Luay Shaor v Jason Murray
[2014] ACTSC 27
•12 February 2014
LUAY SHAOR v JASON MURRAY
[2014] ACTSC 27 (12 February 2014)
APPEAL – appeal from Magistrates Court – assault occasioning actual bodily harm – whether manifest excess – assault with a metal rod occasioning serious injuries – objectively serious offence – provocation – chronic Post-Traumatic Stress Disorder
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 89 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 12 February 2014
IN THE SUPREME COURT OF THE )
) No. SCA 89 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
LUAY SHAOR
Appellantv
JASON MURRAY
Respondent
ORDER
Judge:Burns J
Date:12 February 2014
Place:Canberra
THE COURT ORDERS THAT:
The appeal is dismissed.
The orders imposed by the Magistrate are confirmed and the offender is to report to the periodic detention centre at Symonston Friday 14 February to continue his periodic detention.
On 26 August 2012, the appellant committed the offence of assault occasioning actual bodily harm on Hamid Mohammed. That offence carries a maximum penalty of five years' imprisonment. It is accepted by Mr Sabharwal, who appears for the appellant, and I think rightly accepted, that the offence committed by the appellant was a serious example of this type of offending.
The facts as found by the learned Magistrate were that the complainant in the matter, Mr Mohammed, had directed abuse towards the appellant prior to the offence occurring and had also engaged in other acts of provocation such as throwing stones at the appellant. She found that effectively the complainant had invited the appellant to engage in a fight.
Unfortunately, the appellant equipped himself with a weapon, being a metal rod, and then confronted the complainant and went far beyond anything that could have been required in his own defence. The Magistrate, again, I think correctly, determined that the appellant had other options available to him other than to confront the complainant and engage in a physical confrontation.
Significant injuries were occasioned to the complainant, including fractures to both of his orbits, his nasal bone and his left ring finger. A lip laceration was also sutured at the hospital. Facial fractures were reviewed at the hospital and subsequently followed up as an outpatient. Plastic surgery was consulted for the finger fractures which required fixation and splinting.
It is apparent from the Victim Impact Statements that were placed before the Magistrate that the finger injury in particular continued to affect the complainant as at the date of the proceedings in the Magistrates Court. It was of course relevant to determining the objective seriousness of the offence that part of the beating of the complainant had occurred when he was helpless on the ground.
Objectively, the offence called for a term of imprisonment. So much was conceded, I believe, before the Magistrate and that has not been resiled from in the current proceedings. The question is the way in which such a sentence should be served. The Magistrate imposed a sentence of six months' imprisonment, of which three months was to be served by periodic detention and the balance was suspended with a Good Behaviour Order for a period of three years.
THE APPEAL
The Notice of Appeal filed by the appellant specifies one ground of appeal, being that the sentence was manifestly excessive. Having carefully read the reasons of the Magistrate, I am satisfied that she took into account all relevant facts and circumstances.
The written submissions filed on behalf of the appellant refer to the diagnosis of Post-Traumatic Stress Disorder made by Dr George and notes that the Magistrate accepted that diagnosis and that the condition was present at the time of the assault. The written submissions go on to submit that her Honour erred in placing more weight on general deterrence than was warranted in the circumstances.
A report from Dr George, a consultant psychiatrist, dated 1 October 2013 was before the Magistrate for the purposes of sentencing. It referred to the appellant’s extraordinarily difficult upbringing in the Sudan and that as a consequence of his upbringing he suffers from the condition which Dr George diagnosed as chronic Post-Traumatic Stress Disorder. He described that as a mental illness requiring treatment.
Dr George did not go so far as to express an opinion as to the connection or any connection between the condition he diagnosed and the appellant's conduct on 26 August 2012. It is clear, however, that the Magistrate accepted that there was such a connection. However, her Honour was not satisfied that the appellant's mental illness by itself explained his behaviour on 26 August 2012. That was a finding which was open to her.
As I said, the maximum penalty with respect to this offence is five years' imprisonment. For an offence which was a serious example of this type of offending, a sentence of six months' imprisonment could not be said to be manifestly excessive. Her Honour has taken into account all relevant circumstances and facts and I can find no specific error on behalf of the Magistrate.
Other magistrates may well have chosen to impose a sentence structured in a different way. That does not mean that the sentence imposed by the Magistrate on this occasion was manifestly excessive. I am unable to be satisfied that the sentence imposed by her Honour was manifestly excessive. As such, the appeal will be dismissed.
ORDERS
The appeal is dismissed.
The orders imposed by the Magistrate are confirmed and the offender is to report to the periodic detention centre at Symonston this coming Friday, 14 February to continue his periodic detention.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 20 March 2014
Counsel for the Appellant: Mr J Sabharwal
Solicitor for the Appellant: Rachel Bird & Co
Counsel for the Respondent: Ms A Knibbs
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of Hearing: 12 February 2014
Date of Judgment: 12 February 2014
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