Mr N Funnell (Counsel for the Offender)
File Number(s): 2019/228202
[2]
Judgment
Fadi El Farra, who is 43 years of age, appears for sentence having pleaded guilty to one count of reckless wounding contrary to s 35(4) of the Crimes Act 1900. This offence carries a maximum penalty of seven years imprisonment with a standard non-parole period of three years. Those penalties are important yardsticks in the sentencing process which must take into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
He pleaded guilty in circumstances which it is agreed justify a 10% discount for the utilitarian value of the plea.
He has been in custody since 26 July 2019. It is agreed that a period of full-time custody is required and it is unnecessary for me to consider any alternatives. The term of imprisonment will be backdated to reflect the offender's time in custody and will commence on 26 July 2019.
I am also asked to deal with the breach of two Community Corrections Orders imposed by the Local Courts commencing 3 July 2019 and 3 June 2019, respectively.
In light of the significant period that the offender spent in custody while bail refused for those matters, I propose to accede to the submission by Mr Funnell of counsel for the offender that the call up will be dealt with by revoking the Community Corrections Order and imposing no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999.
R v El Farra [2020] NSWDC 895 | Case summary | Zoe
The agreed facts show that the victim had been known to the offender for about six months before the offence on Friday 19 July. The victim attended a unit at Villawood. He walked out onto the footpath and he saw the offender and Killara Ebsworth. There was some discussion and Ebsworth said to the victim "move away this area is no good for you". The offender and the victim exchanged words. Shortly after leaving the unit the offender and victim again crossed paths outside t. They shouted at each other and the victim felt immediate pain to the right side of his neck. He saw a large knife in the offender's right hand. At the time the offender realised that he could cause actual bodily harm to the victim.
The victim was bleeding profusely from the neck. A number of residents heard the shouting and a neighbour had called triple-0. The offender left the scene with Ebsworth.
The victim was taken to Liverpool Hospital where he was treated for a knife wound to his neck. It was an 8 x 2 centimetre laceration in the back of the neck with a deep tract injury. There was no major vascular injury noted. He was kept in hospital for three days and there is no indication of any lasting damage.
The large silver knife was located on the grassed area near the scene and there was blood on the tip, and offender's fingerprint was located on the knife.
A witness said that she heard the yelling before the incident and she armed herself with a kitchen knife and put it down the front of her pants. She went outside and she saw the offender with a knife in his hand and the victim with a stab wound to his neck, and the victim then picked up a large stick and was trying to keep the offender away. The offender and Killara Ebsworth ran away when police arrived according to this witness. She dropped the knife on the ground and went back inside.
On 26 July police arrested the offender at Annandale. He declined to be interviewed.
The offender has a very lengthy criminal history and has spent according to the calculations of his counsel 3713 days or more than ten years of his adult life in custody.
His extensive history includes convictions for armed robbery, vehicle theft, break and enter, breach of apprehended violence orders, assault occasioning actual bodily harm and drug supply.
The offender has not given evidence and relies upon a subjective case set out in a detailed letter from the offender, a reference from his mother and a psychological report from Ms Gumbert.
The Crown quite correctly asks me to approach the subjective history with some caution in the light of cases such as R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144, and I do so, given that it is not tested or adopted. However, parts of it are consistent with other material, and to a large extent appears to be a reasonable basis upon which to proceed to sentence.
The psychologist had access to the Justice Health file records and a discharge summary from Westmead Hospital which partially corroborates one of the episodes upon which the offender places significance.
The letter from the offender expresses his sincere remorse and regret and acknowledges the harm that he caused the victim.
As I have indicated, the Court said in Imbornone, at [57],
It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33].
He talks of how drug use has ruined his life after growing up in southwest Sydney with his hardworking parents who were immigrants from Lebanon.
He spent a large portion of his life in custody and the large reason for that is his drug use. He was abstinent for some periods of two years up until 2014 and then again about two years after being admitted to rehabilitation in 2015.
He describes an incident while he was on remand at Bathurst Correctional Centre on 28 May 2019. He suffered a compound fracture of the arm in that incident and asserts that it was due to the actions of prison officers who were conducting a strip search of him.
The Crown does not challenge the fact that he suffered a fracture and that he spent periods of time in segregation and was treated by Justice Health for this injury. The Crown does not accept his assertion as to causation, and it is unnecessary for me to find at this stage, what was the cause of the compound fracture.
The Crown also correctly submits that I should give no regard to his assertion that he had known through his circles that the victim would carry knives around with him and that he had a violent history.
He has engaged in the EQUIPS Addiction Program while in custody and I accept that that has given him some insight into the importance of positive influences and that he has demonstrated some willingness to continue to work towards rehabilitation.
He acknowledges that the Court matter is not all about him, that it is about achieving justice for the victim and to protecting the community, which is a useful level of insight. He acknowledges that he will be punished and he accepted that punishment.
His mother's reference is consistent with the version that he put in the letter. She describes the fact that he has expressed to her, on many occasions, how sorry he is for what he has done and how he regrets it and is ashamed of it. He has told her that he wishes to stay away from his previous negative influences, and she will provide support and housing for him on his ultimate release.
The psychologist notes that he has not been treated for any mental health conditions nor is he taking any regular medication. He reports feeling traumatised as a result of the incident in 2019 to which I have referred.
He denied being intoxicated at the time of the offence, and there was no evidence of intoxication or drug taking influencing his offending.
The psychologist diagnosed an opioid use disorder currently in early remission in a controlled environment and his primary criminogenic needs relate to deficits in emotional regulation and anger management. There are some potentially protective factors that may auger well for his prospects of rehabilitation, including his motivation for change and the positive attitudes he has expressed towards the treatment program.
Prospects of rehabilitation are somewhat guarded as the Crown submits given the lengthy background which involve some unsuccessful attempts at long-term rehabilitation but the psychologist asserts that he shows a reasonable prospect for rehabilitation if engaged with suitable treatment programs.
There is not a great deal in issue between the helpful written submissions prepared by the Crown and by Mr Funnell.
Ultimately I accept that the offending is within the mid-range of objective seriousness given the factors to which I will refer.
As the Crown points out the victim had known the offender for about six months prior to the offence, and it was only after a brief exchange of words that the offender produced a large knife and stabbed the victim in the neck. The injury was sufficiently serious to require him to remain in hospital for three days. Although there was a single stab wound inflicted in the neck, the foreseeability that wounding would occur was high and the consequences could have been life-threatening. There was no evidence of the victim being harmed or physically provoking the offender when the offence occurred.
As Mr Funnell points out, one needs to consider in this task the extent or nature of the injury, the degree of violence and the offender's intention. Although the agreed facts suggest that there was some animosity between the parties, in that the incident was immediately preceded by them shouting at each other it was not a planned assault even though the offender had armed himself after the first interaction which indicated that he at least contemplated the possibility of going to use the knife. It was not a sustained attack and the injury does not have any lasting consequences which Mr Funnell submits is a distinguishing feature with that considered in Oh Hyunwook v R [2010] NSWCCA 148, one of the two cases provided by the Crown as a comparative case.
Mr Funnell acknowledges in terms of aggravating factors, that he was on conditional liberty at the time, he used a weapon in the commission of the offence, and his criminal history is such that he is not entitled to leniency.
I must of course take into account general deterrence as a significant aspect of the sentencing process and as the Crown refers to in R v Cage [2006] NSWCCA 304, Latham J said at [17], citing R v Gordon (1994) 71 A Crim R 459,
… public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular offender (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed.
There is a clear need for emphasis on specific deterrence in relation to this offender as well.
The highest that Mr Funnell could put the subjective matter involving drug use was that although there is no evidence directly linking illicit substance use with the commission of the offence, his record was indicative of someone in the ravages of addiction, but he has been abstinent for some time since his incarceration following the arrest.
He has been able to overcome an addiction to gambling it seems and he is willing to participate in further residential rehabilitation programs. His resolve has been demonstrated by participating in the EQUIPS Aggression and Addiction Programs.
I accept that there is a basis for a finding of special circumstances given the clear need to engage in continuing efforts to address his substance abuse and addiction, and the risk of institutionalisation given the lengthy time that he has spent in custody.
I have taken account of the facts and the sentences and the varying discounts involved in the two cases provided by the Crown, namely Melbom v R [2013] NSWCCA 210 and Oh Hyunwook v R [2010] NSWCCA 148 as I have referred to.
The orders that I make are:
[3]
2018/377919 (H135969002/001 & 004) Community Corrections Order
1. The bond is revoked.
2. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted of the offence and no further penalty is imposed.
[4]
2018/258170 (H245312298/007) Community Corrections Order
1. The bond is revoked.
2. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted of the offence and no further penalty is imposed.
[5]
004 Count 1: Reckless wounding
1. The offender is convicted of the offence.
2. Taking into account a discount of 10% for the plea of guilty, I impose a sentence of imprisonment of 3 years, 2 months, to commence on 26 July 2019.
3. I impose a non-parole period of 2 years, 1 month, expiring on 25 August 2021.
4. I find special circumstances.
Note - These extempore remarks were revised without access to the court file.
[6]
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Decision last updated: 29 April 2021