R v Rami El Jamal

[2009] NSWSC 686

CITATION:	R v RAMI EL JAMAL [2009] NSWSC 686
HEARING DATE(S):	1 May 2009
JUDGMENT DATE :	3 July 2009
JUDGMENT OF:	Hulme J at 1
DECISION:	Imprisonment for a term of 9 months. Conditional upon you entering into a good behaviour bond for a term of 9 months, I suspend the execution of the whole of that sentence for 9 months and direct you be released from custody.
PARTIES:	Regina Rami El Jamal
FILE NUMBER(S):	SC 2009/12329
COUNSEL:	Crown: Mr L Babb SC Ms A Mitchelmore Offender: Mr J Stratton SC
SOLICITORS:	Crown: S Kavanagh Offender: Legal Aid Commission

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

RS HULME J

Friday 3 July 2009

12329/09

SENTENCE

1 RS HULME J: Rami El Jamal stands for sentence for the offence of contempt of court. The circumstances leading to the present situation are as follows: on 6 April last, the offender's brother, Fadi El Jamal, was being tried before me on a charge of murder. I received information to the effect that the offender had, in a corridor outside the courtroom, threatened a witness in that trial, Tarek Baroudi. Mr Baroudi had been in the middle of his evidence but had been excluded from the Court for some time while legal argument and other matters proceeded.

2 Later that day, I charged the offender with contempt by way of uttering to Mr Baroudi a threat in words to the effect, "I'll smash you." I granted the offender bail and stood the proceedings over until 1 May last. On that day the offender pleaded not guilty.

3 Mr Baroudi, Detective De Feudis and an interpreter, Emil Salim, gave evidence on behalf of the Crown. The offender also gave evidence denying the words attributed to him and asserting that the only words being uttered by him at the time were by way of prayer, and not directed at Mr Baroudi. In remarks then made, I indicated that I rejected the offender's evidence and was persuaded beyond reasonable doubt that the offender had uttered the words attributed to him by Mr Baroudi. I accepted also that those words were directed to Mr Baroudi, and in consequence that, the offence was established. I rejected the evidence of the offender.

4 At the outset of those proceedings, Mr Stratton, who appeared for the offender, submitted that as the event alleged had occurred outside the courtroom and outside my presence, it could not constitute contempt in the face of the Court. I rejected that submission, a rejection which is supported by the decisions in Registrar Court of Appeal v Collins 1982 1 NSWLR 682; The Queen v Wigley (1835) 173 ER3 and other cases. I should also record, for it forms part of the background against which the contempt was committed, that Fadi El Jamal had been arrested and charged in September 2005. In 2007 a trial had commenced, but after some months, abandoned due to delays and failures on the part of the prosecution or police to produce documents. In 2008, a further trial in which the offender had given evidence and in which the jury had disagreed was held.

5 The trial in progress on 6 April 2009 had commenced on 9 February of this year. Mr Baroudi was a, if not the, principal Crown witness against Fadi El Jamal. He had been an associate of Fadi El Jamal and another brother Haissam, with whom he committed one or more armed robberies and had been to the El Jamal home. I mention this history of Fadi El Jamal's trial to indicate that the offender's contempt did not occur in the course of some recent stressful event such as Fadi El Jamal's arrest or a guilty verdict.

6 On the other hand, I accept, as Mr Stratton for the offender submitted, that the lengthy history must have imposed a certain amount of strain on the El Jamal family. Rami El Jamal, of course, consistent with the stance that he has taken, has given no evidence of any matters that may have actuated him to commit the offence.

7 Australia is a country which is governed by the rule of law. An integral part of the rule of law is that disputes between citizens and in the case of criminal charges between the Crown and offenders are determined by courts and other tribunals appointed for particular purposes. Essential to the operation of such courts is the ability and willingness of witnesses to give evidence. Threats to, or punishment of, witnesses for so acting, strikes at the foundation of the Court system. Furthermore, as is well known to those who are involved in or with the criminal elements in society, and as a deal of evidence in Fadi El Jamal's trial demonstrated, criminals as Mr Baroudi had been - who co-operate with police or give evidence for the Crown are at serious risk of retribution from other members of the criminal element.

8 While it must be recognised that the offender did not actually attack Mr Baroudi, and did not go so far as to threaten to kill him, and there is nothing to suggest the offence involved any significant premeditation, the offence is not one that can be regarded as otherwise than serious.

9 It was submitted by Mr Stratton that the meeting of the offender and Mr Baroudi in the corridor of the Court was accidental, I accept that the offender’s coming into close proximity with Mr Baroudi may have just been an incident of seeking to exit the Court building but, nevertheless I am not prepared to find that there was no forethought at all by the offender. Of course, I do not forget that the onus of proving premeditation lies on the Crown.

10 In concluding that the offence was serious - and Mr Stratton conceded that it was - I do not ignore the fact that there is no evidence to suggest that the threat had any operative effect by way of deterring Mr Baroudi from giving evidence in Fadi El Jamal's trial.

11 I think also I may take into account a belief that it was unlikely to do so. From knowledge gained during the course of that trial, I am satisfied that the circumstances leading to Mr Baroudi giving evidence must have presented him with far stronger incentives than the offender's threat not to co-operate with the authorities. Clearly the contempt would have been worse had Mr Baroudi been deterred, but the fact he was not does little to assuage the offender's subjective criminality.

12 The offender has a strong subjective case. He is 23 years old and his criminal record consists only of two assaults and one of resisting police, offences committed on the one day in June 2008. I should observe that as the penalties imposed on those offences were $500 each, and the offences were the first by the offender, they must have been regarded as fairly serious.

13 The offender left school at the end of year 10, was employed in his father's panel beating business for some 3 years and then completed a 4 year apprenticeship as a shop fitter. He is now employed by the same company as project manager and designer. His employer has stated to the author of a pre-sentence report with which I have been furnished that the offender is hard working and valued.

14 The author of that report has expressed the view that the offender is unlikely to require or benefit from supervision because there do not appear to be any underlying issues which such supervision could address. He has been assessed as unsuitable for a community service order at this time because he asserts he has some pre-existing physical injury and clearance from a medical practitioner, presently overseas, would be required. I have been told that another medical practitioner was approached but declined, no doubt, because of insufficient information on which to express an opinion, to confirm the back injury of which the offender complains.

15 At Mr Stratton's urging the sentencing proceedings went ahead on the basis that if I concluded community service was the appropriate form of punishment, I would provide an opportunity for this topic to be addressed.

16 In the pre-sentence report of 25 June 2009, it was said that the offender was assessed as unsuitable for periodic detention, he having said that on his solicitor's advice he did not wish to be assessed or sign the required undertakings. There is an issue as to whether this account is entirely accurate, but be that as it may, the offender has subsequently signed an undertaking as required by s 66 of the Crimes (Sentencing Procedure) Act.

17 The report also records that the offender has had a happy up-bringing in a close family environment. His mother informed the author of the pre-sentence report that the offender had not posed any problems in his formative years. The report goes on to record that Mrs El Jamal had instilled religious values in all of her children. I am unable to give this last mentioned matter any weight. To the Probation and Parole Service officer, the offender has maintained he did not threaten Mr Baroudi. On oath he gave evidence to similar effect before me.

18 In the circumstances of the case, my acceptance of the evidence of Mr Baroudi and Detective De Feudis carries with it the implication that the offender lied on his oath. That fact and his maintenance of the stance that he committed no offence lead also to the conclusion that the offender is not affected by remorse.

19 But there is a further matter which, in my mind, weighs heavily in favour of the offender. His elder brothers are professional criminals. Evidence given by Fadi El Jamal at his trials and other material put before me in bail applications he made, indicate that in his case that was the situation over a number of years. Other evidence in the trials gave a similar picture of Haissam. Not to have followed in their footsteps is something which argues very strongly in favour of the offender.

20 In sentencing, I am of course, required to take into account the terms of the Crimes (Sentencing Procedure) Act particularly ss 3A, 5 and 21A. I do not think it necessary to deal seriatim with all of the matters of aggravation and mitigation referred to in that last mentioned section, but it is clear that sub-paras 2(b) and (d) and 3(a), (b), (g) and (h) are relevant.

21 The nature of the contempt is such that I would not be doing my duty if I imposed a penalty which was or in any way could be thought to be the proverbial slap on the wrist. Counsel appearing for the Crown has put before me an extensive bundle of authorities on the topic of contempt together with a summary of the results. The table indicates a substantial range of conduct and sentences. Both counsel directed specific attention to some of those cases, but there is no such pattern that anything is to be gained by me referring to them. The Courts have made it clear that sentencing in one case is not to be dictated by reference to sentences imposed in only a few other cases with some effort made to value the differences in facts. The cases to which I have been referred draw attention to relevant factors and provide a guide, but none is definitive.

22 Notwithstanding the matters favourable to the offender, and notwithstanding that in a number of the authorities to which I was referred non-custodial sentences have been imposed, I am satisfied that the offence here amounts to such an attack on a basic principle of our society that it calls for a sentence of imprisonment. In so concluding, I am satisfied that no alternative is appropriate. Nevertheless, because of the offender's record, and his having been able to resist any temptation to follow his elder brothers' paths, I believe it would be proper to suspend that sentence, so that, providing he adheres to the standards he would seem generally to have followed hitherto, he will be able to go about his life without the interruption and disadvantages that actual incarceration would involve.

23 Mr El Jamal would you stand up please. Rami El Jamal, I sentence you to imprisonment for a term of 9 months. Conditional upon you entering into a good behaviour bond for a term of 9 months, I suspend the execution of the whole of that sentence for 9 months and direct you be released from custody.

24 Do you understand the effect of that? It is that, so long as you enter into a good behaviour bond, and that is your choice, you will not have to actually serve your time in gaol. However, the good behaviour bond will involve you undertaking to reappear at court if called upon to do so. You would not be called upon to do so so long as you are of good behaviour. Do you understand?

25 OFFENDER: Yes.

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