R v Mazaydeh
[2014] ACTSC 325
•13 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Mazaydeh |
Citation: | [2014] ACTSC 325 |
Hearing Date(s): | 13 November 2014 |
DecisionDate: | 13 November 2014 |
Before: | Murrell CJ |
Decision: | Three year good behaviour order. Fines imposed. See [24] – [26]. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence after trial – assault occasioning actual bodily harm – common assault – threat to cause property damage – domestic violence |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 13, 14(4) |
Cases Cited: | R v Bell [2005] ACTSC 123 R v Dunn (2004) 144 A Crim R 180 R v Mazaydeh (No 2) [2014] ACTSC 291 |
Parties: | The Queen (Crown) Mohamed Mazaydeh (Offender) |
Representation: | Counsel Ms A Begley (Crown) Mr A Hopkins (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender) | |
File Number(s): | SCC 3 of 2014; SCC 223 of 2014 |
MURRELL CJ:
Background
After a trial before me sitting as a judge alone, the offender was found guilty of one count of assault occasioning actual bodily harm, three counts of common assault and one count of threatening to cause damage to the complainant's property (her cat).
The maximum available penalties are, five years' imprisonment for assault occasioning actual bodily harm, two years' imprisonment for common assault, and two years' imprisonment and/or a fine for threat to cause damage to property. I note that s 14(4) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) enables the Court to make a fine order, whether or not an offence is otherwise expressly punishable by a fine.
The facts are set out in the earlier decisions and I will not repeat them: R v Mazaydeh (No 1) [2014] ACTSC 279, R v Mazaydeh (No 2) [2014] ACTSC 291.
Objective Seriousness
The assault occasioning actual bodily harm was a very forceful and frightening assault on the victim that involved the offender taking hold of the victim’s throat. Understandably, the offence has had a very significant psychological impact on the victim. The strength with which the offender applied force to the victim's neck was evidenced by the symptoms that the victim suffered 24 hours after the incident when she spoke to Dr Parekh. As Dr Parekh said, “compression of the neck is a potentially life-threatening act”.
In this case, the assault occasioning actual bodily harm involved considerable violence. It is true that the nature of the actual bodily harm that was occasioned was at the lower end. Twenty four hours after the event, the victim was experiencing symptoms, but no visible effect of the assault. For example, there was no visible bruising.
On the one hand the conduct was extremely serious; on the other hand the actual bodily harm that resulted was not. However, as I have mentioned, the incident had considerable psychological impact, as was no doubt designed to be the case.
The first common assault occurred during the period when the offender was first present in the victim's apartment and involved pushing her onto a bed with sufficient force to cause her to bounce back up. That was a very unpleasant assault. One might describe it as typical of domestic violence exchanges, but that in no way diminishes the seriousness of the matter.
The other offences occurred during the second period that the offender was present in the victim's apartment. The second common assault involved conduct similar to that involved in the first assault, pushing the victim onto her bed. This incident occurred immediately before the offender engaged in the assault occasioning actual bodily harm. The offence was integrally linked with the more serious assault.
The threat to cause damage to the victim's cat was particularly upsetting to the victim, and the offender was no doubt well aware of the victim’s affection for her cat. He seized the cat and held a knife to its throat. That would have been quite devastating for the victim.
The second common assault was a more minor assault. It involved tearing the victim's shirt. There was no bodily contact. It was part and parcel of the offender's endeavour to obtain either the victim's phone or information from the victim concerning the identity of a caller to her mobile telephone.
Overall, the incident lasted about 15 minutes. That is a guesstimate, but it gives some indication that, while not fleeting, the incident was relatively short. It was broken into two related incidents. The first was when the offender was in the victim's apartment. The second was after he had climbed onto the balcony and, in effect, threatened the victim, requiring her to let him into her apartment by wielding a balcony chair in a motion that suggested that, if she did not comply, then he would break her balcony door.
The assaults were accompanied by verbal abuse and abusive text messaging, so that the overall incident was not only frightening but also designed to humiliate. In addition, the offender rifled through the victim's belongings and demanded her phone, which the victim did not wish to relinquish. The episode occurred within the victim's home, when the offender should not have been present, because the victim had asked him to leave the apartment, and only unwillingly readmitted him.
Domestic violence
I agree with the characterisation of the incident as one of domestic violence. The Crown referred me to a number of authorities which discuss relevant sentencing purposes in relation to incidents of domestic violence; they emphasise the sentencing purposes of punishment and personal and general deterrence. Those purposes were referred to in R v Edigarov (2001) 125 A Crim R 551 at [41]. In R v Dunn (2004) 144 A Crim R 180 at [47] Adams J, with whom the other members of the bench agreed, said:
Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind.
In relation to offences of domestic violence, in Pasa v Bell [2014] ACTSC 303 at [16] I said:
When considering the sentencing purposes set out in s 7 of the Sentencing Act, including general and personal deterrence, a sentencing court is entitled to consider the fact that an offence involved domestic violence, and that the violence has occurred at the victim's home. An offence involving domestic violence is one that involves abuse of a partner, former partner or other family member (using the term “family” in the broadest sense). Frequently, such offences occur in the home, where the inhibitions of an offender may be lowered, the impact on the victim may be heightened (as she or he is made to feel that a formerly safe place has been violated) and the occurrence of the offence is more readily concealed. Further, where a domestic violence offence occurs in the victim's home, it is often associated with secondary abuse to other family members.
I then made reference to a decision of Higgins CJ in R v Bell [2005] ACTSC 123 at [30] to [31]. At [31], his Honour emphasised the importance of specific and general deterrence as sentencing purposes in matters of domestic violence.
These offences occurred in the context of a previous relationship between the offender and the victim and involved violence within the victim's home, an apparent sense of entitlement on the part of the offender, and humiliation through verbal and text abuse of the victim.
The sentencing purposes of punishment, general deterrence and denunciation are very important, as well as the recognition of harm to the victim personally and the community generally through offences of this nature. The victim provided a victim impact statement in which she referred to impacts upon her of the type that frequently result from offences of domestic violence, including feelings of anxiety, difficulty sleeping, difficulty concentrating at work and elsewhere, and an adverse effect on her ability to form relationships. Since the incident, the victim has moved house because she felt unsafe in the apartment where the offence occurred.
Subjective Circumstances
The offender is 29 years of age. He has no prior criminal history. He was born and raised in Canberra. He is part of a large family. He has six sisters and four brothers. It is a close family. One of the offender's siblings suffers from a disability, and the offender assists by transporting his brother. The offender makes a contribution to the community through a support group, within which he is a mentor to young people who are at risk in relation to problems such as drug dependence. He assists such young people in a practical way and through helping to organise social activities.
The offender completed Year 12. He has been working in the building industry and he is currently a project coordinator in a company that undertakes renovation work. He has completed a number of short tertiary courses, and he is undertaking a diploma of building. He is also studying a Certificate IV course in youth work. His paid employment occupies six days a week. His employer describes him as a very good worker who is punctual and reliable.
The other character references testify to the fact that violent conduct is out of character for the offender, who is generally respectful, kind and caring.
I am mindful of the fact that the offending conduct occurred in the context of a relationship breakdown. The relationship had been a significant one, lasting a number of years. Emotions were running very high at the time.
The pre‑sentence report describes the offender as being at low risk of reoffending because of his pro-social background, the fact that he is employed, is a member of a close and supportive family and has no problems with drug dependence or mental health.
The offender lacks insight into the seriousness of his conduct and the impact on the victim. Although he is 29, when he gave evidence and through the course of these proceedings, he struck me as someone who was immature for his age. He does not appreciate the proper nature of a mature adult relationship.
Although I accept that this is probably a one‑off incident, it would be of assistance for the offender to undertake courses that may guide him towards greater insight and maturity in relation to interpersonal relationships. I believe that the elements of punishment and general deterrence can be addressed through a combination of penalties that include fines and the imposition of a good behaviour order of significant duration.
Sentence
The offender is convicted of each offence.
In relation to the assault occasioning actual bodily harm, I make a good behaviour order for 3 years under s 13 of the Sentencing Act, and I impose the following conditions. The offender is to report to Corrective Services at Eclipse House by 4 pm tomorrow and submit to their supervision for a period of at least six months and thereafter for any further period that they deem appropriate. He is to undertake any courses or counselling that they recommend.
I impose the following fines:
(a)for the first common assault, $500;
(b)for the second common assault, $500;
(c)for the threat to cause damage to property, $500; and
(d)for the final common assault, $250.
That is a total of $1750. The fines are to be paid within 12 months.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 4 December 2014 |
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