R v Elbadar

[2012] NSWSC 1492

Supreme Court

New South Wales

Medium Neutral Citation:

R v Elbadar [2012] NSWSC 1492

Hearing dates:

14 February; 17 August; 9 November 2012

Decision date:

29 November 2012

Jurisdiction:

Criminal

Before:

Latham J

Decision:

Convicted of affray. Sentenced to one year and eight months imprisonment. Execution of sentence suspended and directed to be released from custody on condition offender enters into a good behaviour bond for a period equal to that term.

Convicted of two offences of giving false evidence to the NSW Crime Commission. Sentenced to ten months imprisonment on each charge. Execution of each sentence suspended and offender to be released from custody on condition he enters into a good behaviour bond for a period of ten months

Catchwords:

CRIMINAL LAW – sentencing – guilty plea – affray – relevance of discharge of loaded firearms – presence of bystanders at risk of serious injury – evidence of planning and premeditation – limited role of offender – offence not in worst category

CRIMINAL LAW – sentencing – guilty plea – giving false evidence to NSW Crime Commission – offender sought to protect manslaughter suspects – relevance of psychological condition – impaired ability to withstand peer pressure – specific deterrence irrelevant

Cases Cited:

Khanwaiz & Ors v R [2012] NSWCCA 168
R v Abdulhardi NSWSC 20 April 2012
R v Mariam [2012] NSWSC 1023
Stevens v R [2007] NSWCCA 152

Category:

Sentence

Parties:

Regina - (Crown)
Tarek Elbadar - (Offender)

Representation:

Counsel
P Barrett - (Crown)
C Davenport - (Offender)
Solicitors
Solicitor for Public Prosecutions - (Crown)
John Doolan - (Offender)

File Number(s):

2009/75262 2010/96558

SENTENCE

1. The offender, Tarek Elbadar, pleaded guilty to Affray on 13 February 2012 for his part in the events of 25 June 2009 in a carpark at Milperra, where eleven young men gathered to settle a dispute between two opposing groups. The tragic consequences of that evening have already been the subject of sentences imposed upon the co-offenders (see R v Mariam [2012] NSWSC 1023). This offender stands to be sentenced on the basis of an agreed statement of facts that does not attribute to him any knowledge of the presence of firearms at the scene.

1. The offender also pleaded guilty on the same day to two counts of giving false evidence to the NSW Crime Commission. Those offences are intricately bound up with the affray, in that the false evidence related to the events of 25 June 2009. The offence carries a maximum penalty of 5 years imprisonment.

1. The offence of affray caries a maximum penalty of 10 years imprisonment. There are obvious considerations of parity at play, given the sentencing of a number of co-offenders for their part in the same affray. I have previously commented on the absence of any upward movement in relation to the range of sentences imposed for affray since the maximum penalty was doubled as and from 15 December 2005 ; R v Abdulhardi NSWSC 20 April 2012.

The Affray Offence

1. At about 9pm on 25 June 2009, HEK was involved in a physical assault with Samir Mohamad at Bankstown's Centro shopping centre. AM was also present. The assault was interrupted by security staff and by police. Both groups were escorted from the premises. HEK was the instigator of the conflict by referring to Samir Mohamad as a "dog".

1. Over the following hour, numerous telephone calls were made between associates and family members of the two opposing camps, namely the Mariam group and the El Kobaili group, as well as between members belonging to each group. During these telephone calls, arrangements were made to meet in order to pursue the earlier conflict. AM telephoned his older brothers, Mahmoud Mariam and Moustafa Mariam.

1. Mahmoud Mariam, Rami Abdulhardi and this offender were at Mahmoud Mariam's house for a bar-b-q that evening. At about 10:29pm, the offender drove those persons to the KFC carpark in a Mazda. He parked the vehicle near the roundabout on Starkey Drive and the three men walked from the vehicle into the car park adjacent to a Hungry Jack's food outlet. The trio was seen by a number of employees of that outlet. They changed direction and walked towards the Aldi store on the northern edge of the car park. They remained in view of the Hungry Jack's employees until those employees left the parking lot shortly thereafter.

1. At about 10:34pm, the Honda car driven by Moustafa Mariam, with AM as passenger, pulled into the car park and parked between KFC and Hungry Jack's. They remained in the car.

1. A short time later, a white van carrying the El Kobaili group entered the car park and parked alongside the Honda. At this point in time, the high beam of the Honda was activated, whereupon the three men, including this offender, started walking towards the white van. Mahmoud Mariam, who was advancing from the direction of the Aldi store perimeter, began shooting at the El Kobaili group. One of the occupants of the van returned fire. This offender was walking behind Mahmoud Mariam, intending to participate in the affray.

1. HEK and another occupant left the white van while its engine was still running and ran to the Honda. HEK started fighting with Moustafa Mariam. Other occupants from the van began attacking the Honda with a large piece of wood and a steel wrench.

1. One of the bullets fired by Mahmoud Mariam in the car park struck a truck driver, Mr Knight, who was travelling on Milperra road, resulting in his immediate death.

1. Mr Abdulhardi received serious gunshot wounds to the abdomen. Moustafa Mariam received gunshot wounds to the right forearm.

1. Within minutes of these events, the El Kobaili group retreated to the van and left the car park. Moustafa Mariam and AM were driven to Bankstown Hospital by this offender, after he made a 000 call to report the incident.

The NSW Crime Commission Offence

1. On 15 April 2010, the offender attended the New South Wales Crime Commission to give evidence after having been issued with a summons to attend. Before the start of his evidence, the offender was advised by the Crime Commission staff that if he gave false evidence he could be later prosecuted. The offender then proceeded to give false evidence by stating that he drove to the scene on his own to meet some girls, he did not get out of the vehicle and he did not see Mahmoud Mariam and AM at the scene.

The Objective Gravity of the Offence

1. I have previously considered the extent to which the Court could have regard to the fact that the discharge of firearms resulted in the death of an innocent bystander in assessing the gravity of the offence. I repeat what I have previously said on this issue for the purposes of sentencing this offender.

1. Most relevantly, in Stevens v R [2007] NSWCCA 152, Price J (McClellan CJ at CL and Hidden J agreeing) said at [25] to [27] :-

In determining an appropriate sentence for an offence of affray contrary to section 93C of the Crimes Act an offender's conduct is to be considered in the context of the conduct of a co-offender. The level of violence used in the scale of the affray is relevant. An offender however, may only be sentenced for that part of his conduct and the conduct of the co-offender which give rise to the offence of affray and not that conduct which resulted in some other offence being committed by him or by the co-offender; see R v Huynh [2000] NSWCCA 18; R v Eleter [2003] NSWCCA 130 and R v Fajka [2004] NSWCCA 166.

His Honour found as I have mentioned that the applicant and Davis were the aggressors. Furthermore it was open to the judge to find that they had attacked both victims with extreme violence. The attack by Davies upon Mrs Herring with a tyre lever was part of the co-offender's conduct which gave rise to the offence of affray. In my view, the nature and extent of the physical violence was an objective factor relevant to the seriousness of the offence.

1. Most recently in Khanwaiz & Ors v R [2012] NSWCCA 168 , Beech-Jones J said (Basten JA and Harrison J agreeing) :-

50. Further the significance of the distinct element of the affray charge, namely the effect of the attack upon persons at the scene, cannot be understated. Offences such as s 93C have a wider focus that just the impact on the direct victim of the unlawful violence. Section 93C is located within Part 3A of the Crimes Act which deals with public order. Attacks of the kind participated in by Noman can undermine the public's confidence in the security of their streets and homes. His Honour recognised this is in the sentencing judgment when referring to the "separate policy considerations effectively requiring separate assessments of the criminality and issues of accumulation" with the affray offences.

1. It is axiomatic that in determining the appropriate sentence to be imposed upon the offender for the affray, he is not to be punished for the manslaughter of Mr Knight. He stands to be sentenced on the basis of his individual role in the commission of the affray. That, however, does not preclude the Court from taking into account, for the purposes of assessing the objective gravity of the offence, the fact that the discharge of loaded firearms was a feature of the affray. That feature of the offence demonstrated the extent to which members of the public were put in fear for their personal safety.

1. To the extent that the gravity of the offence is affected by its short duration and the fact that it occurred late at night, after the various retail outlets on the perimeter of the car park had closed, those factors are of some, albeit, limited significance. The relatively short period of time during which the affray took place, in the order of minutes, was no doubt the product of the repeated discharge of at least two firearms and the wounding that resulted to two of the Mariam group. The participants in the affray were in exposed positions in the car park. The longer they remained there, the more likely it was that they themselves would be injured. Notwithstanding that the fast food outlets were no longer trading, there were members of the staff of those outlets who were waiting in the car park to be collected by friends and relatives. Moreover, adjacent to the car park, there was a service station and 711 store which was, at the time of the affray, trading with members of the public. All of these people were potentially put at risk of serious injury. That risk materialised in the death of Mr Knight.

1. The offence demonstrated a measure of planning and premeditation, the participants were variously armed with firearms, pieces of timber and other implements, it was a large group, it occurred in full view of numerous members of the public in a public car park and it involved the actual use of violence. These are all factors that are relevant to an assessment of objective gravity.

1. In the result, it is not necessary to embrace the Crown's description of the offence as one approaching the worst case. It is always possible to envisage circumstances that would render the offence more objectively serious, although that does not preclude a finding that an offence is in the worst case category. This affray did not take place at a time or in a place that engendered in a large number of members of the public fear for their personal safety. That does not detract from my assessment of the offence as objectively a particularly serious example of affray.

1. I accept that this offender's role in the affray was limited to his presence with the intention of assisting others, that he took no active part in the infliction of violence and that he removed himself as soon as it became clear that firearms were being discharged. The fact that he undertook to alert the authorities before taking the younger Mariam brothers to hospital suggests that he was genuinely shocked and surprised by the scale of the confrontation. Nonetheless, he chose to include himself in Mahmoud Mariam's group in the knowledge that some type of confrontation was to take place.

The Objective Gravity of the Crime Commission Offences.

1. Whilst the offender was no doubt motivated to lie to the Crime Commission out of a misplaced sense of loyalty to members of the Mariam family, that does not in any way excuse or justify these offences. They are partly explained by the offender's psychological disorders which I set out below. However, the offender sought to protect those who were responsible for a mindless display of violence, resulting in the death of an innocent person. The offender must have been aware at the time that he gave evidence to the Crime Commission that the discharge of a firearm by Mahmoud Mariam was one of the potential sources of the bullet that killed Mr Knight.

1. Notwithstanding this knowledge, and the advice given to him by Crime Commission staff, the offender wilfully lied in his evidence in relation to crucial information which was critical to the Crime Commission's pursuit of further lines of enquiry. The gravity of these offences must be measured against the gravity of the offence which the Crime Commission was investigating. In my view, these offences were also objectively serious to a marked degree.

1. General deterrence is an important consideration in sentencing the offender in respect of all three offences for those reasons. I accept that this offender's moral culpability is attenuated to a modest extent by the inter relationship of a number of psychological conditions that compromise his ability to withstand peer pressure.

Subjective Circumstances

1. The offender is presently 34 years of age. He was born in Australia to parents of Lebanese heritage. His father died in 1986 and his mother is now 70 years of age. There are 11 children in the family of whom this offender is the second youngest. He reports a happy and close family life. The offender is educated to HSC standard. However he recalls great difficulty in his later years in high school after the onset of Tourette's Disorder. He has had consistent employment since leaving school in his brother's fruit shop, and within the banking industry.

1. The offender has been under the treatment of a psychiatrist for his Tourette's disorder and has been diagnosed with ADHD and obsessive compulsive disorder. He is also suffering from anxiety and depression. The Tourette's disorder produces symptoms of self-consciousness, shame, demoralisation and sadness. In the opinion of the psychologist who prepared a report for the purposes of sentence, the presence of the disorder has had a marked impact on the offender's psychological development. It has predisposed the offender to be compliant towards others. The symptoms of his major depressive disorder have been exacerbated by his involvement in the offence. Paradoxically, the offender has discontinued antidepressant medication.

1. His criminal history consists of a conviction for supply prohibited drug in 2001 in respect of which the offender received a suspended sentence of six months, and an offence of organising and/or promoting a race between vehicles in April 2002, in respect of which the offender was fined.

1. Given the offender's psychological profile and the nature of his previous convictions, I do not regard specific deterrence as a relevant issue for the purposes of sentence. His prospects of rehabilitation are perhaps more promising than his co-offenders. The offender has adopted the role of primary carer for his mother. There is no evidence of remorse for his part in the offence.

1. The offender spent three months and 19 days in custody in relation to the affray offence. There is some force in the submission that the imposition of a gaol term will visit greater hardship on this offender than on any other, given his psychological vulnerability, but I do not regard that factor as sufficient of itself to cause the Court to draw back from imposing a gaol term if that is the only appropriate punishment.

1. The offender's pleas of guilty came at the very beginning of a long trial. The utilitarian value of those pleas warrants a discount of 15% on the sentences that are otherwise appropriate.

1. Taking into account the objective gravity of the offences, the offender's limited role in the affray and his subjective circumstances to the extent that they reduce his culpability, I regard a sentence of imprisonment as the only appropriate sentence for the affray. But for the plea, I would impose a sentence of two years imprisonment on this charge.

1. In respect of the Crime Commission offences, they are temporally so connected with each other that wholly concurrent sentences are appropriate. Sentences of imprisonment are also required for these offences. A modest measure of accumulation of these sentences upon the sentence for the affray is necessary to mark the distinct criminality inherent in them. But for the pleas of guilty, I would impose a sentence of one year imprisonment on each charge.

1. That results in a sentence of one year and 8 months imprisonment for the affray. On each of the Crime Commission charges, a sentence of ten months imprisonment should be imposed, each of which ought be accumulated on the sentence for the affray by 4 months.

1. Having regard to the offender's pre-sentence custody and his promising prospects of rehabilitation, I am of the view that these sentences ought be suspended. Accordingly, I impose the following sentences and make the following orders :-

(i)   Tarek Elbadar, you are convicted of the offence of affray.

(ii)   I impose a sentence of one year and 8 months imprisonment.

(iii)   I suspend the execution of that sentence and direct that you be released from custody on condition that you enter into a good behaviour bond for a period equal to that term.

(iv)   You are convicted of two offences of giving false evidence to the NSW Crime Commission.

(v)   I impose a sentence of 10 months imprisonment on each charge.

(vi)   I suspend the execution of each sentence and direct that you be released from custody on condition that you enter into a good behaviour bond for a period of ten months.

Decision last updated: 06 December 2012