R v Khosravi, Alborz

[2008] NSWDC 298

CITATION:	R v Khosravi, Alborz [2008] NSWDC 298
HEARING DATE(S):	13/06/08
JUDGMENT DATE:	10 December 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Hinder police in their investigation: Convicted. Sentenced to a fixed term of imprisonment of 3 months to date from the 14th November 2006 and to expire on the 13th February 2007. Affray: Convicted. Sentenced to a fixed term of imprisonment of 18 months to date from the 14th of December 2006 and expire on the 13th June 2008. Maliciously inflict gbh: Convicted. Sentenced to a non- parole period of 3 years and 9 months to commence on the 14th June 2007 and expire on the 13th March 2011, the balance of term of 3 years expiring on the 13 March 2014.
CATCHWORDS:	Criminal Law - sentence - standard non parole offence - maliciously inflict GBH with intent to inflict GBH - affray - requesting co-offenders to hinder investigations by giving false information - teenage party at hom of absent parents - uninvited guests chased by victim afdter fracas - affray focused on victim - victim left on ground by co-offenders - offender inflicts 40cm wound on victim's back - use of broken bottle to inflict wound - GBH intended was GBH achieved - offender effected by alcohol - post offence offender incites co-offenders to give false alibi for offender to police - criminality of hinder police assessed - criminality of affray assessed - maliciously inflict GBH with intent fals in mind range of objective seriousness - plea of guilty - reasonable subjectives - offence commited whilst on s.9 bond - contrite.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act
CASES CITED:	R v Buttsworth [1983] 1 NSWLR 658 The Queen v Way(2004) 60 NSWLR 168 Hearne 124 A.crim.R. 451 at [24]
PARTIES:	Regina Alborz Khosravi
FILE NUMBER(S):	2008/21/0028
COUNSEL:	Crown: P. Thompson Defence: Adam Williams.

1. Generalisations are of limited value. Nonetheless there is much truth in the proposition that young males aged between fifteen and twenty-five are in more danger from themselves and other young men than at any other time in their lives. That danger is enhanced when alcohol and/or drugs are present. Research shows that the executive functions of the brain of eighteen and twenty-five year old males are still developing. Although that evidence is not formally before me, it is well known in the community. Consequently, alcohol, drugs and passion impair the judgment of young men to a greater degree than the same ingredients are likely to do with more mature males.

2. In this case, two young men, one a victim the other an offender, illustrate the reality of that generalisation. The victim, Matthew Reynolds, had left the relative security of a party to pursue a number of uninvited party intruders, he says, to inquire if any of them were responsible for hitting him with a beer bottle. The accused, initially as part of a group and then subsequently on his own, assaulted Reynolds in circumstances that I will return to. As a consequence of the assault Reynolds ended up in hospital with an horrendous wound to his back, and other injuries requiring treatment. As a consequence of his criminal conduct, the offender has ended up in prison. Neither young man is a winner. Both will carry the scars of the dangers each faced for the rest of his life. One because he was a victim, and the other because he was the perpetrator.

3. Alborz Khosravi is to be held accountable for his criminal acts on 16 September 2006. He formally indicated his willingness to be held accountable on 17 January 2008 when he pleaded guilty to the following charges: (a) that he maliciously inflicted grievous bodily harm with intent to do so; (b) affray; and thirdly hindering the investigation of a serious indictable offence by knowingly giving false information to the police. In respect of the third matter I was satisfied, notwithstanding his plea, there was no evidence to support it. Consequently the Crown sought leave to indict the accused in respect of the third matter by changing the nature of the charge, although relying still upon the same section. This morning Mr Khosravi pleaded guilty to requesting his co-offenders to provide false information to the police with intent thereby to hinder the investigation of the serious indictable offence of the robbery by KJ (a juvenile) committed on Matthew Reynolds.

4. As sentencing judge it falls to me to determine the appropriate sentencing disposition for the criminality exhibited on this night. That sentencing disposition depends upon a number of factors. Firstly, the facts of the offence; secondly, the objective seriousness of the offence as revealed by those facts; and thirdly, the subjective features of the offender or the personal background history of the offender, because not only am I sentencing for the offence, but I am sentencing this offender for them.

5. I have sentenced three co-offenders involved in the affray and the charge of intending to hinder the police in their investigation. The parties to that sentence had tendered by consent the same agreed facts. Nothing else has been tendered in the Crown case or indeed in the defence case that would cause me to change the findings I made in respect of those offences. I intend to make the same findings, save for one finding, which I will omit.

6. While it may have been appropriate to find in the co-offenders’ cases that this offender probably took a leadership role in the affray, in his own case, given the evidence, I cannot make that finding beyond reasonable doubt. It is a matter that the Crown would need to prove beyond reasonable doubt because it would be an aggravating feature.

7. I repeat here the relevant findings of fact I made on 28 March when sentencing the co-offenders. I have also interpolated additional findings of fact relevant to this offender.

8. Adam Hickey hosted a party for many of his acquaintances at 135 Pennant Hills Road, Carlingford. There was no parental supervision. One of his guests present, and as I understand it invited, was Matthew Reynolds. In the course of the night there was an invasion of fifteen to twenty unwanted males, including the three co-offenders and this offender. What was an ill-advised situation turned into a display of significant criminal conduct by them.

9. Once the group of invaders had arrived at the party some time between 9.30pm and 10.30pm, Khosravi became involved in a physical fight with a member of the party. That fight evolved into a significant brawl with as many as thirty to forty people caught up in it. There were punches, kicks, bottles being smashed, chairs being thrown. During that time Reynolds was struck to the front of his head with a beer bottle causing a cut to him. Another young person, MJ, was also struck by a flying bottle. This brawl lasted for several minutes.

10. In the course of the fracas Khosravi’s girlfriend, also an uninvited guest, was struck on her head by a thrown beer bottle. There is no evidence to suggest that Matthew Reynolds or anyone associated with him played any part in the dispatch of the beer bottle that struck Khosravi’s girlfriend. Nor is there any evidence confining Khosravi’s participation in the fracas at 135 Pennant Hills Road to any response of his girlfriend being struck by that bottle. He does say, and I accept, that he resented the fact that his girlfriend had been struck. The role Khosravi played in the brawl at the premises, other than the initial physical fight, is not disclosed. In particular it is not disclosed who was responsible for Reynolds being struck to the front of his head with a beer bottle.

11. Shortly after the fight at the premises each of the offenders and others left. They headed towards where their cars were parked. Meanwhile Reynolds and two others, both males, chased after the group. Reynolds, as I said, was concerned with who had hit him with the beer bottle. As he came around the corner from Pennant Hills Road into Bettington Road where some of the cars were parked, he was attacked by six or seven males. They included the four offenders who have now been before me, and two others.

12. The offenders Begini and Zulfiquar were present, ready and willing to assist if required. Reynolds was punched and kicked to the ground. When on the ground he continued to receive punches and kicks over his body. That attack lasted for several minutes. The agreed facts establish it as being a savage attack. Khosravi was involved in that attack. At the conclusion of the attack, one KJ, a juvenile, removed Reynolds’ wallet from his pants pockets. That was never part of any common purpose that the other offenders had with Reynolds. Once the attack had finished, the three co-offenders walked away from the victim, now lying face down and motionless on the ground. The affray was over at that point. That affray of course is the affray to which Mr Khosravi has pleaded guilty.

13. Khosravi grabbed a smashed beer bottle lying on the ground. He moved to where Reynolds was lying, lifted the man’s shirt and drew the broken beer bottle across his victim’s back, commencing at a point where the neck meets the shoulder. The bottle entered to the left of the spine about three centimetres from where the neck joins the shoulder. It was drawn down past the shoulder blade, past the ribcage to a point level with the waist. The path travelled by the penetrating broken bottle was about forty centimetres in length. It was shaped like the letter J with an extended stem. The path runs between the spine and clavicle, extending well below the clavicle, tapering towards the left waist.

14. The agreed facts describe the cutting action as requiring a great deal of force. Frankly I have difficulty accepting that description. It conjures a picture of an offender straining with the bottle against the skin and flesh. The offender told police, “It wasn’t my intention for it to be anywhere near that big”. At question 126 in an interview conducted between him and the investigating police, he was asked, “Did you use a lot of force?” He replied, “I honestly didn’t think I did, but obviously I did.” With respect to those investigating the offender, such a conclusion is not obvious. It would depend upon the sharpness of the edge of the glass portion pressed against the skin and the structure and material being severed. The words of the offender, “obviously I did”, constitute a conclusion based upon his seeing the photograph of the wound. The words “obviously I did” do not reflect any evidence of his recollection of what he actually did. A conclusion as to the force required is really a matter of expert evidence based upon the sharpness of the instrument and a knowledge of the path of the wound, organs, muscle and tissue severed, and depth of penetration.

15. Two photographs of the forty-centimetre wound have been tendered. One of those photographs shows the wound after suturing. The other shows the wound as it presented gaping open during treatment. In the absence of expert evidence I am unable to tell from the photograph the level of penetration of the cutting instrument or the nature of the biological material severed by the cutting edge. I am satisfied that the cutting edge penetrated all layers of the skin and some level of flesh below the skin. I am satisfied beyond reasonable doubt the cutting edge penetrated at least one and a half to two centimetres in depth in some places. At that level, significant and persistent force must have been required to draw the shattered bottle through the victim’s back. “Significant and persistent” force differs from “great” force. I cannot be satisfied beyond reasonable doubt the force used was great. As I say, more than “persistent and significant” force being used, I cannot say.

16. The photograph showing the gaping wound makes clear the open wound exposed a number of deep-seated inner organs and tissue. Clearly this wound constitutes a really serious injury. I am not satisfied the wound gaped open as it was being made. My sense is the offender was genuinely surprised and confronted when he saw the photograph of the gaping wound. I am satisfied his surprise was because when he left the lips of the wound had not opened or had not opened to the extent as shown in the picture. Reynolds was lying on his stomach when the wound was made and when the offender left. It is likely the forces of gravity or of his own locomotion had not revealed when the offender left the real devastation to the victim’s body Khosravi’s criminal conduct had caused.

17. Khosravi told police he did not intend the wound to be as extensive as it was. I accept the grievous bodily harm intended was grievous bodily harm inflicted with a broken beer bottle as a result of drawing it across the back of his victim at a depth to which the sharp edged shard of the bottle reached for a distance of about forty centimetres. The unintended consequence was that gravity and motion of the body would open the wound revealing the true content of the peril in which the body had been placed. To state the obvious, to create a forty-centimetre laceration of the depth penetrated with a sharp edge shard, exhibits much greater criminality than to stab a victim once to the same depth.

18. There are other wound sites on Reynolds’ back. There is also a wound behind Reynolds’ left ear. The agreed statement describes the two other wound sites as “stab” wound to the lower thoracic/lumbar area. The agreed facts do not attribute those stab wounds to anybody. Nor have I been asked by the Crown to infer they were made by this offender. The settling of agreed facts is an art form undertaken by the parties, each with its own agenda. Given those same facts were used by three other co-offenders, it would be dangerous for me to seek to conclude these latter injuries were made by the accused. Had they been, the level of criminality would have been well above the level it must be at when he accepts responsibility for the forty-centimetre wound.

19. Khosravi says he was well affected by alcohol. He had consumed one-third of a bottle of Jim Beam bourbon and two longnecks of beer. At the time of his offending he weighed sixty-three kilograms. He claims he was addicted to the drug ice and had used a gram of ice the previous night and had not slept for about twenty-four hours. He had not used ice on the day of the offence.

20. On the evidence before me, the two stab wounds to the back must remain unexplained. The injury to the area of the left forehead and left ear are likely to have occurred either in the affray or as a consequence of Reynolds being hit at the party. Some people from the party came to Reynolds’ aid and ultimately an ambulance attended. He was admitted into the emergency department of Westmead Hospital where his injuries were dealt with. Investigations continued and Reynolds disclosed the loss of his wallet and $150 in cash. As a consequence the telephone intercept was placed on Khosravi’s mobile telephones.

21. The facts that I have just described describe the main charge in the indictment. The conversation on 17 October between Khosravi and the juvenile KJ was intercepted. KJ told Khosravi police were wanting to speak to him, meaning, as I understand it, KJ himself. Khosravi then advised KJ what to tell the police and advised him in these terms:

“Khosravi: Tell them you were at the party.

KJ: Yeah.

Khosravi: Tell them that guy started. Tell them he threw the first punch. Tell them the truth of the party, what happened at the party, but tell them the end, how we got in the car and we left, when we left afterwards we heard what had happened but we don’t know who done it.

KJ: All right. So I say everyone left the party.

Khosravi: Say we did. You left in my car, me, you, Drawl, and Dilla.”

For my part Drawl and Dilla remain unidentified. They are clearly nicknames. Continuing the conversation:

“KJ: Yeah, and Megan.

Khosravi: Me, you, Drawl, Dilla and Megan jumped in my car, okay? We left. Then we heard that everyone else was going to a pub but we don’t know who else, who else is there.

KJ: All right, no worries. And do you reckon I should call everyone up and warn them and shit?

Khosravi: Yeah, yeah.”

That is the conversation, which is reflected in the charge, which is laid in the indictment. On close analysis it will be seen that in that conversation the account that Khosravi invites KJ to give is one that effectively exonerates him from the robbery of Reynolds.

22. I am satisfied that Khosravi knew that KJ had taken the wallet. During the car trip back, KJ handed the wallet taken from Reynolds to various other people in the car, including Mr Khosravi. This offender disclosed having stabbed the victim. Later another co-offender, Ameli, was given access to the wallet. The use of the word “stabbed” is not clearly established as coming from Khosravi, but rather from the agreed facts. The wound that I am looking at is far more than a stabbing.

23. Each offender later met at McDonald’s Castle Hill. At this location KJ discussed how he had “jacked” the guy’s wallet. This offender described how he “stabbed the guy in the back”. When asked why, this offender said because he “wanted to fight and wanted to have a go”. I am satisfied the words “wanted to fight” and “wanted to have a go” are references to Reynolds chasing after the uninvited intruders and not to anything Reynolds did during the affray. I note here that my earlier comment about the word “stabbed” not being necessarily from Khosravi is clearly in error.

24. In the absence of informed analysis of that criminal behaviour, no doubt all of the males present believed they were in mighty serious trouble arising from all three of these events. Khosravi and KJ decided to give a version of events that would, if accepted by the police, see each of them exonerated of any criminal activity. Those guilty of crime have been doing that for centuries. Police had put a tap on Khosravi’s mobile, conversations between Khosravi and KJ were taped. Others of the co-offenders agreed to be parties to their intended deception, which, as events turned out, did not hinder any investigation of Khosravi and KJ’s additional offences.

25. The following afternoon a group including four co-accused were out the front of Castle Towers. Khosravi, when asked what to do when police contacted them, said “They won’t, but if they do tell them we were at the party, we didn’t see any fights and we went home.” On the agreed facts, Khosravi is the author of the false account. He was also the person who conceived the plan. It was his intention in so doing to avoid his own responsibility for the criminal conduct, the collateral intent was one of protecting KJ. There is no suggestion any of the co-offenders was unwilling to participate in the planned deception. Their own self-interests would be served by advancing the common story. There is an additional significance to this evidence apart from the indicted offence, that is, it goes to the question of the accused’s willingness at that time to accept responsibility for his criminality. It also bears on the question of his contrition at that time for the injuries he then believed he had inflicted on Reynolds.

26. I turn now to the objective criminality. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in each of the instant offences, that is, the offences before me, with the criminality of offences of a similar kind that have been dealt with by this Court in the past. It is in this way that objective criminality or seriousness of these offences can be evaluated. It would not surprise anyone that the objective criminality has a very significant impact on the overall sentencing outcome.

27. Two of these offences focus upon the circumstances of criminal assault upon Reynolds. In a free society such as ours where citizen’s rights are respected, the law regards as criminal any conduct, which interferes with a person’s right to and integrity of his person, body and health. The measure of criminality arising from the affray focuses upon the level of unlawful violence used by offenders and the scale of the affray itself. The unlawful violence must reach a level of disinhibited violence such that a person of reasonable firmness present at the scene, but not necessarily involved in the altercation, would fear for his or her personal safety. The more disinhibited and widespread the violence within the affray, the more serious the criminality and, of course, the greater the risk that others would be swept up in it. The offender must intend to use or threaten violence or be aware that his conduct may constitute or threaten violence, not just to the person he with others is administering violence to, but to other persons present of reasonable firmness not necessarily involved.

28. The scale of the affray can also be measured both by its duration, that is, whether it was of short duration or longer, and by the number of persons participating in it. An affray involving two or three people is obviously, all things being equal, less serious than an affray involving up to a dozen.

29. The plea to affray was entered upon the basis the criminality related to events occurring after all offenders had left the party but before the co-offenders had left the area of Reynolds and arrived at their vehicles. Specifically, the affray focuses upon the time at which Matthew Reynolds was attacked by the group of males, including the offender at the corner of Pennant Hills and Bettington Roads. The agreed facts put the number involved as four to seven but given that the agreed facts nominates six, I could be satisfied beyond a reasonable doubt that six people were involved in the affray. Its duration seems to me to be measured in minutes and probably less than two or three. Begini and Zulfiquar were ready and willing to assist in the assault upon Reynolds, they were part of the group but did not take part physically. Thus the actual assault upon Reynolds may have involved up to four persons, including the offender. There appears no dispute that the level of violence, given the circumstances in which it was administered, was a level to cause a bystander of reasonable firmness to fear for his safety.

30. In assessing the criminality, it is important to note the unlawful violence did not spread beyond its intended victim. This offence was not planned, indeed all offenders had left the party with the intention of leaving the area. The attack was impulsive and opportunistic. There were no weapons used as any part of the unlawful violence. Several of the participants were juveniles. Affrays frequently constitute numbers greater than six, all of whom are adult males. That affray with up to twelve, all constituting adults males, would seem to me, all other things being equal, to be an affray causing greater fear or more readily causing the fear in the reasonable bystander than an affray of juveniles; some may differ in that view.

31. In terms of seriousness, this affray falls towards the lower range of criminality as envisaged by the section. I have accepted that there may have been some wounding during the affray but am unable to be satisfied beyond reasonable doubt as to the nature of the wounds, or, as I say, as to the extent of the wounds caused.

32. The criminality associated with hindering of police is an offence relating to the proper administration of criminal justice. It is not an offence against the courts per se but rather impeding the proper investigation of serious crime. In this case the investigation intended to be hindered was the investigation of an offence committed towards the conclusion of the affray, an offence committed by a juvenile of aggravated robbery.

33. Far and away the most serious offence is the infliction of grievous bodily harm with intent to do so. The criminality of that offence must be evaluated against the background that it constitutes a continuation of aggression and assaulting of Reynolds over and above that which constituted the affray. The transition from the affray offence to the greater offence was seamless. The significance of the continuation is that the violence exhibited in the affray was insufficient to quell the offender’s malice towards Reynolds, nor was a single stabbing sufficient to extinguish his malice towards Reynolds. The criminal malice was only satisfied by the making of a forty centimetre monumental laceration that in parts must have been at least one and a half to two centimetres in depth. Although not intended to be, the injury was of such magnitude as to be life threatening. An open wound with the lips of the wound stretching nearly forty centimetres exposed numerous organs and tissues to real risk of further damage and injury. The wound required emergency and hospital treatment. As to the sequela of the wound there is little evidence before me. It presents in one of the photographs as having been sutured, little else is known. However, I am satisfied there must have been post-traumatic sequela and further treatment including removal of sutures. In all likelihood there would have been psychological impact, including anger, resentment and brooding. There appears to be substantial disfiguring to the back.

34. Assessment of the objective seriousness of the s 33 offence, that is, the wound with intent to do grievous bodily harm. Inflicting grievous bodily harm with intent is an offence that may attract a standard non-parole period of seven years if the offence is one falling within the mid range of seriousness and having no mitigating features captured in s 21A of the Crimes (Sentencing Procedure) Act. Little is revealed about Matthew Reynolds in the agreed facts. He is somewhere between eighteen and twenty-one years. His photograph suggests he is closer to twenty-one than eighteen. He appears to be a well-developed young man. He arrived at the crime scene with two other males. At that point he was not a vulnerable victim. However, he was punched and kicked to the ground and whilst on the ground he was further punched and kicked for several minutes. What happened to the other two males is unclear. When the co-offenders left he was lying on the ground. He had not apparently resisted when robbed of his wallet. The agreed facts state that the offender, having armed himself with a smashed beer bottle, then moved to where the victim was lying and he lifted the victim’s shirt before attacking him with the broken bottle. The agreed facts state that the offender then dragged the bottle, the broken bottle, down the victim’s back. There is nothing in the path of the wound made by the broken bottle consistent with any movement such as a defensive movement by Reynolds.

35. I am satisfied, beyond reasonable doubt Reynolds was either unconscious, dazed or groggy from the earlier assault and perhaps affected by alcohol when attacked by this offender. That is to say, when attacked by this offender, the victim was at his most vulnerable and unable to resist or escape his attacker. While the level of violence exhibited towards Reynolds may not qualify as extreme, it was of a very high order. I have described it as taking longer than a stab wound but the violence was not prolonged beyond the time taken to make the actual wound. That wound constitutes a serious mutilation of Reynolds’ body but again the mutilation was not prolonged, nor more extensive than the forty centimetre gouging wound.

36. I have referred to the continuation of criminal malice demonstrated by the offender. The Crown submitted a conclusion was open that the initial hurt to the victim in the affray was not enough for the offender so he “went on with it” after the others had left. That submission appears well-founded. The use of the broken beer bottle as a cutting instrument aggravates the level of criminality, only one has to consider the dimensions of the wound to understand the real danger to a victim increased once the offender armed himself with the broken beer bottle. There is no suggestion the offender went to the party armed or that he deliberately broke the bottle to make a weapon.

37. An attempt to inflict a grievous bodily harm is an element of this offence and cannot constitute an aggravating feature. The accused’s acts were intentional, that is to say, he intended to cause the grievous bodily harm by drawing the broken beer bottle through the path it took across the victim’s back. The consequential injuries sustained by the victim is the actual consequence of his act which, for reasons I earlier gave, was not entirely intended by the offender. Nonetheless, the actual consequence of an offence is a matter that may aggravate criminality, R v Buttsworth [1983] 1 NSWLR 658. In this case the infliction of grievous bodily harm is an element of the offence. This injury is certainly above the entry point into the range of grievous bodily harm. It was life-threatening, serious, requiring treatment and some level of hospitalisation. It produced permanent and substantial scarring. However there is no evidence suggesting other permanent impairment or handicapping. The time at which the measure of grievous bodily harm is to be made is the time at which the offence was committed. At that time this wound fell within the mid range of seriousness of injuries that would constitute grievous bodily harm.

38. The accused claims in evidence and in discussions with police, Probation and Parole and the psychologist his motivation to do what and his decisions to pursue that motivation came in circumstances where he was very drunk. In his letter to me he wrote that at the time he was paranoid as a consequence of drug use and he would be more unstable on nights he did not use drugs. The night of the offence was such a night. The accused’s evidence is that his consumption of alcohol and his unstable state, because of his use of drugs the day before, affected his judgment at the time of his offending. I accept that his judgment was affected, that he was less inhibited than he otherwise might have been in circumstances where his abuse of ice predisposed him to aggression.

39. Of course, as I said to the offender when he gave evidence, his past experience with drugs and alcohol had given him an insight into their effect upon his judgment. The offender’s case is that he was angry because his girlfriend had been struck by a flying bottle. As I earlier remarked, there is nothing in the evidence suggesting Reynolds was responsible for this incident. I do not regard this incident as amounting to any form of provocation in his attack upon Reynolds. The relevance of his girlfriend being struck is that it was an incident, which amounted to another factor in predisposing him to aggression.

40. The offender’s claimed motivation was earlier referred to but the agreed facts have the offender meeting with others at Castle Hill. The reason he then gave for “stabbing” Reynolds in the back was “because he caused the fight [at the party] and wanted to have a go [at the corner of Bettington and Pennant Hills Road]”. There is no attempt by the defence to prove either proposition emerging from his stated reason for his malice in the agreed facts. That is to say, there is no attempt by the defence to prove that Reynolds caused the fight at the party, nor to prove that Reynolds wanted to have a go at the corner. Certainly by the time the bottle was picked up Reynolds was not having a go. Thus there is no basis for the court to make any finding that the offender had any factual basis to believe either of the propositions he told to the others at Castle Hill. Even if one or both were true, neither of them nor the combination of them could begin to justify any response at all from this offender, let alone the response he gave.

41. This was not a planned event, indeed, Khosravi and others had left the party, as I earlier said, with a view to leaving the area. They were pursued by Reynolds and the others. I have already found the affray was opportunistic. This offence is equally opportunistic. This offender’s decision to attack Reynolds as he lay on the ground could only have been made as his co-offenders were departing the scene after he had noticed the broken beer bottle.

42. On 20 April 2005 the offender was given five s 9 good behaviour bonds. Each was conditioned that he would be of good behaviour for a period of two years. The breach of those bonds fifteen months after each was given constitutes a feature of aggravation of the objective criminality. The basis of that aggravation is that the additional crime was done in defiance of court order requiring the offender to be of good behaviour for a determined period. One of the offences for which a bond was given was an affray. While there may be a particular poignancy in such a situation, even though the facts of the earlier case may have some similarity with the existing case, the basis of the aggravation is the breach of the bond. The level of aggravation is the greater because a bond was given for similar offending. The aggravation has its source in the defiance of the court’s earlier order. Repetition of offending conduct and haunting similarity of offending conduct are marks to be taken into account when assessing rehabilitation prospects.

43. Taking all of these factors into account, I place the grievous bodily harm offence within the mid range of seriousness for offences of this kind. Further, given the dimensions of the wound, the ferocity of the attack and the ongoing malice that drove it, I would place this offence within the upper segment of that mid range.

44. I turn now to the subjective factors. I am both entitled and required to do that. Not only am I sentencing for the criminal offence but I am also sentencing this offender for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the court some explanation, or insight into the commission of these offences by this offender, or some reason why a more or less sentencing outcome is appropriate.

45. Alborz Khosravi is a single man aged twenty-two who arrived in Australia twelve years ago. His family, members of the Baha’i religion, initially fled Iran to Pakistan to escape persecution. From there they migrated to Australia, settling in Parramatta. There are two sisters. Khosravi regards himself as close to his mother, but in the past there have been tensions between him and his father. Indeed at eighteen he left home for a year and at the time of these offences he had returned home.

46. His father is a problem gambler, although that situation is currently in remission. However in the past when the father lost at gambling, he would on occasions take out his anger and frustration on his wife and on the offender. Since the offender’s incarceration, the family have been supportive of him. Both sisters are adults. Each gave evidence in support of the offender, saying that they have noticed changes since his incarceration, particularly in his willingness to communicate to other family members. By contrast, at the time of the offending, the accused’s focus was outside the family, and such communication as occurred was sullen and frequently angry.

47. The offender entered the New South Wales schools system at the age of ten. He had difficulty settling. Language presented as a major barrier for him. He claims to have been picked on by other children during his school years. He completed year eleven and then left school. He has worked on and off as a painter. Whilst in custody he has completed courses in computers, literacy, communication skills and hepatitis C and HIV awareness. Seven certificates of attainment in respect of courses were tendered.

48. His uncle, Sam Bagheri, gave evidence that the offender has worked casually for him during 2004/2005. There is an offer of employment from Bagheri to Mr Khosravi. Khosravi’s main interest is in real estate, but he plans initially upon release to work for his uncle. The evidence leaves me with the impression that even through his period of drug addiction, Khosravi was able to continue working, funding his drug purchases from his wages.

49. Alborz Khosravi presents in court as a neatly groomed twenty two year old. He wrote that when he entered prison he weighed sixty-three kilos. Currently his weight is seventy-seven kilos. He told Mr W John Taylor, psychologist retained by the defence, that his physical health had been quite good. There is nothing in his presentation that suggests any physical health problem that should impede his rehabilitation.

50. Mr Taylor reports that the offender has low self esteem, has difficulty expressing his feelings to others and is inclined to keep others at an emotional distance, rather than risk disapproval or rejection. He has real problems with anger and anger management. Mr Taylor’s opinion is that much of the anger is directed towards himself. On this occasion, his anger appears directed towards the hapless victim. He thinks his anger, that is, his anger generally, may have originated because of his father’s abusiveness. While understanding the origins and causes of his anger is useful, it is important he owns the problem. If he is not prepared to own the problem, to own the anger, he will be unable to deal with it. He links his anger to abuse of drugs and alcohol. Again, that is a form of transference. Most people using drugs and alcohol, even to the extent he did, do not behave in anger with the intensity when they become as disinhibited as he displayed on this night. There has been some counselling sought in prison, principally in relation to drugs and alcohol. There has been no specific treatment focused on anger or anger management.

51. Khosravi told Probation and Parole he commenced drinking alcohol when aged seventeen or eighteen. He also began ecstasy use at the same time. By nineteen he was using ice, smoking a gram at a time. There is also a history of cannabis use but the offender claims this is minimal. I have earlier referred to his weight loss at the time of incarceration. The offence I am dealing with occurred when he was twenty; that is, after about two years of drug and alcohol abuse.

52. In his letter to me he speaks of “how dangerous my life had become and the mental state I had got myself into”. In the highly structured prison environment, he claims to have abstained from drugs completely. Indeed, he says he has also stopped smoking cigarettes.

53. It is a feature of youth and particularly among males that many engage in risk taking behaviour. The initial use of alcohol and drugs is often associated with risk taking. Some of the executive functions of the brain, including judgment, are in young males still in the process of developing. The offender’s risk taking was also a feature of his conduct after he had consumed drugs and alcohol (see Taylor’s report). His unauthorised arrival at the party is an example of this.

54. Khosravi is a young twenty year old man. He appeared to have a good work ethic. His family is strongly supportive of him. His sisters speak of him being a loving and caring person until his late teen years. They have noted in more recent times some return to these values by him. Having been shown pictures of the massive injury he inflicted upon Reynolds, he was man enough to accept that “if he did the crime he should pay the time”. Since that time he has been courageous, mature and socially responsible by continuing to accept full accountability for his conduct without flinching.

55. Since September 2004 he has been in trouble with the law. Many of his encounters with authorities are in respect of driving matters. There are other matters that have seen him before the courts, including offensive language, possess car breaking implements, larceny, the affray earlier referred to, failing to appear. As best I can tell, he has been before the Local Court on eight discrete occasions in respect of new charges since 2004. But for these matters before me, all his criminal offending has been dealt with in the Local Court.

56. I have already noted the offender’s acceptance of responsibility for the offence since the date of his arrest. He told Probation and Parole he felt ashamed and like a coward. He told Mr Taylor that he regretted his offending behaviour, that he was disgusted with himself. He acknowledged the offence “was my own action, it was all my choices”. He told police in his interview, “I realise how much pain I caused someone...how many problems they went through after...”

57. In evidence the offender said, “I feel sorry for Mr Reynolds. I feel sorry for his family. I feel sorry for my family, all the pain I have put them through.” There is abundant evidence of genuine and insightful contrition. That contrition is reinforced by the early plea of guilty before the Local Court, including I note a plea of guilty to an offence that couldn’t be made out by the Crown. Taking both contrition and early plea into account, I am giving a twenty- five per cent discount for the sentence I otherwise would have given.

58. Discounts of that nature are allowed because the administration of criminal justice is served by guilty persons acknowledging their guilt. These guilty pleas must be recognised as a significant contribution by this offender to advancing the administration of criminal justice in this case - first and foremost because the interests of the administration of criminal justice are served through public acknowledgment by offenders of guilt. Pleas of guilty by offenders sustain the community’s confidence in the administration of criminal justice by maintaining the confidence of the community in the investigation of crime by police, and the community’s expectation that those guilty of crime will be held accountable for it.

59. The administration of criminal justice is also served because court time, witnesses time, legal expenses and the like are freed so that they can be devoted to other cases. These pleas reduce considerably the likelihood of any contest, should there be an appeal, on the issue of guilt. These are all important utilitarian factors insofar as the administration of criminal justice is concerned.

60. There are a number of positive rehabilitation indicators:

• Positive progress made whilst in custody on a number of fronts - alcohol and drug conduct and employment skills
• The offender has strong family support
• The offender is developing positive post-release plans that include returning to family and obtaining employment
• Good physical health
• Sincere and appropriate contrition and insight into offending

There are negative factors that should not be overlooked:

• An absence of significant anger management counselling in the face of real anger management issues
• No recent history in the community of managing without drugs or alcohol.

The current structure setting for testing his capacity to remain drug and alcohol free is grossly artificial

• Measures of low self esteem as late as June 2008 with above average predisposition to abuse and dependence upon alcohol and illegal drugs
• Some antisocial characteristics present as late as June 2008, including impulsivity and risk taking behaviour
• A past history of a willingness to “go on with it” associated with physical violence.

61. The offender presented as a person shocked by the extent of his criminal conduct and determined to avoid trouble in future. On balance I am optimistic but cautiously so. However, his chances will depend upon the resources available to him upon release. In the early stages of his parole he should be monitored closely, including random urine tests in respect of drugs and alcohol. He will need ongoing support through counselling in anger management and drug and alcohol issues. He may need the assistance of a personal support program through an employment agency to assist him in training and job opportunities, directed towards real estate.

Setting the Sentence

62. This is an offence in which general deterrence has a role to play. This offender falls into a substantial group of young adult males, who in the course of abuse of alcohol and drugs commit crimes of great unbridled personal violence. In modern Australian society there is a very extensive raft of criminal laws passed by both the Federal and State parliaments. The chief purpose of the criminal law put in place by parliaments is to deter those who are tempted to breach the provisions of the criminal law. Parliament does that by prescribing maximum penalties for those engaged in conduct prohibited by the criminal law. 63. The maximum penalties for the offence that I am dealing with, for example, the infliction of grievous bodily harm with intent, carries twenty-five years as a maximum, and a standard non-parole period of seven years. The affray carries a maximum of ten years. The hinder police investigation carries a maximum of seven years. Consequently, when a person is sentenced for a breach of the criminal law, he is exposed to possibly the maximum penalty provided by the statute breached. Sentencing for breaches of the criminal law requires the sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping in mind those maximum penalties available and their deterrent purpose.

64. There is also a specific deterrence aimed at individuals like minded to the offender who but for such deterrence would be willing to commit crimes similar to those for which this offender is being sentenced. Finally, there is a component of deterrence to be considered personal to the offender with a view to deterring him from reoffending. I am satisfied in this case that the offender’s need for personal deterrence is well met by both his arrest, his charging, time before the courts, including the Local Court, as well as this, the denunciation of his conduct by a judge of this Court, and the ultimate time he has already spent, and will spend, in custody.

Is the standard non-parole period to apply?

65. There is now a jurisprudence built upon The Queen v Way(2004) 60 NSWLR 168 that touches the interpretation of s 54B of the Crimes (Sentencing Procedure) Act. That interpretation is predicated upon the proposition that s 54B is not intended to apply to cases where there has been a guilty plea. Matters permitting a longer or shorter parole period than the standard non-parole period are to be found in s 21A of the Crimes (Sentencing Procedure) Act. Matters which may bring a sentence below the standard non-parole period may be found in s 21A(3) and in s 21A(1)(c) and those other matters permitted or required to be taken into account by the Court under any Act or rule of law.

66. In addition to the plea of guilty, I have noted the offender’s contrition and acceptance of responsibility (s 21A(3)(i)) and the offence was not planned or part of any organised criminal activity. These are strong reasons why the standard non-parole period will not apply. Nonetheless, while I accept this offence, that is, the GBH offence, will attract (as said “will not attract”) a standard non-parole period, I nonetheless regard the standard non-parole period as a benchmark or reference point. It is of course a non-parole period that applies to the mid range of offences after trial. It will have the effect of driving upwards sentences and non-parole periods, even though the standard non-parole period does not apply.

67. As with manslaughter cases, the range of criminality and circumstances of its occurring span a wide and varied spectrum in s 33 cases. JIRS statistics at best can only give a global overview. Since the introduction of the standard non-parole period, 115 cases have been tabulated. Ninety-two per cent of offenders in those cases were imprisoned with a non-parole period ranging from twelve months to eight years. That group received head sentences of two and a half years to twelve years. The sentence range for 141 offenders prior to the introduction of the standard non-parole period saw ninety-three percent of offenders sent to imprisonment with non-parole periods ranging from six months to twelve years. In this group the “head” sentence ranged from eighteen months to six years.

68. These sentencing ranges demonstrate the wide range of objective criminality and subjective matters covered by offenders who commit s 33 offences. Without a detailed breakdown in the circumstances of offending, such as use of weapon, use of boot, in company, gravity of injury, the JIRS figures are otherwise of little value.

Parity

69. The adult co-offenders sentenced by me for their part in the affray were each fined $750. Their subjective circumstances were not dissimilar to but perhaps a little more favourable than this offender’s. Their objective criminality, that is, their involvement in the affray, was as being bystanders ready and willing to become involved physically should the need arise. The other co-offender who was involved is currently on s 11 bail, for the purposes of assessing his rehabilitation prospects. Khosravi’s criminality in the s 33 offence rules out any similar course of action for him. In my view, given the severity of the grievous bodily harm offence, and his participating role of violence towards Reynolds during the affray, the issue of parity does not arise.

Totality

70. Clearly, the totality of this offender’s criminality puts him in another league from his co-offenders. While some proportionality is required when sentencing for the affray, his total criminality requires a more drastic response. In setting the sentences for Mr Khosravi it will be necessary to reflect the total criminality in the sentences. I intend to do that by accumulating a portion of the sentence for the affray. There will also be some accumulation for the hinder police.

Special Circumstances

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71. I intend to find special circumstances. The Crown does not oppose such a finding. The defence seeks it. I note in Hearne 124 A.crim.R. 451 at [24] an acceptance of the principle that the weight to be given to the element of youth should not vary depending upon the seriousness of an offence. A finding of special circumstances allows a sentencing judge to fix an overall sentence that appropriately reflects the gravity of the offending conduct, and at the same time give due weight to the rehabilitation in the community and the youth of an offender. Thus, two drivers of my finding of special circumstances are the youth of the offender and his need to be in the community, rather than in the artificial and smothering structure of a gaol to advance his rehabilitation. I also take into account that this is his first time in custody.

Applying the Plea Discount

72. But for the plea of guilty I would have sentenced this offender to imprisonment for two years in respect of his part in the affray. I reduce the sentence I would have imposed to one of eight months imprisonment. I make that a fixed term. But for the plea of guilty I would have sentenced the offender to a period of nine years imprisonment for the infliction of grievous bodily harm with intent to do so. I reduce that sentence by twenty-five per cent. That reduces the sentence to one of six years and nine months overall. In respect of the hinder police, I have set a sentence of three months.

Custody

73. This offender has been in custody on these matters since his arrest. These sentences will therefore be backdated to 14 November 2006.

74. Mr Khosravi would you just stand up please? Alborz Khosravi, of the offence that you between 16 September 2006 and 13 November 2006 at Carlingford in the State of New South Wales did request Farhang Ameli, Joel Begini and KJ to provide false information to police with intent thereby to hinder the investigation of a serious indictable offence, namely, the robbery of KJ on 16 September, you are convicted. In respect of that offence you are sentenced to a fixed term of three months to begin on 14 November 2006 and to expire on 13 February 2007.

75. In respect of the offence that at Carlingford on 16 September 2006 you used unlawful violence towards Matthew Reynolds and others by conduct that a reasonable person if present at the scene would have feared for his or her safety, you are convicted. For that offence I sentence you to a fixed term of eighteen months to date from 14 December 2006 and to expire - let me check my calculations.

76. I can make it clear to you so you are not in anguish, Mr Khosravi, that what I intended to do is set an overall sentence of seven years and four months with a minimum term of four years and four months and a balance of term of three years. But for some reason or other the dates I set don’t quite work out. I apologise for that.

77. With the affray - I have convicted you of that. It is a fixed term of eighteen months. That will date from 14 February 2007 and will expire on 13 August 2008. The s 33 - that you, at the same time and place, maliciously inflicted grievous bodily harm upon Matthew Reynolds with intent thereby to do him grievous bodily harm, you are sentenced to a non-parole period of three years and nine months. That will expire on 13 November 2011.

HIS HONOUR: All right then I can tell you then - let’s settle on those dates.

The s 33 matter, the sentence is to commence on 14 June 2007, that is the non-parole period, and it is to expire on 13 March 2011.

78. Your first eligible release date Mr Khosravi - this is what you need to go back into the cells and understand - your first eligible release date is 13 March 2011. This is a sentence where I cannot order your release to parole. You will have to persuade the Parole Board and in order to do that you will need to go there well-armed with progress made during custody. All right. Anything else?

79. I formally order the sentence for the s 33 matter to commence on 14 June 2007 and the non-parole period will expire on 13 March 2011. The offender will become eligible for release on that date. The overall sentence, as I have said several times now, is one of seven years four months with a minimum term of four years and four months.