R v Elmir; R v Salami

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0263 & 02/21/0264 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

REGINA v FAWAZ MOHAMMED ELMIR REGINA v JAMAL SALAMI JUDGMENT 1 MASON P: In the matter of Elmir and Salami I invite Adams J to deliver the first judgment to the Court. 2 ADAMS J: This is an appeal by the Director of Public Prosecutions pursuant to the provisions of s5D of the Criminal Appeal Act, 1912 against sentences imposed upon Fawaz Mohammed Elmir and Jamal Salami by her Honour Judge English at Parramatta District Court on 19 February 2003. The Director of Public Prosecutions contends that the sentences imposed are manifestly inadequate. 3 The offences occurred on 2 January 2002. The respondents were each charged in the following terms - (i) at Revesby he did break and enter a certain dwelling house, to wit, 95/161 Horsley Road, Panania, within the curtilage of the dwelling house at Horsley Road, Panania, with intent to commit a serious indictable offence, to wit, assault occasioning actual bodily harm in circumstances of aggravation, to wit, he used corporal violence on Nathan Moody; (ii) further, on the same date and at the same place he did assault Nathan Moody thereby occasioning actual bodily harm to him. 4 The first offence carries a maximum penalty of fourteen years, the second five years. It is not significantly disputed that these offences were committed against a background in which the respondent Elmir had become aware of a serious assault upon his younger brother, Ahmed, a matter which I will return to in due course. 5 The facts were as follows. At about 2 pm the respondents arrived at the premises of the victim in company with another unknown male and knocked at the door. One of the occupants looked through the front window and saw the three men there, with the respondents holding what appeared to be pool cues in their hands. Parts of the broken pool cues, which it was agreed were used by the respondents, were later recovered by police. The occupants of the house ran to the rear. The respondents, after having knocked on the door to no effect, forced the entry by kicking in the door. The occupants ran to the backyard of the premises and were pursued by the respondents and an unknown male through the house and into the rear yard. One of the occupants jumped the rear fence and ran to the right whilst the victim ran to the left pursued by three males through the unit complex. He was caught in the vicinity of Unit 22. The unknown male punched the victim in the face and then tackled him into the garage door. The two respondents then arrived and hit the victim a number of times to his face and head with closed fists and struck him a number of times on the arm, back, and legs, with the cue sticks. The victim lay on the ground curled up in a foetal position as he was struck a number of times by the respondents and the third person. A short time later he was forced to his feet by the hair and walked back into the house by the two respondents. As this occurred, he was struck repeatedly by pool cues and told they were going to kill him. He was forced into the house and sat down at a table in the main living area. There, the offenders remained with him for ten to fifteen minutes, continuing to punch him to the face with closed fists and striking his body with pool cues. They then talked with each other and began smashing furniture and continuing to threaten the victim. The offender Salami picked up a pair of scissors from the table and said, "Why don't we cut his ears off". The offender Elmir replied, "Yeah, we'll feed them to him". Meantime, neighbours contacted police who attended and, as they arrived, saw the victim running from the premises with visible injuries. As the victim ran he indicated to the officers the respondents, who were in the backyard. The police found the offenders near the back door apparently waiting for them. They were arrested and taken to Bankstown Police Station. They declined to be interviewed and refused to take part in an identification parade. 6 The victim was taken to Bankstown Hospital where he was treated for welts, bruising, abrasions to his back, arms, stomach, and leg. I think it is significant that he had no apparent injuries to the face with the possible exception of some slight injury to his tongue. Certainly, his injuries did not reflect a sustained course of serious violence. 7 The learned sentencing judge found that the offenders pleaded guilty at the earliest opportunity and allowed a twenty per cent discount in respect of the utilitarian value of the plea and contrition. 8 In relation to the personal circumstances of the respondent Elmir, he is thirty-three years of age, married with four children, and has commitments to an extended family and children who were not a product of his current marriage. He runs a convenience store, which is a family business. It operates seven days a week and is the family's only source of income. Elmir was born in Lebanon, migrated to Australia with his parents and one sister at the age of fourteen. Five siblings were born in Australia. For some little time, from the age of thirteen, he lived on the streets, having left his family's home, and had little or no contact with his parents for many years. He has a criminal record dating back to 1985, involving property and motor vehicle offences, offensive language, resisting arrest, assault, and on one occasion a parole period was revoked. There are earlier acts of violence on his record. Of significance, however, both to the learned sentencing judge and I think in this Court, was the fact that the last serious offences committed by him occurred in 1990. His parole was not revoked until 1992. Over this period he has been dealt with in a variety of ways - by way of supervised bond, by way of committal to an institution as a juvenile, performance of community service, and he has also served terms of imprisonment in recent times. However, it is fair to say, and it is a significant fact, that he has been largely law abiding. He has expressed in the interview and to the court below genuine remorse and contrition. 9 Her Honour, the learned sentencing judge, referred to the requirements of both general and personal deterrence and the objective seriousness of the offences. Her Honour considered, and in my view rightly, that the sentence to be imposed should reflect the significant efforts made by the respondent Elmir towards rehabilitation. 10 The respondent Salami did not give evidence below. The learned sentencing judge considered the material tendered before her justified the following findings as to his subjective circumstances: he was at the time of the sentence aged thirty, having been born in Lebanon; he had been exposed to extreme military violence at a very young age; he was taken by the militia and shot in the leg, and his brother was killed in the family home by a sniper's bullet. He and his family fled Syria and in 1988 came to Australia where, unfortunately, his father died the following year from a brain tumour. Some of his family lives in the United States and some in Australia and his mother does not enjoy good health. The respondent Salami had completed his Higher School Certificate and had undertaken further education. He was at the time of the sentencing undertaking study to obtain a builder's licence. Again, he expressed remorse and contrition and her Honour accepted those statements of regret as genuine. 11 Salami's criminal record did not commence until 1993, when he was aged twenty-one. At that time he was charged with larceny of a motor vehicle and ordered to perform 500 hours of community service. He did not, it seems, re-offend again until 1998, when he was convicted of goods in custody and, finally, in 1999 he was charged in the Local Court in respect of certain driving offences and placed on a supervised bond for two years. At the time of the offences we are here considering he was on bail in respect of a possession of counterfeit money. He has received in the past supervision by the probation service and has apparently responded appropriately. He, like his co-offender, appears to have taken steps to rehabilitate himself. He has been briefly married. There are no acts of violence upon his criminal record, a matter which I regard as important. 12 The learned sentencing judge was prepared to find that the respondent Salami's actions were out of character. In my view, she was entitled to come to that conclusion. More significant is the learned sentencing judge's conclusion that Salami had made genuine efforts to persuade Elmir from carrying out the offence. However, once they arrived at the premises he participated fully in the events that occurred. 13 In respect of the first count, the respondent Elmir was sentenced to a term of imprisonment for three years, commencing on 28 February 2003 and expiring on 27 February 2006, to be served by way of periodic detention with a non parole period of eighteen months, commencing on 28 February 2003 expiring on 27 August 2004; and, in respect of the second count, to a term of imprisonment of eighteen months, commencing on 28 February 2003 and expiring on 27 August 2004, to be served by way of periodic detention. So far as the respondent Salami is concerned, he was sentenced, in respect of the first count, to a term of imprisonment for two and a half years, commencing on 28 February 2003 expiring on 27 August 2005, to be served by way of periodic detention with a non parole period of twelve months, commencing on 28 February 2003 and expiring on 27 February 2004, and, in respect of the second count, to a term of imprisonment for eighteen months, commencing on 28 February 2003 and expiring on 27 August 2004, to be served by way of periodic detention with a non parole period of twelve months, commencing on 28 February 2003 and expiring on 27 February 2004. On 24 March 2003 the Director of Public Prosecutions signed a notice of appeal in respect of this matter which was served personally on the respondents on 2 April 2003. 14 In this Court the Director of Public Prosecutions submits that the offences were objectively so serious that the failure of the learned sentencing judge to impose sentences of full-time custody was manifestly too lenient. Counsel for the Director of Public Prosecutions pointed, in particular, as matters of demonstrating a high degree of objective seriousness, to the fact that the respondents were armed with pool cues to use as offensive weapons, that the victim was deprived of his liberty for a time, and seriously injured - indeed, his life was threatened - that the victim's home was invaded, and that the respondents also caused significant damage to property. Furthermore, the respondent Elmir had been previously convicted of offences involving violence, and this offence was committed whilst the respondent Salami was on bail at the time for another offence. It is also submitted that the learned sentencing judge erred in failing to accumulate the sentences for each of the offences, to at least some degree. It may, however, be doubted whether it was appropriate, in the first place, to charge the offenders with the second count, having regard to the allegation that in the first count the circumstance of aggravation was the infliction of corporal violence. The difference between corporal violence and actual bodily harm in the circumstances here is immaterial. I have no doubt that entirely concurrent sentences were appropriate. 15 Counsel for the respondent Elmir, so far as the facts are concerned, relies heavily on what appears to be the undisputed motives of the respondents. Elmir's brother Ahmed had been assaulted with an iron bar by a number of youths on 30 December 2001. His injuries required hospitalization for three days. Elmir visited him in hospital and was very upset when he saw the injuries his brother suffered. It was not controversial they were serious and, earlier in the piece, potentially catastrophic. 16 Elmir supplied to the police the names of the persons he believed to be the culprits, which included the victim of the present offences. However, he believed that the police were investigating the matter with insufficient vigor. The offences we are considering occurred three days after the assault on Ahmed. It is clear that Elmir was exceedingly angry at what happened and what he believed to be the indifference of the police. However, even on Elmir's account of the facts, his attack on the victim in his house was unjustified. The learned trial judge was minded to accept Elmir's explanation for the attack as largely truthful and the prosecution did not then and does not now seek to persuade the court below nor us otherwise. 17 It is also fair to observe, as I have already mentioned, that the injuries inflicted on the victim were more frightening than serious and certainly did not remotely match those that were inflicted on Elmir's brother. Elmir claimed that he initially intended to threaten the victim, so that he would be frightened and go to the police to confess his guilt on the assault of Ahmed. He claimed that he found the cue outside the door. His explanation as to how he and Salami came to share a part of it strikes me as exceedingly unconvincing. However that may be, Elmir said that he knocked on the door before kicking it in, as I have already mentioned. Salami in the meantime had attempted to dissuade him but by this stage it is clear they had lost their self control to a considerable degree. 18 The circumstances as accepted by the learned judge were certainly unusual and justified significant mitigation in sentence. However, it is clear, even on Elmir's evidence, that he was in large part motivated by anger. It cannot be realistically doubted that his primary motive was vengeance, at least after he entered the house, although it is to his credit that he only inflicted relatively slight injuries. At the same time, this aspect is reflected in the charge of assault occasioning bodily harm as distinct from an offence of which an element was more serious injury. So far as even this offence is concerned, this is at the lower end of seriousness, although the multiplicity of injuries means that it is far from the least serious example of this kind of offence. 19 All unlawful violence is serious and, when it occurs in the context of the violent invasion of a person's home, very much more so. Elmir had no reasonable ground for believing this attack on his brother was not being appropriately investigated and, even if there were such grounds, this does not justify in committing the serious criminal offences, to which he admitted, to achieve his own notion of justice. 20 It has been said that he took the law into his own hands. This is quite wrong. What he did had nothing to do with the law. He committed a serious crime. In my view, a term of less than full-time imprisonment is completely inadequate to reflect the gravity of the crimes committed. Although the learned sentencing judge referred to the need for general deterrence in cases of this kind, I am satisfied that the sentence which her Honour imposed failed to give sufficient weight to this important element. 21 So far as Salami is concerned, the considerations I have already mentioned must also apply to him. However, he was not the instigator of the offences and sought to dissuade the principal offender. Although he was on bail at the time, it was not in respect of a serious offence and does not, to my mind, significantly increase his culpability. 22 It seems to me, therefore, that the sentences appropriate to be imposed on the respondents should have involved a period of full-time imprisonment. In calculating the sentences I propose, I have borne in mind the restraint which this Court exercises when increasing the severity of sentences on appeal. This factor is especially significant when the sentences appealed from do not involve custody or full-time custody. Accordingly, the sentences will be significantly less severe than would otherwise have been the case. 23 I have mentioned that the learned sentencing judge discounted the sentences she imposed by twenty per cent for early plea and cooperation, taking into account also the genuine contrition and remorse exhibited by the respondents. I consider that this is an appropriate allowance. Prima facie, the appropriate commencement date should be 28 February 2003. However, the respondents have not served several weeks of periodic sentence for one reason or another. The circumstances in which this occurs and, in particular, the grant of leave or imposition of a condition extending the sentence, is dealt with in ss88 and 89 of the Crimes (Sentencing Procedure) Act, 1999. In the circumstances here, however, there is no suggestion of noncompliance and no evidence about leave or whether any extension of the term of imprisonment was made by the Commissioner. Accordingly, it seems to me the sentences which I propose should date from 28 February 2003. 24 The learned trial judge found that there were special circumstances justifying a departure from the usual ratio between the minimum term and the maximum term of imprisonment. It has not been argued here otherwise by the Crown and I am satisfied that the need to continue and encourage the rehabilitation of the respondents justifies a departure from that ratio in these cases, especially since I have regrettably come to the view that full-time imprisonment is necessary. It may well be that some further support than would otherwise be necessary should be given to them upon their release. 25 It seems to me that the form of the orders should comply with the present terms of s44 of the Crimes (Sentencing Procedure) Act, 1999. However, in doing so, I have in substance passed the same sentence as would have been passed had the intervening amendments not occurred. 26 Accordingly, in respect of the sentence imposed on Fawaz Mohammed Elmir, on the first count I propose that the sentence below be quashed and that there be substituted a sentence of which the non parole period, that is the minimum period for which the offender must be kept in detention in relation to the offence, is one year, with a balance of sentence of one year, a total in all of two years, to commence from 28 February 2003. 27 In relation to the second count I propose a fixed term of imprisonment of nine months commencing on 28 February 2003. I have already given reasons why I consider these sentences should be served concurrently. 28 In respect of the respondent, Jamal Salami, I propose that the sentence on the first count be quashed and that he be sentenced to a term of imprisonment of which the non parole period is nine months, with the balance of sentence of one year, a total of one year and nine months. In respect of the second count I propose that the sentence below be quashed and that there be substituted therefor a fixed term of imprisonment of nine months. Both sentences are to commence on 28 February 2003. 29 MASON P: I agree. 30 DOWD J: I also agree. 31 MASON P: The order of the Court will be as indicated by Justice Adams.

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