R v Nasr

[2023] NSWDC 435

District Court

New South Wales

Medium Neutral Citation:

R v Nasr [2023] NSWDC 435

Hearing dates:

12 October 2023

Date of orders:

12 October 2023

Decision date:

12 October 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Milad Nasr is convicted.

2   I impose a term of imprisonment of 1 year and 6 months.

3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (12 October 2023) and expire on 11 April 2025.

4   The offender must report to the Bankstown Community Corrections Office on or before 4pm on 19 October 2023.

5   The standard conditions of the order apply:

(a)   the offender must not commit any offence; and

(b)   the offender must submit to supervision by a Community Corrections Officer.

6   The following additional conditions apply:

(a)   the offender must abstain from consuming and/or taking all restricted or prohibited drugs, except those prescribed by a medical practitioner; and

(b)   the offender must participate in and receive mental health treatment as reasonably directed by Community Corrections.

Catchwords:

CRIME — Violent offences — Reckless wounding

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v R (2013) 249 CLR 571

R v Dickinson [2004] NSWCCA 457

R v Hampton [1999] NSWCCA 341

R v Olbrich (1999) 199 CLR 270

R v Watt (unreported 2 April 1997, NSWCCA)

Category:

Sentence

Parties:

Rex (Crown)
Milad Nasr (Offender)

Representation:

Counsel:
W Barber (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Richard Cummins (Offender)

File Number(s):

2022/60066

Publication restriction:

None

JUDGMENT

Introduction

1. Milad Nasr (the offender) appears for sentence after pleading guilty in the Local Court to an offence of reckless wounding (DV), contrary to s 35(4), Crimes Act 1900. The maximum penalty for the offence is seven years imprisonment and the standard non-parole period is three years.

Approach to Sentencing

2. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

3. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

4. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

5. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

6. The victim in this matter is Dyllan Peacock, the offender’s brother-in-law. The offender is married to the victim’s sister and they have four children.

7. On 1 March 2022, the victim attended the offender’s residence in Bankstown to assist his sister with the children.

8. Later that day, the offender arrived home from work and he and the victim began to consume alcohol together.

9. At 9pm, the offender began beating a drum and throwing chairs around the back patio area. The victim alerted his sister to the offender’s behaviour. The offender’s wife decided to take their three daughters for a drive, as the noise was scaring one of them.

10. As the offender’s wife was loading the children into her car, the offender exited the house and demanded that his wife move her vehicle so he could drive his vehicle out of the driveway. His wife complied and he drove away.

11. A short time later, the offender returned home in his car. His wife was unloading the children from her car to take them inside. Two of the children were still in the car when the offender pulled aggressively into the driveway of the residence at speed.

12. The victim observed the offender’s behaviour and was fearful for the welfare of his nieces. The victim approached the offender’s car and removed the offender from the driver’s seat. A physical fight started between the offender and victim.

13. At this time, an ambulance was leaving Bankstown Hospital Emergency Department, which is located directly across from the offender’s residence. Two paramedics saw the fight occurring. Bankstown Hospital Security were alerted to the incident and two security guards attended to assist the ambulance staff to break up the fight.

14. The offender’s wife told the paramedics to remove the victim from the fight, because the offender had a knife and she was concerned that he would stab him. Paramedics told the victim to get into the ambulance, but he did not. The paramedics got into the ambulance and locked the doors.

15. At this point, the offender said that the victim was an “ice junkie” and that he was “shooting up” in front of the children. He said, “I can shank him”. The offender also said that he would “pump him if I had a gun”. One of the security guards told the offender to walk away. The offender then said, “If I had a gun…I’d blast all you mother fuckers”.

16. The offender then ran inside his residence to the kitchen and took a large stainless steel knife which was approximately 30cm in length with a 16cm non-serrated blade. The offender ran back into the street and brandished the knife at the victim. The victim ran from the offender and the offender chased him around the ambulance. Whilst chasing the victim, the offender slashed the victim’s left elbow, causing a large laceration. The victim fell to the ground and was laying on his back. The offender made a stabbing motion three times towards the victim’s torso, wounding the victim’s abdomen. The offender was stabbing at the victim for approximately 10-15 seconds, before running back into his residence. He left the knife in the middle of the street.

17. The paramedics attended to the victim before conveying him to Liverpool Hospital.

18. Police attended the scene, arrested the offender and seized the knife, a white t-shirt stained with blood that had been cut off the victim by paramedics and a shirt that was found next to the offender’s car.

19. At Bankstown Police Station, the offender was placed in a time out due to his intoxication. He declined to be interviewed and refused to consent to a forensic procedure.

20. The victim’s injuries were as follows:

1. stab wound to abdomen – 3 cm penetrating left flank wound opened to 10cm;

2. elbow laceration;

3. large 12.6cm haematoma in the left lateral flank subcutaneous tissues, extending into the left external oblique muscles.

21. The victim was discharged from hospital after four days.

Sentencing Assessment Report

22. The Court received a Sentencing Assessment Report which can be summarised as follows.

23. The offender currently resides in stable accommodation with his wife and four children in South West Sydney.

24. He maintains full-time employment as a concrete pump operator.

25. His criminal history dates back to 2004 and consists of driving, custody of knife and drug offences. He has no convictions between 2008 and 2021.

26. He told the author of the report that he felt threatened by the victim at the time of the offending and justified his offending as self-defence. He reported drinking all day in the lead up to the offences and identified the link between his consumption of alcohol and his offending.

27. He denied being a violent person but acknowledged that the offending involved violence.

28. He expressed a willingness and ability to undertake intervention. He is currently engaged with a psychologist. He expressed a willingness to undertake community service work.

29. The offender was assessed as at a medium-low risk of re-offending.

Offender’s Case on Sentence

30. The offender tendered the following documents:

1. psychological reports of Mr Chafic Awit dated 27 July 2023 and 11 October 2023;

2. report of Ross Pene, Connect Global Limited Program Founder/Director dated 27 July 2023;

3. letter from the offender’s father dated 31 July 2023;

4. letter from the offender’s wife dated 9 October 2023; and

5. letter from the victim, Dyllan Peacock dated 9 October 2023.

31. The offender was supported in Court by family members, including Mr Peacock.

32. The following is a precis of the evidence relied upon by the offender.

33. The offender was born in Sydney. He is the eldest of two siblings born of his parent’s union. His parents divorced when he was seven years old. He moved with his father to Melbourne, whilst his sister lived with his mother in Sydney.

34. He reported significant violence inflicted by both parents on one another, but not on the children.

35. He moved in with his mother and her new partner when he was nine. He lived with them for four years but did not get along with his stepfather. He moved back in with his father when he was 13 and remained there until he was 21.

36. When the offender was nine, a cousin who was four years older than him touched him inappropriately. This continued for two years. No one believed him when he told them, even when he tried to seek assistance.

37. The offender experienced the deaths of a number of family members before the age of 18, including two of his cousins.

38. Throughout his schooling, he experienced concentration issues and felt like he could not stay in the one spot for too long. He attended primary school in Sydney until Year 4, when he moved with his father to Melbourne. He commenced Year 7 at Trinity Regional College. He struggled with school and moved to Moreland City College part way through Year 8, before moving back to Sydney. He attended Belmore Boys High School from Year 8 to Year 10. He completed the School Certificate.

39. He was first employed by his father in his tiling business on weekends whilst at school. Partway through Year 10, he commenced work in a concrete placement company and has worked in this industry since then.

40. Since leaving school, the offender used cocaine and cannabis. He stopped consuming these substances in 2015 when he and his wife had their first child. At this time, the offender’s alcohol consumption increased significantly and worsened over the COVID-19 lockdown periods when he was unable to work. He reported that he would often blackout as a result of his alcohol consumption. He has not consumed alcohol or any prohibited drug since the offending.

41. The offender purchased a home for his family prior to the COVID-19 pandemic. The financial pressures of the pandemic exacerbated his mental condition and alcohol consumption.

42. He married his wife in 2014. He and his wife have a strong relationship. He told the psychologist that he felt like a failed husband and father whilst incarcerated and struggled to sleep.

43. Whilst on remand for the current offence, he completed the Residential Drug Rehabilitation Program at Connect Global Limited. The program took six months. Mr Pene wrote that the offender was very engaged in the program and displayed a desire to create a new lifestyle for himself and his family. He displayed excellent engagement in the program and discipline and was ultimately appointed Senior Resident. He was frequently subject to random urine drug tests, which all returned negative results.

44. He returned to work as a concreter the day after completing the program.

45. He reported witnessing a number of violent incidents in prison.

46. He expressed remorse to the psychologist, his father and his wife.

47. The psychologist opined that the offender meets the diagnostic criteria for Posttraumatic Stress Disorder, Major Depressive Disorder, Substance Use Disorder (in sustained remission) and Alcohol Use Disorder (in sustained remission). The psychologist also opined that these conditions impaired the offender’s decision-making abilities in the lead up to, and during, the offending period. I have some reservations about accepting the first two of these diagnoses, but I accept that there were good reasons for the offender to feel under financial pressure at the time of the offence, that he was suffering psychological symptoms and that he turned to alcohol to cope.

48. The offender has engaged in psychological counselling with Mr Awit on eight occasions. I infer that he has found this to be of assistance.

49. The offender has provided care and support for his father since about mid-2014 when his father was diagnosed with bowel cancer. His father was unaware of the offender’s addiction issues until the offence occurred. The offender’s father has supported him through his rehabilitation and informs the Court that he will continue to do so.

50. The offender’s wife describes him as a good husband and father who is committed to providing financially and emotionally for his family. His wife noticed a decline in his mental health during the pandemic that he alleviated with alcohol. On the day of the offence, she witnessed the offender and the victim drink to excess and get into an argument before the stabbing occurred. His wife describes the offender as a “changed man” after completing residential rehabilitation and confirmed that he has remained abstinent.

51. The victim told the Court that he came to the offender’s house after smoking ice on the day of the incident, where they set about drinking a lot of alcohol. The victim got angry with the offender and physically assaulted him. The victim accepts that he is a bigger man than the offender and that he “aggravated” him before the offence. The victim describes the offender as a good husband and father and that separation in the family has adversely affected all of them. The victim also described a huge change in the offender since his completion of residential rehabilitation.

Consideration

Objective seriousness

52. The offence involved some limited planning. The offender went inside the house to retrieve the knife before returning to continue the altercation. The offender chased the victim with the knife. The offender slashed the victim while he was running away and then tried to stab him when he was on the ground. The offender stabbed the victim in the abdomen causing a 3-10cm wound to the victim’s left flank. The victim required treatment and was in hospital for a few days but has made a full recovery.

53. The offence involved some violence and the offender made threats towards a number of people. There was some provocation by the victim.

54. The offence involved the use of a knife that was capable of inflicting serious injury or death.

55. The mental element of the offence was recklessness.

56. The offender had a deprived upbringing in which he was exposed to domestic violence, family breakdown, sexual abuse and disrupted schooling. I am satisfied that the offender’s moral culpability for the offence is reduced to some extent: Bugmy v R (2013) 249 CLR 571.

57. I have taken into account the maximum penalty for the offence and the standard non parole period as legislative guideposts to arriving at an appropriate sentence.

Deterrence

58. Offences of personal violence are viewed very seriously by the courts. Deterrence is an important consideration particularly in cases involving the use of a weapon. Any assault involving the use of the knife must be regarded as calling for a significant sentence, for the purposes of both general and specific deterrence to be given any effect: R v Watt (unreported 2 April 1997, NSWCCA). The community has a rightful expectation that the courts will impose penalties for these offences that demonstrate the offences are serious and will attract serious punishment.

59. There is also a need for specific deterrence, but it is reduced for the reasons that follow. At the time of the offence the offender had serious addiction issues. He has dealt with those issues by attending and successfully completing residential rehabilitation. I am satisfied that the offender understands that his addiction issues led to the commission of a serious offence and that he is committed to abstinence.

Aggravating factors

60. The offence involved the actual use of a weapon: s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999. The Court of Criminal Appeal has frequently observed that the use of a knife is a feature that specially aggravates the seriousness of an offence: R v Dickinson [2004] NSWCCA 457 at [23]. The presence of a knife in an emotionally charged situation increases the danger and the penalty which is liable to be imposed: R v Hampton [1999] NSWCCA 341 at [10].

61. The offence was committed in the presence of the offender’s children: s 21A(2)(ea) Crimes (Sentencing Procedure) Act 1999. The children were scared, screaming and crying at the time of the altercation.

Mitigating factors

62. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated through his successful completion of residential rehabilitation that he has good prospects of rehabilitation. S

63. The offender has expressed remorse to the psychologist and his family and his plea of guilty also indicates remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999.

64. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that the offender’s time in custody was made more onerous by reason of those restrictions.

Other matters

65. The penalty imposed for domestic violence offences must recognise the human dignity of the victims. It must also denounce the offending conduct as unacceptable behaviour.

Penalty

66. Milad Nasr is convicted.

67. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

68. The appropriate term of imprisonment after taking into account the discount for the plea of guilty is 2 years.

69. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the following reasons.

70. The risk of the offender re-offending is low. The offender has committed to a regime of abstinence and has demonstrated that he has good prospects of rehabilitation. He is remorseful and willing to engage in interventions. I am satisfied that community safety will be best served by allowing the offender to continue his rehabilitation in the community on an ICO.

71. The offender has served 108 days in custody bail refused for this offence, before being released on bail to undertake residential rehabilitation. He should be given further credit for the residential component of the program. I will reduce the term of imprisonment by six months to take into account both periods of pre-sentence custody, because an ICO cannot be backdated.

72. I impose a term of imprisonment of 1 year and 6 months.

73. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (12 October 2023) and expire on 11 April 2025.

74. The offender must report to the Bankstown Community Corrections Office on or before 4pm on 19 October 2023.

75. The standard conditions of the order apply:

1. the offender must not commit any offence; and

2. the offender must submit to supervision by a Community Corrections Officer.

76. The following additional conditions apply:

1. the offender must abstain from consuming alcohol and/or taking all restricted or prohibited drugs, except those prescribed by a medical practitioner; and

2. the offender must participate in and receive mental health treatment as reasonably directed by Community Corrections.

77. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or a revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full-time custody.

77. The offender must attend the Registry to confirm his residential address, so that a copy of the order can be posted to him.

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Decision last updated: 19 October 2023