R v Al-Mdwali
[2022] ACTSC 238
•2 September 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Al-Mdwali |
Citation: | [2022] ACTSC 238 |
Hearing Date: | 2 September 2022 |
DecisionDate: | 2 September 2022 |
Before: | Mossop J |
Decision: | See [40] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – threat to kill by joint commission – assault occasioning actual bodily harm – theft by joint commission – offences at low to mid-range of objective seriousness – offender not principally responsible for offences by joint commission – offending contributed to by drug use commencing after the murder of offender’s sister and offender’s resulting post-traumatic stress disorder – strong family support and prospects of rehabilitation – sentence of imprisonment imposed for threatening to kill – sentence suspended – fine imposed for assault – good behaviour order imposed for theft |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), s 10 Criminal Code 2002 (ACT), ss 45A, 308 |
Cases Cited: | R v Al-Harazi (No 7) [2017] ACTSC 350 |
Parties: | ACT Director of Public Prosecutions (Crown) Faisal Al-Mdwali (Offender) |
Representation: | Counsel M Thomas (Crown) R Rajalingam (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Offender) | |
File Numbers: | SCC 134 of 2022 SCC 135 of 2022 |
MOSSOP J:
Introduction
On 21 June 2022, the offender, Faisal Al-Mdwali, pleaded guilty to the following offences:
(a)One count of threatening to kill contrary to s 30 of the Crimes Act 1900 (ACT) (CC2021/10326). This is an offence of joint commission by virtue of s 45A of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment.
(b)One count of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act (CC2021/10329). The maximum penalty is five years’ imprisonment.
(c)One count of joint commission theft contrary to s 308 of the Criminal Code by virtue of s 45A of the Criminal Code (CC2022/2491). The maximum penalty is 10 years’ imprisonment, 1000 penalty units or both.
Facts
The facts are agreed and are in summary as follows.
On the afternoon of Saturday, 8 May 2021 the victim who I will refer to as KD received a phone call from the offender, who he lived with, saying that their house had been “run through”. KD returned home and found the offender, Ibrahim Kaddour who he also lived with and an unidentified male (together, the co-offenders) in the living room.
The men told KD to sit down on the lounge and he did. They yelled at him saying “our house has been broken into because of you”. Mr Kaddour showed KD a note that the alleged burglars had left. It was on the same sort of A4 grid paper that Mr Kaddour kept in his work vehicle and KD immediately thought the males had falsified a story in order to rob him.
Mr Kaddour approached KD and hit him on the jaw with a clenched fist. The offender then did the same thing, hitting the opposite side of KD’s jaw to Mr Kaddour. This is the offence of assault occasioning actual bodily harm.
Mr Kaddour was in possession of a Tanto Japanese-style knife with a seven-inch blade. He proceeded to press the edge of the blade to the victim’s throat in line with his jugular vein. Mr Kaddour told the victim they were going to kill him if he tried anything stupid. The victim knew if he moved, the blade would penetrate his skin.
The unidentified male had a machete in his possession and said “if you try anything I will kill you”. KD believed they were going to kill him. These combined acts constitute the offence of threatening to kill.
Mr Kaddour told KD to “go up and see what you have lost”. KD went upstairs and observed his bedroom had been ransacked with many items missing, but that the bedrooms of Mr Kaddour and the offender appeared undisturbed. When he returned downstairs, Mr Kaddour said “we are taking you to your mum’s, and I’m going to grab everything you have”.
The males directed KD into the back seat of a motor vehicle. The offender sat next to KD while the unidentified male drove the car and Mr Kaddour sat in the front passenger seat. On the drive to the victim’s mother’s house in Weston Creek, Mr Kaddour repeatedly threatened the victim not to try anything stupid. He said that they were to attend KD’s mother’s residence and retrieve all of KD’s valuable belongings to repay Mr Kaddour for the items that had allegedly been stolen.
Upon arrival at KD’s mothers house, Mr Kaddour went with the victim while the other males waited at the vehicle. KD’s mother let KD and Mr Kaddour into the house as she had known Mr Kaddour for years and initially thought they were just visiting. His mother and KD sat at the living room table while Mr Kaddour began to collect KD’s items. His mother observed KD’s face to be red and swollen. His mother knew that he had been assaulted but did not want to say anything out of fear of worsening the situation.
Mr Kaddour took a number of items totalling about $8000 and about $1000 in cash. Mr Kaddour told KD to return to the vehicle and that he could return home for the night if he wanted. KD declined and remained at his mother’s house while the males departed with his belongings. This is the offence of joint commission theft.
The next day, KD had swelling and bruising on his face and jaw line. He could not eat food for a few days due to his injuries.
A few days later, KD returned to his former residence with his mother to retrieve his belongings. He did not return to the house afterwards.
The offender was arrested on 15 October 2021. He did not tell the truth about what happened at that stage.
Victim impact statement
The victim provided a victim impact statement. He stated that the incident has affected his life “quite drastically”, that he has difficulty sleeping because he relives the memories over and over again. He has insomnia, anxiety and paranoid thoughts. He reported that on the night of the incident, he had to accept death, and that moving forward has been a challenge. He reported that no day goes by where he is not affected. These effects are consistent with what one might expect from the circumstances described in the agreed facts.
Objective seriousness
The threat to kill is a joint commission charge. That is, the offender is responsible for the actions of his two co-offenders. Those acts involved serious threats to kill accompanied by the use of weapons and threatening actions. The offending as a whole is in the mid‑range of objective seriousness, but the offender’s culpability for it is much lower than his co-offenders. He was involved in getting the victim to come to the house but was otherwise largely a bystander.
So far as the assault occasioning bodily harm is concerned, it is at the low end of objective seriousness for this offence. It involved a single punch to the head. Actual bodily harm is admitted, although whether the swelling and bruising observed on KD the day after was a result of the blows struck by the offender as opposed to Mr Kaddour cannot be established beyond reasonable doubt.
The theft is at the low end of the mid-range of objective seriousness. That is because the offence is unlimited in terms of the value of goods stolen. In this case, the goods were of substantial value but not great in comparison to what the charge might cover. The offending was directed to a victim known to the offender. The agreed facts suggest that the asserted reason for the theft was a contrived one. If that is the case, then it is not a contrivance for which the offender was principally responsible. The offender took a subsidiary role in the theft, accompanying the victim in the back seat of the car but staying at the car while Mr Kaddour took the property. Once again although he is jointly liable, his culpability is much lower than Mr Kaddour’s.
Subjective circumstances
The subjective circumstances of the offender are set out in a pre-sentence report dated 26 August 2022, a report by forensic psychologist Dr Christopher Lennings dated 10 August 2022, and three references tendered by the offender.
The offender is 23 years old. He was 22 at the time of the offending. He was born in Yemen and lived there with his parents and five siblings. His father emigrated to Australian when the offender was two years old. His mother and the children migrated to Australia in 2007 when he was eight. He described his upbringing as supportive to the author of the pre-sentence report and he has close relationships with all his family members.
In 2015, one of his sisters was murdered which caused significant emotional distress to the family. The murderer was tried in this court and the horrific facts are recorded in R v Al-Harazi (No 7) [2017] ACTSC 350.
The offender is single with no dependents. He resides in an ACT Housing property with his parents and the niece and nephews surviving his deceased sister. He does not intend to move and the property appears to be free of antisocial influences.
The offender completed Year 12 and commenced a carpentery apprenticeship, which he did not complete. He had previously held employment with Mr Kaddour’s father’s business for two or three years, and now works for his brother-in-law. He has maintained this full-time employment for eight months.
His financial situation is stable and his family are assisting him with the current court costs.
The offender reported to the author of the pre-sentence report that he had disassociated himself from all negative influences since being charged with the current offences. He reported spending time with a prosocial friend from childhood.
He has a history of substance use. He was first introduced to cannabis after his sister’s death in 2015 and began using it daily. He also began to use cocaine whenever he could obtain it, two to three times a week. He told the author of the pre-sentence report that he had ceased this conduct but reported a seven-day period of cannabis use due to stress from the current offences and court proceedings. He reported having spent a month in his room experiencing withdrawals upon “detoxing” entirely. He does not consume alcohol.
The report of Dr Lennings diagnoses him with post‑traumatic stress disorder arising from the murder of his sister and the interview with police that was conducted as part of the investigation.
The offender agreed with the statement of facts and accepted full responsibility for his actions. He expressed empathy towards the victim and claimed that his actions were “not in character” and that he “was raised better than that”. He did not attempt to minimise or justify his behaviour and accepted the potential legal repercussions. In the opinion of the author of the pre-sentence report, his acceptance of responsibility and willingness to address his risk factors suggested he was capable of rehabilitation.
The offender was assessed as able to meet a financial penalty, suitable for a good behaviour order with a low level of intervention, suitable for a community service work condition and suitable for an intensive correction order.
Criminal history
The offender has no previous criminal history.
Plea of guilty
The offender pleaded guilty in the Supreme Court, after committal for trial but before any listing for criminal case conferencing. He is entitled to a 20 percent discount on a custodial sentence that would otherwise have been imposed on account of his plea of guilty.
Time in custody
The offender spent seven days in custody and was granted bail on 21 October 2021.
Consideration
The offending in this case is serious. The offender’s role in that offending was much less than that of his co-offenders, in particular much less than Mr Kaddour. Although the precise motivation for the offending is not clear, it appears to have occurred in the context of Mr Kaddour’s drug-fuelled leadership which the offender went along with to a certain extent.
His co-offender Mr Kaddour had a criminal history and was charged with additional offences. The sentences of imprisonment were allowed to be served by way of intensive correction order, however Mr Kaddour had spent 289 days, or nine months and 16 days, in custody prior to sentencing. He received a six-month sentence for assault occasioning actual bodily harm (with a starting point of seven months). On the charge of threatening to kill he received a sentence of 20 months’ imprisonment (with a starting point of 24 months) as well as 240 hours of community service. On the charge of theft he was sentenced to four months’ imprisonment. The starting point is not stated but was probably five months.
The offender is young man without any criminal history. His has a history of illicit drug use but has now abandoned that. The experience of incarceration following his arrest appears to have been enough of a shock to snap him out of his drug-using lifestyle. He appears to have got his life back on track in the period after his release from custody. He is employed and retains solid family support. I accept that he is truly remorseful for his conduct, not merely remorseful about the adverse consequences for himself.
I accept that his offending was indirectly contributed to by the horrific murder of his sister and the trauma that he suffered as a result. That was as a result of becoming involved with a drug using subculture in the wake of his sister’s death and the trial of the murderer.
I accept the evidence that a sentence of imprisonment would weigh more heavily upon him because of his post-traumatic stress disorder, although this additional burden would only be a relatively minor consideration.
The essential submission made on behalf of the offender was that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) was not passed in relation any of the offences. I accept that this is the case for the offences other than the threat to kill. Although the offender’s involvement in the threat to kill is through the joint commission of the offence and he was essentially a bystander, the seriousness of the offending is sufficient to mean that even for a person of his subjective circumstances, only a sentence of imprisonment will be appropriate. The sentence imposed will be one of four months’ imprisonment, reduced from five months on account of a plea of guilty. The sentence will be backdated to take into account the seven days spent in custody. However, I do not consider that the purposes of sentencing require that he spend any additional time in custody and that the balance of the sentence can be suspended pursuant to a good behaviour order with a period of community service.
The assault can appropriately be dealt with by way of a fine. Having regard to the limited role that he played and the absence of a criminal history, the theft can be appropriately dealt with by way of a good behaviour order.
Orders
The orders of the Court are:
On the charge CC2021/10326, threatening to kill, the offender is convicted and sentenced to imprisonment for four months commencing on 26 August 2022 and ending on 25 December 2022, which sentence is suspended forthwith upon entry into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years subject to the condition that, for a period of two years or such shorter period as determined by the Director-General, he be on probation subject to the supervision of the Director‑General and obey all reasonable directions of that person and a condition that he perform 120 hours of community service within 12 months.
On the charge CC2021/10329, assault occasioning actual bodily harm, the offender is convicted and fined $1000 and allowed six months to pay.
On the charge CC2022/2491, theft by joint commission, the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months, subject to the condition that, for a period of 12 months or such shorter period as determined by the Director-General, he be on probation subject to the supervision of the Director-General and obey all reasonable directions of that person.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: |
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