Mohamedali v The Queen

[2022] SASCA 45

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MOHAMEDALI v THE QUEEN

[2022] SASCA 45

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

19 May 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

In the early hours of Sunday, 6 October 2019, the appellant stabbed a security officer with a pair of scissors following an argument outside a licensed venue near Hindley Street. The appellant was found guilty following a trial by jury of one count of aggravated causing harm with intent to cause harm, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).

On 12 November 2021, the appellant was sentenced by a judge of the District Court to five years’ imprisonment. A non-parole period of two years and 10 months was fixed.

The appellant sought permission to appeal against his sentence on three grounds: his sentence was manifestly excessive, the sentencing judge erred by failing to take into account a relevant consideration, and the sentencing judge erred in finding that it was “fortunate” the injury was not fatal.

Held (the Court):

Refusing permission to appeal on Grounds 2 and 3:

1.It is implicit in the sentencing judge’s remarks that she accepted that the scissors had not been brought into the city with the intention that they should be used as a weapon.

2.It is a misconstruction of the sentencing remarks to suggest the sentencing judge had in mind any more serious offending.

Allowing permission to appeal on Ground 1 but dismissing the appeal:

3.While the head sentence may be described as heavy it was not, in all of the circumstances, manifestly excessive.

Criminal Procedure Act 1921 (SA) ss 150, 157, 158; Criminal Law Consolidation Act 1935 (SA) s 24, referred to.
Hackett v The Queen [2021] SASCA 32; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; R v Chalmers (2012) 115 SASR 150; R v Domarecki [2016] SASCFC 67; R v Lane [2011] SASCFC 101; R v Lutze (2014) 121 SASR 144; The Queen v De Simoni (1981) 147 CLR 383, considered.

MOHAMEDALI v THE QUEEN
[2022] SASCA 45

Court of Appeal – Criminal:  Livesey P, Bleby and David JJA

THE COURT:

Introduction

1. This is an application for the permission to appeal against sentence which has been referred to the Court of Appeal for argument as on appeal.

2. Within the language of s 158(7)(a) of the Criminal Procedure Act 1921 (SA), the appellant contends that the sentence is affected by error such that he should be re-sentenced.[1]

   [1] The appellant relies on s 157(1)(a)(iii), together with ss 150 and 158(7) and (8) of the Criminal Procedure Act 1921 (SA).

3. Following a trial, the appellant was found guilty of and fell to be sentenced for one count of aggravated causing harm with intent to cause harm, contrary to s 24(1) of Criminal Law Consolidation Act 1935 (SA) (CLCA), the maximum penalty for which is 13 years.

   The sentence imposed

4. The sentencing judge imposed a head sentence of five years’ imprisonment, and she fixed a non-parole period of two years and 10 months.  The sentencing judge declined to suspend the sentence or order that it be served on home detention.

5. The sentence and the non-parole period were ordered to commence from the date the appellant was taken into custody, being 15 October 2021.

   Circumstances of the offending

6. Around 12.54 am on Sunday, 6 October 2019, the appellant and two male friends were standing on the western footpath of Victoria Street, a side street to the north of Hindley Street, outside a licensed venue.  They were smoking cannabis and talking.

7. Three security officers (or bouncers) approached the appellant and his friends and told them to move along.  They refused.  There was then an argument.  The victim was one of the security officers, Mr Bukhari.  He went inside the venue and returned with two plain clothes police officers who happened to be on duty with the Licensing Enforcement Branch.  There was then a further argument because the appellant did not believe that the plain clothes officers were police officers.

8. There was then pushing and shoving between the appellant and Mr Bukhari.  The CCTV footage shows those two men moving onto the roadway.  The appellant maintains that he was pushed onto the roadway by Mr Bukhari and that events unfolded very quickly. 

9. According to the evidence led at trial from Officer Gale, one of the plain clothes police officers, the appellant then reached into his pocket and removed a silver object.  At that stage Officer Gale thought it was a knife.  He saw the appellant lunge forward with the silver object in his clenched fist, striking Mr Bukhari’s left arm in a downwards motion.  At that point the police officer drew his firearm and told the appellant to “drop the knife, drop the fucking knife”.  This was said more than once before the appellant complied.

10. In fact, the silver object was a pair of scissors.

11. Mr Bukhari’s evidence was that after he had been stabbed the appellant said to him on multiple occasions, “what the fuck are you going to do now”.

12. A police officer at the scene had a personal medical kit and was able to apply a torniquet.  An ambulance arrived soon after.

13. Mr Bukhari sustained a five-centimetre laceration of the inner left forearm, requiring surgery.  The laceration extended into the forearm muscle and deep into the brachial artery, the main artery in the arm.  The surgery was performed under general anaesthetic where the laceration to the brachial artery was repaired and the wound sutured.  Mr Bukhari was discharged from hospital two days later.  He has been left with a scar and significant physical and emotional effects.

14. An affidavit from a medical practitioner tendered at sentencing expressed the opinion that the injury was not life threatening.

    Grounds of Appeal

15. The appellant has sought and been granted leave to amend his grounds of appeal.  They are now as follows:

    1.The sentence imposed was manifestly excessive in all the circumstances.

    2.The learned sentencing judge erred by failing to take into account, as a relevant consideration, that the scissors used by the appellant to injure Mr Bukhari were not in his possession for the purpose for being used as a weapon.

    3.The learned sentencing judge erred by finding that the appellant and Mr Bukhari were fortunate that the injury the appellant caused Mr Bukhari was not fatal.

    Appeal Grounds 2 and 3

16. It is convenient to commence with what were contended to be two specific errors, vitiating the exercise of sentencing discretion.[2]

    [2]     Kentwell v The Queen (2014) 252 CLR 601, [42] (French CJ, Hayne, Bell and Keane JJ).

17. The first error raised by the appellant is that the sentencing judge failed to take into account a relevant consideration,[3] being that the scissors used by the appellant were not in his possession for the purpose of being used as a weapon.

    [3]     Cf House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).

18. The evidence relevant to this issue was brief.  A police officer gave evidence that she asked the appellant if he had anything else on him that might harm her or her colleagues, to which the appellant replied, “No, I only had the scissors to cut up the weed”.  This appears to be a reference to the cannabis which was being used by the appellant and his two male friends before the offending.

19. In sentencing submissions, the then counsel for the appellant submitted that, though the scissors satisfied the aggravating factor alleged because they were an offensive weapon, they had not been brought into the city for the purpose of being used as a weapon.  It was submitted that this distinguished this case from others where offenders travelled to the city armed with objects which were intended to be used as weapons.

20. As to this, the sentencing judge said:[4]

    As the prosecution have rightly identified, offences of this nature concerning violence in public places with the use of weapons in particular, is all too prevalent a scenario in our community.

    The paramount consideration in sentencing you is to deter you from such violent offending and to deter others from resorting to the use of violence involving weapons.

    While it can be accepted that he did not intend to assault your victim when you went out that evening, it is not, in view, to the point that the scissors were not brought with you that evening as a weapon, and that you resorted to the use as a weapon, seemingly without hesitation.

    [4]     AB42-43.

21. It is submitted that the “clear effect” of these remarks is that the sentencing judge regarded it as irrelevant that the scissors had not been brought into the city for use as a weapon.

22. This submission must be rejected. It is implicit in the sentencing judge’s remarks that she accepted that the scissors had not been brought into the city with the intention that they should be used as a weapon.  The point of her Honour’s observation was that, nonetheless, the appellant was prepared to use them as a weapon without hesitation.

23. It follows that this complaint can rise no higher than that the sentencing judge did not explicitly give much weight to counsel’s submission.  That is not in itself an error enlivening this Court’s authority to intervene.[5]

    [5]     R v Lutze (2014) 121 SASR 144, [47] (Vanstone and Parker JJ), citing Kentwell v The Queen (2014) 252 CLR 601, [35].

24. As for the second error raised by the appellant, the nature of the injury, the medical treatment and the medical evidence have already been mentioned.  In her sentencing remarks the sentencing judge said:[6]

    You produced scissors and stabbed Mr Bukhari in the arm causing a 5 cm laceration cutting into the muscle and brachial artery.

    While Mr Bukhari’s conduct may well have caused you to be angry, producing scissors and stabbing him in the arm cannot be characterised as excessive self-defence on your behalf.

    Mr Bukhari was not armed and had not hit out at you. You made no threat or attempt to warn him to back away before producing the scissors that you used to stab him. Indeed, there was no warning of any sort. You are fortunate, as, indeed, is Mr Bukhari, that the injury you caused was not fatal.

    The victim impact statement that Mr Bukhari has provided details the profound effect your offending has had and continues to have upon him, both physically and emotionally.

    [6]     AB42.

25. The appellant contends that these remarks reveal error because there was no evidence that the stabbing injury was life threatening. Moreover, it is submitted that the appellant was effectively sentenced for the more serious offence of endangering life, contrary to s 29(1) of the CLCA, which carries a maximum penalty of 15 years’ imprisonment, or 18 years for the aggravated form of the offence.

26. The appellant contends that the sentencing judge has thereby breached the fundamental sentencing principle that conduct which would constitute a different and more serious offence cannot be taken into account where the offender has been convicted of and falls to be sentenced for a lesser offence.[7]

    [7]     The Queen v De Simoni (1981) 147 CLR 383, 389 (Gibbs CJ, with whom Mason and Murphy JJ agreed); R v Lane [2011] SASCFC 101, [34]-[36] (White J, with whom Doyle CJ and David J agreed);

27. Again, this submission must be rejected.  It is a misconstruction of the sentencing remarks to suggest that her Honour had in mind any more serious offending.  Rather, her Honour was referring to the potential effect of stabbing injuries, and the potential seriousness of an injury to a major artery.

28. It is not infrequently the case that sentencing judges will observe that offending involving the violent use of a weapon carries with it the prospect of more serious harm.  There can be no complaint about that providing it is clear that the sentencing judge is only sentencing for the offending which is before the Court.  A reading of the sentencing remarks as a whole does not suggest that the sentencing judge was sentencing the appellant for anything other than the offence on which he was found guilty.

29. Permission to appeal on Grounds 2 and 3 should be refused.

    The circumstances of the offender

30. Before addressing appeal Ground 1, it is appropriate to observe that the appellant was 25 years at the time of the offending and 27 years at the time of sentence.

31. As the sentencing judge remarked, the appellants’ personal circumstances evoke sympathy.  He is one of six children.  He was born in Eritrea but when he was an infant his family moved to a refugee camp in Sudan.  He spent 19 years in that camp under difficult conditions.  The appellant and his family moved to Australia in 2015 and he has a permanent resident visa, but he is not an Australian citizen.  As the sentencing judge observed, the appellant is stateless, and his residency status is uncertain.

32. Following arrival in Australia the appellant enrolled at a college and studied basic English before studying at a TAFE.  The appellant has held various

    
    

    short-term jobs and, when remanded, he was working as a process worker at a chicken factory.  He has a very good work ethic.

33. There were letters of support from the appellant’s brother and a friend, attesting to the appellant’s character as well as that this offending was out of character.

34. The appellant has a minor antecedent criminal history involving an offence of assault a prescribed emergency worker in 2016, for which he was not convicted and received a $500 bond to be of good behaviour for 12 months.

35. After the subject offending, the appellant breached his bail and, in addition, he committed the offences of aggravated assault, damage property and two counts of assault a prescribed emergency worker in December 2020.  It would appear that the appellant may have been psychiatrically disturbed, possibly because of drug use.  He was sentenced to imprisonment for seven months with an order that he be released on a good behaviour bond after four months.  The appellant was on that bond at the time of trial and sentence for the subject offending.

    Manifest excess – the appellant’s submissions

36. The appellant does not question the sentence in so far as the sentencing judge found that the offending was too serious to warrant suspension or an order that it be served on home detention.  Rather, the challenge is to the head sentence.  No separate challenge is made to the non-parole period.

37. As for the head sentence, the appellant emphasises:

    1.The scissors had not been brought into the city for use as a weapon.

    2.The appellant maintains that the victim assaulted him before the appellant became violent and that the offending was not entirely unprovoked.  The appellant maintains that the victim followed the appellant onto the roadway and approached him with his arms raised.

    3.The offending involved a single and isolated, spontaneous act.

    4.The appellant was only 25 years at the time of his offending with relatively minor criminal antecedents.  In addition, he had endured a very deprived upbringing and, notwithstanding the difficulties associated with living in a refugee camp, he had displayed a good work ethic in Australia and retained the support of his family.

    Other sentences

38. The parties relied upon a number of other sentences, accepting that none were directly comparable, or were relevant other than as a general guide.

39. These include R v Lutze, where the offender was charged with aggravated causing harm with intent to cause harm, the weapon being a glass.[8]  The sentencing judge described the offending as an unprovoked and cowardly attack.  The offender had a previous conviction for assault in similar circumstances.  The sentencing judge began with a head sentence of three and a half years, before reductions were made, including for a plea of guilty.  A non-parole period of one year was fixed.

    [8]     R v Lutze (2014) 121 SASR 144, appeal against sentence by the offender dismissed.

40. The appellant also referred to R v Domarecki, where the offender was charged with causing harm with intent to cause harm.[9]  The offending was described as a very serious example.  The victim suffered severe head injuries with multiple facial fractures, including injuries to the eye socket, cheek, nose and jaw which required surgery involving the insertion of plates and screws.  The sentencing judge began with a starting point for the head sentence of four years’ imprisonment, which was then reduced on account of the guilty plea.

    [9]     R v Domarecki [2016] SASCFC 67.

41. The respondent referred to Hackett v The Queen, where the charge was recklessly causing harm.[10]  The appellant and the victim were at a night club on Hindley Street.  Both were intoxicated.  After some provocation the appellant pushed the victim forcefully to the chest, causing the victim to fall backwards, striking his head.  He spent 10 days in hospital and suffered a fractured skull with intercranial bleeding and ongoing impairment.  The maximum penalty was five years imprisonment, and the sentencing judge imposed a head sentence of two years and six months before reduction for the guilty plea.  The appeal against sentence was dismissed.

    [10]   Hackett v The Queen [2021] SASCA 32 (Kelly P, Lovell and Livesey JJA).

42. Whilst the respondent accepts that the sentence in R v Lutze appears more lenient than the sentence imposed in this case, emphasis was given to the significant steps taken by the appellant in that case to address alcohol and anger management problems.  Ultimately, the sentencing judge regarded that appellant as being at low risk of reoffending.  There was evidence of contrition and the payment of significant compensation.

    Determination of the appeal against sentence

43. It was submitted to the sentencing judge that the sentence imposed for the unrelated offending just before the trial and sentence for this offending operated as a sufficient disincentive to deter the appellant from again offending in a violent manner.

44. Nonetheless, street violence involving the spontaneous use of a weapon late at night required a very firm response from the sentencing court.  General deterrence was an important sentencing consideration, as was the need for community protection.

45. The offending was preceded by the appellant’s stubborn refusal to move on.  He was acting in an unnecessarily aggressive manner.  Moreover, the sentencing judge was clearly concerned that the appellant had shown no remorse and she regarded his prospects for rehabilitation as guarded.  She was mindful of the appellant’s young age, and so she fixed a relatively low non-parole period of two years and 10 months to assist his engagement with the parole board for the purposes of meaningfully addressing rehabilitation.

46. Whilst the head sentence may be described as heavy it was not, in all of the circumstances, manifestly excessive. 

47. Permission to appeal should be granted but the appeal dismissed.

    
    

R v Chalmers (2012) 115 SASR 150, [16] (Kourakis CJ).