Mr Mouman Baradaaji is for sentence in relation to an offence of recklessly causing grievous bodily harm to a Mr Vaddepalli while being in company with Abdullah Cheikho. The maximum penalty for that offence is 14 years imprisonment and a standard non-parole period of five years is specified. The offender was committed for trial from the Local Court on 25 October 2019. A plea of guilty was entered in this Court on 12 June 2020 at a pretrial mention, and it is agreed that a discount of 10% is appropriate to be given on account of that plea of guilty, and I apply that discount of 10%. Of course the maximum penalty and the standard non-parole period are important guides in the sentencing exercise.
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FACTS
The facts of the matter are agreed, and in summary are as follows. On Saturday, 1 September 2018 Mr Vaddepalli was on duty at the United Service Station at Wilberforce. He was accompanied by another employee, a female, Yagitha Nakka and they were rostered to close the service station at the end of business which was 10 o'clock at night. This offender and Mr Abdullah Cheikho and a number of other males had been during that day at a place called the Southern Chariot Stud Religious Site on the Putty Road at Colo, and had been there for a barbeque and an afternoon of four wheel driving.
Mr Cheikho and this offender Mr Baradaaji were travelling together in Mr Cheikho's utility together with an unknown male. Three other males were travelling together in another utility, those being Mr Ibrahim, Mr Ibrahim-Kadir and a Mr Arnaout. Shortly before 10pm those various men left the religious site and travelled along Wilberforce Road towards Richmond. At about 10pm the two vehicles pulled into the United Service Station at Wilberforce, where Mr Vaddepalli had just turned off the pumps, set the shop alarm, and was in the process of locking the doors. Ms Nakka, his co-worker, was also with him, and she was intending to give him a lift home on her motorcycle as his motorcycle had apparently broken down.
The two utilities pulled up in front of the diesel pumps and Mr Cheikho got out and approached Mr Vaddepalli. He said, "We want fuel. Can you please open the door?". Mr Vaddepalli replied saying, "Sorry, we have locked the shop completely. If we open it now it's like breaking in again. The alarms are turned on. It's against the rules." Mr Cheikho, however, again said "We want fuel. Can you please open the door?" Mr Vaddepalli replied, "We can't open it again" and Ms Nakka added, "Sorry, we can't open the shop because it will be like we are breaking in." An argument then developed between Mr Vaddepalli and Mr Cheikho. As a result, Mr Cheikho spat twice in Mr Vaddepalli's face. One of the other males who were with the group approached Mr Cheikho and told him to calm down. However, this offender, Mr Baradaaji then came running towards Mr Vaddepalli, and one of the other males from the vehicles began punching and kicking Mr Vaddepalli about the face. Mr Vaddepalli lost consciousness and he fell to the ground. Mr Cheikho then dragged him along the ground for about 5 metres and stopped just in front of an ice refrigerator.
Ms Nakka had removed her motorcycle helmet and gloves and was about 2 metres away. She saw all the occupants of the two vehicles, which was about four to five males, including, obviously, Mr Cheikho and this offender Mr Baradaaji, surrounding Mr Vaddepalli as he lay unconscious on the ground. All the males began kicking Mr Vaddepalli, striking him in the head and upper body. It is not known how many kicks or punches Mr Baradaaji effected. However, it is agreed that he was at that stage a party to a joint criminal enterprise to assault the victim.
While this was happening, one of the other males called out to Ms Nakka and said, "Don't call the police". Ms Nakka was concerned that Mr Vaddepalli was unconscious and that he was not doing anything to protect himself from the assault he was being subjected to. In an attempt to stop the assault she, rather bravely, threw her helmet at the group. Mr Baradaaji, however, picked up the helmet and threw it back at her narrowly missing her head. At that stage Mr Baradaaji, Mr Cheikho and one of the other males returned to Mr Cheikho's utility and they drove away. The other three males stayed at the service station and one of them assisted Ms Nakka in getting Mr Vaddepalli inside the service station to be rendered some first aid.
Each of the three males remained at the service station until police arrived, but when questioned about the matter denied knowing any of the other offenders. Ms Nakka used Mr Vaddepalli's phone to call police, despite one of the males telling her not to. Mr Vaddepalli at that stage was bleeding heavily from his mouth, and so Ms Nakka went outside onto the road to try to flag down some passing cars. After a few minutes the police arrived. Mr Vaddepalli regained consciousness but he had no memory of what had happened. He was taken by ambulance to Nepean Hospital where he was admitted and had X-rays and CT scans carried out. It was determined that he had multiple fractures to his jaw, but the doctors were not able to operate at that stage because of the swelling to his face.
On Wednesday, 5 September, that is four days later, doctors were finally able to operate on him. Mr Vaddepalli had two plates attached and screwed into his jaw. Two small drainage tubes were inserted into his neck to drain the fluid over the following 24 hours. To get access to his jaw the doctors had to make a 9 centimetre incision, and they had also to remove a back tooth. He now has a visible scar on his neck. On 7 September Mr Vaddepalli underwent a second set of surgery as a result of doctors having to make adjustment to the braces that they had fitted during the first surgery. On 10 September, that is another three days later, the doctors wired shut Mr Vaddepalli's jaw and he was discharged from hospital that night.
Over the next six weeks he had to return to the hospital every Monday and Thursday so that the bands in his mouth could be replaced. During the six weeks that his jaw was wired shut he was unable to eat any solid foods and was only allowed to drink water, milk and some filtered juices. He lost between 8 to 10 kilograms and had persistent shooting nerve pain up the left side of his face. He returned to Nepean Hospital for his third surgery on 15 October. That surgery was to remove the wiring and to affix braces to repair his jaw permanently. For the next seven weeks he had to return to the hospital every Monday and Thursday so that the bands on his braces could be replaced. He lost another 4 kilograms. On 15 February 2019 the braces were finally removed. He faces further dental work as the screws holding the plates in place in his jaw will apparently destroy his back teeth. He has been doing exercises to regain the full use of his mouth and jaw daily since the braces were removed.
As part of the investigation, police obtained CCTV footage from the service station but that material did not capture the actual incident. Police seized Ms Nakka's motorcycle helmet and a fingerprint was found on it that belonged to this offender Mr Baradaaji. As part of the investigation police also intercepted Mr Cheikho's telephones and a number of calls were identified, including several calls between he and other parties, including Mr Baradaaji. The facts before me, however, are silent as to any admission made by either of them in those calls, although Mr Cheikho apparently asked one of the other men to lie for him. However, there is no indication of any admissions made by this offender in those calls.
Mr Cheikho was arrested on 8 November 2018 and made no admissions to the offence and denied being at Wilberforce at the time. On 12 December 2018 this offender, Mr Baradaaji, was arrested. He, after being explained his rights, declined to participate in an interview but he did consent to a forensic procedure in the nature of a buccal swab being carried out. Those are the facts upon which the offender is to be sentenced.
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OBJECTIVE SERIOUSNESS
In determining the appropriate penalty in this matter I am required to make an assessment of the objective seriousness of the offence and the offender's moral culpability for it. The facts describe an unprovoked and cowardly attack by a group of four to five males who set upon the victim, who was outnumbered and unable to defend himself. The victim and his co-worker Ms Nakka were simply going about their work, had just closed up the service station and set the alarms, evidently at the usual closing time of 10pm. The victim and his co-worker had told the men that they could not comply with the men's unjustified demands for the station to be reopened so they could be provide with fuel.
It is obvious, but still needs to be said, that it was the men's own stupidity or incompetence that led them into a situation where they apparently needed fuel so desperately. But regardless of whether they needed it or not, that gave them no right whatsoever to make the demands that they did. I note that in sentencing the co-offender Abdullah Cheikho, Magistrate Van Zuylen in the Local Court at Penrith said, "What a cowardly and contemptible and seriously criminal act you did. Kicking an unconscious man simply because he had not served you petrol." I gratefully adopt those comments, and they apply equally to the offender who is before me. As the magistrate also said, this was a "very, very trivial thing that started all this. You only had to swallow your pride and get someone to bring some petrol or drive to the next petrol station".
Behaviour of this cowardly nature must be met with serious punishment. The community should not have to put up with primitive, cowardly, and, as the Crown put it, gutless actions like this. A civilised community has the right to expect that persons who commit acts like this will be locked up for a considerable period of time. As was submitted by the Crown, the objective seriousness of this offence is highlighted by the fact that it was an unprovoked attack on an innocent victim who was just going about his everyday working life. The seriousness is also demonstrated by the very high degree of violence arising from a number of attackers, and the multiple kicks and punches that occurred, most of them to the victim's head. Also, this was not a momentary offence but continued for some time, starting at the point where the victim was punched to the ground and continuing after he was dragged 5 metres along the ground to another spot where he was surrounded and kicked multiple times. The offender was a participant in all of this and made no effort to withdraw from the situation or to stop others.
I accept, however, that this was an impulsive and unplanned crime and that there was no premeditation or planning. Grievous bodily harm involves a range of different types of really serious injury. In this case the victim suffered multiple fractures to the jaw which required various forms of surgery and visits to hospital twice a week. As noted in the facts, he was unable to eat solid foods for some six weeks, lost a lot of weight, and suffered a lot of pain. There can be little doubt that the effects of these injuries will be with him for a long time, and probably the rest of his life.
The Crown has submitted that the objective seriousness falls around the mid-range, while the offender says it should be regarded as either at or just below that range. Having regard to all of the facts, but in particular the nature of the injuries, the brutality and duration of the attack and its unprovoked nature, I assess the objective seriousness as being in the middle range.
The offending is, however, aggravated because the victim was a vulnerable person, given that his employment as a service station attendant placed him in a somewhat isolated situation.
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SUBJECTIVE MATTERS
Turning then to subjective matters concerning this particular offender. I note that he is nearly 22 years of age and that the offence was committed 13 days before his 20th birthday. His criminal history prior to this offence is not extensive, but it is such that he is not entitled to the leniency that might otherwise have been extended. He is fortunate to have the support of his family and references have been supplied by his mother and two of his sisters. They speak highly of him as usually being a decent and genuine, although somewhat immature young man, who has a history of being bullied at school. They confirm that he has also been diagnosed with epilepsy.
The Court also has the psychological report of Mr Sam Borenstein. According to the psychologist, the offender claims to have little memory of the day of the offence, and told the psychologist that he had taken Xanax, cannabis and about 50 Valium tablets that day. He gave the psychologist a history of drug use going back some years involving various illicit and prescription drugs. He also told the psychologist about his history of head injuries, some of them due to bullying at school, and others due to falls associated with epileptic seizures.
The psychologist formed the impression that the offender is genuinely burdened by guilt, remorse and contrition for his offending, although he claims to have essentially no memory of it. The offender's mother and sisters also say that the offender has expressed remorse. However, this is not consistent with the conclusions expressed in the Sentencing Assessment Report. In that document the Community Corrections officer says that the offender denied aspects of the agreed facts, and although he claimed to have difficulty recalling aspects of the offence, expressed a belief that his only involvement in the offence was through his connections with the co-offenders. According to the Community Corrections officer the offender demonstrated no insight into the impact of the offence on the victim or the wider community, and saw himself as the victim due to his time on remand and lack of contact with family.
In circumstances where the offender gave no evidence on sentence, I do not accept that there is any genuine remorse.
I do accept that the offender has struggled with some difficulties in his early life and that some of these are still with him. He was bullied as a child at school, he has learning difficulties, poor self-esteem and suffers epilepsy. He has suffered seizures involving loss of consciousness while in custody, and has some history of self-harm. He was the victim of a serious stabbing in May 2018 resulting in a chest wound and admission to an Intensive Care Unit for several days. There is evidence that he still suffers some pain associated with this wounding, and that he may require surgery in the future.
Taking all of these matters into account, I accept that his time in custody is likely to have been and will continue to be somewhat more difficult than if he was not subject to these problems. I have taken into account the evidence of some hardship arising from the history of bullying at school. However, while this is part of the general relevant background of this offender, it was not suggested that this reduced his moral culpability under the principles discussed in the decision of the High Court of Australia in Bugmy v R (2013) 249 CLR 571. In my view his moral culpability remains relatively high.
I have had regard to the assessments of his future risk. The Sentencing Assessment Report includes an assessment that he is in the medium high range, while the psychologist suggests rather cautiously that his risks will be "significantly minimised" if he cuts ties with previous associates and receives intensive drug counselling. The offender does have the benefit of a supportive family and the opportunity to live with his mother post release, which are positive factors in terms of his future risk of reoffending.
There are, however, factors which point in the opposite direction, including his drug history, the 21 infringements he has committed since coming into custody, and the fact that the offence for which I am to sentence him was committed only days after he was charged with possessing a prohibited weapon and a prohibited drug. In my view his prospects of rehabilitation cannot be seen as good, and are at best guarded.
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PARITY ISSUES
An important issue in sentencing this offender is the question of parity arising from the fact that his co-offender, Abdullah Cheikho, was sentenced in the Local Court to a head sentence of 21 months with a non-parole period of eight months 11 days. An important principle of sentencing is that the sentence I impose should not, when compared with that imposed on Mr Cheikho, be such as to create a justifiable sense of grievance or unfairness, having regard to the nature of the offending and the personal circumstances of each of the offenders.
As noted in the offender's submissions, the New South Wales Court of Criminal Appeal has recently confirmed that parity considerations can apply, even where a co-offender has been dealt with in the Local Court. See Greaves v R [2020] NSWCCA 140. In this matter counsel for the offender made detailed written submissions about the significance of parity principles and the sentence imposed on Cheikho, and the Crown accepted the essence of those submissions. The facts indicate that it was Mr Cheikho who initiated the verbal argument with the victim and spat in his face. However, after one of the other men tried to calm the situation, the current offender, Mr Baradaaji, came running towards the victim, and another male began punching and kicking the victim to the face. According to the facts placed before me, it was Mr Cheikho who dragged the victim along the ground to the place where four to five men, including Cheikho and this offender, surrounded the unconscious victim and kicked and punched him repeatedly. Although it is not known how many blows were inflicted by this offender as compared with Cheikho, it seems to me that there is not a lot to distinguish between their roles in what was a joint criminal enterprise, in which they both willingly engaged.
Both offenders are relatively young men. In Cheikho's case it was accepted by the magistrate that he had experienced terrible tragedies in his earlier life, and that he suffered from Post-Traumatic Stress Disorder. In Mr Baradaaji's case, while there is also some evidence of psychological difficulties, which I have taken into account as part of his subjective circumstances, there is no evidence of a background of "terrible tragedies" as there was in Mr Cheikho's case. Cheikho was, at the time of the offending, subject to the final day of a two year good behaviour bond imposed in the Local Court on 2 September 2016 for an assault. On the other hand, the current offender at the time of this offence had been charged only four days earlier with possessing a drug and possessing a prohibited weapon. I am informed, however, that he was not on bail for those charges, for which he was later convicted, and so was not subject to conditional liberty which would otherwise have aggravated the offence.
This fact is, however, relevant when considering the offender's prospects of rehabilitation. When I refer to "this fact" I am referring of course to the fact that he had been charged only four days earlier with those other offences. The magistrate found in sentencing Mr Cheikho that there were favourable features in his case in that he had sought out psychological treatment at Headspace and had obtained employment. I am not satisfied that there are any such strong positive features in the subjective case put forward by this offender. Also, in my view, leaving aside Children's Court matters for both men, the current offender's adult criminal history in the three years leading up to the current offence was appreciably more extensive than Cheikho. The current offender had also spent two months in prison in 2017, whereas Mr Cheikho had never previously received a custodial sentence. In addition, and as I have already noted, this offender had committed the offences of possessing a prohibited drug and a prohibited weapon only four days earlier.
All in all, the subjective matters accepted by the magistrate in Cheikho's case are considerably more positive than those that I have found to exist in the case before me. There is also the fact that Mr Cheikho had the benefit of an early plea of guilty for which the magistrate allowed a 25% discount. It is agreed that the offender before me is entitled only to a 10% discount due to his late plea of guilty.
Having regard to all of these matters, while I accept that parity principles are, as the Crown conceded, of importance in this case, it seems to me that there are some significant differences between the circumstances of the two offenders and that this should be reflected in the sentence imposed on Mr Baradaaji. I accept that the sentence to be imposed on this offender must not be such that when compared with that imposed on Mr Cheikho it would create a justifiable sense of grievance in an objective sense. Nonetheless, I am satisfied that there are material differences between, in particular, the subjective aspects of this case and Mr Cheikho's case, and that this should be reflected in the sentence I impose on the current offender. In particular, I am of the opinion that it would be inappropriate to make any generous finding as to special circumstances and certainly nothing approaching the very lenient special circumstances adjustment of just under 40%, which was allowed by the magistrate.
In Mr Cheikho's case such leniency was presumably inspired by the positive findings made by the magistrate as to remorse, Mr Cheikho's early plea of guilty and limited criminal history, and probably the reluctance of the magistrate to return Mr Cheikho to prison after being granted bail, and having made positive steps towards rehabilitation. These are features which in my opinion provide some distinction between this offender and Mr Cheikho.
Leaving aside the generous adjustment for special circumstances made in Mr Cheikho's case, it also seems to me that the head sentence imposed in that case was a very lenient one but nonetheless one to which I must have regard.
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DETERMINATION
Clearly, a sentence of full-time custody is required in this case. In coming to that view, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and the various common law principles that apply, in particular the need for deterrence, both of this offender and of others, is of considerable importance.
I have taken into account the fact that part of the offender's current period of custody was due to his serving a sentence imposed in the Local Court on 4 July 2019. In those circumstances I must, and I have had regard to totality principles so as to avoid an overall period of custody that might be regarding as "crushing". In my view there should be some concurrency with that sentence. I note that counsel for the Crown submitted that the sentence should commence sometime after 4 November 2018, and that the offender accepted this and submitted further that the start date should be well before 4 August 2019, so as to avoid the imposition of a crushing sentence.
I impose a sentence of imprisonment of three years six months. I set a non-parole period of two years four months. I make a limited adjustment on account of my finding of special circumstances, based on the need for the offender to be subject to a lengthy period of supervision once released to parole. Each of those terms will date from 4 February 2019. The head sentence will expire on 3 August 2022 and the offender will be eligible for release on parole on 3 June 2021.
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Decision last updated: 10 November 2020