R v Kassouh

[2024] NSWDC 441

District Court

New South Wales

Medium Neutral Citation:

R v Kassouh [2024] NSWDC 441

Hearing dates:

20 September 2024

Date of orders:

20 September 2024

Decision date:

20 September 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 4 years 6 months imprisonment with a non-parole period of 2 years 8 months

Catchwords:

CRIME — Domestic violence — Stalking or intimidation — Break, enter and commit serious indictable offence — Circumstances of aggravation

CRIME — Violent offences — Assault occasioning actual bodily harm — Detain for advantage — Choking without consent — Use offensive weapon to commit indictable offence

CRIME — Violent offences — Back up offence — Robbery — Not guilty

CRIME — Violent offences — Common assault — Finding of guilt

CRIME — Domestic violence — Breach of Apprehended Domestic Violence Orders — Finding of guilt — Back up offence

TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Driving recklessly furiously — Back up offence withdrawn and dismissed

SENTENCING — Aggravating factors — Presence of children — Record of previous convictions — Breach of Apprehended Domestic Orders

SENTENCING — Guidelines for sentencing

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Objective seriousness — Purposes of sentencing — Moral culpability

SENTENCING — Sentencing procedure — Sentence after trial — Instinctive synthesis — Assistance in the facilitation of trial procedure

SENTENCING — Subjective considerations on sentence — Acquired Brian injury — Mental Health Disorders —Adjustment Disorder — Drug addition — Harsh discipline in childhood

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Browning v R [2015] NSWCCA 147

Cahyadi v R [2007] NSWCCA 1

Cherry v R [2017] NSWCCA 150

Christov v R [2009] NSWCCA 168

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Eaton v R [2023] NSWCCA 125

Engert v R (1995) 84 A Crim R 67

Hamidv R [2006] NSWCCA 302

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316

Paterson v R [2021] NSWCCA 273

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Queen v Pham [2015] HCA 59; (2015) 256 CLR 550

R v Dunn [2004] NSWCCA 346

R v Knight [2005] NSWCCA 253

R v MAK; R v MSK [2006] NSWCCA 381 (2006) 167 A Crim R 159

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

Tepania v R [2018] NSWCCA 247

The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256

Texts Cited:

W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497

Category:

Sentence

Parties:

Ahmad Kassouh (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
G K Hoare (for the offender)

Solicitors:
Douglass and Ford Criminal Lawyers (for the offender)
T George solicitor advocate for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/19223

JUDGMENT

Introduction

1. On 1 March 2024, a jury of 12, sitting at Bega District Court, found Ahmad Kassouh guilty of six counts relating to domestic violence crimes against his then partner. The jury found him not guilty of three counts. He must have the full benefit of those acquittals.

2. There are however remaining, two back-up charges before the Court pursuant to s 166 Criminal Procedure Act 1986 (NSW). They relate to counts where not guilty verdicts were returned:

• Sequence 1: Assault; and

• Sequence 14: Robbery.

3. As is his right, Kassouh maintains he is not guilty of those backup charges. I am required to deal with those matters: Criminal Procedure Act 1986, s 167. I do so only on the basis of the evidence given at trial, as leave was not sought to call additional evidence: Criminal Procedure Act 1986, s168.

4. Sequence 1: The assault – having heard submissions in regard to this matter, I reject the accused's denial and accept the complainant's evidence which proves beyond reasonable doubt that she was assaulted by being punched to the lip.

5. Sequence 14: The robbery – the jury acquitted Kassouh of the aggravated robbery, Count 4, but convicted of its alternative Count 5, detain for advantage. Having heard submissions, while I accept the complainant's evidence about her distress at the time, there was some confusion in my mind in relation to why only some of the money withdrawn was handed to Kassouh. The doubt the jury had about the element in Count 4 could, and in my opinion did, relate to the robbery element. Kassouh should have the benefit of that doubt. I find him not guilty of Sequence 14.

6. There are also four related offences of contravening prohibitions and restrictions in an Apprehend Domestic Violence Order (‘ADVO’) before the Court pursuant to s 166 Criminal Procedure Act, Sequences 4, 7, 11 and 21. I am required to deal with those matters: Criminal Procedure Act 1986, ss 167, 168 . On my own view of the facts, the only finding that could be made that is consistent with the jury verdicts, is that each breach offence is proved beyond reasonable doubt.

7. The matters for sentence today are:

• Indictment Alternative Count 3 – Intentionally choke or strangle the complainant without her consent: Crimes Act 1900 (NSW), s 37(1A); maximum penalty 5 years imprisonment.

• Indictment Count 5 – Detaining the complainant without her consent with the intention of obtaining an advantage, namely money: Crimes Act, s 86(1)(b); maximum penalty 14 years imprisonment.

• Indictment Count 6 – Assaulting the complainant occasioning her actual bodily harm: Crimes Act, s 59; maximum penalty 5 years imprisonment.

• Indictment Count 7 – Intimidation with intent cause fear of physical or mental harm: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1); maximum penalty 5 years imprisonment.

• Indictment Count 8 – Breaking and entering the complainant's home, knowing she was inside to intimidate her: Crimes Act, s 112(2); maximum penalty 20 years imprisonment; standard non-parole period 5 years.

• Indictment Count 10 – Using an offensive instrument (a motor vehicle) intending to end intimidate the complainant: Crimes Act, s 33B(1); maximum penalty 12 years imprisonment.

• Sequence 4 – Contravening prohibitions and restrictions in an Apprehend Domestic Violence Order: Crimes (Domestic and Personal Violence) Act, s 13; maximum penalty 2 years.

• Sequence 7 – Contravening prohibitions and restrictions in an Apprehend Domestic Violence Order: Crimes (Domestic and Personal Violence) Act, s 13; maximum penalty 2 years.

• Sequence 11 – Contravening prohibitions and restrictions in an Apprehend Domestic Violence Order: Crimes (Domestic and Personal Violence) Act, s 13; maximum penalty 2 years.

• Sequence 21 – Contravening prohibitions and restrictions in an Apprehend Domestic Violence Order: Crimes (Domestic and Personal Violence) Act, s 13; maximum penalty 2 years.

• Sequence 1 – Common assault: Crimes Act, s 61; maximum penalty 2 years.

Facts for sentence

8. Kassouh and the complainant had known each other for many years. In 2021 they formed a relationship, although they maintained separate homes in nearby towns on the NSW South Coast.

9. In November 2021, Kassouh was sentenced for Domestic Violence offences committed against the complainant. Community Corrections orders and an Apprehended Domestic Violence Order (‘ADVO’) were made. The relationship continued. The complainant told the Court that he was a “good partner” when he kept to the ADVO conditions imposed.

10. The events, the subject of counts for sentence, occurred in January 2022. While the jury gave Kassouh the benefit of the doubt on a number of matters related to elements of some offences, they, by their verdicts, obviously accepted what the complainant told them. I agree with their assessment and can safely base my decisions on what she said in her interview with police that was played as her evidence-in-chief.

Short summary of facts

11. During the night of 19 January 2022 or early morning of the 20th, Kassouh was abusing and scaring the complainant. He pushed her and punched her face.

12. He acted like he was going to cuddle her but instead he choked her. He put his hands around her neck and put a lot of pressure on her throat.

13. He then took her by car to the ATM at a nearby bank. There, he made her withdraw some cash and give him some of it. He pulled her back to the car by her hair. When she was at the ATM, she made a sign to the camera indicating she was there under duress.

14. On the 21 January 2022, the complainant and her children were staying at the offender's home. They woke early in the morning. Her children were annoying him by the noise they were making, so he told her to “pack her bags.” He then he picked up a walking cane and hit her thigh, causing a large bruise.

15. Kassouh then drove her and the children back to their home town. On the way he deliberately steered the vehicle swerving towards other oncoming cars and the guard rail as if to crash it.

16. After dropping the complainant and her children at their home he left but soon after he returned. She did not want to let him in, but he induced the complainant to open the door. He went to come in, but she closed the door against him. He put his foot down to prevent her doing so and then pushed against the door, forcing entry. He then chased her to a bedroom and took her phone from her.

17. She was able to get away. A friend drove up to her home. The complainant and her children ran to her friend's car. As they drove away, Kassouh drove his car behind them in an intimidatory manner by driving it very close behind the car her friend was driving on a number of occasions.

18. As this was occurring her friend called triple-0. They parked in the middle of town. Kassouh's intimidatory behaviour continued after they had parked the car.

19. Police met the complainant at a chemist in the main street where she had gone for refuge. Kassouh was arrested. When the allegations were put to him in a formal police interview he gave an exculpatory account. Obviously, the jury rejected his version of events.

Objective seriousness

Breach of ADVOs

20. Each of the offences was committed in breach of an ADVO, a form of conditional liberty, designed to protect the complainant and her children from further harm. She trusted Kassouh to keep to the terms of that order. She thought she loved him and that he loved her. He breached her trust in him: The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256. In such matters particular attention must be given specific deterrence, general deterrence, and denunciation: Browning v R [2015] NSWCCA 147 at [4]-[9]; Cherry v R [2017] NSWCCA 150.

21. As I will be sentencing Kassouh for the separate breach offences, care needs to be taken that I do not double count when this aggravating factor is taken into account. That care must also be taken when assessing each individual offence, which although discrete, all occurred in the context of ongoing and persistent, violent, threatening and controlling behaviour by the offender.

Other counts for sentence

22. Count 3 – The offender was found not guilty of Count 2 which contained an additional element that cannot be taken into account. But to strangle someone, puts them at extreme risk. While the complainant here did not lose consciousness, she came close to it. The force of the attack left marks and terrified her. She was not to know if this was to be her last moment. It was as serious example of its type.

23. Count 5 – The detaining at the ATM took some minutes. She was subject to threats. She was kept under his control in the car and at the ATM. She was dragged back to the car by her hair. She was intimidated. It was as serious example of its type.

24. Count 6 – The complainant was assaulted with a makeshift weapon. It left a relatively large bruise. The attack was targeted and designed to cause pain, but the physical harm was transient. The attack also had a psychological component. It was another example of the manner in which Kassouh exercised control over his victim. Again, a serious offence.

25. Count 7 – The act of intimidation was by very dangerous driving that put the complainant and her children at considerable risk. Other road users were also put at risk. The offence was committed without regard for public safety. It was a particularly serious example of this sort of offence.

26. Count 8 – The complainant was back in her own home where she was entitled to feel safe. She was not. Kassouth used a trick to get her to open the door. He forced the door against her and having forced his way in her home, Kassouh continued his intimidation of the complainant, further compounding her fear of him. He knew her children were present. His behaviour was another example of the manner in which Kassouh exercised control over his victim.

27. Section 112(2) Crimes Act covers a very broad spectrum including some very serious indictable offences. This was not a serious example of a s 112(2) offence but it was still a serious crime against a vulnerable a women who just wanted to be left in peace with her children.

28. Count 10 – A motor vehicle is an offensive instrument that can cause considerable harm. Not for the first time, Kassouh used a car to put the complainant, her children and this time her friend at risk. They were all understandably distraught as a consequence, as the evidence at trial revealed. While the risk of a collision was present, it was unlikely, given relatively the low speeds and distances involved, that physical harm would have resulted. While the risk of injury from a motor vehicle collision was low, the psychological impact of this offending, in context, was high. It was a serious offence, but relative to the broad range of matters that could be captured by this offence, low in the range. Although there is a considerable difference between the maximum penalties, this use of a motor vehicle offence was, considering its objective seriousness, less serious that Count 5.

29. Sequence 1 (backup to Count 1) – Kassouh hit the complaint to her face. He targeted her head. It was a demeaning act intended to demean and ensure her compliance. Had it stood alone, a custodial sentence may not have been required but context is everything. Only a short custodial sentence could properly do justice to the seriousness of this act.

30. Crimes such as these are treated with real seriousness because domestic violence, in all its forms, is unacceptable behaviour. Proper recognition must be given to the real harm crimes such as this do to their victims, the children of victims, and the community in general.

31. When sentencing a “judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case”: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] (McHugh J).

32. Those factors should not be double counted or compartmentalised, nor should a judge engage in a staged approach to sentencing. However, in recent years considerable focus has been placed on the need for a proper assessment of the objective seriousness of the offences, as a sentence must be proportionate to what was done. Despite what fell from the High Court in Markarian it has been said that “an assessment of objective seriousness of an offence is essential in setting the parameters of an appropriate sentencing outcome”: Eaton v R [2023] NSWCCA 125 at [60].

33. Kassouh has a brain injury and has suffered from the impacts of it since 1990. That permanent injury and disability mean he has a significant and permanent incapacity to regulate his emotions and reason in the same way as a person who does not have those deficits, as the report of Dr Mc Swiggan notes (see below). Given the nature of the offending those incapacities, while personal to the offender, are factors causally connected with the commission of the offences: Tepania v R [2018] NSWCCA 247 at [112]; Paterson v R [2021] NSWCCA 273 at [29]. They must be taken into account. They operate to reduce the objective seriousness of each offence.

Victim impact

34. I have heard a Victim Impact Statement read by the complainant this morning. In it she told the Court how her perceptions of safety had been totally shattered by these events. She said she was “isolated, controlled and broken” by Kassouh. Her drug use escalated. Her mental health suffered, and she spent time in a mental health unit. Her children went to her mother and are now in care. She spoke of the long journey she is undertaking trying to heal from the damage caused. She has been in rehabilitation for a long time, but she still lives in constant emotional fear. She has to work on her fears but feels she is under threat, every day. She is hoping to rebuild her life, her self-confidence and her self-esteem. She concluded by saying, “I will not allow you to break me or have power [over] me moving forward”.

35. I have no difficulty accepting what she said. The statement serves the very practical purposes of drawing to the offender's, the Court’s and the community's attention, the personal and harm caused by these crimes.

36. The Crown submitted that the emotional harm suffered by the complainant was substantial: Crimes (Sentencing and Procedure) Act, s 21A(2)(g). With respect, I cannot accept that submission. The harm done here was sadly not an atypical response to crimes such as these.

37. It is well recognised that domestic violence contributes to the subordination of woman in particular and typically involves the exercise of power, control and dominance, control that can continue even after a relationship ends: Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316; Hamid [2006] NSWCCA 302 at [77].

Maximum penalties and standard non-parole periods

38. Careful attention to the maximum penalties, and where applicable a standard non-parole period, is required. I am required to give content to the standard non-parole period. In doing so I am required to assess objective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending unless there is a causal relation between the offender’s mental condition and the commission of the offence: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] and [54]. However, as the High Court in Muldrock at [28] made clear, neither can I engage in a staged approach to sentencing. That assessment must all be synthesised along with other relevant matters.

39. Both the maximum penalties and standard non-parole period provide sentencing measures to be balanced with all other relevant factors. They also invite a comparison between this case and other cases. The consistent application of principle requires careful consideration be given to other decisions of this and appellate courts but “…sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases”: Queen v Pham [2015] HCA 59; (2015) 256 CLR 550 at [46].

Facilitating the course of justice

40. At the commencement of the trial, Kassouh agreed to 34 specific facts: Evidence Act 1995 (NSW), s 191. Those Agreed Facts saved a number of days of trial time. In addition, the trial was conducted in a very efficient way showing his willingness to facilitate the course of justice by refraining from resorting to dilatory and technical objections of no merit. Only issues of substance were left for the for jury to determine. I will impose a lesser penalty for each indicated offence than was otherwise appropriate given the considerable degree to which the administration of justice has been facilitated by the defence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A (1); R v Doff [2005] NSWCCA 119 at [58(c)]; Christov v R [2009] NSWCCA 168. That reduction will be synthesised along with all other relevant matters. “While indulgence in arithmetical deduction” by a sentencing judge is “not absolutely forbidden” there is no need here, for the reduction to be expressed as a time period or percentage: Markarian at [39]. Further, the lesser penalty cannot not be unreasonably disproportionate to the nature and circumstances of the offence: Crimes (Sentencing Procedure) Act, s 22A(2).

Criminal record

41. Kassouh's criminal record starts about the time he left hospital after his 1990 motor vehicle accident. Since 1991, he has been regular contact with the police and courts in Queensland, NSW, South Australia, and the ACT. His offences include; drug, driving, domestic violence and other assaults. He has only spent very short periods in custody. His record means he cannot be extended the leniency often given to first offenders.

42. These matters represent an escalation in the seriousness of his offending. They occurred when he was on a bond to be of good behaviour after having committed a number of offences against this complainant in November 2021. The breach of those orders is matter that operates to aggravate the sentence that must be imposed.

43. Kassouh was arrested on 22 January 2022. He was held in custody until 18 June 2022 when was granted bail. He breached his bail and went back into custody on 29 April 2023 but I gave him bail on 3 May 2023. He spent 155 days on remand prior to 27 January 2024.

44. On 27 January 2024 he again breached his bail by committing further offences. He has been in custody ever since. Non-custodial penalties were imposed for those other offences. He must have the full benefit of that time in custody: Crimes (Sentencing Procedure) Act 1999, s 24(a). Accordingly, this sentence will date from 25 August 2023.

Case for the offender

45. I have received a Sentence Assessment Report (‘SAR’) dated 6 March 2024, and a report from Dr McSwiggan, a consultant neuropsychologist dated 26 April 2024, Sentence Exhibit 1.

46. Kassouh did not give evidence. I cannot accept his assertions of innocence at trial. He is not to be punished for exercising his right to trial, but he cannot get the benefits often given for expressions of remorse and early pleas of guilty.

47. That said, his personal history, while sad, is uncontroversial and Dr McSwiggan's opinions were professional, not reliant on Kassouh's version of the events.

48. Kassouh was born in 1969. He is now 55. He has family support from his mother and sister. He grew up in rural NSW. His parents were market gardeners. He describes a strict, controlled upbringing with regular physical punishments. He completed and attended school but was then sent to Pakistan and Saudi Arabia for study, religious and cultural training. He returned to Australia in 1987 and was employed until a car accident when he was 21 years old. Since then, he has been in receipt of a disability support pension.

49. He has two children from a previous relationship. He was acting as a carer for a friend at time bail was revoked. He plans to return to the South Coast on release.

50. He reports long-term cannabis use but denied using other illicit substances or alcohol. He did, however, have a history of benzodiazepine dependence reported in 2017. Until he came into custody, he was prescribed benzodiazepines and pain medication, which are no longer available to him as they cannot be made available to prisoners.

51. Kassouh acquired a severe traumatic brain injury (‘ABI’) following a serious motor vehicle accident in 1990. Dr McSwiggan was asked to report on links between the offending and his personality and his psychiatric and psychological condition. She was asked to propose a treatment plan and comment on his risk of reoffending and rehabilitation.

52. Kassouh reported interrupted sleep and loss of appetite, which she said were symptoms consistent with his experiencing an Adjustment Disorder with anxious depressed mood.

53. Dr McSwiggan found no evidence of a grossly overt psychotic thought disorder, although Kassouh appeared agitated and irritable and expressed some suicidal ideation. His symptoms including anxiety and panic attacks were consistent with a severe traumatic brain injury. She concluded that this history suggested poor regulation of emotion. His persistent cognitive and behavioural deficits might, she said, led to “likely impulsive and out of proportion responses with reactive aggression”.

54. Kassouh will need treatment, including engaging in psychological therapy. Any medications should not be as addictive as the sedatives previously prescribed. He will, however, need to cooperate with therapy. This, Dr McSwiggan said, may be difficult given he maintains his denial of the offending.

55. While she suggests that this denial may be related in part to his limited reasoning capacity and his fixed views resulting from his severe brain injury, it also means has “no start point for change”. As a consequence, it seems unlikely he will engage in treatment. She believes his other conditions are in controlled remission and that his prospects of rehabilitation with treatment would be more optimistic than many others. But given he has no starting point, she is guarded about his prospects, should he enter into any domestic arrangements.

56. A copy of Dr Mc Swiggan's report should go to Community Corrections with the warrant.

SAR

57. The SAR dated 6 March 2024 indicates Kassouh has no insight, as he denies any offending and blames victim for her malicious complaints. The report writer does note however, That Kassouh is willing to engage in interventions, despite his poor impulse control, due to the ABI. He has however engaged with supervision in the past and programs can be made available to him, such as EQUIPS, focusing on domestic violence. He will need to be monitored in the community to ensure compliance with any Apprehended Domestic Violence Orders (‘ADVO’).

Submissions

58. I am indebted to Mr George, solicitor advocate for the Director of Public Prosecutions, and Mr Hoare, counsel for Kassouh, for their comprehensive written and oral submissions. I hope this judgment does justice to them. I do not intend to explicitly refer to each of the matters raised but I have considered and addressed them in coming to my determinations as to the appropriate sentences in each matter and the aggregate sentence to be imposed.

Structure of the sentence

59. I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall aggregate sentence is just and appropriate to the totality of the offender's crimes: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63]. The aggregation of all of the sentences must be a just and appropriate measure of the “total criminality involved”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at [307]-[308]; Cahyadi v Regina [2007] NSWCCA 1.

60. The same purposes of sentencing apply to each offence and those purposes overlap. The offending occurred over a number of days as part of an extended episode of criminality. Each count involved discrete acts of criminality with many common features. No one sentence could comprehend and reflect the criminality of the others given discrete and separate offending with different, although accumulating, consequences to the complainant. There should be some independent punishment for each offence, although considerable concurrency is still required.

61. The severity of the combined sentences should not operate to destroy prospects of rehabilitation and reform. Further, it is recognised that the severity of a sentence increases at a greater rate than any increase in the length of the sentence: R v MAK; R v MSK [2006] NSWCCA 381 (2006) 167 A Crim R 159. That said, public confidence in the administration of justice requires the Court to avoid any suggestion, that what is, in effect, being offered is some kind of a discount for multiple offending: R v Knight [2005] NSWCCA 253 at [112].

62. The evidence about Kasouh’s need for continuing treatment, his vulnerabilities as prisoner with a brain injury, and his need help for adjusting to normal community life after his serving the custodial portion of the sentence, all provide a basis for a finding of special circumstances. As the SAR notes, he will need to complete domestic violence programs. He will need monitoring while in the community, particularly if he forms future domestic relationships. However, in so finding, I am mindful of a requirement that the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

63. It also important to note that studies reveal that offenders who received parole supervision upon release from custody take longer to commit a new offence, were less likely to commit a new indictable offence, and committed fewer offences than offenders who were released unconditionally into the community: W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497; 2011, BOCSAR.

Synthesis

64. While the impact of the offender's brain injury on his offending must considered, his ABI also operates to reduce his moral culpability as his capacity to reason, and appreciate the full wrongfulness of his actions was impaired as a consequence of his brain injury: Muldrock at [54],

65. An ABI should be dealt with in the same manner with which sentencing courts treat mental illnesses: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. That is, it requires a “sensitive discretionary decision”: Engert v R (1995) 84 A Crim R 67 (Gleeson CJ).

66. An ABI can make the offender a less appropriate vehicle for general deterrence with a consequent reduction of the need to denounce the crime. But care must be taken here. Given the prevalence of, and danger posed by, domestic violence offences, the nature of the offending here is such that general deterrence must still remain an important consideration.

67. Courts also recognise that someone with an ABI faces a significantly greater burden associated with serving a custodial sentence, which may as a consequence, be more onerous.

68. In some cases, there should be a reduction in the need for specific deterrence but there can also be, as here, countervailing factors. Kassouh needs to be encouraged to engage in much needed rehabilitation therapy as recommended by Dr McSwiggan. To put it bluntly, he has to understand he must “cooperate with therapy.”

69. He also needs to engage with Community Corrections and participate in programs designed to help him recognise the danger he poses because of his ABI. He must learn to apply that knowledge. He will need an incentive to do so. A possible return to gaol may be such an incentive: De La Rosa at [177].

70. Full weight must be given to the matters raised in mitigation, but a gaol sentence of some length is still required. This can create a dilemma – the need for community protection, supported by growing community perceptions demand that men who assault women in a domestic context be punished severely.

71. The problem is the way we have traditionally done this is by removing men from our community and placing them in gaol. As a deterrent to violent behaviour, gaols have been and will continue to fail. Gaol, by breaking pro-social bonds and encouraging links with other criminals, in an intrinsically violent environment, rather than discouraging violent crime, it can have a crime producing effect. Simply put, gaols are an ineffective way of addressing the underlying causes of domestic crime.

72. That said, the High Court in Munda v Western Australia [2013] HCA 38, while recognising that severe sentences are likely to be of little utility in reducing the incidence of crimes, especially crimes of passion, also made these important points:

1. It would be wrong to accept that a victim of domestic violence is somehow less in need or deserving of such protection and vindication as the criminal law can provide.

2. The proper role of the criminal law is not limited to the utilitarian value of general deterrence.

3. Courts have an obligation:

1. To vindicate the dignity of each victim of violence;

2. To express the community's disapproval of that offending; and

3. To afford such protection as can be afforded by the State to the vulnerable against repetition of violence.

73. Further, denunciation is required because women should not be deprived of the protection which it is assumed punishment provides: Munda at [134] (Bell J). This is because:

1. Domestic violence offences involve an exercise of coercive power and control over the victim.

2. As here, (even making allowance for his brain injury) the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim.

3. Some of the offending was in the presence of children. Offending in the presence of children carries with it a real, and well documented, risk that any trauma they witness or feel may impact on their future development.

4. The continued threat a victim never feels truly safe as they have been, and may again in the future, be personally targeted: R v Dunn [2004] NSWCCA 346.

Orders

74. Not Guilty – Sequence 14 – Robbery

75. Sequence 12 – back up offenses pursuant to s 166 Criminal Procedure Act – withdrawn and dismissed.

76. There will be an aggregate sentence of imprisonment. Its non-parole period will reflect a finding of special circumstances: Crimes (Sentence Procedure) Act, s 44(2B). The following sentences are indicted:

• Intentionally choke – 1 year imprisonment.

• Detaining the complainant without her consent – 1 year 6 months imprisonment

• Assaulting the complainant occasioning her actual bodily harm – 9 months imprisonment

• Intimidation with intent – 1 year 9 months imprisonment

• Breaking and entering the complainant's home – 2 years 6 months imprisonment NPP – 1 year 10 months.

• Using an offensive instrument – 1 year 6 months imprisonment.

• Sequence 4 – Contravene an ADVO – 3 months imprisonment.

• Sequence 7 – Contravene an ADVO – 3 months imprisonment.

• Sequence 11 – Contravene an ADVO – 3 months imprisonment.

• Sequence 21 - Contravene an ADVO – 3 months imprisonment.

• Sequence 1 – Common assault – 2 months imprisonment.

77. There will be an aggregate sentence of 4 years 6 months imprisonment. It will commence on 25 August 2023. There will be a non-parole period of 2 years 8 months meaning that Kassouh will be eligible for parole on 24 April 2026. There will be a parole period of 1 year 10 months; which means the total sentence will expire on 24 February 2028.

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Decision last updated: 23 September 2024