R v Elbadar

The NSW Crime Commission Offence 13On 15 April 2010, the offender attended the New South Wales Crime Commission to give evidence after having been issued with a summons to attend. Before the start of his evidence, the offender was advised by the Crime Commission staff that if he gave false evidence he could be later prosecuted. The offender then proceeded to give false evidence by stating that he drove to the scene on his own to meet some girls, he did not get out of the vehicle and he did not see Mahmoud Mariam and AM at the scene.

The Objective Gravity of the Offence 14I have previously considered the extent to which the Court could have regard to the fact that the discharge of firearms resulted in the death of an innocent bystander in assessing the gravity of the offence. I repeat what I have previously said on this issue for the purposes of sentencing this offender. 15Most relevantly, in Stevens v R [2007] NSWCCA 152, Price J (McClellan CJ at CL and Hidden J agreeing) said at [25] to [27] :- In determining an appropriate sentence for an offence of affray contrary to section 93C of the Crimes Act an offender's conduct is to be considered in the context of the conduct of a co-offender. The level of violence used in the scale of the affray is relevant. An offender however, may only be sentenced for that part of his conduct and the conduct of the co-offender which give rise to the offence of affray and not that conduct which resulted in some other offence being committed by him or by the co-offender; see R v Huynh [2000] NSWCCA 18; R v Eleter [2003] NSWCCA 130 and R v Fajka [2004] NSWCCA 166. His Honour found as I have mentioned that the applicant and Davis were the aggressors. Furthermore it was open to the judge to find that they had attacked both victims with extreme violence. The attack by Davies upon Mrs Herring with a tyre lever was part of the co-offender's conduct which gave rise to the offence of affray. In my view, the nature and extent of the physical violence was an objective factor relevant to the seriousness of the offence. 16Most recently in Khanwaiz & Ors v R [2012] NSWCCA 168 , Beech-Jones J said (Basten JA and Harrison J agreeing) :- 50. Further the significance of the distinct element of the affray charge, namely the effect of the attack upon persons at the scene, cannot be understated. Offences such as s 93C have a wider focus that just the impact on the direct victim of the unlawful violence. Section 93C is located within Part 3A of the Crimes Act which deals with public order. Attacks of the kind participated in by Noman can undermine the public's confidence in the security of their streets and homes. His Honour recognised this is in the sentencing judgment when referring to the "separate policy considerations effectively requiring separate assessments of the criminality and issues of accumulation" with the affray offences. 17It is axiomatic that in determining the appropriate sentence to be imposed upon the offender for the affray, he is not to be punished for the manslaughter of Mr Knight. He stands to be sentenced on the basis of his individual role in the commission of the affray. That, however, does not preclude the Court from taking into account, for the purposes of assessing the objective gravity of the offence, the fact that the discharge of loaded firearms was a feature of the affray. That feature of the offence demonstrated the extent to which members of the public were put in fear for their personal safety. 18To the extent that the gravity of the offence is affected by its short duration and the fact that it occurred late at night, after the various retail outlets on the perimeter of the car park had closed, those factors are of some, albeit, limited significance. The relatively short period of time during which the affray took place, in the order of minutes, was no doubt the product of the repeated discharge of at least two firearms and the wounding that resulted to two of the Mariam group. The participants in the affray were in exposed positions in the car park. The longer they remained there, the more likely it was that they themselves would be injured. Notwithstanding that the fast food outlets were no longer trading, there were members of the staff of those outlets who were waiting in the car park to be collected by friends and relatives. Moreover, adjacent to the car park, there was a service station and 711 store which was, at the time of the affray, trading with members of the public. All of these people were potentially put at risk of serious injury. That risk materialised in the death of Mr Knight. 19The offence demonstrated a measure of planning and premeditation, the participants were variously armed with firearms, pieces of timber and other implements, it was a large group, it occurred in full view of numerous members of the public in a public car park and it involved the actual use of violence. These are all factors that are relevant to an assessment of objective gravity. 20In the result, it is not necessary to embrace the Crown's description of the offence as one approaching the worst case. It is always possible to envisage circumstances that would render the offence more objectively serious, although that does not preclude a finding that an offence is in the worst case category. This affray did not take place at a time or in a place that engendered in a large number of members of the public fear for their personal safety. That does not detract from my assessment of the offence as objectively a particularly serious example of affray. 21I accept that this offender's role in the affray was limited to his presence with the intention of assisting others, that he took no active part in the infliction of violence and that he removed himself as soon as it became clear that firearms were being discharged. The fact that he undertook to alert the authorities before taking the younger Mariam brothers to hospital suggests that he was genuinely shocked and surprised by the scale of the confrontation. Nonetheless, he chose to include himself in Mahmoud Mariam's group in the knowledge that some type of confrontation was to take place.

The Objective Gravity of the Crime Commission Offences. 22Whilst the offender was no doubt motivated to lie to the Crime Commission out of a misplaced sense of loyalty to members of the Mariam family, that does not in any way excuse or justify these offences. They are partly explained by the offender's psychological disorders which I set out below. However, the offender sought to protect those who were responsible for a mindless display of violence, resulting in the death of an innocent person. The offender must have been aware at the time that he gave evidence to the Crime Commission that the discharge of a firearm by Mahmoud Mariam was one of the potential sources of the bullet that killed Mr Knight. 23Notwithstanding this knowledge, and the advice given to him by Crime Commission staff, the offender wilfully lied in his evidence in relation to crucial information which was critical to the Crime Commission's pursuit of further lines of enquiry. The gravity of these offences must be measured against the gravity of the offence which the Crime Commission was investigating. In my view, these offences were also objectively serious to a marked degree. 24General deterrence is an important consideration in sentencing the offender in respect of all three offences for those reasons. I accept that this offender's moral culpability is attenuated to a modest extent by the inter relationship of a number of psychological conditions that compromise his ability to withstand peer pressure.

Subjective Circumstances 25The offender is presently 34 years of age. He was born in Australia to parents of Lebanese heritage. His father died in 1986 and his mother is now 70 years of age. There are 11 children in the family of whom this offender is the second youngest. He reports a happy and close family life. The offender is educated to HSC standard. However he recalls great difficulty in his later years in high school after the onset of Tourette's Disorder. He has had consistent employment since leaving school in his brother's fruit shop, and within the banking industry. 26The offender has been under the treatment of a psychiatrist for his Tourette's disorder and has been diagnosed with ADHD and obsessive compulsive disorder. He is also suffering from anxiety and depression. The Tourette's disorder produces symptoms of self-consciousness, shame, demoralisation and sadness. In the opinion of the psychologist who prepared a report for the purposes of sentence, the presence of the disorder has had a marked impact on the offender's psychological development. It has predisposed the offender to be compliant towards others. The symptoms of his major depressive disorder have been exacerbated by his involvement in the offence. Paradoxically, the offender has discontinued antidepressant medication. 27His criminal history consists of a conviction for supply prohibited drug in 2001 in respect of which the offender received a suspended sentence of six months, and an offence of organising and/or promoting a race between vehicles in April 2002, in respect of which the offender was fined. 28Given the offender's psychological profile and the nature of his previous convictions, I do not regard specific deterrence as a relevant issue for the purposes of sentence. His prospects of rehabilitation are perhaps more promising than his co-offenders. The offender has adopted the role of primary carer for his mother. There is no evidence of remorse for his part in the offence. 29The offender spent three months and 19 days in custody in relation to the affray offence. There is some force in the submission that the imposition of a gaol term will visit greater hardship on this offender than on any other, given his psychological vulnerability, but I do not regard that factor as sufficient of itself to cause the Court to draw back from imposing a gaol term if that is the only appropriate punishment. 30The offender's pleas of guilty came at the very beginning of a long trial. The utilitarian value of those pleas warrants a discount of 15% on the sentences that are otherwise appropriate. 31Taking into account the objective gravity of the offences, the offender's limited role in the affray and his subjective circumstances to the extent that they reduce his culpability, I regard a sentence of imprisonment as the only appropriate sentence for the affray. But for the plea, I would impose a sentence of two years imprisonment on this charge. 32In respect of the Crime Commission offences, they are temporally so connected with each other that wholly concurrent sentences are appropriate. Sentences of imprisonment are also required for these offences. A modest measure of accumulation of these sentences upon the sentence for the affray is necessary to mark the distinct criminality inherent in them. But for the pleas of guilty, I would impose a sentence of one year imprisonment on each charge. 33That results in a sentence of one year and 8 months imprisonment for the affray. On each of the Crime Commission charges, a sentence of ten months imprisonment should be imposed, each of which ought be accumulated on the sentence for the affray by 4 months. 34Having regard to the offender's pre-sentence custody and his promising prospects of rehabilitation, I am of the view that these sentences ought be suspended. Accordingly, I impose the following sentences and make the following orders :- (i)Tarek Elbadar, you are convicted of the offence of affray. (ii)I impose a sentence of one year and 8 months imprisonment. (iii)I suspend the execution of that sentence and direct that you be released from custody on condition that you enter into a good behaviour bond for a period equal to that term. (iv)You are convicted of two offences of giving false evidence to the NSW Crime Commission. (v)I impose a sentence of 10 months imprisonment on each charge. (vi)I suspend the execution of each sentence and direct that you be released from custody on condition that you enter into a good behaviour bond for a period of ten months. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2012