R v Daher

[2021] NSWDC 739

District Court

New South Wales

Medium Neutral Citation:

R v Daher [2021] NSWDC 739

Hearing dates:

24 November 2021, 30 November 2021

Date of orders:

30 November 2021

Decision date:

30 November 2021

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

I impose a term of imprisonment of two years and nine months with a non-parole period of 18 months: [46].

Catchwords:

CRIME — Violent offences — Reckless wounding

SENTENCING — Aggravating factors — Breach of conditional liberty

SENTENCING — Mitigating factors — Plea of guilty — Remorse

SENTENCING — Commencement — Pre-sentence custody period — judicial discretion

SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Deterrence — Establishing relevant matters — General principles — Maximum penalty — Objective seriousness

SENTENCING — Subjective considerations on sentence — Bail pending sentence — Drug addiction — Mental illness — Special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Evidence Act 1995

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Devaney [2012] NSWCCA 285

Lai v R [2021] NSWCCA 217

R v Elfar [2003] NSWCCA 358

R v JDX; JDX v R [2017] NSWCCA 9

R v Qutami [2001] NSWCCA 353

R v Thomas [2007] NSWCCA 269

Ryan v R [2017] NSWCCA 209

Category:

Sentence

Parties:

Regina (Office of Director of Public Prosecutions)

Tiger Daher (Offender)

Representation:

Ms I Maxwell-Williams; Mr N Brown (Solicitors, Office of Director of Public Prosecutions)

Mr E Tabchouri (Solicitor for the offender)

File Number(s):

2019/374319

Judgment

1. Tiger Daher, aged 23 years, has pleaded 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. He pleaded in circumstances which the Crown acknowledges justifies a 25% discount to reflect the utilitarian value of the plea.

3. It is conceded that a term of imprisonment is appropriate.

4. I must take into account the maximum penalty and standard non-parole period as yardsticks in the sentencing process as well as the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1900.

5. He spent a total of 600 days or almost 20 months in custody between his arrest on 28 November 2019 and 19 July 2021. During that time he was serving a fixed term term of imprisonment of 4 months between 6 November 2020 and 5 March 2021 on a count of hindering an investigation into a serious indictable offence. That term of imprisonment was his first custodial sentence, and as Mr Tabchouri put, there is probably some force in the suggestion that had he not been in custody bail refused on these matters he would not have received such a sentence. That, of course, is not to second guess the Magistrate’s decision, as there was no appeal of that sentence.. It does, however, go to the question of the discretion that I have to backdate the term of imprisonment some time between approximately 16 months to 20 months. In the exercise of my discretion, I would allow for some degree of concurrency and commence the term of imprisonment on the 28 December 2019.

6. The offences were committed while he was on bail and while he was subject to a community corrections order.

7. The agreed facts show that in November 2019 the victim had known the offender for about two years. The victim communicated by SMS with a man called Assaf about purchasing some Xanax tablets. They agreed that the victim was to introduce Assaf to someone in the Stanmore area who could supply Xanax, they arranged for Assaf to pick him up, take him to the meeting and then drop him home.

8. CCTV footage shows the victim leaving his residence in Rockdale and then he gets into a car. Assaf is seated in the driver’s seat and Khraizat was seated in the front passenger seat. Daher was in the rear driver’s side seat and the victim was in the rear passenger side seat.

9. They went to Stanmore where the Xanax was purchased then the victim and the offender and the others got back in their car and drove away from Stanmore. Assaf was driving. Assaf said to the victim “you know it is a dog’s act saying you were going to call the cops”.

10. The victim had attempted to send a text message to an unrelated female regarding the return of a set of keys the previous day during which he said he would contact police if he did not get them back. Based on what Assaf was saying the victim realised he had accidentally sent that message to the wrong person and he said “it has not got anything to do with you I’m not paying a thousand dollars for a set of keys”. Assaf said to him “it’s a dog act”. The offender Daher and Khraizat agreed with Assaf that the victim’s behaviour constituted a “dog act”.

11. Assaf stopped the car in the middle of the street in Bardwell Valley where all three males removed their seatbelts at the same time. Daher tried to punch the victim’s right cheek. The victim raised his arms and was able to block this punch with his right arm.

12. Assaf and Khraizat turned in their seats and began throwing punches towards the victim’s head. The victim put his head down with his arms up to guard his face curling into a ball on the seat as much as he could and about 15 or 20 punches connected with the back of the victim’s head.

13. That paragraph of the agreed facts has been the subject of some contest. The Crown submits that I can infer from that, that it was the offender who threw some of the 15 to 20 punches but Mr Tabchouri for the offender submits that that inference cannot be drawn beyond reasonable doubt against the offender and there is force in that submission given that had the Crown case been that he had thrown some of those punches it would presumably have been the subject of an agreed fact rather than being left to inference by a sentencing judge.

14. To continue with the facts, while the assault was occurring the victim reached out his left hand to try and open the door and escape. The door was locked. He tried to get out the window but it was also locked. Once the assault ceased, the offenders told him to get out. He realised there was a lot of blood splattered throughout the car all over the seat and the floor mat, the victim climbed over the seats and got out through the front passenger seat and the Hilux drove away.

15. He approached a member of the public and asked him to call an ambulance, he was taken to St George Hospital to where he was treated for a large wound about 15 centimetres which span from his right ear across a large portion of his right cheek. He required emergency surgery to repair the injury and the surgery involved repair of his buccal nerve and the parotid capsule and sutures and it is demonstrated in very graphic photographs as to the extent of the surgery and presumably permanent scarring.

16. CCTV footage captured the vehicle dropping off Daher in the street around the time that he had to report on bail.

17. On 28 November when he intended to report on bail in relation to other matters he was placed under arrest. He declined to be interviewed. He was asked for the identification of the driver and the passenger and he said “I don’t even know about any vehicle”.

18. There is a charge in relation to his refusal to identify the driver and passenger on the s 166 certificate to be dealt with during the sentencing process. As I indicated during submissions, I will deal with that offence pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

19. Daher has a record commencing as far back as 2013 in the Childrens Court for aggravated break and enter, possess housebreaking implements. In 2014 he was charged with offences of affray, possess prohibited weapons and firearms leading to control orders for 12 months and two years of probation. His first charge in an adult court was possess unauthorised pistol in 2018 for which he was given a community corrections order which was current at the time of this offending. There was also a further charge of affray in April 2019 and dealt with by community corrections order.

20. There is a victim’s impact statement, which I take into account in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 269, that describes graphically the scarring for life and permanent disfiguration 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 graphically illustrates the long‑lasting effects of this violent attack, including as he says the fact that he had to give up his apprenticeship with an NBN company.

21. The subjective case is set out in a report of a psychologist and a letter from the offender.

22. The Crown says that the letter from the offender should be given no weight because part of it undermines the plea. That is correct in that the offender says in his letter that “I never intended or thought that it would get to what it got but I now know that if I hang around the wrong people I can find myself in bad situations.” He has not given evidence and been tested on those propositions. He does express regret for the pain and damage that was suffered, acknowledges he cannot take back what happened but says he can change the future and that is what he wants to do. He says he has been working and drug-free while in custody.

23. The Crown refers to what was said by Bellew J recently in Lai v R [2021] NSWCCA 217 and describes the letter as self-serving and exculpatory. Bellew J quoting Whealy J in R v Elfar [2003] NSWCCA 358 said:

Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court.

24. The statement, of course, could not have been prescriptive as each case must be determined on its own facts and reasonable minds will disagree when assessing the weight that must be given to matters in proceedings particularly those to which the Evidence Act 1995 does not apply. It is clear that calling and testing evidence is required if an asserted fact is controverted or if the Court is not prepared to act on the assertion. Mostly this happens in two areas, namely

1. When a matter not on oath and repeated second hand is put forward as evidence going to an assessment of the objective circumstances of the offences: See R v Qutami [2001] NSWCCA 353.

2. So-called expert psychological reports which uncritically parrot claims by an offender who does not give evidence. In such circumstances, expression of good intentions by an offender who is not willing to be tested in the witness box, carries little weight: R v JDX; JDX v R [2017] NSWCCA 9

25. While a judge is entitled to be sceptical of conclusions unsupported by any factual detail, care must be taken because even if made on oath the expressions of remorse for example are hard to test by cross‑examination and it is not immediately obvious that a judge is anymore capable of discerning real from fake expressions of remorse than anyone else apart from perhaps a trained psychologist who administers tests designed to alert them to false or inconsistent statements. In any event expressions of remorse, even if genuine, may not stand up to the reality of life in the community, particularly for those with addictions or mental illness or where their moral capacity has been compromised by their background or other factors. So while care needs to be taken when assessing reports and untested histories as Allsop P said in Devaney [2012] NSWCCA 285, care needs to be taken not to effectively exclude admissible evidence by a process going beyond an assessment of weight. For as his Honour says at [88],

It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect… it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on a history

26. Further, as Hamill J said in Ryan v R [2017] NSWCCA 209

… it is not appropriate for this Court to gainsay the diagnosis made by a psychologist and admitted without objection before the sentencing judge. The diagnosis was not in dispute in the sentencing hearing, the expertise of [the psychologist] was not challenged, and she was not required for cross examination. The diagnosis appeared to be consistent with the symptoms exhibited by the applicant which is no doubt why the diagnosis was not challenged

27. The evidence as to the offender’s subjective case demonstrates that he is in an intimate relationship with his partner who is pregnant. His father was a heavy illicit substance user and he was incarcerated for long periods in his life. His mother was his major support in the absence of his father. He would often come home from school without food in the house and was exposed to drug use by his father at a young age.

28. Growing up he did not have stable accommodation, he had issues in his schooling, he began using illicit substances at age 15 to 16. When he was 17 while his father was in custody he came home to see his mother laying on the floor with blood pouring out the side of her head and it was determined that his mother had suffered an asthma attack and fallen and hit her head causing her death.

29. In 2019 he discovered his cousin having committed suicide by hanging and he was said to have spiralled out of control following those issues and his drug use increased significantly and graduated to the use of cocaine.

30. The psychologist notes that he reported that his mental health deteriorated while in custody as a result of re-experiencing the trauma to which I have referred. He said that he is constantly on edge, hyper vigilant and anxious. He diagnosed post-traumatic stress disorder. He said due to the chronic mental health issues and subsequent trauma relating to the grief and loss sustained he developed a maladaptive pattern of substance use which continued despite experiencing ongoing persistent psychological and psychiatric issues that were caused and exacerbated by substance use.

31. He said that these issues were plaguing him at the time of the offending so there is a direct correlation between his offending behaviour and his ongoing chronic psychiatric/psychological conditions.

32. Mr Albassit said that Mr Daher accepted that his involvement in the offending was reckless and appalling and expressed genuine and sincere remorse for the pain and injuries the victim suffered and he acknowledged that the experience would have been traumatising for the victim and wanted nothing more than to be able to say that he was sorry.

33. He says that the offenders time in custody was salutary and having taken responsibility for his actions and understanding the effect of his behaviour and seeing first hand while in custody the affect of drugs upon people. He needs ongoing and intensive psychiatric and psychological therapy and if that occurs he has given his willingness to engage in such therapy his prospects of rehabilitation are positive.

34. As far as the evidence goes since his release on bail in July 2021, he has been compliant with strict bail conditions. He has been employed full-time and abstinent from illicit substances, which support the proposition that his prospects of rehabilitation are favourable.

35. Turning to the question of objective seriousness, he must of course be sentenced on the basis that he participated in a joint criminal enterprise that involved an agreement to violently attack and wound the victim. I have to identify the particular conduct of the offender so as to identify the level of culpability attaching to him and while there is often as the Crown says some differentiation in culpability the very existence of the enterprise and the participation of each in it provides a limit to the extent to which this can occur.

36. I accept that by his plea the offender acknowledges the possibility that the victim would be badly wounded in the course of the attack, that being of course the essence of a plea to reckless wounding. He actively participated in the commission of the offence while the doors and windows of the vehicle were locked. After the victim had been badly wounded he was ejected from the vehicle. The offender did not render any assistance to the victim and he drove away with the co-offenders.

37. The particular facts that the Crown relies upon in support of a proposition the objective seriousness is above mid-range include the nature and extent of the wound, the fact that the offending occurred in the confines of a vehicle where he was unable to protect himself or remove himself and the fact that he was ejected from the vehicle in complete disregard for his welfare reflecting the malicious intent motivating the commission of the crime. As the Crown puts, the offender Daher appears to have initiated the violence by attempting to throw the first punch which led to the victim raising his arms.

38. I do however accept, as is put on behalf of the offender, that his role was less culpable than that of Assef and Khraizat and overall the objective seriousness of his offending in this joint criminal enterprise is slightly below mid-range.

39. As to aggravating factors the Crown correctly points to the offender being on a two year community corrections order at the time of the offending for an offence of possessing an unauthorized pistol, and on a second community corrections order on a charge of affray, and also on bail for an offence of hindering an investigation for which he was ultimately sentenced to four months imprisonment. Committing an offence whilst on conditional liberty is an aggravating factor pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999.

40. As to mitigating factors, I accept the expressions of remorse, the plea of guilty. I also accept that to a limited extent the Bugmy principles (Bugmy v The Queen (2013) 249 CLR 571) are enlivened having regard to the difficult circumstances of his upbringing and including his father’s incarceration and absence, his mother’s death and his cousin’s suicide and his introduction to drugs at a young age, as well as the psychological conditions diagnosed by Mr Albassit.

41. I accept that there is a basis for a finding of special circumstances firstly due to his significant mental health issues and the need for an intensive period of supervision so as to engage in ongoing drug and alcohol extension and rehabilitation.

42. I also take into account, as is clear in sentencing in the time of the COVID pandemic, that periods in custody have been more onerous than previously and that may be taken into account on sentence. As the Court has said there are a number of accommodation restrictions and limited visitation and periods of isolation undoubtedly cause additional hardship.

43. While the Crown submitted that the only basis for finding special circumstances may be the loss of his mother at the age of 18, the other matters to which I have referred are also an acceptable basis on which to make such finding.

44. As the Crown submits, general and specific deterrence are both significant matters in the sentencing process, particularly in a case such as this; group violence involving weapons and serious injury. Notwithstanding his subjective case, he has a relatively significant record in both adult and juvenile courts for such a young man so that general deterrence and specific deterrence must be given appropriate weight.

45. Although Mr Tabchouri put faintly the proposition that a term of imprisonment could be served by way of intensive corrections order, the term that I have in mind would not accommodate such an order. In any event, considering the purposes of sentencing and s 66 of the Crimes (Sentencing Procedure) Act 1999 it would not have been appropriate to impose an intensive corrections order. I will however as I have indicated make a finding of special circumstances.

27. The orders that I will make are:

JL Sequence 4 Reckless wounding in custody

1. The offender is convicted of the offence.

2. Taking into account a discount of 25% for the plea of guilty, I impose a sentence of imprisonment of two years and nine months commencing 28 December 2019.

3. I impose a non-parole period of 18 months expiring 27 June 2021.

4. I find special circumstances

Section 166 certificate: Sequence 3 Passenger not disclose driver’s/other passengers identity

1. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted of the offence and I impose no further penalty.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 22 February 2022