Regina v Amir Ibrahim El Mostafa

[2007] NSWDC 219

CITATION:	Regina v Amir Ibrahim El Mostafa [2007] NSWDC 219
HEARING DATE(S):	12-16/03/2007, 19-23/03/2007, 26-30/03/2007, 02-05/04/2007, 16-19/04/2007, 23-27/04/2007, 30/04/2007, 01-04/05/2007, 7-10/05/2007, 14-18/05/2007, 21-24/05/2007, Jury verdict on 31/5/2007.
JUDGMENT DATE:	24 August 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Convicted. Overall term of 8 years with 5 years non-parole.
CATCHWORDS:	Riot - Alternative count of Affray - Public Order Offences - Assault occasioning actual bodily harm in company - Maliciously inflicting grievous bodily harm in company - History of mental illness - Religious and political tensions in Muslim community - Iraq election 2005 - Overall term of 8 years with 5 years non-parole period
LEGISLATION CITED:	s93B(1) Crimes Act 1900 s59(2) Crimes Act 1900 s35(2) Crimes Act 1900 s21A Crimes (Sentencing Procedure) Act 1999 s44(2) Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Regina v Norman and Parker [2006] QCA 517 Regina v McCormack & Ors [1981] VR 104
PARTIES:	Regina Amir Ibrahim El Mostafa
FILE NUMBER(S):	06/11/0574
COUNSEL:	Mr P Calvert for the ODPP Mr C Simpson for the offender
SOLICITORS:	Ms S Flemming for the ODPP Ms T Duffy for the offender

JUDGMENT

1 I have to sentence Amir El Mostafa for a serious public order offence and for other offences which were connected with the same event. The case involves persons who hold strong and opposing political and religious views. Those views were ventilated in appropriate ways until a large group of persons on one side attacked a defenceless and unsuspecting group of persons on the other side late on a Sunday night in a public street. On that night the public expression of strong differences of opinion changed from legitimate to criminal.

Ms Guirguis, if I’m going too fast would you let me know? You just tell me.

CALVERT: Your Honour, I don’t think Mrs Guirguis has been sworn in yet.

SIMPSON: I don’t know if she needs to.

HIS HONOUR: Ms Guirguis, you have taken an oath probably more than once before to faithfully interpret from English to Arabic, from Arabic to English. You understand that you’re still bound by that oath, don’t you?

INTERPRETER: Yes, your Honour.

HIS HONOUR: Good, thank you. Thanks for reminding me. I’ll return now to the remarks on sentence.

2 Amir El Mostafa was arrested and charged on 29 July 2005. He was bail refused and has been in custody connected only with these offences since then. He was committed for trial to the District Court on 12 July 2006 following committal proceedings which entailed some days of evidence. He was arraigned in the District Court on 20 October 2006. He was arraigned on the following offences: for the offence of riot committed on 30 January 2005, this is an offence contrary to s 93B(1) of the Crimes Act1900 and carries a maximum penalty of fifteen years imprisonment. As an alternative to that count he was arraigned on a count of affray. It is no longer necessary to give consideration to that count. He was arraigned on two separate counts of assault occasioning actual bodily harm whilst in company. They are both offences contrary to s 59(2) of the Crimes Act, each carrying a maximum of seven years imprisonment. The final count in the indictment was the offence of maliciously inflicting grievous bodily harm, an offence contrary to s 35(2) of the Crimes Act and carrying a maximum of ten years imprisonment. To all of those counts Mr El Mostafa pleaded not guilty.

3 He was indicted jointly with Saleh Khodor. (In respect of the counts against Saleh Khodor the jury was eventually unable to reach unanimous or majority verdicts in that trial.) There were a number of preliminary applications before the trial commenced, those applications commenced on 12 March 2007. The trial itself commenced on 23 April 2007. On 31 May 2007 Mr El Mostafa was convicted of the first count of riot, which meant that it was not necessary for the jury to return a verdict on the second count, on the third and fourth counts of assault occasioning actual bodily harm in company and on the last count of maliciously inflicting grievous bodily harm in company. I will give some detailed consideration to the evidence as I consider particular issues relating to this sentence, or I should say these sentences.

4 However, briefly the circumstances of these crimes centred upon events which occurred on 30 January 2005. That was a Sunday. It coincided with the period of time during which elections were being held in Iraq. Iraqi nationals living in Australia were entitled to vote. Voting occurred over a period of time which included Saturday 29 January 2005. There was a difference of opinion, the evidence made clear, amongst the Muslim community, that community itself being from various different nations, about the desirability of holding elections. On Saturday 29 January 2005 that difference of opinion expressed itself in the form of a public demonstration at the site of the polling booth. Mr El Mostafa was present at that public demonstration, legitimately and lawfully expressing his opinion which was against the holding of the election. In addition Mr El Mostafa, who was well known around the area of Auburn in suburban Sydney, had views about the different ways of expression of the Muslim faith. He himself is a Sunni Muslim. He did not regard favourably those who are Shiite Muslims. He was known to be critical of them. He expressed this criticism in a legitimate and lawful way by distributing pamphlets on the topic. I have not read the pamphlets and my observation about them being legitimate and lawful is subject to them containing any inflammatory statements.

5 Another event occurred that weekend. Early in the evening of Sunday 30 January 2005 at Auburn, which I should add was the centre of these events, there was a small altercation between Mr El Mostafa and a young Shiite man. It may well have been that Mr El Mostafa was provoked by this young man. They exchanged words and some physical contact and then parted company. The third event which occurred is the subject of the charges. A large group of men, probably around thirty to thirty-five, descended on a smaller group of men in the main street of Auburn after 11pm that Sunday night. The larger group took the smaller group by surprise, the larger group were armed, firearms were discharged, at least one person was wounded by a bullet, shots were fired into cars and shops. Arising out of that event Mr El Mostafa was charged with riot and with the other offences.

6 It is convenient to mention at this stage that the first assault occasioning actual bodily harm in company comprised a broken nose sustained by a Mr Al Shemmari. The other assault occasioning actual bodily harm in company comprised a broken wrist sustained by a Mr Alkhersan. The last count, the maliciously inflicting grievous bodily harm in company, was constituted by a Mr Ansary sustaining a fractured skull. All of these injuries were sustained in the course of the riot. It is clear from the evidence that the riot was connected with political and religious differences. The political differences concerned the election. The religious differences concerned the differences between Shiite and Sunni Muslims. Most of the attacking group, if not all, were Sunni Muslims. Most if not all of the attacked group were Shiite Muslims. Most of the Shiite Muslims who were attacked had voted in the Iraqi elections.

7 I need to consider a number of issues concerning this sentence. The first is what role Mr El Mostafa had in the riot and associated assaults. Mr Calvert, who appears as Crown Prosecutor for the prosecution, contended that Mr El Mostafa was a principal in the riot. Mr Simpson, who appears for Mr El Mostafa, submitted that his client was not the ringleader.

8 Mr El Mostafa was well known in the Auburn community. I cannot find beyond a reasonable doubt that he was the principal or the organiser of the riot. As Mr Simpson points out there were obviously connections between the riot and the elections that weekend. Some of those involved as aggressors in the riot had a connection with the Omar Mosque. At least they were seen to leave from and return to that mosque. As I have said there had been a demonstration the day before about the elections. There may well have been a number of people involved in organising this riot. We know a good deal about what happened at the scene of the riot but not much about the organisational background to it. Having said that, I am satisfied beyond reasonable doubt that Mr El Mostafa had a role in the organisation of the riot. He was seen by a number of witnesses giving directions which were responded to by other aggressors. For example, Mr Alkhersan saw him asking the others to go forward before he himself withdrew, that is, Mr El Mostafa. Mr Alkhersan also saw him give a sign to withdraw. I am satisfied from the description Mr Alkhersan gave that he was talking about Mr El Mostafa. Mr Al Saaedi saw Mr El Mostafa directing an attack on his store and giving a sign that the attackers should leave. Mr Aljawady heard Mr El Mostafa say, “Attack them”. I am therefore satisfied beyond reasonable doubt that Mr El Mostafa had, as I said, an organisational role in this riot. He was not of course responsible for the political events which formed the context of the riot but those events were used by him as an opportunity to take a leading role in an attack on innocent Shiite Muslims who held views different to his.

9 Mr Simpson submitted that I should take into account the fact that both sides were throwing punches. I do not accept that the fact that both sides were throwing punches in any way mitigates the seriousness of the offences. Obviously the group of men who were attacked would try to resist the aggression and their efforts would include appropriate reciprocal violence. I am not satisfied beyond reasonable doubt that the offender personally inflicted any violence. As Mr Simpson said, his client’s role in the joint enterprise was not so much assistance but encouragement. But I am satisfied beyond reasonable doubt that his role in addition to encouragement was also organisational.

10 Mr El Mostafa did not take up a position in the forefront of the riot which was near a tobacconist shop known as the Somer Market. Although some witnesses had him closer to the forefront, a number of witnesses had him at various distances from the Somer Market. They ranged from fifteen metres through a hundred metres to near another shop at a nearby corner called the Dejla Market. I am also not satisfied that Mr El Mostafa was amongst the persons who gave instructions to hit Mr Al Shemmari or indeed any of the other persons injured.

11 I turn now to the question of motivation. I am satisfied that Mr El Mostafa held strong feelings against Shiite Muslims. I accept the evidence of Musadak Al Zargani that Mr El Mostafa had said to him, “You Shiites are sons of bitches and dogs” and furthermore that he said, “You’re not electing yourselves, you are electing Americans”. I am also satisfied that Mr El Mostafa said to Mr Al Zargani after the incident, “I’ll fix you up today” or “I’ll show you”. It has been argued that that incident, that is, the altercation between Mr El Mostafa and Mr Al Zargani earlier in the same evening, may have provoked Mr El Mostafa to organise the riot that night. However, I am not satisfied beyond reasonable doubt of that conclusion. The riot may well have been organised in advance in the knowledge that the elections would be on over that weekend. As I have said before, I do not know how many people were involved in the organisation of the riot.

12 I regard the incident with Mr Al Zargani as a coincidence, evidence of which demonstrated to me Mr El Mostafa’s strong feelings against Shiite Muslims. No doubt the incident stimulated his desire to participate in the riot. Nor am I satisfied that the incident motivated Mr El Mostafa to single out Mr Al Shemmari. The altercation earlier in the evening concerned Mr El Mostafa and Mr Al Zargani. Mr Al Shemmari was a bystander. There is no evidence of any altercation between Mr El Mostafa and Mr Al Shemmari. I should have added, so far as the circumstances of the attack were concerned, that I accept that the victims of the attack, a group of men outside the Somer Market conversing with one another, were not armed and they were not expecting trouble. At least two of their numbers were under eighteen years of age.

13 This was, as the Crown Prosecutor submitted, an organised riot. The rioters came all together from one direction. Some of them were armed. The rioters retreated at about the same time. I accept the Crown Prosecutor’s submission that without direction a riot such as this would not be successful. There is some evidence that this riot had something to do with a turf war for control of Auburn Road. Whilst I cannot determine whether or not that is true, there is certainly evidence that the riot had political and religious overtones and, as I have said, that Mr El Mostafa played an organisational role.

14 As for objective seriousness, these crimes, in particular the riot, were very serious. Focusing on the riot, there were strong political and religious differences as I have said between two sections of our community who share one faith. Mr El Mostafa was very much in one camp. He expressed his views appropriately by demonstrating and by handing out leaflets. These are the normal means of ventilating strong differences of opinion within our community. But a riot is another matter. A violent attack with weapons on unsuspecting and defenceless members of the group whose views the attackers so not share, is a completely unacceptable way of expressing those differences of opinion. It is not only unacceptable but it is illegal. It is not only illegal but it is a serious crime. As I have said, Mr El Mostafa moved from being an identifiable political and religious agitator, expressing his views legitimately within the community, to becoming a dangerous criminal.

15 As part of considering the objective seriousness of these offences various factors contained in s 21A(2) of the Crimes (Sentencing Procedure) Act1999 have been drawn to my attention. With one exception most if not all of these factors are matters which are appropriately taken into account in considering the nature of the offence itself. It follows, for example, that the injury and emotional harm caused by a riot will be substantial. There were multiple victims. A riot needs to be planned because an element is that the group have come together for a common purpose. A riot is an offence committed without regard for the public safety. Hence, in respect of each of those factors, I do not have additional regard to them over and above my consideration of the circumstances of the offences themselves.

16 However, the one exception is contained in s 21A(2)(h). That provides that it is an aggravating factor where the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged, such as people of a particular religion, racial or ethnic origin. In my opinion the nature of the attack by the rioters, in this case on the innocent and defenceless Shiite Muslims, demonstrated that the strong differences of opinion had moved sufficiently to be described as hatred by the attackers against those whom they attacked. That hatred was certainly related to religious opinions but also in this case to political views. I regard that as an aggravating factor of this offence and I will take that into account.

17 Hence I regard Mr El Mostafa’s culpability to be in the middle of the range of objective seriousness for these offences. I regard him as being in the middle of the range rather than the top of the range because he did not personally inflict any violence. However, I regard him as being firmly towards the upper end of the middle of the range because of his organisational role and because of the motivation provided by s 21A(2)(h) of the Crimes (Sentencing Procedure) Act.

18 The Crown Prosecutor has argued that there has been no expression of contrition by Mr El Mostafa regarding the persons who were injured. Subject to observations I will make about Mr El Mostafa’s rehabilitation I accept that submission. He defended, as he was entitled to, the charges and gave an account to the officer who prepared the presentence report that he was innocent and was attending a mosque at the time. His lack of contrition does not aggravate the offence, he was entitled to defend himself in this trial, but it does mean that he does not receive the benefit that would normally be given to an offender who expresses contrition or remorse.

19 The Crown Prosecutor also submits that both general and specific deterrence are important components of this sentencing. General deterrence is obviously very important. I note the remarks made by the Court of Appeal of the Supreme Court of Queensland in Regina v Norman and Parker [2006] QCA 517. The Chief Justice at [33] noted remarks expressed in the Full Court of the Supreme Court of Victoria in Regina v McCormack & Ors [1981] VR 104. Those remarks were as follows:

“A riot, like an affray, involves both violence and public alarm. They involve public alarm because they are currently or potentially dangerous. The level of violence used and the scale of the affray or riot are factors relevant to sentence… A riot usually carries with it an inherent danger of injury to persons or property or both. There is a danger that members of the crowd will respond to what has been called, ‘the psychology of the crowd’… [t]he danger is great when the crowd can be described as a mob threatening violence… In our opinion the present or potential danger of injury inherent in a particular riot is a consideration relevant to the sentence of any rioter.”

The Chief Justice of Queensland himself added at [34]:

“Involvement in a riot is an intrinsically dangerous enterprise. Riots by nature endanger personal safety and the security of property. They may also, if of a certain scale, jeopardise the long term health of communities.”

This riot, for which I am sentencing Mr El Mostafa, was particularly serious given that weapons were involved. Those weapons were discharged. At least one person, an innocent bystander who was not even sitting with the group of Shiite Muslims outside the Somer Market, was shot in the finger. As I said, shops and cars were also shot. These are other reasons for regarding the riot in this case as being in the upper echelon of the middle of the range of objective seriousness.

20 I turn now to subjective factors. A presentence report provides some background material to Mr El Mostafa. He was born in Kuwait and came to Australia in January 1999. He is the fourth eldest of twelve children. All of his siblings reside in Iraq. He married for the first time as a young man and there were three sons from that marriage. That marriage ended in divorce. His eldest son lives in Iraq and his other two sons, aged twenty-seven and twenty-four, live in Sydney. He married a second time to a Kuwaiti woman. He has two daughters aged seventeen and sixteen who live with their mother in Kuwait. That marriage has also ended in divorce. He had married another woman shortly before these events.

21 On arriving in Australia he spent some months in an immigration facility but moved on to Department of Housing accommodation after sharing accommodation with other people. He has gained his Australian citizenship. He completed secondary education in Kuwait and held clerical positions, as well as being a real estate agent. He was living in Kuwait at the time of the Iraqi invasion in 1991. He was taken by the fleeing Iraqi troops back to Iraq. He was there detained in an Iraqi gaol without charge for about a year. He was then released. Since being in Australia he has performed labouring work but has mainly been unemployed.

22 There is a question about his mental health. Mr Simpson does not submit that his client can blame his behaviour on some mental illness. I think that is a realistic and accurate concession in the light of the report of Dr Westmore, a psychiatrist qualified to examine Mr El Mostafa. Nevertheless it is relevant to note that Mr El Mostafa has a psychiatric history and condition. That is not surprising given his experience when he was imprisoned in Iraq. Dr Attia-Soliman, a medical practitioner with some psychiatric qualifications, diagnosed Mr El Mostafa when she first saw him on 28 April 2003 as suffering from a schizo-affective disorder and chronic depression and grief. She prescribed medication for depression and anxiety. One of those medications was described by Dr Westmore as an anti-psychotic medication. Dr Westmore did not find any evidence that any mental illness played a role in the offending behaviour. He was somewhat reluctant to give a definite diagnosis given his limited exposure to Mr El Mostafa. But, as I said, it is clear that he has a psychiatric history and a psychiatric condition. He has been and is being treated.

23 I understand that since being in custody he has been taking medication and I am told that he has felt better mental health than for many years. As Mr Simpson said, his condition appears to have stabilised and accompanying that stabilisation has been a degree of insight. Mr Simpson asserted on his client’s behalf from the Bar table that his client now regarded the handing out of anti-Shiite pamphlets as a mistake. He said that his client now understands that these issues are sensitive. Indeed his friends and contacts in custody include both Sunni and Shiite Muslims. Those assertions would have carried more weight coming from Mr El Mostafa in the witness box. On the other hand, I do note from Dr Westmore’s report that there is a reference to Mr El Mostafa saying that he should not have acted in the way he did and that his contacts include Shiite Muslims in prison.

24 I accept in those circumstances Mr Simpson’s submission that his client has some prospects of rehabilitation. One of the ways in which stabilisation in prison has contributed to insight is that he now understands and respects others’ beliefs. He has as well undertaken an English course in custody as well as work and he has completed three out of four levels in the English course. Those factors encourage me to the view that he is less likely to re-offend than more likely.

25 Returning briefly to s 21A of the Crimes (Sentencing Procedure) Act, I note that Mr El Mostafa can claim the benefit of no criminal record. I have taken that into account. There is, however, no evidence that he is a person generally of good character and I do not accept the Crown’s assertions that as a result of certain evidence I can find that he has acted in a way which would poorly reflect on his character. As I say, I think on balance he is unlikely to re-offend, that is not a strong view but a view expressed on the balance.

26 Mr Simpson urges me to make allowance in sentencing his client for a balance of the term of the sentence to exceed one-third of the non-parole period for the sentence. He says that I can make that finding because I can be satisfied that there are special circumstances in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act. The Crown Prosecutor submits that such a finding is a matter for me.I am satisfied that there are special circumstances which warrant me adjusting the ratio between the non-parole period and the parole period. Briefly those circumstances are as follows. This is Mr El Mostafa’s first time in custody. Secondly, this was a public order offence, in a sense a societal offence and Mr El Mostafa has made some progress towards rehabilitation. I think that an extended period of supervision will assist him in the progress of that rehabilitation once he returns to the community against which he offended by participating in this riot. Finally, he clearly has a medical psychiatric condition which requires ongoing treatment in the form of medication and perhaps psychotherapy. I think a period of extended supervision will support Mr El Mostafa in maintaining that treatment once he is released on parole.

27 Returning to the question of deterrence, general deterrence is obviously very important in this sentencing exercise. It is necessary to emphasise that this type of violent lawlessness springing from political and religious differences will not be tolerated. The imposition of a significant custodial sentence upon a person who has participated in such an event is meant to serve as a signal to others not to resort to such behaviour in circumstances where there are strong differences of opinion. Specific deterrence of Mr El Mostafa is also important but as I have said there are hopeful signs of some steps towards a change in attitude on his part.

28 There is clearly a question whether the sentences which I impose should be in any way cumulative. I regard it as appropriate to make them partly cumulative. They should not be completely cumulative because the assaults for which I will sentence Mr El Mostafa occurred in the context of the riot. In a sense they were part of the rioters’ behaviour. But on the other hand the assaults constituted specific and quite serious injuries occasioned to the victims of those assaults. To make the sentences completely concurrent would fail to reflect the injuries occasioned to those victims in the context of the separate offence of riot. I therefore propose to partly accumulate the sentences.

29 I propose to sentence Mr El Mostafa to an effective overall term of eight years imprisonment with an effective non-parole period of five years.

30 I have decided that an appropriate sentence for the riot is eight years because of the fact that it is an offence in the upper echelon of the middle range of objective seriousness, for the reasons which I have given. In making that assessment I have allowed for his prospects of rehabilitation and the fact that he has no criminal record.

31 I regard appropriate sentences for each of the assaults occasioning actual bodily harm as three years. That will be for each of them. Once again I regard those assaults as being in the middle of the range of objective seriousness because each of them involved broken bones.

32 I propose to sentence Mr El Mostafa in respect of the maliciously inflicting grievous bodily harm to a sentence of four years. Once again I regard that crime as being in the middle of the range of objective seriousness because of the fractured skull.

33 I am going to structure the sentences so that the overall term, as I said, will be eight years with an effective non-parole period of five years.

34 Would you stand up please, Mr El Mostafa. Amir El Mostafa, for the offence of riot I sentence you to eight years imprisonment. I set a non-parole period of four years and a balance of the term of four years. The sentence is to commence when you were arrested on 29 July 2005. The overall sentence is to expire on 28 July 2013. The non-parole period is to commence on 29 July 2005 and to expire on 28 July 2009.

35 In respect of the assault on Mr Al Shemmari I sentence you to imprisonment for three years. I set a non-parole period of two years and the balance of the term is to be one year. The sentence is to commence on 29 October 2007 and to expire on 28 October 2010. The non-parole period of two years is to commence on 29 October 2007 and to expire on 28 October 2009.

36 In respect of the assault on Mr Alkhersan I also sentence you to imprisonment for three years. I set a non-parole period of two years and the balance of the term is to be one year. The sentence of three years is to commence on 29 January 2008 and to expire on 28 January 2011. The non-parole period of two years is to commence on 29 January 2008 and to expire on 29 January 2010.

37 In respect of the assault on Mr Ansary of inflicting grievous bodily harm, I sentence you to four years imprisonment. I set a non-parole period of two years and the balance of the term is two years. The four year sentence is to commence on 29 July 2008 and to expire on 28 July 2012. The two year non-parole period is to commence on 29 July 2008 and to expire on 28 July 2010. (Just to clarify, I may have made an error in respect of the assault of Mr Al Shemmari, the non-parole period is two years and the balance of the term of the sentence is one year.)

38 So, Mr El Mostafa, your sentence commenced on 29 July 2005 when you were arrested, your overall effective sentence of eight years expires on 29 July 2013. Your effective non-parole period, during which you cannot be released, commenced on 29 July 2005 and will expire on 28 July 2010. That date, 28 July 2010, is the earliest day on which it appears that you will become eligible to be considered for parole. Have a seat, Mr El Mostafa.

Mr Simpson, Mr Calvert, is there anything that I need to correct?

CALVERT: There’s only one very, very minor matter that I’ve managed to assess yet, your Honour. In respect of the Alkhersan sentence, your Honour set a non-parole period to date from 29 January 2008 and your Honour said “expire on 29 January 2010”. I think your Honour intended to say the 28th.

HIS HONOUR: You’re quite right.

39 The non-parole period in respect of the assault on Mr Alkhersan commences 29 January 08 and expires on 28 January 2010.

CALVERT: I’m just checking a couple of other things.

HIS HONOUR: All right. You go ahead. Mr Simpson.

SIMPSON: No, the dates seem correct.

HIS HONOUR: Any other orders that I need to make that I haven’t made? I don’t think so.

CALVERT: Thank you, your Honour, there are no further orders. I’ve checked and I think your Honour is absolutely correct.

HIS HONOUR: With the sums?

CALVERT: Yes, your Honour.

ADJOURNED