R v Moustafa Mariam

[2012] NSWSC 1496

Supreme Court

New South Wales

Medium Neutral Citation:

R v Moustafa Mariam [2012] NSWSC 1496

Hearing dates:

30 August; 9th November 2012

Decision date:

29 November 2012

Before:

Latham J

Decision:

Convicted of Affray.

Taking into account the pre-sentence custody of one year 6 months 22 days offender is sentenced to a non parole period equal to that period to date from 7 May 2011 expiring 28 November 2012. Balance of term is 8 months and 9 days expiring 6 August 2013

Catchwords:

CRIMINAL LAW – sentencing – guilty plea – affray – need for parity – relevance of discharge of loaded firearms – presence of bystanders at risk of serious injury – evidence of planning and premeditation – offence not in worst category – limited role of offender – need for general deterrence – limited need for specific deterrence – early plea – reasonable prospects of rehabilitation

Cases Cited:

Khanwaiz & Ors v R [2012] NSWCCA 168
R v Abdulhardi NSWSC 20 April 2012
R v Mariam [2012] NSWSC 1023
Stevens v R [2007] NSWCCA 152

Category:

Sentence

Parties:

Regina - (Crown)
Moustafa Mariam - (Offender)

Representation:

Counsel
P Barrett - (Crown)
T Hoyle SC - (Offender)
Solicitors
Solicitor for Public Prosecutions - (Crown)
Matouk Joyner Lawyers - (Offehder)

File Number(s):

2010/96565

SENTENCE

1. The offender, Moustafa Mariam, pleaded guilty to Affray on 30 August 2012 for his part in the events of 25 June 2009 in a carpark at Milperra, where eleven young men gathered to settle a dispute between two opposing groups. The tragic consequences of that evening have already been the subject of sentences imposed upon this offender's older brother, Mahmoud Mariam (see R v Mariam [2012] NSWSC 1023). This offender stands to be sentenced on the basis of an agreed statement of facts that does not attribute to him any knowledge of the presence of firearms at the scene.

1. The offence of affray caries a maximum penalty of 10 years imprisonment. There are obvious considerations of parity at play, given the sentencing of a number of co-offenders for their part in the same affray. I have previously commented on the absence of any upward movement in relation to the range of sentences imposed for affray since the maximum penalty was doubled as and from 15 December 2005 ; R v Abdulhardi NSWSC 20 April 2012.

The Offence

1. At about 9pm on 25 June 2009, HEK was involved in a physical assault with Samir Mohamad at Bankstown's Centro shopping centre. AM was also present. The assault was interrupted by security staff and by police. Both groups were escorted from the premises. HEK was the instigator of the conflict by referring to Samir Mohamad as a "dog".

1. Over the following hour, numerous telephone calls were made between associates and family members of the two opposing camps, namely the offender's group and the El Kobaili group, as well as between members belonging to each group. During these telephone calls, arrangements were made to meet in order to pursue the earlier conflict. AM (the offender's younger brother) telephoned the offender and his older brother Mahmoud Mariam, resulting in the offender picking up AM outside the address of Samir Mohamed at Padstow in a green Honda two door coupe. AM and the offender spoke with Samir Mohamed and Ibrahim Mohamed about the earlier incident and dispute with HEK at Bankstown.

1. At about 10:29pm, three members of the Mariam group, Mahmoud Mariam, Tarek Elbadar and Rami Abdulhardi, travelled to the vicinity of the car park in a Mazda. They parked near a roundabout on Starkey Drive and walked from the vehicle into the car park adjacent to a Hungry Jack's food outlet. The trio was seen by a number of employees of that outlet. They changed direction and walked towards the Aldi store on the northern edge of the car park. They remained in view of the Hungry Jack's employees until those employees left the parking lot shortly thereafter.

1. At about 10:34pm, the Honda car driven by the offender, with AM as passenger, pulled into the car park and parked between KFC and Hungry Jack's. They remained in the car.

1. A short time later, a white van carrying the El Kobaili group entered the car park and parked alongside the Honda. At this point in time, the high beam of the Honda was activated, whereupon some members of the Mariam group started walking towards the white van.

1. Almost immediately, Mahmoud Mariam, who was advancing from the direction of the Aldi store perimeter, began shooting at the El Kobaili group. One of the occupants of the van returned fire.

1. HEK and another occupant left the white van while its engine was still running and ran to the Honda. HEK started fighting with this offender. Other occupants from the van began attacking the Honda with a large piece of wood and a steel wrench.

1. One of the bullets fired by Mahmoud Mariam in the car park struck a truck driver, Mr Knight, who was travelling on Milperra road, resulting in his immediate death.

1. Mr Abdulhardi received serious gunshot wounds to the abdomen. This offender received gunshot wounds to the right forearm.

1. Within minutes of these events, the El Kobaili group retreated to the van and left the car park. This offender was driven to Bankstown Hospital, together with AM, by Tarek Elbadar. Meanwhile, Mahmoud Mariam drove from the scene in the Honda at high speed, pursued by police, and was ultimately arrested in the front yard of his home. The Ruger semiautomatic pistol used by Mahmoud Mariam was recovered by police from the side of the road between the car park and his home. The magazine was empty. Eight spent cartridges and two live rounds from the Ruger were found within the car park.

1. In addition, there were four spent rounds from another .22 calibre weapon, a rifle, and one further unfired cartridge from the same weapon recovered from the car park.

1. The offender's role in these events consisted of driving his brother to the car park in the Honda, in order to provide assistance to AM should it be required and engaging in an assault with HEK.

The Objective Gravity of the Offence

1. I have previously considered the extent to which the Court could have regard to the fact that the discharge of firearms resulted in the death of an innocent bystander in assessing the gravity of the offence. I repeat what I have previously said on this issue for the purposes of sentencing this offender.

1. Most relevantly, in Stevens v R [2007] NSWCCA 152, Price J (McClellan CJ at CL and Hidden J agreeing) said at [25] to [27] :-

In determining an appropriate sentence for an offence of affray contrary to section 93C of the Crimes Act an offender's conduct is to be considered in the context of the conduct of a co-offender. The level of violence used in the scale of the affray is relevant. An offender however, may only be sentenced for that part of his conduct and the conduct of the co-offender which give rise to the offence of affray and not that conduct which resulted in some other offence being committed by him or by the co-offender; see R v Huynh [2000] NSWCCA 18; R v Eleter [2003] NSWCCA 130 and R v Fajka [2004] NSWCCA 166.

His Honour found as I have mentioned that the applicant and Davis were the aggressors. Furthermore it was open to the judge to find that they had attacked both victims with extreme violence. The attack by Davies upon Mrs Herring with a tyre lever was part of the co-offender's conduct which gave rise to the offence of affray. In my view, the nature and extent of the physical violence was an objective factor relevant to the seriousness of the offence.

1. Most recently in Khanwaiz & Ors v R [2012] NSWCCA 168 , Beech-Jones J said (Basten JA and Harrison J agreeing) :-

50. Further the significance of the distinct element of the affray charge, namely the effect of the attack upon persons at the scene, cannot be understated. Offences such as s 93C have a wider focus that just the impact on the direct victim of the unlawful violence. Section 93C is located within Part 3A of the Crimes Act which deals with public order. Attacks of the kind participated in by Noman can undermine the public's confidence in the security of their streets and homes. His Honour recognised this is in the sentencing judgment when referring to the "separate policy considerations effectively requiring separate assessments of the criminality and issues of accumulation" with the affray offences.

1. It is axiomatic that in determining the appropriate sentence to be imposed upon the offender for the affray, he is not to be punished for the manslaughter of Mr Knight. He stands to be sentenced on the basis of his individual role in the commission of the affray. That, however, does not preclude the Court from taking into account, for the purposes of assessing the objective gravity of the offence, the fact that the discharge of loaded firearms was a feature of the affray. That feature of the offence demonstrated the extent to which members of the public were put in fear for their personal safety.

1. To the extent that the gravity of the offence is affected by its short duration and the fact that it occurred late at night, after the various retail outlets on the perimeter of the car park had closed, those factors are of some, albeit, limited significance. The relatively short period of time during which the affray took place, in the order of minutes, was no doubt the product of the repeated discharge of at least two firearms and the wounding that resulted to two of the Mariam group. The participants in the affray were in exposed positions in the car park. The longer they remained there, the more likely it was that they themselves would be injured. Notwithstanding that the fast food outlets were no longer trading, there were members of the staff of those outlets who were waiting in the car park to be collected by friends and relatives. Moreover, adjacent to the car park, there was a service station and 711 store which was, at the time of the affray, trading with members of the public. All of these people were potentially put at risk of serious injury. That risk materialised in the death of Mr Knight.

1. The offence demonstrated a measure of planning and premeditation, the participants were variously armed with firearms, pieces of timber and other implements, it was a large group, it occurred in full view of numerous members of the public in a public car park and it involved the actual use of violence. These are all factors that are relevant to an assessment of objective gravity.

1. In the result, it is not necessary to embrace the Crown's description of the offence as one approaching the worst case. It is always possible to envisage circumstances that would render the offence more objectively serious, although that does not preclude a finding that an offence is in the worst case category. This affray did not take place at a time or in a place that engendered in a large number of members of the public fear for their personal safety. That does not detract from my assessment of the offence as objectively a particularly serious example of affray.

1. It may be acknowledged that this offender did not play a major part in the infliction of violence. It would appear to be the case that he and his younger brother intended to stay in the car, in the expectation that their older brother and his two friends would attract the attention of the El Kobailis and move the hostilities away from the Honda. I am satisfied beyond reasonable doubt that this offender was instructed by his older brother to flash the headlights to signal the arrival of the van and that this strategy must have been discussed earlier in the evening. The offender must have known that there was a significant risk of a violent confrontation, yet he chose to involve both himself and his younger brother.

1. Considerations of general deterrence are prominent in the circumstances of this offence. Specific deterrence is not wholly irrelevant. The offender was 24 years of age at the time of the offence and had acquired a short criminal history, including two counts of robbery in company in 2001 and a goods in custody offence. He was not unaware of the jeopardy in which he placed himself and his younger brother by their participation.

Subjective Circumstances

1. The offender was born into an immigrant Lebanese family who came to Australia 35 years ago. The offender has four brothers. His parents set up a panel beating and spray painting business which they have sustained for over 30 years. His father is described as a hard worker and a strict disciplinarian, against whom this offender rebelled from time to time. He self-reported engaging in defiant and antisocial behaviour in his adolescence and early adulthood. He has become closer to his parents and they remain supportive of him.

1. The offender has had limited access to two of his brothers as a result of bail conditions imposed on all three of the siblings. Prior to the offence, the offender described a close relationship with his brothers. The offender admits that he has abused cocaine, cannabis, benzodiazepines and alcohol at various times.

1. The offender left school at 16 years of age. He commenced full-time employment with his father as a spray painter up until the physical injuries sustained during the offence put an end to that vocation. Since his release from custody he has established his own car rental business with his family's financial support. He met his wife at the age of 24 (that is at about the time of the commission of the offence). After his release to bail he rented his own home where he and his wife commenced a family. They presently have two young daughters.

1. The offender presently suffers from a stomach ulcer and the sequelae of the gunshot injury to the arm. He continues to require medical treatment for these conditions. The offender also claims to suffer from symptoms associated with the trauma of the affray. These include headaches, poor concentration, short-term memory deficits and depression. He was dependent on Zoloft and Xanax until recently and he abused alcohol until his incarceration. A report from a psychologist states that the offender "remains at risk of future substance abuse as his ability to generalise long-term abstinence has yet to be tested."

1. According to the psychiatric report, the offender reported a series of symptoms that qualify for the diagnosis of post-traumatic stress disorder, arising from the injury he sustained and his presence during the repeated discharge of firearms. The offender also expressed regret and sorrow over the death of an innocent man and displayed a degree of victim empathy by way of referring to the consequences had a member of his own family been killed. This expression of remorse is hearsay in nature and was not verified by evidence from the offender himself.

1. I do not regard the offender's injury and subsequent post-traumatic stress disorder as a relevant consideration on sentence. These matters do not qualify as extra curial punishment, rather they arise directly out of the commission of the offence.

1. I accept that there is a measure of remorse, although it is difficult to ascertain to what extent it is an expression of regret on the part of the offender for engaging in the offence and suffering the consequences.

1. It is relevant to note that the offender first offered to plead guilty to affray in full satisfaction of an indictment which charged the offender with murder on 24 May 2011 towards the end of the committal proceedings. That offer was rejected by the Crown.

1. The applicant was in custody on the offence of murder between 21 April 2010 and 12 November 2011. Thereafter he was on strict bail conditions. The offender again offered to plead guilty to affray in full satisfaction of the indictment on 13 February 2012 in the course of a pre-trial directions hearing. That offer was also rejected by the Crown. On 15 February 2012 a separate trial was ordered for the offender and AM. Some of the more onerous bail conditions were varied thereafter.

1. On 1 August 2012, the offender again confirmed his offer to plead guilty to affray in full satisfaction of the indictment. On 17 August 2012 the Crown informed the Court that the offer was under consideration. On 28 August 2012 the Crown advised that the murder charge would be no billed. On 30 August 2012 the offender finally entered his plea of guilty to affray following the preparation of the agreed facts.

1. Given this history, the offender is entitled to a discount on the sentence otherwise appropriate to the objective and subjective circumstances, in order to reflect what would have been significant utilitarian value, had the plea been accepted by the Crown at the earliest opportunity. In my view, the offender is entitled to a discount of 25%.

1. There are reasonable prospects of rehabilitation if the offender continues on his present path and devotes himself to the care of his family and the pursuit of gainful employment.

1. But for the early plea, and having regard to the offender's role which was arguably less than that of HEK, I would impose a sentence of three years imprisonment. The sentence imposed upon HEK recognised his status as a juvenile. That consideration does not apply to this offender. The application of the discount results in a sentence of two years and three months.

1. A modest adjustment to the usual proportion between the non parole period and the head sentence should be made to allow for the fact that this is the offender's first time in custody and his need for ongoing medical and psychological treatment to further his rehabilitation.

1. Taking all of these matters into account, I propose to sentence the offender as follows :-

(i)   Moustafa Mariam, you are convicted of affray.

(ii)   Taking into account the pre-sentence custody of one year, 6 months and 22 days, I impose a non parole period equal to that period, to date from 7 May 2011, expiring 28 November 2012.

(iii)   The balance of term is 8 months and 9 days, expiring 6 August 2013.

Decision last updated: 06 December 2012