R v David Houssein

[2008] NSWDC 388

CITATION:	R v David HOUSSEIN [2008] NSWDC 388
JUDGMENT DATE:	30 July 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	For each offence - non parole period of 15 months, balance of term 7 months.
CATCHWORDS:	CRIMINAL LAW - sentence - malicious wounding - plea entered on first day of trial - provocation - serious attacks - criminal record - offender cares for his disabled mother - not suitable for periodic detention - level of hardship on family not sufficient to be taken into account - no penalty other than full-time imprisonment appropriate
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 65A, s 66
PARTIES:	Regina David Houssein
FILE NUMBER(S):	2008/1313
COUNSEL:	Mr Wetmore for Mr Houssein
SOLICITORS:	Mr Lee for the Director of Public Prosecutions

JUDGMENT

1. I am sentencing David Houssein. Mr Houssein has pleaded guilty to two crimes. Both are against s 35 of the Crimes Act 1900. Each of them is a crime of malicious wounding. Each of them carries a maximum of seven years imprisonment.

2. The offences occurred on 24 June 2007 and Mr Houssein was committed for trial on 30 November 2007 from Burwood Local Court. He pleaded guilty on 26 May 2008, the day listed for his trial.

3. Briefly, this is what happened which resulted in Mr Houssein being charged. He was friends with the two victims, I think they were brothers were they--
LEE: That’s correct your Honour.
HIS HONOUR: --who were brothers. He visited them at their home on Sunday 24 June 2007. Some cannabis was purchased. The three men, the accused and two brothers then returned to Mr Houssein’s own unit in Liverpool Road, Croydon. Mr Houssein’s mother was present in the unit at the time. An argument developed over cannabis which was being shared amongst the men.

4. I accept the offender’s account that the argument involved some threatening behaviour towards his mother, including quite abusive language. Mr Houssein’s response to the disagreement and the threatening behaviour towards his mother was to obtain a knife. It had a twelve inch blade. One of the brothers was trying to protect the other brother from being attacked by Mr Houssein. I should add that Mr Houssein’s mother, Mrs Houssein, left the unit either just before or more likely just after the knife was produced.

5. Despite the efforts of one brother, Mr Houssein managed to stab the other brother in the right side of his abdomen. This was despite pleas to leave the men alone. The fighting continued. As the brothers were trying to leave the unit, Mr Houssein stabbed one of them again, the one he stabbed before. This time it was on the right elbow. Mr Houssein said to the men:

“ Youse cunts aren’t leaving for sure. Stop, that’s it, stop. Youse are both dead, stop.”

It is noted in the agreed facts that that assertion was denied by the offender.

6. Mr Houssein then stabbed the other brother in the right bicep. Both brothers managed to unlock the door and get out of the unit. One of them however slipped on wet steps. Mr Houssein followed both men. He again stabbed the brother whom he had first stabbed. This time it was the inside of the right leg in the groin area. When that victim stood up Mr Houssein stabbed him yet again, this time in the left calf.

7. Both men then escaped. Both men needed ambulance and hospital treatment. One of the men received three stitches to his bicep and had abrasions on both hands. The other man, the first victim received lacerations to the right upper abdomen, left lower abdomen, left in the upper thigh, left calf, right thigh and right base of the scrotum. This caused rectal and urethral lacerations.

8. Needless to say, the attacks were very serious. They were somewhat reduced in their seriousness by the element of provocation, but that element lasted a relatively short time and the seriousness of the assaults is not diminished very much. Mr Houssein was vicious and persistent in his successful attempts to use the knife to stab both men. His behaviour is appropriately described in the terms of the offence as malicious wounding.

9. Mr Houssein has a criminal record. It notes that he is now thirty-seven. His criminal record reveals offences which are mostly for dishonesty. There is one common assault. He was sentenced to imprisonment for twelve months by a Local Court for one dishonesty offence but successfully appealed to this court. He spent over six months of his sentence in custody for that offence, but that was not because his appeal was successful and is not to be regarded as time spent under sentence. He was bail refused pending his appeal and as Mr Wetmore who appears for him says, it was in the nature of a remand. He was also sentenced to a month imprisonment by the Local Court at Wagga but that sentence was concurrent with the time spent in custody on remand.

10. I have a pre-sentence report to which I will return. But first, I note exhibits tendered by Mr Wetmore. There is a report by a clinical psychologist, Terry Smith dated 9 July 2008. It notes his personality and background including the impact of the death of his father at a young age. He is not considered to be suffering from any mental illness or developmental disability at the time of his offending, but was considered to have a highly anxious character. At times his condition crossed the threshold into mental health deficit. The psychologist regarded the prognosis as positive.

11. I have reports from Dr Quinton Cameron, Mr Houssein’s general medical practitioner, who notes that he has been troubled with anxiety and depression for the ten years that he is being treated by Dr Cameron. Dr Cameron noted Mr Houssein’s major role in looking after his - Mr Houssein’s - mother. Dr Cameron said that he is his mother’s carer and does everything for her. The pharmacist confirms that.

12. I heard evidence from witnesses on 25 July last. Mr Wetmore called his client who told me that he has been caring for his mother for some eight years. She has significant disabilities. He sees her three times a day and helps her with cleaning, washing, cooking and general rehabilitation.

13. Mr Wetmore called Mr Houssein’s mother. She said she could manage at the weekend if he was sentenced to periodic detention. She said that she has other children: she has four children in all. One son lives at Canada Bay. Mrs Houssein lives not far from Canada Bay. Another son lives in Sydney but Mrs Houssein described him as a couple of hours away. And there is a daughter who lives in Drummoyne whom Mrs Houssein does not have contact with. She has two sisters who live in London.

14. Mr Wetmore called the brother who lives in Canada Bay. He himself has a partner who has a significant disability, together with a six-year-old daughter. He would not be in a position to look after his mother.

15. The main issues in this care are twofold. They both impact upon whether the sentence I impose on Mr Houssein should be fulltime custody or not.

16. The first is the question of the hardship which would be caused to his mother if he was to receive a fulltime sentence. I am not satisfied that the level of hardship which is required to a third party in order to have a favourable impact on a sentence has been demonstrated in this case. Whether one agrees with the policy reflected in the authorities or not, the authorities are clear that the level of hardship to persons related to an offender caused by an offender going into prison has to be very high before it can be taken into account as a mitigating factor. It almost has to be inhuman or merciless before it can be given any weight. As the courts have said, it is of course a usual unfortunate result of offending behaviour that it has a damaging impact upon members of the offender’s family. That will be so in this case. Because of the attack which he launched upon these two men, Mr Houssein has put himself at risk of a fulltime gaol sentence. That would be the result of his own behaviour. It will cause some significant inconvenience and hardship to his mother. However, I am not satisfied -as I said - that that level of hardship is such that I should not sentence him to fulltime imprisonment. There are other members of the family who maybe available in certain circumstances to assist Mrs Houssein. I did not hear any evidence about other persons who maybe in a position to assist so I assumed the only source would be the family.

17. The second issue is whether I should impose a sentence of periodic detention. Mr Wetmore’s argument was that this was a suitable case for periodic detention. There were two difficulties with that submission. One is that it appeared arguable - because of the time which Mr Houssein spent in custody on the previous matter pending his appeal - that he may not be eligible as a result of s 65A of the Crimes (Sentencing Procedure) Act 1999. That provides that an offender who has previously served imprisonment for more than six months by way of fulltime detention in relation to anyone sentence of imprisonment is not eligible.

18. However, Mr Wetmore argued, and Mr Lee who appears for the prosecution agreed, that the circumstances of Mr Houssein’s custody were, as I have mentioned earlier, in the nature of remand. Because his sentence was set aside by the Court of Criminal Appeal, the time which he spent in custody pending that appeal is probably to be seen as custody being the result of his refusal of bail. It is not the kind of custody to which in my opinion s 65A applies.

19. Mr Wetmore’s second problem with a periodic detention order is more serious. Section 66 of the Crimes (Sentencing Procedure) Act provides that such an order may not be made unless I am satisfied amongst other things that the offender is a suitable person to serve the sentence by way of periodic detention. I need to be satisfied of certain other matters but that is obviously one significant one. Tendered in these proceedings was a pre-sentence report prepared by a Probation and Parole officer Mr Peter Hannagan dated 16 July 2008. Mr Hannagan expressed the opinion in that report, confirmed in evidence before me today that Mr Houssein is unsuitable for a periodic detention order. He listed three reasons in the report: the fact that Mr Houssein was the sole carer for his mother, his unresolved mental issues and drug issues.

20. I, too, regard Mr Houssein as unsuitable for a periodic detention order. I place some weight on Mr Hannagan’s assessment. He is a Probation and Parole officer whose experience would include an understanding of the operation of the periodic detention facility. His assessment of unsuitability, I give some weight to. In particular one of the issues, what Mr Hannagan described as unresolved drug issues, was of some significance. Mr Hannagan ascertained from a third party that Mr Houssein was still taking marijuana and spending about forty dollars a week at the time that he interviewed him, which was earlier this month. I regard, on that basis alone, Mr Hannagan’s assessment as soundly based. Accordingly, I am not satisfied that Mr Houssein is a suitable person in respect of whom I can make a periodic detention order.

21. This is a case where in my opinion I am satisfied, having considered the possible alternatives that no penalty other than imprisonment is appropriate. That is mainly because of the serious nature of the crime.

22. I propose to sentence Mr Houssein to two sentences of twenty-two months imprisonment, each with a non-parole period of fifteen months. I had in mind originally a sentence of between two years and two and a half years, around twenty-seven months. I have allowed a discount of some fifteen per cent for Mr Houssein’s plea of guilty so that reduces the sentence for each of the two offences to twenty-two months.

23. I am satisfied that special circumstances exist to warrant adjusting the ratio between the non-parole period and the parole period. Those special circumstances include the obvious need for Mr Houssein to be supported in resolution of his drug use.

24. I propose to partially accumulate the sentences by one month. I propose to backdate one of the sentences by one month, to give a modest acknowledgement to Mr Wetmore’s argument that the time spent pending the appeal in the previous matter was - as he described - dead time because of the ultimate success of the appeal. However, I accept Mr Lee’s submission that the weight given to such a factor should be negligible. It is arguably, as he said, irrelevant. Would you stand up Mr Houssein?

25. For maliciously wounding Skender Kurtesi, I set a non-parole period of one year and three months to date from 30 June 2008 and to expire on 29 September 2009. The balance of the term is seven months to commence on 30 September 2009 and to expire on 29 October 2010. I am satisfied that there are special circumstances to justify the balance of the term exceeding one-third of the non-parole period. That should be 29 April 2010, the expiry of the balance of the term.

26. In respect of the malicious wounding of Nerduvan Kurtesi, I set a non-parole period for the sentence of one year and three months to commence today, 30 July 2008 and to expire on 29 October 2009. The balance of the term is to be seven months commencing on 30 October 2009 and to expire on 29 May 2010.

27. I make an order under s 50 of the Crimes (Sentencing Procedure) Act directing your release on parole on 29 October 2009.

Have a seat Mr Houssein. Now Mr Wetmore and Mr Lee, are there any other formal orders I need make? I think probably fixing conditions of parole I need to do, but are there any other formal orders I need to attend to?

WETMORE: I don’t think so your Honour.

LEE: No your Honour.

28. The following are the conditions of your parole: that you be of good behaviour, that you subject yourself to the supervision of the Probation and Parole Service and accept any of their reasonable recommendations or directions. Now Mr Houssein, if you’d stand up. I need to explain the sentence to you.

29. For each of the knifing offences, I have given you twenty-two months imprisonment. One of them I have backdated by a month, the other one starts today. So your sentence for the first one commenced a month ago, 30 June 2008 and that twenty-two months will expire on 29 April 2010. The other twenty-two months starts today and therefore finishes on 29 May 2010. For each of those you have a non-parole period that you must spend in gaol of fifteen months. One of them started a month ago, the other one starts today, 30 July 08 and finishes in fifteen months’ time, 29 October 2009.

OFFENDER: May I ask a question sir?

HIS HONOUR: Yes.

OFFENDER: On 20 October 2009, do I have to go for a parole or is it automatic parole?

HIS HONOUR: It’s automatic.

OFFENDER: Thank you sir.

HIS HONOUR: All right. So it is 29 October 2009--

OFFENDER: Yes.

HIS HONOUR: --and you will be released upon that day because I have ordered it, you don’t have to go to the Parole Board. But I have fixed conditions of your parole that you’ve got to be of good behaviour, you understand what that means, you’ve had a bond before and I put you under the supervision of the Probation Service. Do you understand that?

OFFENDER: Yes sir.

HIS HONOUR: All right. Anything else gentlemen?

LEE: No your Honour.

WETMORE: Not from me, thank you your Honour.

HIS HONOUR: Thank you for your help. Do you want a moment with your client at all?

OFFENDER: Let me please explain ..(not transcribable)..

HIS HONOUR: Pardon?

OFFENDER: ..(not transcribable)..

HIS HONOUR: Is your mother in court Mr Houssein?

OFFENDER: Yeah, she’s just there sir.

WETMORE: His brother is here too.

HIS HONOUR: In the front, all right. Stay in court but you may see your mother and your brother, but I want you to stay in the courtroom before you go.

OFFENDER: Yeah sure I’ll go and hug her--

HIS HONOUR: Just go down and see them. Stay in the courtroom.

LEE: May I be excused your Honour.

HIS HONOUR: Yes thanks for your help Mr Lee. You are excused thanks Mr Wetmore.

**********