R v Islam [2015] ACTSC 99

Supreme Court of the ACT|2015-04-14|Before: Burns J

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

R v Amosa [2015] ACTSC 34

R v CCC (unreported, Supreme Court of the ACT, Burns J, 19 October 2012)

R v Davies (unreported, Supreme Court of the ACT, Burns J, 17 July 2013)

R v Pumper [2014] ACTSC 223

R v RC (unreported, Supreme Court of the ACT, Burns J, 19 October 2012)

1. Isa Islam, on 2 December last year you entered a plea of guilty in the Magistrates Court to one charge contrary to s 20 of the Crimes Act 1900 (ACT), that on 18 December 2013 you recklessly did inflict grievous bodily harm on Darren Lee Cassidy. You were subsequently committed for sentence to this Court and on 3 March this year you maintained your plea of guilty to that charge. The maximum penalty for this offence is 13 years' imprisonment.

2. You have been a detainee at the Alexander Maconochie Centre (the AMC) since 2009. On 25 May 2011, you were sentenced to term of nine years' imprisonment commencing 4 July 2009 for an offence of intentionally inflicting grievous bodily harm. The victim of the present offence was also a detainee. For some reason which is not explained in the Agreed Statement of Facts, you and the victim had a long running dislike of each other.

3. At about 9.05 am on 18 December 2013, you entered a yard at the AMC where the victim was sitting on a plastic chair and there was a verbal disagreement between you during which you called the victim a dog. The victim called out to another detainee asking him to arrange for a custodial officer to attend. You then commenced to walk away from the victim at which time he made a comment to you about your recent failed bid for parole. You approached the victim and pulled him backward off the chair and used your right fist to punch him three times to the face. The force of these punches knocked the victim unconscious. The victim ended up lying unconscious, flat on his back on the floor of the yard. While he lay unconscious you stood over him, raised your leg and stomped with force on his face. Another detainee then intervened and you desisted. You left the area before going to a kitchen area and washing your hands. Your victim was left lying unconscious and bleeding heavily from the nose and face.

4. The detainee who had intervened provided first aid to the victim. He described the victim's nose as "being pushed into his head so far that it only protruded a few millimetres from his face." The victim was later transported to hospital by ambulance. He was triaged and classified as category two, indicating that his condition was considered extremely serious and he was in need of urgent care. The victim was admitted to hospital and remained in hospital for a period of four weeks, five of which were spent under intubation in the intensive care unit. He was diagnosed with facial fractures to the eye socket, cheekbone and upper jaw and nose. These injuries required surgical procedures by way of reconstructive surgery under general anaesthetic including the insertion of plates and screws. He has no recollection of these events. He has reported ongoing memory loss issues and personality changes after this event although there is no clear evidence of brain damage. A Victim Impact Statement was tendered which spoke of the victim's ongoing severe jaw pain and fear caused by this attack.

5. Your attack upon the victim was vicious and without any real provocation. I accept that the victim referred to your failed bid for parole before you attacked him but this in no way justifies or even significantly mitigates your conduct in attacking him. It is particularly reprehensible that you stomped on the face of the victim while he was unconscious and helpless on the ground. You are a much larger man than your victim and your victim was seated at the time you commenced your attack, making it impossible for him to defend himself.

6. I accept that your attack was not premeditated but nor can it be said to have been completely spontaneous. You had a short period of time from when the victim made his remark and you turned around to the time that you returned to the place where he was seated to consider your actions.

7. I acknowledge that no weapon was used in committing these offences but nevertheless a very serious injury was occasioned to the victim. Those injuries cannot be described as amongst the most serious injuries that would come within the description of grievous bodily harm but they are nevertheless very serious.

8. This attack occurred while you were already serving a lengthy term of imprisonment for an offence of significant violence, which strongly suggests the need for any sentence I impose to be such as to deter you from committing further offences of violence. Violence in prison cannot be tolerated and sentences imposed by the Court for serious offences of violence within prison must be such as will be likely to deter others from committing such offences.

9. No useful Pre-Sentence Report was available because you declined to participate in the preparation a Report on the basis you said that you believed the Corrections officer assigned to prepare the Report was biased against you. This is not a justifiable reason for you declining to participate. You could have challenged any inaccurate or unfair statement in such a Report. The fact that you challenged certain aspects of the short Report which was prepared and some aspects of the Statement of Facts reveals that you were well aware of your right to challenge the material presented by the Crown at your sentence hearing. Your unwillingness to participate in the preparation of a Pre-Sentence Report suggests an attitude of defiance inconsistent with any significant rehabilitation having been achieved during your current period of incarceration.

10. On the available evidence, I am also satisfied that you have been the subject of a number of reportable incidence and episodes of discipline in the AMC during your current sentence. I accept the evidence of the author of the short Pre-Sentence Report that you have consistently refused to participate in assessments for the violent offender program and that you have been subject to disciplinary action in the AMC because of you behaviour. Because of this you have been placed in the management unit at the AMC.

11. Whilst you have completed a number of tertiary and other courses during your time in the AMC these do not directly address the core of you offending behaviour, being your propensity to violence. I am unable to say that you are presently a good candidate for rehabilitation.

12. I accept that your plea of guilty had significant utilitarian value and it relieved the victim of having to give evidence. I note that you, very recently, on 7 December last year wrote a letter of apology to your victim, which I accept demonstrates a degree of remorse for your actions. Your plea of guilty may also be seen as reflecting a degree of remorse. Balanced against that is the fact that the prosecution case against you is overwhelmingly strong such that you had no real option but to plead guilty. Balancing all considerations I will reduce the sentence that would otherwise been appropriate by 15 per cent to reflect your plea of guilty.

13. In these proceedings the Crown tendered a copy of the sentencing remarks of Mathews AJ from 25 May 2011, which to a certain extent addressed your history and subjective features. I note that you are currently 42 years old and you were adopted at a very young age and never knew your biological parents. Your adoptive family provided a stable background for you.

14. You joined the Royal Australian Air Force (RAAF) in 1989 at the age of 16, having completed year 10 of your schooling. You remained in the RAAF until 2001, completing your year 12 studies during that time. In 1999 you were involved in a car accident in which you sustained serious head injuries. Afterwards your friends told you that your personality had changed and that you had become more aggressive and angry.

15. After you left the RAAF you spent some time in the Middle East where you converted to the Islamic faith. I note from her Honour's sentencing remarks that she obviously considered you to be a good prospect for rehabilitation at that time and you were described as a model prisoner in the AMC. I am satisfied that is no longer the case.

16. I was provided with a number of previous cases where sentences have been imposed for similar offences. In R v Pumper [2014] ACTSC 223, the victim sustained a fractured skull as a result of a single punch causing him to fall and hit his head on the ground. As such, a lesser degree of violence was involved than in the present case. The offender was a young 19 year old who had prior offences of violence albeit of a lesser nature. He had engaged in counselling and had ceased the use of alcohol. He also had mental health issues. He was sentenced to imprisonment for two years and eight months, reduced from three years and six months for his plea of guilty. That sentence was to be served by way of 12 months' periodic detention with the balance suspended.

17. In R v Amosa [2015] ACTSC 34, there was also a lesser degree of violence with the victim sustaining a fractured skull as a result of a single punch. The offender was 25 years old and had previous convictions for violence. He was assessed as at a low risk of reoffending. He entered an early plea of guilty and was given a reduction in sentence of 25 per cent as a consequence. A sentence of 3 years and 9 months' imprisonment with 1 year and 10 months' non-parole was imposed.

18. In R v RC (unreported, Supreme Court of the ACT, Burns J, 19 October 2012), the offender stomped on the head of the victim on a number of occasions, causing a large extradural hematoma requiring surgery. This was a potentially life threatening injury. The offence was committed in company. The offender was 29 years old and had an extensive criminal history including numerous matters of violence. He had an extensive history of illicit substance abuse, commencing when he was eight years old. The offender was found not to be remorseful for his actions. Sentence was reduced by approximately 15 per cent to reflect his plea of guilty. He was sentenced to six years' imprisonment reduced from seven years in order to reflect his plea of guilty. A non-parole period of four years and three months was set. I note that this sentence was upheld on appeal. I further note that the maximum penalty for the offence at that time was only 10 years' imprisonment.

19. In R v CCC (unreported, Supreme Court of the ACT, Burns J, 19 October 2012), I sentenced the co-offender of the offender in the R v RC matter to four years' imprisonment reduced from five years by virtue of his plea of guilty. The co-offender was charged with the lesser offence of aiding and abetting RC and his involvement in the offence was significantly less. In addition he had demonstrated remorse.

20. In R v Davies (unreported, Supreme Court of the ACT, Burns J, 17 July 2013), I imposed a sentence of four years and one month's imprisonment, reduced from four years and nine months by virtue of a plea of guilty for a one punch assault in the AMC resulting the victim's loss of an eye. The degree of violence involved in that case was less than the present. The offender was 27 years old and had a childhood marred by violence. He commenced substance abuse at an early age but had shown willingness to participate in appropriate rehabilitate courses in custody.

21. Whilst these prior sentences provide some guidance as to sentences which have been imposed in the past, none of them are directly applicable or directly equate to the current offence. The closest, in my opinion is the sentence which was imposed in the R v RC.

22. In my opinion, a sentence of six years' imprisonment reduced from seven years on account of your plea of guilty is appropriate.

23. Section 72 of the Crimes (Sentencing) Act 2005 (ACT) prescribes that a sentence for an offence which occurs in custody is to be served consecutively with any other sentence unless the court orders otherwise. I see no reason why I should make an order that the sentence for this offence of recklessly inflicting grievous bodily harm should be served concurrently or partly concurrently with the sentence that you are currently serving. In addition, an increase in the proportion of the non-parole period to the aggregate head sentence is warranted. At the time that you were sentenced by Mathews AJ, you were thought to have good prospects for rehabilitation and to be unlikely to reoffend. The same cannot be said now.

24. For the offence of recklessly inflicting grievous bodily harm I record a conviction and you are sentenced to 6 years' imprisonment commencing on 4 July 2018 and expiring on 3 July 2024. The aggregate head sentence including the sentence that you are currently serving is therefore one of 15 years' imprisonment. I set a non-parole period of 9 years and 6 months commencing on 4 July 2009 and expiring on 3 January 2019.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

(Sentencing) Act 2005

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