Rv Haddad

[2002] NSWCCA 176

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:     Rv Haddad [2002]  NSWCCA 176

FILE NUMBER(S):
60824/01

HEARING DATE(S):    7 May 2002

JUDGMENT DATE:      07/05/2002

PARTIES:
Marwan Haddad v Regina

JUDGMENT OF:        Kirby J Smart AJ    

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     01/21/0056

LOWER COURT JUDICIAL OFFICER:   Latham DCJ

COUNSEL:
(A)   S J Odgers SC
(C)  P G Ingram

SOLICITORS:
(A)   Galloways
(C)   S E O'Connor

CATCHWORDS:
Sentencing; error as to what is capable of mitigating criminality; effect of provocation; serious offence; previous good character and strong subjective features

LEGISLATION CITED:
Nil

DECISION:
See paragraph 36

JUDGMENT:

IN THE COURT
OF CRIMINAL APPEAL

60824/01

KIRBY J

SMART AJ

Tuesday, 7 May 2002

REGINA v MARWAN HADDAD

JUDGMENT

1.        KIRBY J:  The Court is in a position to give judgment.  I would ask Justice Smart to give the first judgment.

2.        SMART AJ:  Marwan Haddad seeks leave to appeal against the alleged severity of a sentence of imprisonment for eight years with a non-parole period of five years for using an offensive weapon to commit an indictable offence, namely, cause grievous bodily harm, and concurrent sentences of imprisonment for a fixed term of four years on each of two further offences of like kind. The applicant pleaded guilty to all offences.  The maximum penalty on each is imprisonment for twelve years.  All three offences arose out of the applicant’s use of a motor vehicle at Five Dock when he lost control of himself and injured three people.

3.        About 6.45 pm on 13 July 2000 Mr D A Lynch was riding his motor bike along Patterson Street, Concord towards Five Dock.  Mr Lynch stated that shortly after he left Patterson Street and travelled along Gipps Street, he felt a blue Commodore tap him.  His right foot was still on the bike foot peg.  Mr J J McDermott, an engineer, who was travelling in the same direction stated:

“As I approached the point where Patterson Street turns into Gipps Street I noticed the motor cycle veer on to the wrong side of the road ... There was oncoming traffic and the motor cyclist had to brake heavily to get back on to the correct side of the road.

I continued travelling along Gipps Street, with the motor cycle still about three vehicles in front of me.  I stopped at the intersection of Broughton Street and I then noticed a Holden Commodore ... There are two lanes travelling east and the blue Commodore was in the centre lane, and was the first car in the line of traffic.  Directly behind the blue Commodore was the motor cycle and I was next to the motor cycle.

... I noticed that the motor cyclist was ‘revving’ the engine of his motor bike whilst he was stationary.  I continued on along Queen’s Road.  In front of me was the motor cycle and in front of the motor cycle was the blue Commodore.  The next set of lights that I had to stop at were the lights at the intersection of Fairlight Street and Ramsay Road in Five Dock (Gipps Street leads into Fairlight Street).

... I noticed the motor cycle travel along the kerbside lane behind the blue Commodore.  He then drove up the service station driveway.  He stopped on the footpath adjacent to the blue Commodore.  The rider got off his bike and moved quickly around behind the blue Commodore. ... The motor cyclist kicked the driver’s door of the Commodore, probably about ten to fifteen times.  He still had his helmet on and was yelling ...

... The driver of the car got out of the car for about fifteen seconds and the cyclist was yelling at him.  The driver of the Commodore got back into his car and shut the door and the cyclist continued to kick the car door.  The traffic signals turned green and I drove off.”

4.      It seems that Lynch was upset at what he regarded as the applicant’s erratic driving.  It is now known that the applicant was seething over what his father, a passenger in his car, had said to him.  He was probably distracted from concentrating on his driving.

5.      Although McDermott did not see it, Lynch attempted to punch the applicant.  The applicant drove off.  However, he entered the Solo Service Station via Ramsay Road and drove at Lynch’s bike, parked near the Fairlight Street entrance to the service station, the Commodore colliding with the bike.  The applicant drove off again into Fairlight Street.  Lynch ran to his bike and was assisted by Ms Pereira and Mr L Sutton, two passers by.  They helped him lift his bike up and move it onto the footpath. The applicant drove his vehicle along the footpath directly at the three of them.

6.      The front of the applicant’s vehicle collided with the side of the motor cycle, knocking down Mr Sutton and Ms Pereira, who was dragged in front of the cycle for a few metres.  The bike came to rest on top of Ms Pereira.  Mr Sutton was knocked to the ground.  The applicant reversed away from the bike and drove off along Fairlight Street.   Lynch had managed to jump clear.

7.      Ms Pereira and Mr Sutton were taken to hospital.  She suffered substantial injuries.  She had two operations for orthopaedic injuries and remained in hospital until 24 August 2000.  Her injuries have serious long term consequences, both for her enjoyment of life and her ability and capacity to do things.  Mr Sutton suffered bruising and soreness.

8.      On the following evening the applicant via a relative, contacted the police and arranged to meet them.  There was considerable damage to the front of the Commodore and dents in the driver’s door.  On the advice of his solicitor the applicant declined to be interviewed.  He was charged.

9.      The judge made these findings:

“At all times the offender has maintained that he only remembers striking the motor cycle once with his vehicle, not striking people.  He accepts that he did indeed drive at and hit the bike and the three victims, but since immediately after the commission of the offences he has been, as it were, in denial.  He has given clear accounts of the initial altercation with Mr Lynch at the lights at Fairlight Street and Ramsay Road, albeit there has been some variation in detail.  To Dr Westmore and to this Court he said that Mr Lynch opened the driver’s door and smashed him in the face.  To Ms Robilliard he said that he opened the door in an attempt to reason with Lynch.  He has claimed that at no time did he strike or kick Mr Lynch, although he acknowledges he was very angry, particularly because of Mr Lynch’s profanities involving the offender’s deceased mother.

... I find that it was the offender who opened his door and that he did so in order to respond to Mr Lynch’s verbal abuse and the assault upon the vehicle. ...  I am satisfied that the offender attempted to assault Mr Lynch and that at this stage both were equally intent upon exacting revenge, albeit Mr Lynch was the initial aggressor.”

10.      The judge correctly held that the offences were objectively so serious that they warranted a head sentence absent the pleas of guilty towards the very top of the range indicated by the maximum penalty.  She emphasised that the applicant had twice returned to use his vehicle as a weapon.  It was capable of wreaking great havoc.  He assaulted one innocent party and gravely injured another, so all consuming was his anger towards Mr Lynch.

11.      The judge also found that the second time the appellant struck Lynch’s bike was an entirely malevolent act.  The judge also correctly held that general deterrence and retribution were important.

12.      The applicant was born on 24 July 1974.  He has no previous convictions.  The judge accepted that the offender had pleaded guilty at the first opportunity after the indictment in its present form was made available.

13.      The judge accepted that the applicant had always been honest, hardworking, considerate towards others and highly regarded by work associates.  She also accepted that the applicant was genuinely contrite and feels profound regret for the injuries he has inflicted.  She discounted the head sentence by twenty per cent.

14.      The applicant was born and raised in Lebanon in financially comfortable circumstances.  He migrated to Australia in 1994 with his wife.  They have two sons aged six and two.  He continued to work for his father selling antiques, but he also took a job as a truck driver.  His father continually tried to convince him to return to Lebanon and work with him.  The applicant made two trips to assess the situation and both were disastrous.  After the last trip the applicant and his wife decided to settle in Australia and he bought his own tipper truck.

15.      The applicant detailed his father’s attempts to undermine his marriage, telling him that his wife had been unfaithful to him.  His brothers confirmed this situation.  At his father’s insistence and arranging, he divorced his wife.  Within a short period of time, the younger brother of the applicant confessed that he and their siblings had been paid by their father to support his claim.

16.      The applicant immediately flew to Australia, begged his wife’s forgiveness and they remarried. 

17.      The applicant said that when his father visited Australia just prior to the incident in question, he was once again trying to cause trouble between the applicant and his wife and was still trying to get the applicant to agree to move back to Lebanon.

18.      On the evening of 13 July 2000 the applicant was driving his father to Glebe.  During their journey his father maintained that the applicant's younger son was the product of an affair his wife had with a friend of the applicant.  The applicant said he was very angry and “went very quiet”.  He felt he could not talk back.  The applicant was thus in a very upset state immediately prior to the incident with Lynch and his bike.  His driving reflected that state.

19.      Lynch’s abuse also upset the applicant.  He took particular exception to Lynch’s foul derogatory abuse about his mother, who was deceased.  That made the applicant very angry.  It would have made many men very angry.

20.      The judge noted that the applicant had no psychiatric illness, no personality disorder, no drug or alcohol addiction, and that he appeared to be of sound average intelligence.  The judge was “not persuaded that anger management does not figure in this young man’s life”.  She continued:

“These offences indicate very strongly that at 27 years of age the offender is capable of random acts of violence.  The unresolved nature of his relationship with his father will continue to have the potential to cause aberrant behaviour.  For that reason alone I am inclined to provide for a period of supervision in the community.”

21.The judge found special circumstances on the basis that this will be the applicant’s first term of imprisonment.

Dr B Westmore, Consultant Psychiatrist, expressed this opinion:

“The matters now before the Court, as noted earlier, appear to be completely uncharacteristic of this man and on the history having occurred tragically as the result of a number of specific events which have escalated or aggravated a state of emotional distress and disturbance in him, leading him to allegedly drive in an erratic and dangerous fashion, causing injury to others and damaging another vehicle.”

Ms A Robilliard, Consultant Psychologist, was of much the same view.

22.The judge appeared to accept the view that the offences were committed by an essentially non-violent, law abiding, conscientious and loving father, whilst under the domination of a vindictive and manipulative father.  She stated that while this might explain the offender’s conduct, it could in no way excuse, justify or mitigate it.

23.      I do not think that it is correct to say that these factors can in no way mitigate the applicant’s conduct.  The combination of the father’s malevolent insinuation and taunt and Lynch’s foul derogatory abuse as to the applicant’s mother, could provoke a loss of self control.  Normally it would not have the extreme effects it had in the present case.  While not relevant on guilt in the present case, provocation is relevant on penalty.

24.      The applicant submitted that the judge erred in holding that the vulnerability of the applicant to a loss of self control in no way mitigated his conduct.  It was submitted that, given his general good character, the conclusion was inescapable that what happened was the tragic culmination of a series of events which produced an extreme loss of self control.  Reliance was placed on the extremely provocative conduct of the applicant’s father, and the provocative conduct of Lynch, the initial aggressor, which caused the applicant to redirect his anger.

25.      The Crown accepted that the judge had erred in holding that the provocation and loss of control in no way mitigated the offence. However, the Crown contended that the error was relatively insignificant in the context of this case.

26.      In support of his contention that the Court would find that the sentence was manifestly excessive, the applicant relied on the matters earlier mentioned.  The offences were completely out of character, as the references showed, and were committed in a tragic combination of circumstances which caused an extreme loss of control in the applicant.

27.      The Crown pointed out that the applicant’s action seriously and adversely affected three people, two of whom had had nothing to do with the confrontation between the applicant and Lynch, and were simply seeking to help Mr Lynch recover.

28.      The Crown submitted that the error made by the sentencing judge in holding that the provocative conduct of Lynch did not operate to mitigate the offence did not extend to the offences committed against the innocent bystanders.  Reliance was placed upon R v Henderson NSWCCA, unreported, 5 November 1997 per McInerney J (with whom Grove and James JJ agreed), who said:

“... the problem that arises here is that his Honour found that the provocation was not uttered by the victim (as he was clearly entitled to find) and which is not disputed by Mr Game.

In those circumstances I fail to see how provocative conduct emanating from persons other than the victim can reduce the gravity of the attack on the victim.  Surely an innocent bystander should not be attacked because of provocative conduct emanating from persons nearby, thus reducing his culpability when provoked by persons other than the victim ...”

29.      Henderson was a very different case on the facts from the present one.

30.      Unfortunately, what happened in the present case was that the provocation of the applicant and his consequent loss of self control, caused in part by Lynch, spilled over and, as a result, those who were kindly assisting Lynch were attacked and Ms Pereira was seriously injured.

31.      The combined provocation of the applicant's father and Lynch resulted in a loss of control, the effects of which affected two innocent helpers, as the applicant attacked Lynch and his bike.  In the circumstances of the present case it would not be correct to fail to take the provocation into account, which led to the loss of the self control.

32.      The Crown emphasised these points in support of the submission that lesser sentences should not be imposed:

(a)The gravity of the offences and the injuries inflicted on Ms Pereira;

(b)There was a gap between Lynch’s abuse and the applicant driving off and returning, (this would have been probably in the order of a minute).  There was a further gap between the applicant leaving and returning a second time.  This would also probably have been in the order of a minute.  The Crown’s point was that the applicant had an opportunity to cool down.  I do not think that that was likely.

(c)The injuries to Ms Pereira and the shock to the others occurred on the return visit.  It does not follow that the effects of the provocation and the loss of self control had abated.  That is improbable.

33.      This case is a difficult one.  This Court does have to reconsider the sentence because of the error made.  The offences were undoubtedly very serious and even with the effects of the provocation, merit stern punishment.  I regard a sentence of imprisonment of eight years on the first count, referring to Ms Pereira, as correct.  No lesser  sentence should be imposed, having regard to the objective seriousness of the offence.

34.      As to the non-parole period, this is the applicant’s first time in prison.  He is still a young man, and previously was of good character.  He will need supervision to ensure that in the future his anger does not overwhelm him.  It is in his interests and those of the community that he spend a lengthy period on parole.

35.      In all the circumstances, the correct non-parole period is one of four years.  I would not disturb the sentences on counts 2 and 3.

36.      I propose the following orders:

1.Leave to appeal granted.

2.Dismiss the appeals on counts 2 and 3 (relating to Messrs Sutton and Lynch respectively).

3.Appeal against the sentence on count 1 (relating to Ms Pereira) allowed in part.  Dismiss the appeal against the sentence of imprisonment of eight years.  Allow the appeal against a non-parole period of five years, and in lieu thereof, substitute a non-parole period of four years starting on 31 October 2001 and expiring on 30 October 2005, on which date the applicant will be eligible for release on parole.

37.KIRBY J:  I agree. The orders of the Court will be as indicated by Justice Smart.

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LAST UPDATED:               17/05/2002