R v Abbas, Hilal

[2008] NSWDC 339

CITATION:	R v ABBAS, Hilal [2008] NSWDC 339
JUDGMENT DATE:	17 December 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Malicious Wounding: Convicted. Sentence to a term of 12 months imprisonment I order that execution of the sentence be suspended conditional upon entering into a bond to be of good behaviour for 12 months pursuant to s.12 of the Crimes (Sentencing Procedure) Act 1999. The term of the bond to commence today. Conditions of the bond are as follows: (1) To be of good behaviour; (2) To consume your medication daily (3) Consult 4 times annually with Dr. Jacmon or other psychologist (4) Notify the registrar of your address (5) Notify the registrar of any change of address within 7 days (6) Attend any call up of any alleged breach of bond Have custody of an offensive implement in a public place: Pursuant to s.166 of the Crimes (Sentencing Procedure) Act you are convicted and sentenced to a fixed term of 3-months imprisonment. I order that execution of the sentence be suspended conditional upon entering into a bond to be of good behaviour for 3 months pursuant to s.12 of the Crimes (Sentencing Procedure) Act 1999. The term of the bond to commence today. Conditions of the bond are as follows: 1. To be of good behaviour; 2. To consume your medication daily 3. Consult 4 times annually with Dr. Jacmon or other psychologist 4. Notify the registrar of your address 5. Notify the registrar of any change of address within 7 days 6. Attend any call up of any alleged breach of bond

CATCHWORDS:	Criminal law- sentence - after s.11 bail - malicious wounding - knife attack - offender complains re quality of product in supermarket - store employee stabbed - unmedicated schizophrenic - unplanned, reactive ofending, heightened irritability, impatience, impulsivity - substantial rehabilitation progress - daily medication compliance - suspended 12 month term of imprisonment.
LEGISLATION CITED:	Criminal Procedure Act 1986
CASES CITED:	R v Gladue (1999) 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Hilal Abbas
FILE NUMBER(S):	07/21/0264
SOLICITORS:	Crown: Mr Mason Defence: Mr N Sowaid

JUDGMENT

1. In April of 2007 Hilal Abbas was a diagnosed schizophrenic. His schizophrenia was sufficiently florid for him to be in receipt of a disability support pension. While it is not clear over what period of time Hilal Abbas had been diagnosed, his visits to his psychiatrist had ceased some 18 months before this offending. It would seem that shortly after these visits to his psychiatrist stopped Hilal Abbas also stopped taking his medication.

2. As is not infrequently the case, the failure of Mr Abbas to take his medication makes him dangerously ill-equipped to handle stress. When taking his medication he can function normally. In the absence of medication he is potentially lethal.

3. Rabbih Obeide, apparently a young employee at the Woolworths Auburn store, found out to his horror how unpredictably dangerous an unmedicated schizophrenic can be when he was gratuitously punched and then knifed in the upper left side of his stomach region by Hilal Abbas who was simply upset by the quality of fruit on offer at Woolworths.

4. On 7 December 2007 Hilal Abbas began the process of being accountable for his criminal conduct at the Auburn Woolworths store on 18 April 2007.

5. On 7 December last year he adhered to his plea of guilty earlier entered before Magistrate Mottley at the Burwood Local Court on 26 September 2007.

6. On that day he pleaded guilty to maliciously wounding Rabbih Obeide. There was also an offence of having custody of an offensive weapon in a public place. That also must be finalised pursuant to section 166 of the Criminal Procedure Act 1986.

7. As sentencing judge it falls to me to resolve a number of competing contentions as I strive to determine the appropriate sentence for this offence, for this court, committed by this offender, harming this victim in this community; R v Gladue (1999) 1SCR 688 [80].

8. My initial task requires the assessment of the objective criminality of the offence before the court. I will also need to have regard to matters personal to the offender, the subjective matters.

9. The starting point for any assessment requires me to make findings of fact in the evidence before the court available to the offence and to the offender.

10. The offender's rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether a non-parole is to be set, the section 166 matter that I earlier referred to and ultimately the length of terms of imprisonment that are to be imposed. None of these can be commenced until the primary facts are determined.

11. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined; see R v Cuthbert (1967) 2 NSWR 329, R v Rushby (1977) NSWLR 597, R v Hayes [1984] 1 NSWLR 740.

The facts

12. A statement of facts has been tendered by the Crown. There has been no attempt by the defence to quibble with any aspect of the allegations made in the statement of facts. A reading through of the DPP's statement of facts makes clear it is a cut and paste job from a number of eye witnesses who in this case do not agree. Of course, I must find a set of facts from that material rather than leave it indeterminate as it appears in the exhibit.

13. For my purpose and for the purpose of sentencing, the statements of fact I find are these: On Wednesday 18 April 2007 Hilal Abbas attended Woolworth’s store at Auburn with his girlfriend and his then one year old son, who was in the stroller. Rabbih Obeide was employed as a produce manager at Woolworths Auburn. Abbas began to complain about the quality of fruit in the store saying, "The fruit is shit." Obeide said, "If the fruit is shit, don't buy it." That remark triggered a response in Abbas who approached Obeide and punched him in the face knocking his glasses from his face.

14. It would seem that prior to that approach Abbas had thrown some fruit at Obeide. There may have been a headbutt by the offender upon Obeide and then followed a scuffle. There was screaming, there was pushing from side to side, and each of the men was holding the other by his shirt.

15. Abbas was able to grab hold of Obeide's head and place him, as it were, in a headlock under his left armpit. He reached into a black bumbag around his waist, took out a 20 cm knife from the bag and stabbed the sharp end into the left side of Obeide. The knife was then withdrawn.

16. The stab wound was to the left side, of Obeide's abdomen. It went deep enough to separate the dermis and epidermis, but missed any vital organs penetrating no more than soft tissue. The offender was detained by a security guard and the knife was surrendered by Abbas after a short discussion.

17. Upon arrival of the police and his formal arrest by them, the offender participated in a record of interview. He told police he carried the knife for personal protection intending to use it "to scare people off". He agreed to throwing lychees at Obeide prior to any physical altercation. He agreed he headbutted and threw a punch with the knife in his hand. Plainly that had occurred before they started to wrestle. My view is it occurred towards the end of the wrestling. Significantly, though, as I say, he did agree that he had stabbed Obeide.

18. He then went on to say that he did not know that he had stabbed him at the time until the lady came and said that he had been stabbed.

19. Abbas also says that there was a size difference between he and the man he attacked. I have not seen a full frame picture of Mr Obeide, although from what pictures I do see, he seems to be heavy set. But my memory of Mr Abbas, when I first saw him was that he was relatively heavy set at that time too. More than that I cannot say about the size of the two men.

Objective criminality

20. From the facts as he finds them to be, a sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of this offender. The way that is done is to compare objectively the criminality exhibited in this case against the criminality of offences of a similar kind. It is in that which the objective seriousness of criminality to this offence can be evaluated. The objective criminality has an important impact upon the overall sentencing outcome. Indeed, as I said to the offender before I began these remarks, it is the objective criminality, that is the stabbing and circumstances in which it occurred, that requires a sentence of imprisonment to be imposed.

21. The starting point is to understand that all men and women are entitled to the integrity of their body and any assault upon the person of another is anti-social conduct. That anti-social conduct becomes increased where that assault results in a wounding. Where that wounding is done by the use of a weapon the anti-social content of the behaviour is even further increased. It is the nature of the criminal law that it seeks to punish anti-social behaviour such as that.

22. I am satisfied the knife was produced from Abbas' bumbag after the altercation had begun. It is described as a 20 cm knife, which must mean that the blade was something in the region of 10 cm.

23. As I say, I am unable to determine with any precision the depth to which the knife was thrust into Obeide. It is said to have passed between the dermis and epidermis. In the absence of expert evidence I cannot say what that means in centimetres. What is clear is that it penetrated deep enough potentially to have caused serious injury to important bodily organs, for example, the kidney or the liver.

24. Nor have I been informed as to the treatment necessary in this case, although I have assumed some medical attention including a cleansing of the wound, suturing and tetanus injections were at least required. I am also uninformed as to the sequelae of the injury and to what extent it meant that Mr Obeide needed to take time off work or any other measure of inconvenience to him.

25. Although the two men were scuffling when the knife was produced, I am satisfied its production was not required for any reasons related to self-defence.

26. Hilal Abbas commenced the aggressive behaviour by throwing lychees at Obeide and punching him to his face and commencing to wrestle with him. Nonetheless, the criminality I am dealing with is less than had the offender's first reaction to Obeide's retort, "If the fruit is shit, don't buy it," been to commence immediately his attack upon Obeide with the knife. I am satisfied the offender's gross over-reaction to the retort by Obeide was contributed to, if not caused by, the offender's then untreated schizophrenic condition. It is unfortunate no mental health profile was conducted upon this offender at or near the time of the offence.

27. In December of 2007 Abbas had elevated mood, heightened activity levels, irritability, impatience, a heightened paranoia score, impulsive and increased levels of anti-social features. I am prepared to postulate from the December profile coupled with his substantial untreated status in April of 2007 and his otherwise unaccountable reaction that his mental health was in equal disarray when he committed this offence.

28. Further, his heightened irritability, impatience and impulsivity contributed to his loss of composure, his throwing fruit and his unwarranted punch.

29. The offence was unplanned, impulsive and reactive. There are mental health issues impacting upon the offender's decision to act with the malice that he exhibited towards Mr Obeide. Of concern is that a person lacking mental stability was in possession of a knife in a public place. The potential for danger to unsuspecting innocent persons including Obeide was palpably real. I have determined, as I said, that a sentence of imprisonment is required in light of those objective features.

Subjective features

30. I turn now to the subjective factors. I am both entitled and required to do that. Not only am I sentencing for the criminal offence, but I am also sentencing this offender for it. Each offender coming before the court varies from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the court some explanation and insight into the commission of this offence by this offender. That is a particularly important situation in this case. There is clearly some reason why a less sentencing outcome is appropriate than a full-time custodial outcome arising from the subjective features.

Background, social dynamics, relationships

31. Hilal Abbas is the fifth of seven siblings. He is now 26 years of age. He resides with his mother and sister in the suburb of Granville where he has lived all these past 14 years. That relationship within the family is supportive. He does not seem to communicate much with other relatives and does not consider anyone to be a significant other besides his girlfriend and his son.

32. The offender's father did gaol time, although for what offence is not revealed but I suspect it may be related to domestic violence. Once released from prison the father returned to Lebanon. Abbas has not spoken to his father since he moved from Lebanon. That does not, it would seem, mean that his father is out of his mind. There are still unresolved issues in relation to the parent’s breakdown in marriage, which apparently occurred when he was in his teens and he appears to be heavily effected by it. There is also, I think, some anger that has been suggested to relate to the absence of support from the father and perhaps unresolved issues between the son and father.

33. About three or four years ago he met his girlfriend. The relationship developed and a son, Noah, was born. Noah is, as I say, a very significant person in the eyes of his own father and the source of happiness for him.

34. The girlfriend and Abbas do not live together but separately. As best I can tell, the relationship is at least functional to the extent that they are from time to time together. In December last year they were visiting each other on a daily basis. He does not appear to have support or associates outside the family, although he was involved in Australian Poker League last year, which is of course classified now as a sport that has gained significant popularity.

Education skills and employment

35. He completed primary education at Auburn Public and then went to Granville Boys High. He left this school in year 10 in 1998. He gained work in bricklaying for about six months and then roof tiling for a couple of months. He left Sydney to work in a tobacco farm in Albury, returned three years later and worked in a number of casual jobs. Most recently he has been involved in carpet laying for two to three days weekly and the last pre-sentence report notes it is anticipated once the Court proceedings are finalised a full-time position would become available. It is indicated that he would take up a full-time employment position.

General health

36. When Hilal Abbas first entered his plea before this Court he appeared to be in poor general physical condition. He was unresponsive to events in Court with eyes downcast. He was difficult to engage. Even his own legal team seemed to have difficulties obtaining responses from him. By contrast, after a hearing on s11 bail, he appears to be in better physical shape. He has engaged in proceedings and willing to stand from his seat in the well of the Court and address the Court. From my perspective that is a remarkable change for the better.

Mental health issues

37. Again, the starting point to last year was an unresponsive, unmedicated schizophrenia. While there is no formal diagnosis before me, the author of the pre-sentence report of December last year spoke to his treating psychiatrist who apparently gave to that author the diagnosis.

38. Hilal Abbas was referred to a personal support programme by Centrelink psychologist in November of last year and was assessed then as suffering from anger management issues, personal social difficulties relating to his child born out of wedlock, which because of culture his family regard as a sensitive issue. There are literacy and numeracy issues and poor communication issues. That appears to have improved. Generalise anxiety and poor impulse control. He attended his monthly session and was dealing with his issues with a caseworker, Christopher Koletti.

39. John Jacmon, a consultant psychiatrist, has had eight treatment sessions over the past 12 months in which the issues of depression, anxiety and anger management were covered. Jacmon recommends quarterly consultation to maintain the progress thus far made. In the order for the s12 bond that I intend to give, that will be a condition of the bond.

40. A condition of the s11 bail was the daily taking of medication. Initially, I required photos taken daily to prove the consumption of the prescribed medication. His sister and mother, daily oversaw Abbas’s consumption of medication. That regime was changed to an observation by the sister of the daily ritual and more recently a requirement simply that medication be taken.

41. The improvements in his demeanour are so remarkable that I am confident Hilal Abbas understands and appreciates them and will continue to take the medication to maintain or perhaps even improve his current situation.

Contrition

42. As is often the case where mental health issues play a part, the offender has difficulty understanding his criminality or understanding the impact his offending conduct must have had upon his victim. While I accept he understands it is legally wrong to stab an employee of Woolworths while shopping for groceries, his mental issues are blocking his path to recognising why that sort of conduct is so reprehensible.

Character

43. The offender is still a young man of 26. He is secure within his family. He is a devoted father to his boy Noah. He is now enjoying better health and pursuing strategies to maintain it. He has begun to make a contribution to the community through carpet laying. His criminal antecedents are minor. Three matters at the Burwood Local Court dismissed in 2003 pursuant to s10; significantly, though, one of those matters is custody of a knife in a public place. 44. As I earlier mentioned, Mr Abbas pleaded guilty to this offence at the outset in September of 2007. He is entitled to a benefit for that. The benefit that he will be given is not a discount as frequently happens but a suspended sentence rather than a period of full-time custody.

Rehabilitation prospects

45. If the appellant should continue to improve in the next 12 months as he has in the past, I am confident that he is unlikely to reoffend. The underscoring of that rehabilitation has been the consumption daily of his medication. Flowing from that better general feeling has been, a greater involvement with others and now the first steps taken towards working on a full-time basis and becoming what we would call, to use a cliché, a productive member of the community.

Deterrence of setting sentence

46. Given the mental health issues in this case, the issue of general deterrence does not loom as large as it normally would. However, Mr Abbas's intellect and mental health situation is such that he can understand personal deterrence and the sentence that I have set, that is one of imprisonment, is meant to indicate to him that in the event that he should do anything that is not of good behaviour in the next 12 months he will go to gaol.

47. Stand up please, Mr Abbas.

48. I should have already convicted you of this offence in order to give you the s11 bail. Hilal Abbas, you are convicted of the crime that you between 1.48 and 2.30pm on 18 April 2007 at Auburn maliciously wounded Rabbih Obeide. For that offence I take into account all you have done on the s11 bail I have given you. Nonetheless you are sentenced to a term of imprisonment of 12 months. That sentence is suspended upon condition that you enter into a bond to be of good behaviour. There are three conditions of the bond I impose and two that statute impose. The first, you will be of good behaviour; the second is that you will daily consume your medication as you have been doing for the next 12 months; the third is that you will consult four times annually with Dr Jacmon. Are you prepared to do those things?

OFFENDER: Yes, your Honour.

HIS HONOUR: In that case there are only two other conditions you need to know about. The first is that you have to provide the Registry with your address, upstairs, that is not hard. The second is that in the event that you do commit an offence, I do not think you will, but in the event you do, you have to come back before me and we will then sort out the matter. I should indicate that I am not setting a fixed term which leaves open that I can set a non-parole period if I have to send you to gaol. The second thing is if you do breach the bond my capacity to do anything else but send you to gaol becomes very, very limited because the Act requires that I send you to gaol, so there is no second chances.

49. The sentence is suspended conditional upon you entering into a bond containing the conditions I put pursuant to s12. In respect of the 166 matter, I set a fixed term of three months imprisonment suspended. Again, conditional upon you entering into a bond. I think you have to enter two bonds; the first one finishes in three months and the second one finishes in 12 months. Do you think you can do this?

OFFENDER: Yes, your Honour; thank you very much.

HIS HONOUR: I have seen big improvements. I do not think you have stopped improving because the improvements I noticed mostly have been the last six-months. I think the next six or eight months you will be a different man.