On 14 August 2019 the Offender was arraigned before me in relation to charges that on 26 March 2018 in Canley Vale:
1. he did wound Faysal Faysal with intent to cause grievous bodily harm contrary to section 33(1)(a) of the Crimes Act 1900 (NSW); and in the alternative that
2. he recklessly wounded Faysal Faysal contrary to section 35(4) of the Crimes Act 1900 (NSW).
Following an eight day trial the jury found the Offender not guilty of the principle charge, but guilty of the alternative.
The Offender is now to be sentenced in relation to the offence of which he has been found guilty and which carries a maximum penalty of 7 years imprisonment, and a standard non-parole period of 3 years.
First it is necessary for me to determine the facts on which the Offender is to be sentenced consistent with the jury's verdict.
The Offender was in a relationship with Ms Eman Eliaali at the time of the offence. The Victim, Mr Faysal Faysal, was the ex-boyfriend of Ms Eliaali. There was an enforceable AVO, with Ms Eliaali as the person in need of protection. On the evening of 25 March 2019 the Victim stayed over at Ms Eliaadi's unit at Canley Vale.
At about 11:00am on 26 March 2018, Ms Eliaali attended the Liverpool Police Station. She was accompanied by the Offender and complained about the Victim who was staying at her apartment at Canley Vale. Ms Elliaadi stated that that day she and the Offender "got back together." [1] There was evidence from Ms Elliaadi that she reported to the police that the Victim had assaulted her the previous evening. No immediate action appears to have been taken by the police.
After spending the day together, the Offender drove Ms Eliaali and her three children aged 5, 7 and 9, back to her unit at Canley Vale and parked in the unit car park.
Ms Eliaali stated that the Victim and the Offender had not previously met although they knew of each other. [2] At first the Victims' evidence was that he never had any prior contact with the Offender but knew things about him that Ms Eliaadi had told him. Subsequently he stated that he had spoken to the Offender but didn't remember if it was before or after the incident. [3]
At about 7:15pm the Offender went upstairs to make sure the Victim wasn't there and Ms Eliaali and her three children stayed in the car, as Ms Eliaali was scared to go up herself. The Offender entered the unit and there was a confrontation with the Victim who at that point had yet to depart.
During that incident, the Victim asserted that the Offender said to him, "Are you still here?" and "You still sleeping?", to which the Victim responded, "What - what's for you in this? I don't know you." The Offender is then said to have approached the Victim, taking out a samari sword from a cover which he described as being black and brown. The Victim stated that the sword was one metre in length and that it had a handle and the Offender was swinging it around in the air.
The Victim stated that when the Offender asked, "Are you still asleep here?" andhe stood up because the Offender had the sword out of its cover. [4] He described the Offender has having the sword in one hand and the cover in another, [5] and then dropping the cover. [6] He stated at that point, the Offender had walked through the door. [7]
The Victim said that the Offender told him to get out, and he responded with "You get out first and I will follow you." The Victim described the sword being swung in his direction and that he did not get close to him. At that point, the Victim said that he grabbed his bag, and the Offender left the apartment, and he followed him into the car park close to where the Offender had his car.
It was accepted however, that the Victim had told police in answer to a question in an interview "the door was open and Ahmed entered the room, he turned the light on and started swearing". The Victim stated that if that was recorded, that was a mistake. [8] He said that he was able to see the sword notwithstanding the light being off, because there was light coming though the hallway, the window. [9] He agreed that he told Police that the Offender left the cover in the apartment. [10] He accepted that he told Police many times to go and look for the cover in the apartment. [11]
The Victim stated that when he got down the stairs, he remembered seeing Ms Eliaali in the car, but later she was standing outside the car park, although he was not sure about the location of her children. [12]
The Victim described that the Offender pulling out the sword and kept circling around the car. He further described the Offender as taking an oath in the name of Eman Eliaali that he would kill him. At that point, Ms Eliaali was standing outside the fence of the car park.
The Victim described being hit with the sword and falling to the ground on his back. After he fell on the ground he stated that the Offender hit him on his head and on his upper arm, but it only caused a slight wound. [13] Later in his evidence the Victim said that the Offender caused injuries to the head and upper arm "before he hit me into-onto my back." [14] Thereafter, the Victim stated that he grabbed a piece of wood swung it at the Offender leading the Offender to run out of the car park and the Victim used the wood to hit the front of the Offender's car. During this period, he described Ms Eliaali as standing outside the fence and speaking on the phone. [15] The Victim stated that he called on the Offender to "come from across the fence." [16]
Ms Eliaali gave evidence, in which she denied that the Offender had a sword at all. However, admitted into evidence as Exhibit O was a statement given to Police soon after the offence in question, where Ms Eliaali stated that the Offender decided to go upstairs into the unit upon their arrival, as she was scared to go up herself. A few minutes later, she said she heard the Victim state "Get outside" and she got out of the car and called the police as the Victim was not supposed to be there. She then looked up at the staircase, and saw the Victim running down. She and the children went towards to the intersection of Canley Vale road. Subsequently, they looked back to see what was happening.
According to Ms Eliaali's statement, the Offender had the Victim up against a brick pillar and they were hitting one another. The Offender then armed himself with a sword at one point, and the Victim armed himself with a long piece of wood and they were chasing each other around the car whilst holding the weapon. She stated that the Victim tripped and fell into a garden, at which point the Offender raised the sword and swung it towards the Victim, striking him in the lower back. The Offender then walked out to Canley Vale Road in a direction towards the shops.
The Offender's possession of a sword in the vicinity of the unit complex was witnessed by Anna Nguyen and Stephen Tran. Ms Nguyen described it as around 75 cm in length, [17] although the Victim stated that it was approximately 1 metre in length. [18] Mr Tran described it as a long sword with a sharp edge and a hilt. [19] He drew a diagram which was tendered as Exhibit D. Ms Nguyen rang triple 0 and Mr Tran participated in the call.
The Offender was seen to be walking with no shirt, and with a sword in his hand. Police attended and stopped the Offender; however, he was not holding a sword at the time. The Offender was then cautioned, arrested and conveyed to Fairfield Police Station, where he refused to participate in an electronically recorded interview.
The Offender gave evidence at the trial denying that at any time he had a sword. His account was rejected by the jury.
The Victim suffered associated bruising to the chest wall and multiple abrasions to the right bicep, right hand, an abrasion to the head, and grazing to his arms. Relevantly, the wound comprised a 7 cm cut to the left flank. He was taken to Liverpool Hospital for treatment, and the wound was the subject of a glue repair.
Neither the sword, nor any cover, was located by Police.
[2]
Objective Seriousness
Whilst the circumstances of the offending must have entailed the Offender being in possession of a sword and transporting it to the apartment complex where the Victim was located, there is no evidence as to the circumstances in which he came to transport it to the complex.
The evidence of the Victim was that the Offender was armed with the sword when he first entered the unit. The police statement of Ms Eliaali recorded that a sword was only sighted by her when both the Offender and the Victim were in the car park of the unit block. Whilst she did not maintain this in her oral evidence, the jury's verdict entails that a sword was used to wound the Victim.
Whilst I accept that it is probable that the Offender brought the sword into the apartment (as opposed to retrieving it from his car in the carpark), I cannot be satisfied beyond reasonable doubt that he did so. In the circumstances I will proceed on the basis that the sword was retrieved by the Offender during the altercation in the carpark.
I am satisfied that consequent the Offender's arrival at the apartment, an argument developed between him and the Offender over the Victim's presence in Ms Eliaali's apartment which progressed into the car park. The Offender confronted the Victim over his presence in the unit in circumstances where Ms Eliaali did not wish him to remain.
There were various accounts given of words exchanged by the Offender including threats to kill the Victim and swearing at the Victim's sister. I accept that confronting words were spoken although I cannot be satisfied as to the precise content.
The Crown case accepted by the jury was ultimately advanced based on the Victim's account. Consistent with the jury's verdict I am satisfied that the Offender was motioning the sword and caused the wound that the Victim sustained. In relation to other injuries I bear in mind what was said by Howie J in Ciraron McCullough v R. [20] Accordingly whilst I bear in mind the surrounding circumstances. I am not satisfied beyond reasonable doubt that the other injuries were received in the course of conduct leading to the relevant wounding. The Victim's account as to the sequencing of their occurrence was unclear.
It was accepted by both parties that the use of a sword to commit the offence amounted to the use of a weapon such as to constitute an aggravating factor within the terms of s 21(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW). [21] It was a dangerous weapon that in the circumstances had no legitimate use.
The Victim gave evidence of using a piece of wood to defend himself from the Offender after he fell. He said that he picked this up from the front of the Offender's car. However, in his account to police soon after the incident, he denied having a piece of wood. In a subsequent police interview, the Victim maintained his denial before admitting to that he had a piece of bark from a tree. [22] Ms Eliaali's account in her statement to police was that the Victim was armed with the piece of wood and they were each chasing each other around the car
The Defence contended that the circumstances were such that the Court should find that the offence was committed in circumstances of provocation.
As stated earlier, the Offender denied at any stage being in possession of a sword, a proposition which was rejected by the jury. Self-defence in these circumstances was not advanced.
The evidence of the Victim was that he picked up the piece of wood after he fell to defend himself and that the Offender left the car park. Despite the Victim's statements to police denying that he had a piece of wood and at one stage referring to it as a piece of bark it is clear that the vicitm did arm himself. I am satisfied that he did so after he fell and that he pursued the Offender who decided to decamp from the unit car park and cross to Phelps Street That is consistent with the observations of Mr Tran who observed the Victim holding the piece of wood and chasing the Offender with the later leaving the building. The evidence of both the Victim and Mr Tran is that that the Victim did not leave the unit block perimeter to pursue the Offender at this point. At some point the Victim struck the Offender's car with the wood after the Offender departed.
I accept that there was relationship of tension and general enmity which existed between the parties leading up to the offence which I take into account as part of the overall circumstances of the offending. [23] I have also taken into account of the fact that the Victim was not entitled to be at the subject premises and the Offender's purpose in seeking that the Victim depart was to satisfy Ms Eliaali's wishes. Whilst on the balance of probabilities I am not satisfied that provocation as such has been demonstrated nevertheless I also take these factors into account.
The wound received by the Victim was agreed in Exhibit F to be left flank laceration through the dermis. This is a wound of relatively lower seriousness and acknowledged by the Crown as such. No long term consequences have been suggested.
In assessing objective seriousness I have taken into account the Offender's post trauma symptoms referred to in Ms Hawil's report (discussed below) as impairing the Offender's judgment and capacity for reasoned evaluation of the options open to him. These matters diminish the Offender's moral culpability.
The Crown submitted that the matter fell within the low to mid-range of objective seriousness, and the Defence contended that it was in the low range.
In all the circumstances, I am satisfied that the objective factors affecting the relative seriousness are such that the offence falls in the lower range of seriousness but not at the lowest level.
[3]
Remorse
The Offender continued to deny the commission of the offence, maintaining that his protestations were supported by the notation that subject weapon was not located.
The Sentence Assessment Report records that the Offender displayed no victim empathy and focused on the impact that the offence had on the children present. It recorded that the Offender did not regard himself as a violent person but acknowledged that it was unacceptable to use violence to resolve conflict.
Overall no submission was advanced that remorse was demonstrated within the terms of s 21A(3)(i) of the 1999 Act.
[4]
Prior Record
The Offender has prior convictions for the following:
1. Driving with a low range PCA committed on 17 May 2016 in respect of which he was fined and disqualified;
2. Not stopping at a stop line red arrow committed on 17 May 2016 in respect of which he was also fined;
3. Destroy or damage property committed on 15 September 2016, for which he received a section 9 bond for 12 months commencing on 24 February 2017;
4. Assault occasioning actual bodily harm committed on 29 January 2017, for which he received a section 9 bond for 2 years with supervision with a recommendation that anger management programs be undertaken. That bond commenced on 22 June 2017.
No submission was advanced that the Offender's record engages s 21A(2)(d) of the 1999 Act. Whilst the Offender's record is not unblemished, it cannot be regarded as significant within the terms of s 21A(3)(e) of the 1999 Act.
However, it is an aggravating factor on sentence pursuant to s 21A(2)(j) of the 1999 Act that the offending in the instant case was committed whilst the Offender was subject to the section 9 bond for an offence that also involved violence.
At this point no action appears to have been taken in respect of the bond.
[5]
Background
The Offender was born in Iraq and is presently 29 years of age. He has three brothers and two sisters in his family unit and is the fourth sibling in order. According to a report prepared by Susan Hawil, psychologist, which was marked as Exhibit 1, the Offender disclosed a loving relationship with his family members. He commenced employment as a truck driver for BWC (an American owned company) with his elder brother when he was 16 years of age. Ms Hawil recorded that the Offender stated that his family received two threatening letters from Jesh-al-Mahdi, a group that was formed in 2003 to protect Shia areas due to the collapse of public order in the aftermath of the US-led invasion of Iraq. The Offender stated that members of that group requested that he and his brother cease employment with the American company, or they would harm his family. The Offender stated that his family was Sunni Muslim.
The Offender disclosed that several masked members of Jesh-al-Mahdi had broken into his family home, and kidnapped his brother. Thereafter, his brother was murdered and his body was left on the streets. The Offender stated that his parents feared for the safety of their family, and requested that the Offender and his brother cease employment immediately. He stated that the family then received another threatening letter, and the Offender was unable to leave home due to safety concerns.
Four months later his father had a stroke, causing paralysis of one side of his body. His father told them that they should run away, and not to worry about him. Thereafter, the Offender stated that he and his brother fled Iraq at the age of 20, travelling between Dubai, Malaysia and Jakarta. They were then detained on Christmas Island in 2010 for one month, prior to being transferred to Darwin where they spent 5 months. Thereafter, the Offender and his brother were granted residency in Australia and relocated to Sydney, where they secured housing.
According to Ms Hawil, the Offender stated that he met his partner, Soopanoue in 2010 and he has two children to this relationship, aged 3 and 4. That relationship ended in 2017. He reported that he was in a relationship with Eman Eliaali until his arrest for the offence for which he is to be sentenced.
[6]
Health
The Offender described that his brother had been diagnosed with Diabetes and has been receiving dialysis, and as a result, he has been his full time Carer and was a recipient of a Carer's Pension. The Offender also reported that he was diagnosed with kidney damage four months prior to his arrest and was recommended Dialysis, which he declined. He did however, report taking condition specific medication daily for the past month and undergoing regular blood testing.
According to Ms Hawil's report, the Offender has chronic post-traumatic stress disorder as a consequence of his previous traumatic life events in Iraq. In particular, it was noted that the Offender experienced symptoms of current, intrusive and distressing memories of traumatic events, distressing dreams relating to traumatic events, hyper vigilance, significant sleep disorder, negative beliefs about the world, negative alterations in cognition and mood that are associated with a traumatic event, and trying to block traumatic memories and avoidance behaviours.
Ms Hawil stated:
Mr Alsharify's behaviour on the day of the offence should be viewed in [the] context of his post-trauma symptoms which caused impairment to his capacity for reasoned evaluation of options open to him and of his automatic response to threat, whether physical or verbal, was disproportionate to the immediate situation posed to him. Mr Alsharify may have had impaired judgment and decision making on the day of the offence due to his heightened level of stress and safety fears. Mr Alsharify stated that he attempted to protect himself from potential harm.
The report notes that the Offender had been referred to a psychologist in Liverpool in 2010 by a general practitioner to help to assist him to better understand and manage his post-trauma symptoms. He only attended 2 of 3 sessions, and was prescribed condition specific medication for a period of 9 months. He stated that he was unable to recall the psychologist's name, practice details or the name of the medication.
Ms Hawil carried out a number of tests on the Offender, from which she was able to conclude that the Offender indicated severe levels of depression and moderately severe levels of anxiety.
I have earlier referred to the Offender's reduced moral culpability based on Ms Hawil's findings.
So far as his other health issues are concerned, no submission was advanced specifically in relation to them that this would make any time in custody more burdensome compared to others nor that his health needs could not otherwise be accommodated.
Whilst the Offender's carer responsibilities were not advanced as amounting to exceptional circumstances, I have nevertheless taken the matter referred to into account in a general way as part of the general factual matrix in selecting an appropriate sentence and in relation to the length of the non-parole period. [24]
[7]
Employment and Education History
The Offender is reported to have attended school in Iraq until the age of 16 years. His employment has comprised working as a Truck Driver in Iraq at age 16, which he ceased at age 20.
Following arrival in Australia, he attended Navitas in Liverpool for 1.6 years. He has also been employed as a truck driver for Dynamic at the age of 23, and held this position for 1.7 years before ceasing it to care for his brother.
[8]
Likelihood of Reoffending and Prospects of Rehabilitation
The Sentence Assessment report records that the Offender was residing with his brother and a friend in the Fairfield area prior to his remand and intends to resume this arrangement on release. He has no additional familial support in this country.
The report also records that he has two pre-school children from a previous relationship with who he indicated ongoing contact until the time of his remand. This was noted to be unverified and inconsistent with previous advice to the supervising Community Corrections office. It was also noted that the Offender advised that there was been no contact with them since his entry into custody.
The Sentence Assessment Report records that the Offender's only contact with Community Corrections was for supervision for the section 9 bond in 2017. The report records that whilst the Offender was initially non-compliant he was ultimately subject to early termination of supervision. It records that he was assessed as not requiring substance use intervention and was linked in with a culturally appropriate support service.
The Sentence Assessment Report records that the Offender is subject to various current active Apprehended Domestic Violence Orders. It notes that he has a formal record of non-compliance with such intervention order conditions.
Since the offence in question the Offender has had two further convictions:
1. Driving motor vehicle during a period of disqualification committed on 23 July 2019, for which he was fined $1500 and disqualified for 2 years;
2. Contravene a prohibition/restriction in AVO committed on 10 August 2019, for which he received a 6 month community corrections order commencing on 30 August 2019 and concluding on 29 February 2020.
The Sentence Assessment Report assesses the Offender at Low/medium risk of reoffending.
Ms Howil reports that Mr Alsharify has a number of protective factors against recidivism, including his caring responsibilities for his brother, his loving relationship with his children, his stable accommodation and his keenness to return to work. Whilst acknowledging the limitation of actuarial tools of risk assessment, because of their emphasis on static as opposed to dynamic factors, Ms Hawil opines that the Offender' LSR-R is such as to make him at low risk of reoffending.
Acknowledging to a degree the protective factors referred to, Ms Hawil's report does not address the offending and non-compliance with orders that I have earlier referred to. Moreover the Offender is said to have ceased work to care for his brother albeit that this did not prevent subsequent offending. It is also unclear what the offender's relationship with his children is at present.
Overall I accept that the Offender is a Low/Medium Risk of reoffending. Subject to the Offender obtaining the recommended psychological treatment, I consider that he has reasonable prospects of rehabilitation.
[9]
Sentence
In sentencing the Offender, I accept that the use of the sword was largely spontaneous and involved impaired judgment flowing from chronic post-traumatic stress disorder on the Offender's part. The Offender's moral culpability is accordingly reduced. The offence occurred in somewhat unusual circumstances where the Victim had no entitlement to be at the subject premises and where the Offender was seeking his removal to address Ms Eliaali's wishes that he not be there.
To this extent, the need to provide for general deterrence is tempered. Despite the Offender's denial and limited insight, the offending is not such that requires any particular emphasis on specific deterrence.
I also accept that retribution and denunciation does not require particular emphasis. The Offender does, however, need to be punished and made accountable in the context of an overall proportionate sentence which recognises the harm to the Victim. Fortunately that harm appears to be limited. As to the need for community protection this can in the longer term best be addresses by providing for the Offender's rehabilitative needs.
In sentencing the Offender, I bear in mind the statutory guideposts contained in the maximum penalty term of 7 years imprisonment and the standard non-parole term of 3 years for an offence whose objective features fall within the mid-range of seriousness.
It was common ground between the parties that the threshold in section 5(1) of the 1999 Act had been met so that having considered all other alternatives, no sentence other than one of imprisonment is appropriate.
Whilst the Defence contended that the Court should order that the Offender's sentence be served by way of intensive correction in the community taking into account the time served pursuant to s 24 of the 1999 Act, such a course is not open having regard to the length of the sentence I propose. Nor is it open to the Court to manipulate presentence custody for the purpose of bringing the sentence within the jurisdictional limit of such an order. [25]
[10]
Commencement of Sentence
According to the bail report, the Offender has served 160 days in custody to date. In the circumstances, I propose to commence the sentence from 1 June 2019.
[11]
Special Circumstances
The Sentence Assessment Report indicates that the Offender has had limited engagement with Community Corrections. If supervised it is proposed that the Offender be:
1. Referred to external Domestic Offender Intervention, psychologist or Community health service for counselling intervention relevant to his offending; and
2. Completion of Practice Guide for Intervention modules relevant to Managing Stress and Anger, Managing Impulsivity Interpersonal Relationships Communication and Conflict resolution.
Ms Hawil's report also proposes a psychological treatment plan involving cognitive behavioural therapy and motivational interviewing.
Taking account of the fact that overall this is the Offender's first substantive time in custody, and on the basis of both reports an extended time on parole is desirable, I find special circumstances.
[12]
Sentence
The Offender is convicted.
The Offender is sentenced to a non-parole term of 1 year and two months imprisonment, to date from 1 June 2019 and to expire on 31 July 2020.
The Offender is thereafter to be released to parole to serve an additional term of 1 year and two months from 1 August 2020 to 30 September 2021.
[13]
Endnotes
T 204.47.
T 205.14-.18.
T 43.5-.30.
T 46.20-.23.
T 48.31-.32.
T 48.34-.35.
T 48.48-.49.02.
T 68.21.
T 68.32-.35.
T 73.16-.18.
T 73.34-.36.
T 75.24-.28.
T 8.19-.20.
T 9.35-.37
T 9.18-.23.
T 9.15
T 115.33.
T 5.40.
T 138.05-.19.
(2009) 194 A Crim R 439 at [37]-[38] and [2009] NSWCCA94
Hereinafter the '1999 Act'
Exhibit 11.
Shaw v R [2008] NSWCCA 58 at [26].
See R v Bednarz [2000] NSWCCA 553 at [51] - [52]; Elsobky v R [2006] NSWCCA 168 at [17] - [21]; Dipangkear v R [2010] NSWCCA 156 at [29] and [40].
R v West [2014] NSWCCA 250.
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Decision last updated: 06 February 2020