R v Shafaq

[2022] NSWDC 639

District Court

New South Wales

Medium Neutral Citation:

R v Shafaq [2022] NSWDC 639

Hearing dates:

Thursday 3 March 2022

Date of orders:

Thursday 3 March 2022

Decision date:

03 March 2022

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

1. The offender is convicted.

2. Sentenced to a term of imprisonment with a non-parole period of 2 years and 9 months and with parole thereafter of 21 months, giving rise to an overall term of imprisonment of 4 years and 6 months.

Catchwords:

CRIME — Violent offences — Wound with intent to cause grievous bodily harm — Maximum penalty of 25 years imprisonment — Early plea of guilty Local Court to one charge — Victim was the new partner of offender’s ex-partner — Offender under the influence of drugs during commission of the offence — Offence committed out of jealously — Some planning involved but not extensive planning — Broken glass bottle used as weapon — Victim suffered wound to scalp and neck — Injuries caused to victim serious but unlikely to cause long-lasting damage — Objective seriousness of offending is in the middle of, or slightly below, the range — Offender has prior criminal record but largely consists of driving offences — Criminal record not an aggravating factor — Evidence of offenders’ remorse is not strong — Prospects of rehabilitation positively impacted by family support.

Legislation Cited:

Crimes Act 1900 (NSW): s 33(1)(a).

Category:

Sentence

Parties:

Regina (The Crown)
Mehdi Shafaq (The Offender)

Representation:

Solicitors:
Ms. S. Shrub (The Crown)
Ms. R. Mayne (The Offender)
Counsel:
Mr. L. Brasch (The Offender)

File Number(s):

2021/00056884

Judgment

1. HER HONOUR: The offender is before the court for sentence following a plea of guilty in the Local Court to one charge contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), namely, that in Sydney on 27 February 2021 he wounded Deni Micevski, with the intention of causing him grievous bodily harm. The offence carries a maximum penalty of 25 years imprisonment, and where appropriate there is a standard non-parole period of 7 years.
    

2. The facts are before the court by way of an agreed statement of facts document. It is in fact not that, but rather a ten-page summary of evidence, most of which is unnecessary in circumstances where this is a plea of guilty entered in the Local Court to be dealt with by sentence after that plea.
    

3. The fact that he pleaded guilty at that early stage means that he is entitled to a 25% discount on sentence, pursuant to the early appropriate guilty plea scheme, to represent the appropriate utilitarian value of that plea.
    

The Facts

4. I accept from this lengthy statement of evidence that the offender and the witness referred to as Ms Song had been involved in a relationship for about two years up to the time of the offence. There had been difficulties in the relationship, which is described as “on and off.” They broke up in about September 2020 but remained in contact. Ms Song had moved into a hotel room in Liverpool Street Sydney at the time. The offender knew where she lived, and I infer had visited her there from time to time after their breakup, and with her consent.
    

5. The victim of the offence and Ms Song had met not long before the offence and started dating. On Friday 26 February 2021, the victim and Ms Song met in her room around midnight and went to a local hotel in Goulburn Street. I accept from what the offender later told a psychologist that he too had come into the city that night, saw Ms Song and the victim in the city, more probably than not at that hotel, and became jealous that they were together. He went to a nearby tobacco store where he had a friend working to leave his bag there. Whilst there he asked to buy a knife but what was available for sale was too expensive. The shopkeeper offered to sell him scissors, but he did not take up that offer.
    

6. He left the store sometime after midnight. Just before 5.00am, he went to a hotel where Ms Song lived and stayed there, waiting for her to return with the victim. They came back just after 5.00am, and the offender at that stage was inside, not far from the front door to her unit, hiding in an alcove near the lift. He had armed himself with a broken bottle at some stage before he arrived. After they got into her room, the offender called Ms Song using his own number, which she recognised. He told her he had seen her walking into the hotel with the victim, she said she was not at home, but he said he knew she was. The conversation between them ended, and although he called her back several times she did not answer.
    

7. At around 5.18am, the offender approached the front door of the unit, still carrying the broken bottle by his side, and started knocking loudly on the door, demanding that it be opened. The victim and Ms Song stayed inside quietly pretending they were not there, but of course the offender knew they were. The victim suggested that Ms Song call the police, but she resisted, and the victim tried to alert one of his friends to call a security number posted at the front of the building. Unfortunately, that friend did not reply. At about 5.36am, the offender started kicking the door heavily and ultimately forced entry into the room.
    

8. The victim and Ms Song were in the bedroom near the bed and were both naked. The offender was still holding the broken glass by his side. He confronted Ms Song, asking why she was with another man, and stated that she in fact still loved him, the offender. Ms Song stood in front of the victim and held up her hand to the offender’s chest, trying to stop him. She asked him to leave, but he was yelling and spoke to her for somewhere between five and ten minutes. He appeared angry. Ms Song and the victim stood up, and the offender and the victim had an argument, with the offender telling the victim that he was going to bash him. He came towards the victim, who jumped to the other side of the bed, and then the offender jumped on the bed and followed him.
    

9. The victim put his arms out to protect himself, and then backed into the bathroom. The offender threatened that he was going to kill the victim, and said words along the lines of, “You’re dead.” The victim asked him not to and backed into the bathroom and shut the door. The offender followed him in, and at that stage the victim slipped and fell over on one knee. The offender then swung the broken bottle at him and struck him to the left side of the head and the left side of his neck. The victim then shoved the offender on his thigh and stomach, and the offender swung the bottle back at him and struck him to the left side of his ribs. The victim punched the offender, who then tried to strike him again to the face but did not make contact.
    

10. The victim then punched the offender and noticed that there was blood, according to the facts, spurting from his neck. Ms Song then came in and realised he was bleeding, and told the offender to stop, and that she had called the police. By then, the victim himself had become angry and threatened to kill the offender. The offender retaliated with something similar and told the victim he was waiting for him outside. He left at just after 6.00am. He came back a minute later, asking for his phone and his shoe, which he had left behind. Those, or something like them, were given to him. Ms Song tended to the victim and called an ambulance, he was taken to St Vincent’s Hospital and treated there.
     

11. As the offender left the premises, he disposed of the broken glass bottle in a bin on the corner of Liverpool and George Streets. Most of this is captured by way of closed-circuit television. He went back to the tobacco shop and retrieved his bag and made a comment to the shopkeeper there. Around 6.30am, he sent Ms Song a message, the contents of which is set out in paragraph 44 of the agreed facts, and I will not repeat them. In summary, the comments were expressions of jealousy because she was involved with another man. He also put in a message, words to the effect, “I told you it would be easy to unlock that door.” I infer that was him indicating that this was the way he was able to enter the building, either the building or the room.
     

12. He went back to his sister’s home and later that day, just before 10.00am, sent a message to a person admitting that he had stabbed a man in Ms Song’s room and was on the run from police. He indicated that he almost killed the man and was aware that the glass bottle had punctured deeply into his neck. His friend asked why he did it, and he answered, referring to Ms Song, because she was cheating on him. He said that he was resting at his sister’s place, and he planned to go back and, in his words, “chop his hands off,” I infer, referring to the victim. He was, in fact, located by police later that day, 27 February, on the corner of George and Liverpool Streets. He was arrested and taken into custody and charged with a series of offences, including the one to which he has pleaded guilty and for which I sentence him. He has remained in custody, bail refused ever since.
     

13. The victim was admitted to St Vincent’s Hospital on 27 February and sustained the following injuries: Two wounds to his neck, one which was one centimetre long and the other seven centimetres long. These wounds were explored under general anaesthetic, there was no evidence of deeper injury, but there was evidence of penetration through to the muscles on the left side of his neck. He was treated by wound closure with staples. He also suffered a wound to his scalp, which had shards of glass in it. This was also cleaned and treated and closed with staples. There were also three superficial wounds to his chest, which were also closed with staples. Photographs of these wounds are tendered.
     

14. The victim was apparently released on 28 February. There is no evidence before me from which I can determine the extent to which, if any, there is any ongoing disability or anything from which I can determine any consequences of these injuries. They are of themselves, clearly enough, wounds. At least one of the wounds to his neck was relatively deep, as deep as one of the neck muscles.
     

Objective Seriousness

15. There were wounds inflicted to the neck and head area which is relevant in determining not only the seriousness of the wounds themselves, but the overall seriousness of the offending. Fortunately, however, they give the appearance of physical injuries that are likely to have repaired, and in relation to which there are unlikely to be any ongoing physical sequelae. Whether or not there are any ongoing psychological sequelae, that is unknown, and there is nothing else before me from which I can determine the impact on the victim. It is not of a type in my view, however, that would amount to a circumstance of aggravation.
     

16. This is a serious offence, that is clear from the maximum penalty of 25 years, and the standard non-parole period of 7 years. The terms of the offence itself indicate that the intention of the offender when wounding the victim was to cause him grievous bodily harm. This is not just a wounding offence in which the offender was acting recklessly when wounding the victim. That, however, of course is part and parcel of the offence to which he has pleaded guilty, not a separate matter which aggravates the offending. In submissions in relation to objective seriousness, the Crown referred the court to cases involving glassing. In my view, these cases do not offer much assistance in terms of assessing the objective seriousness of this offence.
     

17. The offender here was using a broken bottle as a weapon because he could not get access to that which he had hoped to use, namely, a knife. His weapon was, in my view however, of equal seriousness to a knife, capable of inflicting exactly the same sort of injury as would a knife. The fact that it is a makeshift weapon, in my view, does not diminish the objective seriousness. The fact that it was a glassing incident, however, or something that might be referred to as a glassing incident, does not elevate the objective seriousness.
     

18. In this matter, the fact that he engaged in what is known as glassing, it seems to me, is largely not relevant. In fact, it is possible that the facts here fall outside what is usually meant by the term glassing, which is normally a spontaneous event usually in or around licenced premises, with an offender and victim often under the influence of alcohol and in circumstances where an offender usually spontaneously and without planning smashes a bottle and uses it to assault another person as part of a fight, usually in circumstances where recklessness is more likely than specific intent. It is a very different sort of offence, it seems to me, to the one that is before me. He chose a broken bottle as a weapon when he could not get a knife. The fact that he did so indicates a degree of planning, however, which I also take into account when assessing the objective seriousness. At least from around 12.15am in the morning, he had determined to confront and attack the victim, tried to get a knife to do so, waited at the unit for close to five hours, or just under five hours, until they both arrived back, and armed himself with a broken bottle in order to commit the offence.
     

19. There was some planning, not extensive, but this was certainly not a spontaneous offence in a heated moment. The victim’s injuries, as I’ve said, were not minimal, nor were they life-threatening. I have already dealt with those injuries.
     

20. The motive for the attack, in my view, to an extent elevates the objective seriousness of the offending. He committed this offence purely and simply because of jealousy over the fact that his former partner was involved with another man, and thus it falls into the category of a domestic-type act of violence. Not only is this relevant in assessing the objective criminality, but it also increases the need for the sentence to reflect a degree of general deterrence. The community is all too aware that acts of violence in the name of sexual jealousy and in domestic relationships often end in tragedy, and whilst this is not an act of violence against his former partner, it is nonetheless very serious in its circumstances, given the only real motive being to deal with his own jealousy.
     

21. It is objectively a serious offence and is around the middle of the range in terms of objective seriousness, perhaps a little below. He did, however, plead guilty, so to that extent at least the standard non-parole period does not apply strictly, albeit to be heeded as some form of guidepost. As I’ve said, general deterrence is important in this sentence, because it is simply not open for members of the public to go around and settle affairs of the heart with senseless acts of violence.
     

The Subjective Case of the Offender

22. I turn now to the subjective circumstances. The offender is now 31. I accept there is a psychological report before the court, from which I determine most if not all of the relevant facts in relation to his subjective circumstances. I accept that he was raised in difficult circumstances. It is not in my view correct to describe them as “deprived” circumstances, in the way that that is referred to by the High Court in the Bugmy and Fernando decisions.
     

23. He did, however, come from difficult circumstances, and difficult traumatic circumstances. He was born in Afghanistan, and his father was killed in conflict with the Taliban when he was only about three to four years old when the Taliban was last in power in Afghanistan. He has no memories of his father. He comes from the Hazara ethnic group in Afghanistan, and it is well-known to the court that that group is discriminated against, or was discriminated against, and continues to be discriminated against by the Taliban. He lived in difficult conditions because of the ongoing conflict in the country at the time, and his family ultimately fled Afghanistan for Pakistan when he was about eight or ten, that being a history and route undertaken by many others who ultimately, as he did, came to Australia as refugees in about 2000. He initially lived with family in Auburn, and then moved with his mother and sister to Bankstown. He has one older sister. The family was not well-off, but there is no report by him of issues of domestic violence or criminality, or substance abuse by family members.
     

24. He, in fact, reported a stable family home, and a good relationship with his mother. He also has a good ongoing relationship with his sister. Those two family members remain available to him, which positively impacts on his prospects of rehabilitation. His mother is shocked and upset by the seriousness of his situation and the fact that he is in custody and committed such a serious offence. He speaks to her several times a week from custody, but I accept that because of COVID-19 restrictions, he has not been able to have visits in person. He intends to return to live with his mother when he is free from custody. He had a relatively good experience of school initially in Australia but started to lose interest in his teenage years. He left in Year 11 to enter an apprenticeship, returned, and was expelled because of a fight. He has had some employment, albeit somewhat sporadic. He has done some vocational training at TAFE and completed an apprenticeship in light vehicle mechanics in 2014.
     

25. He started to use drugs, but not until he was about 28, and that had an adverse impact on his employment. Since going into custody, he has been able to obtain work, which I accept he enjoys, namely work in the furniture shop. He intends to re-enter the motor-mechanic field on release. Even though he has usually only held a job for a year, nonetheless there are prospects that he will undertake employment when he is released, which will of course increase his prospects of rehabilitation. He’s only had two relationships in his life, one as a teenager and the other with Ms Song. He clearly invested a great deal of time and emotional energy in that relationship, which initially was positive, but then had increasing conflict and instability.
     

26. According to his history, they both used illegal drugs regularly, and he was disappointed that they were not able to continue with a pregnancy he had desired. He believed that even though their relationship had ended in September 2020, it was revived to an extent at the time he committed this offence, but he became aware of her relationship with the victim of this offence at around the same time. He has had no contact with Ms Song since his arrest, which is hardly surprising, but there is no indication in the material that he has attempted to do so, nor any indication that he will try to have any further contact with her, either during the remainder of his term of imprisonment nor when he is released.
     

27. This act by him would appear to be very much out of character, and particularly so in the absence of any history of AVOs between himself and Ms Song, or any other criminal offences of a similar nature. He started using illegal drugs but not until he was about 28, which is a relatively late age to commence using drugs. He has told the psychologist that he did so in order to deal with the issues surrounding his relationship. His drug of choice at the time was cocaine, which he was using extensively, and I accept that he was under the influence of cocaine at the time that he committed this offence.
     

28. He has sufficient insight into his offending to have been able to tell the psychologist that he thought his use of cocaine, and the fact that he was under the influence of cocaine at the time, had some connection with the seriousness of his offending, and in particular the ferocity of his attack, believing that had it not been for the cocaine, he may well have used fists or the like. Whilst he gets no benefit for that, it does indicate a degree of insight on his part. The fact that he was under the influence of drugs, of course, does not excuse his behaviour, but it provides some context to understand what is largely out of character, serious, violent offending, and also some understanding of his real prospects of rehabilitation.
     

22. He has a criminal record, and therefore is not entitled to the leniency that would flow if he were a person who came to court with no prior criminal record, however the bulk of the offences for which he has been dealt by the courts over the years have been for serious driving offences, including drive disqualified. That involved, in one case, a short period of imprisonment of 2 months. The only other offence on his record is an offence of affray, apparently committed in 2010 when he was 19 and dealt with a sentence by way of an Intensive Corrections Order. There is no evidence or information before the court about the circumstances of that offending. It is the only other entry on his record involving any form of violence.
     

23. Whilst his record disentitles him to leniency, it certainly does not amount to an aggravating factor, and it does in my view, and I accept this to be the case, indicate that he has not been a person prone to violence. I accept that this act on his part would be out of character. There may be some connection between his traumatic experiences in Afghanistan and the fact that he has behaved in the way he did, but none of that is definitively before the court.
     

24. The psychological report indicates that he does not suffer from any form of psychological disorder or mental illness, except that he does seem to have fit the diagnosis for substance abuse disorder, based on his self-reported use of cocaine up until the time of offending. However, he seems to have kept under control after going into custody. There is no indication of any breaches in custody, or anything to indicate that he has continued to use drugs. It seems to me that his prospects of rehabilitation are relatively good. As I’ve said, he’s indicated some insight into his offending behaviour, and in particular it’s connection with his use of cocaine at the time. He has, I accept, expressed some remorse for having committed the offence, at least as that is understood by his sister in the letter she has written to the court.
     

25. The evidence about the genuineness of his remorse or the extent of it is not strong, but I accept that when all of the material is read together, it is open for the court to find that he has a sense of remorse for having committed this offence.
     

26. In is argued on his behalf that his moral culpability is lessened, to an extent, because of the background, described in the submission as being one of deprivation. Whilst I accept that he has those issues arising from the trauma of his youth in Afghanistan, I also take into account the fact that his life in Australia, according to his own report, was relatively positive, and it seems to me that there is little if any evidence from which the court would make a finding that his circumstances in life make it appropriate to regard his moral culpability as lessened, or as reduced, that’s a better word, reduced.
     

The Sentence

34. Taking all of those matters into account, I have determined that the starting point for this offence is 6 years, I’ll reduce that by 18 months for the plea of guilty to 4 years and 6 months.
     

35. I accept that there are special circumstances as follows:
     

1. This is the first real term of imprisonment that he has served. The 2 months in the past for the driving offence, it seems to me, being so long ago and so short, does not prevent that finding;
    

2. Further, I accept that he will need a somewhat longer than normal period of supervision in the community to deal both with the drug misuse in the past, and also reference to a psychologist to explore the possibility of any connection with any personality disorder that he may have, and his traumatic background and;
    

3. That his time in custody up until now and into the future will be served in more difficult circumstances because of the restrictions surrounding COVID-19.
    

36. As I’ve said, I accept that for the last year that he has been in custody he has had few, if any, visits from family. The court is aware, and I take into account, that prisoners have been increasingly locked down because of the limitations and staff shortages, and there has been at least for a period of time over the last 12 months an increased risk of contracting COVID-19, and the fear that goes with that. Those factors surrounding his experience of custody during the time of the COVID-19 pandemic are well known to the courts and provided by way of ongoing material to the courts by corrective services. I take that into account as a factor amounting to a special circumstance to reduce the statutory ratio between the non-parole period and the overall term.
     

37. I have ultimately concluded that the non-parole period should be 2 years and 9 months, taking into account those special circumstances.
     

Formal Sentence Orders

38. For those reasons, I make the following formal orders:
     

1. The offender is convicted.
    

2. He is sentenced to a term of imprisonment comprising a non-parole period of 2 years and 9 months, commencing 27 February 2021 and expiring 26 November 2023, with parole thereafter of 21 months, commencing 27 November 2023 and expiring 26 August 2025, giving rise to an overall term of imprisonment comprising 4 years and 6 months, commencing 27 February 2021 and expiring 26 August 2025.
    

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Decision last updated: 15 December 2022