R v Shaba, Dilan

[2010] NSWDC 34

CITATION:	R v Shaba, Dilan [2010] NSWDC 34
JUDGMENT DATE:	18 January 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Sentence to a non-parole period of 3 years to date form the 18th January 2010 and expire on the 17th January 2013. Balance of term of 3 years to expire on the 17th January 2016.
CATCHWORDS:	Criminal Law - Sentencing - Malicious wounding with intent to inflict GBH - offender aligned with others seeking payback for earlier incident - disproportionate vigilante response - victim lured to one side by trickery - knife concealed until used - penetration through left side to kidney - surgery - long recovery period - impaired kidney function. - Criminal Law - Sentencing - Victim Impact Statement - purposes of VIS - limited to particulars of personal harm as direct result of offending conduct - offensive, threatening, intimidating, harassing material impermissible - unsworn evidence - not subject to testing - limited use when assessing criminality - VIS failed to comply - reasons given. - Criminal Law - Sentencing - Standard Non-Parole Period - after trial - mid-range of seriousness - reasons for not setting SNPP - absence of significant record - youth.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act Crime (Sentencing Procedure) Regulation 2005
CASES CITED:	R v Hearne (2007) 124 AcrR 457) Tran [1999] NSWCCA 109, R v Townsend and Cooper unreported NSWCCA, 14th February 1995. R v James Fryar [2008] NSWCCA 171
PARTIES:	Regina Dilan Shaba
FILE NUMBER(S):	2007/00008280
COUNSEL:	Crown: M Cuneen Defence: P Hogan

JUDGMENT
1. Dilan Shaba is no stranger to the use of violence as a means to an ends. He was born in Iraq into an Assyrian Christian family. The Syrian Christians in Iraq are a minority group subject to strong ethnic/religious tensions often reaching levels of lethal violence. One of his uncles was killed in violence attributed to ethnic/religious tensions. Only the naive would believe the violence was all one way, but being a minority meant the greater risks of harm came from the majority towards the minority.

2. In high school here in Australia, or in New South Wales, violence came as part of the baggage brought by refugees. That is not to suggest there was not already too much violent activity in our metropolitan regions fomented by ethnic/religious tensions to be found between Asians, Syrians, Lebanese, islander groups attending or otherwise associated with some high schools. During his high school years at Bonnyrigg, Shaba was involved in gang related activities which included violent activities based on ethnic issues.

3. Today Dilan Shaba is to be held accountable for the malicious wounding of Carlos Sawa with intent of doing Sawa grievous bodily harm on the night of 25 February 2006 in a violent melee in Nelson Street, Fairfield. As sentencing judge it falls to me to determine the appropriate sentencing outcome for this offence upon this victim being harmed in the Fairfield community by this offender.

4. In so doing, it will be necessary to determine the facts of the offence. There are also a number of other matters that will need to be attended to, including the nearly four year period of delay between offence and sentence, and whether that should have any impact on sentence, whether a standard non parole period is to apply, and against all that I must have regard to the protection of the community.

Fact Finding
5. My fact finding task necessarily requires me to find facts consistent with the outcome of the jury's deliberations. There is no obligation to find facts at either extreme of favourability or unfavourability to the offender. The facts must be a reflection of my findings on the evidence consistent with the jury's verdicts.

6. Shaba was found guilty by a jury who were in fact considering two charges brought against him. Shaba also faced a trial on a charge of wounding Carlos Sawa's younger brother Laurence. On the second of the two charges, the jury returned a verdict of not guilty. Both charges arose from the same melee. Thus when determining the facts upon which he is to be sentenced for the wounding of Carlos, the fact finding task requires some understanding of why Shaba may have been acquitted of the Laurence wounding.

7. There is no dispute Laurence was wounded. Shaba's defence was that it was not he that caused the wound. The circumstances in which Laurence was wounded were more hectic. Laurence, his father, and supporters had reacted to the earlier wounding of Carlos. There was scope for another person to have wounded Laurence. While self defence was not run by either the Crown or Shaba, it was put by me in respect of the Laurence wounding.

8. While the jury may have regarded Laurence as unreliable around the circumstances of his wounding, it is unlikely that they regarded him as generally unreliable to the circumstances seeding the ultimate melee in Nelson Street. I am satisfied that the jury accepted the evidence of Carlos Sawa.

9. On 25 February 2006 Laurence, then aged fifteen, had attended a cousin's birthday party at a community hall in Fairfield. During the course of that party, word came back to the Sawa family home that there may have been alcohol at the party. Carlos aged twenty-three went to check. He saw his younger brother drinking. It was decided to take him home. Before they could leave, a fight broke out. Neither of the Sawa boys had any reason to be angry at anyone at the party.

10. Carlos, thinking Laurence may have been become involved as he (Laurence) was saying his good-byes, investigated. One nineteen-year-old named Sammy jumped on Carlos' back. There was some pushing and shoving. There was an exchange of words. Then the two Sawa boys and their sister left and returned to their home.

11. Fifteen minutes after returning home, Carlos received a call on his mobile phone. He was told to go to the 7-Eleven or "We will come down to your house". He told his caller that he would go to the 7-Eleven.

12. Before he went, however, Carlos reported the call to his father, who determined the proper course was to go to the Fairfield Police Station. Carlos, the father and Laurence went in one car, two cousins followed in another.

13. Not far from the Fairfield police station is a reception house. When the Sawas arrived, there was a wedding reception in progress. Parking was at a premium. There were no parking spots near the police station. The nearest was 300 or so metres from it.

14. It seems, however, that enquiries may have been made over the mobile phone by others seeking to locate Carlos Sawa. When he arrived in Nelson Street, an acquaintance told him "they are looking for you". Carlos asked, "Who." The answer "Sayed (the older brother of Sammy) and whoever else is with him."

15. As this conversation was finishing, two vehicles arrived with several persons. They parked so as to block at least one of the Sawa vehicles. Sayed Hirmiz and his younger brother Sammy were in one car, Dilan Shaba was in a second car with others. Sayed Hirmiz gave evidence that he was not there. I am satisfied the jury took a different view. The offence had its origins in events occurring earlier that evening between Sammy Hirmiz and Carlos Sawa. I am satisfied that the jury accepted other Crown evidence establishing that Shaba was in the company of these two men and at least two others.

16. Carlos and Shaba were not associates, but were known to each other. Sayed approached Carlos saying words to the effect, "Didn't you know he was my brother," and then uttered a threat of some kind. Shaba also approached. His hand was concealed beneath clothing. He said to Carlos Sawa that he wished to talk to him. Carlos was facing him. He put one hand on Carlos' left side and with the other hand withdrew a knife concealed in his clothing and plunged it into Carlos Sawa's left flank penetrating through the left kidney.

17. The entry wound was through the left abdominal wall into the left kidney entering from the back and penetrating through the front of that kidney.

18. To this point there were no fights, no confusion, just the earlier remarks from Sayed and the singling out of Carlos by Shaba. When other supporters of Carlos realized what had happened, they immediately responded. In the course of that response, other injuries were incurred by Laurence. The jury by its verdict has determined the Crown has failed to prove Shaba is responsible for them. That finding by the jury must be given full recognition by me.

19. The immediate impact of the wound was to cause internal and external bleeding. Carlos Sawa began to feel dizzy. He was concerned about his brother's injuries, which must have occurred shortly after his own.

20. Carlos Sawa was taken by ambulance from the scene to a nearby hospital. There he was subject to immediate surgery to stop the bleeding and insert a ureter stent. A second surgery procedure was required to short circuit blood that had been travelling from arteries to a vein without passing through the kidney. He has been left with 70% to 80% of normal function in his left kidney.

21. It took three to four months before he was able to straighten his back. During his hospitalisation and recovery, he experienced depression, anxiety, anger, and feelings of helplessness.

Objective Criminality
22. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in the instant offence with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence before me can be evaluated.
It is the objective criminality that has a most important impact upon the overall sentencing outcome.

23. In a free society such as ours, where citizens' rights are respected, the law regards any conduct which interferes with a person's right to the integrity of his body and personal safety as criminal conduct. To maim or otherwise harm the physical person of another without lawful cause is anti-social conduct of a high order.

24. In assessing the objective seriousness of this offence, I have had regard to five matters. I have sought to analyse the objective criminality through these broad headings: provocation; level of malice (including planning premeditation and intention); level of violence (use of the weapon, trickery, and loss of opportunity for self defence); results of the offender's conduct (nature of injury, injury sires, treatment required, long term sequelae to wounding); and being in company.

Provocation
25. The intentional wounding of Carlos Sawa was a grossly disproportionate vigilante type response to any discomfort, discourtesy or rebuke administered to Sammy Hirmiz. Further, Shaba could claim no relationship sufficiently close to Sammy Hirmiz for him to be able to claim any justifiable cause for wounding on account of any slight or even physical assault upon this youth.

26. I have nothing before me that suggests any wrong doing by Carlos Sawa towards Sammy Hirmiz. But even if there had been, the response of wounding him in the way in which it was done was overwhelmingly disproportionate.

Level of Malice (including planning, premeditation, and intent)
27. I am satisfied from the time of the phone call received by Carlos prompting the Sawas to head to the police station, retribution of some form was planned against Carlos Sawa. At what point in time Shaba joined those seeking retribution on account of the purported slight to Sammy is unclear. There is no evidence which links him, beyond reasonable doubt, to the telephone call. There is no evidence which links, him, beyond reasonable doubt, to a meeting at the 7-Eleven venue. He is first seen at Nelson Street.

28. On the evidence before me, I am unable to determine whether there was in existence any plan to wound Carlos by stabbing him. I am unable to determine whether Shaba was acting pursuant to a common purpose [in relation to the wounding] or on his own.

29. I am satisfied beyond reasonable doubt he shared some joint criminal enterprise with Sayed Hirmiz for some form of retribution, probably physical, against Carlos Sawa, for some perceived or claimed wrongdoing to Sammy. I am satisfied that at the point in time when Shaba claimed Sawa for the purposes of a conversation, he had by that time, if not before, formed an intent to stab Carlos Sawa so that he would at least experience really serious injury.

30. I am satisfied he withdrew the knife from his clothing and plunged it into Carlos Sawa pursuant to this intention. I am satisfied he targeted the particular area of the body because it was proximate to where the knife was in his hand, contained a number of vital organs, and would offer little resistance to the knife.

Level of Violence
31. As subsequent events illustrate, at the point of the stabbing there was tension but no real violence. The act of stabbing, while one of extreme violence, was committed in a calm, professional and callous way. He was able to achieve unprotected access to his victim's body as a consequence of trickery and his use of self deception. Deception, stealth and trickery are aggravating features of his criminality. He denied his victim any chance to flee or to otherwise defend himself. In that sense his acts were also cowardly, thereby giving the lie to the formidable physical presence that he is no doubt so proud of.

The Result of the Offender's Conduct
32. There was a sole deep penetrating stab wound causing permanent damage to the victim's left kidney. In the absence of emergency medical intervention the wound was likely to have been fatal. Once intervention was obtained the victim was never on the critical list.

33. The permanent damage is not sufficient to physically incapacitate. There was a substantial period of hospital treatment and rehabilitation required extending into some months. Moreover, the psychological damage has also been substantial as the victim impact statement discloses. It has been more long lasting than the physical sequelae, but as presently advised I do not regard it as permanent. Finally, the wound was inflicted at a time when the offender was in company of others also interested in seeking retribution. True none of those actually participated in Shaba's physical acts, but Shaba's position was advantaged by their presence as the subsequent melee discloses. I am unable to be satisfied beyond reasonable doubt this was a gang related offence, but I am satisfied Shaba was with others who he knew would support him if needed. That is an aggravating feature of the criminality.

Section 21A Crimes (Sentencing Procedure) Act, Matters of Aggravation
34. As distinct from matters of objective criminality referred to above, the offence was committed in the presence of a child under 18, namely, Lewis Sawa. The Crown argued the offence was committed without regard to public safety. It is certainly true the unintended consequence of this act was a sustained melee in which members of the public were in danger, and one in particular, Laurence Sawa, was also seriously injured (R v Saleib [2005] NSWCCA 85 at [55]). But in fairness to the offender, the plunging of this knife into Carlos Sawa did not endanger others by the actual physical using of the knife. Rather, it was the consequences of that act which brought about the danger to others.

35. I have adopted the approach taken by Bell J in Saleib. Such an approach is particularly appropriate given the contribution to the melee of Sayed Hirmiz, his brother and others accompanying them. The offence occurred in circumstances where Shaba was on a bond to be of good behaviour in regard to a driving offence.

36. In assessing the level of objective criminality for the purposes of determining where in the range of seriousness this offence falls, my understanding is I put to one side the specific section 21A matters of aggravation or mitigation that do not strictly impact upon the objective seriousness of the offence. The major features constituting the objective seriousness I have reviewed for the purposes of assessing whether it falls within the mid range are:

• The offence was a disproportionate vigilante response to a perceived affront by a person who was in no way connected to the initial incident or any person involved in it.
• The offence occurred at a time when there was a planned retribution against the Sawas to which the offender was recruited.
• The offender came into Nelson Street already armed with a knife, although, as I say, I cannot be satisfied he was armed for the purpose of stabbing Sawa.
• The intention to use the knife had been formed at least by the time Shaba indicated to Sawa that he wished to speak to him.
• Trickery and deception were used to access an almost intimate closeness to Sawa.
• The weapon was plunged deep into Sawa causing really serious injury.
• The intent to cause really serious injury to Sawa was formed at least at the time Shaba pulled the knife from his clothing.
• In the absence of emergency medical intervention, the injury was one presenting a real risk of death.
• There was a single stab wound; no attempt made to inflict any other injury.
• The injury took a substantial time to heal requiring hospitalisation. There is 20% permanent loss of left kidney function which is unlikely to result in any noticeable incapacity to the victim. There are ongoing psychological sequelae that are likely to resolve in time.
• The victim is left with scarring from necessary hospital treatment.
• The offence is committed in company.

37. Both counsel submit the offence falls within a mid range of objective seriousness. In my view the submissions - or perhaps in the defence case the concessions - are well founded, but I have come to a view that within that range it falls towards the lower quadrant, although I would not place it within that quadrant.

38. As matters stand, the time at which the intention to stab was formed is proximate to the actual stabbing because I cannot be satisfied beyond reasonable doubt it was earlier made. The intention to cause really serious injury likewise counts against him from the time he grabbed the knife, not earlier, because I cannot be satisfied it was formed any earlier.

39. There was only a single stab wound and, so far as I can tell, no further attack upon the victim by Shaba, the impact of the wounding, while serious, is not of such an order as frequently in the case of section 33 woundings. Apart from the kidneys and some scarring, there appears to be no other permanent damage. The long term sequelae are predominantly psychological and curable.

40. Taking into account matters already considered, I note the 21A aggravating matters are capable of impacting upwards upon the appropriate penalty, but I do not regard them as capable of impacting upon a decision in respect of the standard non-parole period in the circumstances of this case for reasons I shall give later.

Victim Impact Statement

41. The victim impact statement was read by Ms Peeta Thornton. Division 2 of Part 3 of the Crimes (Sentencing Procedure) Act provides that, as part of the sentencing procedures generally, a victim impact statement may be received and considered by the court (Section 28(1)). For the purposes of this hearing a victim impact statement means a statement containing particulars of: (a) in the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence (section 26). A victim impact statement must not contain anything that is offensive, threatening, intimidating or harassing (Crime (Sentencing Procedure) Regulation 2005, 11(6)).

42. A victim impact statement may be tendered to the court only by the prosecution in the proceedings before the court (Crime (Sentencing Procedure) Regulations 2005, 11(1)). In other words, the victim impact statement should only refer to the effect on the victim of the actual offence before the court R v Blakewell [1996] NSWCCA unreported, 27th June 1996. Material contained in an unsworn statement not subject to testing of cross-examination cannot be given substantial weight in determining matters adverse to the offender which must be proved beyond reasonable doubt (R v Slack [2004] NSWCCA 128).

43.Prior to the statement being read I sought the assurance of Senior Counsel for the Crown that all parts of it were admissible. I was assured by the Crown that all parts of it were admissible, although I was warned that there may have been "florid comments in one paragraph." Opportunity was given for it to be read. Frankly there were many parts of the statement that did not comply with the definition of a victim impact statement, that is, it went beyond particulars of personal harm suffered by the victim as a direct result of the personal attack upon him. For example:

paragraph 3,

• “This caused my family and my girlfriend deep distress".
• “I was worried not only for myself but also for my family's safety”.
• “This senseless crime”.
• “Cowardly and vicious attack upon me”.
• “The perpetrator of this terrible crime”.
• “He had no respect for mankind, and also given his family terrible grief. How could they be proud of a son and brother who believes that to hurt and destroy the lives of others is normal and smart? It is not normal, it is not smart. You have not grown, Dilan Shaba, into the man people will admire by your good deeds”. There were a further four sentences of personal abuse in this paragraph levelled at the offender in this personal scolding.
• “It is all due to your senseless vicious and cowardly crime”.
• “Memories of my dad standing between me and my brother when we got stabbed and seeing a look of confusion on his face about which son to go to first”.
• “I have suffered as a result of this cowardly and senseless crime, but so have my family”.
• “Since the brutal attack”.
• “There is an account of how the offence, probably the stabbing of Laurence, has affected the mother (paragraph 22 and 24)”.
• “Paragraph 23 is irrelevant on any basis”.
• “Paragraph 25 describes the effects of the father of the assault on probably two of his children”.
• “Paragraph 26 is a personal scolding directed to the accused”.
• “Paragraph 27 purports to be a synopsis of what the court has heard in respect of the guilty and charged act of the accused”.
• “Paragraph 28 is a thank you to the New South Wales Police and Crown Prosecutor”.
  

44. I regard parts of the statement read to the court as constituting an abuse of the victim's right to draw to the attention of the court, the public, and importantly the offender particulars of personal harm suffered by him as a direct result of the offender's guilty offending conduct. If victim impact statements continue to be abused in this way, they will cease to be effective and may even cease to be at all. I regard the assurance of the Senior Counsel for the Crown that the material in the statement was admissible as a gross aberration of counsel's duty to assist the court. It is to be remembered while the victim impact statement may be the work of the victim, responsibility for its tender to the court in sentencing proceedings falls specifically and solely upon the prosecutor.

45. As events turned out, the full statement was read. I indicated at the time I did not wish the reading of the statement to be more traumatic for the victim or the offender than needed to be. Regrettably I had not read the statement myself before its reading. I did not interrupt the reading of the statement. On further reflection I should have stopped this reading until it was in the correct form.

46. I make it clear I do not hold the victim responsible. I suspect he had no idea of the requirement of the Crimes (Sentencing Procedure) Act and Regulations to which I have referred. What he has expressed is entirely understandable, but substantial portions of it expressed were opinions that were inadmissible and condemnatory statements that were inadmissible and may have been offensive to the accused. Both victim and offender are entitled to proper processes being followed. The limits of the processes are set by the Crimes (Sentencing Procedure) Act and regulations. While I must accept responsibility falls on me to ensure proper process is followed, there was a serious failure by those responsible for the presentation of the victim impact statement to ensure proper process was followed as well.

47. Having said that, I note the victim impact statement serves four purposes: It affords to victims an opportunity to have their voice heard in sentencing proceedings by publicly identifying the impact of trauma visited upon them by guilty actions of an offender. Hopefully the reading of a victim impact statement assists a victim move towards some closure of grief, resentment, brooding arising from the criminal conduct.

48. Thirdly, as I said a moment ago, the statement contributes to an offender hearing it first-hand and perhaps gaining some insight into the impact his offending conduct had upon the victim.

49. Finally, the statement serves as a reminder to the court of the impact criminal conduct has upon the men and women who are its victims.

50. I intend to read some parts of the statement in these sentencing remarks.

“My life before getting stabbed was that of a normal person. I was happy, outgoing, planning a normal future. I was working. I also had a girlfriend. We were planning to get married. I was never negative, was always with family and friends and chasing my dreams.

The night I got stabbed I saw everything flash before me and I thought this is it, my life is about to end. I was rushed into hospital where doctors performed an operation on my kidney. I was in intensive care for a few days and I didn't know if I was going to live or die. I was still bleeding internally after the operation. I had catheters inserted in my body, which were being replaced so many times I lost count.

This was going on for almost 18 days. I even had to pull one of the catheters out myself as there was no doctor or nurse to attend and the pain was so unbearable. I was in hell for 23 days suffering with this pain. I shall never forget this time when I felt I was struggling to stay alive. I was lying in hospital feeling helpless and worried. I didn't know what was going on or what was going to happen. I was so confused and frightened. I had so many emotions and thoughts running through me, it got to the stage where I began to feel so angry I didn't want to see anyone. All I wanted to do was just die. I would snap and get angry at people I loved who were always there for me. I became a different person.

Eventually I was discharged from hospital with a catheter still inserted into me. I had to stay at my sister's house. I couldn't sleep. I was constantly bleeding and soon developed an infection and rushed back to the hospital where I was admitted for more surgery. Coils needed to be put into my kidney as the bleeding would not stop. I was then told the coils would need to stay inside permanently. I was feeling so sick and the thought of all the medical complications I had to go through made me feel very depressed and isolated. The thought of having coils inside me for the rest of my life made me feel frightened and very concerned about getting through all of these complications. I often have flashbacks about the very dark feelings. I was contemplating suicide all the time. Everything seemed like darkness.

After my stay in hospital I had to stay another three or four months at my sister's house because I was not able to straighten my back without pain. Even now my back and left leg still hurt me …has scarred me for life not just physically but mentally as well. The scar on the left side of my body is always a reminder of the stabbing. The scar from surgery to my kidney, which was over 23 cm from the chest down, is also a constant reminder.

My stomach muscles still haven't properly healed as the left part of my stomach extends out more than my right side leaving me feeling and looking deformed. Emotionally I continue to feel depressed, angry and anxious. These feelings are not fading but only getting worse. I could only think about either killing myself or revenge.

I visit a psychiatrist constantly hoping that there is someone who can help me get out of this deep depression I have fallen into.

When I became healthy enough to leave the house I still didn't want to. I was not even sure what was wrong with me. I tried to get my life back together and got a part-time job. I worked there for a bit but started feeling anxious, paranoid and worried. Any little sound would trigger memories of the stabbing or being in hospital and would terrify me. I even started to hear sounds that were not even there. I was always on the lookout for danger and was constantly fearful and worried about such attacks happening again.

None of these feelings have gone away. I just don't feel safe anywhere. I feel completely different from all other people and I feel all alone. I started to suffer from flashbacks and nightmares of the stabbing and being in hospital. I was diagnosed with having post traumatic stress disorder. I have woken up so many times. Nightmares and memories have also stopped me from sleeping.

All through this time I was becoming more withdrawn from my family and friends. I gave up on everyone. I began to think that life was nothing but a misery. Everything felt like it was choking me. My emotions were all over the place. As a result I am now feeling angry, depressed, scarred and frustrated. My relationships began to suffer. I was always screaming at my family and girlfriend. I just couldn't understand people. I did not want to talk to them, nor did I want to listen to them.

This caused big problems with my relationship with my girlfriend. She was always there, but in the end she just couldn't take it any more. I became a different person towards her. I was always angry and negative. My moods changed constantly. I constantly feel guilty because of the sadness and stress I am causing my family and my girlfriend.

I cannot lift myself from these feelings which seem to imprison and numb me. I know I am not the person I used to be. Christmas, Easter and birthday celebrations come and go. They no longer feel special any more. I now never sit with my family to enjoy any celebrations as my anger and depression take over.

I hate how everyone can enjoy the day and be happy whilst I am suffering. I just want this time to end. I have cried so many times. I am just surviving. I have barely enough energy to get out of bed and dress. I don't feel like talking to people and I don't even have the energy if I wanted to. I have no patience, little tolerance for things that go wrong.

I have not been working. I hardly eat. I hardly sleep. I hardly shave. I hardly look after myself at all. I have lost so much weight and I hate the way I look. I hate the way my body feels because I don't have the strength to even walk very far.

Even though I have my family and some support, I feel like I have nobody. I feel like an old person. I am a 26-year old in an old man's body. These three years have aged me so much."

Subjective Matters, Family Backgrounds, Relationships

51. Dilan Shaba was aged 19 ½ at the time of this offence and 23 at the time of sentence. He is the youngest of three siblings. In circumstances disclosed at the opening of these remarks, he was smuggled out of Iraq in the back of a truck with 15 others to Jordan. Capture before the Jordanian border would have meant almost certain death. From Jordan the family travelled to Greece, settling in a refugee camp, and repatriated to Melbourne and subsequently they moved on to Sydney.

52. Shaba had no English when he arrived and a history of disrupted schooling. His parents and family are supportive of him. He has a long term girlfriend to whom he intends to become engaged following the finalisation of this matter. I have also noticed that he has other support with him when he comes to court.

Education, Training and Employment

53. His primary school was disruptive. He attended Bonnyrigg High School where it was earlier mentioned there was much gang related activity. He associated with one of the gangs of a Syrian background, he says, for protection. It is also likely it comforted his psyche by identifying with the gang and its acceptance of him. It may also have offered him some comfort in his early days of non-English speaking. He was put in intensive English classes. Today he speaks fluent English. He left high school in year ten.

54. The gang to which he belonged was known as Dlasthr, (the last hour) was involved in a number of violent acts including the murder of one Mr Audisho. During custody he had no access to or, I suspect, sought no access to education programmes. He has held two concurrent casual positions of employment before leaving school and casual labouring positions over the past 7 years. I sense that he lacks specific vocational skills but is able to do unskilled jobs and jobs with skills that are learned through work experience.

General Health

55. I referred to his powerful physique. There was an occasion in December 2008 where he was the target from a hit and run motor vehicle. He was run down and landed on the bonnet of the vehicle for some time and then presumably as he came off injured his left leg, left wrist and right foot. He recognised the person in the vehicle that ran him down as being associated with persons who have been found to have a role in the murder earlier referred to. The sequela of being run down is he now suffers anxiety for his own safety and the safety of his family.

Mental Health

56. Apart from the anxiety referred to there is nothing suggesting any unusual mental health prognosis. Put another way, there is nothing in the mental health area that suggests he will have difficulty rehabilitating.

Alcohol and Drugs

57. Apart from a one-off experience related to a drug, the offender's self report to Probation and Parole suggests neither alcohol nor drugs will be an issue for him in rehabilitation.

Character and Criminal Antecedents

58. At the time of the offence he was a single man aged 19 and a living with his family and doing casual labouring. He had only been before the court on one prior occasion in respect of driving offences - driving whilst licensed suspended, (21.2.05), and driving manner dangerous (7.2.07). It was the 12 month good behaviour bond imposed in respect of the driving manner dangerous that was breached by the criminal act I am dealing with. At the time of the offence, he was otherwise a person of good character so far as the Crimes Act and Drug Misuse and Trafficking Act offences are concerned.

59. There was subsequent conviction in November of 2007 for accessory after the fact to murder. There is a significance of the court proceedings in relation to this offence to which I will come shortly. The only other relevance of the offence is its impact upon the assessment of rehabilitation prospects of the offender. I don't regard it as impacting in an overly negative way.

60. Shaba gave evidence in the trial. His account was that he and a friend drove to Nelson Street with the intention of attending the reception centre there. The reception centre in Smart Street is, he said and I accept, a venue where Syrians meet socially on Saturday nights. When he arrived Carlos was being confronted, he said, by Sayed Hirmiz who was saying that Carlos "jumped his brother". Mr Sawa, the father, intervened between Sayed and Carlos. Mr Sawa senior was being pushed by Hirmiz. The offender sought to intervene, saying to Hirmiz that Mr Sawa was an old man.

61. The defence case was that things deteriorated from there and 30 to 40 people became involved in a fight. For his part, Shaba watched for a short time, then said to his friend, "lets get out of here, it is getting out of hand".

62. He and his friend then jumped in the motor vehicle and left the scene. He did not have a knife with him that night. He did not use it and he did not see who stabbed Carlos Sawa. Notwithstanding the jury did not accept this account, Shaba remains stedfast to it when discussing the case with the author of the pre-sentence report.

Custodial History

63. Shaba was charged, with this charge and as an accessory after the fact to murder charge relating to the murder of Audisho, on 26 February 2006. He remained bail refused in respect of both matters. Berman AJ fixed a non-parole period of 1 year, 7 months and 18 days against the head sentence of 2 ½ years. The effect of that action by his Honour was that the offender was released from custody on the date of sentence. He was granted bail in respect of this matter, that bail had the strict reporting and curfew conditions. He has been on that bail since 12 of December 2007, a period now in excess of 2 years....

His Honour referred to other matters

72. There is evidence before the court from Shaba which I accept:

(1). That whilst in remand custody, he went into a protection environment .....
(2). That he has been on bail for 2 years during which time he has been fearful of his safety and that of his family.
(3). That his fears are well grounded .... because of specific matters that may constitute examples of attacks upon him. This includes the hit and run vehicle incident earlier referred to causing serious injury and his evidence that he recognised persons in the vehicle.... Secondly, there is evidence which I accept that the house next door to him was subject to a drive-by shooting that may well have been intended for his home.

73. I am satisfied that after his release [to bail] from custody, [events have] seen him subjected to threats and potential lethal criminal activity. He holds fears for his safety in custody. His time in custody will be more stressful...

Setting the Sentence, General Deterrence.

74. Although a young man at the time of the sentence and an even younger man at the time of offending, the level of violence exhibited in this knife attack is such that general and personal deterrence are called for. The superior courts have many times recorded abhorrence of knife attacks and the need for salutary punishment where gratuitous use of knives is the centrepiece of the criminality being dealt with.

75. Parliament has provided a maximum penalty of 25 years imprisonment and a 7-year standard non-parole period to give ample scope for the courts to give full effect of deterrence. Fulltime incarceration is the most powerful form of general deterrence. Having crossed that threshold, however, the general deterrence impact of graduation of imprisonment of the prisoner, is a far more difficult matter to determine. In the fulltime imprisonment I have selected I have sought to select a salutary term of imprisonment to give full effect to general deterrence. In selecting this figure, I have borne in mind the standard non-parole period which for this offence is one of 7 years.

Should the Standard Non-Parole Period Apply.

76. Elsewhere in these remarks I have found this offence fell within the mid range of objective seriousness of offences for this kind of offence, albeit it fell towards the lower quadrant of that middle range. Thus I must set the standard non-parole period unless I determine there are reasons for not setting a standard non-parole period that is longer or shorter than the prescribed standard non-parole period of 7 years. I should note at the outset there are no reasons for setting a longer parole period.

77. The real question is whether there are reasons for setting a shorter period of parole than the standard non-parole period. In considering this issue I am confined only to consideration of matters set out in s 21A of the Crimes (Sentencing Procedure) Act.

78. I am required by s 54A of that Act to set out my reasons for setting a parole period, should I do so, other than the standard non-parole period. For the purposes of this sentencing disposition there are two sources in s 21A from which matters may emerge establishing reasons for reducing the standard non-parole period. S 21A(1)(c) requires the court to consider other objective factors not covered in the checklist of mitigating factors found in s.21A(3).

79. At the time of committing this offence the offender did not have any significant record of prior conviction. S21A (3) (e).

80. The offender's youth at the time of offending is a matter requiring me to give consideration and weight to his rehabilitation and youth; (see R v Hearne (2007) 124 AcrR 457). Youth and weight for interests of rehabilitation are acknowledged more in these serious crimes in the setting of the non-parole period than in the head sentences; see Tran [1999] NSWCCA 109, Townsend and Cooper unreported NSWCCA, 14th February 1995....

His Honour considered other matters

83. I assess the offender's rehabilitation prospects as probably positive. He appears to enjoy good family support. He has a girlfriend who is supportive. He has general good health. No drug or alcohol issues. There are no mental health issues.... These positives must be assessed against his lack of insight into and contrition for the offence I am dealing with.

84. Given my assessment as, "probably positive", I have not taken it into account pursuant to s.21A(3)(h) on the basis that s.21A(3)(h) requires an unqualified finding i.e. “has good prospects".

85. I am not prepared to make that finding even on the balance of probabilities. On the balance of probabilities my finding is only a qualification, "it is likely".

86. Nonetheless there are three good reasons why the non-parole period should be reduced from the standard non-parole period of 7 years. Even so, the existence of that standard non-parole period indicates the legislature's intention that longer sentencing, than was previously the case, is now the normal.

Special Circumstances

87. Having determined the standard of non-parole should not apply. I now turn to consider whether special circumstances can apply. I have determined here they should. My primary reason is one of personal deterrence.

88. This offender breached a good behaviour bond when committing this offence. Clearly the existence of this bond was insufficient personal deterrence for him. Should he breach any Parole Order he received he will be liable to return to prison to serve the balance of this sentence. Should that occur he is most unlikely to be reconsidered for parole for at least twelve months. Not only will he be re-exposing himself to further incarceration if he is in breach of patrol but also to the dangers incarceration throws up to prisoners in his particular situation.

89. Secondly, his rehabilitation is better achieved within a community based setting. This is no double counting. When earlier considering the interests of rehabilitation I was considering the general principles enunciated in the case law. When considering special circumstances I am considering this offender's needs for an early opportunity to be released to the community to give effect to his rehabilitation prospects.

90. Finally, it seems to me a suitable way to deal with the question of delay. There has been a nearly four-year delay in the life of a twenty-year-old, that is, a fifth of his life. It is a substantial period for him. Although it is not the most significant delay this Court has seen, it still must be regarded as substantial. He has since his release and on bail endured substantially stiff bail conditions. He has not re-offended. It seems to me that if I take delay into account as a factor in special circumstances it adequately compensates for any other prejudice he may experience by reason of delay.

91. Malicious wounding cases with intent, provide a vast range of factual matrix. I was referred to R v James Fryar [2008] NSWCCA 171, a Crown appeal. It is a case having some features similar to this and others that can be distinguished. In that case a sentence of nine and a half years with a non-parole of six years was given.

92. Shaba’s case does not present as being as serious. There was long-standing tension between Fryar and his victim. Fryar's intent to use the Stanley knife must have been formed at a point before he was in the physical presence of his victim, a matter not proved by the Crown in this case. The wound inflicted was twenty centimetres but did not penetrate into any vital organs. Even so, the actual activity performed with the weapon by Fryar was of substantially longer duration than the knife thrust by Shaba.

93. Fryar's criminal record was more substantial, although he does not appear to be in breach of any bond or parole. He was a man of mature years; Shaba was nineteen and a half. My finding is that the objective seriousness in this case, although in the mid-range, was towards the lower quadrant. The Court of Criminal Appeal simply places Fryar's objective criminality in the mid range....

His Honour considered other matters

95. I have determined an overall sentence of six years is appropriate for this offence. According to the JIRS statistics, at this sentence only forty-five per cent of offenders were treated more severely.

96. I have determined that the sentence should commence from today. I can do no other. Although he was bail refused, the view the law takes is that that period of time was fully consumed by the sentence imposed by Berman AJ.

97. Dilan Shaba, I convict you that you on 25 February 2006 at Fairfield in the State of New South Wales maliciously wounded Carlos Sawa with intent to do him grievous bodily harm.

98. I set a non-parole period for that offence of three years to date from today and to expire on 17 February 2013.

99. I set an additional term to expire on 17 January 2016.