HIS HONOUR: Abraham Kbayli stands for sentence as a consequence of having pleaded guilty to three offences. Two of the offences are each of affray. The third offence is assault occasioning actual bodily harm committed whilst in company. Each of the offences occurred in the early hours of Sunday 8 September 2013. The first affray occurred in the Opera Bar at the Sydney Opera House. The second affray occurred shortly thereafter in the carpark of the Sydney Opera House. The assault occasioning actual bodily harm upon Isaac Parry, in company, occurred during the second affray.
To the first affray the offender pleaded guilty in the Local Court on 19 February 2015. To the second affray the offender pleaded guilty on 21 September 2016, on the third day after a jury trial was due to commence. The plea to assault occasioning actual bodily harm in company was entered on that same day.
The proceedings in the Local Court commenced shortly after 8 September 2013. There were 20 appearances in the Local Court prior to the offender's being committed for sentence on 29 June 2015. The plea of guilty to the first affray at the Opera Bar in the Local Court on 19 February 2015 could not be seen to be a plea of guilty at the earliest available opportunity, but was prior to committal. It entitles the offender to a discount of 25 per cent for the utilitarian value of that plea. The fact that the offender is entitled to a 25 per cent discount was conceded by the Crown.
I have been told from the Bar table by Mr Smith, who appears for the offender, that he did not realise that the Crown was alleging two different affrays and that, had he done so, he would have advised the offender to plead guilty to the two counts of affray, the affray at the Opera Bar and the affray in the carpark. Having considered the background of the matter I accept that that is a reasonable explanation for what occurred and therefore I intend to give the offender a discount of 25 per cent in respect of each of the counts of affray.
In respect of the assault occasioning actual bodily harm the plea was clearly entered very late. True it is that the offender was charged with a more serious offence and that the plea which he entered occurred after plea bargaining. However, there is no evidence to suggest that antecedent to 21 September 2016, in particular while proceedings were still in the Local Court, that the offender agreed to plead guilty to assault occasioning actual bodily harm in company. I therefore accede to the Crown's submission that in respect of the assault occasioning actual bodily harm in company the offender is only entitled to a discount of 10 per cent for the utilitarian value of that plea.
The facts of the matter, in broad terms, are very well known to me. On 2 December 2016 I sentenced two of the offender's co-offenders, George Chambour and Youssef Khallouf for their part in the events at the Sydney Opera House in the Sydney Opera House carpark on Sunday 8 September 2013. That sentence has been uploaded: Regina v Chambour; Regina v Khallouf (No 5) [2016] NSWDC 379. It ought be obvious from that citation that prior to sentencing Chambour and Khallouf I had delivered four earlier interlocutory judgments prior to their pleading guilty. However, agreed facts often can differ and I must sentence the current offender on the basis of the facts agreed to by him and by the Crown.
On the evening of Saturday 7 September 2013 Mr Kurtis Pattison was at the Opera Bar at the Sydney Opera House to celebrate his birthday. With him were Mr Patrick White, Ms Peggy-Lee Greenwood, Ms Rebecca Greenwood, Mr Robert Ragonese, Mr Michael Higgins, Mr Chris Pattison (his brother), Mr Thomas Crossling, Mr Durant Brown, Mr Isaac Parry and Mr Christian Hazel. This group may be described as the Pattison group. There was another group present at the Opera Bar at the Opera House on the same evening. The parties have agreed to call that group the Barakat group. Amongst others it comprised Mr Ahmed Barakat, Mr Mahmoud Barakat (his cousin), Mr George Chambour, Mr Youssef Khallouf, Mr Abraham Kbayli (the present offender) and Mr Ali Selman.
From the ERISP interview that the offender gave on the morning of 8 September 2013 it appears that Mahmoud Barakat was a friend or acquaintance of Mr Kbayli. The parties have agreed as to what relevant persons were wearing at the time of the offences now in question. It is only necessary to recite that the current offender was wearing a shirt described as purple and having a collar. It had long sleeves and he was wearing dark navy jeans and black shoes.
At about 12.20am on Sunday 8 September 2013 Chris Pattison, Isaac Parry, Thomas Crossling, Durant Brown and Christian Hazel commenced to leave the Opera Bar. As they walked through the Opera Bar CCTV footage reveals that Christian Hazel bumped into Ahmed Barakat and a woman who was walking with him. Ahmed Barakat pushed Mr Hazel aside and he and the lady with whom he was continued to walk forward into the bar service area. Mr Hazel and those with whom he was walking continued to walk in their original direction but Mr Hazel turned to his left and said a few words in the direction of Ahmed Barakat. What those words are no one knows. Ahmed Barakat did not respond to whatever was said to him.
However, at this time the present offender walked towards Mr Hazel. Ahmed Barakat then followed the offender. Mr Hazel stopped and stood looking towards the offender. The men with Mr Hazel also stopped and turned to look in the direction of the offender. The offender walked straight up to Mr Hazel and threw a right hand punch at Mr Hazel. The punch hit Mr Hazel's face. Mr Hazel stumbled backwards. Durant Brown, one of the Pattison group, punched the offender's head, knocking him to the ground. As a result the offender quickly developed a large swelling around his left eye. Photographs taken at the time of his arrest and shortly thereafter show a very large left periorbital haematoma. Indeed, it was a very fine black eye and eventually police took the offender to see an ophthalmic surgeon in case he needed treatment. Once the offender fell to the floor members of each of the groups rushed from various parts of the Opera Bar towards where the fight had begun and they also engaged in fighting. That constitutes the affray in the Opera Bar.
Security employees arrived, intervened and separated the two groups of men. The fighting then stopped, but only for a short while. A few seconds later Ahmed Barakat ran back toward the Pattison group and threw a punch at Mr Chris Pattison. The affray recommenced. George Chambour, one of the men in the Barakat group, threw a chair into the melee. It struck Mr Steven Yarza on the head. Mr Chambour was then restrained by a bartender, Mr William Collins, and was essentially arrested or held, such that he could not participate further in this affray. CCTV footage shows that during the fight Youssef Khallouf stood to the side of the fight and produced a knife from his pocket which he held by his side. However, he quickly returned the knife to his pocket and there is no suggestion that the knife was used at that time. The security employees then broke up this affray for the second time, and parted the two groups.
The Pattison group then left the bar and walked towards the carpark. The present offender, accompanied by Mahmoud Barakat and Youssef Khallouf and others then moved past the security guards and followed the Pattison group towards the carpark area. A labelled colour still photograph from camera 33 in the carpark area exposed at 20 minutes and 27 seconds after midnight clearly shows that the person leading the Barakat group in pursuit of the Pattison group was the present offender. At a point somewhere between the Opera Bar and the carpark, Mr William Collins and the bartender who had previously restrained George Chambour saw this offender take a knife out of his pocket. Mr Collins then yelled out "Purple shirt has a knife". Other witnesses at different stages refer to the presence of a knife or knives. The present offender is the only one of a number of offenders who has admitted to being in the possession of a knife on this night or using it.
In the vicinity of the carpark lifts, Mr Kbayli, leading the Barakat group, pushed Mr Michael Higgins with his left hand. He then advanced towards Kurtis Pattison and shoved him. Mr Kbayli then walked in the direction of Chris Pattison. The CCTV footage then shows the arrival of Mr Chambour who punched Mr Higgins. A witness, Durant Brown, heard a male voice call "Get the knife Yusef" and also "Give me the knife, Yusef". Yusef is only an alternative transliteration of the Arabic which is usually transliterated as Y-O-U-S-E-F-F, the first name of Khallouf. This is clearly a reference to Youseff Khallouf having in his possession at some stage a knife.
Mr William Collins then saw a man who was half the size of the present offender and who was wearing a striped shirt take the knife from the current offender. However, this offender subsequently used a knife in his assault upon Isaac Parry. The CCTV footage then shows the groups travelling out of sight to the right down the ramp into the carpark area. A little later the CCTV footage depicts others joining in the pursuit and, in particular, shows Mr Khallouf running towards the group. The group then moved from right to left, into the sight of the CCTV cameras. In essence, they were moving up the ramp to the left of the camera. In that footage the current offender, and Khallouf are seen as they advanced towards Chris Pattison who was running backwards, away from them. This amounts to the affray in the carpark. The action then moves out of sight of the CCTV cameras to the left.
The bartender, William Collins, then saw Chris Pattison falling over the bonnet of a blue vehicle and being attacked by Khallouf who was punching him with his left hand and using a stabbing motion with his right hand in which he is said to have held a knife. As a result of that Chris Pattison received wounds to his hands. Kurtis Pattison then ran to his brother's assistance. He attempted to remove a male who was near his brother. However, he was stabbed in the right upper inner thigh by Mr Khallouf who had fallen to the ground. This merely shows the extent of the affray. Mr Isaac Parry then ran at the current offender to try to get him away from Chris Pattison. The offender swung around with the knife and "cut" Mr Parry on the right forearm and on the wrist of his left middle and little fingers. That is the assault occasioning actual bodily harm in company. I have put words "cut" in inverted commas because that is the term used in the agreed facts. However, the agreed facts go on to state that Mr Isaac Parry did not require any medical treatment. I would also point out that there is no statement before me from Isaac Parry and there is no photographic evidence of the "cuts". There is no evidence that Mr Parry even needed the application of a Band-Aid. It appears to me from what the parties have agreed that these "cuts" could be little more than scratches.
The agreed facts go on to say that Mr Robert Ragonese saw George Chambour armed with a knife and that he was punching Patrick White. Patrick White was found to have sustained a very deep wound into his left buttock as a result of that interaction. I should indicate that the agreed facts between the Crown and George Chambour are somewhat different.
About three minutes after the Pattison and Barakat groups entered the car park, police arrived in the car park and arrested the current offender and George Chambour. Mahmoud Barakat, Youssef Khallouf and Ali Selman left the car park and walked along the waterfront towards Circular Quay but they were arrested by the police when they were doing so. Police located a knife in the Opera House car park, a short distance from the area where the various stabbings occurred, that is up the ramp from the area where the CCTV cameras were. However, no one's fingerprints were obtained from that knife and it is completely unclear, indeed unknown, as to which offender used the knife and I could not find that it was the knife that was used, for example, by the present offender.
The present offender participated, as I indicated earlier, in an electronically recorded interview. It is agreed between the parties that the offender admitted to throwing a punch because he, himself, had been punched but denied stabbing anybody. He denied knowing about anyone having been stabbed. It is clear that the offender, on the facts agreed, did not indeed stab anybody.
The agreed facts also record the injuries sustained by both Chris Pattison and Kurtis Pattison and Patrick White. They ought be well known to the current offender and are set out in my earlier sentence decision and I do not need to reiterate them. As far as those more serious injuries are concerned, both George Chambour and Youseff Khallouf pleaded guilty to charges of reckless wounding in company, a more serious offence than assault occasioning actual bodily harm. Youssef Khallouf pleaded guilty to reckless wounding in company of Kuris Pattison. George Chambour pleaded guilty to reckless wounding in company of Patrick White. The significance of the injuries suffered by Chris Pattison and Kurtis Pattison and Patrick White are the extent of the affray in the Opera House car park, to which the offender has pleaded guilty.
I turn first to consider the gravity of the offence of assault occasioning actual bodily harm in company. For that offence, Parliament has prescribed a maximum penalty of seven years imprisonment. There is no standard non parole period. However, the offence can be dealt with in the Local Court and, if dealt with in the Local Court, the maximum penalty that can be imposed is imprisonment for two years. The maximum penalty for assault occasioning actual bodily harm is imprisonment for five years but, again, that offence can be dealt with in the Local Court, in which case the maximum penalty is imprisonment for two years.
The vast majority of cases of assault occasioning actual bodily harm, are dealt with in the Local Court. The statistics currently available, that is between July 2012 and June 2016, a period of four years, indicate that 16,010 people were sentenced by the Local Court for assault occasioning actual bodily harm. Of that total, about 19%, less than 3,000, were sentenced to imprisonment. The median penalty was a bond to be of good behaviour. For those given a bond, to be of good behaviour, the median period of the bond was 15 months. The bonds, generally, were between 12 months and 24 months. For those sentenced to imprisonment, the median head sentence was 12 months, with a median non-parole period of six months.
During the same period, that is the four years between July 2012 and June 2016, 538 people were sentenced in the Local Court for assault occasioning actual bodily harm in company. Of those 538, 32%, were sentenced to imprisonment. The median head sentence was twelve months and the median non-parole period was seven months.
The law distinguishes between common assault, assault occasioning actual bodily harm and assault occasioning grievous bodily harm. To be guilty of common assault, one does not need to inflict any injury or cause any hurt, one needs only to put somebody in fear. Actual bodily harm can be some hurt that is more than transient or trifling. A slap across the face, which might cause some temporary reddening of the cheek, would not be actual bodily harm, but things such as scratches, bruises, grazes, black eyes and cuts are typical examples of actual bodily harm. Grievous bodily harm is any really serious injury. It is a question for the tribunal of fact, a judge sitting alone or a jury, to decide whether the harm done to a victim of a crime amounts to grievous bodily harm or actual bodily harm and my experience over the last 12 years is that juries generally require something more than a simple fracture of a bone in the body to accept that the harm suffered by a person is a grievous bodily harm.
In any sentencing exercise, the extent of the harm suffered by the victim is a very important consideration. Here, the harm suffered by Isaac Parry was some "cuts", which did not require any medical treatment and, as I said, amounted merely to scratches. If that were the only criterion, then a custodial sentence would not be called for.
The Crown submits that a custodial sentence is called for because of the use of a knife. A knife is clearly an aggravating factor. The Crown referred me to a number of decisions. They were:
R v Watt (unreported, 2 April 1997, NSWCCA);
R v Hampton [1999] NSWCCA 341;
R v Dickinson [2004] NSWCCA 452 and
R v Reid [2005] NSWCCA 309; (2005) 155 A Crim R 428.
They clearly establish that the use of a knife is an aggravating factor. However, the facts of the cases need to be seen in context, as well as the dicta.
I have not been provided with R v Watt. However, it is cited in R v Dickinson. Leaving aside Watt, the earliest decision is R v Hampton. The sentence, in that case, had been passed by Latham DCJ (as her Honour then was). Her Honour had imposed a sentence of three years imprisonment, with a non-parole period of two years and three months, in respect of an offence of assault occasioning actual bodily harm. There was a second offence, of the same nature but in respect of that offence, her Honour passed a term of imprisonment of one year wholly concurrent with the non-parole period for the first offence. Her Honour also took into account a further charge of assault occasioning actual bodily harm and an offence of common assault on a Form, which we would now call a Form 1.
The principal judgment was given by Hulme J, with whom Stein JA and James J agreed. At [4], Hulme J cited the reasons of Latham DCJ. She had said this:
"The offences arose out of an association between the prisoner and two women, namely Mary Ann Turner and Cheryl Waight. The three women met by chance on the morning of 31 December 1997 in Glebe, where an argument developed and a struggle took place between the prisoner and Ms Turner. The prisoner punched Ms Turner to her face, head and body, resulting in the scratching and bruising. Those injuries are the subject of a second count in the indictment.
Ms Waight came to Ms Turner's assistance. Shortly thereafter, the ignition keys from Ms Waight's motor vehicle were removed and came into the prisoner's possession. The prisoner was followed by Ms Turner and Ms Waight, in an attempt to have the keys returned. The prisoner threw the keys onto the roadway. While Ms Waight was in the act of retrieving the keys, the prisoner produced a knife and Ms Waight sustained two stab injuries to the back in the course of a further assault by the prisoner. Those injuries are the subject of the first count in the indictment.
Ms Waight grappled with the prisoner and took hold of the knife blade, thereby sustaining a further cut to her left hand. That injury is the subject of one of the Form 2 matters, namely an assault occasioning actual bodily harm, the other being a common assault upon Ms Turner".
The knife in question was a common kitchen knife with a six inch serrated blade. At [9], Hulme J pointed out that Ms Turner finished up with grazes to her knees and an elbow, soreness of her jaw, hair pulled out and scratches to her face, the longest of which stretched from about eye level to her jaw. In [10], his Honour pointed out that the assault on Ms Waight was unprovoked and occurred when her back was turned, when she was seeking to retrieve her keys. Those wounds lead to her hospitalisation and "substantial exploratory surgery".
In [10], Hulme J said this:
"Furthermore, in her description of the incident, her Honour was entitled to take into account the fact that during the incident the applicant was armed with a knife. I have said before that the presence of any such weapon, in an emotionally charged situation, raises the stakes greatly, both in terms of danger created and in terms of the penalty, which is liable to be imposed. For years, the Courts, and more recently Parliament, has done what it can to discourage the presence of such weapons".
At [15], his Honour said this about the applicant for leave to appeal in that case:
"The applicant's record can only be described as appalling. Her drug addiction is no doubt the explanation for many of her offences of dishonesty, but frequency of her offending is mind boggling. That offending commenced at the age of 12, when she was placed on probation for twelve months. After having been placed on a recognisance or probation on five separate occasions, she was first committed to an institution in December 1982, when aged 16. There have followed 27 further separate occasions when courts have sentenced her to imprisonment, many times for more than one offence. Generally, and perhaps to her credit, her record displays little propensity for violence, although it is appropriate to record, in May 1991, she committed the offence of assault occasioning actual bodily harm and in November 1991, was sentenced to three months imprisonment, on two counts of assault. The vast bulk of her other offences are offences of dishonesty. However, she has also been convicted on numerous occasions of driving whilst disqualified and driving an unregistered and uninsured vehicle. Judge Latham was quite entitled to regard the applicant's offences in this case as but another instance of contumelious disregard for society's mores, as exemplified in the criminal law".
That background must be compared to that of the current offender, who comes before this Court as a man of prior good character. The facts of R v Hampton are clearly very different to the facts of the current offence.
R v Dickinson was a crime of malicious wounding with intent to do grievous bodily harm. That is a much more serious offence than the offence committed by the present offender. The offender in that case, although probably motivated by passion, threatened, first, his former girlfriend's then current boyfriend, whose name was Pennell. The offender went to his former girlfriend's house and confronted Mr Pennell. The judgment continues thus:
"Mr Pennell went to the front door and, as he did so, bent to tie his shoelaces, holding the screen door open with one knee. At that moment the offender drove up in his car, stopped the car and got out. He went for Mr Pennell with a carving knife, which he held in his right hand, about level with his head. In order to stop himself from being stabbed, Mr Pennell took hold of the blade of the knife with both hands. Even so, the tip of the knife came into contact with his chest and caused a superficial cut. The offender kept pushing with the knife and Mr Pennell kept a firm hold of the blade. The cutting edge of the blade was against the palm of his left hand and as the two men struggled, the knife inflicted a very serious injury on Mr Pennell's hand".
At [7], Barr J, with whom Wood CJ at CL and Simpson J agreed, said:
"Mr Pennell was taken by ambulance to hospital, where these injuries were noted; namely, a minor laceration to the right anterior chest, a minor laceration of the palm of the right hand and a flap laceration of the left hand, extending down the thumb, deep through the muscle bulk. There was also a laceration of the proximal phalanx of the middle finger. He was taken to the operating theatre, on the following day and there was noted to be a 70% laceration of the large muscular body, at the base of the left thumb [the thenar eminence]. The laceration was repaired and the middle finger wound was explored".
In the following paragraph, his Honour pointed out that the victim in that case was left with permanent scarring. Again, the extent of the damage done to the victim was much more substantial than anything that happened to Mr Isaac Parry.
Commencing at [23], his Honour said this:
"23. No doubt many, and perhaps most, malicious wounding charges involve the use of a weapon, but it is not necessary that they do so and the use of a weapon is not an element of any such offence. This Court has frequently observed that the use of a knife is a feature which specially aggravates the seriousness of an offence: (see R v Underhill (CCA, 9 May 1986, unreported) and R v Watt (CCA, 2 April 1997, unreported). Both are cases of malicious wounding with intent to do grievous bodily harm, in which knives were used.
24. In my opinion, the respondent's use of a knife aggravated his criminality and should have been so regarded".
His Honour went on to point out that the maximum penalty for the offence there in question was imprisonment for 25 years and that there was a standard non-parole period of seven years. The Court of Criminal Appeal allowed the appeal against a decision imposing a two year suspended sentence and sentenced the offender to imprisonment for a fixed term of two years and two months, to be served by way of periodic detention.
R v Reid was another case of malicious wounding with intent to do grievous bodily harm. Again, the maximum penalty was 25 years imprisonment, with a standard non-parole period of seven years. Payne DCJ, had imposed a sentence of six years and nine months, with a non-parole of four years and eight months. The appeal against severity of the sentence was ultimately dismissed. In that case the offender and the victim were in a defacto relationship. There was what was clearly a domestic dispute. The trial judge's reasons, cited at [4], of the reasons for judgment of Sully J said this:
"The prisoner started becoming very aggressive and shouting at the victim. He went into the kitchen and removed a large knife from a rack that was hanging off a cupboard. The prisoner waved the knife at the victim, whilst the victim was still sitting at the table. The prisoner then shouted, 'Die you cunt' and slashed down the victim's face, causing a deep laceration from the left side of the top of the victim's nose, down to the bottom of the right side of her chin. The prisoner pushed the knife towards the victim's throat. The victim then grabbed hold of the knife, as she thought the prisoner would stab her again, causing a deep laceration to the thumb and part of her hand. The prisoner threw the knife towards the sink, in the kitchen and took the children and left with [another] female."
The injuries, clearly, were much more serious than anything that happened to Mr Isaac Parry. At [25], Sully J pointed out that the attack was admittedly unprovoked and that it involved "the deliberate and vicious use of a knife, always a significant matter of aggravation".
I accept that the use of a knife was an aggravating factor. However, an aggravating factor cannot turn an assault, which would not otherwise warrant a prison sentence, into one which requires a lengthy prison sentence.
It is convenient, at this time, to consider the offender's personal circumstances. They can be gleaned, to a large extent, from a report of Mr David Green, psychologist, who interviewed the offender for three hours, on 7 December 2016. The offender was born on 28 February 1987. He only recently turned 30 years of age. At the time of the offences, 8 September 2013, he was 26 years old. He was born in Sydney. His father was originally from Syria and his mother from Lebanon. His father fled Syria, at a young age, because of a civil war in that country. He then served in the Lebanese Army and came to Australia in the 1970s, fleeing a civil war in Lebanon. The offender described a difficult relationship with his father. His relationship with his father was not close. He described his father as a disciplinarian. His mother migrated from Lebanon also in the 1970s and had her schooling in Australian and speaks fluent English. His parents obviously married in Australia. The offender has had a close relationship with his mother. His father has suffered from ill health. He required two liver transplants in the 1990s.
The offender is the second born of the six children of his parents. He grew up in very straightened financial circumstances. Mr Green's report says this:
"Mr Kbayli says there was significant financial problems with his father being unable to work. The financial difficulties placed considerable strain on the marital relationship and the family. There were frequent arguments. Mr Kbayli recalls there being little money for food, and his parents sometimes went without food. There was little in the way of clothing. Mr Kbayli recalls that at Christmas his mother would travel by train into the city so she could collect presents from the Smith Family for the children. His mother did this so that the children 'would not feel left out'.
As a result of the family's financial difficulties by the time that Mr Green interviewed the offender he was the main financial contributor for his parents and those siblings who were still living at home". The offender described his formative years in this way:
"Mr Kbayli described his upbringing. His family lived in a Department of Housing complex of 110 townhouses on Illawarra Road at Marrickville. There was a park with playground equipment in the centre of the complex. There were always drug suppliers and drug users hanging around the park. Drug users sat in the park smoking cannabis and using heroin. There were frequent fights as a consequence of the drug dealing. Police attended the complex regularly.
He witnessed his father having physical fights with drug dealers and some residents of the complex.
Mr Kbayli commenced school at Marrickville West Public School when he was five years of age. He spoke both English and Arabic at home and did not have difficulties with English when he entered the school. He denied difficulty learning to read and write and said that he enjoyed working with numbers.
Mr Kbayli was always getting into fights with other students. He was 'different' to the other children because of his Arabic background. He was picked on because he was Arabic and because he came from an impoverished background. He did not have satisfactory clothes, money for the tuck-shop and the like.
Mr Kbayli had witnessed much violence at the housing complex. Aggression and fighting became very familiar to him. At that stage, Mr Kbayli thought it was normal to fight. 'It came from me when I was young, on the block. I'd see my father fight, it was the norm for me'.
Mr Kbayli completed Year 7 and 8 at Marrickville High School.
Mr Kbayli's parents made a decision they would move the family away from the Marrickville Housing Commission complex because they were very concerned about the influence of the residents and the drug use on their children. Mr Kbayli described how his next-door neighbour had stabbed a teacher at Marrickville High School, how the sister had overdosed and died from illegal drugs and another sister had been kidnapped. Mr Kbayli and his brother had been playing with children who were involved in offending behaviour. 'They [his parents] wanted us out of there, the boys were influencing us, there was drugs, they didn't want the young ones growing up in that. It was full on'.
The offender then entered Kingsgrove North High School in Year 9. During high school the offender decided that he wished to work in the construction industry and become a builder. He chose vocational subjects rather than academic subjects in his high school education. He obtained good marks in the Year 12 subjects of English and Construction. However the offender was in conflict with other students from time to time at Kingsgrove North High School and was suspended on a frequent basis. The behaviour learned in his childhood obviously continued. When the offender was old enough to work he started working for Kentucky Fried Chicken. He completed Year 12 in 2004 and commenced a bricklayers apprenticeship in 2005. In 2008 the offender took up a position with a building company TQM Constructions as a leading hand and trainee builder. Whilst working for that company he studied for Certificates III and IV in Building at TAFE.
Mr Green's report continues thus:
"Mr Kbayli was the second in charge on a building site at Mona Vale. Mr Kbayli was very pleased to have obtained such a position and was highly motivated to succeed. He could see himself achieving his goal of becoming a qualified builder.
However, Mr Kbayli did not have the best relationship with the project manager on the site and was subsequently dismissed from his job".
The report goes on to point out that that caused the offender grave distress. He believed he worked extremely well for his employer and now his attempt to become a qualified builder had been stymied. He then developed symptoms consistent with depression, or an episode of major depression. Those symptoms are set out in [40] of Mr Green's report and do indicate to me that the offender was suffering depression at that time. According to Mr Green's report it took the offender a couple of years to overcome that depressive illness.
Mr Green's report continues thus:
"Mr Kbayli returned to the workforce for time when he went into a partnership with a cousin. Mr Kbayli could not countenance working for an employer again after his dismissal. He formed a company with his cousin, Baylex Building and Maintenance. They bought a van worth $3,000 and used tools they had accumulated in their previous work. They focussed on rental property maintenance, home renovations and the like. Their business was successful but it was difficult to get large home renovation projects because of their relative youth. Customers were disinclined to use them for large home renovations because the customers surmised that they did not have sufficient experience and they lost their jobs to older and more experienced tradesmen.
In 2013, when he was aged 25 years, Mr Kbayli and his cousin bought a café in Marrickville, the Post Café, vacated in the old Marrickville Post Office. Mr Kbayli knew the previous owner of the café and was aware the café was for sale. Mr Kbayli negotiated a good sale price on the condition there was an expedited sale".
To finance the purchase of the business, the offender borrowed money against a home that he and his older brother owned in Belmore in which the offender's family were living. The offender's brother Ali sustained serious injuries in a motor vehicle accident. There was a head injury which led to a traumatic brain injury. That led to a settlement of a claim under the motor accidents compensation legislation when the older brother was about 19 years old. The offender and Ali bought the house at Belmore with the proceeds of Ali's settlement and the offender's savings.
The café operated for four weeks when it was fire bombed. Apparently the previous owner of the café had owed money to criminals who no doubt did not know of the change of ownership and fire bombed the café because of outstanding debts. Unfortunately for the offender the café was under-insured. The damage suffered was about $250,000 and the café was only insured for $125,000. The café had been fire bombed and purchased in late July 2013 and the fire-bombing was towards the end of August 2013, that is a matter of days or weeks before the offences now in question.
Mr Green's report records that the offender was "devastated" by the fire-bombing and its consequences. One can readily accept that. According to Mr Green's report the offender started consuming alcohol "excessively". He refers to consumption of half a bottle of spirits and more and on some occasions consuming a bottle of spirits in one drinking session. Mr Green postulates that the offences now in question occurred when the offender was suffering from a depressive illness following upon the fire-bombing, a depressive illness marked by the consumption of too much alcohol. Alcohol is a natural depressive substance. It can precipitate depression itself. However, the offender was out at the Opera Bar drinking his preferred drink, vodka, and it would appear that he was enjoying himself according to what the offender said in his electronically recorded interview. He and "Mahmoud" were to meet "with two girls" but they had not turned up at the time that the offences occurred. In other words, he was at the Opera Bar with a friend, amongst a group of his friends and acquaintances, intending to meet with a lady if he could. He was out enjoying himself and the activities in which he was engaged at the Opera Bar do not speak of a depressive illness but rather somebody who was over-fuelled with alcohol and, probably, testosterone.
The offender has only incurred one criminal conviction. It was an offence committed on 27 September 2008 and was the offence of giving a false name and address when pulled over when driving a vehicle by a police officer. For that he was fined $100. He was also charged with an offence of driving whilst suspended but a conviction for that offence was set aside by this Court sitting in Sydney and the offender was given the benefit of the s 10 of the Crimes (Sentencing Procedure) Act 1999. Accordingly, as far as I am concerned, Abraham Kbayli comes before this Court as a man of prior good character with no criminal conviction that warrants any notice. He is to be given the full benefit of a man of good character and he is to be given consideration for one who has coped with deprivation and disadvantage of his formative years.
Following upon his arrest for these offences the offender was incarcerated until released on bail on 21 November 2013. He was in prison, according to the Crown's reckoning, for two months and 13 days: according to my reckoning for 75 days or 10 weeks and five days, that is almost 11 weeks. He spent three days in the cells at Surry Hills then 22 days at the Metropolitan Remand Prison then was transferred to Goulburn gaol in which he spent one month and 19 days or seven weeks. Goulburn gaol is a maximum security gaol. There is no suggestion that the offender spent his time in that part of the gaol known as "Supermax", but he was in a very disciplined, tightly run and secure custodial environment. Mr Green's report says this about the offender's incarceration:
"Mr Kbayli was held in Surry Hills Police Station for six days before being transferred to MRRC and was held there for about two weeks. He worked by packing headphones for Qantas. He was transferred to Goulburn Correctional Centre and held there for about two months before he obtained bail. There was no work available for him at Goulburn.
Mr Kbayli considered his life when he was incarcerated. He made the decision that he did not want to be in the situation where he could be incarcerated or committing offences. 'I had never had a taste of this, never been with criminals of this level, maximum security prisoners. I decided to cut all this crap, the drinking'. He read books on alcohol provided by the prison. He asked his family to provide a copy of the Koran and he began reading the Koran.
Mr Kbayli was very anxious about the welfare of his family and the repair and renovation required for the café. Mr Kbayli described ongoing symptoms of depression whilst he was incarcerated".
I can accept that anybody being incarcerated in Goulburn gaol would suffer from depression. Being in custody is extremely boring and that itself causes depression.
On his release from custody the offender worked on the renovation and repair of the café and it reopened in early June 2014. Unfortunately it was fire bombed for a second time in July 2014 but reopened in December 2014 and has been trading ever since, successfully. The café now employs up to eight employees, eight at weekends, and three to four during the weekdays. Not only is the offender working fulltime seven days per week in a café so is his partner, his cousin Danial El Ali.
In 2014 the offender also commenced a relationship with Ms Maxine Karasavidis. They have been living together for about a year now, living in a granny flat at the back of the Belmore house and they became affiancéed in December 2016. Ms Karasavidis runs her own beauty salon at Rhodes and is a business woman in her own right. She confirms that the offender has dramatically reduced his consumption of alcohol and that if he does drink he does so only in moderation at home. There is no more moderating influence on a man than a committed relationship to a lady such as Ms Karasavidis.
Since his release from custody the offender has also found other ways of dealing with his aggressive personality traits, if I may use that expression. Mr Green's report says this:
"Mr Kbayli said that whilst he was in custody he realised that he needed to have a more constructive means of dealing with, and controlling, angry emotion. He decided to become involved in formal boxing training and has been training for the past three years.
He has formed a business relationship with Jeff Fenech, the former boxing champion. Mr Kbayli now has a financial interest in a gymnasium in Marrickville with Mr Fenech. He said that a large part of the philosophy of the gymnasium is to give disadvantaged youths, such as himself, the opportunity of undertaking boxing training as a form and means of discipline and a way of providing a positive role model for these children. He added that there are some children from an obviously impoverished background that they train without charge. I understand he undertakes this training with the assistance of a PDHPE teacher who also attends the gymnasium".
The offender told me that he and Mr Fenech, that PDHPE teacher Mr Basil Nassis are looking to open a larger gymnasium in Marrickville. Whilst the gymnasium is not profitable, he is not losing any money through his interest in it. He continues with the boxing and in particular training with Mr Nassis. In evidence is a reference from Mr Nassis who confirms that he is a PDHPE teacher in a New South Wales public high school. He has been working with the offender since 2013. Mr Nassis says this:
"Through our common passion for health and fitness I have been working with Abraham for the past four years. In this time, I have been able to get to know Abraham and his character. He has regularly trained with and received counselling from me for Anger Management, up to four times per week. I can say without doubt that Abraham has matured and made positive changes over this period of time. This is evident in his work with troubled youth and self-volunteered work. He has helped me with a program called "Get Black on ya Feet". The program targets indigenous troubled youth but is open for all young people who are having a hard time. Abraham has been a valuable part of our mentoring program. He has given up his own time in an ongoing effort to help troubled youth in a role that has covered a whole range of topics from anger management, better decisions and healthy lifestyle. Abraham has demonstrated a real talent in this area with his life experiences and ability to be empathetic, positive and connect with the youth in our program. It is a role which has grown on him and something I believe he enjoys to be involved in".
In short, the offender has undertaken the sort of work that Community Corrections generally requires offenders to undertake on either parole or when under, for example, an Intensive Corrections Order.
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ée, that his alcohol consumption is presently under control.
Also before me are references from the offender's business partner, his cousin Danial El Ali and from his sister Dalia who is a fulltime Year 6 primary school teacher. She confirms the offender has continued to express ongoing remorse for his behaviour at the Opera Bar and the offender's attempts to make up for his irresponsible behaviour. In her letter she tells me that the offender "is absolutely terrified of having to appear in court to answer the charges". That may be an overstatement but I accept that the offender, like nearly every offender standing for sentence, is suffering from anxiety and concern about his future.
Mr Green also makes a point that the offender has expressed genuine remorse and contrition and I accept that the offender is remorseful and realises the damage that he his actions caused, not only the minor injuries inflicted upon Isaac Parry, but the injuries inflicted upon those actually injured and the psychological effect on those who witnessed the affray, those put in fear when they were merely out trying to enjoy themselves on a Saturday night in downtown Sydney.
Mr Green has considered the risk factors for reoffending. Ultimately, he expressed the view that the offender has a "Low to Moderate" risk of reoffending. He also pointed out that the offence was the offender's first criminal offence and that the offender did not display any anti-social attitudes. Mr Green makes a point that the offender has had problems with alcohol consumption in the past. He clearly was suffering from the effects of alcohol on the evening in question but I accept, in particular from what was said by his fianc
As I have earlier said, Mr Green argues that the offender was suffering from an episode of major depression at the time of the incident. It is possible that the offender was, but I find it extremely difficult to accept that it had any active part to play in the behaviour that the offender displayed on the evening in question. His behaviour bespeaks of a relatively young man with a background in which he learned to react with violence and he was disinhibited by alcohol at the time of the offences now in question. As I said this is an offence generated by too much alcohol and too much testosterone.
Mr Kbayli gave evidence and, despite the submissions of the Crown, I accept what he told me and I accept that he sought to tell the truth to Mr Green and he sought to tell me the truth. I accept that he is contrite and I accept that he realises the damage he did to our society at large by acting in the way he did in the early hours of 8 September 2013. The Crown submitted that I would not accept the offender was contrite because of certain things that he said in the electronically recorded interview I was sent a copy of the transcript and asked to read. I have done so carefully and to me it bespeaks a man who may have been affected by a head injury but, if not, he was clearly affected by alcohol. He could barely remember things of which he should have well have been aware had he not been suffering from something that affected his mental processes. For example, when asked if he agreed to the interview being recorded he said: "I don't really care" and then invited the police officer: "Do what you have to, mate". He could not remember whether he had been arrested some three hours earlier by a uniformed police person or a police person in plainclothes. He could not remember being in the car park of the Opera House. He could remember that he went to the Opera Bar with Mahmoud and that he was there to meet up with some ladies but he could not remember a conversation that he had had with Constable Thompson, the first female plainclothes officer to interview him in the car park of the Opera House some three hours earlier. He agreed that he was drinking vodka but he could not remember whether, when he was drinking it, he was in a part of the Opera Bar that was inside or outside. He also expressed that he had no idea why he had been arrested. Nevertheless he did acknowledge that he was in a fight but said that he thought that he was struck first and that is why he struck back, but the reality was otherwise. In the interview it appears to me that the offender was clearly affected by alcohol and the interview could be characterised as being affected by either insouciance or insolence, common effects too much alcohol.
The offender by his work in his own business since 2014, by his relationship with his fiancée and by his work at the gymnasium with Mr Nassis and Mr Fenech has done his best to rehabilitate himself and to stay away from bad influences which include alcohol and poor company and to control those parts of his character that have been affected in the past by his childhood experiences of violence and by learning to overcome his angry reactions to adverse circumstances. Prospects of rehabilitation are in my assessment very good. The risk of recidivism, that is reoffending, is low.
As far as the assault occasioning actual bodily harm is concerned, I have come to the view that the time spent in custody is adequate punishment for that offence. If one were to consider a sentence of imprisonment for three months such a sentence would only be justified by the use of a knife. Three months is a quarter of the year which is 13 weeks. If one discounts that by 10% rounding it up as one must 13 weeks becomes 11 weeks and the offender has spent 10 weeks and five days in custody and the vast majority of that in the adverse custodial environment of Goulburn gaol. For the offence of assault occasioning actual bodily harm in company I sentence the offender to imprisonment for the term that he has actually spent in gaol.
I turn now to consider the question of affray. There are matters of parity to be considered. Youssef Khallouf pleaded guilty to the affray in the car park. For that I sentenced him to enter into a bond under s 9 for a period of three years, but that bond must be seen in the context of his being sentenced to imprisonment for two years with a non-parole period of 12 months.
George Chambour pleaded guilty to both the affray in the Opera Bar and the affray in the car park. In respect of those affrays I sentenced him to imprisonment for one year and four months with a non-parole period of 10 months, wholly concurrent sentences. However, that was in the context of his having stood for sentence for two assaults occasioning actual bodily harm and a reckless wounding offence for which I sentenced him to imprisonment for two years and three months with a non-parole period of 12 months and where he had been serving a lengthy gaol sentence prior to the commencement of those sentences.
Mahmoud Barakat was sentenced to affray in the car park and for that offence he was ordered by the Local Court to enter into a bond for a period of 18 months and fined $1,500.
Ahmed Barakat pleaded guilty to an affray in the Opera Bar in the Local Court and asked the Court to take into account a common assault upon a gentleman in the walkway between the Opera Bar and the car park. For those offences Ahmed Barakat was sentenced to enter into a bond under s 9 for a period of 18 months.
Ali Selman pleaded guilty to an affray in the Opera Bar and asked the Local Court to take into account a common assault upon Patrick White in the car park. For the primary offence he was ordered to enter into a bond pursuant to s 9 for 18 months and was fined $1,500.
As has been pointed out by learned counsel for the accused, Mr Jones, the offender was 26 years old at the time of the offences and all of the other offenders were older. Ahmed Barakat was a year older, and all the others were at least two years older. The majority of the offenders who participated in the affray were ordered to enter into bonds to be of good behaviour.
The maximum penalty for affray is ten years imprisonment. There is no standard non-parole period. This offender's participation in the affray is different to that of the others. This offender started the affray in the Opera Bar. He threw the first punch drawing retaliation which ended up with the melee. This offender then was the protagonist in the second affray. He led the others in the Barakat group after the members of the Patterson group. Unfortunately this offender, as I said, instigated a first affray and was clearly the protagonist, the leading actor, in the second affray. This offender admits that he had a knife and used it during the second affray. No such admissions were made by either Chambour or Khallouf, although the agreed facts between the offender and the Crown say that they did neither, of those at their sentencing admitted that they did.
I agree with the Crown that in the circumstances a custodial sentence is called for, for the offences of affray. The median sentence for affray as sentenced in this Court is 24 months imprisonment. The median non-parole period is 12 months imprisonment. However only 46% of persons sentenced for affray in this Court go to prison fulltime. Other forms of custodial sentences passed by this Court include a suspended sentence in 20% of cases and intensive correction orders in 3% of cases.
I have come to the view that I should impose an aggregate sentence in respect of the two affrays. That aggregate sentence is imprisonment for two years. That is to be discounted by 25% because of the utilitarian value of the pleas of guilty which I discussed at the commencement of these reasons. That reduces the sentence to 18 months imprisonment. The question then becomes whether that should be a fulltime custodial sentence, an intensive corrections order, or a suspended sentence.
I formed the view when I was considering this matter yesterday afternoon that an intensive correction order would be appropriate. However in giving these reasons and going back through the evidence that has been adduced it appears to me that nothing, in essence, will be achieved by an intensive corrections order as the offender has now got his alcohol consumption under control, he is actively dealing with his tendencies to be angry and to lash out violently through his work with his Mr Nassis and Mr Fenech and work at the gym, and he is working fulltime, seven days a week. I have come to the view that I should impose a sentence to be suspended pursuant to s 12 and I shall place the offender under the supervision of Community Corrections so that if they require him to undergo any formal anger management courses or alcohol and other drug rehabilitation courses he should undergo them.
As I am imposing an aggregate sentence in respect of the two charges of affray, I must indicate what sentence I would have passed in respect of each affray. Bearing in mind that the circumstances and that these were the offender's first substantive criminal offences and bearing in mind his personal circumstances, I would have imposed an 18 month sentence in respect of each affray with a substantial concurrency were I to impose them separately.
In respect of the charge that on 8 September 2013 at Sydney in the State of New South Wales you did use unlawful violence towards another by conduct such that would cause a person of reasonable firmness present at the scene to fear for his or her personal safety in the Sydney Opera House Opera Bar you are convicted. In respect of the charge that on 8 September 2013 at Sydney in the State of New South Wales you did use unlawful violence towards another by conduct such that would cause a person of reasonable firmness present at the scene to fear for his or her personal safety in the Opera House car park you are convicted. I sentence you to a term of imprisonment of one year and six months. Under s 12 of the Crimes (Sentencing Procedure) Act 1999, I order that execution of the sentence be suspended. I direct that you be released from custody on the condition that you enter into a good behaviour bond for a term of one year and six months commencing today. Conditions of the bond are as follows: (1) you are to appear before the Court if called upon to do so at any time during the term of the bond; (2) you are to be of good behaviour; (3) you are to reside at [address withheld]; (4) you are to advise the Registrar of this Court by prepaid registered post of any change of residential address during the term of the bond; (5) you are to be subject to the direction and supervision of Community Corrections during the term of the bond.
In respect of the charge that on 8 September 2013 at Sydney in the State of New South Wales while in company you did assault Isaac Parry thereby occasioning actual bodily harm to him you are convicted. I sentence you to imprisonment for two months and 13 days to date from 8 September 2013 and expiring on 21 November 2013.
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Decision last updated: 29 March 2018