R v Al-Mansoori

[2024] NSWDC 466

District Court

New South Wales

Medium Neutral Citation:	R v Al-Mansoori [2024] NSWDC 466
Hearing dates:	11 September 2024
Decision date:	12 September 2024
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 3 years with a non parole period of 1 year
Catchwords:	CRIMES-SENTENCE- use offensive weapon with intent to commit indictable offence - assault occasioning actual bodily harm - fail to stop and assist after an impact causing injury - special circumstances
Legislation Cited:	Crimes Act 1900 (NSW), ss33B(1)(a) and 59(1); Road Transport Act 2013 (NSW), s146(1)
Category:	Sentence
Parties:	Rex (Crown) Amjed Rifaah Al-Mansoori (offender)
Representation:	Mr El-Kheir – (ODPP Parramatta) Mr Karim – (Counsel for offender)
File Number(s):	2022/393493
Publication restriction:	Nil

JUDGMENT

1. Amjed Al-Mansoori, you appear for sentence today in relation to three offences. 

2. The first offence is using an offensive weapon or instrument with intent to commit the indictable offence of intimidation; this is sequence 7. Sequence 7 involves a contravention of s 33B(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for sequence 7 is imprisonment for 12 years. There is no standard non-parole period.

3. The second offence is assault occasioning actual bodily harm; this is sequence 6. Sequence 6 involves a contravention of s 59(1) of the Crimes Act. The maximum penalty for that offence is imprisonment for five years. There is no standard non-parole period for that offence.

4. The third offence is failing to stop and assist after an impact causing injury; this is sequence 4. Sequence 4 involves a contravention of s 146(1) of the Road Transport Act 2013 (NSW). The maximum penalty for that offence is imprisonment for 18 months.

5. Sequence 4 would usually be dealt with in the Local Court but, through your counsel, you have consented to me dealing with sequence 4 at the same time as sequences 7 and 6.

6. The facts surrounding the three offences are mainly contained in a statement of agreed facts.  To a limited extent, those facts have been expanded through your oral evidence yesterday.  The facts can be summarised as follows. 

7. Ms Mary Saab was for a time the wife of Mr Merhi.  Ms Saab and Mr Merhi had four children together. About six years before December 2022 they separated. 

8. After the separation of Ms Saab and Mr Merhi, those children lived with Ms Saab at her home in Merrylands. 

9. For 12 months before December 2022 you were in a de facto relationship with Ms Saab.  

10. On 30 December 2022, Mr Merhi went to his former wife’s premises to give money to her for their children.  When he arrived at those premises neither his former wife nor his children were present.  Mr Merhi waited in his vehicle and sent some text messages to one of his children trying to contact his former wife.  After a few minutes of waiting, you and Ms Saab arrived at those premises.  You and she arrived in a motor vehicle. You were the driver of that motor vehicle. 

11. When your motor vehicle arrived at Ms Saab’s premises, it came to a stop.  Mr Merhi left his motor vehicle and came to the vehicle you were driving. 

12. According to the statement of agreed facts, a verbal argument then broke out between you and Mr Merhi.  According to your evidence yesterday, that was a heated argument and, in the course of it, Mr Merhi made a most rude and offensive reference to your mother. 

13. Your immediate reaction to the verbal argument (which included that insult) was to put your foot on the accelerator of your vehicle and to speed off, driving past Mr Merhi. 

14. Mr Merhi walked to the centre of the road and continued to shout and yell at the motor vehicle you were driving. 

15. Instead of proceeding away from the scene of this verbal conflict, you, in a state of rage, performed a U-turn in the middle of the road and drove back towards the direction of Mr Merhi. 

16. There is no express agreement as to the speed at which you were travelling but the use of the expression, “Due to the speed of the offender’s vehicle”, suggests it was somewhat higher than normal. 

17. Your conduct in performing the U-turn and driving back towards Mr Merhi caused him to run from the middle of the road back towards his truck. 

18. You then deliberately veered your motor vehicle in his direction and, as a result, your motor vehicle struck Mr Merhi.  The force of the impact threw him to the ground and your vehicle then collided with his.

19. There is some disagreement as to whether you deliberately intended to come into contact with Mr Merhi. 

20. Whether you deliberately intended to strike him with your motor vehicle; or whether, intending to frighten him, you came into contact with him as a result of the reckless manner in which you drove the motor vehicle, does not meaningfully affect the criminality of your conduct. 

21. It is these facts that constitute sequences 7 and 6. 

22. You knew that you had come into contact with Mr Merhi with your motor vehicle but you did not stop to assist. Rather you drove off with Ms Saab still in the motor vehicle. 

23. Your failure to stop and assist the person whom you had collided with constitutes sequence 4. 

24. You knew that what you had done was wrong. 

25. Knowing it was wrong, you decided on a course of conduct to try to eliminate the danger that you faced.  You drove directly to the Merrylands Police Station where you provided the police with an electronic statement. 

26. In that statement you told numerous lies about Mr Merhi and the circumstances in which he came to be injured.  One of the lies, perhaps the most dishonourable one, was that you were not the driver but Ms Saab was.  You also sought to blame the victim, suggesting that he had thrown himself at your motor vehicle. 

27. In the meantime, Mr Merhi was taken to Westmead Hospital by ambulance.  He suffered abrasions to his upper and lower limbs; and subsequent X-rays revealed a left tibial shaft fracture, that is, a broken left leg.  The day after Mr Merhi went to hospital, he underwent an operation in which the break in the leg was fixed by way of a tibial nail.  He was seen by a physiotherapist in the hospital.  He discharged himself on 2 January 2023. 

28. There is no evidence that Mr Merhi has any permanent or long-term physical injuries as a result of the break to his leg. 

29. Neither is there any evidence of him sustaining any substantial psychological injury as a consequence of your criminal misconduct.  However, the Court does not require evidence to appreciate that the experience would have, in all probability, been a highly frightening one for Mr Merhi. 

30. In circumstances not revealed in the statement of agreed facts, the police at some point came not to believe your story and you were ultimately arrested on 31 December 2022. 

31. It is necessary for the Court to make a finding of the objective circumstances of each of the offences for offences of their kind. 

32. Taking into account the facts as I have found them, sequence 7 is slightly below the mid‑range; and sequences 6 and 4 are both equidistant between the middle and the bottom of the range. 

33. There are no additional aggravating factors. 

34. Your subjective circumstances were placed before the Court through: a sentencing assessment report; the report of a psychologist (Mr Albassit); character references from your cousin and your cousin’s wife; and a letter from your employer.

35. There is no serious dispute about those subjective circumstances to which I shall now refer. 

36. You are 35 years of age. 

37. You were born in Iraq.  You had a supportive but difficult childhood. But, it seems as if your life was more or less an unremarkable one until you were about 15 years of age. 

38. At the age of 15 your father died.  Following his death, an uncle of yours moved in with your mother and your siblings.  Your uncle was a violent man and he inflicted physical violence and abuse on your mother and, at least, you.  That physical abuse included you being hit with bats, poles and chains.  It also included your uncle extinguishing lit cigarettes on your body.

39. You completed education to what is described as the equivalent of year 6, after which you left full-time education in order to help support your family. 

40. You were living in Iraq at the time of the American invasion of that country.  For you and for many of your fellow citizens in Iraq that was a terrifying experience. 

41. You married in 2008 and as a result of that marriage there is a child who is now 11 years old. 

42. In 2010 you opened a liquor store in Iraq.  That business operation attracted the unwanted attention of Islamic militants which resulted in threats of physical violence not only to you but to your family.  Ultimately in 2013 these threats resulted in a bomb being detonated outside the business. 

43. These threats of violence and the bombing led to stresses in the marriage with the result that your wife left you; and she took the child with her. 

44. You came to Australia on your own in 2013.  You were fortunate that you had a supportive cousin and cousin’s spouse in this country. 

45. You met Ms Saab in about 2020. 

46. You have worked on a full-time basis since coming to Australia, notwithstanding that you are in this country on a temporary bridging visa.  Your immigration status is of no relevance to the outcome of these sentence proceedings.  What is of relevance is that you are held in high regard by the man who has employed you for the last five or seven years and who has offered to continue employing you upon your eventual release. 

47. You have no prior convictions of any kind and you are therefore entitled to the leniency which can be extended, in appropriate circumstances, to a first offender. 

48. Mr Albassit has expressed the opinion that you suffer from a number of mental health conditions, the most significant of which, it seems to me, is a diagnosis of post-traumatic stress disorder as the combined result of what you experienced in Iraq - the misconduct of your uncle; the misconduct of the Islamic militants; and the inevitable consequences of a country being at war. 

49. The abuse at the hands of your uncle constitutes a dysfunctional upbringing within the meaning of the High Court decision of Bugmy. That reduces, to an extent, your moral culpability; and also, to an extent, reduces the full application of the doctrine or notion of general deterrence. 

50. The psychological condition of post-traumatic stress disorder also reduces the full application of general deterrence in accordance with the decision in De La Rosa. 

51. I am satisfied on the balance of probabilities that there is a direct causal connection between the post-traumatic stress disorder and the excessive response that you exhibited on this night of offending.  Mr Albassit has explained how post-traumatic stress disorder can trigger irrational anger.

52. Since you have been in custody, you have had an opportunity to think about what you did that night and, to a large extent, you have come to realise the wrong you have done.  You do not have yet, however, a complete and full understanding of that wrong - to an extent, you still attribute some of the blame of what happened that night to the victim.  What happened that night, Mr Al‑Mansoori, was your responsibility and your responsibility alone. 

53. In all of the circumstances I have described, I regard your prospects for rehabilitation as being reasonable. 

54. Those prospects would be enhanced by a longer period on parole and they also require active psychological intervention. 

55. No sentence for any of the three offences other than full-time imprisonment is appropriate. 

56. I intend imposing an aggregate sentence.  It is necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence. 

57. In fixing the indicative sentences, I have noted that you pleaded guilty at an early opportunity.  Each of the three indicative sentences will therefore be reduced by 25% to reflect that early plea. 

58. In relation to sequence 7, except for the plea of guilty, the indicative sentence would have been imprisonment for 3 years.  After the discount of 25%, indicative sentence is for 2 years and 3 months. 

59. In relation to sequence 6, except for the plea of guilty, the indicative sentence would have been imprisonment for 18 months.  After the discount of 25%, the indicative sentence is imprisonment for 13 months. 

60. In relation to sequence 4, except for the discount the indicative would have been imprisonment for 6 months.  After the discount of 25%, the indicative sentence is imprisonment for 4 months.

61. For the three offences sequences 7, 6 and 4, Mr Al-Mansoori, I sentence you to an aggregate sentence of imprisonment for 3 years. 

62. The start date of that aggregate sentence will be backdated by the amount of time you have spent in custody whilst refused bail.  It is agreed that the amount of time you have spent in custody is 302 days.  The start date of the sentence will therefore be 15 November 2023. 

63. I make a finding of special circumstances to reduce the statutory non‑parole period.  There are four reasons for the finding of special circumstances.  First, it is your first time in custody.  Secondly, because of the harsh conditions you have endured because of language difficulties.  Thirdly, the harsh conditions you have endured because of your untreated post-traumatic stress disorder.  Fourthly, because your prospects of rehabilitation would be enhanced by a longer period on parole. 

64. I therefore fix a non-parole period of 1 year to date from 15 November 2023 which will expire on 14 November 2024.  I fix a balance of 2 years to date from 15 November 2024 which will expire on 14 November 2026. 

65. Whether you are admitted to parole or not, Mr Al-Mansoori, is a matter for the Parole Board.  I note that you have no misconduct charges against you on your record.  That will be a powerful factor in the decision whether or not to grant you parole.  It was certainly a factor I took into account in assessing your prospects of rehabilitation as being reasonable. 

66. Before concluding there is one final remark I wish to make.  The sentencing assessment report speaks of a supervision plan being put in place for you by Community Corrections upon your release.

67. One of the aspects of that supervision plan is your referral to an external psychologist. 

68. Because of the unsatisfactory nature of the conduct of Mr Albassit in the preparation of the report before the Court (i.e. in, yet again, failing to comply with the Expert Code of Conduct in the manner discussed during submissions), I shall not be directing a copy of his report go with the warrant; and I strongly recommend to Community Corrections that Mr Albassit not be selected as the external psychologist for the purposes of the supervision plan I have referred to.

Decision last updated: 09 October 2024