Director of Public Prosecutions v Markhail
[2022] VCC 286
•11 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02249
CR-21-02247
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD MARKHAIL ALI EL NASHER |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2022 | |
DATE OF SENTENCE: | 11 March 2022 | |
CASE MAY BE CITED AS: | DPP v Markhail & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 286 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Plea of guilty - affray – co-accused – principal offender charged with intentionally causing injury – co-accused charged with recklessly causing injury on a complicity basis – serious offending – injuries to victim sustained by repeatedly being struck with a knife - early pleas – added utility due to COVID-19 - co-accused a relatively youthful offender - general deterrence, denunciation and community protection paramount sentencing considerations
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited: R v. Verdins (2007) 16 VR 269; The Queen v. Lacey [2007] VSCA 196; Worboyes v The Queen [2021] VSCA 169; R v Mills (1998) 4 VR 235; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428
Sentence: MARKHAIL: Total effective sentence of 21 months’ imprisonment, non-parole period of 12 months fixed
EL NASHER: Total effective sentence of three years and nine months’ imprisonment, non-parole period of two years and four months fixed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Clancy (plea and sentence) | Office of Public Prosecutions Victoria |
| For Accused El Nasher For Accused Markhail | Mr C. Farrington Mr S. Tovey | Stephen Andrianakis & Associates Milides Lawyers |
HER HONOUR:
1Richard Markhail and Ali El Nasher, you have both pleaded guilty to one charge of affray contrary to s195H of the Crimes Act 1958 ('the Act’) arising from an incident on 11 February 2021. The maximum penalty for the offence of affray is five years' imprisonment.
2Arising from the same incident, Mr El Nasher, you have pleaded guilty to one charge of intentionally causing injury contrary to s18 of the Act, the maximum penalty for which is ten years' imprisonment. You, Mr Markhail, have pleaded guilty to one charge of recklessly causing injury contrary to s18 of the Act, the maximum penalty for which is five years' imprisonment.
3The circumstances of your offending are detailed in a summary of prosecution opening dated 7 February 2022 which represents the agreed basis upon which you are to be sentenced.
Offending
4On Thursday, 11 February 2021 you, Mr El Nasher, left an apartment complex in the Docklands, driving a white Kia sedan. You then drove to an unknown location and picked up Mr Markhail.
5The victim in this matter is Mr Ali Al Hamza. At the time of this incident, Mr Al Hamza ran a vehicle towing business. On 11 February 2021, Mr Al Hamza was towing a broken down vehicle to a mechanic in Campbellfield as a favour for a friend. At approximately 12.55 pm, Mr Al Hamza, together with his younger brother, arrived at the mechanical repair business, located in a factory in Somerset Road, Campbellfield, in his Isuzu tow truck.
6Shortly after arriving, you, Mr El Nasher, drove past Mr Al Hamza’s tow truck in the driveway of the factory, at which point you performed a U-turn and parked beside the victim’s tow truck in the access driveway of nearby factories. As Mr Al Hamza got out of his tow truck to walk towards the rear of the factory, you, Mr El Nasher, reversed your vehicle at a fast speed towards the victim, attempting to run him over. Mr Al Hamza was forced to take evasive action. You then collided into multiple parked cars.
7In retaliation, Mr Al Hamza struck your vehicle with a ratchet strap bar. You, Mr El Nasher, then drove forward, attempting to hit the victim again. You then drove your vehicle into the driveway. The victim and his brother headed to the side of the building out of the path of your vehicle. Although you were all out of view of CCTV footage at this time, workers in nearby factories came to investigate after hearing the verbal altercation.
8The altercation then moved to the factory, where the affray that followed was captured on CCTV.
9You, Mr El Nasher, together with you, Mr Markhail, walked directly towards the victim, verbally berating him. During this altercation, you, Mr Markhail, were holding a small black-handled knife in your right hand which you used to make stabbing movements in the direction of the victim’s torso. You held a cigarette in your left hand.
10The two of you both moved closer to the victim. You, Mr Markhail, began to point at the victim with your left hand. You, Mr El Nasher, reached out with your right hand on two occasions, touching Mr Markhail’s left leg, attempting to get his attention. Mr Markhail did not notice and continued to argue with the victim while Mr Markhail stood with the knife behind his back.
11
At this point, Mr Al Hamza’s attention was momentarily drawn from the two of you when the operator of a nearby business entered the area. You, Mr Markhail, moved closer to Mr El Nasher while continuing to hold your right hand with the knife behind your back. You, Mr El Nasher, attempted to retrieve the knife from
Mr Markhail, and managed to do so on your second attempt.
12With the knife in your hand, you, Mr El Nasher, lunged at Mr Al Hamza with the knife, stabbing him to the left elbow and bicep area. You continued to move after Mr Al Hamza and to stab at him, making further puncture wounds and cuts to his stomach and ribs. Mr Markhail, the CCTV captures you following the victim and Mr El Nasher as they moved across the factory floor to remain involved in the assault. Mr Al Hamza made repeated attempts to retreat, but was continually chased down by you both. In addition you, Mr Markhail, obtained a long-handled broom and used it to swing at the victim as he attempted to retreat.
13The victim was caught by you, Mr El Nasher, between a boat and some oil drums at the rear of the factory. Here, you stabbed the victim in the upper left chest above his heart, resulting in a punctured left lung. You then forced the victim against an oil drum and stabbed the knife into the left-hand side of his neck. The assault only ceased when the victim forced his way out of the rear door of the factory and ran from the property to shelter at the rear of a nearby factory. These circumstances are the subject of Charge 2 – intentionally causing injury (applicable to you, Mr El Nasher) and Charge 3 – recklessly causing injury (applicable to you, Mr Markhail).
14The victim’s younger brother struck you, Mr El Nasher, to the side of your head with his fist. Mr Markhail, you then attempted to assault the victim’s brother but you were prevented from doing so by other witnesses. This ended the affray that is the subject of Charge 1.
15You, Mr El Nasher, ran to your vehicle and reversed up the driveway. You waited for Mr Markhail who, after retrieving his phone from the factory, entered the passenger seat of your car and the two of you left.
16After Mr Al Hamza’s brother called 000, the victim was transported to the Royal Melbourne Hospital where he was admitted for treatment. Mr Al Hamza suffered a traumatic left side pneumothorax with partial collapse of his left lung which required treatment by the insertion of an intercostal catheter for three days. He also sustained a penetrating trauma to his neck, left supraclavicular region and his left lateral chest wall. Superficial-deep lacerations to his left elbow were sutured in the emergency department as were other superficial lacerations to his left forearm, left shoulder, left anterior chest wall and left lateral neck area.
17Mr El Nasher, you were arrested by police on 12 February 2021 after a search warrant was executed at your home. Prior to entering your home, the police saw a mobile phone thrown from the balcony by an unknown person. The phone was later located by police. You have been remanded since this date.
18Mr Markhail, you were arrested on 17 February 2021 after a search warrant was executed at your home. You were remanded in custody until 10 September 2021, on which date you were granted bail in the Magistrates’ Court.
19You both made ‘no comment’ when interviewed by police, in accordance with your rights.
20Mr El Nasher, you were on bail at the time of this offence. Mr Markhail, you were also on bail and subject to a community correction order imposed by the Magistrates’ Court on 12 June 2020 at the time.
Gravity of offending
21The offending was clearly serious.
22This was not a planned attack, however once you recognised the victim, the affray commenced immediately upon his entering the factory premises. It was preceded by you, Mr El Nasher, attempting to run the victim over twice with your car. Although you are not charged in respect of that conduct, it is significant context to the affray that then follows. The victim had removed himself to the factory. Once there, the violent confrontation commenced.
23You, Mr El Nasher, are to be sentenced for intentionally causing the victim’s injury. The injury sustained by him included a partially collapsed lung requiring medical attention in the emergency department, and sutures for the multiple lacerations inflicted by the knife.
24Mr Markhail, the basis of your culpability for the offence of recklessly causing injury to the victim arises from your agreement with Mr El Nasher that an assault would be committed. In handing the knife over to Mr El Nasher you were reckless as to whether injury would be caused to him. By your conduct in pursuing the victim as he attempted to flee the assault, you facilitated the ongoing attack, including by swinging the long-handled broom at him.
25I accept the prosecution submissions that the offending is aggravated by the fact:
· that the offending occurred in company;
· that the knife was used to inflict multiple injuries;
· that the assault continued, even after the victim attempted to flee and was then pursued and caught, at which time the victim was stabbed in the chest, puncturing his left lung;
· that the knife attack by you, Mr El Nasher, involved you stabbing the victim multiple times, including to areas of his chest and neck, posing an obvious danger of harm; and
· that the injuries sustained by the victim required the insertion of an intercostal catheter for three days to treat the partial collapse of his left lung and sutures for multiple lacerations, including a penetrating trauma to his neck.
26This was a fast-moving, violent attack on the victim, following an altercation between you. It was only a matter of luck that the victim was not more seriously injured. Although no victim impact statement has been provided, this must have been a frightening ordeal for Mr Al Hamza.
27Whilst some of those observing the altercation are seen holding poles, there is no basis to find that you were acting in response to threats from that group. Mr Al Hamza sought to retaliate with the ratchet strap bar, but only after first being driven at by you, Mr El Nasher. There is no evidence either of you were struck or directly threatened by the males holding poles during the incident. You were the aggressors.
28You, Mr El Nasher, are to be sentenced for intentionally causing the victim’s injuries with the knife. You, Mr Markhail, are to be sentenced on the basis you foresaw the probability that the victim would suffer an injury. The agreement you had with Mr El Nasher commenced when you handed the knife to him and continued until the victim ultimately fled. You were an active participant in the incident. However, I accept your culpability for this offence is not as significant as that of Mr El Nasher who intentionally inflicted the injury to the victim.
29Further, it is significant that this offending occurred whilst you were both on bail, and you, Mr Markhail, were also subject to a community correction order. As such, the sentence must also operate to deter you specifically. This fact is also relevant to my assessment of your prospects of rehabilitation.
Personal circumstances
30I turn now to your personal circumstances.
31Mr El Nasher, you were born in April 1990 and are now 31 years old.
32You are the sixth of eight siblings born in Australia. Your parents immigrated from Lebanon over 40 years ago. Your mother raised you in the home, while your father worked as a taxi driver. Sadly, your father passed away when you were eight years old.
33Following the death of your father, your family experienced significant financial hardship. Your mother was left with eight children to raise on her own, resulting in a decline in her mental health.
34You were educated to Year 8, but experienced learning difficulties. Arabic was spoken at home and your English was slow to develop. Your school attendance was poor and you gravitated to negative peers in your early adolescence. You first came into contact with police at the age of 12 for shop thefts and stealing items such as bikes and clothes, that your family could not afford. Your relationships began to centre on drug-taking and alcohol consumption.
35Your problems with substance addiction began at a young age. This commenced with episodic binge drinking in your early adolescence. From the age of 22 years you developed an addiction to cocaine and this addiction has continued. Prior to your remand, you report using between 1 to 7 grams of cocaine on a daily basis. You were also using benzodiazepines to manage symptoms of anxiety.
36You commenced a plumbing apprenticeship at the age of 16, which you enjoyed but were unable to complete due to difficulties with the academic component of the program. More recently you opened your own automotive repair business.
37In 2016 you travelled to Lebanon to visit family and friends where you met your wife, Fatima. She immigrated to Australia in 2018 and you then married. You have two children together, a four-year-old son and a two-year-old daughter.
38
You were assessed for the purposes of a neuropsychological evaluation with
Mr Matthew Staios, a clinical neuropsychologist, on 24 and 25 February 2022. In his report dated 28 February 2022, tendered during the plea hearing, Mr Staios states your family has experienced psychological distress due to repeated attempts made on your life, including when your workplace was raided by individuals carrying guns in 2018. The family home was ‘shut up’ in 2019 as a result of an arson and you moved with your family into rental accommodation. In 2019 you were the victim of a violent assault where you suffered a fractured skull, eye socket and hand, requiring hospitalisation.
39Following psychometric testing, Mr Staios assessed you with cognitive functioning falling within the extremely low average to borderline range. He also assessed you as meeting the criteria for a post-traumatic stress disorder, intellectual development disorder and a stimulant/alcohol use disorder (now in sustained remission). In the context of your offending, Mr Staios states:
[Mr El Nasher’s] level of general intellect fell within the range of an intellectual disability, against a background of post-traumatic stress disorder, and significant substance use. These factors are important to consider as a combination of these issues very likely impacted on his capacity to exercise appropriate judgment and consider the consequences of his offending. His psychological state and post-traumatic stress disorder would have significantly impacted on his capacity for rational thought in the context of not being able to appropriately appraise situations as they unfold, and to a certain extent reduce his moral culpability.[1]
[1]Exhibit 1 – report of Mr Matthew Staios dated 28 February 2022, at [7.4]
40Mr Markhail, you were born in January, 1997 and are now 25 years old. You enjoyed a stable childhood, although your parents separated when you were 13 years old. Thereafter you and your sister continued to live with your mother but you had regular contact with your father. You are close to your family and they remain supportive of you.
41At the age of 14, you began to abuse substances and spend time with negative peers. You were expelled from secondary school in Year 8 and subsequently attended another secondary school where you were also suspended on a number of occasions before ultimately being asked to leave that school in Year 11. Your early adolescence was marked by substance abuse, absconding from home for days on end, poor school attendance and offending behaviours, including participating in armed robberies. You spent multiple periods remanded in youth detention between the ages of 15 and 18 years.
42Your substance abuse commenced with the recreational use of amphetamines, MDMA and cocaine, but from the age of 19 you have developed an addiction to methylamphetamine, in addition to Xanax abuse.
43In May 2020, you were assessed by Mr Matthew Staios and his report dated 4 May 2020, which pre-dates this offending, was tendered on your plea. Mr Staios expressed the opinion that, based on your developmental and educational history, your premorbid level of intellectual functioning was estimated to fall within the borderline to low average range. On testing, he assessed your general intellect as falling within the extremely low range. He also assessed you as having a range of 'psychosocial vulnerabilities' leading you to gravitate to like-minded peers.
44Mr Staios concluded:
Mr Markhail’s ongoing substance abuse, in conjunction with his pre-existing psychological difficulties, has likely impacted on his emotional regulation skills during a crucial developmental period, where he was vulnerable to the influence of negative peer influences. In instances where Mr Markhail is acutely intoxicated, his limited intellectual abilities are likely to be further reduced, which will further compromise overall cognitive skills.
45Mr Staios sensibly recommended that you be referred for psychological counselling to assist with emotional regulation and for ongoing drug treatment and counselling.
Sentencing submissions
46Mr El Nasher, your counsel, Mr Farrington, acknowledged that the objective seriousness of your offending warranted an immediate term of imprisonment. However, he also submitted that you should receive the full credit of your early plea and that the matters raised in Mr Staios’ report should be taken into account in moderating the sentence to be imposed. I accept that submission.
47Mr Farrington did not argue that your poor level of cognitive functioning or mental health conditions, namely your post-traumatic stress disorder or substance abuse disorders, reduced your moral culpability pursuant to the principles enunciated in Verdins.[2] However, Mr Farrington did rely upon Mr Staios’ report to argue that you are likely to experience a further deterioration in your mental state whilst in custody, such that some moderation of sentence is appropriate. The prosecutor, Ms Clancy, accepts that limb 6 of Verdins is engaged in that respect.
[2]R v Verdins (2007) 16 VR 269
48Mr Markhail, Mr Tovey who appeared on your behalf submitted that the sentence to be imposed should clearly differentiate between the role you played and that of Mr El Nasher, in particular, the fact you are to be sentenced for the lesser offence of recklessly causing injury on a complicity basis. Mr Tovey’s submissions also highlighted your early plea, which has significant utility at this time, your youth, your low level of intellectual functioning as reported by Mr Staios and your realistic prospects of rehabilitation, subject to your ability to remain drug-free.
49Mr Tovey also relied upon the authority of Lacey,[3] to argue your drug addiction, commencing in your early adolescence, operates as a matter in mitigation of sentence.
[3]The Queen v Lacey [2007] VSCA 196
50
Mr Tovey did not seek to rely on any of the matters outlined in Mr Staios’ report to argue your moral culpability for this offending was reduced, but urged the court to have regard to these matters as broadly relevant in mitigation of sentence.
Mr Tovey’s submissions also highlighted the fact your period in custody on this matter ran parallel with the restrictions put in place to respond to the COVID-19 pandemic and were an added burden of your time in custody.
51Taken together, Mr Tovey relied on these matters to urge the court not to impose a sentence of imprisonment that exceeds the time you have already served in custody.
Consideration
52Having assessed the objective gravity of the offending, I accept that a number of matters are relevant in mitigation of sentence as highlighted by both your counsel.
53Of greatest significance is the fact you both entered a plea at an early opportunity and prior to a committal hearing. In doing so, you spared the victim the ordeal of having to re-live the event when giving evidence in court. Your pleas also saved the community the cost and time associated with a trial and is of heightened utility given the delays occasioned to trials in the wake of the pandemic.[4]
[4]Worboyes v The Queen [2021] VSCA 169
54By your pleas you also accept responsibility for the offending. However, beyond the fact of the plea, I accept the prosecution submission that neither of you has demonstrated or otherwise expressed remorse for your conduct. Nonetheless, you are both entitled to a significant sentencing discount for your pleas of guilty, at this time.
55For you, Mr El Nasher, I accept that your diagnosed post-traumatic stress disorder is likely to deteriorate in custody and that you are entitled to a degree of moderation in the sentence I impose due to this fact.[5] In making this finding, I accept the opinion of Mr Staios, where he states that 'given [Mr El Nasher’s] psychological, cognitive and medical history, he is likely to experience further deterioration in his mental state' once incarcerated. I have taken this matter into account in moderating your sentence.
[5]Verdins, limb 6.
56I further accept that you have both been remanded at a time when conditions in custody have, of necessity, been restricted to respond to the risks posed by the COVID-19 pandemic. These restrictions have not only impacted on the provision of programs but have also prevented face-to-face contact with families and friends. This too, has added to the burden of your time in custody and I have taken this factor into account for both of you.
57For you, Mr Markhail, your relative youth still has relevance in mitigation of sentence. You were 23 years old at the time of this offence. The authorities recognise that youth is relevant to sentencing in a number of ways[6]. First, youthful offenders are generally more immature and prone to impulsive decision making. Secondly, the importance of rehabilitation assumes greater significance for younger offenders. Thirdly, the benchmark for offending warranting adult imprisonment is higher for young offenders, particularly first time offenders. Although you are not a first time offender, this is your first sentence for violence related offending.
[6]R v Mills (1998) 4 VR 235
58I accept and have regard to the observations of Mr Staois that your development was impacted by instability at home and at school from early adolescence, particularly following your parents’ separation, and that you then gravitated towards negative peers and began to abuse substances. Mr Staios states that substance abuse, in conjunction with your pre-existing 'psycho-social vulnerability' and cognitive limitations impact on your ability to regulate your behaviour and reasoning skills. I have taken these matters into account.
59Your prior criminal record also commenced at a young age.
60Your early court appearances were before the Children’s Court in 2013 and 2014 where you were first sentenced to probation and then a youth supervision order for offending that included reckless conduct endangering serious injury, possession of a firearm, burglary and other dishonesty offences. You have a significant criminal history dating from 2015 to 2020 also for drug, dishonesty and driving offences.
61Of concern, you have prior convictions for possessing weapons. In addition to the Children’s Court matter in 2014, you were convicted of possessing an imitation general category handgun in 2015. In 2019 you were sentenced to imprisonment for possessing cartridge ammunition and a silencer.
62Past community-based dispositions were the subject of breach proceedings in 2015 and 2018. As stated, you were subject to a 12-month community correction order to facilitate your rehabilitation at the time of this offending.
63Although your relative youth is still relevant in mitigation of sentence, the weight to attach to your youth is reduced to a degree by the nature of this offence viewed in light of your past criminal history.
64It is clear that your prospects of rehabilitation, a matter of significance with relatively youthful offenders, are very much contingent upon your ability to remain drug free. I accept the submission of your counsel that your drug abuse issues began at a very young age. However, there is no evidentiary basis to conclude there was a link between your drug addiction and this instance of offending to act as a mitigating factor.[7] Your past drug issues are nonetheless consistent with your prior criminal history and, as highlighted by the report of Mr Staios in 2020, the risks that arise with ongoing negative peer associations.
[7]The Queen v Lacey [2007] VSCA 196 at [16]
65You have, in the past, demonstrated an ability to proactively seek out support for your drug addiction issues. In October 2020 you were granted bail to attend the ‘Cottage’ rehabilitation program in Shepparton. You completed that 16-week program and, as noted in the letter of Ms Hutchison, the CEO of the Cottage dated 20 January 2021, you celebrated your 24th birthday there, the first such occasion you had been out of prison on that date in six years. Despite further periods of treatment with Ms Hutchison, you have suffered relapses. Indeed, arrangements were made for you to be readmitted as an in-patient at the Cottage when you were remanded due to subsequent, unrelated charges in February 2022.
66Although you have demonstrated motivation to deal with your drug addiction issues, until you can sustain a drug-free lifestyle I am unable to assess your prospects of rehabilitation as being any higher than reasonable. As stated, it is of concern that this offending occurred whilst you were subject to strict conditions of bail and a community correction order.
67Whilst I accept the matters advanced on your behalf by your counsel operate to mitigate your sentence, most particularly your early plea and your relative youth, in my judgment, the nature of your offending warrants the imposition of a sentence beyond time served to reflect the applicable sentencing considerations. Specific deterrence also has a role to play in sentencing you.
68Mr El Nasher, you do have a relevant prior criminal history which, whilst not extensive, does include a prior conviction for violent offending. In 2013, you were sentenced in the County Court to 12 months’ imprisonment for intentionally causing injury. You were sentenced to an 18-month community correction order in 2018 for firearms and drug-related offending. You were fined for drug possession and driving offences in 2018 and in August 2019 sentenced to 30 days’ imprisonment for possession of a poison and hindering police. That offending contravened the community correction order imposed in April 2018 and you were sentenced to two months’ imprisonment on the breach. The firearms offences for which you were sentenced included possession of a category A longarm in 2017 and a general category handgun and cartridge ammunition in 2018.
69This offence was committed while you were on bail. Given your prior criminal history, I remain guarded about your prospects of rehabilitation. The sentence I impose must deter you from future violent offending.
70The prosecution referred me to a number of authorities, which I have reviewed, of broadly comparable cases. As highlighted by the defence submissions, however, the guidance provided by such cases must also take into account the factual differences between these authorities and the facts that present here. Past decisions may be of use to discern a sentencing range so as to promote consistency in sentencing, bearing in mind that sentencing practice cannot govern or control the sentence imposed.[8] I have also had regard to the sentencing principle of parity to the extent it applies here, whilst distinguishing the separate offences for which you are to be sentenced for causing injury to the victim.
[8]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428
71In cases such as these, the sentencing considerations of general deterrence, denunciation and community protection are of significant importance. Others must be deterred from engaging in violent altercations. Violence involving the use of a knife is far too prevalent and must be unequivocally denounced by the court.
Sentence
72Balancing the relevant sentencing considerations, whilst having regard to the maximum penalty imposed for each offence, I sentence you as follows:
Mr El Nasher
73Mr El Nasher, on Charge 1 – affray – you are convicted and sentenced to 18 months’ imprisonment.
74On Charge 2 – intentionally causing injury – you are convicted and sentenced to three years, six months’ imprisonment. This is the base sentence.
75Whilst acknowledging that Charges 1 and 2 arose out of the one incident on 11 February 2021, it is appropriate that there be some cumulation of the sentences imposed to reflect the separate criminality of the two offences. I have taken care in fixing the sentence for the offence of intentionally causing injury to ensure you are not doubly punished for the affray that commenced upon your entry into the factory. The sentence imposed on that offence cannot involve any element of punishment for the separate offence of intentionally causing injury with the knife. However, I accept the overlap in the circumstances of the offending make it appropriate that there be a significant degree of concurrency.
76Taking into account the sentencing principle of totality, I order that three months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2.
77This gives a total effective sentence of three years, nine months’ imprisonment. I direct that you serve a minimum of two years, four months’ imprisonment before you are eligible for parole.
78Pursuant to s18 of the Sentencing Act 1991, I direct that 392 days of pre-sentence detention be reckoned as already served.
79Pursuant to s6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, I would otherwise have imposed a sentence of five years' imprisonment, with a non-parole period of three years, ten months.
Mr Markhail
80Mr Markhail, on Charge 1 – affray – you are convicted and sentenced to 18 months’ imprisonment. In my judgment you played a significant role in the affray, being the one who first made stabbing movements in the direction of the victim whilst holding the knife.
81On Charge 3 – recklessly cause injury – you are convicted and sentenced to 18 months’ imprisonment. This is the base sentence. Your culpability for the victim’s injury arises from being reckless as to whether injury would be caused, as reflected in the lower maximum penalty for this offence when compared with your co-accused.
82Again, some degree of cumulation is warranted in respect of Charge 1 to reflect the separate criminality of that offence even though these incidents arose out of the one incident, recognising there is a significant overlap in respect of your conduct. I direct that three months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 3. This gives a total effective sentence of 21 months’ imprisonment. I fix a non-parole period of 12 months before you are eligible for parole.
83Pursuant to s18 of the Sentencing Act 1991, I direct that 196 days of pre-sentence detention be reckoned as already served.[9]
[9]It is accepted that 17 days of Mr Markhail’s time of remand was declared as pre-sentence detention when sentenced for unrelated offending on 25 August 2021.
84Pursuant to s6AAA of the Sentencing Act 1991, indicate that but for your plea of guilty, I would otherwise have imposed a sentence of two years, six months’ imprisonment with a non-parole period of one year, seven months.
85Finally, I make the disposal order sought by the prosecution, noting that it is not opposed.
86Do counsel have any questions or require clarification of the sentence I have imposed?
87COUNSEL: No, Your Honour.
88HER HONOUR: Do counsel wish an opportunity to speak with their clients?
89VOICE (from video link): Yes, yes.
90HER HONOUR: Sorry, I do not know who that was. My question is do counsel require an opportunity to speak with their clients?
91MR TOVEY: I don't require that opportunity today, Your Honour.
92MR FARRINGTON: Neither do I, Your Honour. I'll make alternative arrangements.
93HER HONOUR: Thank you. Can I thank counsel again for their assistance, most particularly through the written submissions that were provided to the court. We will now adjourn court.
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