R v Al-Mofathel

[2021] ACTSC 38

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Al-Mofathel
Citation:	[2021] ACTSC 38
Hearing Date:	17 March 2021
Decision Date:	17 March 2021
Before:	Elkaim J
Decision:	See [11]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – good behaviour order imposed
Legislation Cited:	Crimes Act 1900 (ACT) s 24 Crimes Sentencing Act 2005 (ACT) s 23
Parties:	The Queen (Crown) Mohammed Al-Mofathel (Offender)
Representation:	Counsel
D Swan (Crown)
S Whybrow (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Paul Edmonds & Associates (Offender)
File Number:	SCC 145 of 2020
ELKAIM J:

1. On 12 February 2021 the offender pleaded guilty to one count of assault occasioning actual bodily harm (CC6766/2020), contrary to s 24 of the Crimes Act 1900 (ACT). The

maximum penalty for this offence is five years’ imprisonment.

2.       There is a Statement of Facts in the Crown Tender Bundle (Exhibit A). In summary the offender joined a woman with whom he was having a relationship in the evening of 28 May 2020.

3.       They went to his apartment. They argued about their relationship. The offender had decided, after something of a tumultuous period, that he wished to terminate the

relationship. The argument turned physical. The offender struck the woman’s face up

to four times. She suffered bruising and swelling around her left eye and an abrasion
at the back of her head.

4.       Although the woman apparently told her mother that there had been other activities, including of a sexual nature, the woman has refused to confirm the allegations to police.

5.       The offender has spent 11 days in custody. He has also been subject to very strict bail conditions which effectively have placed him under a curfew other than permitting him to attend his place of work.

6.       The offender was born in 1993 in Saudi Arabia. His family is of Iraqi descent. They left, as refugees, from Saudi Arabia in 1996, and then came to Canberra in 1997. The offender attended school to Year 10.

7.       He was diagnosed with Attention Deficit Hyperactive Disorder (ADHD) when he was nine years of age. This was clearly not properly treated, and he found himself in trouble as a young teenager [redacted].

8.       When the offender was 14 years of age he began working, out of school hours, on a farm. This was an experience from which he obviously benefited. He then stayed out of trouble until he was 22 when he was convicted of Affray, which arose from an incident at Mooseheads.

9.       There is no Pre-Sentence Report because the parties decided to proceed without one. I can go further and state that the case is a little unusual in that the parties, as far as sentence is concerned, have effectively come to court with a joint approach.

10. This approach is that the appropriate way to deal with the offender is by way of a Good Behaviour Order. I agree with their approach. In addition the offender has requested that there be a Non-Association Order made in respect of the complainant. This is to assist him in not committing any further offences related to this person. I am satisfied that the requirements of section 23 of the Crimes Sentencing Act 2005 (ACT) have been met.

11.     Accordingly I make the following orders:

(i)       The conviction is confirmed.

(ii)      The offender is to be subject to a Good Behaviour Order for a period of 12 months commencing today and ending on 16 March 2022. During this period the offender is to accept the core conditions of a Good Behaviour Order and accept the supervision of ACT Corrective Services for this period or such lesser period as deemed appropriate by the Director General.

(iii) a Non-Association Order be made pursuant to s 23 to prohibit the offender from being with [redacted] or contacting her for a period of 12 months.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 17 March 2021