R v Mansour

[2019] NSWDC 840

District Court

New South Wales

Medium Neutral Citation:	R v Mansour [2019] NSWDC 840
Hearing dates:	10 October 2019
Decision date:	11 October 2019
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found – extended parole to assist with counselling and/or treatment in respect of the offender’s anger management and drug abuse issues. Indicative sentences of imprisonment: 002 + Form 1 (SEQ 001) - 1 year & 7 months 008 – 6 months 010 – 11 months Aggregate sentence: Sentenced to a total term of imprisonment for 2 years with a NPP of 1 year to commence on 5/7/19 and to expire on 4/7/20 and a balance of term of 1 year to commence on 5/7/20 and to expire on 4/7/21. Sequence 003 and 007 are withdrawn and dismissed. I make orders as per the forfeiture orders handed up in court, signed by me and placed on the court file.
Catchwords:	CRIMINAL – Sentence - assault occasioning actual bodily harm – deal with property suspected of being the proceeds of crime – From 1 matter - common assault – s166 matter – possess prohibited drug (MDMA) – domestic violence – subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Edigarov [2001] NSWCCA 436 The Queen v Kilic [2016] 259 CLR 256 Thomson & Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Regina Mansour, Joseph
Representation:	Solicitors: Crown: Mr J Jones Offender: Mr G Goold
File Number(s):	2017/00030018

Judgment

1. Joseph Mansour appears for sentence in relation to a number of offences. First of all, assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. The maximum penalty is five years’ imprisonment and there is no relevant standard non‑parole period. The second offence is deal with property suspected of being proceeds of crime, to wit $3,115, contrary to s 193C(2) of the Crimes Act. The maximum penalty is three years’ imprisonment and again there is no relevant standard non‑parole period.

2. In addition, he asks that when being sentenced in respect of the offence of assault occasioning actual bodily harm that a further offence of common assault be taken into account, and in addition, there is a further offence contained on a s 166 certificate to which he has indicated a plea of guilty, being that on 30 January 2017 at St Peters he did have in his possession a prohibited drug, to wit 0.97 grams of 3,4‑methylenedioxymethamphetamine.

3. The facts are agreed and are as follows.

BACKGROUND

4. The offender was born on 26 May 1979 and for a number of years had a relationship with Natasha Novak, born 26 January 1994. There was one son of their relationship, who at the time of the offence was two years of age.

5. In early 2017 they separated for a number of months, Novak living with her parents in Silver Street, St Peters.

6. On Sunday, 29 January 2017, Novak received a telephone call from Mansour about meeting to discuss their son. Novak had been at home celebrating her birthday and informed the offender that she had been drinking and could not drive to meet him, but agreed to meet him at another location away from her home and said the offender could pick her up there.

7. In the early hours of 30 January 2017, Mansour picked up Novak and drove her to a location near the BP petrol station in St Peters. Novak and the offender argued. The offender slammed his mobile telephone into Novak’s face (Form 1 - common assault).

8. Several hours later Mansour telephoned Novak and requested that she meet him in Edith Street, St Peters. Novak agreed, and when she met him, he handed her his shoulder bag which contained $3,115 and a number of mobile telephones and pleaded with her to take it for several hours.

9. Novak returned to her home with the bag and its contents.

10. Mansour telephoned Novak seeking the return of his property. She telephoned police.

11. A short time later Mansour came to Novak’s house and demanded the return of the bag. Mansour stood outside the home screaming and demanding the return of his bag. The offender was accompanied by a Mr Hassan.

12. Novak opened the front door but not the screen door. Novak’s mother came downstairs and opened the screen door because the offender was banging on it.

13. The offender entered the house. Novak’s mother was standing between the offender and Novak. The offender lunged at Novak and struck her to the left side of her face, dislocating her jaw (Count 1 - AOABH). He then grabbed his shoulder bag from the breakfast table and commenced to leave the property as police arrived.

14. Police arrived at the premises around 5am on 30 January 2017. When they arrived, the offender was standing next to Hassan, who was rummaging through an overturned green wheelie bin on the footpath. Police observed Novak standing at the side entrance to the house, crying and upset. They observed bruising and swelling to her left cheek.

15. Police searched Hassan and located $3,115 in cash in his pocket. When asked whether the money was his, Hassan said, “No, it’s his. I was just getting it from the bin because she threw it out.”

16. Police then asked the offender whether the money was his. The offender replied “Yeah”, and when asked where he got the money from, he said “Work” (Count 2 - proceeds of crime).

ARREST

17. Mansour was arrested and taken to Newtown Police Station. He was searched. Located in the bag were three mobile phones and a mobile phone holder in which there was a small clear plastic bag containing a brown granular matter, which on analysis was determined to be 0.97 grams of MDMA.

18. The offender participated in an ERISP during which he said that he did not wish to be interviewed on the advice of his solicitor, as was his right.

19. There is nothing contained in the agreed facts which indicates that there was any adverse sequelae to Ms Novak from the dislocation of her jaw. It is common in relation to such injuries that the jaw can simply be relocated, which causes, in the absence of any other injury, pain to be minimised and the jaw to operate as it is intended thereafter. Nonetheless the offender intruded into Ms Novak’s premises after the door was opened by her mother and lunged at the victim, striking her in the face. He had previously slammed his mobile telephone into her face, and in respect of that offence there is no suggestion of any significant injury or even pain.

20. In relation to the common assault contained on the Form 1, I would assess it as being in the lowest range of objective seriousness.

21. In respect of the assault occasioning actual bodily harm, I would assess it as being not at the lowest end of the range, but also not in the middle of the range; that is, between the two.

22. The proceeds of crime offence was charged as follows:

“On 30 January 2017, at St Peters in the State of New South Wales, did have in his possession $3,115 in various denominations in Australian currency, the suspected proceeds of supplying a prohibited drug.”

23. It is clear in those terms that the offender by his plea accepted that it was appropriate for the money to be suspected of being the proceeds of supplying a prohibited drug. The offender is noted from material otherwise before the Court to have some difficulties in relation to the consumption of prohibited drugs.

24. In relation to the charge of assault occasioning actual bodily harm, Ms Novak had the right to feel safe within the confines of her own home and not to be assaulted by her ex-partner on his attendance.

25. The evidence before the Court indicates that the relationship between Ms Novak and the offender prior to this occasion had become “rocky”, for want of a better expression, and clearly at this time was continuing to be so. As indicated there was at the time a two-year-old child of their relationship.

26. Subsequent to the breakdown of their relationship, Ms Novak entered into a relationship with another person, and as a result a further child was born to her from that relationship.

27. In relation to the subjective matters before the Court is the offender’s Criminal History in both New South Wales and Queensland and a Department of Corrective Services Conviction, Sentence, and Appeals Report and two documents titled Queensland Police Service Court Brief, each setting out various details in relation to Queensland police being called to attend on premises resided in by the victim and the offender after the time of the offending in New South Wales, when there was a domestic violence order in place, which is enforceable in Queensland.

28. In addition, the offender’s brother Patrick Mansour gave evidence on sentence, and tendered was a report from Dr Anthony Keeley, an orthopaedic surgeon, dated 21 October 2016, and a medication summary in relation to the offender as at 21 February 2019.

29. The offender’s record in New South Wales indicates that his first offence was as a juvenile in 1994, steal from a person, in respect of which he received a 100 hour Community Service Order. As an adult in 1997 he was sentenced in respect of offences of state false particulars and drive whilst licence cancelled, being a learner’s permit. He received fines and a disqualification.

30. He had a number of further driving offences in 1997 and 1998 including driving whilst disqualified, and in 1998 there was a break and enter building, commit felony more than $2,000 and less than $5,000, in relation to which he received a Community Service Order. In relation to the drive whilst disqualified offence in 1998, on appeal he received a fixed term of imprisonment of four months.

31. There are a number of other driving offences and one breach of a Community Service Order in relation to which he also received a fixed term of four months’ imprisonment in the Local Court commencing on 22 January 2000. On appeal to the District Court, he received in lieu periodic detention of eight months for driving whilst disqualified, and in lieu of the breach of Community Service Order, periodic detention of two months cumulative on the eight months for the drive whilst disqualified. He had originally received eight months with a six months’ minimum term for the drive whilst disqualified.

32. Of significance however in relation to this matter are the final matters. In August 2010, he was dealt with for some eight counts of attempt to possess a prescribed restricted substance; two offences of possess prohibited drug, one offence of possess ammunition, one offence of deal with property suspected proceeds of crime, and one offence of supply of prohibited drug.

33. Except in respect of the supply prohibited drug offence, he received simply fines; in respect of the supply prohibited drug, he received a term of imprisonment of 15 months, suspended on entering a s 12 bond with a requirement that he obey all reasonable directions or instructions in relation to treatment, counselling, urinalysis, and participating in drug addiction counselling.

34. There was a further offence of possess prohibited drug in 2013, dealt with at the Burwood Local Court in May 2013, in respect of which he received a fine, and a number of other driving offences in 2009. I do not regard any of the driving offences as having any real relevance in relation to the sentencing matter before the Court today. The possession charges do have some relevance, particularly in relation to the offence on the 166 certificate, possess prohibited drug, and also in general in relation to the offender and the issue of rehabilitation and the prospect of reoffending.

35. However, since the time of the offences in New South Wales, it is apparent, particularly from the evidence of Patrick Mansour that the rocky relationship between the offender and Ms Novak continued. Mr Mansour’s evidence was that Ms Novak’s relationship with the father of her second child broke down and caused problems of an unspecified nature, the result of which was that the offender stepped in to assist Ms Novak and his son, and indirectly, Ms Novak’s second child of the new partner. He did that by paying for them to move to Queensland, and he either moved with them or came shortly thereafter.

36. While in New South Wales, he had had limited access, arranged through his mother and his siblings, to his own son.

37. Apparently the offender moved to Queensland and paid the rent on premises in which the victim, Ms Novak, and the children were living. Up to the time that he was taken into custody, and even thereafter, his brother, Patrick, gave evidence that he has been paying on his brother’s behalf from his brother’s funds some $6,200 per month, said to be for rent for his ex‑partner and the children in Queensland.

38. Unfortunately, in Queensland, while the offender had been residing with them, their difficult relationship had continued. As previously indicated, Queensland police had been called out on two occasions to the premises where they were residing in Turnberry Terrace, Hope Island, in relation to allegations of domestic violence.

39. On 13 June 2019, he had been abusive of her and driven away with their son. He was located not long after in the vicinity, still on Hope Island. When located, a search of him located two clip-seal bags containing white crystals, being methylamphetamine. Inside the vehicle was a water pipe, glass pipe and a clip-seal bag containing dried plant material, which he described as being marijuana.

40. He stated at the time that he had been living in the garage of the premises he paid the rent for the past two months.

41. An interim order had been made in New South Wales on 6 February 2017 in relation to domestic violence to protect Ms Novak. His residing at the premises in Queensland was a breach of that order, however while a breach of the order, it was in circumstances where the victim was an active participant in his so breaching the order.

42. After the initial problem there was a further incident on 3 July 2019, when the offender attended the house asking to collect his property. It is said that she allowed him inside to collect the property as she wanted it removed and that in the course of his attendance; he called her a “slut” and blamed her for the AVO being in place, and said to her “You are going to regret this”.

43. He was asked to leave and did exit the house and go to his vehicle and start the engine before turning it off and walking into the garage. That was at about 8pm on 3 July, and at 7.30am the following morning the victim found the defendant sleeping on the couch. At 10am he got up to have a shower and she asked him when he was leaving, to which he responded “Soon”.

44. On 5 July 2019, she woke up to give her son a bottle and found the offender in the kitchen making a cake. She did not speak to him and returned to bed. At 7.30am she then found him asleep on the couch. He woke up at 10am and she again requested him to leave and called the police. He then decamped before they arrived.

45. I am of course not sentencing him in relation to the breach of the AVO in Queensland. The Queensland Court outcomes records shows that at the Southport Magistrates Court on 23 July 2019 he was dealt with for a number of offences, being: contravention of domestic violence order, possess dangerous drug, possess dangerous drug, possess utensils or pipes et cetera that had been used, contravention of a domestic violence order, possess dangerous drug and breach of a bail condition.

46. Despite the number of charges, he was dealt with in a lenient fashion by the Queensland magistrate, as in respect of all charges, no conviction was recorded and he was placed on probation for a period of 12 months.

47. It has been accepted during the course of the sentence proceedings that from 23 July 2019, as a result of extradition from Queensland, he has been in custody in New South Wales, but from 5 July 2019 he was in custody in Queensland.

48. I have previously indicated that although the Queensland custody was clearly in relation to the breach of the domestic violence order and other offences committed in Queensland while he was held pending resolution in the Queensland Magistrate’s Court, I would take that period into account in addition to the period when he was clearly in custody in New South Wales solely in relation to these offences, which was from 26 July 2019. I intend to take the starting date, as I previously indicated, as being 5 July 2019.

49. The offender did not give evidence on sentence, and he is now 40 years of age. His older brother gave evidence that he had attended St Martin’s Cathedral School to Year 10. He had subsequently qualified as a panel beater, an occupation in which he had worked for some 20 years before ceasing trade. He had been working in that occupation with his brother Tony, now deceased, their business being in Camperdown.

50. The offender had a major motorbike accident in late 2015, and the injuries resulting from that are referred to in the report of Dr Anthony Keeley. I accept that they were significant and basically involved most of his left side. He was in hospital for some three months initially, and then required a number of further operations which resulted in him remaining in hospital for a further month. He was in a wheelchair for some five or seven months, and then used a mobility scooter and crutches. His movement was obviously restricted during that period of time, but he continued to have problems.

51. He had been in a relationship with Ms Novak for a period of some ten years up until the offences in January 2017, and Patrick Mansour understands that part of the relationship breakdown was due to Ms Novak’s association with a former partner of hers, the difficulties in New South Wales arising as a result of access conditions being very limited, that is no real contact with the child but the offender dropping off from time to time the necessaries for the care of the child. He was at the time on a raft of medication in relation to his injuries. At the time, he was said to be still consuming painkillers such as Oxy‑contin and various other drugs for pain such as Endone, Panadeine and drugs normally used to treat sleeping problems and/or depression and anxiety, such as Stilnox.

52. However it was apparent that he had also been using prohibited drugs. His brother described his behaviour as being erratic and his moods unstable. That is a common circumstance in relation to individuals who use prohibited drugs, particularly when they do so in association with prescription drugs of certain types.

53. He apparently continues to have pain from the accident and wears from time to time a knee brace as a result. His older brother died in late 2017. Although he no longer works as a panel beater, he has been involving himself in the restoration of motor vehicles doing the mechanical work rather than the panel beating. According to his brother he has a number of motor vehicles, two being in a disassembled state - even in that state, one having a value of $150,000 and the other $120,000.

54. Patrick Mansour has ongoing contact with Ms Novak, and he indicated that he received messages from her on a regular basis inquiring about the health and/or well-being of the offender, and in particular wishing him well in relation to the outcome of these proceedings. Although the messages were not produced, I have no difficulty in accepting that. It is not uncommon for female victims of domestic violence matters who have been involved in lengthy relationships with an offender to continue to have a desire, even when not in their best interests, to continue to have contact. That desire is normally increased in the circumstances where they are dependent on the offender for financial and/or emotional support. In this case it appears that the offender, as I understand it, from the proceeds of his personal injuries compensation payout, has been providing significant support to his ex-partner, their child and the child of her subsequent relationship. It is of course a great shame that he cannot have a peaceful relationship with her to the benefit of all concerned.

55. As has been indicated by Mr Jones, representing the prosecution, domestic violence matters have arisen in importance in recent years. The need to reduce the incidence of domestic violence is frequently referred to in all forms of the media. I note that one recent media report referred to some 53 women so far this year having lost their lives as a result of domestic violence. That simply highlights the intensity to which domestic violence matters can reach. There has been a significant call from the legislature and the courts for effective sentences to be imposed on offenders in order to deter not only them, but others from engaging in domestic violence offences.

23. The High Court recently in The Queen v Kilic [2016] 259 CLR 256 said:

“Current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of the offence because of change in societal attitudes to domestic violence.”

57. In R v Edigarov [2001] NSWCCA 436, Woods CJ at CL, Studdert and Bell JJ agreeing, said at [41]:

“Violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.”

58. I note the comments contained in the Crown’s submissions in relation to the introduction of s 4A of the Crimes (Sentencing Procedure) Act and the comments of the Attorney General when introducing the bill to parliament.

59. The offender was committed for trial on 5 September 2017 from the Downing Centre Local Court. The matter was listed for trial on 3 September 2018, and on 24 August 2018 a plea offer was made by the defence, and a plea of guilty was finally entered on 31 August 2018 in advance of the trial date. In the circumstances, I accept that a discount for the utility of the plea alone, as referred to in Thomson & Houlton (2000) 49 NSWLR 383, at the lower end of the range is appropriate; that is 10%. I will provide a 10% discount in relation to each of the offences.

60. As I have previously indicated, considering the offender’s history and the continuing difficulty whilst subject to the domestic violence order in respect of further offending in Queensland, I regard specific deterrence as very important in relation to this matter. General deterrence is, of course, always important in relation to matters such as this.

61. I have taken all of those matters into account. I accept the Crown’s submission that the s 5 threshold has been crossed and that a term of full‑time imprisonment is appropriate. Having considered the alternatives to full-time imprisonment, I regard the need for the sentence to provide both specific and general deterrence as rendering any alternative inappropriate. I intend to provide an aggregate sentence and for that purpose I am required to give an indicative sentence for each of the three offences.

62. The indicative sentence in relation to the offence of assault occasioning actual bodily harm, domestic violence related, is one year and seven months. The indicative sentence in relation to the offence of dealing in the proceeds of crime, $3,115, is 11 months, and the indicative sentence in relation to the offence of possess prohibited drug, being 0.97 grams of MDMA contained on the s 166 certificate, is six months.

63. The sentence is a non‑parole period of one year commencing on 5 July 2019 and the non‑parole period will expire on 4 July 2020. The balance of term is one year, or expressed otherwise, a sentence of two years with a one year non‑parole period. I have varied the statutory relationship between the non‑parole period and the balance of term in favour of the offender because, as I perceive it, he needs an extended period of parole in order to ensure that his issues in relation to anger management and drugs can be attended to.

64. I note that while in custody so far he has in fact made some effort to deal with the domestic abuse issues. Before the Court, as Exhibit M2, is a Remand Domestic Abuse letter of attendance indicating that he has attended a number of individual programs between 21 August and 3 September 2019, being six separate session topics. I accept that that is a good start and that it does indicate that the offender has realised that he needs to do something about his drug problems and also his domestic violence problems.

65. A plea of guilty is not necessarily an indication of remorse or contrition. As I have previously indicated, the offender did not give evidence on sentence and there was nothing in particular in his brother’s evidence which addressed those issues, however on this occasion I am prepared to accept, as a result of the offender pleading guilty, that he is in fact genuinely remorseful and contrite.

66. This is in the face of material before the Court which is contrary.

67. There was a Sentence Assessment Report prepared for an expected sentencing date on 7 March 2019 under the hand of Kimberley Ramboud. In his favour, it says that he had a varied criminal history dating from 1994, however there appears to be no evidence he has engaged in anti-social behaviour since the convictions in 2013.

68. This report was of course prepared before the Queensland matters arose.

69. As to his attitude, it states

“Mr Mansour stated he was arguing with the victim in the lead up to the assaults and attributed his offending behaviour to his anger and frustration”.

70. With regard to the possess prohibited drugs and deal with property proceeds of crime offences, Mr Mansour denied the offences and maintained his own version of events.

71. As to his insight into the impact of offending it states as follows:

“Mr Mansour demonstrated little insight into the impact of his offending behaviour, stating he did not believe the victim would have been negatively impacted”.

72. A request was made for a more current report, the offender having not appeared for sentence in the past because he was then in custody in Queensland. The further report is under the hand of Amy Refalo. That indicates that he had completed the Remand Domestic Violence Program and that while in custody in New South Wales, he had incurred two institutional misconduct charges for possess drug and possess tobacco.

73. Otherwise the current report is of little assistance. It recommends supervision in relation to addressing domestic violence offending and attending the EQUIPS suite of programs and taking part in an alcohol and other drug assessment for the purpose of establishing ongoing counselling, and engaging in activities and interventions with focus on developing pro-social relationships and dealing with conflict as well as exploring and challenging his attitude towards his offending behaviour.

74. In the circumstances, considering those comments, I regard the prospect of rehabilitation as being guarded, despite the fact that I have found remorse and contrition. Clearly, the offender needs to come to grips with the use of prohibited drugs and/or prescription drugs not prescribed for him. He also needs to participate in programs designed to address the use of alcohol and/or other drugs as well as anger management. All of that material was relevant to the issue of finding special circumstances.

Is there anything I have omitted, or any error detected?

JONES: Two further matters, your Honour. First I seek Court’s leave to withdraw Sequences 1 and 7, they’re the remaining sequences.

HIS HONOUR: Yes, all right. In relation to H63099837 Sequence 1 and Sequence 2--

JONES: It is Sequence 1 and 7, your Honour.

HIS HONOUR: 1 and 7?

JONES: Yes.

HIS HONOUR: But isn’t that the common assault that’s on the Form 1?

JONES: That’s another common assault.

HIS HONOUR: It’s the second common assault, okay.

I note that each of those is withdrawn and dismissed.

JONES: Your Honour, I also have a--

HIS HONOUR: Sorry, could I just ask this, Mr Crown, on the first page of the Crown sentence summary where the H numbering is set out, that refers to Sequence 1 under Form 1, common assault. Is that supposed to in fact be Sequence 3? The Form 1 refers to Sequence 1.

JONES: Yes, I think you are correct, your Honour. Seek a withdrawal of Sequence 3 and 7, apologies.

HIS HONOUR: Right, so we’re withdrawing and dismissing Sequence 3?

JONES: Yes, your Honour.

HIS HONOUR: All right, thank you. We don’t need to amend any of the other documents.

JONES: Your Honour, I also have a Consent Order for the forfeiture of the $3,115.

HIS HONOUR: Yes, hand that up and we’ll deal with that.

75. Pursuant to s 18(1), cash in the sum of $3,115 found at 101 Silver Street, St Peters, on 30 January 2017 is forfeited to the State of New South Wales.

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Decision last updated: 04 March 2020