R v Assaf

[2022] NSWDC 466

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Assaf [2022] NSWDC 466

Hearing dates:

25 February 2022

Date of orders:

25 February 2022

Decision date:

25 February 2022

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

A term of imprisonment of 41 months with a non-parole period of 22 months at [57].

Catchwords:

CRIME — Violent offences — Reckless wounding – in company

SENTENCING — Aggravating factors — Breach of conditional liberty

SENTENCING — Commencement — Pre-sentence custody period

SENTENCING — Mitigating factors — Plea of guilty — Remorse

SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Parity — General principles — Maximum penalty — Moral culpability — Objective seriousness

SENTENCING — Subjective considerations on sentence — Age of offender — Special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Daher [2021] NSWDC 739

R v Thomas [2007] NSWCCA 269

R v Qutami (2001) 127 A Crim R 369

Imbornone v The Queen [2017] NSWCCA 144

Bugmy v The Queen (2013) 249 CLR 571

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

R v Postiglione (1991) 24 NSWLR 58

Category:

Sentence

Parties:

Regina (Office of the Director of Public Prosecution)

Ibrahim Assaf (Offender)

Representation:

Ms I Maxwell-Williams (Solicitor, Office of the Director of Public Prosecutions)

Mr M Smith (Counsel for the Offender)

File Number(s):

2019/00375678

Judgment

1. Ibrahim Assaf, born in 1998, pleads guilty to one count of reckless wounding in company contrary to s 35(3) of the Crimes Act 1900. The offence carries a maximum penalty of ten years imprisonment, with a standard non-parole period of four years.

2. The sentence has to take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, and the yardsticks are indicated by both the standard non-parole period and the maximum penalty for this offence.

3. The plea was entered in circumstances which is agreed justify a 5% discount for the utilitarian value of that plea.

4. It is acknowledged by Mr Smith, counsel for the offender, that a term of full -ime custody is appropriate and no alternatives need be considered.

5. The sentencing exercise has been assisted, but in some ways slightly complicated by the fact that I sentenced a co-offender, Mr Daher (R v Daher [2021] NSWDC 739 on 30 November 2021 to a term of two years and nine months imprisonment with a non-parole period of 18 months inclusive of a 25% discount for the plea of guilty.

6. The offender was arrested on 20 November 2019 and was bail refused until 25 March 2020, a period of approximately four months. He was then bail refused for a week on another matter and served a custodial sentence for a larceny from 29 October. That sentence was imposed on 26 July 2021 at the Bankstown Local Court. The sentence imposed was 12 months with a non-parole period of six months expiring 28 April 2021. There is no indication in this custodial record as to why he was not released on parole and enquiries from the solicitor for the offender, which are not controversial, indicate that the sentence was imposed on 26 July 2021 and that is why he served the period of nine months in custody for a sentence which was to have a non-parole period of six months. As such those additional three months in custody awaiting that sentence could properly be regarded as time in custody bail refused on this matter. There are questions of totality and accumulation to be taken into account, bearing in mind that he served that sentence while awaiting sentence for this matter and in exercising my discretion I would take into account a further three months of that, so that a total of ten months backdated for the commencement of the term of imprisonment will be allowed.

7. The agreed facts are relevantly similar to those upon which Daher was sentenced, but with one difference which according to Mr Smith’s submissions, is a critical difference and I will come to that in due course. They show that at the time of the offence the victim had known Daher for about two years and on 23 November he communicated with Assaf about introducing Assaf to a friend of the victim who lived in Stanmore and supplied Xanax. They arranged for Assaf to pick up the victim, take him to the meeting and drop him home. The victim got into the car at Rockdale, Assaf was in the driver’s seat, Khraizatt was seated in the front passenger and Daher was in the rear driver’s side seat to the right of the victim who was sitting in the rear passenger side seat. I am told by the Crown that Khraizat was not charged with any offence, notwithstanding that the agreed facts in this case and in Daher’s case indicate his active involvement.

8. The car travelled to Stanmore, the victim got out and called his friend over to the car, Khraizat spoke to the friend through the front passenger window, who gave Khraizat a bag of Xanax tablets in exchange for $120 in cash. The victim got back into the same seat of the car after the drug transaction and the car drove away.

9. Assaf said to the victim, “You know it’s a dog act saying you’re going to call the cops.” This was in reference to a text message sent the previous day to an unrelated female regarding the return of a set of keys, during which he said he would contact the Police if he did not get them back. Based on what Assaf had said, the victim them realised that he had accidentally sent that text message to Assaf who had a similar phone number to the unrelated female. The victim said, “Bro, it’s not got anything to do with you, I’m not paying a thousand dollars for a set of keys.” Assaf repeated, “It’s a dog act.”

10. Daher and Khraizat agreed with Assaf, both stating to the victim that his behaviour constituted “a dog act.”

11. At this point, as the car was travelling along Wentworth Street in Bardwell Valley. Assaf stopped the vehicle in the middle of the street. All three men took their seatbelts off at the same time. Assaf turned his body towards the victim and, using his right fist, directed a punch towards the right cheek of the victim. The victim raised his arms and was able to block this punch from hitting his face with his right arm.

12. The agreed facts here then continue as follows. Assaf and Khraizat also turned in their seats and began throwing punches towards the victim’s face. The facts in Daher’s sentence proceedings stated that Assaf and Khraizat turned in their seats and began throwing punches towards the victim’s head. Mr Smith puts that the insertion of the word “also” is critical because it leads to the inference that Assaf and Khraizat in addition to Darher turned in their seats and began throwing punches towards the victim’s face, and it is on that basis that he asserts an equality of level of active involvement of the three of them in the assault of the victim.

13. The victim put his head down with his arms up to guard his face, curling into a ball as much as he could with his head between his legs. At least 15 punches connected with the back of the victim’s head. The victim did not see who threw the punches that connected with the back of his head. While the assault was occurring, he reached out with his left hand to try and open the car door, but it was locked. He tried to open the window, which was also locked, but once the assaults ceased all three of them, that is Assaf, Daher and Khraizat told him to get out.

14. He realised there was a lot of blood spattered throughout the vehicle, all over the seat and floor mat. He said, “I can’t get out, and the fucking door’s locked.” Khraizat got out of the car, the victim climbed over the seats and got out through the front passenger seat and the car drove away. The victim approached a member of the public and asked him to call an ambulance.

15. The victim was taken to St George Hospital where he was treated for a large wound of approximately 16 centimetres going from his right ear to across a large portion of his right cheek. It required emergency surgery involving repair buccal nerve, repair of the masseter, repair of the parotid capsule and sutures.

16. The car was depicted in footage obtained by Police and it was seen dropping off Daher outside Kogarah Police Station, because at that time he had to report on bail.

17. On 28 November Assaf was arrested. A form of demand for the name of the driver and passenger was placed upon him. He said, “You want me to drop the name of the person whose done it? No way, I’m not giving you anyone’s name.” When asked again for the information, he said, “No way, I’m not going to tell you that for the safety of me and my family.”

18. When reminded by police that if he did not comply with the form of demand, he may be committing an offence, he said, “So you’d rather get me or someone else killed to get someone in trouble? You’re supposed to be the Police.” That refusal is the subject of a charge of not disclosing identity of driver or passenger as required, to be dealt with pursuant to the s 166 certificate, and I will, as indicated during the course of submissions deal with that under s 10A of the Crimes (Sentencing Procedure) Act 1999 by recording a conviction and imposing no further penalty.

19. An additional matter to be dealt with on the s 166 certificate is that on 25 November the accused attended Kogarah Police Station for an unrelated purpose. He came in a car which was seized and within that car was found 1.58 grams of cannabis. That is the subject of a possess prohibited drug charge on the s 166 certificate. I will also deal with that under s 10A of the Crimes (Sentencing Procedure) Act 1999.

20. The agreed facts note that Assaf accepts guilt on the basis of participating in a joint criminal enterprise in its extended form. The reckless wounding in company was an incidental crime with Assaf foreseeing as a possibility the causing of actual bodily harm, but which harm was not within the scope of the criminal agreement to assault.

21. The victim was cut by a sharp or bladed instrument or knife by one of the males in the car, but it cannot be established which. The injuries to the victim are depicted in graphic photographs in the brief, and described in the victim impact statement along with the effect of those injuries upon the victim.

22. I take into account the victim impact statement in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 269. The statement was a graphic description of the permanent disfiguration of scarring following a violent and premeditated attack involving deep slashing on his face by the offenders in the car. He says they bashed him with a sharp-edged object cutting along the neck and cheek so that his teeth were exposed. The statement goes no further than to describe the significant and long-lasting effects of such a violent attack.

23. Mr Assaf’s criminal record involves only one previous period of full-time custody, namely the period of 12 months, with a non-parole period of six months to which I have earlier referred to, for a larceny. His first offence was a charge of larceny in January 2019, dealt with by a community corrections order imposed for a period of two years. The community corrections order was called up in July 2021, and a further community corrections order was imposed. There are further offences on his recorded including, a charge of possess prohibited drug in July 2019 dealt with by a fine; a common assault in October 2019 dealt with by a fine; in October 2020 three counts of dishonestly obtain property by deception, dealt with by a community corrections order; a drive under the influence in 2016 dealt with by a fine and disqualification and in July 2019, two possess prohibited drug charges dealt with by fines.

24. The subjective case is set out in a Sentence Assessment Report and a bundle of documents tendered by the offender. The offender has not given evidence and the assertions as to history and other matters are treated with some caution and reservation in the light of authorities such a R v Qutami (2001) 127 A Crim R 369 and Imbornone v The Queen [2017] NSWCCA 144, given that the history has not been tested or subject to cross-examination. The documents all speak with a common voice as to his background and appear to be a reasonable basis upon which to proceed to sentence.

25. The Sentence Assessment Report shows that he currently resides with his parents and siblings and there is a close and positive relationship. He has had steady full time employment throughout his life, and he is currently working full time as a sales supervisor. His antisocial behaviour increased in 2019 which he attributes to association with negative peers as a contributing factor to his offending. He says his judgment was impaired at the time of the offences due to being under the influence of illicit substances. He asserted that he was not personally involved in the physical harm inflicted on the victim, but that’s a difficult proposition to accept in the light of the plea and the facts.

26. He says that he has now removed himself from negative peer groups. He said he was under the influence of cannabis, cocaine and Xanax and had become reliant on those daily but had now ceased all drug use. He was experiencing anxiety and depression at the time and his psychologist confirmed ongoing treatment regarding his addiction issues.

27. He said that he is regretful and has expressed remorse for the victim. He demonstrated insight by identifying the harm caused to himself, the victim and the wider community and he is willing and able to complete interventions. He is currently attending a psychologist to target his mental health issues. He was assessed as being at a medium risk of reoffending and suitable for community service work.

28. There is a report of a consultant psychiatrist, Dr Olav Nielssen, following a recent consultation. He told Dr Nielssen that the four months he spent in custody before being granted bail had actually done him good, he cleaned himself up, he stopped speaking to his friends and turned his life around. He said that back then, that is at the time of the offending, he was a completely different person, using a lot of drugs. He said he did not remember his drug use on the day of the offending but said it was likely that he was affected by drugs, and that there was probably not a day that he did not take drugs back then, and the combination of cannabis and alprazolam made him feel invincible. Before he started using drugs, he was an anxious person, he used to stutter a lot and he had trouble speaking. He was embarrassed and he only spoke to one person at school. He took drugs to ease the anxiety from being teased and it made him feel accepted.

29. At the time of the offending, he was living with his parents and returned to live with his parents following his period in custody, although it is notable that he does not mention the second period of custody following the larceny charge.

30. He said his family was affected by the trauma of the civil war and the invasion of the south of Lebanon and adjusting to life in Australia. His first consultation with any mental health professional was his referral to the psychologist, Ayman Kassir, following his release on bail, and he saw him between ten and 15 times until the last COVID lockdown. He said his physical health was good and his work was physically demanding, he did not drink alcohol.

31. He was born in Australia to parents of Shia heritage from the south of Lebanon. After school he learned carpentry and formwork on the job, but he is employed by a construction firm. He has been in a relationship for some two years and has recently formed an association with Chantelle Akil as a new partner.

32. Dr Nielssen noted the records of Dr Kassir, the psychologist and confirmed the mental health plan that had been prescribed. His diagnosis was substance use disorder in remission. He has some positive prognostic indicators., although he has no major psychiatric disorders he would be advised to persist with substance focussed counselling. Mr Kassir’s report confirms the consultations from July 2019 to September 2020 and he suggests the need for continuing further therapy.

33. I have a favourable reference from his partner, Chantelle, who has known him for six months or so, and speaks well of his conduct and describes him, as others do, as a very hard-working person. Ms Bazzi also has known him for about six months and speaks in similar terms. She said that he is shaken by these events and is extremely remorseful, he is terrified of the prospects of returning to gaol and says that life is not for him.

34. Mr Mansour, a director of a disability provider has known him for about ten years, and he points to the volunteer work that he had completed at the local community centre between 2015 and 2018. He describes him as a kind-hearted, thoughtful person who assists everyone to his greatest ability and is an asset to the community. He was surprised to learn about his offending and the gravity of the offence. He says that Mr Assaf expressed his deepest regrets about the incident, particularly its grave repercussions for his family and the community.

35. There is also a reference from Rachid Chalan who said that he has worked in his warehouse for about a year, and he showed good leadership skills and is reliable and compassionate and honest.

36. As is frequently the case, the authors of those types of testimonials are not surprisingly familiar with a different person to the person described in the facts as to this episode of offending.

37. The Crown sentence submissions note that the sentencing judge should refer to the particular conduct of an individual offender with the view to identifying the level of culpability of the offender and the offence for which he is being sentenced. Here, the Crown says that while there is some differentiation in culpability, the very existence of the enterprise and the participation of each of them provides a limit to the extent to which this can occur with respect to the objective seriousness of the offence.

38. Here, the Crown acknowledges it cannot prove which of the three men had actually inflicted the slashing wound on the victim’s face, but it is established that it is one of the three men in the vehicle and as the Crown acknowledges and indicated in the factual findings that I made in Daher, no person will ultimately be individually sentenced for the serious slashing wound to the victim.

39. The Crown says that Assaf was in the driver’s seat and he stayed in that position at all times. Daher was in the back seat. It was Assaf who first raised an issue with the victim relating to the text message, and the other two agreed with him. Daher threw the first punch towards him and was sentenced on that basis. The Crown says that the facts show that Assaf and the other male then repeatedly punched the victim towards his face at least 15 times and it was in the course of this violent attack that the victim sustained the wound. The Crown relies on the agreed facts to submit that all the participants in the enterprise are equally criminally liable regardless of the part played by each in its commission.

40. Mr Smith’s submission rests on the assertion of, as I have described it, the critical word “also” by claiming that that shows all three of them were involved and there is no relevant difference in the level of culpability of Assaf and Daher. The finding that I made in R v Daher [2021] NSWDC 739 was that his offending was slightly below midrange and Mr Smith’s submission here, is to similar effect. I accept his submission that the insertion of the word “also” leaves open the reasonable inference that all three of them were throwing punches towards the victim’s face at the same time and I would find that Assaf’s offending is also slightly below the midrange of objective seriousness.

41. I acknowledge, as the Crown points out, that the wounding involved a violent physical attack within the confines of a vehicle from which the victim could not remove himself. There was a significant amount of blood left in the car, indicative of the seriousness of the injuries sustained by the victim.

1. As to aggravating factors, it is acknowledged that he was on conditional bail at the time of the offence

2. The Crown accurately notes, that although the diagnosis of substance use disorder was made on the basis of a self-reported account of drug use, he was not found to have any major psychiatric disorder which would require ongoing treatment and there was no finding of any causal connection between any psychiatric condition or drug disorder and the offending.

3. Mr Smith acknowledges that this offender does not have the benefit of a Bugmy finding (Bugmy v The Queen (2013) 249 CLR 571), unlike Mr Daher.

4. The Crown, correctly in my view, points out that his expressions of remorse are of limited weight given the fact that he does not appear to have any independent recollection of the offending due to substance abuse at the time, and his attitude expressed to the author of the Sentencing Assessment Report of denying the physical harm to the victim, is consistent with the lack of insight and genuine remorse. However, he did plead guilty shortly before trial.

5. There is a basis for a finding of special circumstances, in my view, given the clear need suggested by the psychologist and the psychiatrist for continued attention to rehabilitation and drug counselling to ensure that he does not relapse into a life of drug taking.

6. I take account also his relative youth and I take account of the custodial conditions during the COVID pandemic. The evidence before the courts on a daily basis point to the difficulties that Corrective Services are operating under in providing education, visits and other forms of rehabilitation while in custody within the limits of the resources available to them.

7. Ultimately the Crown’s submission on parity is that Assaf was more physically involved than Daher, but I have found in favour of Mr Smith on that point.

8. I take into account, as I have said, of the fact that it was the offender who initiated the antagonism towards the victim.

9. There is no DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 finding in terms of moral culpability.

10. There is a difference in discounts.

11. Mr Smith points to the requirement set out in R v Postiglione (1991) 24 NSWLR 58 for equal justice between co-offenders requiring that there not be a marked disparity which gives rise to a justifiable sense of grievance.

12. The starting point of any respective sentence can be taken into account in considering the question of parity.

13. Further, there is a limit to which the objective seriousness of offending can be distinguished between offenders involved in the same joint criminal enterprise. Mr Smith acknowledges that both Assaf and Daher were on conditional liberty at the time of the offending, but that his less serious criminal history balanced against the greater discount and his better prospects of rehabilitation would lead to a slightly lesser sentence than Daher.

14. Mr Smith put in written submissions, but not orally, the proposition that a sentence could be less than two years raising consideration of an intensive corrections order, but the term that I have in mind precludes consideration of that option.

15. The starting point of the sentence for Daher was 44 months. In my view, it is optimistic to say that the sentence for this offender should be any less, balancing out the various factors to which I have referred

16. The orders that I make are as follows:

1. The offender is convicted of the offence.

2. Taking into account a 5% discount I impose a sentence of imprisonment of 41 months commencing 25 April 2021.

3. I impose a non-parole period of 22 months expiring on 24 February 2023.

4. I find special circumstances

5. As indicated both s 166 matters will be dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999

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Amendments

07 November 2022 - Corrected file number on coversheet

Decision last updated: 07 November 2022