R v Chambour; R v Khallouf (No 5)

[2016] NSWDC 379

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Chambour; R v Khallouf (No 5) [2016] NSWDC 379
Hearing dates:	21, 22, 26-30 September 2016; 4-6, 14 October 2016; 17-18 November 2016
Date of orders:	02 December 2016
Decision date:	02 December 2016
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Chambour – see [87] and [88] Khallouf – see [89] and [90]
Catchwords:	SENTENCE – Reckless wounding in company and affray – Affray occurring at Opera Bar at Opera House in Sydney – Subsequent Reckless wounding in company at Opera House carpark – Offenders pleaded guilty to offences – Effect of public location of offences considered in sentencing exercise – Custodial sentence imposed on both offenders
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
Cases Cited:	Amado v Regina [2011] NSWCCA 197 Chen v Regina [2013] NSWCCA 166 Regina v Zamagias [2002] NSWCCA 17
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (Crown) George Chambour (Offender) Youssef Khallouf (Offender)
Representation:	Counsel: Ms R Rodger (Crown) Mr B Vasic (Offender Chambour) Ms A Francis (Offender Khallouf)   Solicitors: Solicitor for the Director of Public Prosecutions (NSW) (Crown) Elie Rahme & Associates (Accused Chambour) Barakat Lawyers (Accused Khallouf)
File Number(s):	2013/271652;2013/271657
Publication restriction:	No

Judgment

1. HIS HONOUR: George Chambour and Youssef Khallouf stand for sentence having pleaded guilty to a number of charges. This sentencing exercise is a complicated one and part of that complication arises from the parties agreeing to facts but not agreeing to what those facts actually mean in law. The agreed facts follow upon a lengthy course of pre-trial proceedings.

2. The matter first came before me on 21 September 2016 when the Crown presented an indictment containing seven counts. The first count concerned George Chambour, the second count concerned Youssef Khallouf and each of the five remaining counts made the same allegation against each of the offenders. Mr Chambour pleaded guilty to the first count in the indictment. The offenders pleaded not guilty to each of the other counts contained in the indictment. The Crown then made an application to adduce tendency evidence. On Monday, 26 September 2016, I rejected that application. My reasons for that decision have been posted online and can be found at [2016] NSWDC 244. Each of the accused then made an application for trial by judge alone. I dismissed that application on 27 September 2016 and my reasons for that decision have also been uploaded: [2016] NSWDC 245. The Crown then made a number of applications under s 67 of the Evidence Act1995. I refused an application in respect of a witness, Christopher James Pattison, on 29 September 2016, I issued a warrant for the arrest of that witness. That warrant was never executed. On the Friday, 30 September 2016, I refused an application by the Crown under s 67 of the Evidence Act in respect of a witness Isaac Parry. I then issued a warrant for the arrest of Isaac Parry but that warrant was never executed. The October long weekend intervened.

3. On Tuesday, 4 October 2016, the matter was adjourned on the Crown’s application after I made certain orders at the request of the prosecutor. On 5 October 2016, when it had became clear that the witnesses that the Crown was seeking to call had all gone overseas, I revoked the arrest warrants earlier issued and adjourned the matter on a joint application to 6 October 2016. On that day, Mr Chambour pleaded guilty to two further counts contained in an indictment presented on 26 September 2016, an amended indictment because of his earlier plea of guilty on 21 September. Mr Khallouf also pleaded guilty to two counts on the indictment of 26 September 2016 and the Crown accepted the pleas then entered by Mr Chambour and Mr Khallouf in full satisfaction of the indictment presented on 26 September 2016. I then adjourned the matter for sentence to Friday, 14 October 2016 but the sentencing hearing could not be completed then. There were two further days of the sentencing hearing, Thursday, 17 November and Friday, 18 November 2016 at Darlinghurst. I then adjourned the matter until today to pass sentences upon each of the two offenders.

4. In addition to standing for sentence in respect of the offences to which Mr Chambour pleaded guilty before me, I am also required to sentence him in respect of certain offences to which he pleaded guilty in the Local Court. In the first of my four published judgments, I sought to describe the nature of the proceedings before me at some length because I knew I would be called upon to make a large number of interlocutory decisions. If there be any disagreement between that summary of the proceedings and the agreed facts which I am about to recite, then at this sentencing hearing I must base my decision and findings upon the facts that the parties have agreed.

Facts

5. On the evening of Saturday, 7 September 2013, Mr Kurtis Pattison was at the Opera Bar at the Sydney Opera House to celebrate his birthday. With him were Mr Patrick White, Ms Peggy-Lee Greenwood, Ms Rebecca Greenwood, Mr Robert Ragonese, Mr Michael Higgins, Mr Chris Pattison (his brother), Mr Thomas Crossling, Mr Durant Brown, Mr Isaac Parry, and Mr Christian Hazel. This group may be described as the Pattison group. There was another group present at the Opera Bar at the Opera House on the same evening. The parties have agreed to call that group the Barakat group. Amongst others, it comprised Mr Ahmed Barakat, Mr Mahmoud Barakat (his cousin), Mr George Chambour, Mr Youssef Khallouf, Mr Abraham Kbayli, and Mr Ali Selman.

6. The parties have agreed as to how Mr Kbayli, Mr Khallouf, Mr Chambour, and Mr Mahmoud Barakat were dressed. It is not necessary at this stage to recite that agreement but it is necessary if one has to have regard to the film which has been displayed and the still photographs taken from various CCTV cameras.

7. At about 20 past midnight on Sunday, 8 September 2013, Chris Pattison, Isaac Parry, Thomas Crossling, Durant Brown, and Christian Hazel commenced to leave the Opera Bar. As they walked through the bar, CCTV footage reveals that Christian Hazel bumped into Ahmed Barakat and a woman who was walking with Mr Barakat. This bumping into each other appears to have been accidental. Ahmed Barakat pushed Christian Hazel aside, he and the lady in whose company he was, continued to walk forward into the bar service area of the Opera Bar.

8. Mr Hazel continued to walk in the opposite direction, in the same direction he had been walking prior to this collision. However, he turned to his left and said a few words in the direction of Ahmed Barakat who did not respond to whatever it was Mr Hazel said. However, Abraham Kbayli, who was one of the men in the Barakat group, walked towards Mr Hazel. Abraham Kbayli was followed by Ahmed Barakat. Mr Hazel stopped and stood looking at Mr Kbayli. The men walking with Mr Hazel also stopped and turned around. Kbayli walked straight up to Hazel and threw a right hand punch at him. That punch hit Mr Hazel’s face. Mr Hazel stumbled backwards. Durant Brown punched Mr Kbayli’s head, knocking Mr Kbayli to the ground. That resulted in Mr Kbayli quickly developing a large red mark near his left eye. Other men from the group walking with Chris Pattison and men from the Barakat group rushed from various parts of the Opera Bar towards the melee and also became involved. This amounted to an affray. Security guards arrived, intervened, and separated the two groups of men. The fighting stopped.

9. A few seconds later, Ahmed Barakat ran back towards the Pattison group and threw a punch at Chris Pattison. Another fight started. At this point, George Chambour became involved, he threw a chair into the melee. That chair struck a security guard, Mr Steve Yarza, in the head, causing a laceration. For that offence, Mr Chambour was charged with assault occasioning actual bodily harm to Mr Yarza, to which charge he pleaded guilty at the earliest available opportunity in the Local Court. As soon as Mr Chambour launched the chair, he was tackled and brought to the ground by a bartender, Mr William Collins. Mr Collins maintained hold of Mr Chambour and restrained him during the rest of the second fight. Mr Collins described Mr Chambour as being very calm and that he did not try to resist or in any way budge from Mr Collins’ hold on him. Mr Collins stated that whilst he was holding Mr Chambour, Mr Chambour said to him, “Let me go, let me go, they’re my friends, stop, I need to help them, stop”. Nevertheless, Mr Collins continued to keep hold of Mr Chambour. Mr Collins eventually released Mr Chambour from his hold after the second fight in the Opera Bar had ceased and the men from each of the two groups had moved away from the area towards the carpark of the Sydney Opera House. At the time that Mr Collins released Mr Chambour from his hold, he observed that Mr Chambour was “calm and collected”.

10. Closed-circuit television footage shows that during the fight I have just described Youssef Khallouf stood to the side of the fight and produced a knife from the pocket of his trousers which he held by his side. The CCTV footage from the Opera Bar depicts the knife in Mr Khallouf’s hand and then shows Mr Khallouf folding the knife away and replacing it in his pocket after a relatively short period of time. It appears from the still photographs I have seen that Mr Khallouf was merely holding the knife in anticipation that something might occur relating to him but nothing did occur. There is no suggestion, and it is agreed, that Mr Khallouf did not threaten anyone with the knife.

11. After the security guards had broken up the second fight, they ushered the members of the Pattison group out of the bar and into the carpark area. Before reaching the area where cars are actually parked, there is a foyer where lifts can be caught to other places in the Opera House and where there is, for example, a pay station. Another group of security guards stood in front of the Barakat group seeking to stop them from following the Pattison group.

12. As the Pattison group was leaving the bar and walking towards the carpark, Mr Khallouf can be seen going past the security guards at the entrance to the walkway into the carpark whilst Mahmoud Barakat is detained for a very short period of time by a security guard. Abraham Kbayli also moves past security guards into the walkway and he was soon followed by Mahmoud Barakat. The CCTV footage taken on the walkway depicts Mahmoud Barakat and Khallouf being stopped by different security guards before they reach the carpark lift area. Mr Kbayli arrived in the same area shortly thereafter and was also stopped by the security staff. However, Mr Khallouf then continued down the walkway towards the carpark area. Mahmoud Barakat and Mr Kbayli were detained by a security guard for a short period of time before they continued down the walkway into the carpark.

13. In the walkway area between an automatic teller machine and some glass doors, Mr William Collins is seen to push past Mr Chambour who was just in front of him and was walking towards the Pattison group as they walked into the carpark. Shortly after this and whilst he was still in the walkway area, Mr Collins saw Abraham Kbayli take a knife out of his pocket. Durant Brown heard an unidentified male yell out “Get the knife off Yusef”, but I take that spelling to be another attempt to transliterate, from Arabic into English, the name Youssef and it is clearly a reference to Mr Khallouf. That unidentified male also said “Give me the knife, Yusef”. William Collins then yelled out “Purple shirt has a knife” and the words “Purple shirt” were an attempt to identify Abraham Kbayli. Ms Peggy-Lee Greenwood yelled out “He’s got a knife”.

14. Another unidentified male from the Barakat group called out “Who are we after?”, that was followed by Abraham Kbayli saying “Blue shirt” which is an attempt to identify Chris Pattison. One of the males in the Barakat group called out “Shank them” which I take to mean “Stab them”. The Crown is unable to establish beyond reasonable doubt when those statements were made other than at some time between the Opera Bar and the carpark lift area.

15. In the vicinity of the carpark lifts, Abraham Kbayli advanced towards and pushed Michael Higgins with his left hand, he then walked towards Kurtis Pattison and pushed him. Abraham Kbayli then walked towards Chris Pattison. The Crown cannot establish beyond reasonable doubt where Mr Khallouf or Mr Chambour were at that time. CCTV footage shows Mr Chambour arrive in the area six seconds after Abraham Kbayli pushed Mr Higgins and Mr Chambour punched Mr Higgins causing him a black eye and a cut on the bridge of his nose. For that offence, Mr Chambour was charged with assault occasioning actual bodily harm and Mr Chambour pleaded guilty to that offence in the Local Court at the earliest available opportunity. The Crown cannot establish beyond reasonable doubt where Mr Khallouf was at this time.

16. William Collins saw a man who was half the size of Abraham Kbayli wearing a striped shirt (the stripes were thick and evenly spaced, dark blue and white or black and white) take the knife from Abraham Kbayli. William Collins stated that this male had no definition or bulging muscles and he thought the male had his sleeves pulled up. On this night, there were two men wearing striped clothing on their upper bodies. They were Mahmoud Barakat and Youssef Khallouf. The physique described by Mr Collins describes Mahmoud Barakat more than Youssef Khallouf. However, the description of the clothing describes Youssef Khallouf more than Mahmoud Barakat. It is impossible for me to make any finding beyond reasonable doubt as to who it was that took the knife from Mr Kbayli. Indeed, the facts agreed by the parties make it impossible for me to find on the balance of probabilities who it was that took the knife from Mr Kbayli.

17. Mr Collins then states that the male who had taken the knife moved towards “the Caucasian guys who were standing near the three metal barriers”, those metal barriers divided the carpark itself from what might be described as the carpark foyer or walkway. Mahmoud Barakat is depicted in the CCTV footage moving towards Chris Pattison in this area. The CCTV footage depicts the two groups moving out of sight to the right and down the ramp in the carpark area, that is, down into the bowels of the earth rather than up towards the carpark exit into Macquarie Street.

18. Mr Chambour can be seen to walk to the right after Abraham Kbayli, Mahmoud Barakat, and Ali Selman had moved to the right. Mr Khallouf is then depicted on the CCTV footage arriving after those I just mentioned in the carpark area and twelve seconds after Chris Pattison moved down the ramp and out of sight of the CCTV coverage and ten seconds after the group of three moved out of the CCTV coverage down the ramp to the right following Mr Chris Pattison. That agreed fact suggests that the leaders in this part of the interaction of the two groups in the carpark area were Mr Kbayli, Mahmoud Barakat, and Ali Selman.

19. What is next shown on the CCTV footage is Kurtis Pattison running backwards up the ramp, that is from right to left, and being closely followed by Abraham Kbayli and Youssef Khallouf. Mr Chambour is shown walking about a second or less behind that pair. The interaction between Chris Pattison and others of his group and Kbayli, Khallouf, and Chambour then continues out of sight of the CCTV coverage up the ramp. William Collins, who was an Opera House employee, then saw a man falling over the bonnet of a blue vehicle. That, it would appear, was Chris Pattison. He went on to say, “The guy in the striped shirt caught up and was standing over the top of the guy on the ground”, the guy on the ground is agreed to have been Chris Pattison.

20. The man described by Mr Collins as “the guy in the striped shirt” was punching Chris Pattison with his left hand and using a stabbing motion with his right hand. Mr Collins could see the knife in that man’s hand and could observe that the blade had not been folded into the handle. The Crown case is that Chris Pattison received wounds to his hands as a result of that interaction. The “guy in the striped shirt” must have been either Mahmoud Barakat or Youssef Khallouf.

21. Kurtis Pattison states that his brother, Chris, fell over a car bonnet and the male in the striped shirt tripped and fell with the lower part of Chris Pattison’s body in front of the car. Kurtis Pattison then ran over to the male in the striped shirt and kicked him in the chin as he was trying to get up and then “he was down on the ground”. Kurtis Pattison then attempted to draw another man away from his brother. He then felt what he described as a “side fisting” movement to his right upper inner thigh and realised he had been stabbed by a male from his position on the ground. Kurtis Pattison described this man on the ground as a “shorter, chubbier guy” wearing a blue‑ish shirt and grey long-sleeved dress shirt or striped shirt. The Crown cannot establish beyond reasonable doubt that that man was Youssef Khallouf rather than some other member of the Barakat group and relies on the allegation that Mr Khallouf was party to an agreement to assault members of the Pattison group. It is in respect of that allegation by the Crown that Youssef Khallouf has pleaded guilty to the charge of reckless wounding in company.

22. Isaac Parry then ran towards Abraham Kbayli to try to get him away from Chris Pattison. Mr Kbayli swung around with a knife and cut Parry on the right forearm/wrist and his left middle and little finger. However, Mr Parry did not require any medical treatment for those injuries. That, as I understand it, is an assault for which Mr Kbayli is later to be sentenced.

23. Robert Ragonese saw that a male in a grey sloppy joe (which he later described as a “grey jumper”) was punching Patrick White. He stated that the male turned to face him and was holding a knife. Mr Ragonese then ran off. Mr White sustained wounds to his left buttock. The Crown cannot establish beyond reasonable doubt that this male was George Chambour rather than some other member of the Barakat group and relies on Mr Chambour’s being a party to an agreement to assault members of the Pattison group whilst foreseeing the possibility of actual bodily harm being occasioned to some member of the Pattison group. It is in respect of that allegation by the Crown that George Chambour has pleaded guilty to reckless wounding in company. It is specifically agreed that the Crown cannot establish beyond reasonable doubt that Mr Chambour knew of the presence of a knife or knives.

24. Mr Ragonese said that he saw two males who had been arrested, one was a man with a long-sleeved collared shirt. He remembered him as being one of the aggressors or ring leaders of the group. It is common ground that that man was neither George Chambour nor Youssef Khallouf.

25. Kurtis Pattison, Chris Pattison, Thomas Crossling, and Isaac Parry ran to the vehicular exit of the carpark. One of the members of the Barakat group ran after them wielding a knife. Approximately three minutes after the two groups had entered the carpark, police arrived in the carpark in response to calls made earlier. Prior to their arrest, Abraham Kbayli and George Chambour are seen on the CCTV footage walking towards the lift area of the carpark from up the ramp. Mr Kbayli can be seen turning back to the carpark when police arrive from the Opera Bar. Both Mr Kbayli and Mr Chambour then moved to the right down the ramp away from the police. Ms Rebecca Greenwood hailed the police and pointed out that the “guy in the purple shirt” was the man with “the knife”. Again, the reference to the guy in the “purple shirt” appears to be an attempt to identify Abraham Kbayli. Police then arrested Mr Kbayli and Mr Chambour.

5. Mr Khallouf is seen on the CCTV footage returning to the lift area of the carpark after police detained Mr Chambour and Mr Kbayli and is seen leaving towards the Opera Bar with an unidentified male. Mahmoud Barakat, Youssef Khallouf, and Ali Selman were arrested by police as they walked along the waterfront of the Opera House towards Circular Quay.

6. Police located a knife in the Opera House carpark opposite the lift area of the carpark, a short distance from where the stabbings occurred and a short distance from where Mr Kbayli and Mr Chambour were arrested. I interpolate that no finding can be made from that circumstance as a number of people had passed through the area opposite the lift area of the carpark.

7. Mr Kbayli participated in an interview with the police and admitted to throwing a punch because he had been punched but he denied any stabbing. He denied knowing about anyone being stabbed. The present offenders also participated in interviews with the police but declined to answer any questions as was their right.

8. DNA recovered from a blood stain on the outside of the left shoe worn by Mr Chambour has the same profile as Patrick White and is expected to occur in fewer than 1 in 100 billion individuals in the Australian population. However, that blood stain is very small and it is impossible to ascertain how the blood in question got onto Mr Chambour’s shoe other than perhaps by it dripping there at some stage. However, the amount of the stain is small and one would expect a drop of blood to be larger. DNA was recovered from a tape lift from the front right pocket of the jeans worn by Mr Chambour. That DNA appeared to be a mixture that originated from four persons, one of them cannot be excluded as Mr Chambour himself, as one would expect, and Patrick White cannot be excluded as a minor contributor. This means little other than it may have been some brushing by Mr Chambour of Mr White’s clothing. DNA recovered from the blade of the knife found at the scene was a mixture that originated from two individuals who may have been Kurtis Pattison and Patrick White. To use the language generally used when describing DNA evidence, Kurtis Pattison and Patrick White cannot be excluded as contributors to the DNA found on the knife. Considering that those gentlemen received stab wounds, that is completely understandable.

9. The knife in question is depicted in photographs found in exhibit S3, tab 20, numbers 7 and 8. It is a “Fury” brand flick knife that has a blade 7 centimetres in length.

10. Chris Pattison sustained a 4 centimetre laceration to the ulna border of his left hand and a superficial laceration of a half a centimetre to the tip of his right index finger. He required a closure of the left hand wound under local anaesthetic using stitches.

11. Kurtis Pattison sustained a 7 centimetre laceration in length that was between 3 and 4 centimetres deep and was 10 centimetres proximal to the right knee joint on the medial aspect. As the wound was proximal to the right knee, it means above the right knee and on the medial aspect means in the inner thigh, so it is 10 centimetres on the inner thigh above the knee. That required surgical exploration, debridement, and suturing. It is in respect of reckless wounding of Kurtis Pattison in company that Mr Khallouf has pleaded guilty.   

12. Patrick White sustained two lacerations to his left buttock, each was approximately 7 centimetres in length and about 7 centimetres deep indicating the full length of the blade of the Fury knife, assuming the Fury knife was used, penetrated Mr White’s left buttock. That also needed surgical exploration, debridement, and suturing. It is in respect of the assault on Mr White that Mr Chambour has pleaded guilty to reckless wounding in company.

13. The Crown relies on the totality of the acts between the Opera Bar and the carpark and the carpark lift area and carpark proper in relation to the allegations of affray for each of the offenders. Each of the offenders pleaded guilty to that offence in this Court but at different stages of the curial process.

Seriousness

35. A large amount of time was spent discussing the implication of the offenders’ pleas of guilty and the objective seriousness of the principal offences. By principal offences, I am referring to the reckless woundings in company, offences contrary to s 35(3) of the Crimes Act1900 which carry a maximum penalty of ten years imprisonment and a standard non‑parole period of four years. The other principal charge is of affray, an offence contrary to s 93C(1) of the Crimes Act1900 which carries a maximum penalty of ten years imprisonment. There is no standard non‑parole period for that offence. The other offences for which Mr Chambour stands for sentence are assault occasioning actual bodily harm, that is an offence contrary to s 59(2) of the Crimes Act1900 and carries a maximum penalty of five years imprisonment. There is no standard non-parole period for that offence.

36. It is clear from the agreed facts that Mr Chambour stands for sentence on the basis that he did not know at any stage of the presence of a knife or knives in any of the fighting now in question. It is clear that at some stage, Youssef Khallouf carried a knife but there is no evidence that he ever used it, meaning that he threatened anyone with it or stabbed anyone with it. The calls made by an unidentified man or by unidentified men appear to indicate that the knife that had originally been carried by Mr Khallouf was taken by some other offender. There is no evidence that Mr Khallouf wielded the knife himself in the fighting or that he stabbed anyone.

37. It appears to be common ground that the wounds suffered by Kurtis Pattison, Chris Pattison, and Patrick White were inflicted by a knife. However, wounds do not necessarily mean that an implement such as a knife has been used. The concept of wounding has a long history in our law. A wound is generally thought to be a penetrating injury. We talk of gunshot wounds; we talk of knife wounds; centuries ago we would have spoken of wounds from arrows and spears and swords. However, the law has been refined to indicate that a wounding is the breaking of the full thickness of the skin, that is not just the external skin, the epidermis, but also the real skin of the body, the dermis, what is beneath the level of skin that one sees and any under layer beneath the dermis, evidence of which some medical practitioners give. However, a full thickness tearing of the skin, indicating a wound, can be caused by a split lip or a cut or broken eyebrow and such wounds can be inflicted by a hand, by a punch. Wounding does not necessarily mean that an implement such as a knife has been used. A plea of guilty to reckless wounding is not an admission of the use of any implement such as a knife. Equally, as s 35(3) now stands, it was not necessary for either Khallouf or Chambour to foresee the possibility of a wounding. In Chen v Regina [2013] NSWCCA 166, Button J, with whom Hoeben JA and Campbell J concurred, said at [66]:

“It is true that the new section 35(3) and 35(4) posit the broader state of mind of recklessness as to actual bodily harm. The result is that the offence of maliciously or recklessly wounding no longer requires foresight of the possibility of the wounding, all it requires is foresight of the possibility of actual bodily harm (which may or may not be a wound).”

38. Our law distinguishes between actual bodily harm and grievous bodily harm. The border between the two is a matter for the tribunal of fact, generally a jury. Indeed, there are many trials conducted where the only issue for the jury to determine is whether the victim sustained actual bodily harm or grievous bodily harm. The term “grievous bodily harm” is often described as a really serious injury, that is a matter generally for a jury to determine. Simple fractures of unimportant bones of the body are generally not accepted as grievous bodily harm, that is my experience from jury trials. Equally, I had a jury trial where the jury determined that a person sustained a fracture of a significant bone in the body and required surgery and time off work did not sustain a really serious injury.

39. The wounds suffered by Kurtis Pattison, Chris Pattison, and Patrick White could be described as actual bodily harm. However, to foresee actual bodily harm, it is only necessary to foresee things such as a black eye, a broken eyebrow, a bruise, a wound, a scratch or a graze, all of those things amount to actual bodily harm. By their pleas of guilty to reckless wounding in company, each of the present offenders is admitting that he involved himself in an act of violence in which he foresaw the possibility that some type of harm may be suffered by the victims but nevertheless went ahead and participated in the act of violence. The pleas of guilty do not mean that the offenders had admitted that they have any part to play in the wielding of a knife which was used to stab Chris Pattison, Kurtis Pattison, or Patrick White.

40. It is correct to observe, as has been submitted strenuously by Counsel for each of the offenders, that were the Court to conclude that the offenders stood for sentence because they participated in the stabbing of any of the victims, that they would end up being sentenced for an offence contrary to s 33B of the Crimes Act1900 which carries a maximum penalty of twelve years imprisonment, and where the offence was committed in company, as is here admitted, to a maximum penalty of 15 years imprisonment. Such would offend the de Simoni principle.

41. Perhaps the best way of considering the seriousness of the offences committed is to consider the aggravating factors, as the parties have submitted. The Crown submitted that the aggravating factor provided by s 21A(2)(c) of the Crimes (Sentencing Procedure) Act1999 is applicable. The aggravating factor is that the actual or threatened use of a weapon. This was said to be relevant to both the affray in the carpark and the reckless wounding in company. I again point out that the use of a knife cannot be attributed to either of these offenders nor did their plea of guilty to being part of a joint criminal enterprise of reckless wounding in company necessarily involve their admitting that they knew of the use of a knife, or that they used a knife or indeed that a knife might be involved in the violence that they engaged in. Again, such would infringe the de Simoni principle.

42. The next aggravating factor, according to the Crown, is that each offender has a record of previous convictions, particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences. I shall need to discuss that separately in respect of each individual offender.

43. The Crown has submitted that the aggravating factor in (g) of the subsection is applicable: that the injury, the emotional harm, loss or damage caused by the offence was substantial. Here I have some victim impact statements which indicate that this aggravating factor exists. Kurtis Pattison has provided a victim impact statement. It is in respect of the injuries sustained by Kurtis Pattison that Youssef Khallouf has pleaded guilty to reckless wounding in company. It is to be recalled that Kurtis Pattison had gone to the Opera Bar to celebrate his 24th birthday. He was there with members of his family and his friends. He was stabbed in his inner thigh while seeking to protect himself and his brother. He went on to say this:

“This resulted in not only pain from the injury but left me unable to work for over 12 months. At the time of the incident, I was enjoying life, my job, and all was carefree, little did I realise that night would affect me and what challenges that I would have to face. I was working with my brother, had good friends, girlfriend, and life was good. I never had fear of going out and would consider myself a social person. I was easy going and life was going good, one night changed that and the person I became as a result hurt not only myself but my family. I went from a healthy weight range to a weight that is not desirable for my height. I could not eat, sleep, or manage the simplest task. I became a person that avoided social situations and going out, after time with my friends slowly faded away because of this.

As I was unable to work and had no income support, I found my debts accumulated, I had months of doctors appointments and found myself spiralling into a depression that I could not control. I was unable to return to my former job due to the lifting involved and after time took a job as a carpet salesman which I had to leave as I found myself not sleeping due to nightmares and could simply not face normal life. I became isolated from my family and friends and sat long periods in my room unable to fit in with everyday life. My long term girlfriend relationship suffered immensely and this caused us to separate due to all the issues that were surrounding me. I attended counselling to try and overcome my anxiety but this did not help. My general practitioner was my regular visit who suggested I go on anti-depressants but again I could not do this.”

The statement goes on for some considerable, further length. He pointed out that his relationship with his brother deteriorated as a result of his experience and that hurt him greatly. That deterioration can be seen from the fact that Kurtis Pattison was happy to give evidence against the current offenders at trial but his brother was not. The victim impact statement is dated 13 October 2016. At that stage, he was still trying to “get my life to some standard that I can move forward”. It appears that for about 12 months at least, Kurtis Pattison needed medical treatment and was unable to work and has suffered some relatively severe psychological reaction for someone of such a young age.

44. There is also a victim impact statement from Mr Patrick White dated 13 October 2016. Patrick White is a victim of an offence to which Mr Chambour pleaded that he is guilty. Mr White is the cousin of Kurtis Pattison and attended his cousin’s birthday. He had only recently moved from a small Queensland country town to live in Sydney. His victim impact statement says commencing at the second paragraph:

“Little did I know that night of fun and celebration would haunt me in days to come. I can recall being lost in [the] carpark and being worried I had separated from my group and trying to get out. I then was stabbed in the buttock area, the days and months that followed traumatised me and I decided to go to Canada with my then girlfriend to escape the memory and perhaps regain perspective that I will be safe in a new location. Sadly, I could not cope with what had happened and my holiday was cut short.

All this has affected my relationships and my ability to trust certain situations. I cannot park in underground carparks as it causes me anxiety and fear of not being able to get out. I cannot go out like I did previously as I get anxious when large groups are gathering. This also has affected my close bond I had with my cousins Kurtis and Christopher Pattison as I find it hard to help them as it just brings back bad memories and makes me feel inadequate. Where my injury was, has caused me from time to time pain as well and the scar will always remain.

When I hear of similar incidences, I can’t watch as I then know I won’t sleep that night. I came to Sydney for a new beginning and life and all of this has stopped me from being the person I once was.”

In the final paragraph of his victim impact statement, he stated that he would not return to the city of Sydney again because of what he experienced in the Opera House carpark on the night now in question. These are victim impact statements from two young men and one would expect them to be resilient and not to exhibit the same reactions as the elderly or the infirm. I accept that the emotional harm and damage caused by the offences against Kurtis Pattison and Patrick White were substantial.

45. The next relevant aggravating factor is that the offence was committed without regard for public safety. I must say that the passage of time since the matter was last before me has caused me to reconsider my earlier views about this aggravating factor. The aggravating factor cannot be applicable to the crime of affray. At common law, there were three offences that sought to maintain public order: rout, riot, and affray. The offence for affray has now been made a statutory one. However, it still maintains its role in seeking to preserve public order and the offence itself is one that is committed without regard to the public’s safety. Therefore, it is an essential element of the crime of affray in my view. However, it is not an essential element of the offence of reckless wounding in company. One can postulate this example. There is bad blood between two sets of neighbours. One afternoon, one neighbour is working in his backyard, the man on the other side of the fence together with his adult son decided to go next door and give their neighbour a “roughing up”. They decide to go and throw some punches and recklessly envisage that they might cause some actual bodily harm. That offence could be reckless wounding in company. However, it would not be an offence committed without regard for public safety.

46. The behaviour here in question, the reckless wounding in company was committed without regard for public safety. There were others in the Opera Bar than the Pattison group and the Barakat group. There were at least the bar staff and the security staff. It is clear when one looks at the CCTV footage that there were other persons also using the carpark at the time and in addition to the Opera Bar’s security staff, there also appear to be separate security staff in the carpark of the Opera House. There were others not involved who could have easily been implicated in the violence perpetrated on the early hours of this Sunday morning. There were other patrons of the Opera Bar who could have been affected and other patrons at the Opera House, who went to retrieve their vehicles from the carpark in order to go home, could equally have been affected. When there is a form of violence committed where punches are thrown, then the intended recipient of the punch can be missed by the assailant and the punch hit a perfectly uninvolved other person. In the course of a melee, such as here occurred, members of the public could be pushed and shoved and knocked to the ground and the mere knocking a person to the ground in an area where there is a cement floor and cement structures carries a real risk of their sustaining accidental but serious injury.

47. I accept that the offences of reckless wounding in company were committed without regard for the public safety, without regard to other members of the public who were using a place of entertainment in this city. It matters not whether the violence was perpetrated in Sydney, Singleton, or Silverton. It matters not whether it occurred at the Sydney Opera House or a cinema in Singleton or a pub in Silverton. These are all places where ordinary members of the public can go out for entertainment, relaxation, amusement, and to celebrate events such as birthdays. It is this aspect of the offences of reckless wounding in company which makes these crimes particularly serious in my view.

48. The Crown has submitted that the aggravating factor referred to in (ib) of the subsection is here applicable, that the offence involved a grave risk of death to another person or persons, but I am not so persuaded in this case. The Crown pointed out in its written submissions that Patrick White had a wound 7 centimetres deep, but that was in the buttock, the most fleshy part of the human anatomy and unlikely to cause any substantial harm. It was also submitted that the wound to Kurtis Pattison’s inner thigh could also have resulted in serious damage, in particular the reference made to the severing of the femoral artery but I would require medical expertise to so find and in this day and age such damage could be quickly contained and that can be and is often done by ambulance officers. I am not persuaded that that aggravating factor is here present.

45. The Crown submitted that the factor contained in (j) of the subsection is applicable, that the offence was committed while the offender was on conditional liberty. In respect of Mr Chambour, that is correct, but it is not correct in respect to Mr Khallouf.

46. The Crown also submitted that the aggravating factor pursuant to (m) was here present, that the offence involved multiple victims or a serious criminal acts but the Crown limited its submission to the offence of affray. It appears to me that that is one of the aspects of a public order offence and is of the nature of the offence of affray and should not be considered to be an additional aggravating factor.

47. The Crown discussed in its written submissions the aggravating factor provided for in (n), that the offence was part of a planned or organised criminal activity, but I cannot so find. Everything points to this being a spontaneous event, that the response, albeit unfortunate, fuelled no doubt by alcohol causing overreaction and fuelled also by testosterone, was to a perceived insult in having being accidently struck whilst walking. The aggravating factor, again, refers to some organised activity being such as the mafia or motorcycle gang or an organised drug ring might carry out.

48. As far as affray is concerned, the current offences of affray, are below mid-range of objective gravity. I have seen a much worse affrays occur in the western suburbs of Sydney and have dealt with them from time to time. As far as reckless wounding in company is concerned, one must also bear in mind that the number involved in the company was not small. There were at least six members of the Barakat group, only Chambour and Khallouf needed to be in company, both to form the joint criminal enterprise and to be in company with each other at the time of the commission of the offences. Six were in company and that again aggrivates the seriousness of the offence.

49. Bearing in mind the offences themselves that I have described, the number involved in the company of assailants, the aggravating factor of the emotional injury, emotional harm, loss and damage being substantial and the aggravating factor that the offences were committed without regard to the public safety, I would place the offences of reckless wounding in company in mid-range of objective seriousness. That, of course, does not mean that the standard non-parole period of four years must be applied. It is but a guide post to assist me in the sentencing exercise. I would have to consider imposing the standard non-parole period if the offenders had pleaded not guilty but where found guilty by a jury: that has not here occurred. Furthermore, in considering whether to apply the standard non-parole period, the subjective features of each of the offenders has to be taken into account.

Personal circumstances – Chambour

54. I turn now to consider that in respect of the offender George Chambour. Mr Chambour was born on 27 June 1985. He is presently 31 years of age. At the time of these offences, he was 28 years old. His criminal history commenced on 23 June 2010. He was then 25 years old. He was charged on 23 June 2010 with possessing or attempting to possess a prescribed restricted substance. For that offence he obtained a bond under s 10 of the Crimes (Sentencing Procedure) Act1999 to be of good behaviour for a period of 12 months. However, he ended up being called up for that offence and was fined $200. The call up was because an offence committed on 15 October 2010, assault occasioning actual bodily harm. That offence occurred at the Establishment Hotel licenced premises at 252 George Street, Sydney. The accused was standing at a ground floor bar and consuming intoxicating liquor when the offence of assault occasioning actual bodily harm was committed. For that offence, the offender was sentenced to 150 hours of community service. He appealed from that decision into this Court where he was dealt with by his Honour, Judge Blackmore. In lieu of community service, the offender was placed on a bond to be of good behaviour for a period of 18 months and fined $2,000. On 15 October 2011, the offender was charged with stalking or intimidating behaviour with intent to cause physical harm or fear. This was a personal violence offence. For that offence, he originally obtained an order to perform 45 hours community service but was called up and in lieu was sentenced to imprisonment for one month.

55. On 22 September 2012, George Chambour committed a number of serious offences. They were assault occasioning actual bodily harm, wounding with intent to cause grievous bodily harm, and reckless wounding. He was on bail for those offences at the time he committed the offences for which he presently stands for sentence. He was sentenced for those offences by his Honour, Judge Colefax, sitting at Parramatta. He was sentenced on 2 May 2014. It is the circumstances giving rise to those sentences, that was the subject of the Crown’s application to adduce tendency evidence, the application which I refused on 26 September 2016. The facts of the offending have been set out in that judgment and are well-known to Mr Chambour himself. His Honour imposed an aggregate sentence of five years and seven months imprisonment commencing on 12 June 2013. The non-parole period was three years and four months which expired on 11 October 2016, that is some six weeks ago. The offender is currently in custody because he is bail refused on the current matters.

56. The offender’s background is set out succinctly by Judge Colefax and, as I do not believe in trying to reinvent the wheel, I shall, I trust be forgiven, for reciting what his Honour said:

“He is one of four children to his parents. He had a good upbringing, although he may have felt some resentment of the discipline imposed by his father. However, in referring to that resentment, I am not to be taken in any way as being critical of Mr Chambour’s father’s approach to child rearing. Mr Chambour went to a high school at which the overwhelming majority of students were Muslim, whereas Mr Chambour came from a Christian background. Whether because of that religious difference or otherwise, he described being victimised by other students. His reaction to that victimisation was to become involved in frequent physical confrontations. Ultimately, during year 8, Mr Chambour was removed from that school because of his mother’s increasing concern for his safety. It would appear that Mr Chambour’s mother attempted to place him at a number of catholic schools but none would accept him. No explanation for that somewhat surprising attitude on the part of the catholic education authorities is provided in the evidence but I do not propose to speculate about it. In the result, however, Mr Chambour left school when he was 14 years old and began working with his father in the painting and decorating industry.

Whilst working as an apprentice for his father, he started a TAFE course which he ultimately completed when he was 20 years old. After completing his apprenticeship, Mr Chambour initially worked with a friend and then ultimately set up his own painting and decorating business. He seems to have been hardworking in that regard. Mr Chambour married in about 2012, there are no children to that marriage but his wife is very supportive of him, as is the rest of his family.

Mr Chambour has never used illegal drugs. He commenced drinking alcohol when he was 18 years old and has consumed alcohol regularly since that time. It would appear, however, that he does not have any serious problem with alcohol, notwithstanding one prior conviction for driving with a low range blood alcohol level.

In 2010, Mr Chambour was shot in the leg. It would seem he was an unintended victim. As a result of that shooting, it may be accepted, having regard to the psychologist’s report tendered on his behalf, that he suffers from post-traumatic stress disorder which has not been properly addressed. The psychologist report further suggests that in Mr Chambour’s case, when he is confronted by a situation in which his life or safety is threatened, he will react to what is referred to as a fight or flight response. That may also be accepted. However, I do not think that the post-traumatic stress disorder with its fight or flight characteristic is causally related to the incident which seems to have initiated the outbreak of violence - namely the assault on Mr Talal Sabbagh by Mr Chambour. There was no threat to Mr Chambour’s safety; and his gratuitous act of violence was the result of his resentment or jealousy concerning his wife which in the circumstances was entirely unjustified. What then happened following that assault is not analysed with any specificity by the psychologist in the context of the initial incident being unrelated to the post-traumatic stress disorder. In the result, therefore, I am not satisfied on the balance of probabilities that the condition had any causal connection to events which followed.”

His Honour went on to point out that, at that time, Mr Chambour gave evidence and expressed his remorse. His Honour found that the prospects for rehabilitation were reasonable and that the reasonable prospects of rehabilitation would be enhanced by a longer than normal period on parole.

57. Despite what was stated by my learned colleague, the offender’s wife did not remain supportive of him. They separated and are now divorced. His marriage has failed. That is the direct result, no doubt, of his incarceration. That no doubt is the result of the crimes that he committed for which he has been sentenced by my learned colleague and could only have been added to by the fact that he committed the crimes for which he stands for sentence today and following which crimes he was arrested and went into custody and has remained in custody ever since. That is, the breaking up of his marriage is a form of extra-curial punishment and that can be attributed in part to the offences which he committed which led to the revocation of his bail and his incarceration since.

58. However, Mr Chambour’s family, leaving aside his former wife, have continued to support him, to believe in him, and to try to assist him. The offender’s reaction to incarceration has been, if I may say so, exemplary. A report was prepared for the State Parole Authority for its meeting on 11 August 2016. At that time, he was refused admission to parole only because he was yet to be dealt with by this Court for the offences at the Sydney Opera House. It is worthwhile considering a number of parts of the State Parole Authority report. One of them is this:

“The offender has incurred no internal misconducts during this period of incarceration. He has completed the Getting SMART and CALM programmes in 2014. In 2016, he completed the EQUIPS: Aggression and EQUIPS: Foundation programmes. The offender has been assessed as unsuitable for the VOTP [Violent Offenders Therapeutic Programme] due to the outstanding Court matters. It is noted that the alleged offences are of a violent nature. The offender has also been assessed as unsuitable for the IDATP programme. He has maintained the support of his parents, however, has separated from his wife during this custodial sentence. The offender has suitable post-release accommodation.”

It is clear that not only was the offender unable to participate in the Violent Offenders Therapeutic Programme because of the outstanding matters currently before me but also for the same reason was unsuitable for the IDATP programme.

59. The Getting SMART programme that Chambour completed in August 2014 was for treatment for alcohol and other drug abuse. The completion case note for that course is this:

“George was excellent in group and one [of] the most valuable members of the group. George appears remorseful for his offending actions and sincere in his attempt to order his criminal behaviours and abuse of alcohol. George is very focused on progressing through his gaol sentence and learning from his previous errors. George was able to identify that alcohol abuse was a contributing factor in the negative aspect of his life.”

I should add that the IDAPT course is “Intensive Drug and Alcohol Treatment Programme”, a course that he could not enter because of the outstanding Court matters.

60. The CALM programme is to assist offenders to deal with aggression and violence. The completion case notes for that course contain this matter:

“George identified with the programme concepts. He is comfortable in the group and willing to disclose personal information and in doing so encourages others to be open and honest in their responses. George was able to come up with risk factors in his management plan; the main three that he identified were his aggression, pride, and money. Skills that he sees that he has developed to overcome these are by communication, listening, and his faith. What will help [him] achieve his goals will be his family, himself, and the lifestyle that he lives. By putting his management plan into action, he hopes to become a better person, respect others and their beliefs, think before taking action, live life to the full and never return to custody.

George is very much a courageous member of the group, he shared his offence history and the effects on his loved ones, which at times was moving. He was a valued member of the group who participated at the highest level.”

There are before me similar favourable comments about the offender’s response, the two EQUIPS courses that he completed earlier this year.

61. At the time that the report was written for the Parole Authority, he was employed in the cleaning and maintenance crew at the South Coast Correctional Centre at Nowra. Favourable comments were passed about his work in that area.

62. There are, amongst the references before me, one from a Coptic orthodox priest who is a chaplain in our correctional system and also one from an Evangelical “Faith Formation Leader/Teacher” who recites the offender’s seeking solace and direction through his faith and speaks of his deep regret and remorse because of his past failings and the effect of those failings upon others in particular his family and the victims.

63. In a letter to me, exhibit S20, dated 10 October 2016, the offender pointed out to me that he had been in custody for over three years, and that he has spent all his time in maximum security which he finds very oppressive. Importantly, from my point of view he said this:

“I have promised my family that I will never come back to prison. I want to give back to my family and community, upon release. I would love to start my company again and never look back at this horrible place. Your Honour, I will say it again and I’m truly sorry for my actions that I have done, I regret and [have] learnt to never get involved in anyone’s situation or problems.”

Learned counsel for Mr Chambour, Mr Vasic, pointed out to me in detail how, because of needing to stand for sentence for these offences, has affected his experience thus far of custody. What happened to George Chambour after the sentence passed by Judge Colefax needs to be contrasted with what happened to Elie Akkawi, who was Mr Chambour’s brother-in-law, and was sentenced by Judge Colefax at the same time as Mr Chambour for Mr Akkawi’s part in the offences which occurred at Granville on 21 September 2012. In essence, Mr Akkawi obtained the same sentence as did Mr Chambour. Mr Akkawi’s letter, exhibit S19, tells me this:

“I went into custody on 2 May 2014 and was initially housed at Silverwater MRRC complex for two months. I then went to Windsor gaol, classified as C2 for five months. During my time there, I did programmes. I was also not locked in the cell during my time there. That meant I was able to move about my pod at any time. There was no time I had to be locked into my cell. I observed when at the Silverwater MRRC that any inmates that had capital A or capital B classification had to be locked in the cells at 3.30pm and were not released from their cells until 6.30am.

Following my five months at Windsor, I then went to Oberon for 11 months, there I was completing the young offenders programme, which included courses and camping for three days and then for one day and then for two days. I completed the high rope courses also at this time. I did a community project at Jenolan Caves for four months.

I gained my C3 [classification] and moved to Dawn De Loas Correctional Centre located at the Silverwater complex to complete my sentence. During my time there, I was permitted day leave from the gaol, one day per month. That occurred over four months before the leave was increased to weekend leave.

My weekend leave extended for a further four months before I was approved for work release. I was then allowed to leave the gaol each day from Monday to Friday for the last three months of my sentence. I was granted parole in August 2016.”

But for a standing for sentence for these offences, that is how Mr Chambour would have been eased back into community life by now. I hasten to add, however, that Mr Chambour’s age would not have allowed him to do the young offenders’ programme but his easing back into community and his classification as a C inmate would have occurred soon after outstanding charges were dealt with. Whilst there are outstanding charges to be dealt with, the offender must be held in maximum security which is at least a B classification.

64. As Mr Chambour pointed out in his letter to me, he is locked in his cell between 3 and 3.30pm with another two inmates each day until the next morning and he is allowed one visit a week for one hour only and during that time he must sit on a chair and not make physical contact with his visitor. However, if granted a lower classification, he is able to obtain two visits per week, each lasting up to four hours and those visits may be conducted in a park area where he would be able to walk freely with his family and friends and play sport and enjoy privacy. I accept that as a result of these offences, the offender has suffered a more severe regime of incarceration during his time in prison to date than he would have had, had these offences not still been outstanding. In other words, he has suffered a detriment that he would not in the normal course of events had suffered.

LUNCHEON ADJOURNMENT

65. The matter I last mentioned before the luncheon adjournment, that is the hardship of the offender’s current position in prison, is a matter which mitigates the severity of the sentence which should otherwise be passed. I have spent some little time quoting the report made for the Parole Authority because it demonstrates that the offender has made excellent progress in rehabilitating himself since being taken into custody and his letter to me indicates that he has resolved to maintain that rehabilitation. My colleague, Judge Colefax, referred to the offender as having “reasonable prospects for rehabilitation”. The offender’s behaviour since the sentence passed by his Honour, Judge Colefax, indicates to me that I should rate the offender’s prospects of rehabilitation as being very, very good, if not excellent.

Parity

66. There are two further matters that I have to bear in mind in sentencing this offender and one of those also affects Youssef Khallouf. Three of the offenders have been dealt with in the Local Court. Ahmed Barakat was born on 27 April 1986. At the time of the offences at the Sydney Opera House on 8 September 2013, he was 27 years old. He is now 30 years old. He was charged with one count of affray, and one count of a common assault on Ross Chapman. He was sentenced to enter into a bond to be of good behaviour pursuant to s 9 for a period of 18 months. For his part in the affray, Ahmed Barakat did not ultimately serve a custodial sentence.

67. Mahmoud Barakat, who was born on 31 May 1985, was 28 years old at the time of the offences currently in question. He is now 31 years of age. He was charged with one count of affray and was fined $1,500 and ordered to enter into a bond to be of good behaviour for a period of 18 months. For his part in the affray, he did not obtain a custodial sentence. Ali Selman, who was born on 12 August 1985, was 28 years old at the time of the offences in question. He is currently 31 years old. He was charged with two counts of affray and common assault upon Patrick White. He was sentenced to enter into a bond to be of good behaviour for a period of 18 months and was fined $1,500. He clearly did not obtain a custodial sentence for his part in these affrays. Parity indicates that the current offenders should be dealt with, if possible, by similar penalties for the same offences.

Totality

68. The other matter to bear in mind as far as Mr Chambour is concerned is the question of totality. When the non‑parole period for the sentence passed by Judge Colefax expired, the offender had been in prison for three years and four months. Any further custodial sentence that I impose upon Mr Chambour could extend that period in prison substantially, and the total sentence since he went into custody needs to be considered, that is, the totality of all sentences, I must take into account the sentence that was passed by Judge Colefax and the sentences that I am required to pass.

69. I must pass a sentence in respect of each of the five offences for which Mr Chambour stands for sentence. They will be announced at the end of these sentencing proceedings. There will be a substantial amount of concurrency. I intend to pass sentences in respect of the two common assaults that effectively have a period of imprisonment of one month, in respect to the two counts of affray, I intend to pass wholly concurrent sentences as has been submitted by Mr Vasic. Mr Chambour’s conduct in the affray in the Opera Bar was the same conduct that causes him to stand for sentence for assaulting Steven Yarza and causing him actual bodily harm and therefore the one sentence ought be passed in respect of that affray and that assault occasioning actual bodily harm but for ease I will pass wholly concurrent sentences for the two affrays.

70. For each of the assaults occasioning actual bodily harm, there will be a term of imprisonment of three months, with a large partial concurrency. In respect of each count of affray, I believe the indicative head sentence is 18 months, I reduce that by 10% to reflect the late plea of guilty in respect of each count of affray so that the head sentence will be 16 months and that indicates to me a non-parole period of ten months. In respect of the offence of reckless wounding, I commence with a head sentence of three years imprisonment, I reduce that by 10% to 27 months. Applying the statutory ratio between the head sentence and the non-parole period, there ought be a non‑parole period of 20 months but in respect of this offence, I find special circumstances as did my colleague, Judge Colefax, and I intend to impose a non-parole period of 12 months.

71. In short, there will be a period of 14 months imprisonment following upon the expiration of Judge Colefax’s sentence and a further period of 15 months during which the offender will be under supervision of the Department of Community Corrections. If my mathematics be correct, which is always problematical, the offender will be released for parole on 10 December 2017, that is, he will be out of gaol for Christmas next year.

Personal circumstances – Khallouf

72. I now turn to the case of Youssef Khallouf. Mr Khallouf was born on 13 September 1985. He is currently aged 31 years. At the time of these offences, he was aged 28. Unlike George Chambour, he was not on conditional liberty at the time that these offences occurred. Leaving aside driving offences, he first came to the notice of the Courts on 1 May 2003 when charged with common assault, destroying or damaging property, and having custody of an offensive implement in a public place. For the charge of common assault, he was given probation for a period of 18 months by the Children’s Court. For destroying or damaging property, he was given the same sentence. For common assault, he was placed on probation. For having custody of an offensive implement in a public place, he was put on a good behaviour bond for a period of 12 months.

73. On 17 March 2004, he was charged with a serious criminal offence which was dealt with in this Court on indictment. The offender, however, pleaded guilty to assault occasioning actual bodily harm in company and that charge was accepted by the Crown in full satisfaction of the indictment. This Court placed the offender on a bond to be of good behaviour for a period of two years. On 30 November 2008, he was charged with a resisting or hindering police in the execution of the police officer’s duty for which he received a $200 fine. On 14 February 2010, he was charged with affray for which he was ordered to perform community service for 100 hours.

74. The affray which occurred on 14 February 2010 was in the food court of the Harbourside shopping centre at Darling Harbour. The offence occurred at about 2.50am on a Saturday morning or, looking at it in another fashion, late in the night of the preceding Friday. When police arrived after the affray was over. They found a large amount of upturned broken furniture including chairs and tables and bins and plant holders near the McDonald’s café in the food court. Drinks and food were strewn and spilt over the area. The police stopped a group of six men walking away from the location of the affray near the Pyrmont Bridge underpass. There was CCTV footage showing a large group of men involved in a brawl outside the McDonald’s café. The offender was identified by his wearing a distinctive black T-shirt with a red and white Lacoste motif crocodile emblem. From the CCTV footage, it emerged that the offender had thrown a right hand punch into the face of an unidentified male, then he picked up a white chair, held it in both hands, raised it above his shoulders, before running between tables out of view with the chair in front of him at chest height. He was also later seen throwing a punch with his right hand at an unknown male. This is further violence in a public place, in a place where people go to refresh themselves after they have been entertained.

75. The offender clearly has a criminal history of crimes of violence which points against leniency. One of the documents placed before me in Mr Khallouf’s case is a report of a consultant psychiatrist, Dr Sharon Reutens. I have some difficulty accepting the history recorded by Ms Reutens. The first relevant paragraph, her description of the incident now in question, is this:

“He told me that he at the time of the incident he had been working at Wow Cow Yoghurt, and in his line of duties needed a knife to cut packaging and boxes. He normally carried the knife in his pocket. Mr Khallouf had gone to drinks straight after work so was still carrying the knife. He said he was concerned that he might be assaulted by the people from the other group so he held the knife out to keep them away. He said that security told him to put the knife away so he complied. He said he did not take the knife out again.”

The difficulty I have with that paragraph is that I find it implausible in the extreme that the offender had been working that Saturday afternoon making yogurt, presumably he dressed in work clothes with a knife in his pocket, and that he would then not change clothes but go directly to the Opera Bar at the Sydney Opera House to meet his friends and be entertained and to entertain and that he still was wearing work clothes at such a venue. It is implausible in the extreme. The offender’s eldest brother, Dr Ahmed Khallouf, wrote a reference dated 12 October 2012. He described the evening thus:

“He went out to have a quiet, enjoyable night with his mates. Dressed respectfully and only intending to have a quiet social night.”

The phrase “dress respectfully” is quite inconsistent with the offender attending the Opera Bar dressed in work clothes he was wearing earlier that day and clearly indicates that a different story had been told by the offender to his eldest brother.

76. Doctor Reutens’ history continues thus:

“Mr Khallouf said that as the two groups were pushed toward the tunnel, he remained behind to tend to one of his friends, Mr Barakat, because Mr Barakat was injured. They then followed behind the other groups [sic]. He described a melee with people running about, security trying to separate the groups and people fighting. Mr Khallouf said that he stood back. He did not have to defend himself because no-one was attacking him. Mr Khallouf said he did not hit anyone. He was checking that his friends were okay and recalled ‘everyone was screaming police’. He walked out past the police and was heading towards Circular Quay when the police apprehended him.”

If that history be correct, the offender committed no offence at all. I am afraid the history given by the offender to Dr Reutens cannot be accepted.

77. However, Dr Reutens’s also obtained a social history which is consistent with other documents tendered in his case. It is this:

“I asked Mr Khallouf if there had been any significant stressors at the time of the incident. He could not think of any initially, but later said that his father had come out of prison. While this was not particularly stressful for him, it had been stressful for his mother who was still hurt because of the circumstances of the end of their marriage. He told me that his mother had a history of depression and because she had been more upset at the time, he had been trying to distract her and to stay home with her. Mr Khallouf stated that the night that he was charged had probably been the first night he had been out since his father was released in August 2013.

Mr Khallouf said he was not in a relationship at that time. There were no difficulties at work. He was sleeping and eating well and said that he was not socialising as often as he usually did because he was trying to stay home with his mother and distract her. He stated, ‘I didn’t like to see her stressed’. He had seen his father on several occasions, meeting him at a café every two or three weeks, which was about the same frequency that he had seen him over the last few years.

Mr Khallouf said that he was ‘okay’. He said that he’s ‘keeping out of trouble, working’. He described his mood as being ‘good’. He was particularly happy in his relationship with his partner, Madeline. They had been in a relationship for two years and he described it as stable and supportive. He said that he had a good relationship with her three children. He was hoping to get married to Madeline but was awaiting the outcome of the Court case before this could be planned. Mr Khallouf told me that he did not live with his partner because he did not want to leave his mother alone in the house.

He reported having no difficulties with sleep and told me that he tried to eat four or five small meals because he was training. He specifically denied depressed mood.”

The report goes on to comment that Mr Khallouf was worried about the prospect of custodial sentence. So he should be, then again, so does anyone standing for sentence. Any person who stands for sentence and is not suffering from some form of either anxiety or stress or depression should probably be considered to be abnormal.

78. Mr Khallouf denied to Dr Reutens an history of psychiatric illness including any phobia, any psychotic symptoms, any depression, or any anxiety. He had happy memories of his early childhood and denied any history of abuse. He attended Punchbowl Boys High School. He was encouraged to go to Ashfield Boys High School which he did for only a short period, he then returned to Punchbowl Boys High School. He was suspended on one occasion for fighting. He left school in year 9 because he did not really want to be at school. He has not undertaken any study since leaving school. Doctor Reutens diagnosed a mild disadjustment disorder with anxious mood which is consistent with anyone standing for sentence in the present circumstances.

79. The offender is currently living at home with his mother and caring for her. She is booked in for a left total knee replacement on 2 December this year. There are numerous references from long standing family friends, family members, and for example, from the offender’s current girlfriend, Ms Dandachli. Not only is the offender caring for his mother, but his eldest brother, Dr Khallouf, is currently an intern at the Lismore Base Hospital, but his wife and three children remain in Sydney and it is part of the offender’s current role to look after his sister-in-law and his brother’s three young children. The references almost all refer to the offender’s caring, compassionate, and kind hearted nature and attest to his contrition and remorse.

80. The offender has a compelling subjective case and I have been urged by Ms Francis to impose a non-full time custodial sentence upon him and in particular Ms Francis has submitted I ought impose a suspended sentence. To do so, of course, the head sentence must be for 24 months or less. During the sentence hearing at Darlinghurst I acceded to Ms Francis’ submission that the offender had a powerful subjective case and I could understand her submissions as to why a suspended sentence might be appropriate in this offender’s case. I was referred as I am often referred to cases such as Regina v Zamagias [2002] NSWCCA 17 at 32 and to Amado v Regina [2011] NSWCCA 197 at [8] and the cases referred to therein.

81. I contemplated that course of action and also imposing, in respect of the offence of affray, an order that the offender perform community service. However, as I pointed out earlier today, I have had time to reflect over the last two weeks. I have already referred to the circumstances of the offences for which Mr Khallouf stands for sentence, affray and reckless wounding in company. I have already characterised the offence of reckless wounding in company to be in the mid-range of seriousness. In particular, I note that that crime was committed without regard to public safety.

82. Section 5(1) of the Crimes (Sentencing Procedure) Act 1995 provides that a Court must not sentence an offender to imprisonment unless it is satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate. There are a number of purposes for sentencing. Those purposes are set out in s 3A of the same Act. They are these:

“a) to ensure that the offender is adequately punished for the offence,

b) to prevent crime by deterring the offender and other persons from committing similar offences,

c) to protect the community from the offender,

d) to promote the rehabilitation of the offender,

e) to make the offender accountable for his or her actions,

f) to denounce the conduct of the offender,

g) to recognise the harm done to the victim of the crime and the community.”

The purpose of the criminal law is the protection of the community. To protect the community, offenders must be deterred from again offending and some form of retributive justice and punishment is demanded by the community.

83. Whilst I have determined in the circumstances of Mr Khallouf’s case that a head sentence of two years is justified given all the circumstances, I have come to the view that it would be completely inappropriate to suspend such a sentence. The community must have confidence in its justice system. I am afraid that the community would lose confidence in the justice system given the circumstances of the offences now in question, if a full time custodial sentence were not imposed. The community need to denounce the conduct of the offender, to recognise the harm done to victims and the wider community, which is left in fear of similar occurrences in the future, and the general need to promote deterrence all call for a full time custodial sentence. Mr Khallouf, would you enter the dock, please?

84. For this sentencing exercise, bearing in mind the sentence that I announced for the reckless wounding charge for Mr Chambour, I believe the indicative head sentence is one of two years and three months. I discount that by 10% to account the offender’s plea of guilty, albeit very late in the proceedings. That reduces the head sentence to two years imprisonment. The remaining question, of course, is the non-parole period. Applying the statutory formula, the non-parole period ought be 18 months imprisonment. Here, again, I believe that there are special circumstances to warrant the breaking of the statutory ratio.

85. This will be Youssef Khallouf’s first period of full time custody. That in itself is not a special circumstance but the fact that he will find it an upsetting, probably frightening, completely new and foreign experience, does amount to a special circumstance. Considering the offender’s behaviour whilst on bail since the offences in question were committed, considering the subjective material before me, I believe that the prospects of successful rehabilitation are good. Those prospects will be enhanced by supervision in the community for a greater period than six months. I have formed the view that the appropriate non-parole period is 12 months.

86. As I have already stated, I had anticipated imposing an order for community service for the crime of affray. Since I have determined to impose a full time custodial sentence for the crime of reckless wounding in company, I do not believe that to be any longer appropriate, bearing in mind the sentences passed on other co-offenders, I believe that the appropriate penalty for the offence of affray will be a s 9 bond for a period of three years. That will effectively mean that after spending one year in prison, Mr Khallouf will be subject to the oversight of community corrections for two years to ensure that he does not again offend and to keep in place such measures as Mr Khallouf may take whilst in the custody to make sure that he does not return to gaol.

Sentences

87. George Chambour, on the charge that you assaulted Steven Yarza occasioning actual bodily harm, you are convicted. I sentence you to imprisonment for three months to commence on 11 October 2016 and expiring on 10 January 2017. On the charge of assaulting Michael Higgins occasioning him actual bodily harm, you are convicted. I sentence you to imprisonment for three months commencing on 25 October 2016 and expiring on 24 January 2017. On the charge of affray at the Opera Bar at the Sydney Opera House, you are convicted. I sentence you to imprisonment. I set a non‑parole period of ten months commencing on 11 November 2016 and expiring on 10 September 2017. I impose a further period of imprisonment of six months to commence upon the expiration of the non-parole period and expiring on 10 March 2018. The total sentence is therefore one year and four months comprising the non-parole period and the balance of the sentence. I have found special circumstances.

88. In respect of the charge of affray in the Opera House carpark, you are convicted. I impose the same penalty in respect of that offence. In respect to the offence of reckless wounding in company of Patrick White, you are convicted. I sentence you to imprisonment. I set a non-parole period of 12 months commencing on 11 December 2016 and expiring on 10 December 2017. I impose a further period of imprisonment of one year and three months to commence upon the expiration of the non-parole period and expiring on 10 March 2019. The total sentence is therefore two years and three months comprising the non‑parole period and the balance of the sentence. I have found special circumstances. You are to be released to parole at the expiration of the non‑parole period.

89. Youssef Khallouf, on the charge of a reckless wounding in company of Kurtis Pattison, you are convicted. I sentence you to imprisonment. I set a non‑parole period of 12 months commencing on 2 December 2016 and expiring on 1 December 2017. I impose a further period of imprisonment of 12 months to commence upon the expiration of the non-parole period and expiring on 1 December 2018. The total sentence is therefore two years, comprising the non‑parole period and the balance of the sentence. I have found special circumstances. You are to be released to parole at the expiration of the non‑parole period.

90. On the charge of affray in the Opera House carpark, you are convicted. Pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, I order that you enter into a good behaviour bond for a period of three years from today. Conditions of the bond are: (1) you are to appear before the Court if called upon to do so at any time; (2) you are to be of good behaviour; (3) you are to reside at [withheld] after your release from custody; or (4) you are to advise the Registrar of this Court by prepaid registered post of any change of residential address after your release from custody; (5) you are to accept the supervision of and obey all reasonable directions of Community Corrections during the term of the bond.

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Amendments

16 February 2017 - Addition of heading before paragraph [87]

Decision last updated: 16 February 2017