R v James [2011] VSC 596

2 I sentence you according to the facts implicit in the jury's verdict. Otherwise, I must be satisfied beyond reasonable doubt of facts which are adverse to your interests and on the balance of probabilities in relation to any which I take into account in your favour.[1]

3 Before turning to the circumstances of your offence, I note that I did not find Khadr Sleiman a persuasive witness. I accept his account of events only in so far as it is supported by other persuasive evidence. Similarly, I was not convinced by the evidence of your account of events to police and I accept it only where it is supported by other evidence which I do accept.

4 On the other hand, I accept the evidence of the witnesses who had the traumatic experience of witnessing all or some of the events that night.

5 There was a dispute between you and Mr Sleiman about an alleged debt of $10,000. I am not satisfied that Mr Sleiman actually owed $10,000 to you, as a matter of law, but I do find that you believed that he did and that you had been demanding payment of that sum by him.

6 You had incensed Mr Sleiman by your claims and by trying to contact him through his elder brother and his nephew. He telephoned you on the night of 26 April 2007 and you arranged to meet at short notice at the Highpoint Shopping Centre. He spoke angrily on the phone. You drove your 1996 white Mazda Bravo utility into the public carpark at Highpoint in a way that appeared recklessly fast to witnesses. You pulled up near Mr Sleiman and saw that he was carrying a knife which was about 30 cm long.

7 You told police that Mr Sleiman 'came at' you with the knife, but I am not satisfied as to what he did with it, apart from holding it where you could see it. I am not satisfied on the balance of probabilities that he 'menaced' you with his knife or that he came to the driver's door of the utility and tried to stab you, as your counsel submits. I do, however, find that you probably saw the production of the knife as threatening behaviour in the circumstances. I reject Mr Sleiman's evidence that he kept his knife down the front of his pants, out of sight throughout.

8 There was a young female witness to the events. She saw a man get out of the passenger side of your vehicle. Shortly afterwards, she saw someone get into it on the driver's side. You then reversed and manoeuvred the utility jerkily forward and backwards a metre or so several times, revving its engine. You later told police that you avoided Mr Sleiman, who was at the side of your vehicle, and drove away. The jury's verdict indicates, however, that it concluded that you intentionally drove at him when he appeared to the witness to be trying to get away from his position about a metre from the front of your vehicle. I am satisfied that this is what occurred.

9 Your utility hit Mr Sleiman, throwing him what appeared to the witness to be a few metres into the air. You did not stop, but proceeded to drive over him as he lay on the ground. You used your vehicle in effect as your weapon to seriously injure your victim. You then drove off - again recklessly speeding in the witness's opinion - across a nature-strip and a footpath to get back onto the roadway to leave the scene.

10 These events happened within a short space of time. Whilst I am satisfied that you intended to cause Mr Sleiman serious injury by driving your vehicle at and over him, I am not satisfied that your actions were premeditated in the sense that they were planned before you met him in the car park.

11 The young female witness and her mother and sister came to Mr Sleiman's aid and called an ambulance. His legs appeared 'mangled' to the witness and there were bones protruding. He was distressed and struggling to breathe. An ambulance arrived. Mr Sleiman's knife was found under him on the ground when he was moved.

12 Mr Sleiman was very seriously injured as a result of the combined effects of the impacts . He suffered :

(a) haematomas of the right chin and left eye socket;

(b) a small subdural haematoma and post traumatic amnesia;

(c) abrasions over his left scalp, left forehead and left eye regions;

(e) fractures of the tip of the back of his skull, three neck bones on the left side, his left collarbone (with bruising and abrasions), his pelvis bilaterally (with a large pelvic haematoma), his lower back, his left pubic bone, his hip joints, bilaterally, his sternum (with associated bruising), seven of his twelve right ribs and eight of his twelve left ribs;

(f) flail segments, where areas of his ribs and chest wall did not move normally with the rest of the chest wall because of so many breaks around those areas;

(h) surgical emphysema, where air collected outside his right lung tracking into the tissues;

(i) bilateral haemopneumothoraces, or blood collections in collapsed lung cavities;

(m) a very serious grade four (out of five) laceration to his left kidney.

13 Mr Sleiman needed transfusions of blood, platelets and plasma, drains into the chest bilaterally, intubation and sedation for management of his injuries. He underwent a number of surgical procedures and his wounds were sutured. He also developed complications, including chronic inflammation of the gall bladder which necessitated a drainage tube. He developed a bacterial infection and wound breakdowns in his left ankle, requiring multiple surgical washouts.

14 His neck fractures required him to wear a neck brace for six weeks. He developed avascular necrosis of his ankle bone, so that parts of the bone died. He required long-term antibiotics and has had subsequent problems with movement of his left ankle. He developed a complex regional pain syndrome in his left foot. He fears leaving home and being left alone.

15 He spent five weeks in hospital and a further three months in rehabilitation. He cannot walk, some four years later, and has been wheelchair bound ever since he was injured, as he cannot place any weight on his left foot. He hopes to walk again and continues to have physiotherapy treatment. He needs medication to sleep and to get out of bed.

16 Mr Sleiman's wife, Ms Josline Sleiman, made a Victim Impact Statement, describing herself as shattered and traumatised as a result of the accident. She was 22 years old and had been married for two years when she received a telephone call telling her that her husband had been run over. She had a 10 month old baby girl and was pregnant with a second child. After Mr Sleiman came home, she has had the added burden of his personal care.

17 Ms Sleiman describes her sadness at her husband's inability to do things for himself or to be active with his young children. He needs assistance with everything and has lost his independence and fears for the family's safety. She finds him afraid to mix with others and says that he suffers pain and fatigue if he does go out for a short time. Their lives have been irreversibly changed by the effects of your offence on Mr Sleiman and nothing can compensate them for that.

18 I turn now to your personal circumstances as set out in a report dated 16 September 2011 from Dr Aaron Cunningham, a forensic psychologist.

19 You are 46 years old and were born in Tripoli, Lebanon, on 15 March 1965. Your family came to Australia when you were seven. You had three brothers and one sister. Your father was an artist and university teacher and violent towards all family members. Your mother was a midwife who administered severe physical punishment. You did not report significant emotional connection with either parent. Your parents divorced and you lived with each during a custody dispute. Your mother moved to Melbourne. You spent the bulk of your teenage years with your father in Sydney.

20 You were educated to Year 10 level at St James Secondary School in East Bentleigh. You then worked to support your mother before moving to Sydney, aged 17, for a mechanical apprenticeship which you completed in Melbourne. At the age of 18, you were wounded when your brother accidentally discharged a shotgun. It took three years for you to recover. For seven years, you worked making brake pads at McKay Rubber.

21 You subsequently ran the 'Magic Hand Motor Mechanic' business in partnership with a friend for five years. You completed a mechanical engineering certificate through Sale TAFE. It was at Magic Hand that you came across Mr Sleiman again, after many years. Five years into the business, your friend and partner committed suicide by hanging himself. You told Dr Cunningham that you 'lost everything' in relation to the business and that the incident 'destroyed' you. Your sister also told Dr Cunningham that you have not fully recovered from finding your partner dead. She described you as 'suicidal' for a time.

22 Afterwards, you slowly started working with friends, doing roadside mechanical work. In September 2011, when you spoke to Dr Cunningham, you were working part-time with your electrician brother and with a brother-in-law in a roofing business.

23 You first married at 19. This marriage lasted eight years and you have a 26 year old son from it. The marriage broke down after you lost a four year old daughter to leukaemia. You had a second four year relationship resulting in twin daughters who are now six years old. You have been with your current supportive partner for three years and have just had a baby son.

24 You told Dr Cunningham that you didn't use alcohol or illicit substances. Dr Cunningham found no mental illness although you were understandably anxious about being sentenced. On psychometric testing, he found you to be in a 'Low-Average' range of intelligence.

25 Dr Cunningham also found that testing revealed that, on a three point scale of 'Low', 'Moderate' and 'High', you presented a 'Low-Moderate' risk of future violent offending. He concluded that you met criteria for 'Previous Violence', 'Employment Problems' and 'Early Maladjustment' and demonstrated 'Lack of Insight' and 'Negative Attitudes', as well as 'Exposure to Destabilisers'.

26 Dr Cunningham considers that your motivation to play a role in your new son's life, your continuing contact with your other children and current stable relationship may reduce your risk factors, assist your stabilisation in the community and increase your psychological functioning. He also thinks that psychological intervention might benefit you.

27 Sister Mary O'Shannassy is the Director of the Catholic Prison Ministry Victoria. In a letter to the Court, she describes you as 'deeply affected by the circumstances relating to [your] incarceration', and as having been 'deeply troubled by the incident when a man came to [your] car whilst [you] were driving.' You have gained strength from Catholic Mass attendance and interaction with the Chaplaincy Team and other prisoners afterwards.

28 On 27 October 2000, at the age of 35, you were convicted on three counts of trafficking amphetamines and received a total sentence of three years' imprisonment, twelve months of which was wholly suspended for three years. Four years later, on 4 October 2004, at the age of 39, you received a four month intensive corrections order for burglary and theft offences.

29 Counsel argues that you encountered 'significant and unusual' provocation in the lead up to your offence. He relies upon the alleged debt, Mr Sleiman's alleged avoidance of you and him having armed himself with a knife to meet you that night.

30 'Provocation' giving rise to an angry or passionate response may be taken into account as a mitigatory factor in sentencing.[2] Counsel cites Dow v R[3] where the significance of provocative behaviour was recognised as a sentencing consideration. Each case must, of course, be considered in light of its own facts but I note my view that there was much more significant provocation offered in Dow than that constituted by Mr Sleiman's failure to repay a debt and by him bringing a knife to your meeting.

31 I am not satisfied as to the extent, if any, to which your response to Mr Sleiman was a passionate or angry reaction to provocative behaviour on his part. Your behaviour was more measured. You did not drive at and over him immediately. Rather, you stopped and then allowed sufficient time for someone to be seen to get out of the vehicle and for someone subsequently to be seen getting into it. Only after that, did you manoeuvre your vehicle into a position from which you drove at Mr Sleiman who was apparently attempting to move from where he was standing in front of you. You also did not claim to have been provoked to injure Mr Sleiman in anger or passion when you were later interviewed by police.

32 Counsel argues that you have good prospects of rehabilitation, citing the factors listed by Dr Cunningham and your lack of prior convictions for violence. He argues that you have achieved a relatively stable home environment, despite your difficult background and somewhat unsettled relationship history. He describes you as industrious, as you have managed to maintain manual work for most of your adult life. I take all these matters into account in your favour, including the fact that your first conviction was not until you had reached the age of 35.

33 It is common ground that yours is a serious example of the offence. Both counsel make submissions as to the appropriate sentence. Senior counsel for the Crown urges the Court to consider a head sentence of between nine and ten years' imprisonment and a non-parole period of seven to eight years. Counsel on your behalf argues that a sentence in the order of six years with a minimum term of four years would be appropriate, given that your offence is a more serious example than one which would be expected to attract a sentence within the median range.[4]

34 I too regard your offence as a serious example of the crime. You acted in the belief that Mr Sleiman owed you $10,000 and that he was avoiding your collection attempts. Even if you were angered by his failure to repay or by him meeting you holding a knife, your actions in running him down and running over him causing serious injury were completely unacceptable. You intentionally used your vehicle effectively as a weapon to inflict serious injury upon him in a public place where the incident was able to be seen by a young witness who has found the experience a continuing source of trauma. I am satisfied that you would have been aware of the likelihood of serious harm to Mr Sleiman as a result of him being hit sufficiently hard by your utility to be thrown into the air and then being run over as he lay on the ground.

35 Although the effect of the jury verdict is that you intended to cause Mr Sleiman a serious injury, rather than the specific injuries he suffered, my findings as to the ongoing, life-changing effects of your actions upon him are also to be taken into account in sentencing you.[5]

36 Whilst there are factors which will promote your rehabilitation, I note that you are a mature man who was not deterred from serious criminal behaviour in a public place by your relatively recent experience of the criminal justice system, any stabilising effects of parenthood and supportive relationships or your good work history. The sentence I impose must take account of the need for specific, as well as general, deterrence. It goes without saying that there is no place for behaviour such as yours when a debt is being pursued; your criminal actions must be denounced and you must be justly punished for them.

37 You do not get the benefit of any expressions of remorse for your serious wrongdoing. I note that I consider your reported statements to Sister Cunningham to be equivocal in that regard. In your trial, as you were entitled to do, you maintained your innocence, so you do not get the benefit of a plea of guilty.

38 I will sentence you to eight years and six months' imprisonment and fix a non-parole period of six and a half years.

39 I declare that the period of 171 days during which you have been in custody, including today, be reckoned as a period of imprisonment already served under the sentence imposed under s 18(1) of the Sentencing Act 1991. I order this declaration to be noted in the records of the Court.

[1] R v Storey [1998] 1 VR 359, 371 (Winneke P, Brooking and Hayne JJA and Southwell AJA).

[2] Okutgen v R (Unreported Court of Criminal Appeal, 9 December 1982, 5, Starke J (Crockett and O'Bryan JJ agreeing); Dow v R [2010] VSCA 274 [15] (Ashley JA, Weinberg JA agreeing).

[3] [2010] VSCA 274.

[4] The Victorian Sentencing Advisory Council reports that 50% of charges of Intentionally Causing Serious Injury attracted sentences of between two and five years: Sentencing Advisory Council, 'Causing Serious Injury-Recklessly and Intentionally Current Sentencing Practices' September 2011, p 8.

[5] See sub-ss 5(2) (c),(daa) and (db) Sentencing Act 1991.