a man named Gift Ochaya. He was drinking with the respondent and others for some hours on the night in question. At about 3am, the respondent, Mr Ochaya and two other men were walking up Elizabeth Street towards the Republic Bar when an argument broke out between Mr Ochaya and the respondent. The respondent was very drunk. He raised his arm and punched Mr Ochaya once to the face. Mr Ochaya immediately lost consciousness. He fell backwards onto the road and lay there bleeding, and not moving. The respondent and his companions all walked away, leaving him unconscious on the ground. The three men went to a flat in North Hobart, where the respondent went to sleep. He was arrested on 1 January 2016 and has been in custody ever since. The sentence to which this appeal relates was backdated to that day.
Mr Ochaya was found, still unconscious, by a group of foreign tourists. They flagged down a taxi driver. The police and an ambulance were called. Mr Ochaya was taken to the Royal Hobart Hospital, and not discharged until 27 January, nearly five weeks after the respondent's attack on him.
He suffered a severe brain injury which featured bruising to the left side of his brain, cerebral contusions in his left frontal lobe and left temporal lobe, a traumatic subarachnoid haemorrhage, and a fracture of the base of the skull. The consequences of his injury can be summarised as follows:
·    On his admission to hospital, he required life support by means of intubation, ventilation and subsequent sedation in order to avoid any further brain damage resulting from a compromised supply of oxygen to the brain, and from raised intracranial pressure caused by his injuries.
·    He was in a medically induced coma for about the first two weeks that he was in hospital.
·    As a result of his ventilation, which saved his life, he acquired pneumonia. That is a common side effect of mechanical ventilation.
·    He had a mild hypernatremia (a high sodium level in the blood) and hypertension (high blood pressure). He had never suffered from those conditions before.
·    His verbal memory, new learning, naming and visual memory have been affected.
·    He has no recollection of the attack or the events leading up to it.
·    His high-level balance has been impaired.
·    He has problems with his brain processing speed, and high level attention deficits in mental manipulation. His visuo-spatial/visuo-constructional skills were reduced.
·    When first discharged from hospital he was having between one and three seizures per day.
·    Following his discharge from hospital he had to take various forms of medication, undertake a rehabilitation program, and return as an outpatient for continuing treatment and monitoring.
·    He has lost his senses of taste and smell. It is not yet known whether they will return. He lost his appetite as a result of being unable to smell or taste food.
·    He felt weak for four to five months after his discharge from hospital.
·    He had trouble sleeping. At the time of the sentencing (24 June 2016), he was continuing to take sleeping medication.
·    He had been undertaking tertiary studies, and had taken 2015 off as a gap year. Before the attack, he was planning to commence a commerce/business degree course at a university, presumably the University of Tasmania, at the start of the 2016 academic year. Because of his brain injury, he deferred that plan. There is a risk that he might not be able to complete the degree course, or that he might not attain the same level of achievement that he would otherwise have attained.
·    Before the attack he was an active sportsman. He played soccer regularly. His treating doctors advised him not to play any sport for a year but, against medical advice, he resumed playing soccer in about May of this year.
·    Before the attack he was working with an organisation called Tas Disability, but he had to give up that work because of his memory problem.
·    Before the attack he had a learner driver's licence. As a result of his brain injury he became unfit to drive and ceased to hold that licence. It seems likely that he will recover from his injury sufficiently to be able to obtain a driving licence.
·    He has been advised not to drink any alcohol in order to maximise the recovery from his brain injury.
·    It is likely that he will have continuing problems with short-term memory, organising his day-to-day life, using his intellectual ability to problem solve, and making rational decisions.
·    There have been psychological consequences including anxiety, fear of other people, reluctance to go out, and reducing his friendship group to a very small group whom he really trusts.
·    His injury has had an impact on his family, who have had to assist in looking after him in various ways.
The respondent was 20 years old when he committed this crime. He is a Sudanese refugee. He came to Australia with his mother and three siblings when he was 13 years old. He has not seen his father since he was young. He had a very harsh childhood, when he saw a lot of violence, lived on the streets with his family for extensive periods, witnessed a lot of stabbings, and was sometimes dangerously close to places where a war was being fought. He and his siblings had to collect things like scrap metal and plastic and sell them to get money to support the family. In Tasmania he struggled as a student, but completed year 12, planned to commence an apprenticeship in construction, and did a course at TAFE in the hope of finding an apprenticeship position, but did not find one.
He has prior convictions relating to drunken assaults on another man in somewhat similar circumstances. At about 3am on 21 September 2014, on a street in the Hobart waterfront area, he became enraged with that man, took a bottle from a bin, struck the man on the head with it several times, walked off, returned, and struck him to the head from behind with the bottle, knocking him unconscious. He was charged with two counts of assault under the Criminal Code, pleaded guilty, and was dealt with leniently. On 17 June 2015, he was sentenced to 12 months' imprisonment, wholly suspended on conditions that (a) for a period of three years he was to be of good behaviour and commit no offence punishable by imprisonment, and (b) he was to complete 220 hours of community service.
It was about six months after that sentencing that he committed the crime to which this appeal relates. He thereby breached the first condition of his suspended sentence. In the proceedings relating to this crime, the learned sentencing judge was asked to activate the suspended sentence pursuant to s 27 of the Sentencing Act 1997. His Honour made orders to the following effect:
· That the sentence of 12 months' imprisonment be activated.
· That the respondent not be eligible for parole until he has served "one half of the total operative period of his imprisonment". By that his Honour no doubt meant 6 months of the activated suspended sentence, plus 4½ months of the operative 9 months of the new partly suspended sentence for causing grievous bodily harm.
By virtue of s 27(6) of the Sentencing Act, the activated sentence was required to be served cumulatively with the operative part of the sentence for causing grievous bodily harm since no order to the contrary was made.
The respondent also had a number of relatively insignificant convictions for driving offences, breach of bail, failure to appear, and possession of a prohibited plant.
In my view the only appropriate penalty in this case was a significant sentence of imprisonment, because of the following factors.
·    The injuries and their consequences were extremely serious, as detailed above.
·    This was the second time in 16 months that the respondent had knocked a man unconscious in a drunken act of street violence.
·    The respondent hit Mr Ochaya so hard that he lost consciousness before hitting the ground.
·    He displayed a complete disregard for human life by leaving his victim unconscious and bleeding on the road.
·    His crime amounted to a breach of a condition of the suspended sentence imposed on him about six months previously for similar crimes.
However there are mitigating factors that must be taken into account. Those factors, and my comments in relation to them, can be summarised as follows:
·    The respondent had a terrible childhood in Africa, as detailed above.
·    The respondent was only 21 years old at the time of sentencing. He was still a youthful offender, though not a first offender.
·    He was sentenced on the basis that he did not intend to cause grievous bodily harm, but was guilty on the basis of recklessly causing grievous bodily harm.
·    He pleaded guilty, with the result that the cost and inconvenience of a trial were avoided, and the victim did not have to give evidence. On the one hand, the case against him was very strong since the police obtained closed circuit television footage which showed the incident during which the crime was committed. On the other hand, the respondent had no recollection of his crime because of drunkenness, and it counts in his favour that he decided to concede, by his plea, that he must have foreseen serious injury to his victim as a likely consequence of his punch.
·    Remorse was a relevant factor. The learned sentencing judge was told that the respondent felt terrible about the position that Mr Ochaya was in.
·    The respondent had taken steps towards his rehabilitation before committing this crime. He had obtained employment at Woolworths, had "toned down" his use of alcohol, and had been performing community service pursuant to the order made in June 2015.
·    Because the activated sentence of 12 months' imprisonment was also to be served by the respondent, the learned sentencing judge was required to apply the "totality principle" as discussed by the High Court in Mill v The Queen (1988) 166 CLR 59.
Having regard to all the circumstances, particularly the terrible impact on the victim of this crime, and the fact that it was committed in breach of a condition of a suspended sentence imposed in relation to recent similar conduct, I am satisfied that the head sentence of 15 months' imprisonment, quite apart from its partial suspension and provision for parole, was manifestly inadequate. It was not at all proportionate to the seriousness of the respondent's offending. It was unreasonable and plainly unjust: House v The King (1936) 55 CLR 499 at 505. There must have been some unidentifiable error on the part of the learned sentencing judge in the exercise of his discretion. The Court has a residual discretion to dismiss an appeal of this nature, but there is no reason why that course should be taken in this case: Director of Public Prosecutions v Swan [2016] TASCCA 9 at [24]-[29].
In my view the respondent's sentence for this crime should be increased to 27 months' imprisonment, with no part of that sentence suspended. Because of the various mitigating factors that I have mentioned, I would fix the shortest possible non-parole period, that being half of the sentence: Sentencing Act, s 17(3). I would not disturb the probation order made by the learned sentencing judge, but I acknowledge that it may have no practical effect if the respondent spends 12 months or more on parole.
In my view, the learned sentencing judge should have specified separate non-parole periods in respect of the activated suspended sentence and the new sentence. His Honour was exercising the power conferred by s 17(2)(b) of the Sentencing Act, which provides that a court that imposes a sentence of imprisonment "may order … that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order". That provision applies to activated suspended sentences by virtue of s 27(6A)(b). In my view it should not be interpreted as empowering a court to impose a single parole ineligibility period in respect of two or more sentences: Carr v Department of Police and Emergency Management [2009] TASSC 74 at [8].
For these reasons, I would make orders as follows:
·    That the sentence of 15 months' imprisonment with effect from 1 January 2016 be varied by increasing the head sentence from 15 months to 27 months.
·    That the order suspending part of that sentence be quashed.
·    That the order of the learned sentencing judge as to parole be quashed.
·    That the respondent not be eligible for parole until he has served half of the sentence of 27 months' imprisonment, and half of the suspended sentence of 12 months' imprisonment activated by the learned sentencing judge.

File No CCA 1838/2016

DIRECTOR OF PUBLIC PROSECUTIONS v ELSAWI AHMED ELDAYAR

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J

4 October 2016

I have had the benefit of reading the reasons of the Chief Justice in draft form. I agree with those reasons and the orders he proposes.

File No CCA 1838/2016

DIRECTOR OF PUBLIC PROSECUTIONS v ELSAWI AHMED ELDAYAR

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BRETT J

4 October 2016

I have had the advantage of reading the draft reasons prepared by the learned Chief Justice in respect of this matter. I agree with his Honour's conclusions and his reasons for them.
I am very aware that this Court should not interfere with the sentencing discretion of the learned sentencing judge unless satisfied that error in the sentencing process can be inferred because the sentence imposed was so inadequate that there can be no explanation for it other than "some undefinable error in the exercise of the discretion". (See the cases collected by Pearce J in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [10].) Given that this is an appeal by the prosecution against the adequacy of sentence, consideration also needs to be given to the question of whether there are any reasons to dismiss the appeal, in the exercise of the residual discretion which arises, notwithstanding the Criminal Code s 402(4B). (See Director of Public Prosecutions v Swan at [24]-[29].)
In this case, I am satisfied that error has been demonstrated and that there is no other reason to dismiss the appeal. In particular, the issue of parity does not arise, and question of delay is not a significant factor, given that the respondent has been in custody since sentencing, in any event. I agree with the Chief Justice that the impact of the crime on the victim, the fact that the injuries were occasioned by drunken violence in the street late at night, and the need for personal deterrence, having regard to the respondent's repetition of this conduct so soon after the imposition of a suspended sentence for similar conduct and while he was still subject to that suspended sentence, made this a serious case. The leniency extended by the learned sentencing judge did not adequately respond to these factors.
The orders should be those proposed by the learned Chief Justice.