R v Alaragi
[2020] ACTSC 77
•7 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Alaragi |
Citation: | [2020] ACTSC 77 |
Hearing Date: | 7 April 2020 |
DecisionDate: | 7 April 2020 |
Before: | Mossop J |
Decision: | See [37] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – unlawful act causing grievous bodily harm – common assault to be taken into account pursuant to Pt 4.4 of Crimes (Sentencing) Act 2005 (ACT) – substantial delay in sentencing the offender – limited criminal history – mental health conditions – resides in NSW – wholly suspended sentence |
Legislation Cited: | Crimes Act 1900 (ACT), s 25 Crimes (Sentencing) Act 2005 (ACT), Pt 4.4 Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 R v Kemppainen [2020] ACTSC 69 Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 |
Parties: | The Queen (Crown) Ali Alaragi (Offender) |
Representation: | Counsel M Smith (Crown) P Edmonds (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) R & J Lawyers (Offender) | |
File Numbers: | SCC 239 of 2019 SCC 240 of 2019 |
MOSSOP J:
Introduction
On 30 September 2012 Ali Alaragi, who is also known as Sami Nadr, bit off the top of his housemate’s ear. He has pleaded guilty in the Supreme Court to the following offence: one count of causing grievous bodily harm by an unlawful act, contrary to s 25 of the Crimes Act 1900 (ACT), an offence which is punishable by imprisonment for five years (SSCAN 2020/14).
He has also asked that a charge of common assault be taken into account pursuant to part 4.4 of the Crimes (Sentencing) Act 2005 (ACT). The maximum penalty of imprisonment for a common assault is two years.
Facts
The offence occurred on 30 September 2012. At that time, the offender, the victim and two others (Mr Hatem and Mr Daghaghlah) resided together as housemates in Latham, ACT. The evening before the offender and the victim had been out together in Civic, and the offender had borrowed $70 from the victim.
At approximately 8.05pm on 30 September 2012, the four occupants of the house were at the shared residence. An argument broke out between the offender and the victim about the borrowed money. The victim said words to the effect of “you work in construction and get paid good and should take your own money when you go out”. The offender became visibly angry and started swearing at the victim, saying words to the effect of “fuck your sister”. The victim thought the offender was joking and told him to shut up.
The offender then suddenly ran at the victim and wrapped his arms around him and bit the top of his left ear. The victim felt immediate pain and tried, unsuccessfully, to push the offender off him. These facts give rise to the charge of causing grievous bodily harm.
Mr Hatem and Mr Daghaghlah, who had been present during the argument, intervened and assisted in pulling the offender off the victim. The offender stepped away and spat a piece of the victim’s ear out of his mouth. The victim saw blood in the offender’s mouth. Mr Hatem observed that there was a lot of blood coming from the victim’s ear and noted “oh, your ear is cut off”. The victim felt drops of blood on the top of his left shoulder and described his ear as feeling as if it “was on fire”.
The victim went to the kitchen to put tissue paper on his wound. Mr Hatem attempted to take the offender to his bedroom, however he would not go, and followed Mr Hatem back into the kitchen. When the offender entered the kitchen, he picked up a 15cm knife. He said “fuck you” to the victim and lunged towards the victim’s stomach twice, holding the knife. Each time the victim moved his stomach backwards to try to avoid the knife making contact, however the knife made contact with his torso and he sustained two small scratches on the left-hand side. Those facts give rise to the charge of common assault.
Mr Hatem grabbed the offender from behind and took the knife from him. He attempted to take the offender to his bedroom again, however the offender refused to stay in there and walked back to the loungeroom. The offender said words to the effect of “go out of my house” to the victim. The victim replied that he had paid for two weeks of rent the day before. Nonetheless, the victim left the residence and called 000 from the front yard of the residence. The offender came outside while the victim was on the phone and said words to the effect of “the coward people call the police”, before walking back inside.
Police attended and an ambulance was called. The victim was transported to The Canberra Hospital. The piece of the victim’s ear was unable to be reattached. The victim’s ear is permanently scarred and disfigured. In a medical report prepared for the Crown, Dr Russell Thomas stated that in addition to the permanent scarring and disfigurement of the ear, other long-lasting effects of the injury may include ongoing pain and discomfort and ongoing psychological sequelae.
Victim impact statement
The prosecutor read in court a victim impact statement prepared by the victim. He recalls the significant pain he was in during the incident, the fact that he had to spend two days in hospital and that he feels “ashamed” and “ugly” due to the injury to his ear. The victim feels that the injury precluded him from developing a relationship with a girlfriend he had around the time of the incident and that he now lives alone and avoids people. The victim has been the subject of jokes and laughter because of his ear. In the victim’s words, the offence “has changed my life forever I feel that I am 50 percent dead it took away my chance for a happy future, everything has just stopped”.
Objective seriousness
The objective seriousness of the offence must be assessed having regard to the offender’s conduct and the nature of the grievous bodily harm sustained. The offending involved an unprovoked attack upon the offender’s housemate. It was clearly an unlawful act for the purposes of s 25. The injury sustained was grievous bodily harm because it involved the permanent severance of a part of the victim’s body. Further, that severance has resulted in permanent and prominent disfigurement. Having said that, the nature of the injury was not life-threatening and did not cause permanent damage to a bodily function. In those circumstances, and having regard to the breadth of possible grievous bodily harm, I consider the offending to be in the lower end of the mid range of objective seriousness for this offence.
So far as the common assault is concerned, that involved a violent assault with a knife temporally distinct from the ear biting incident. So far as the agreed statement of facts indicates, it was only the victim’s effort to avoid the knife that resulted in it only causing superficial injuries in the form of two small scratches to his torso. The act itself and its apparent intent were significantly more serious than the consequences. Because of the nature of the attack I would assess this offence as being in the mid range of objective seriousness.
Subjective circumstances
The personal circumstances of the offender are described in a sentencing assessment report from NSW Corrective Services dated 26 March 2020, an addendum to that document prepared by ACT Corrective Services, medical records from two doctors, a reference from a friend of the offender and a document prepared by the Department of Home Affairs.
The offender is 41 years old. He is originally from Iraq and came to Australia by boat in 2009 and was recognised as a refugee and granted a protection visa in 2010. He has a limited grasp of English. He is a single man with no dependents who lives alone in Cartwright, a suburb of south-western Sydney. He described his home environment as stable. He noted that he has limited family support in Australia and has limited contact with his family overseas.
He is currently unemployed and receives welfare benefits. He advised that part of his welfare requirements is that he must complete a course to provide him with some qualifications to obtain employment.
He repeatedly stated during his interviews with the NSW Corrective Services officers that he could not recall what happened during the offence due to his intoxication and the fact that the incident occurred a long time ago. After reading the police facts he stated that he was “upset about his actions” and acknowledged their wrongfulness. Despite acknowledging that his offending was attributable to his intoxication, during the interviews he did not describe having a drinking problem and stated that he only drank sporadically. He recognised that his actions would have potentially made the victim feel “depressed and upset”.
He was assessed at a medium-low risk of reoffending and as suitable to undertake community service work. The author recommended that if the court made a supervised order, there should be a condition requiring the offender to abstain from alcohol and to engage with appropriate services to address his alcohol issue.
In an addendum pre-sentence report prepared by ACT Corrective Services dated 30 March 2020, the offender was assessed as not suitable for a community service work condition. This is due to his personal circumstances and the impracticability of regular reporting given that he lives in NSW.
The report of a consultant psychiatrist dated 23 August 2018 was tendered by the offender. It confirmed that in 2010 and 2011 the offender was diagnosed with major depressive disorder, post-traumatic stress disorder (PTSD) and alcohol abuse disorder. He was prescribed medication for these conditions. It notes that the offender stopped taking the medication not long after his last appointment in 2011. The psychiatrist identified that the offender was experiencing anxiety symptoms related to an impending court case for a drink driving offence. He engaged in cognitive behavioural therapy and was prescribed medication. A further report dated 13 February 2019 indicated that the offender engaged in cognitive behavioural therapy again.
The report of his general practitioner indicated that he has had an operation to address a spinal condition in his neck.
The reference from Mr George Dahibe, who has known the offender for three years, was positive about his character but of relatively limited significance.
Criminal history
The offender has a limited criminal history, comprising of two traffic offences committed in NSW, one of which was driving under the influence of alcohol.
Plea of guilty
The offender was originally charged in 2013. A first instance warrant was issued for his arrest on 25 September 2013. He was ultimately arrested in June 2019.
He was originally charged with recklessly inflicting grievous bodily harm (contrary to s 20 of the Crimes Act), and in the alternative, occasioning actual bodily harm (contrary to s 24 of the Crimes Act).
On 4 February 2020 he participated in a criminal case conference. A new indictment was filed dated 4 February 2020, and the offender pleaded guilty on that day.
Time in custody
He has spent two days in custody in relation to the offence and I take that brief period into account in sentencing him.
Consideration
The offending was serious. It was not premeditated. It appears to have been a spontaneous act of aggression contributed to by the abuse of alcohol. It has resulted in the permanent disfigurement of and psychological harm to the victim. The offender has a very limited criminal history and is assessed as being at a medium to low risk of reoffending. The most relevant sentencing considerations are punishment, general deterrence, recognition of the harm done to the victim, holding the offender accountable and denouncing the offender’s conduct.
The common assault must be taken into account in the manner described in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [72]-[77] by giving more weight to deterrence and to the community’s entitlement to have the offender punished for the sentenced offence when there is another offence which is not being separately punished. In this case, the latter issue is more significant than the former.
Counsel for the offender placed some weight upon the delay in sentencing the offender. That delay is a substantial one, approximately seven and a half years since the offence occurred and six and a half years since the charge was laid. The delay was not the fault of the offender or the prosecuting authorities. It simply resulted from the fact that he moved to NSW and it took a long time for the first instance warrant to be executed. The significance of the delay depends upon the circumstances of the particular case: see Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 at [31]-[32]. Counsel for the offender submitted that it was significant that he had engaged in rehabilitation during the period of delay. Whilst there was some evidence that he has received and continues to receive some psychiatric treatment, that evidence is not strong enough to demonstrate any clear path towards rehabilitation. Rather, in my view, the significance of the passage of time is simply that he has demonstrated that, save in minor respects, he is able to live a law-abiding life. In that sense it reinforces the conclusion that he is at a medium or low risk of reoffending.
Counsel also submitted that the mental health conditions identified in the psychiatric evidence are significant sentencing considerations. I accept that they are relevant to the offender’s subjective circumstances. I accept that they provide some basis for the submission that the service of a sentence of full-time imprisonment would be more onerous. However, the evidence is at such a level of generality that it is difficult to place significant weight upon the general diagnoses to determine the actual impact upon this offender. I do not accept the submission that there is a link demonstrated on the balance of probabilities between the offender’s PTSD or major depression and his offending conduct.
Counsel also submitted that the service of a sentence of imprisonment would be more onerous in circumstances where there is the COVID-19 coronavirus pandemic. This was an issue referred to by the Chief Justice in her decision in R v Kemppainen [2020] ACTSC 69. While I accept that there is a possibility that a sentence of imprisonment will be more onerous than usual, the precise reasons for that are difficult to predict, having regard to the changing circumstances of the pandemic from day-to-day. All that can be said is that there is a significant risk that conditions will be significantly more onerous as a result of measures taken to prevent or manage the outbreak of COVID-19 in the prison population.
Counsel also made submissions in relation to the possibility of deportation if the offender is given a sentence greater than 12 months or one which involves service of a period of full-time custody. This is an issue which I considered in R v Ngata [2020] ACTSC 9. I proceed on the basis that I set out there at [58].
In determining the appropriate form of punishment, it is notable that the offender has been assessed as not suitable for a community service order because he resides in NSW and the addendum to the pre-sentence report indicates that such orders are not transferable. Further, having regard to his limited means, a fine would not be a useful form of punishment as part of a combination sentence. Those factors reduce the sentencing options available for an offence of this type and lead to a conclusion that only a custodial sentence is appropriate.
In my view the appropriate starting point is a sentence of imprisonment of 10 months. It is appropriate to reduce the sentence by approximately 15% on account of the plea of guilty, having regard to the stage at which it was made and the utilitarian value of that plea. That reduces the appropriate sentence to eight months and 15 days.
Counsel for the offender submitted that it would be appropriate to obtain an intensive correction assessment. In my view this is not a case where an intensive correction assessment is likely to be of use. The offender appears to have ongoing mental health issues and problems with alcohol. It does not appear to me to be a case in which there is the utility of the greater degree of supervision involved with an intensive correction order. Also, the prospects of being found suitable are limited having regard to the fact that he presently lives in NSW and would be required to make an arrangement to move to the Territory simply for the purposes of that order.
In my view the purposes of sentencing will be adequately met if that sentence is one which is wholly suspended. It will be suspended upon the offender entering into a good behaviour order for a period of 30 months with security, without surety, of $2000.
Orders
The orders of the Court are:
1. On charge SCCAN 2020/14 the offender is convicted and sentenced to imprisonment for a period of eight months and 15 days.
2. That sentence is suspended upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 30 months with security in the sum of $2000, without surety, and with the following additional condition:
a) that he be on probation subject to the supervision of the Director-General and obey all reasonable directions of the Director-General.
3. Note that in imposing this sentence the offence of common assault (CC 2013/8454) has been taken into account.
4. CC 2013/8455 is remitted to the Magistrates Court.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 20 April 2020 |
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