R v Yousif

[2015] NSWDC 407

District Court

New South Wales

Medium Neutral Citation:	R v Yousif [2015] NSWDC 407
Hearing dates:	17 September 2015
Date of orders:	17 September 2015
Decision date:	17 September 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment for a period of 20 months. The execution of that sentence is suspended under s12 of the Crimes (Sentencing Procedure) Act
Catchwords:	CRIMINAL LAW - Sentence - Intoxication - Violence - Offender subject to a community service order at time of offence - Substantial pre sentence custody - Not necessary to return offender to jail
Legislation Cited:	Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	The Crown Sheik Eldin Yousif
Representation:	Counsel: D McCallum - Offender     Solicitors: Director of Public Prosecutions Jeffreys Lawyers - Offender
File Number(s):	2013/314294

SENTENCE

1. HIS HONOUR: This is yet another offence where an offender, whilst drunk, committed an act of violence. I have begun many remarks on sentence with those words over the course of my judicial career. The community, as well as the judiciary, are rightfully tired of drunken young people, usually men, resorting to violence, especially violence of a serious kind. For obvious reasons there must therefore be a substantial component of general deterrence in the sentence imposed for conduct which I will shortly describe.

2. The offender is a member of the Sudanese community. There was a function held at the Chatswood Club by the Sudanese community on 6 October 2012. About 60 people attended, including the offender. In the early hours of the following morning there was something of a fracas involving two particular people. Matters settled down, although arguing continued apparently, but once time was called and the party goers began to leave, violence erupted.

3. There were about 15 people outside the club. At one stage some punches were thrown, and a man by the name of Makin went to assist his friend, Mr El-Haj. The offender punched Mr Makin in his left eye using his right fist. Mr El-Haj was then hit with a ceramic plate across his right eye, and he fell to the ground. The offender and another man then began kicking Mr El‑Haj to his body while he was on the ground.

4. Mr El‑Haj lost the sight of his right eye, however there is no suggestion that Mr Yousif was responsible for that injury and the Crown does not suggest that Mr Yousif should receive any extra punishment because of those consequences to Mr El-Haj. In such circumstances the victim impact statement tendered by the Crown is of limited utility. Not surprisingly, Mr El-Haj feels deeply about the loss of sight in one of his eyes and his victim impact statement concentrates on that injury. In circumstances where Mr Yousif is not criminally responsible for that injury I have had to place very limited weight on the victim impact statement, and as the Crown conceded for the purposes of sentencing, ignore this injury to Mr El‑Haj.

5. This was not the offender’s first brush with violence, nor was it to be his last. He was on a Community Service Order for an offence of actual bodily harm at the time of this offence. Having been convicted of this offence, that Community Service Order was quashed, and three months imprisonment was imposed. After this offence he committed another offence of affray, receiving 28 days imprisonment.

6. I should also mention that the offender spent some time in custody, bail refused, for offences which were later not proceeded with. However, he did spend one year and four and a half months in custody, bail refused, on this matter, as well as the other matter which was not proceeded with. In those circumstances I will take into account pre-sentence custody of one year, four and a half months. That of course - and I know I am stating the obvious - is a significant period of time in gaol.

7. The offender pleaded guilty at quite a late stage, shortly before the trial was about to commence. He was always able to plead guilty to the offence of affray but did not do so until late. No doubt this was because he was hoping to negotiate with the Crown that they drop the more serious charge on the indictment ultimately presented against him, which did relate to Mr El-Haj’s injury to his eye. The utilitarian value of Mr Yousif’s plea is therefore reduced from that which it would have carried if the plea of guilty had been entered earlier. In such circumstances I will impose a sentence which is 10% less than it would otherwise have been.

8. Mr Yousif was, as I mentioned, born in Sudan. Fortunately he was not exposed to the traumatic events associated with the various civil wars which have taken place in that country. However, as he described things to Dr Nielssen, “I experienced war in my own house between my mum and my step‑dad.” His step-father was violent, both to his mother and to him. The family left Sudan and went to Cairo before his step-father came to Australia, and the rest of the family followed him afterwards.

9. He dropped out of school during Year 10; commenced work as an apprentice to a painter; but his excessive consumption of alcohol meant that he could not really do what was required of him in that job. He now hopes to return to that occupation and will be studying at TAFE next year doing painting and decorating.

10. Mr Yousif has been able to do some courses whilst in custody. He now recognises the problems which alcohol have caused him, and has not drunk alcohol for some time; there are thus prospects for his rehabilitation. They will be enhanced by the offender continuing to avoid alcohol and by studying, as he proposes to do.

11. He is currently working five days a week doing concreting formwork, which also suggests that Mr Yousif is a different sort of person to the one who committed the offence for which I must now sentence him.

12. I consider that a custodial sentence is required, but given the plea of guilty and given the circumstance that he spent one year, four and a half months in pre-sentence custody, I am satisfied that it is not necessary to return Mr Yousif to gaol. Mr McCallum made the submission that I would deal with his client by means of a suspended sentence of imprisonment. I will do that. The Crown did not speak in opposition to that outcome.

13. The offender is sentenced to imprisonment. I impose a sentence of imprisonment of 20 months. That sentence is to be suspended under s 12 of the Crimes (Sentencing Procedure) Act on condition that Mr Yousif enter into a bond. The conditions of that bond are,

1. That he is to be of good behaviour.

2. He is to accept the supervision of the Probation and Parole Service.

3. He is to appear before this Court if called upon to do so at any time.

4. He is to inform the Registrar of this Court of any change in his residential address.

14. Mr Yousif, let me just explain to you what I have done. You are not going to go back to gaol today, but if you commit another offence in the next 20 months I will send you to gaol for this offence. You will also get sentenced for the next offence, but you will come back before me and I will send you to gaol for this offence. If you stay out of trouble you will not go to gaol, if you get into trouble you will go to gaol. So whether you go to gaol or not, it is not up to me, it is up to you. Do you understand that?

15. OFFENDER: Yeah.

16. HIS HONOUR: Right, thank you. Thank you both for your assistance.

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Decision last updated: 23 August 2016