Regina v Greiss

[1999] NSWCCA 230

CITATION:	Regina v Greiss [1999] NSWCCA 230
FILE NUMBER(S):	CCA 60271/99
HEARING DATE(S):	11 August 1999
JUDGMENT DATE:	11 August 1999
PARTIES :	Regina Ayman Edward GREISS
JUDGMENT OF:	Simpson J; Meagher JA; Smart AJ

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0521
LOWER COURT JUDICIAL OFFICER:	Davidson DCJ

COUNSEL:	R D Ellis G N Whitehead
SOLICITORS:	C K Smith Ray Finlayson & Associates
CATCHWORDS:	CRIMINAL LAW; malicious wounding; Crown appeal against sentence; not manifestly inadequate; appeal dismissed.
ACTS CITED:	Crimes Act 1900
DECISION:	Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60271/99
MEAGHER JA
SIMPSON J
SMART AJ

Wednesday 11 August 1999

REGINA v Ayman Edward GREISS

Judgment

1    MEAGHER JA: We have discussed this matter and we are all of the view that the appeal should be upheld. We have somewhat different views about where we go from there. I will ask Justice Simpson to give the first judgment.

2 SIMPSON J: This is a Crown appeal against the asserted inadequacy of a sentence imposed upon the respondent following his plea of guilty in the District Court to a single charge of malicious wounding contrary to s 35(a) of the Crimes Act 1900. That section prescribes a maximum penalty of seven years penal servitude for the offence. Davidson DCJ ordered the respondent to perform 400 hours of community service.

3    The offence occurred on 2 December 1997, a little after 6 pm. The respondent was driving his taxi east in Cleveland Street, Surry Hills. He stopped at traffic control lights. In the adjacent lane the victim, David Valentine, had also stopped the truck he was driving in the same direction. The respondent abused Mr Valentine. At that time his reasons for doing so were not apparent. The respondent then told Mr Valentine that he wanted to do a U-turn. Mr Valentine told him he could not. A verbal altercation followed. When the lights turned green both vehicles moved off, but were shortly halted again. The respondent again shouted at Mr Valentine. Both men alighted from their vehicles. The respondent repeated that he wanted to do a U-turn and Mr Valentine repeated that he could not. The respondent head-butted Mr Valentine in the left side of his head, throwing him to the ground. Mr Valentine stood up, invited the respondent to fight, and put his hands up. The respondent punched him three times in the neck, back and ribs. Mr Valentine was still feeling dazed from the blow that had caused him to fall. The respondent produced a weapon which he later identified as a 17cm Phillips-head screwdriver and stabbed Mr Valentine in the right side of his body. Mr Valentine retaliated by punching the respondent in the face. The respondent re-entered his taxi and drove off. Mr Valentine was taken to hospital by ambulance. He remained an in-patient for six days. He had injuries to the neck, abdomen and back, and a punctured lung. He has also been diagnosed as suffering post-traumatic stress disorder as a result of the incident.

4    No real explanation was given for the respondent's behaviour. Davidson DCJ accepted that there was some element of provocation in the incident, although on the findings of fact did not identify what the provocation was. There was some evidence contained in the respondent's interview with police and from other witnesses that Mr Valentine had approached the respondent in a way that might have been termed as intimidating. He was said, on the evidence, to be a larger man than the respondent.

5    The respondent gave evidence in the sentencing proceedings. He said that he was frightened when Mr Valentine left the truck and moved towards him, but he acknowledged that, until he had head-butted Mr Valentine, Mr Valentine had thrown no punches. He further acknowledged that, rather than leaving the car, he could have wound up the windows to protect himself from any danger he perceived. He gave no explanation for his initiation of the incident. His explanation for his possession of the screwdriver (which his Honour had difficulty in accepting) was that it was kept on the console of the car for minor repairs and was, at the time he encountered Mr Valentine, in his pocket because he had recently used it to change a light bulb.

6    Plainly, the offence is objectively a very serious one.

7    The respondent was born on 5 November 1961 and was 36 years of age at the time of the incident. He had no previous convictions. A strong subjective case was placed before the sentencing judge. The respondent was born in Egypt and migrated to Australia almost ten years before the offence. He married in 1991, but the marriage ended in divorce after less than three years with no children having been born. In 1996, after the death of his father in Egypt, he sponsored his mother to migrate to Australia. He continues to live with her and she is considerably dependent upon him. He had had a variety of different forms of employment of which taxi driving was only one. He appears to have maintained regular employment. He was described as a "peaceful religious person...hard-working, honest, sensitive, reliable and dedicated to his mother."

8    For a person so described, the commission of the offence for which he was sentenced was simply inexplicable. In the sentencing decision he was entitled to credit for his prior good record and for his plea of guilty. The sentencing judge accepted as genuine his expressions of remorse. He also took into account a rather lengthy but unexplained delay in finalisation of the charge. The offence was committed on 2 December 1997, but sentence was not passed until 23 March 1999, a period of almost seventeen months. Although it was not made explicit it appears that his Honour accepted that the delay was not attributable to the respondent.

9    Two other factors apparently in his Honour's mind were that the obligation of the respondent to care for his mother and her dependence on him and the respondent's creditable work history.

10    Before his Honour was a report to the effect that the respondent was suitable both for a community service order and for imprisonment to be served by way of periodic detention.

11    On behalf of the Crown it was argued that the sentence was manifestly inadequate; that it demonstrates that his Honour failed to give adequate weight to the seriousness of the criminality, the issues of punishment and deterrence, and gave excessive weight to subjective matters.

12    While in my view no error is conclusively demonstrated from the brief remarks on sentence, it is correct that a sentence involving community service for an offence as serious as this is indicative of error. It seems reasonably clear that the respondent used the screwdriver to stab Mr Valentine more than once, probably at least three times. Mr Valentine had serious physical injuries and has had very serious emotional consequences as a result, to the point that he gave up his then employment which was well-paid and had provided him with considerable satisfaction and enjoyment.

13    There is no express mention in the remarks on sentence of the principles of punishment or personal or general deterrence or the nature and prevalence of offences resulting from what is now called road rage. I would not infer, from the absence of specific mention of the principles of sentencing, that his Honour overlooked any of them. Further, I would not conclude that road rage offences are of such prevalence, or are escalating to such as degree, as to call for special mention or special consideration. That is not to underestimate the need for general deterrence in a case such as this. The use of a weapon such as a screwdriver is on a par with the use of knives and this court has repeatedly emphasised the need to deter those who may be tempted to resolve their disputes or vent their frustrations with the aid of such weapons.

14    In my opinion, prima facie this offence called for a term of full-time imprisonment. I am satisfied that his Honour was in error in failing to impose such a sentence. Moreover, there is no suggestion in the remarks on sentence that any consideration was given to the more lenient alternative of periodic detention which would have been a more appropriate option than the community service order eventually chosen.

15    There remains only the question whether, having regard to all of the circumstances, this court should exercise its discretion to dismiss the Crown appeal. It is now almost two years since the offence. The respondent has now served ninety-seven hours of the community service ordered. He will have to be given credit for that time. Despite what appears to have been the undue weight given to it, there remains the fact that the respondent advanced a strong subjective case. Of particular importance in this regard is his prior good record, suggesting that questions of personal deterrence may be afforded less emphasis than may otherwise have been the case. Moreover, his positively good history suggests that an offence of this kind was entirely out of character.

16    However, I have come to the conclusion that this court would be failing in its duty if it failed to correct the error that I am satisfied was made.

17    Neither this court nor any other court can countenance the use of implements, such as screwdrivers, in the way this weapon was used.

18    For those reasons I am satisfied that this court should not exercise its discretion to dismiss the Crown appeal. I am of the view that the sentence imposed should be set aside and that the respondent should be sentenced to a term of penal servitude to be served by way of periodic detention.

19    I will return to the period which I would impose.

20    MEAGHER JA: I will ask Justice Smart to give his judgment.

21    SMART AJ: I agree with the summary of the facts that has just been given by Simpson.

22    The difficult question in this case is the sentence that should be imposed. The matter, in essence, comes down to the use by the respondent of a screwdriver during the course of the altercation that took place. Until the screwdriver was produced, there had been no weapon used in the altercation between the victim and the respondent.

23    The respondent, when he produced the screwdriver and struck the victim, inflicted three wounds. There was a 15cm laceration on the victim's upper left neck and lower face and a 2.5cm laceration stab wound in the right upper quadrant of his abdomen. In addition there was a further wound inflicted on the back. One of these stab wounds was particularly serious in its particular consequences at least, in that it punctured a lung.

24    The injuries were such that extended treatment was required at the Royal Prince Alfred Hospital and the victim spent some six days in hospital.

25    The objective circumstances of this offence are, therefore, particularly serious and the injuries potentially dangerous.

26    The judge should have imposed a full-time custodial sentence. We are now dealing with the matter on appeal some four and a half months after the respondent was sentenced.

27    The respondent has already performed ninety-seven hours community service.

28    Notwithstanding the strong subjective features on which the respondent is able to rely, I am of the view, taking into account the community service already performed, that the appropriate sentence is one of periodic detention for a period of two years and six months, with the applicant to report on Friday 20 August 1999 at the Metropolitan Periodic Detention Centre at Parramatta.

29    MEAGHER JA: Left alone, I would uphold the appeal and make an order imposing a substantial custodial sentence. The main reason why I reach this conclusion is because of the savagery of the respondent's attack on the victim with a screwdriver, and the viciousness, which seemed to have alluded the trial judge. But for the sake of comity, I am content to agree with my brother Smart.

30    SIMPSON J: The term of detection which I would impose is of 18 months penal servitude by way of periodic detection.

31    MEAGHER JA: The order of the court will be that of Justice Smart.

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