R v El Ali
[2013] VSC 172
•12 April 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0165
| THE QUEEN | Crown |
| v | |
| REFAAT EL ALI | Accused |
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JUDGE: | WEINBERG JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 April 2013 | |
DATE OF JUDGMENT: | 12 April 2013 | |
CASE MAY BE CITED AS: | R v El Ali | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 172 | |
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CRIMINAL LAW — Sentence — Plea of guilty to one charge of recklessly causing serious injury and one charge of recklessly causing injury — Offender attacked victim whom he believed to have behaved inappropriately towards his wife — Victim sustained stab wounds to upper chest and abdomen together with lacerations to the arm — Chest wound would have been fatal if left untreated — Remorse — Good prospects of rehabilitation — Total effective sentence of four years and three months’ imprisonment with non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N Rogers SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr G A Georgiou SC | Lewenberg & Lewenberg |
HIS HONOUR:
Refaat El Ali, you have pleaded guilty before me to one charge of having, on 14 April 2012, caused serious injury recklessly, and one charge of having, on that same day, caused injury recklessly. It is now my task to sentence you for those offences.
I shall begin by saying something about your background. You are now aged 28, and were born and brought up in Lebanon. At some point in 2009, you were introduced to Sofia, who later became your wife. She was, at that time, visiting relatives in Lebanon.
Sofia was born in Australia. Her parents are Lebanese. She returned to Lebanon in 2010 to spend more time with you, and you became engaged. You came to this country to be with her in March 2011, and were married in May of that year. You have a young daughter who was born in December 2012.
You had worked as a tiler in Lebanon for some years. After your arrival, you used your experience in that field and your wife’s family contacts to gain employment in the construction industry. You then started your own tiling business in October 2011.
You speak some English, but your native language is Arabic.
I turn now to the circumstances surrounding your offending. These were outlined by the prosecutor in the course of her plea opening. The facts are essentially undisputed.
Your wife was at some stage involved in a collision which caused damage to the rear of her car. On the morning of Friday 13 April 2012, you telephoned the victim of the first and more serious charge against you, Mohammed Belok. You knew him to be a panel beater with his own business in Holt Parade, Thomastown. Your intention was to obtain a quote for the repair of the damage. You said that you could not bring the car in for inspection yourself because you were at work, but indicated that your wife, Sofia, would do so.
At approximately 11am that day, she arrived at Mr Belok’s workshop. She drove her car into the driveway, and got out. It seems to be common ground that she shook hands with Mr Belok, and that they kissed each other on the cheeks. Apparently, this was not regarded as being untoward, since they were distantly related (although Sofia did say, in the statement that she made to the police later that day, that she regarded Mr Belok’s initial behaviour towards her as ‘strange’). In fact, Mr Belok was a guest at your wedding to Sofia. Moreover, he had been invited to attend her birthday party which was to be held that very night.
It also seems to be common ground that after greeting each other, Mr Belok and your wife moved towards the rear of the vehicle, close to where the damage had been inflicted. Mr Belok opened the boot, and Sofia stood to one side. At that stage, Mr Belok’s partner, Ali Sleiman, who was the victim of charge 2, came over and inspected the damage. He took down some details for the purpose of later providing a written quotation.
There are conflicting accounts as to what occurred next. According to Mr Belok, he told your wife that she could go. She thanked him, got into the car, rolled the window down and reminded him that it was her birthday.
Sofia gave a completely different version of events. According to her, Mr Belok grabbed her by the hand and asked her to sit next to him on the back of the car. She says that she did so. He then put his arm around her shoulders. He asked her to join him for coffee. She said that she had to leave. At that point, he grabbed her hand, and pulled her down next to him, forcing her to join him once again, seated on the boot of the car. He began to kiss her shoulder and her hand. He then grabbed her face and twisted her head towards his and tried to kiss her. He asked her to put his mobile number in her phone, and to keep it a secret.
Sofia says that she saw one of the workers walk towards the car and again pulled away from Mr Belok. She got into the car, started the engine and began to reverse. Mr Belok walked up to the side of the car, and told her to wind the window down further. He said that he expected her to ask him for coffee. She did not respond. He then told her to ‘keep it as our secret’.
Subsequently, Sofia returned home. She told you what had happened. She described Mr Belok’s behaviour towards her in some detail.
It is important to note that the Crown does not challenge your contention that you believed everything she told you. For present purposes, it makes no difference whether she was telling the truth, or whether Mr Belok’s version was correct.
Some time later, you called Mr Belok on his mobile phone. Not surprisingly, you were upset about what you had been told by Sofia, and you made your feelings known to him.
At about 2pm that afternoon, you and your wife attended at the Heidelberg Police Station and reported the matter. The police responded entirely appropriately. They told you that the matter would be investigated. They took a statement from your wife. The two of you then left and returned home.
Later that day, the police contacted Mr Belok and asked him to attend the Heidelberg Station. He did so. He denied Sofia’s allegations, and insisted that he had not behaved inappropriately towards her. His account was supported by Ali Sleiman, as well as by Ibrahim Reslan, who had also been present at the time.
On the following day, Saturday 14 April 2012, you decided to confront Mr Belok personally regarding your wife’s complaint as to his behaviour. It seems that you had been mulling over the matter throughout the previous afternoon and evening. You drove your utility to the panel shop. You arrived at about noon. When you got there, you saw that there were a number of men present. They included Ali Sleiman, Ibrahim Reslan, Rabih Sleiman and Abdullah Ibrahim. It seems that Abdullah Ibrahim is an elderly man who was there on a social visit. Some of these men were standing at the front of the workshop having a coffee. Mr Belok, however, was outside, working upon various vehicles.
You got out of your vehicle and walked up the driveway. You called out to Mr Belok, in Arabic, ‘talk to me, come here’. Mr Belok then approached you. He greeted you and a short conversation ensued. He invited you to go inside. He described you at that point as looking angry. Nonetheless, he continued to walk towards you as he did not consider himself to be in danger.
You were holding a plastic bottle in your right hand, which was clearly visible, and which Mr Belok believed to contain water. In fact, it contained phosphoric acid. You had your left hand behind your back, thereby concealing the knife with which you had armed yourself. The knife was a black-handled carving knife with a long silver blade.
A struggle followed. In the course of that struggle, Mr Belok’s right forearm received two lacerations, in all likelihood defensive wounds. It seems that Mr Belok then tripped and fell onto his back. You then either leapt or fell on top of him. In the course of the struggle, Mr Belok received a stab wound to the right lower abdomen. He attempted unsuccessfully to push you away. The injury that he had earlier sustained to his arm impeded that attempt.
At one point, Mr Belok was struck a blow to the mouth. That injury later required stitches. The Crown are not in a position to say whether it was caused by the handle of the knife which you were then holding, or by a punch.
The struggle continued. You were still on top of Mr Belok. You then stabbed him to the chest, near the right shoulder.
Mr Belok somehow managed to use both feet, and kick you in the chest. By that stage, the other men present had gone to his assistance. Ali Sleiman arrived first, and the others moments later. They separated the two of you. It appears that you either dropped the knife, or that it was taken from you. You then stood up and deliberately squeezed the bottle containing the acid. You sprayed it in the general direction of the men who had come to Mr Belok’s assistance. Some of the contents went into Ali Sleiman’s eyes.
You then ran from the scene taking with you the plastic bottle. You attempted to persuade the driver of a vehicle who was passing by to let you into his car. You told him that some men were trying to kill you. The driver looked in his rear vision mirror and could see no one chasing you. He drove on a short distance and then called police.
You continued running along the street. At one point, you discarded the bottle containing the acid. You then approached another vehicle, got into the front passenger seat, and asked to be driven to the nearest police station. You told the driver that someone was trying to kill you. He offered to drive you to the Reservoir police station. However, you declined the offer, telling him that you had arranged for a friend to come and collect you.
Shortly thereafter, you dialled 000. You told the person to whom you spoke that you had been injured by acid, and claimed that you were going to be killed. You mentioned the name Mohammed, and gave the address of the workshop at Holt Parade, Thomastown.
Police arrived at your home at about 12:35pm. You were standing on the roof, talking on your mobile phone. They called on you to come down and you complied. You appeared agitated. You told police that you had had acid thrown in your face and eyes, but they saw no signs of any such injury. You gave your correct name and address, and your date of birth. When asked how you came to receive some minor scratches on the back of your left hand, you replied ‘I had fight, I had acid on me, I did bad thing – I worry other man hurt. I need lawyer’. You were then arrested.
You were taken to the Whittlesea Crime Investigation Unit where you gave a ‘no comment’ interview. A search was conducted at your premises. During the course of that search police located a plastic container filled with phosphoric acid. You told police that you had poured acid from that container into the water bottle which you had had with you at the workshop. It seems that you had diluted the acid with water, on a ratio of one to two or one to three, in accordance with normal instructions for its use.
The two victims of your offending were conveyed to the Royal Melbourne Hospital.
Mr Belok suffered two lacerations to the right forearm, one stab wound to the right lower abdomen, and one stab wound to the right upper chest. That last wound penetrated into the pleural cavity resulting in a pneumothorax. In addition, he suffered a partial thickness laceration to the left upper lip.
Mr Belok underwent emergency surgery for the major chest wound. A chest drain was inserted to treat the pneumothorax, and the wound sutured. He was discharged from hospital about a week after his admission. Had the chest wound not been treated, he would have died. The other injuries were not life threatening.
Ali Sleiman sustained minor injuries to each eye. He was released the same day.
Mr Belok provided a victim impact statement which was tendered on the plea. He said that as a result of the injuries that he had sustained, he now suffered from depression and anxiety. He was attending upon his general practitioner on a regular basis, and would be seeking a referral to a psychiatrist and/or psychologist. He said that he found it difficult to sleep, as he suffered from nightmares. He said that following the incident he had less contact with others. He spent a lot of time alone. This had affected his relationship with his wife and children. He said that his wife had also displayed symptoms of stress, anxiety and depression, as had his children. This further increased his own depression and anxiety. He noted that since the incident he had become less tolerant, and more prone to anger and resentment generally.
With regard to the physical effects of the stab wound to the chest, he noted that this had resulted in collapsed lungs. He had scarring to both stab wound areas. The injuries to his right arm had resulted in numbness in the little finger and ring finger of his right hand. In addition, he had been referred to a surgeon with a view to treatment for both the numbness in question, and ongoing problems with his right shoulder. He regularly took painkillers.
Mr Belok said that following the attack upon him he had been unable to undertake any physical work, and this had been detrimental to the business. He would attend the workshop when he could, and do only supervisory work and/or paperwork. His own belief was that the long term prognosis was ‘not good’.
The Crown did not make a MacNeil-Brown submission,[1] as I did not require one. It did, however, submit that nothing other than an immediate custodial sentence would be appropriate.
[1]R v MacNeil-Brown (2008) 20 VR 677.
Mr Georgiou SC, who appeared on your behalf, submitted that this was an unusual case which called for a merciful disposition. He tendered a large number of character references, all of which attested to your integrity, responsibility, and diligence as a hard-working member of this community. Almost all of those who provided references said that your conduct on this occasion, as they understood it, was out of character. They also attested to your remorse. I accept this evidence.
In addition, Mr Georgiou tendered a report written by Mr Patrick Newton, a forensic psychologist, regarding your general mental state. After setting out something of your personal history, Mr Newton stated that in his opinion you are a conservative individual who sets high standards for yourself and those around you. He said that you place a strong premium on providing for your family through hard work, and that you are respectful of lawful authority. He found no indication of psychopathic or antisocial traits in your personality. He did say, however, that he considered you to be a ‘little rigid’ in your commitment to your values.
Mr Newton conducted a detailed review of your anger management skills to ascertain whether there was any propensity for conflict and aggression on your part. He concluded that the results of this review were generally positive. He noted, however, that the strength of your identification with your community means that you place a very strong premium on how you are perceived by those around you. You are described by Mr Newton as ‘sensitive to any behaviour or any implication that might reduce [your] standing in the community or lead to a “loss of face” with those whose opinions [you] value’. If you perceive such a loss of face, you ‘are apt to experience an intense and distressing sense of emotional arousal and to respond with strongly assertive efforts to re-establish [your] own standing, assert [your] rectitude, or upbraid the other for their own failure to conform to expected community standards’.
I take from Mr Newton’s report that you do have some difficulty with anger management, and self-control, though I accept his conclusion that the probability that you would, ‘in ordinary circumstances’, manifest overt physical violence is relatively low. I note, in that regard, that you have no prior convictions, and that no other matters are pending.
Mr Georgiou also tendered a report prepared by Mr Robert McInnes, a counsellor trained in anger management programs. That report notes that you attended various sessions with Mr McInnes, and that you did so voluntarily. Mr McInnes concluded that you do not have ongoing anger issues, and that it would take a ‘serious issue’ to make you angry.
On the basis of this evidence, I am satisfied that you have good prospects of rehabilitation, and are unlikely to offend in this manner again. I note, however, the reservation expressed in Mr Newton’s report to the effect that the prospect that you would engage in overt physical violence is ‘relatively low in ordinary circumstances’. The concern I have relates to what you might do in circumstances that are out of the ordinary. Nonetheless, I am prepared to give you the benefit of the doubt in relation to that matter.
Mr Georgiou, in the course of his submissions, reminded me that you had pleaded guilty to these offences, and that you had expressed genuine remorse. He submitted that the plea itself had utilitarian value. I take those matters into account.
In relation to the gravity of the offending, Mr Georgiou submitted that, though serious, it should be viewed as being at the lower end of the scale for recklessly causing serious injury. He put that submission on the basis that you did not set out, in any premeditated fashion, to cause any injury to Mr Belok or anyone else. He submitted that, on the evidence, I should deal with you on the basis that you had the bottle of acid and the knife in your utility as part of your ordinary tools of trade, these being items used in your tiling business. He further submitted that when you arrived at the workshop on the Saturday in question, you saw a number of men present, and were concerned for your own wellbeing. He invited me to find that you armed yourself with the bottle of acid, and the knife, solely for your own defence. In other words, he submitted that you had no intention, when you called out to Mr Belok, to do him any harm. That intention, in so far as it was formed at all, arose only once the struggle had begun.
I am not persuaded by that submission. Indeed, I am satisfied beyond reasonable doubt that you armed yourself with the knife, and the bottle of acid, as you were leaving your vehicle, not because you wanted to protect yourself, but because you wanted to be able to use them offensively against Mr Belok, or anyone else who intervened.
Had you been concerned for your own safety, I doubt that you would have concealed the knife behind your back, as you did, before launching yourself upon Mr Belok. Moreover, there was nothing to prevent you from simply driving off, rather than confronting him at the scene.
There may have been some component of self-protection in what you did, but, in my opinion, the dominant reason for your having armed yourself as you did was to attack Mr Belok, or at the very least, to use the knife and the acid to intimidate him.
I accept that you did not intend to cause Mr Belok serious injury. Your plea to the lesser offence of recklessly causing serious injury entitles you to be sentenced upon the footing that you foresaw the probability that you would cause such injury, although you did not specifically intend to bring about that result. Had you been dealt with for the more serious offence, you would have received a significantly heavier penalty than that which I am about to impose.
There is little else to be said. I understand that any sentence of imprisonment will be particularly difficult for you, given the closeness of your ties with your wife and young daughter. I take that into account. I also take into account the fact that imprisonment will result in significant hardship for them, in other ways. They will be forced to give up the accommodation that you are currently renting, and your wife will have to move in with her family in somewhat cramped conditions. There is no basis for a finding of third-party hardship as such, but I accept that you will find your imprisonment more burdensome because you have brought about these difficulties through your own inability to exercise appropriate self-control.
Mr Georgiou at one point invited me to consider a non-custodial sentence. It is fair to say that he did not persist in that submission, particularly when I indicated, at least provisionally, that any such disposition would be inappropriate. The objective gravity of your offending was, in my opinion, far too great to contemplate any such course. It must be remembered that by your actions you have caused immense suffering to Mr Belok, and that the harm you have inflicted upon him is ongoing. It must also be remembered that you inflicted not one, but three, separate stab wounds on your victim. You also acted recklessly in spraying acid in the direction of Ali Sleiman’s face. I do not accept that your offending should be viewed as being at the lower end of the scale.
General deterrence is obviously an important sentencing consideration for offences of this nature. So too is the need to express denunciation of your conduct. Irrespective of what you thought of Mr Belok’s behaviour towards your wife, as you understood it to have been, your response was grossly disproportionate to any insult that had been proffered. There is no excuse for what you did.
Mr Georgiou asked me to be merciful. He submitted that, in the event that you were imprisoned, a lower than usual non-parole period would be appropriate. I propose to accede to that submission.
The matter of your future in this country was raised briefly on the plea. Your right to remain in this country is based on a spousal visa. Mr Georgiou did not submit that I should take the prospect that you will be deported upon expiry of your term of imprisonment into account, and nor could he, given the state of the law on this subject.[2] He accepted that there existed no material which meant that that prospect was anything more than wholly speculative. I do, however, have regard to the fact that the possibility of deportation, albeit a matter of conjecture, will bear upon the impact that your time in custody will have upon you as you serve your sentence. It will make that sentence additionally burdensome as you reflect upon the hardship that you will have brought upon yourself and your family should that possibility be realised. In other words, it is an aspect of your personal circumstances that I take into account.[3]
[2]DPP v Yildirim [2011] VSCA 219.
[3]Guden v The Queen (2010) 28 VR 288, 294-5 (Maxwell P, Bongiorno JA and Beach AJA).
The sentence of this Court in relation to charge 1, the charge of recklessly causing serious injury, is that you be imprisoned for a term of four years. The sentence in relation to charge 2, the charge of recklessly causing injury, is that you be imprisoned for a term of six months. I order that three months of the sentence on charge 2 be served cumulatively upon the sentence imposed on charge 1, thereby making a total effective sentence of four years and three months. I fix a non-parole period of two years.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty on charge 1, I would have imposed a sentence of five years and six months, and on charge 2 I would have imposed a sentence of 12 months, of which six months would have been cumulative. That would have made a total effective sentence of six years. I would have fixed a non-parole period of three years.
I declare that the number of days already served under the sentence is 29 days, not including this day, and I direct that the fact of that declaration and its details be entered into the records of the Court. I have previously made an order under s 464ZFB(1) of the Crimes Act 1958 for the retention of a forensic sample, and a disposal order under the Confiscation Act 1997 in respect of various items connected to the commission of these offences.
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