Ms O'Neill (Counsel for the Offender)
File Number(s): 2021/14326; 2021/182539
[2]
Judgment
Kane Ghoulmieh is only 21 years of age. He has spent seven years of his life in juvenile or adult custody. He appears for sentence having pleaded guilty to a number of extremely serious offences which carry significant terms of imprisonment. The sentencing exercise is complicated by the difficult subjective circumstances of this young man, to which I will return.
He has pleaded guilty to the following offences:
1. An offence contrary to s 86(2)(b) of the Crimes Act 1900 of detaining for advantage and inflicting actual bodily harm. The offence carries a maximum penalty of 20 years imprisonment with no standard non-parole period (H818569774 Sequence 1). Attached to that sequence on a Form 1 is a charge contrary to s 249K of the Crimes Act 1900 of making unwarranted demands with menaces on David Anderson (H818569774 Sequence 2). The offence carries a maximum penalty of ten years imprisonment.
2. An offence contrary to s 86(3) of the Crimes Act 1900 of detain for advantage while in company, inflicting actual bodily harm (H818569774 Sequence 3). This offence carries a higher maximum penalty of 25 years imprisonment with no standard non-parole period. Also to be taken into account on a Form 1 is an offence of make unwarranted demands with menaces on David Anderson contrary to s 249K of the Crimes Act 1900 (H818569774 Sequence 4).
3. An offence of reckless wounding contrary to s 35(4) of the Crimes Act 1900 (H818569774 Sequence 8). The offence carries a maximum penalty of seven years with a standard non-parole period of three years.
4. An offence of armed robbery contrary to s 97(1) of the Crimes Act 1900 (H80659148 Sequence 1). The offence carries a maximum penalty of 20 years imprisonment and no standard non-parole period.
R v Ghoulmieh [2022] NSWDC 470 | Case summary | Zoe
The Form 1 matters will be taken into account in the way suggested by Spiegelman CJ in the Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.
There are two matters to be dealt with on a s 166 certificate:
1. H80659148 Sequence, an offence of drive without consent of the owner on 25 April 2021.
2. H80659148 Sequence 4, an offence of drive while disqualified, also on 25 April 2021.
It is common ground that they should be dealt with by conviction but with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.
The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 must be taken into account. The maximum penalties and where applicable the standard non-parole period are of course important yardsticks in the sentencing process.
It is conceded by Ms O'Neill of counsel for the offender, that a term of full-time custody is clearly mandated, and it is unnecessary for me to consider any alternatives.
The commencement date of a term of imprisonment is a matter of discretion, bearing in mind questions of totality and accumulation, against a background of him having been released to parole in January 2021 and having his parole revoked on 12 May 2021. He served the balance of a little more than eight months of his parole period until 29 January 2022. He also served a sentence of seven months with a four-month non-parole period commencing 21 May 2021 for driving offences. It is common ground that an appropriate exercise of a sentencing discretion would place the commencement date for the term of imprisonment of 2 December 2021.
There is a co-offender, Bradley McGuinness, who is to be sentenced in this Court on 18 October 2022 in relation to only one offence. No questions of parity arise.
There are two sets of agreed facts. The first set of facts are in relation to the first three offence, involving a man named Darcy Anderson who had known the offender for a number of years.
Sometime shortly before 31 March 2021, the offender formed the view that an electric motor scooter had been taken from him by Darcy Anderson. At about 5pm, 31 March 2021 Anderson received a phone call from a person who accused him of stealing the scooter. Anderson said it was not him.
Anderson told his mother, "Two guys are after me for taking the scooter, it wasn't me". Later that day, Anderson saw the offender and the offender kicked Anderson in the chest and punched him in the head at least twice with a closed fist and he was yelling, "I know it was you that took the scooter". Anderson said he did not do it. The offender said, "If I find out you did I'm going to come back and shoot you no fucking around".
Anderson then got a call from a friend asking him to go to an address at Gari Street. He went there and he saw the offender sitting in a chair holding a rifle with a plastic bottle. It was a bolt-action rifle. There were other people there.
The offender asked Anderson, "What have you got on you?". He said, "Nothing", and he made him empty his pockets. The offender continued to accuse Anderson of stealing his electric scooter. He then held the rifle up and swung it sideways into Anderson's face causing the butt to strike his right eye. He lost his balance and fell. His eye was closed from swelling, and he could feel blood dripping out of it. Ghoulmieh said, "You owe me for the scooter and the fuck around and a grand because it was my nephew's, just admit it". Anderson admitted, he said, "Okay, I took your scooter."
There were demands about getting money from his parents. At about 1am the following morning the offender sent a message to Anderson's father saying, "I need $3,000, I stole someone's scooter". Then there was a text message sent to Anderson's mother asking for $3,000. There were further messages back and forth. The offender still had the gun, and he was saying to Anderson, "You're not leaving until I get my money".
At about 3.35am Anderson sent his father a message, it said, "Dad he thinks you're coming at 4am, I'm pissing out blood, please don't be late". After this message, the father spoke to Ghoulmieh and agreed to pay him the money.
At about 8am Anderson left the address and went to the medical centre. They sent him for an X-ray and Anderson spoke to his father who told him he was transferring money through to the offender's account.
He was taken to Charlestown Hospital. The right half of his face was swollen and purple, one eye was swollen shut. Anderson refused to go to the John Hunter Hospital saying, "They're seriously going to hurt me mum, if I don't pay the whole family is in trouble, no-one's safe".
Anderson's mother then received a phone call from Ghoulmieh. He said, "Where's the money?", she said, "I'm not paying you a damn cent, I'm spending my time taking my son to the hospital, you said he wasn't hurt". Ghoulmieh said, "Yeah well I had to hit him to teach him a lesson because he shits in his own backyard". Anderson's mother said, "Don't speak to me like that I know who you are", and he said, "Shut the fuck up you fucking mutt, if you don't shut up I'll be running through your house before you know it and I know exactly where you live".
There was some further contact with Anderson's father that afternoon, and he ultimately agreed to pay $3,000.
Anderson then went to the John Hunter Hospital with his mother and father. His injuries including two black eyes, severe swelling to the right side of his face and cheek. His right eye was completely swollen shut and his left eye was swollen and the white of his left eye was completely red.
His father then made arrangements to pay money by some form which had a $500 limit. He made five payments of $500 and one of $300, totalling $2,800 between about 4pm and 5.30pm. He then got a message from Ghoulmieh saying, "One more and we're done", and the father said, "No more I'm done paying". Over the following week, Anderson saw Ghoulmieh from time to time but there were no further issues between them.
As to the second kidnapping charge, on 7 April, Anderson again went to visit his friend at Gari Street and planned on staying the night. After about two hours Ghoulmieh arrived out residence. Anderson grabbed a backpack and put his belongings, including a meat cleaver, into it. He was trying to get out before the offender arrived.
However, Ghoulmieh came into the loungeroom, saw Anderson, and threw some punches at him which were deflected by the victim. The offender told Anderson to "empty the bag". Anderson did so, and when he pulled the meat cleaver out Ghoulmieh took it. He wanted Anderson to do a run with him on some shops for drug-dealers, but Anderson refused.
He tried to leave, but Ghoulmieh said, "No, you're not leaving, you're going to do the job with me". McGuinness was in a car with Ghoulmieh's girlfriend out the front. This was observed by Anderson. He walked to the car and got in. The car was driven by Warren. Ghoulmieh was in the front passenger seat and McGuinness in the back driver's side seat and Anderson in the back passenger's side seat.
Ghoulmieh was yelling at Anderson, "You're going to have to come up with ten grand how are you going to do it?" He was yelling at the co-offender McGuinness, "Fuck this cunt". Anderson said, "I'll try and come up with the money". McGuinness was punching Anderson in the face and body, connecting four or five punches to the right side of his head. McGuinness said, "I don't know how you're going to do it Darcy but you're in it if you don't".
Anderson was arguing with McGuinness. Ghoulmieh turned in the front seat and swung the meat cleaver towards Anderson who has blocked it with his right arm causing a significant wound. McGuinness took off his shirt and wrapped it around Anderson's arm, there was a lot of crying and yelling. Anderson was bleeding all over the back seat.
They took him back to the garage at Gari Street, sat him in a chair, duck taped his wrists together and his legs to the chair leg, then around his thighs to the bottom of the chair, taped his mouth closed and part of his nose. The victim could barely breathe.
He said to them that he couldn't breathe. Ghoulmieh tapped the meat cleaver on his head and put a drop sheet over Anderson's head and left him alone in the shed for about two hours.
A message was sent to his father during that time from his phone saying, "Dad ring me now, I need twenty K ransom or else I'm dead. Go to police, we will kill him".
They took off the sheet and took him inside, McGuinness punched him four or five times and Ghoulmieh jumped up and punched him once in the head. McGuinness said, "Get that twenty thousand to us or you're not leaving", and Ghoulmieh said, "Yeah, get the money to us".
Ghoulmieh took Anderson into the kitchen and dressed his wound with a bandage.
A message was sent to Anderson's father at about 7.15am and on the phone a male said, "We have Darcy and we want $20,000 ransom or we're going to kill him". He said, "There's no way you're going to get 20 grand from me, you guys got two and a half grand out of me last week, I haven't got it." He said, "I'm not paying for a drug deal, I've lost family and home over shit like this". The male said, "We know where you live, I know where your ex-wife and partner lives, we'll go and get them".
Both accused offered Anderson some methylamphetamine that he declined. Then McGuinness and another person walked Anderson up to Charlestown Square. He was taken to Belmont Hospital, and he was admitted for seven days. He received 14 stitches to his arm which is the subject of the reckless wounding (H818569774 Sequence 8) and the large black eye and damage to his eye socket is the subject of the actual bodily harm in H818569774 Sequence 3.
As for the final offence of armed robbery (H80659148 Sequence 1), was committed on 19 April 2021. At about 4.30am a taxi driver, Rackesh Kumar, was parked in a street in Cardiff. Ghoulmieh turned up on a motor bike with someone else and started talking to the taxi driver. He then said to the taxi driver, "Give me your money" and the driver said, "I don't have any money". Ghoulmieh pulled out a large machete style knife and was displaying it.
A co-offender was sitting on his bike next to the taxi driver and asked them what was in there and the co-offender pulled a large machete-style knife from his pants, held it up to the driver and said, "Give me your wallet now or I'll chop you right here".
He was terrified and reached into his back pocket and gave him the wallet. His Bankcard was used at an ATM shortly afterwards and $800 was withdrawn and various personal items in the wallet were left along the roadside. They were located by a member of the pubic and provided to Police.
The driving offences on the s 166 certificate they relate to him driving a motor bike on 25 April 2021.
He was arrested on 30 May 2021.
As I have said, Kane Ghoulmieh has spent significant time in custody since first coming into juvenile custody at age 13. His record is one which certainly disentitles him to leniency.
He said in evidence today that he has been classified as "E for escapee" within the Corrective Services system. He attributed this to an incident when he was 16, when upon his arrest for other offences was charged with escape police custody when he ran from police who arrested him near his home. He says that has had a long-term effect on his circumstances in custody and that he cannot have access to the full range of programs and potential work release programs. He hopes to be able to address the issue once he is sentenced and this matter has been finalised by making an application to have that condition deleted.
There is a very comprehensive and useful sentence assessment report which assesses him as being at a high risk of reoffending. It conveniently summarises his circumstances which have been fleshed out in some detail in the report of the psychologist and in evidence from the offender and his father today.
He was, prior to entering custody in May last year, homeless and moving between motels and accommodation with friends or family. He had strained familial support due to his ongoing antisocial lifestyle, but his father and partner both told the author, and his father told the Court today, that they would continue to assist him.
He completed his Year 10 education in juvenile detention.
He has had only minimal employment for short periods of time. He had been working in his brother's painting business until shortly before his last arrest and his brother has spoken highly of him and offered him further employment on his release.
He was disarmingly frank with the Correctives Officer. He acknowledged his offending commenced in 2013 and it is accurate to summarise his offending since that time as demonstrating a consistent disregard for complying with societal laws. His pattern of offending includes reckless driving and other driving-related offences, break and enter in company, stealing and violent offences.
As to the first kidnapping, he admitted that his intention was to fight the victim, but he denied he intended to detain or seek ransoms. He stated that once he feels in a rampage, he cannot find a way to stop his negative actions.
He expressed a belief that everything gets taken away from him which is a catalyst for his declining and offending behaviour. But when challenged he acknowledged that it was his initial actions and decisions that brought about a withdrawal of support, employment, and accommodation.
He admitted that he and his associate had bad intentions with respect to the armed robbery and the driving matters. He justified the armed robbery admitting that he had gambled the last of his money and was looking for any way to find money.
As he acknowledged to the Crown prosecutor today, he identified the victim as an easy target. He recognised that his peers were not pro-social and that further association with them or that type of people would result in him participating in further anti-social behaviour, but he has expressed an intention to avoid contact with that group of people upon his release.
He has recognised that he was not gaining anything from a drug-affected and criminal lifestyle and he is aware that changing his social circle is his responsibility.
His drug use commenced when he was 10 or 11 years old, and he used it as a means to feel free from the past. He was using ice daily at the time of the offence and was under the influence.
He did attend three months of rehabilitation 2016 and was open to participating in further rehabilitation programs to address his addiction.
He said that his propensity towards violence escalates when under the influence of drugs, stating that he is in possession of a weapon due to feelings of paranoia and his belief that he is always fighting someone when moving in these social circles.
Both his partner and his father said that he battled unresolved trauma which they believed was linked to his ongoing drug use and required intervention. The initial insight was minimal, but after being challenged, he was able to show some insight into the impact on the direct and indirect victims.
The psychologist sets out some further details as to his subjective circumstances. He identifies as Aboriginal; his mother is Aboriginal and his father is Lebanese. He has two older brothers who are supportive.
He was expelled from school at grade 6. He went to high school where he was expelled after a few weeks in grade 7. He did part of year 8 in a behavioural school then went into juvenile custody.
He did obtain a Certificate 3 in Bricklaying and completed a barista course.
He said he has lost trust in adults as they have influenced him negatively. He recalled times where adult men would fight with him in the streets.
His father said that around age 10 they noticed a significant change in his behaviour, and he said, "We tried everything", and said that diagnoses had been made for obsessive compulsive disorder, ADHD, and oppositional defiant disorder and although there had been tests for autism he was not diagnosed as autistic. His father also suggested that there had been diagnoses of mood disorders such as bipolar and he had attended a psychiatrist, Dr Clayworth, in 2014 but there is no more detail available as to that consultation.
There was a serious car accident as a child when he was sitting in the front passenger seat and his brother was in the back seat and was seriously injured. The offender blames himself for the positioning in the car. His father described him attempting to hang himself with a hose in the backyard when he was 12 years of age, following which he spent a month at John Hunter Hospital.
[SENSITIVE PERSONAL INFORMATION REMOVED BY REQUEST]
He started using cannabis at age 13 and began using ice when he was aged 15 and was also using Valium. Tests conducted by the psychologist show that he is experiencing severe symptoms of depression, anxiety and stress. Post-traumatic stress disorder was also diagnosed.
The formulation by the psychologist was that his participation with antisocial associates from a young age has led to challenges with developing appropriate coping strategies and likely contributed to his participation in antisocial behaviour. At the time of the offending, he seemed to be experiencing extreme dependence on the drug ice which contributed to his involvement in the offence as a means of supporting his addiction.
His inability to access psychological help following his history of difficult events further solidified the use of his maladaptive coping strategies and likely impaired his judgment, impacting his ability to think in a clear and rational manner and therefore seemed to have contributed to his behaviour. He clearly needs intensive support.
The helpful written submissions prepared by the Crown and Ms O'Neill do not show any significant difference in approach or assessment of objective seriousness of the offending.
He is clearly entitled to a 25% discount on account of the early pleas of guilty.
As to the objective seriousness of the first offence:
The offence was committed over a number of hours.
The offender was armed with a weapon which was pointed at the victim a number of times and he was hit in the face with it.
Financial gain was sought, and it was made clear to the victim by the offender that he was not leaving until money was provided.
The actual harm inflicted is, of course, an element of the offence.
It appears to have been opportunistic in the sense that there was no planning beyond the fact that the victim attended at his own volition and at the request of Mr Young who was not alleged to have been involved in what happened. Ghoulmieh happened to be at the house at Gari Street.
The offence is slightly below mid-range of objective seriousness.
As to the objective seriousness of the second kidnapping offence:
Again, there was an intent to obtain a financial benefit; initially ten thousand and then $20,000.
The actual bodily harm was caused by punches thrown by both offenders.
He was detained in a car and taken back to the house at Gari Street where he was taped to a chair, had his wrists taped together and tape around his mouth and nose so that he could barely breath.
There was no perceived debt being sought to be reclaimed.
It was motivated purely by greed no doubt following the success of the earlier detention of Anderson.
He was armed with the meat cleaver; he swung the cleaver towards Anderson causing a significant wound which is the subject of the reckless wounding offence
He was only released by the intervention of others convincing the offender that the victim needed to go to hospital.
I accept that that is around mid-range of objective seriousness.
The reckless wounding offence:
It involved a single wound to the arm requiring 14 stitches occasioned by the strike with the meat cleaver.
I accept that that is slightly below the mid-range of objective seriousness.
There are uncharged assaults set out in the agreed facts, but they do not, as Ms O'Neill points out, increase the objective seriousness of the offending.
As to the objective seriousness of the armed robbery on the taxi driver:
It is common ground that the driver was working alone at night; he was vulnerable,
There was a large machete style knife held by the offender.
He was in company of another man who was also armed with a machete and a threat made to chop the victim; and
A relatively small amount of money was taken
It is common ground that the offending falls slightly above that contemplated by the guideline judgment in R v Henry (1999) 46 NSWLR 346.
Although the Crown submits that the material concerning his early formative years should be dealt with in the way suggested by Simpson J in R v Millwood [2012] NSWCCA 2, as being relevant, but offering some limited mitigation. The additional evidence from the offender and his father today lends support to Ms O'Neill's submissions as to reduction of moral culpability and makes general and specific deterrence less significant.
His offending arose in circumstances where his drug dependence, developing at a very young age, was against a background of a lack of understanding of the dangers of drug use with poor emotional regulation skills produced by his environment. His long-standing mental health issues were pre-adolescence and that there is a clear link, as it seems to me on the evidence, between the mental health issues which led to him being expelled from schools, becoming bored, finding himself on the streets and in the company of older peers who were negative influences which led him into criminal behaviour that was difficult to manage in the light of the mental health issues.
Although offending while under the influence of drugs is not a mitigating factor under s 21A (5AA) of the Crimes (Sentencing Procedure) Act 1999, it is clear that the offending was motivated by a desire for money to purchase drugs.
It is clear that his conditions in custody will be more onerous than for the average prisoner given his mental health issues and his post-traumatic stress disorder having triggered psychological symptoms and the absence of intensive treatment programs in custody is also a matter to be taken into account.
His time in custody has been marked by significant restrictions as a result of the COVID-19 pandemic and his evidence is in line with evidence that has frequently been given over the last year or two as to these matters. He has had no personal visits except in the last few weeks from his partner. There were four months were there were no video calls permitted and he had about three to four months in the cells under complete lockdown since his arrest in May 2021. There is no significant improvement on the horizon in the light of the evidence as to the conditions occasioned by the pandemic. Hamill J said in Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186 at [47],
I reject the idea that the Court should approach the matter on the basis that the current pandemic, and its impact on prisoners, should be treated as "the new normal". Nor can I accept the implication that it is a matter worthy of little weight because all inmates are facing the same problems
He has only had about ten months in the community at liberty as an adult and the Court should bear in mind, as Ms O'Neill puts, the need to avoid a crushing sentence which involves the risk of institutionalisation of such a young man, despite such a serious array of offending over a short period of time in early 2021.
There are some grounds for optimism given his continued family support and his maturity and time for reflection in custody. But as the author of the sentence assessment report puts, he is currently at a high risk of re-offending. He needs abstinence from drugs and intensive supervision, support and treatment, hopefully while in custody and certainly for an extended period on his release.
There is clearly a basis for a finding of special circumstances, given his age, the risk of institutionalisation, his mental illness and the need for extended support.
The orders that I will make are as follows:
1. He is convicted of each offence.
2. Taking into account a discount of 25% for the pleas of guilty, the indicative sentences are:
H818569774
1. Sequence 1, taking into account the Form 1 matter (Sequence 2): 4 years
2. Sequence 3, taking into account the Form 1 matter (Sequence 4): 4 years, 6 months
3. Sequence 8: 2 years, 6 months; indicative non-parole period of 18 months
H80659148
1. Sequence 1: 3 years
1. I impose an aggregate sentence of six years' imprisonment
2. I impose a non-parole period of three years and four months commencing 2 December 2021.
3. I find special circumstances.
4. The two matters on 166 are dealt with under s10A of the Crimes (Sentencing Procedure) Act 1999.
[3]
Amendments
11 January 2023 - Sensitive personal material removed, by HH upon request at [61], [78]-[79].
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Decision last updated: 11 January 2023