R v Suleiman
[2018] NSWDC 542
•10 October 2018
|
New South Wales |
Case Name: | R v Suleiman |
Medium Neutral Citation: | [2018] NSWDC 542 |
Hearing Date(s): | 05 September 2018 & 10 October 2018 |
Date of Orders: | 10 October 2018 |
Decision Date: | 10 October 2018 |
Jurisdiction: | Criminal |
Before: | Bennett SC DCJ |
Decision: | Impose a Community Correction Order for 3 years for each offence |
Catchwords: | CRIME — Domestic violence — Stalking or intimidation |
Legislation Cited: | Crimes (Domestic and Personal Violence) Act 2007 |
Category: | Sentence |
Parties: | Regina (Crown) |
Representation: | Ms Smith (Crown) |
File Number(s): | 2017/00143535 |
Publication Restriction: | Non-publication order for the name of the victim or of any information which may enable their identity to be ascertained |
REVISED EX TEMPORE JUDGEMENT
Saadat Masoud Suleiman pleaded guilty before me on 28 August 2018 to two offences, the first contrary to s 13(1) Crimes (Domestic and Personal Violence) Act2007, alleging that he between 1 December 2016 and 30 December at Mortdale in the State of New South Wales did stalk SH with intention of causing the said SH to fear physical or mental harm.
I pause to interpolate here that there should be no publication of the name of the victim or any information that might enable her identity to be ascertained and henceforth I should refer to her by way of her initials.
Count 2 alleged that he on 30 December 2016 at Canterbury in the State of New South Wales did intimidate SH with the intention of causing the said SH to fear physical harm. This is contrary to the same provision in the same Act.
The Maximum Penalties
The maximum penalty specified for these offences is imprisonment for five years with a fine of $5,500. There is no standard non‑parole period specified for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act1999. Upon summary disposal the offender would have been exposed to imprisonment of two years in each case with a fine of $5,500.
The Pleas of Guilty
He did not plead guilty at the earliest possibility; the matter was listed for trial to commence on 27 August 2018 but negotiations continued and ultimately the Crown accepted pleas of guilty to the two counts which I articulated and directed that there be no further proceedings upon a third charge included on the indictment of assault occasioning actual bodily harm on 30 December 2016 contrary to s 59(1) Crimes Act 1900.
The Crown concedes utilitarian value of the pleas in the circumstances after there had been charge negotiations. It is unnecessary for me at this stage to state what the discount ought to be but I would contemplate were I to be imposing a sentence of imprisonment today a discount of about 15%. This is in approximate terms because my practice is to apply the discount to the sentence with which I would start, rounding the sentence down to discard any excess days that might result in the calculation. This would of course favour the offender.
However, I do not propose to impose a sentence of imprisonment in light of the history of the matter, and the proceedings, and the totality of the offending upon which he has engaged.
Upon the subjective case, to which I shall come, and the fact that he has already spent a period of time referrable to these offences of 241 days without bail, and at the same time has served sentences of imprisonment for other conduct toward the same complainant, it would seem me that what is needed in this case is a period of supervision; s 4A(b) Crimes (Sentencing Procedure) Act 1999 must be applied requiring an order in appropriate terms to ensure, so far as the Court is able to do so, the rehabilitation of the offender. Of course he must understand that should he breach the Community Corrections order that I am proposing for each of these offences he will face imprisonment as a possible outcome in the proceedings.
The Facts
The conduct upon which sentence is to be determined should be understood within the context of the relationship, which evolved and ultimately disintegrated between the offender and the victim.
I would first note that he is 31 years of age at the present time. He has a record of antecedents that does have relevance to the determination of these matters. In July 2014 he was charged with a common assault for which he was required to enter a bond pursuant to s 9 Crimes (Sentencing Procedure) Act1999 for a period of 12 months, an offence committed with a domestic violence context. In September 2017 for contravening an apprehended violence order he was required to enter a bond pursuant to the same provision for a period of 12 months; in June 2018 he was called up in respect of that and sentenced to imprisonment for two months from 22 November 2017; at the same time he was imprisoned for contravening an apprehended violence order and suffered a sentence of two months concurrent upon the other sentence. The events leading to those periods of imprisonment were in respect of the same victim; the relationship between the victim and the offender was clearly disintegrating.
He has one offence in custody on 28 June 2018 which was reported on 2 July 2018. He was charged with creating or possessing prohibited goods; there must have been some significance in that misconduct because he was punished with 28 days off buy-ups, off contact visits and off phone calls, which in my experience having looked at numerous custodial records in the past seems to be a significant level of punishment. I know nothing about the offence other than what I see in the record of his custody and I can offer no further view with regard to it.
The material tendered by the Crown includes facts sheets for the past offending involving this victim. I will try to separate them into date order.
The first deals with contravention of the apprehended violence order in place for the place for the protection of the victim, the offence occurring on 29 April 2017. On this occasion the victim was sitting with another person in a hotel at North Sydney at some musical occasion; the offender approached her and placed his one hand on her leg and one hand on her right ear and his left cheek up to her left cheek and began speaking to her. He asked why she had previously reported him to the police; he said “I know I’m not supposed to be here but I would rather go to gaol for those two years”. The victim became emotional, began shaking, she was scared. There was no permission given for the offender to touch her or talk with her. There was further conversation in the course of which she told him that he should not be talking to her. A friend of the offender arrived and escorted him away and the victim and her companion left and notified the police. When they ultimately spoke to the offender he admitted that he was aware of the victim being present at the hotel for this musical occasion but he denied approaching her.
The second event was on 21 November 2017 when the victim attended the Ashfield Police Station and produced recordings on her phone. It included a message from the offender in the following terms: “I will always be available to you and enjoy the rain all the way but I’m scared about police in case and more AVO, I don’t know”. He was arrested on 22 November 2017; he refused to be interviewed in relation to the matter.
The facts that are provided relevant to the offences before me provide a history of the relationship which began in about 2013. On 7 July 2014 he suffered a conviction for common assault, a matter on his record to which I referred leading to the bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999. Notwithstanding that event, on 13 April 2015 the victim moved in to live with the offender in Canterbury but later that year tried to end the relationship. In June 2016 the offender moved to another address; he asked the victim to put her name on the lease, which she did although she rarely went to that address; she continued to live at Canterbury until November 2016 when she moved to live with friends. She blocked the offender on social media and blocked his phone number; however he still used the application WhatsApp to message her.
The charge of stalking, first count on the indictment, was brought upon the following facts. In December 2016 the victim saw the offender sitting in his car outside of her work at a nursing home in Mortdale. She saw him there on a number of occasions; he would wait from about 1.00pm to 3.00pm. On each occasion she saw him she waited until he left before departing. On 18 December 2016 about 1.13pm the victim photographed the offender sitting in his car outside her work. In a WhatsApp message sent on 19 December 2016 he admitted waiting for her at work up to six times. There are a series of messages, two of which are quoted, one at 1510 hours and the other at 1517 hours. The terms of the messages reflect knowledge of English, which is less than perfect but adequate with poor grammatical structure. In the first of those he spoke of how he missed her, how much he needed her forgiveness, how he has already explained to her but she wished to,
“stick on what you wanna say about all this and not what exactly is okay, if you say to be far apart is much better for you and it bothers you to read msgs which for me it is a big factor to want mutual understanding with you”.
In the message at 1517 hours he again apologised, this time for attending her work six times suggesting maybe they could talk and he concluded with,
“I thought of telling this because people who know me at your work, if they had passed by and seen me.”
Attached to the message was a photo timestamped at 1517 with a photo of the complainant’s employment place, apparently exposed from within the motor vehicle.
There were then messages at 1518 hours, 1527 hours and 1755 hours. Again he expressed sorrow for his concern to meet and talk to her, referring to her feeling hassled, expressing sorrow for that and again expressing sorrow for the annoyance.
He sent about 20 messages in all to the victim up to and including 26 December 2016. She did not reply to any of them. Then there are examples in the facts; they were at 1910 hours, then 1643 hours which is out of sequence in the facts at least and then at 2108 hours. It is quite apparent when one reads those messages that the offender is struggling to appreciate that the relationship is at an end and is continuing in his efforts to have the victim returned to the relationship. He expresses his apologies in terms wanting to have another chance, wanting to spend time with her, wanting her to understand his predicament as he perceives it.
The second count on the indictment, intimidation, is then discussed. Sometime after midnight on 30 December 2016 the victim went to the home of a friend, Ms M, in Campsie. As she approached those premises she heard the offender talking, apparently inside the premises. She left without entering but then later returned and once inside there was an argument with the offender. Ms M said she would drop the offender home as he was drunk. She drove the offender home in his car. The complainant followed in her car so that she could speak with Ms M; Ms M drove toward the offender’s home. The complainant followed into the next street where they stopped; the complainant got out of her car and entered the offender’s car with Ms M. The offender was in the back seat. The offender demanded that the complainant get out of his car, they argued, she called him a jerk and stupid, he began swearing¸ he challenged her to a fight. He said,
“Come out of my car. And if you come out I will kill you.”
He also said,
“I will kill you then I go to gaol.”
He repeated this three times. He got out of the car. Ms M locked the car. The offender began hitting his own car and the victim and Ms M stayed in the car until he left.
The conversation was recorded in part and in the conduct of the matter a transcript was presented to Ms M, who was called to give evidence on behalf of the offender and faced cross-examination. The transcript records that the conversation - or the recording rather of this conversation presented to the Court was at 2.04 minutes, which I take to mean two minutes and four seconds. The exchange clearly involved some acrimony between those participating in the conversation. There is a male person who must be the offender and a Female 1, Female 2. Female 1 it would appear was the victim. I conclude that because of the terms of her representations as recorded and having heard Ms M’s evidence which was sympathetic, if not supportive, of the offender. I attribute no criticism by reason of that conclusion regarding her evidence, as I will explain. What is important to note is in the course of the exchange the offender is recorded to have said,
“I can kill. I can kill right now okay.”
And then later, with the sound of a banging on the car,
“I want you to come out of my car.”
The Female 1 said,
“Is he like this when he drinks?”
“He doesn’t.”
Female 2, who was Ms M, said,
“Saalat, don’t be aggressive.”
Whereupon the offender said,
“I’m going to bash my car.”
On the second page the offender is recorded to have said,
“No, sorry, I will kill you no doubt. I kill you then I go to gaol.”
And then,
“I will kill you then I will go to gaol.”
He repeated,
“I will kill you then I will go to gaol.”
And then finally,
“I have decided to kill you.”
The offender has not given evidence before me. As I said, Ms M gave evidence when the matter proceeded before me on 5 September 2018. The evidence she gave included reference to the statement she made to police on 20 May 2017 in which there was no inclusion of all of the effect of what was said in the course of the recorded conversation, although the statement did refer to this event and the travel upon which the participants had engaged leading up to the recorded conversation. She attributes to the victim some aggressive statements, hitting the offender and having bitten him on the upper body and pulling his necklace off. As the Crown pointed out, the view to be taken is that her position was sympathetic to the offender. She was clearly an associate of both of the combatants in this relationship; there is no other term to be applied in my view.
I doubt that she wanted to be caught in the middle as she was. One could conclude as a possible inference from all of the circumstances that she was doing her best to avoid problems for the offender, but at the same time not lose the friendship of the victim, in which case it would be an available inference that she was misleading both the police and the Court.
I indicated in the course of argument that I would not come to that view. There can be no doubt that the events were emotionally charged. There might well be questions - and indeed in my view there are questions - over the accuracy of what she had to say but it does not follow from that that she was necessarily duplicitous or deceptive in either instance.
That said, I agree with the Crown submission that I should put her evidence to one side and simply rely upon what are the objective facts expressed in the agreed statement of facts and the independently corroborative recording to which I have referred. She was cross-examined by the Crown about the disparities between the statement by way of the omissions from it and the effect of what she had to say in evidence-in-chief. She would not move from the position that omissions and the terms of evidence were not because she wanted to assist the offender. She said that she has cut ties with both of them since all of this which is probably sensible in the circumstances, but she has continued to maintain a measure of friendship with the offender.
The Offender
The offender has put before me a subjective case including references speaking to the qualities observed by others in the offender. First of all, there is a document from Judi Palmer written on 28 August 2018. She is from the “Creative Education Foundation Zanzibar” and “Zanzibar Steiner School”. This is a charitable organisation. She has known the offender for 20 years; a friendship evolved when she began coming to Zanzibar. Fifteen years ago she married his father whereupon they permanently relocated to Zanzibar from Australia. The offender lived with them until he moved to Sydney. She speaks of him through his childhood years, his formative years and his array of friends and associates and that he is known to be soft, calm and diplomatic, keeping good company and a friend to many.
There is a document from his father written from Tanzania and specifically a post office box in Zanzibar speaking of his perception of his son’s character, both written in positive terms.
There is also a reference from Ms M who gave evidence speaking of his qualities according to her perceptions and his faith which he practises as a Muslim man; she is confident that this incident will provide lessons for him that he will use henceforth not to return to the criminal justice system. There is a reference from a Mr or Ms Francis Gabone who has known the offender for over a decade as a friend; he is perceived as a brother. This document describes him as friendly and polite with a heart of gold, active in the Tanzania community in Australia, always there to assist and volunteer in events when called upon.
There is another reference from Simon Masanja, again speaking of the qualities of the offender and the fact that this conduct is out of character.
Then from Dennis Gabone there is a further reference again in similar terms. There is a reference from his sister, and another from Jaylawi Njwelige, and finally one from Nadhifa Mshindo.
All of those references speak of his qualities. Upon that material one could only conclude that but for the evolution of this relationship and the misconduct upon which he engaged through the inability to control his emotions he is a person of good character.
He is employed, or was employed as a traffic controller team leader from June 2015 and there is a reference from his employer company looking forward to him being reinstated in his position. That was written in August 2018.
Consideration
As is said on his behalf there is ample material upon which to conclude that his prospects for rehabilitation are strong. There has been an appropriate demonstrated level of contrition and remorse. He has already suffered significant punishment which, assessed against the objective gravity of the misconduct could not be said to inappropriate. Moreover, one needs to apply the principle of totality and note that he has already spent two months in gaol, according to what I have read, for misconduct against this victim for offences already dealt with by magistrates; he now faces sentence for two further offences in respect of which he has spent 241 days in custody. Should he breach the Community Correction Order I am about to impose of course the Court will be required to bring that to account in determining how long any subsequent sentence of imprisonment should be.
It is said the line in s 5, Crimes (Sentencing Procedure) Act has not been crossed. Leaving aside entirely the subjective material and focussing only upon the objective gravity at this point and noting also that the Crown concedes that the objective gravity is below mid-range I would disagree with that proposition. In my view looking at the objective facts alone the line in s 5 was crossed. But that is not the end of the process. I am embarking upon a synthesis of objective and subjective matters in coming to the decision that I must with regard to the penalty that is to be imposed.
The options would seem to me to be one of either an Intensive Correction Order, consideration of which only arises should I come to the view that I should impose a sentence of imprisonment today, or alternatively, I could impose a Community Correction Order which would be required in respect of each of these offences and would allow for an extended period under which the offender would be supervised to ensure so far as the Court is able to do so that he does not come back.
There is a need for specific deterrence in this case. There is a need to denounce his behaviour. Regardless of whatever contribution the victim might have made to the acrimony that evolved between them no woman in our community should be subject to such misconduct. Domestic violence is a problem in the community and it attracts appropriate weight to the aspect of general deterrence which must be given full measure in such a case.
The appropriate course I believe in this case is to impose a Community Correction Order.
At this point in my ex tempore judgement the offender’s counsel brought to my attention s 4B(3) Crimes (Sentencing Procedure) Act 1999; that says,
"Before making a Community Correction Order or Conditional Release Order in respect of person whom the sentencing court finds guilty of a domestic violence offence the Court must consider the safety of the victim for the offence.”
I was also informed that the victim was no longer in Australia, confirmed by the Crown, who reminded me that under s 39 Crimes (Domestic and Personal Violence) Act, I was required to make an apprehended domestic violence order, unless satisfied that you’re not required to in the circumstances.
The Crown submitted that notwithstanding it was not known if the victim was to return to it would be appropriate for an apprehended domestic violence order to be made, which would resolve any issues arising under s 4B(3) of the Act.
The offender’s counsel did not wish to be heard against the order.
I have had regard to s 4A Crimes (Sentencing Procedure) Act 1999, applicable where the offender has pleaded guilty to an offence contemplated by that section requiring that he suffer either a sentence of full‑time detention or a supervised order. Subsection (2) qualifies that requirement if the Court is satisfied that a different sentencing option is more appropriate in the circumstances.
I am satisfied that there should be a supervised order in this case. I have been reminded of s 4B(1) of the Act which refers to an Intensive Correction Order and which prohibits the making of an Intensive Correction Order in respect of a sentence of imprisonment or an aggregate sentence of imprisonment unless the Court is satisfied that the victim will be adequately protected. It is not, at this point at least, a matter that I need to bring to account because of the course I am proposing. If, however, there is a breach of the Community Correction Order that I am going to impose it will be necessary for me to turn my mind to that provision if I contemplate a sentence of imprisonment be served by way of an Intensive Correction Order.
The Sentences
I propose a Community Correction Order in accordance with s 85 Crimes (Sentencing Procedure) Act 1999.
In respect of each of these offences I convict the offender.
I require him to enter a Community Correction Order for a period of 3 years in respect of each of those offences.
There are standard conditions that will apply in accordance with s 87 and s 88 of the Act:
(1)The offender must not commit any offence;
(2)The offender must appear before court if called upon to do so at any time during the term of the Community Correction Orders.
The orders will be subject to a further order pursuant to s 89(2)(g) of the Act: the orders will be supervised; the offender is to submit to the supervision by a Community Corrections officer for so long as the Community Corrections officer deems that it is appropriate for that supervision to continue.
I do not propose at this point any further conditions other than that he report to the Community Corrections Office at Burwood within three working days of today to arrange for the supervision.
The Offender’s counsel reminded me once more that s 4B(3) of the Act requires that before I make a Community Correction Order or a Conditional Release Order having found the offender having pleaded guilty to domestic violence offences I was required to consider the safety of the victim of the offence; that was of paramount consideration in the course of the determination of this matter.
The Crown has reminded me that pursuant to s 39 Crimes (Domestic and Personal Violence) Act 2007 that as a consequence of the determination of this matter I must make an order pursuant to that provision.
I make a Final Order under that Act for the purposes of these proceedings and adopt the standard conditions for which the Act provides.
The exhibits are to remain on the Court file.
The orders were explained to the Offender.
The further offence is withdrawn and dismissed to accommodate JusticeLink after decision for no further proceedings.
**********
0
0
3