R v Harmouche
[2015] ACTSC 381
•24 November 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Harmouche |
Citation: | [2015] ACTSC 381 |
Hearing Date(s): | 12 November 2015 |
DecisionDate: | 24 November 2015 |
Before: | Burns J |
Decision: | See [27]-[29] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – causing grievous bodily harm by unlawful or negligent act or omission. |
Legislation Cited: | Crimes Act 1900 (ACT) s 25 |
Cases Cited: | R v Byrne [2015] ACTSC 113 R v Neish (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 24 May 2013) R v Srikandakumar (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 8 April 2014) |
Parties: | The Queen (Crown) Saed Harmouche (Offender) |
Representation: | Counsel Mr K Lee (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi (Offender) | |
File Number(s): | SCC 59 of 2014 |
BURNS J:
Saed Harmouche, you appear before me today for sentence with respect to one count of causing grievous bodily harm to Turki Alshehri by an unlawful or negligent act contrary to s 25 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is five years’ imprisonment.
You were initially charged with the more serious offence of recklessly inflicting grievous bodily harm. The matter first went before the Magistrates Court on 26 November 2013. On 9 November that year, you entered a plea of not guilty to that charge. The matter was eventually committed to this Court for trial on 20 March last year. On 27 March this year, the Crown filed a new indictment in the matter, adding an alternative count of causing grievous bodily harm by an unlawful or negligent act or omission. The matter was set down for trial by judge alone commencing on 2 April this year. On that date, you were arraigned on the indictment dated 27 March 2015. Count 1 on that indictment was a charge of recklessly inflicting grievous bodily harm on Turki Alshehri and Count 2 was an alternative count of causing grievous bodily harm to that person by an unlawful or negligent act or omission. You entered a plea of not guilty to Count 1 and a plea of guilty to Count 2. On the second day of the judge alone trial, I found you not guilty of Count 1 because I was not satisfied beyond reasonable doubt that you had the requisite intention for that offence. I published my reasons with respect to that verdict on 5 August this year. It now falls to me to sentence you with respect to Count 2.
Facts
I set out in detail the evidence that was taken at your trial in my reasons of 5 August this year and I will not now repeat the entirety of that evidence. Suffice to say, on 21 July 2013, you punched the victim on the dance floor of Meche Nightclub in Civic. The victim fell backwards and fell to the ground, hitting his head on the stage on his way down. The victim suffered severe traumatic brain injury as a result.
A number of the witnesses called at your trial were of no particular assistance in determining how many times you struck the victim because they did not directly see the incident, and many witnesses were significantly affected by alcohol on the evening in question. Based on the evidence as a whole, I was satisfied that you punched the victim once to his head, causing him to fall to the ground and hit his head on the edge of the stage in the process. I was satisfied that the events occurred very quickly. I was not satisfied that you had given any consideration to how hard you were going to hit the victim or to the possibility that the victim may suffer serious injury as a consequence.
Consideration
A Victim Impact Statement dated 21 July this year was tendered at your sentence hearing. The Statement was prepared in Arabic and translated into English. The victim describes being extremely disadvantaged as a result of the incident as he has been unable to continue his studies in Australia or Saudi Arabia. He suffers from memory loss and has difficulty remembering places and recent events.
A Victim Impact Statement written by the victim’s father was also tendered at your sentence hearing. Similarly, the Statement was prepared in Arabic and translated into English. The victim’s father speaks of the restlessness, lack of sleep, anxiety and fear that his son suffers. He also states that the victim’s mother was forced to leave her job to take leave of absence for an entire year in order to care for the victim during his hospitalisation and following his discharge. She was forced to resign to continue caring for the victim. The victim’s father and the victim’s mother travelled to Australia from Saudi Arabia for the duration of the victim’s hospitalisation at their own expense, leaving behind children in Saudi Arabia. The statement also describes the victim’s mother’s extreme sadness and pain as a result of her seeing her son suffering from depression, isolation and withdrawal, as well as the interruption from his studies, and becoming unemployed due to his short-term memory problems. The victim’s father states that his son does not wish to participate in any group, social or family related activities, has a gloomy outlook and is uncomfortable with noises and discussions.
I also have before me a medical report detailing the victim’s health dated 12 October this year prepared by the Armed Forces Centre for Psychiatric Care in Saudi Arabia. It notes a history of the victim, including that the victim suffered head trauma as a result of a fighting incident after which he lapsed into a coma for about one and a half months. He recovered from the coma and remained in hospital care for about four months. The report notes that the victim was reported to have head trauma sequelae in terms of hydrocephalus and abnormal EEG findings with some neurological and ophthalmological problems, which improved on treatment. It also notes that the victim became oversensitive with low tolerance to mild stresses and developed a tendency to social withdrawal. The report notes the victim’s thinking as mildly slow, but was speaking coherently with no signs of delusions or obsessions. His cognitive functions are mildly impaired for short-term memory and occasional states of poor concentration. Psychological investigations using a personality test showed personality changes in the form of oversensitivity, social withdrawal and decreased motivation and ambitions. The victim was diagnosed with an organic mental disorder with post-traumatic personality changes and mild cognitive dysfunctions.
Three Pre-Sentence Reports (PSR) were tendered at your sentence hearing. The first is dated 16 July this year and indicates that you failed to attend scheduled interviews as directed by ACT Corrective Services, such that a PSR could not be prepared in time for your sentence hearing. Your sentence hearing was then vacated and adjourned for a number of weeks to give you an opportunity to engage with ACT Corrective Services. You were granted bail with the condition that you report to ACT Corrective Services within 24 hours and that you were to participate in the preparation of a PSR.
The second PSR is dated 1 September this year. This Report indicates that you failed to report to ACT Corrective Services in accordance with your bail conditions and you failed to attend your scheduled interviews, such that, again, no PSR could be prepared for your sentence hearing.
You failed to appear for your sentence hearing on 9 September this year and I issued a warrant for your arrest. You eventually handed yourself in to police and I granted you bail again on 22 September and set a new date for sentence hearing. Finally, you engaged with ACT Corrective Services such that they were able to prepare a substantive PSR dated 8 October this year and I take into account the contents of that Report.
You are a 25-year-old man. You are the eldest of six children and reported an enjoyable childhood with your parents, characterised by a positive and supportive environment. You continue to enjoy a loving relationship with your parents and siblings. You continue to reside with your parents and siblings at the family home.
You have completed year 12 and currently are employed fulltime as a storeman and driver.
You began consuming alcohol at the age of 18. You describe yourself as a social drinker and reported that you have not consumed alcohol since May this year. You reported that you have used cocaine once within the last 12 months but you have not consumed any other illicit drugs since then.
You apologised for your actions and displayed some victim empathy. You were able to identify that you were angry and intoxicated when you assaulted the victim. You did not minimise your actions and you took responsibility. You told the author of the Report that you should not have assaulted the victim and that the victim did not deserve to be assaulted. The author assessed you as at low risk of general reoffending but considered that you may benefit from participation in alcohol and anger management counselling.
The author assessed you as not suitable for community service or periodic detention due to the nature of your employment.
I note that you have no prior criminal history.
Your mother gave evidence at the sentence hearing, at which she spoke of you having anger issues. She also spoke of you leaving school early to work in the family business, which you were not happy in. She said that your engagement broke up earlier this year at least partly as a result of the stresses of this matter. After the engagement broke up, you were unhappy and lost interest in life. She said that you wanted to end your life and you saw no point in either life or work. I accept that it was in the context of that unhappiness and perhaps depression that you did not comply with the directions that you were given to participate in the preparation of a PSR and also did not attend court at the sentence hearing in September.
Your mother testified that having been remanded in custody in this matter had a significant impact on you. You now spend a lot more time with your family. You do not socialise as much as you used to. You have expressed remorse to your mother for your offending, which she considers to be genuine. She said also that you plan to move away from the ACT when you have an opportunity to.
I now turn to assessing the objective seriousness of the present offence. An assessment of the objective seriousness of the offence must take into account the harm suffered by the victim, the nature of the attack upon the victim and the surrounding circumstances. The victim in the present case suffered severe injuries which no doubt have had, and will continue to have, a profound impact on his life. These injuries nevertheless cannot be said to fall within the worst category of injuries that constitute grievous bodily harm. I would assess them as being in the upper range of such injuries but not amongst the worst class.
I accept that you did not intend to inflict these injuries on the victim but at the same time it would be wrong to suggest that this was simply an accident. You were much larger and stronger than the victim and you hit him when he was unaware. As such, he was particularly vulnerable. There is always a possibility of serious injury being inflicted in such an attack. Often such injuries occur as a result of the head of an unconscious or stunned victim hitting the ground but in this case, I am satisfied that it occurred as a consequence of the victim’s head hitting the edge of the stage next to which he was standing.
I accept that you are now remorseful for what you did but the telephone intercept material tendered at your trial suggests that, in the days following this offence, you were more concerned with whether police were likely to identify you as the offender than with the condition of the victim. I accept that much of what passed between you and your friends at that time was immature bravado but it does not reveal any significant concern about the victim at that time. I accept that you may not have had a full understanding of the injuries suffered by the victim and their likely continuing effect upon him at that time.
Your plea of guilty should be accepted as an early plea. I will reduce by 25 per cent the sentences which I would otherwise have imposed in order to reflect your plea. I accept that your plea evidences remorse and also has a significant utilitarian value. I consider that you have very good prospects for rehabilitation.
I was referred to a number of previous decisions of this Court where sentences have been imposed for similar offences but it is fair to say that the number of such decisions is very small and cannot be said to establish any sort of sentencing practice with respect to offences of this type. In R v Byrne [2015] ACTSC 113, the offender punched the victim once to the head, causing him to fall to the ground and hit his head. The victim suffered a significant brain injury which was almost certain to cause permanent cognitive impairment and also caused a risk of future epilepsy. The offender was 18 years old at the time of the offence and was studying at university. He was affected by alcohol but subsequently significantly reduced his consumption of alcohol. He had a significant criminal history. Refshauge J imposed a sentence of 12 months’ imprisonment fully suspended.
It is important to note two circumstances which influenced that sentence. The first was that, at the time of the offence in Byrne, the maximum penalty for the offence of causing grievous bodily harm by an unlawful act was two years’ imprisonment. At the time you committed your offence, the maximum penalty had increased to five years’ imprisonment. Secondly, the sentence imposed by Refshauge J took into account the fact that the offender in Byrne had spent some seven months in custody before sentencing.
In the course of his sentencing remarks in Byrne, Refshauge J referred to a number of other cases in which sentences had been imposed for similar offences. In R v O’Bradovic (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 December 2013), a sentence was imposed for an offence which involved similar injuries caused in a similar way to those which you caused. The offender was 38 years old and had a criminal history which was not very substantial. The victim in that matter was intoxicated and therefore was vulnerable. He was sentenced to 18 months’ imprisonment to be released after serving six months’ fulltime imprisonment. In the matter of R v Srikandakumar (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 8 April 2014), facial injuries were caused by two punches to the face. The offender was 19 years old and had no significant criminal history. A sentence of six months’ imprisonment of which three months was to be served by way of periodic detention was imposed. I note that much lesser injuries were involved in that case. In R v Neish (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 24 May 2013), which was a charge of recklessly inflicting grievous bodily harm which had a maximum penalty of 10 years’ imprisonment, a sentence of two years’ imprisonment of which three months was to be served by way of periodic detention and the balance being suspended was imposed. In that case, serious facial injuries were inflicted by punching. The offender had no prior convictions and the offender was 25 years old at the time of sentencing. Clearly the injuries were not as severe in that case as they are in the present case.
In determining the just and appropriate sentence with respect to this matter, I take into account all of those circumstances to which I have referred. I also take into account the fact that you spent some time in custody after you handed yourself in for failing to appear at the sentence hearing in September this year. I note that you have indicated that you are willing to serve a sentence by way of periodic detention.
Sentence
I record a conviction and you are sentenced to 15 months’ imprisonment, which I have reduced from 20 months in order to reflect your plea of guilty. Of that 15 month sentence, the period commencing today, 24 November 2015, and expiring on 23 May 2016 will be served by way of periodic detention. The balance of the sentence will be suspended and there will be a Good Behaviour Order for a period of two years from today with the following conditions:
(a)first, that you are to accept the supervision of ACT Corrective Services or its delegate for that period of two years or such lesser period as deemed appropriate by your supervising officer and you are to accept all reasonable directions of officers of that service;
(b)secondly, you are to undertake such counselling or programs as directed by officers of that service, particularly in relation to anger management and alcohol abuse; and
(c)thirdly, you are to report to ACT Corrective Services within 48 hours.
The first period of periodic detention will commence this Friday 27 November 2015 at 7.00 pm at the Symonston Periodic Detention Centre.
Mr Harmouche, I have imposed a sentence of 15 months’ imprisonment of which the first six months commencing today is to be served by way of periodic detention. You have an obligation to attend every weekend for periodic detention. If you comply with the terms of the orders that I have made, that is, if you attend for periodic detention for that period of six months and if you then comply with the terms of the Good Behaviour Order for the period of two years that I have imposed, then at the end of that period, the matter will be concluded and there will be no reason why you should have to serve any of that term of imprisonment by way of fulltime imprisonment. However, if you breach the orders by not attending for periodic detention or alternatively not complying with the terms of the Good Behaviour Order, then you must expect to serve a period of imprisonment by way of fulltime imprisonment.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns. Associate: Date: 15 December 2015 |
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