R v Elkaddour

[2024] NSWDC 506

District Court

New South Wales

Medium Neutral Citation:

R v Elkaddour [2024] NSWDC 506

Hearing dates:

11 October 2024

Date of orders:

30 October 2024

Decision date:

30 October 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Mahmoud Elkaddour is convicted.

2   Taking into account the discount for the plea of guilty, I impose a term of imprisonment of 2 years and 6 months with a non-parole period of 18 months to date from 30 May 2023. The non-parole period will expire on 29 November 2024 and the head sentence will expire on 29 November 2025.

3   The offender is to be released on parole on 29 November 2024.

Catchwords:

CRIME — Violent offences — Reckless wounding

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Mahmoud Elkaddour (Offender)

Representation:

Counsel:
M Higgins (Counsel)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Lenz Legal (Offender)

File Number(s):

2023/172818

Publication restriction:

None

JUDGMENT

1. Mahmoud Elkaddour (the offender) appears for sentence after pleading guilty in the Local Court to an offence of reckless wounding contrary to s 35(4) Crimes Act 1900. The maximum penalty for this offence is 7 years imprisonment. Parliament has also prescribed a standard non-parole period of 3 years.

Approach to Sentencing

2. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and the matters set out in s 21A of that Act.

3. The offender entered pleas of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

4. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

Facts

5. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

6. At the time of the commission of the offence, the offender and the victim resided within the same unit complex in Padstow. The offender resided in the unit located directly above the victim’s unit. The victim lived with the witness Amanda Helwani, who was a family friend of the victim.

7. At approximately 2:30am on 30 May 2023, Ms Helwani left home to attend Bankstown Sports Club. The victim was seated inside smoking and playing with his phone. The victim was also played music through a portable speaker.

8. At around 4:25am, the offender knocked on the door of the victim’s unit. The victim opened the door. After asking whether Ms Helwani was home, the offender complained about the volume of the music, yelling “that bass is so loud it shakes all the way up the wall, it vibrates all the way up to my place”.

9. The victim told the offender to “Get out!”. The victim stepped towards the offender to move him out. A struggle ensued and during the course of which the victim sustained wounds to the left middle phalanx finger and three wounds to the upper left thigh from the offender using a sharp tool.

10. The victim screamed “Enough. Mahmoud what are you doing man?”. The offender said, “You were the one that started it”. The offender then departed the unit. The victim, in shock and bleeding profusely, crawled over to the doorway of the unit.

11. Ms Helwani and a group of her friends returned to the unit at around 4:30am. She found the victim lying on the ground in a pool of blood. When asked by Ms Helwani and her friends what had happened, the victim said that it was the offender who had injured him. Ms Helwani called triple zero at 4:39am.

12. At around 5:00am, police arrived at the victim’s unit. Ms Helwani told one of the officers that it was the offender who had injured the victim and indicated that it was him, standing on the balcony of his unit. On their way to the offender’s residence, police observed drops of the offender’s blood on the staircase leading towards the front of the offender’s residence.

13. After a being encouraged by officers to come out, the offender emerged from his unit at 5:49am. He was placed under arrest and conveyed to Bankstown Police Station.

14. A crime scene was declared at the victim’s unit and a secondary crime scene was also established at the offender’s unit. Upon entry into the offender’s unit, police observed small droplets of the offender’s blood at various locations throughout the unit.

15. At Liverpool Hospital, the victim presented with a laceration along the ulna border of the left middle phalanx finger and three stab wounds to the left thigh each between 2cm to 5cm in length and having breached the dermis and extending deep into the fascia.

16. Whilst in triage at Liverpool Hospital, the victim gave a history of using cocaine at 4:30pm the previous day and heroin use managed by suboxone medication which he had not taken “for a number of days”.

17. The victim underwent surgery to debride and wash out his wounds. The wounds were closed with sutures and dressings were applied to them.

18. Police conducted an ERISP interview with the offender. The offender denied the allegations and claimed that he acted in self-defence.

The Offender’s Case on Sentence

19. The offender relies upon the following documents:

1. statement of Senior Constable Brendan O’Flynn dated 1 June 2023;

2. NSW Police Force Forensic Results Summary – 78260963;

3. report of Emma Collins, psychologist, dated 19 February 2007;

4. report of Dr Paul Pusey, psychologist dated 3 October 2024; and

5. JIRS Statistics.

20. Dr Pusey was also called to give evidence by telephone and cross-examined.

21. The following is a precis of the evidence relied upon by the offender.

22. The offender is the second eldest of four children born to his parents’ union. He has two brothers and one sister. He was raised in south-western Sydney.

23. The offender had a poor childhood and grew up in a harsh environment. He was hit by his father almost daily during childhood, often without cause. His father was a gambler and would frequently take out his losses on the family, including the offender’s mother. The offender frequently witnessed domestic violence as a result and also advised that his mother was abusive towards him at times. The offender reported to Dr Pusey that the physical abuse decreased as he got older, but that it then became emotional abuse.

24. The offender was involved in a car accident, during which he was hit by a car at age six and suffered head and leg injuries. This affected the offender’s school attendance and general performance. He developed a pervasive stutter after the accident. As a result he was bullied and he engaged in a number of physical fights. At primary school he sustained a couple of friendships and was suspended once for fighting.

25. At high school, his behaviour worsened over time. He experienced decreased motivation to attend school and engaged in truancy. His stuttering ceased at about 14 years of age, following extensive speech therapy. Towards the end of high school, he began to associate with drug-taking peers and his performance declined. He was asked to leave school in Year 11.

26. He reported to Ms Collins that he felt his parents were unsupportive of his medical problems as a child and they were only kind to him when his compensation payment was to be finalised. He told Dr Pusey that his father interfered with his speech recovery and that his father had told him that the longer he was injured the more compensation they would get. The offender’s parents took most of the $30,000 payment and spent it on themselves.

27. The offender left home at 17 years of age. He began absconding from home at approximately 15 years of age because of persistent abuse. He lived in Lebanon for three months at age 17 and returned to Sydney when his fiancée and uncle were killed in Lebanon. When he returned to Sydney he lived with friends or on the streets.

28. The offender is of a Muslim background, and he spent much of his time in Arabic School on weekends and is fluent in Arabic. He is a devout man, the practice of his faith decreased when he was drug affected.

29. The offender reported to Dr Pusey that he experienced multiple incidents of sexual abuse while incarcerated in juvenile facilities. The offender has not received any form of treatment for this trauma, but he has self-medicated with drugs and alcohol.

30. The offender maintained a brief period of employment from 18 as a paver, and then in 2005 in a warehouse. His mother would take a large part of his wage when he was employed. His drug abuse has compromised his ability to maintain work. From 2014 to 2017 the offender worked as a labourer for a furniture company. Between 2017 and 2019 he was the full-time carer of his mother who suffered from dementia. He returned to the furniture company for a period of six months in 2019 before becoming the full-time carer of his father from 2020 to 2023 and was in receipt of a carer’s pension.

31. The offender began using substances at approximately age 17 when he started consuming alcohol and smoking cannabis in the context of his attempt to process the emotions relating to his traumatic past. He transitioned to using heroin, cocaine and ice.

32. The offender has been on the buprenorphine program for the past 10 years since he was last released from custody. During his assessment with Dr Pusey, he denied that he currently engaged in use of illicit substances, the consumption of alcohol or the use of cigarettes or vapes. He acknowledged that he had consumed alcohol in the community but that he had stopped doing so a few months prior to the offending.

33. The offender reported to Ms Collins that an arranged marriage was established for him in Lebanon, and he became engaged at age 17 when he moved to Lebanon. He reported that he had a choice to decide whether he wanted to get married to his fiancée and intended to do so because they got on well together. His uncle and fiancée were however killed in a “shoot out” at that time. The offender took the death of his fiancée badly.

34. The offender is not currently involved in any form of intimate relationship. His last significant relationship occurred between 2020 and 2021. The offender also told Dr Pusey that he was involved in a relationship in 2014 and had a child with this partner. He reported that she used the offender and continually asked for money. In 2017, she stopped the offender from seeing his daughter despite a Court order being made to allow him contact with his daughter. This added to his stress and was about when he first used ice. The offender’s last contact with his daughter was in 2019.

35. The offender has experienced complex health issues since his involvement in the motor vehicle accident at age six. He has had knee issues since this time and was recently diagnosed as having a torn meniscus. The offender also reported to Dr Pusey that he has diabetes, sleep apnoea and the start of emphysema.

36. In relation to his mental health, the offender reported that he had been admitted to an inpatient mental health facility on two occasions approximately 30 years ago. He was referred to treatment after these admissions but did not attend.

37. The offender told Dr Pusey that he had no memory of the psychological assessment with Ms Collins in 2007. Ms Collin’s in her report stated that the offender had advised that he made multiple suicide attempts around the time his fiancée was killed.

38. At the time of his assessment with Dr Pusey, the offender reported that he was experiencing an episode of depression. He denied having a current experience of suicidal ideation. He also indicated that he is experiencing flashbacks of traumatic events and memories mostly related to abuse and domestic violence as a child. While in custody the offender has been receiving some intervention by attending five or six psychology appointments. He reported to Dr Pusey that the psychologist in custody indicated that he likely has Post-traumatic Stress Disorder and has suggested he would benefit from EMDR treatment.

39. The offender has an extensive criminal history. He attributed this to a combination of factors during his psychological assessment with Dr Pusey, including the influence of his upbringing on his decision making, the impact of his experience of abuse and the impact of a pervasive history of substance use on his functioning.

40. The offender is currently incarcerated at Bathurst Correctional Centre. He told Dr Pusey that he has been housed in the protection wing for the duration of this episode of custody due to trouble he had during previous instances of incarceration. The offender reported that he has been incarcerated for a total of nearly 19 years since 1994. He had been in the community for a period of approximately 10 years until this offence. He was living in the Liverpool area and would care for his father in Padstow, until his father passed away. The offender’s father passed away six weeks before the offending.

41. In relation to the offence before the Court, the offender told Dr Pusey that he agreed to accept the charge as part of a plea bargain. He stated, “I do believe I am guilty of the last stab wound, but not the first two as I acted in self-defence”. During the assessment he noted that the Agreed Statement of Facts did not indicate who was the aggressor and that he, “will argue that he (the victim) was the aggressor”. The offender told Dr Pusey that at the time of the offending, his emotions were heightened. He recognised that he could have walked away but was scared and the intensity of his fear made him feel like he was under a greater threat than perhaps he was.

42. The offender further reported to Dr Pusey that he had a “slash mark” from the victim and that the blood leading up to his unit was found to be his. In his statement, Senior Constable O’Flynn stated that he observed frequent drops of blood from the ground floor, up the stairs and leading into the offender’s unit. He further observed small droplets of blood in various locations throughout the offender’s unit. The forensic results summary confirms the blood in these locations to be that of the offender.

43. The offender expressed remorse to Dr Pusey for his previous offending, his substance use and parts of his current offending.

44. Dr Pusey opined that at the time of the assessment, the offender would likely have met the diagnostic criterion for Major Depressive Disorder and Post Traumatic Stress Disorder (PTSD).

45. Dr Pusey recommends that the offender undertake further mental health assessment to determine the extent to which a diagnosis of Complex Post Traumatic Stress Disorder may be appropriate in light of the offender’s reports of multiple traumatic experiences within his family of origin.

46. Dr Pusey further opined that based on the offender’s self-report that at the time of his offending he would have likely met the diagnostic criterion for PTSD. It is Dr Pusey’s opinion that the offender’s reports of a relationship existing between his offending behaviour and the extent to which his experience of past traumatic events and the pathology he reports which has arisen from this, influenced his conceptualisation of the risk posed to him at the time of his offending, and the behaviours required to minimise the danger posed to him, demonstrate he meets the criterion for this disorder.

47. The offender completed the Inventory of Problems – 29, and the Inventory of Problems Memory tests at his assessment with Dr Pusey. The scores from these tests in the opinion of Dr Pusey indicate that the offender is, “likely to be over or under reporting the intensity of his pathology and its functional impact”. Dr Pusey states that given the offender’s disclosures of events and symptoms consistent with PTSD and Major Depressive Disorder, “the scores returned on this instrument do not suggest that he is likely to be reporting experience of symptoms which he has not experienced”.

48. Based on the offender’s presentation during the assessment in addition to his review of the background information provided, Dr Pusey suggested that the offender’s risk of recidivism would be high. Dr Pusey recommends that the offender engage in evidence based mental health treatment for a period of six to 12 months to support his continued development of insight into his identified psychological vulnerabilities and the role they played in his offending behaviour, provide him the opportunity to develop and implement more effective emotional regulation and problem solving strategies, address his historical experiences and their continuing impact of his functioning, and his capacity to remain abstinent from substance use.

Consideration

Objective seriousness

49. The offence was unplanned and occurred in the context of the offender making a legitimate noise complaint about the victim playing loud music in the early hours of the morning.

50. There is no evidence in the agreed facts as to where the sharp object that injured the victim came from, or how it was introduced into the altercation. There is also no evidence as to who the aggressor was in the altercation, except to say that the victim moved towards the offender after he had told him to “get out”. The offender sustained injuries in the altercation and his blood was located in the stairwell and in his own unit.

51. The offender asserted to Dr Pusey that the victim was the aggressor and that the offender acted in self-defence except for the last stab wound. The offender’s assertions are untested and I do not accept them.

52. The state of the evidence does not allow me to make comprehensive findings of precisely what occurred.

53. I am satisfied beyond reasonable doubt that the offender overreacted by using a sharp tool to wound the victim in the context of a neighbourhood dispute and being asked to leave. The offender’s reaction was unreasonable and out of proportion to the threat that he faced, even if he believed that it was necessary to do what he did.

54. The injuries sustained by the victim were serious.

55. The offender had a deprived upbringing marred by domestic violence, abuse and neglect. The offender suffers from PTSD which has made him hypervigilant and more likely to overreact to the situation that the offender was confronted with. In all the circumstances his moral culpability for the offence is reduced.

56. I have taken into account the maximum penalty for the offence.

Deterrence

57. General deterrence is significant in the offences before the Court. The penalty imposed must signal to others contemplating similar crimes that they will be met with significant punishment.

58. There is also a need for specific deterrence, but it is reduced to some extent. The offender has an extensive criminal history, but he has managed to break the cycle and stay out of trouble for more than 10 years. A lengthy term of imprisonment could cause him to revert to his previous ways and that would not benefit the offender or the community.

Aggravating factors

59. The offence was committed in the home of the victim: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

60. The offence involved the actual use of a weapon: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

61. The offender has demonstrated that he has good prospects of rehabilitation: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999. After a torrid history of difficulties in custody that saw the offender serve most of his last two significant sentences without parole, the offender has managed to live a law abiding life in the community by abstaining from drugs. Unlike his prior offences, he did not set out to commit this offence to obtain money to buy drugs. Whilst his rehabilitation has been unorthodox, it has nevertheless been effective. This is also supported by the fact that he has had only one custodial infringement while he has been on remand, by comparison to the very long list of infractions he committed during his prior sentences.

61. I have taken into account the conditions imposed on prisoners in New South Wales in response to the COVID-19 pandemic, which I accept may continue to be imposed for some time into the future. I am satisfied that the offender’s time in custody has been made more onerous by the restrictions imposed to deal with the COVID-19 pandemic, his mental condition and his protection status.

62. The offender has been in custody since the date of his arrest on 30 May 2023. I will backdate the sentence imposed to the date of his arrest to take into account the offender’s presentence custody.

Penalty

64. Mahmoud Elkaddour is convicted.

65. I have considered s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

66. I make a finding of special circumstances. The offender is at significant risk of institutionalisation and/or reverting to a pattern of offending. He will require support in reintegrating into the community and these factors warrant a longer time on parole.

67. Taking into account the discount for the plea of guilty, I impose a term of imprisonment of 2 years and 6 months with a non-parole period of 18 months to date from 30 May 2023. The non-parole period will expire on 29 November 2024 and the head sentence will expire on 29 November 2025.

68. The offender is to be released on parole on 29 November 2024.

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Decision last updated: 30 October 2024