R v Tanbuz

[2019] NSWDC 199

District Court

New South Wales

Medium Neutral Citation:	R v Tanbuz [2019] NSWDC 199
Hearing dates:	30 January 2019
Decision date:	22 March 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Offender sentenced to an aggregate term of imprisonment of 7 years.
Catchwords:	CRIMINAL LAW - assault occasioning actual bodily - aggravated break and enter and commit serious indictable offence (actual bodily harm) - special circumstances.
Legislation Cited:	Crimes Act (NSW) 1900, ss59(1) and 112(2)
Cases Cited:	R v Edigarov [2001] NSWCCA 436
Category:	Sentence
Parties:	Regina (Crown) Mohammad Tanbuz (for the offender)
Representation:	Mr Walkowiak (ODPP) Ms Wasley (for the offender)
File Number(s):	2017/318140
Publication restriction:	Nil

Judgment

1. Mohammad Tanbuz, you appear for sentence today in relation to three principal offences.

2. Two of those principal offences are assault occasioning actual bodily harm. Those offences involve contraventions of s 59(1) of the Crimes Act. The maximum penalty for such an offence is 5 years imprisonment and there is no standard non-parole period.

3. The third principal offence is aggravated break and enter and commit serious indictable offence, the serious indictable offence being assault occasioning actual bodily harm. This involves a contravention of s 112(2) of the Crimes Act. The maximum penalty for that offence is 20 years imprisonment and there is a standard non-parole period of 5 years imprisonment.

4. In addition to those three principal offences, you have asked me to take into account, in relation to the third principal offence, 3 matters on a Form 1 which I have certified. Those three matters are: one matter of assault occasioning actual bodily harm; and two matters of destroying or damaging property.

5. The facts surrounding the three principal offences, and the three matters on the certified Form 1, are contained in an Agreed Statement of Facts. Slightly recast by me as to style but not substance, the facts are as follows.

6. In October 2017, you were 24 years old and for about ten months you had been living in a domestic relationship with Eleni Stylianou. You had been living together in a home unit in a south-western suburb in Sydney. Throughout your relationship with her, but unknown to her, you were abusing illegal drugs, including but not limited to what is a scourge in this city, and that is ice.

7. On the afternoon of 19 October 2017, you and Ms Stylianou (who, from now on, I shall refer to by her first name, without intending any disrespect, because a number of members of her family need to be referred to in these remarks) had a verbal argument and, as a result of it, she packed her bags and she left that home unit in her motor vehicle.

8. Before she left, you followed her to the car park. You had her mobile phone, which you threw to the ground causing it to break and then you picked it up and threw it away.

9. It is the damage to that phone which constitutes one of the matters on the Form 1. Because of the nature of that matter, it will not result in any meaningful increase in the sentence for the third principal offence.

10. Eleni then started to drive away in her motor vehicle. You, however, had armed yourself with a metal shovel. You struck the vehicle which she was driving, breaking the rear windscreen and the side wing mirror. Although it is not expressly included in the agreed facts, Mr Tanbuz, the breaking of a rear windscreen of a motor vehicle must have required the application of very considerable force.

11. Eleni then drove away to her family’s home in Belmore. At that home were her mother (Anna) and her older sister (Georgina). When Eleni arrived at her mother’s house, she told her mother what you had done to her phone and her car. Eleni then called a friend of hers (Lindsay) and arranged to meet Lindsay at her aunt’s residence. Eleni then drove to that residence. She told Lindsay what you had done earlier in the day. Eleni was crying and was scared.

12. At about this time you telephoned Anna more than once. You told Anna, amongst other things, that you could hear Eleni and Anna talking and that you could see them through the kitchen window. Whether those assertions were true or not is not revealed by the agreed facts, but it does not matter; the clear purpose of you saying those things was to frighten them.

13. You then told Anna that you wanted to know where Eleni was and that if she did not comply with your demand there would be repercussions. That can only have been understood by Anna as a threat.

14. Anna received a series of further phone calls from you.

15. At some point in the evening, Eleni’s aunt told Eleni and Lindsay that you had been calling Anna and that you had been listening to their conversations. Eleni became afraid that you would find out where she was, so she and Lindsay left and drove around for hours.

16. Whilst they were driving around, for no other purpose other than to escape from you, they received another call from a friend of Eleni’s who had also been receiving calls from you. An informal conference call was set up involving you, Eleni, and this other friend, in which you threatened to hurt Eleni if she did not meet you. More than that, you threatened to kill her.

17. After a few more calls, Eleni returned to her mother’s house in Belmore. She returned there at about half past 1 in the morning of 20 October 2017. She spoke with you on the phone and there was an agreement that you and she would meet in the backyard - which took place.

18. In that meeting, Eleni could smell alcohol on your breath - and you have admitted, in the witness box today, that you had consumed a very large quantity of alcohol on that evening.

19. Eleni asked you why you had earlier damaged her car. You accused her of seeing another man. You then asked her whether she wanted to break up with you or return to the unit.

20. When she said that the relationship was over, you asked her for one last hug. This was no innocent, harmless request because when Eleni (in her innocent and trusting nature) agreed to the hug, she began to become suspicious that you were holding something. Her suspicions were correct because you had taken a pair of scissors to that meeting.

21. You grabbed hold of Eleni’s hair with one hand and pushed her up against her mother’s motor vehicle. You threatened her and you tried to cut her hair off. She struggled with you, in the course of which she received a cut to her hand.

22. Remarkably, considering that you were well affected by alcohol and methylamphetamine and you are physically much bigger than her, Eleni was able to take the scissors off you and she threw them away. She was screaming to her mother for help. Anna and Lindsay came outside to help her. You, as I shall soon describe, not only assaulted Eleni but you then assaulted the women who came to help her.

23. Anna (a lady whom I have not seen and whose age I do not know - but who was old enough to have an adult daughter in her 20s) went to her daughter’s assistance. For her efforts, you punched her in the face and threw her to the ground. Whilst she was on the ground, you continued to hit her and to hold her down. She received a bleeding mouth and bruising around her neck.

24. It is your attack on Anna which constitutes one of the principal offences of assault occasioning actual bodily harm.

25. Lindsay also went to Eleni’s assistance after she saw Anna punched by you. You punched Lindsay with a closed fist to her face. She received a laceration requiring stitching and there was a right black eye.

26. It is that attack on Lindsay which constitutes the second principal offence of assault occasioning actual bodily harm.

27. It is your attack on Eleni when you grabbed her hair, pushed her against the car and tried to cut her hair which constitutes the third matter on the Form 1 of assault occasioning actual bodily harm.

28. Whereas the first two matters on the Form 1 of damage property will not result in a meaningful increase in the sentence, the third matter of assault occasioning actual bodily harm will.

29. Returning to the narrative, it was at about this time that Eleni’s sister Georgina dialled triple-0. The three women - Eleni, Anna and Lindsay - then went back into the house. The front and back doors were locked.

30. You went to the back door, which you kicked with such force that it broke open.

31. You then confronted both Anna and Georgina before you punched Eleni to the face. She was subsequently treated at St George Hospital for that punch and the results are contained in the facts sheet.

32. It is that breaking into the house and the blow to Eleni’s face which constitutes the third principal offence of aggravated break and enter and commit serious indictable offence.

33. The Court is called upon to make an assessment of the objective seriousness of each of the principal offences for offences of their kind.

34. Each of the assaults occasioning actual bodily harm are slightly below a mid‑range offence; and the aggravated break and enter is a mid-range offence.

35. Additionally, the offences are each aggravated by the fact that you were on conditional liberty at the time of the offending, namely you were on bail. Additionally, the offences are further aggravated by the fact that they took place in the home of Eleni’s mother.

36. There is no victim impact statement to the Court from two of your victims – because, in fact, Mr Tanbuz, although in the submissions made earlier today by both the Crown and your counsel, emphasis or focus was not unnaturally addressed to Eleni, there were three victims of your offending conduct that night. Neither Anna nor Lindsay have provided the Court with a victim impact statement. Eleni, read her statement to the Court on the last occasion that the Court was dealing with this matter.

37. Your offending behaviour (to adopt the words of Wood CJ at CL in R v Edigarov [2001] NSWCCA 436) can only be described as brutal, cowardly and inexcusable.

38. As a result of your behaviour, Eleni has sustained very significant emotional damage, far more significant than the physical damage that you inflicted on her.

39. It has been agreed between the Crown and your counsel that the degree of psychological damage you inflicted is not beyond what would ordinarily be expected and therefore, because of that agreement between the Crown and your counsel, her psychological damage cannot be regarded by me as an aggravating factor. However, that young lady will have the consequences of your actions for a very long time in her mind; maybe for the rest of her life. And, although there are no victim impact statements from them, undoubtedly the horrific nature of what you did that night has caused fear and psychological anxiety to Anna and Lindsay.

40. Your personal background, Mr Tanbuz, has been principally given to the Court through the comprehensive psychological report of Mr Brabant, a forensic psychologist. You have adopted the accuracy of the report in the witness box.

41. You are one of a large extended family. You have six siblings and other blended family siblings as well.

42. You were born in Palestine. You and your family came to Australia when you were eight months old. You have lived here ever since.

43. You have told the psychologist - and you have on oath said it is true - something about your childhood. The Crown has not challenged what you have said. Therefore, I accept that your childhood was a very confronting one in which considerable physical violence was inflicted on you, your siblings, and your half-siblings by your parents; violence that has psychologically severely damaged you.

44. You now believe that possibly the reason for that violence was that both of them were unable to cope with the circumstances in which they found themselves as parents, that is, having little money, in a strange country, and with a lot of children to feed.

45. Your own problems with violence, and untreated anger at the way you were treated as a child, became apparent very early in your life. When you were in Year 2 (that is six or seven years old) you were expelled from school because of aggressive behaviour. That was the beginning of the outward manifestation of very deep underlying problems that you carried with you because of the beatings you received from your parents and the fear in which you lived in your home as a child.

46. It will come as no surprise to anyone, Mr Tanbuz, to know that, having been expelled from Year 2, you exhibited difficulties throughout your primary and high school education. You completed the School Certificate but you could not proceed further because you vandalised a teacher’s motorcycle and that was the last time you were at school.

47. You have worked as a renderer but that lasted three days. You worked as a panel beater but that lasted two or three months. Ultimately, in 2015, you obtained work as a bricklayer.

48. More problematically, Mr Tanbuz, is that you have been abusing alcohol and illegal drugs since 2013. You have used a wide range of illegal drugs: cocaine, heroin, and speed; but the most predominant one is ice.

49. Your use of ice (which commenced in mid-2015) escalated quickly to very heavy abuse levels such that, within a short period of time, you were using a gram of ice a day.

50. I accept that, to a very significant extent, your use of ice and other illicit drugs and alcohol has been your attempt to self-medicate to deal with the consequences of the violence inflicted upon you when you were a child. I accept that your upbringing was dysfunctional and your moral culpability is to be reduced in the manner directed by the High Court.

51. It is noteworthy, Mr Tanbuz, that before this offending conduct you actually sought some help. You went to see a clinical social worker in 2014 and you continued to see her until early 2017. You had a total of 20 sessions with her. Clearly, they were not effective because nine or ten months after the last of those 20 sessions you did what you did to these women.

52. Perhaps the treatment program might have been more effective if you had told the social worker the truth about your drug usage. You say you told her about your use of cannabis and cocaine but she does not mention it in her report. In any event, by 2015 your ice habit was the most significant drug abuse that you were engaging in and you did not tell her about that.

53. You have a criminal history before these offences of offences of violence and damaging property. The victims of your offending behaviour have been members of your family.

54. It is said that you now have a much better relationship with your family in general, although it seems you are still not on good terms with at least one of your siblings.

55. The Court has received written references from members of your family and friends who speak to your character. The Court might have been assisted a bit more if at least one of your parents had been asked questions in the witness box to confirm your otherwise untested evidence about your childhood. It is of significance, however, that they have provided you with written support and that they are in Court giving you physical support today.

56. Although you have a criminal record, I am not prepared to treat it as an aggravating feature as the Crown has asked me to do.

57. You have been in custody now since 21 October 2017.

58. You have told the psychologist that you have not used illicit drugs whilst you have been in custody. There is certainly no misconduct charge about you using drugs in custody (or, indeed, for you misbehaving at all) which is a positive thing because it is notorious that drugs are easily accessible in the prison system of New South Wales. That is a positive feature for your prospects of rehabilitation. But it is not the only relevant consideration.

59. You have expressed remorse to your victims and, on the balance of probabilities, I accept that that is genuine. Now that you are no longer on ice you have had some insight into what you have done to those ladies.  

60. I have also not overlooked the fact that within one or two days of your offending you took yourself to the police. They did not have to come looking for you; you went to them.

61. You did fail to properly engage with the counsellor in 2014, 15 and 16.

62. It is no fault of yours that you have had no counselling programs in custody because they are not available generally to offenders who are awaiting sentence.

63. You have expressed an intention to seek access to the anger management and the drug abuse programs which are available in custody.

64. In these circumstances, it is difficult to make an assessment of your prospects of rehabilitation, Mr Tanbuz, until you have had proper treatment and until you have made proper disclosures to the person treating you. On balance, I regard your prospects for rehabilitation as being reasonable. I have concluded that they would be enhanced by a longer period on parole.

65. Because of your untreated mental condition and the reduction in moral culpability because of your background, you are not an appropriate vehicle for the full application of general deterrence, although it does have some application. Similarly, specific deterrence is somewhat reduced in significance. But although specific and general deterrence are reduced, the protection of the community remains a very significant consideration for the Court.

66. No sentence for the principal offences other than full-time imprisonment is appropriate and the contrary was not submitted on your behalf by experienced counsel.

67. You pleaded guilty at the first available opportunity and therefore you will receive a relevant discount of 25%.

68. I am going to impose an aggregate sentence which will be backdated to when you were taken into custody on 21 October 2017.

69. Because I am going to impose an aggregate sentence, it is necessary for me to state the indicative sentences which underlie that ultimate aggregate sentence.

70. For each principal offence of assault occasioning actual bodily harm, except for your plea of guilty, the indicative sentence would have been two years imprisonment, but because of the plea of guilty, the indicative sentence for each of those offences is 18 months.

71. For the principal offence of aggravated break and enter, and taking into account the matters on the Form 1, the indicative sentence is eight years imprisonment, but because of the discount of 25%, the indicative sentence is 6 years and the indicative non-parole period is 3 years.

72. Ordinarily the ratio non parole period to the head sentence is 75%, unless the Court finds special circumstances to vary that ratio downwards. I have decided to do that for three reasons: first, this is your first time in custody; secondly, because of your age; and thirdly, your prospects of rehabilitation will be enhanced by a longer period of time on parole. If you offend whilst you are on parole, depending on the nature of the re-offending, it is highly likely that the Parole Authority will revoke the parole and you would then have to serve the balance of the sentence in prison.

73. Mohammad Tanbuz, of the two offences of assault occasioning actual bodily harm and the offence of aggravated break and enter and commit serious indictable offence, you are convicted.

74. I impose an aggregate sentence of 7 years imprisonment.

75. I fix a non-parole period of 3 years and 6 months which dates from 21 October 2017 and which expires on 20 April 2021. I fix a balance of 3 years and 6 months to date from 21 April 2021 and which will expire on 20 October 2024.

76. Whether you are admitted to parole on 21 April 2021 will be a matter for the Parole Authority and will largely depend on how you behave yourself, or otherwise, whilst in custody. If you do not complete the anger management courses or the drug courses it is unlikely that you would be considered for parole.

77. You will now go with the officers, thank you.

Decision last updated: 23 May 2019