R v Hijazi & Hijazi

[1997] QCA 167

[1997] QCA 167

COURT OF APPEAL
McPHERSON JA
MOYNIHAN J

de JERSEY J

CA No 119 of 1997

No 120 of 1997

THE QUEEN
v.
FOUAD HIJAZI and

MOHAMED HIJAZI Applicants

BRISBANE
..DATE 03/06/97
030697 T13/MC22 M/T COA115/97
MOYNIHAN J: The applicants for leave to appeal against sentence
in this case were indicted on two counts, the first being doing
unlawful grievous bodily harm with an alternate count of assault
occasioning bodily harm. Each was convicted on the first count.

The applicant Fouad Hijazi was sentenced to two and a half years imprisonment and the applicant Mohamed Hijazi to two years imprisonment.

The circumstances in which the offences occurred were briefly these. Fouad Hijazi owned and operated a wrecking business. The applicant Mohamed was his brother and was visiting the premises at the time when the complainant entered to return a wheel rim which his son had previously purchased on the basis that the wheel rim was not in a satisfactory condition. The money was refunded. There was then a series of events concerning which there were various versions. Ultimately there was an assault or what might in fact be described as a series of assaults.

The complainant suffered a fractured nose, fractured right frontal bone, deviated septum, bruising to the right side of the face, swollen eyes, a lump on the back of the head, a fractured wrist and abrasions to various parts of his body. There was evidence that more than one blow was probably involved, that the, what I will call, the injuries to the nose involved the application of a considerable force.

It is likely that one of the significant blows was a kick probably inflicted by Fouad and probably while the complainant was lying on the ground. There was also evidence that 030697 T13/MC22 M/T COA115/97

bystanders had sought to intervene to bring an end to the affair but the applicants persisted with the outcome as I have outlined.

In the circumstances the defence of provocation arose for the jury's consideration only in relation to the alternative count on the indictment. The trial Judge however dealt with the matter on sentence among other things on the basis that it seemed to him that there must have been some reason for the attack, whether as a result of a racist remark or something else he was not able to say, but that he was prepared to accept that there must have been some explanation for what he, the sentencing Judge, described as a sustained violent attack.

The sentencing Judge adverted to the potential harshness of the imposition of a term of imprisonment particularly on Fouad Hijazi but also by inference on Mohamed. He, as I say, acknowledged that there was a significant effect on business and family as a consequence of the imposition of a term of imprisonment. There was evidence before him as to that and it was stressed before us it related to the fact that there were a number of children, that Fouad had recently acquired the business, that borrowed moneys were involved in the operation of the business, and in relation to a dwelling house, a mortgage I think over a dwelling house. So those matters were before the sentencing Judge and he adverted to them.

The differentiation in the sentence, two and a half years for Fouad and two for Mohamed, is explicable in terms of a conclusion as to the different roles that they played. It was 030697 T13/MC22 M/T COA115/97

accepted before us that the sentences imposed were within range.
The argument focused on whether recommendations for earlier

eligibility of parole ought to have been made. The sentencing

Judge adverted to and declined to make any recommendation.

Among the significant considerations relevant to that is the fact that on 14 April 1993 Fouad had been sentenced to 12 months imprisonment suspended for a period of two years in respect of an offence of causing grievous bodily harm with intent to do grievous bodily harm. In the events founding that conviction he acted in conjunction with another of his brothers, and it will be appreciated that the offence in issue here took place not all that long after the suspended term had expired.

Mohamed Hijazi was sentenced on 18 September 1991 to a good behaviour bond and compensation in respect of an offence of assault occasioning bodily harm and again he acted in conjunction with another one of his brothers in the events giving rise to that conviction. The circumstances of each offence bear comparison with those of the offence in issue here.

To my mind they are significant considerations. When it comes to a recommendation for early eligibility the sentencing Judge has to weigh competing considerations. It is clear from his remarks and by reference to the submissions and evidence that was led in the trial that the sentencing Judge did advert to the relevant considerations. He exercised his discretion in a way adverse to the applicants.

030697 T13/MC22 M/T COA115/97
I am not persuaded that it has been demonstrated that he was
wrong in doing so. It may be that other options were open but
he chose not to exercise them having regard to the circumstances
of the matters before him.

Reference was made in the course of submissions to a number of other cases of assaults having various consequences where recommendations for early eligibility were made. They included cases where the assault could be said to be of a more serious nature and where the injuries that resulted could be said to be of a more serious nature. They were also recommendations which reflect variations in the personal circumstances of the persons in respect of whom they were made. It might be said, at least in respect of some of those cases, that a different view in terms of the making of a recommendation might easily have been taken.

I find those cases of little assistance here considering as I do that such a recommendation depends very much on the circumstances of the particular case and to demonstrate a basis for this Court interfering with the exercise of the discretion it must be shown that the discretion miscarried or that the outcome could not reasonably be said to have been open.

As I have already indicated I do not consider that those conditions have been satisfied in respect of these cases and in each case I would refuse the application for leave to appeal.

McPHERSON JA: I agree with what Mr Justice Moynihan has said. By way of emphasis what in my opinion goes against the two 030697 T13/MC22 M/T COA115/97

applicants in respect of the matter of parole is that neither of them is any longer a young man and each has a prior conviction for an offence involving violence not dissimilar to this now before us which in the case of the applicant Fouad was not remote in time. I agree with the order proposed.

de JERSEY: I also agree. The applicant Fouad will be entitled to parole consideration after 15 months. Mohamed will be entitled after 12 months. Mr Di Carlo's ultimate submission was that by adding a recommendation for early parole approximately three months and four months respectively should be deducted from those periods which now have to be served. In principle I would find it very difficult, if that were to be the only adjustment, to conclude that the approach taken was manifestly excessive. That aside, the critical features to my mind which rightly denied the applicants an early recommendation here were their age, the seriousness of the attack, and the circumstances of the previous offences.

McPHERSON JA: The order will be as I have stated it namely that both applications for leave to appeal against sentence are dismissed.

-----