Nashar v The Queen

[2020] NSWDC 940

District Court

New South Wales

Medium Neutral Citation:

Nashar v R [2020] NSWDC 940

Hearing dates:

19 March 2020

Date of orders:

20 March 2020

Decision date:

20 March 2020

Jurisdiction:

Criminal

Before:

P Taylor SC DCJ

Decision:

(1)   Leave to appeal granted.

(2)   Severity appeal allowed and sentence varied.

(3)   In lieu of the Local Court sentence I impose an aggregate sentence of imprisonment of 12 months and 9 days.

(4)   The indicative sentences are 12 months for each offence.

(5) Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the Court directs the sentence to be served by way of an intensive correction order commencing today and expiring on 28 March 2021.

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to District Court — By person sentenced against sentence

CRIME — Domestic violence — Stalking or intimidation

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007, s 5, s 7, s 8, s 13

Crimes (Sentencing Procedure) Act 1999, s 3A, s 5, s 7

Cases Cited:

R v De Simoni (1981) 147 CLR 383

Category:

Principal judgment

Parties:

Mahmoud Nashar (appellant)
Regina (respondent)

Representation:

Solicitors:
El Baba Lawyers Pty Ltd (appellant)
Office of the Director of Public Prosecutions (respondent)

File Number(s):

2019/00130449

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

29 November 2019

Before:

Magistrate J Kiely

File Number(s):

2019/00130449

Judgment

Introduction

1. Mahmoud Nashar appeals against an aggregate sentence of two years’ imprisonment to be served by intensive correction order given by the Local Court in respect of two charges of stalk or intimidate intending to cause fear of physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.  The two charges relate to two separate victims.  The two victims were Jessica Aoun, a friend of Mr Nashar’s wife, and Adriana Zappulla (“Ms Zappulla”), the sister of Mr Nashar’s wife.

The law

2. Section 13 relevantly provides:

“13Stalking or intimidation with intent to cause fear of physical or mental harm

(1)  A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

Maximum penalty—Imprisonment for 5 years or 50 penalty units, or both.

(2)  For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.

(3)  For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.

(4)  For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

…”

3. In the Local Court, the maximum penalty is two years’ imprisonment.

4. In s 8 of the Act, “stalking” is defined to include:

“(a)  the following of a person about,

(b)  the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity,

(c)  contacting or otherwise approaching a person using the internet or any other technologically assisted means.”

5. In s 7 of the Act, “intimidation” is relevantly defined as “conduct…amounting to harassment or molestation of the person”, or any “conduct that causes a reasonable apprehension of” injury to a person or to a person with whom he or she has a domestic relationship, or violence or damage to any person or property.

“(2) For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.”

6. A domestic relationship, in s 5, is relevantly defined to include an intimate, personal, non‑sexual relationship; a person living or who has lived in the same household; or a relative, including a sister.  In context, a close friend would be within the terms of a domestic relationship if the relationship is an intimate, personal relationship.

The facts

7. Mr Nashar pleaded guilty prior to trial in the Local Court.  He took no objection to a Facts Sheet recounting the events in question.  The Facts Sheet included reference to other charges, that were not pursued by the prosecutor, and, in accordance with the principle in R v De Simoni, ^[1] I have disregarded facts that relate only to the charges not pursued.

   1. (1981) 147 CLR 383.

8. The general principle from De Simoni:

“that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted...a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.” ^[2]

2. At 389.5.

9. There was a dispute as to what parts of the Facts Sheet are probative of the offences accepted to have been committed by Mr Nashar. Facts involving Mr Nashar’s conduct towards his wife are irrelevant except for that conduct which Ms Aoun or Ms Zappulla witnessed or of which they were informed.  That is relevant because, but only because, it may inform whether the conduct towards them, or what they observed or understood, amounted to stalking or intimidation and whether the conduct was likely to cause fear in Ms Aoun or Ms Zappulla.  Also, whether there was any pattern of violence in Mr Nashar’s behaviour may inform whether the conduct amounted to stalking or intimidation, and whether there was any reasonable apprehension of injury, in Ms Aoun or Ms Zappulla.

10. The events from the Facts Sheet that are either accepted to be relevant to the offence, or which I find to be relevant, can be summarised as follows.

11. On the day of the offence, at about 5.20pm, Ms Aoun attended the Metro Petrol Station in Punchbowl, where she spoke with Mr Nashar’s wife, who advised Ms Aoun of what had occurred, namely: that Mr Nashar had made multiple demands for his wife’s mobile, which were rejected;  that Mr Nashar had grabbed his wife’s hair and busted her lip in a struggle;  that his wife had called triple‑0 and hid from Mr Nashar;  and that Mr Nashar’s wife was observed to have red marks on her throat, neck and face.  Ms Aoun was told to leave the petrol station as the wife feared that Mr Nashar would return and see them talking to each other.

12. Ms Aoun left the scene, attended to her car and drove off.  She noticed Mr Nashar’s car following her and decided to stop and speak with him.  Mr Nashar came to her window and said to her, “Where is she, I know she’s in your car,” and started looking for his wife inside Ms Aoun’s car, however, he could not locate her.

13. At about 7.10pm the same day, Mr Nashar’s wife then contacted Ms Aoun and told her to pick her up near the Metro Petrol Station, which Ms Aoun did.  During that time, Mr Nashar called Ms Aoun on her mobile phone and said, “Where is she?”  Ms Aoun told him to meet her in Punchbowl, so she could attempt to take Mr Nashar’s wife’s mobile phone back.  Mr Nashar attended the location and stayed in his vehicle.  The interaction was recorded, which lasts about 20 minutes, and it captures Mr Nashar screaming, swearing and abusing his wife and Ms Aoun.

14. Mr Nashar exited his vehicle and went to the window where his wife was, in Ms Aoun’s car, and used both his hands to enter the vehicle.  He lashed out and swung both of his hands in the direction of his wife.  Ms Aoun came to the rescue of his wife, held her head and pulled it towards her chest. Ms Aoun screamed at Mr Nashar, telling him to stop and he backed away.  Ms Aoun was unsure if any contact was made to Mr Nashar’s wife.  His wife then asked for her mobile phone, but Mr Nashar went back inside his car and drove off.

15. At about 7.50pm that same evening, Ms Aoun and Mr Nashar’s wife were driving around the Punchbowl area for some time. At 8.20pm, they attended the wife’s home address, where she went inside, and Ms Aoun waited outside in her vehicle.  About five minutes later, Mr Nashar, the offender, attended that home, pulled into the driveway and started screaming, whereupon his wife and Ms Aoun left the location to avoid an altercation.

16. At about 8.30pm, Ms Aoun, Ms Zappulla and Mr Nashar and his wife were at McDonald’s in Croydon Park.  Ms Aoun had parked her vehicle and she had, with Ms Zappulla, noticed that Mr Nashar had arrived at the same location.  Mr Nashar went into the store, purchased a drink, then went outside and went directly to the window of the car adjacent to where his wife was and started screaming and yelling at her.  He then entered his vehicle and left the location.

17. A short time later, Mr Nashar returned to the location, parked his vehicle next to Ms Aoun’s vehicle and commenced screaming at them whilst sitting in his vehicle.  He placed his wife’s mobile phone outside his window and Ms Zappulla observed the phone being grabbed by a friend and handed back to Mr Nashar’s wife.  Mr Nashar said to his wife, “The coppers are at my house, did you call the coppers on me, tell me if you called the coppers on me”, and his wife repeatedly said, “No I didn’t call”.  Mr Nashar then called the Campsie Police Station, put his mobile phone on speaker and said, “It’s Mahmoud Nashar, I heard you’re at my house looking for me, I’m at Wollongong”.  Police said, “Police are patrolling the area”.

18. Mr Nashar then said to his wife, “I transferred $180 for the car from your account into my account”.  His wife responded, “Why would you do that, I’m gonna report”.  Then Mr Nashar got out of his vehicle, put both of his hands and head through the window, where his wife was located, lashed out and swung both of his hands in the direction of his wife.  Ms Aoun then wrapped the wife’s head against her chest and covered her head with her hands.  Ms Zappulla grabbed the offender from his back and attempted to pull him off, while she was screaming for help.  Mr Nashar nudged Ms Zappulla backwards and Ms Aoun immediately closed the car windows.  Ms Aoun was unsure if any contact was made with Mr Nashar’s wife’s body.  Ms Aoun yelled to Ms Zappulla, told her to leave the car park, and both Ms Zappulla and Ms Aoun fled the scene, with Mr Nashar’s wife, in Ms Aoun’s car.

19. The offender, Mr Nashar, chased his wife and Ms Aoun in his car.  He made multiple attempts to block Ms Aoun from fleeing by his driving in front of their vehicle.  At one location, he exited his vehicle whilst in one of two lanes at an intersection and, with open palms, started smashing the window adjacent to where his wife was located in Ms Aoun’s car.  Ms Aoun turned right from that intersection, contacted triple‑0 and lost sight of Mr Nashar.  No damage was caused to the window.

20. Thereafter, Ms Aoun attended the police station, advised the police she had fears of retaliation due to the fact that she had provided a statement, and had fears for the safety of her family and Ms Zappulla’s family.

The appeal

21. As indicated, Mr Nashar received an aggregate sentence of two years’ imprisonment to be served by an intensive correction order.  The indicative terms for each of the two stalking and intimidate offences was 18 months.  No submission was made about the extent to which the sentences were cumulative or concurrent. Rather, it was submitted that the two years for the two offences, or 18 months in respect of each, was excessive.

22. The appeal was commenced some 56 days out-of-time, so leave is required to appeal.  There was no prejudice.  The explanation for the delay was that Legal Aid was not granted until shortly before the appeal was lodged.  That explanation was unconvincing, in circumstances where no application for Legal Aid was made until about a fortnight after the expiration of the 28‑day period for appeal.  Some delay can be explained by the intervention of the Christmas break.  I proposed to hear the leave question and the appeal together and examine the merits of the appeal before determining the question of leave.

23. Mr Nashar, through his legal representative, submitted that his actions comprised following his wife, her friend and sister in order to recover his mobile phone, and that the objective seriousness of the offence fell below the middle of the range.  This summary rather understates the events in question and the plea of guilty and conviction of Mr Nashar.  Mr Nashar submitted that there were no threats of violence or violence in respect of that.  I accept that there was no violence, strictly, although the circumstances show threats, force and fear.

24. There was a submission that Mr Nashar had reconciled with his wife, that they have a supportive, ongoing relationship and remain married.  There was no evidence to this effect.  Mr Nashar was not called. His wife neither gave evidence nor attended, nor provided any letter of support.  Since these matters were not accepted by the prosecutor and were then in issue, I cannot have regard to them without evidence.  The Court queried the lack of evidence, but no attempt was taken to remedy that defect.  I would accept, by virtue of the presumption of continuity, that Mr Nashar and his wife remain married.

25. The pleas and the factual narrative, tendered without objection before the Local Court, showed that Ms Aoun and Ms Zappulla had a reasonable apprehension of injury to them and to Mr Nashar’s wife.  Ms Aoun and Ms Zappulla saw, and were informed of, the wife’s injuries and her hiding from Mr Nashar.  Ms Aoun subsequently observed Mr Nashar screaming, swearing and abusing Ms Aoun and Mr Nashar’s wife, that Mr Nashar repeatedly swung his hands toward his wife, that Ms Aoun protected her, and much of this was also observed by Ms Zappulla.  They saw Mr Nashar interrogate his wife about calling the police, and that he gave the police false information about his location, and, as I mentioned, that he lashed out at his wife, who was protected the second time by Ms Aoun and Ms Zappulla. 

26. After Ms Aoun and Ms Zappulla, with Mr Nashar’s wife, fled Mr Nashar, he followed, tried to block their departure, exited his vehicle and punched the car window.  There can be no question, with the plea, of Ms Aoun’s fears that I have indicated.

27. In my view, these events are not at all minor instances of intimidation.  The harassment and molestation continued for some hours, at various locations, involved force, involved the danger of travelling vehicles, banging on car windows, screaming and yelling.  In my view, the seriousness of the offence is above the middle of the range for stalking and intimidation, which, of their nature, would often not involve any of the direct personal interaction that occurred in this case.

28. Mr Nashar is entitled to a discount for the utilitarian value of pleading guilty before the trial, which I would allow at 10%. 

29. I take into account, in determining punishment, the purposes stated in s 3A of the Crimes (Sentencing Procedure) Act 1999, all of which seem to have some application in this case of adequately punishing Mr Nashar, of deterring crime of that type, generally and, in his case, specifically, of protecting the community, of promoting his rehabilitation and making him accountable, and of denouncing his criminal conduct and recognising the harm done by that conduct to the community.

30. In looking at the aggravating factors, I take into account that, although there was no specific oral threat of violence, there was conduct which conveyed that threat, and, indeed, the pleas recognise the acceptance of the conduct that threatened and produced a reasonable fear and apprehension in those victims.

31. Mr Nashar has a poor criminal record with serious offences in the past.  On the other hand, I recognise that in the past five years, until these offences, he has avoided any criminal convictions. Given his record prior to then, he has changed and shown improvement.

32. I take into account that there were multiple victims but, in circumstances where the offences are in respect of each of the two victims, in my view, that is sufficiently dealt with by the circumstance that they are separately charged.  I take into account, as mitigating factors, that the events of that evening appear not to have been planned and, as I mentioned, Mr Nashar’s plea of guilty.

33. Considering all these matters, I am of the view that the s 5 threshold is reached, that, having considered all possible alternatives, a sentence of imprisonment is the only appropriate penalty. ^[3]   However, with the plea and with the matters that I have mentioned, and, in particular, that the maximum penalty for the offence is two years’, in my view, the sentences are too high and I do not accept, nor was it submitted by the Crown, that this was an offence in the range of the most serious.

    3. Crimes (Sentencing Procedure) Act 1999, s 5.

34. Mr Nashar, the orders of the Court are that:

35. I grant leave for the appeal.

36. I allow the appeal against sentence.

37. In lieu of the sentence of the magistrate, I impose a sentence of, in the aggregate, 16 months’ imprisonment, with an indicative term, in respect of each offence, of 12 months. I order that the sentence be served by means of an intensive correction order.

38. I take into account that Mr Nashar’s period of imprisonment, to be served by means of intensive correction order, has commenced on 29 November 2019.  In my view, the term should conclude on 28 March 2021. I impose a period of imprisonment, to be served by way of an intensive correction order, of 12 months and 9 days, commencing today, 20 March 2020, and concluding on 28 March 2021.

Orders

39. The orders of the Court are:

1. Leave to appeal granted.

2. Severity appeal allowed and sentence varied.

3. In lieu of the Local Court sentence I impose an aggregate sentence of imprisonment of 12 months and 9 days.

4. The indicative sentences are 12 months for each offence.

5. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the Court directs the sentence to be served by way of an intensive correction order commencing today and expiring on 28 March 2021.

**********

Endnotes

Decision last updated: 07 October 2022