R v Munshizada

[2021] NSWDC 679

District Court of NSW|2021-12-13|Before: Mr P

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At a glance

Source facts

Court

District Court of NSW

Decision date

2021-12-13

Before

Mr P

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

Solicitors: Solicitor for Public Prosecutions (NSW) Jamieson Criminal Law for the offender File Number(s): 2020/00075031

[2]

ex tempore sentencing remarks

On 3 November 2021, following a trial I presided over, a jury found the offender, an inmate, guilty of the charge of affray on an indictment; namely, that on 1 September 2019 at the Parklea Correctional Centre, he intentionally engaged in unlawful violent conduct towards another inmate, Stephen Stanley, being conduct that would cause a person of reasonable firmness present at the scene to fear for his own personal safety, contrary to s 93C(1) of the Crimes Act 1900 (NSW).
The maximum penalty for that offence is 10 years' imprisonment. There is no applicable standard non-parole period.
The principles for a sentencing judge to apply in relation to factual findings following a jury verdict of guilt are well established. Some facts relevant to the sentencing exercise have effectively been decided by the jury's verdict. This includes the essential elements of the offence; but also the rejection of elements of the offender's defence of self-defence (noting that there were two requirements for proof of that defence and the Crown only needed to negative one of them). Generally, for other facts, where facts are suggested as being adverse to the offender's interests, they must be proved beyond reasonable doubt; and where there are facts urged upon the Court in mitigation, it is sufficient that they be established on the probabilities: The Queen v Olbrich (1999) 199 CLR 270 at [27].

[3]

OBJECTIVE CIRCUMSTANCES

No statement of agreed facts was placed before the Court following the jury's verdict.
As the trial judge, I had the benefit of observing the CCTV footage (and photographic stills of that CCTV footage) which, from three different angles (represented by the positioning of the CCTV cameras at the centre) showed a substantial part of the violent conduct of the offender perpetrated towards Mr Stanley. I also heard evidence from the offender, who elected to give evidence.
The violence towards Stanley occurred when a group of inmates were seen entering into a yard within the correctional centre. A site map tendered at the trial indicated where that yard was. Evidence from the correctional officers suggested that the inmates were headed towards the chapel.
The CCTV footage showed that, most pertinently, the offender and Mr Stanley remained at somewhat of a distance, in a relatively small space; that Mr Stanley appeared to say something to the offender; that Mr Stanley braced himself in a boxer's fighting stance (with clenched fists) and the offender also braced himself; that Mr Stanley threw a right punch which the offender ducked, by averting his head. The offender then began to punch Stanley. Other inmates looked on, and one of them, Cameron Scollie converged on Stanley and the offender very shortly after the punching began. The CCTV footage showed that Scollie positioned himself behind Stanley, appearing to hold him, whilst the offender continued punching. The three of them began to move in that part of the area where the CCTV camera access became inaccessible. It is common ground that Stanley ended up on the ground. Trial counsel accepted before the jury that Stanley was stamped on the head; but there was a contest at trial whether the offender was one of two inmates who stamped on Stanley's head (as corrections officer Brown recalled) or whether the two inmates who stamped on Stanley's head was Scollie and Mr Taylor-Joycee.
It is pertinent to note, that at the trial, the offender relied on a defence of self-defence. His trial Counsel emphasised that Mr Stanley threw the first punch, which the offender ducked, and only inflicted his own punches because he believed it was necessary to defend himself. It was common ground that Stanley ended up on the ground (though this was not captured by any of the CCTV cameras) at least in its entirety. The offender submitted to the jury that he was only responding to an unprovoked attack by Stanley, who was the aggressor and instigator of the fight; and that only after Stanley released him, did he move away.
The offender also challenged the Crown's theory of the case, said to be supported by what was shown on the CCTV footage and photos, that the offender's fight with Stanley was in fact staged, or pre-arranged. This theory arose from the circumstances leading up to and after the offender landed his punches on Stanley. The theory included evidence that before the offender threw his punches, the offender was seen, with inmate Scollie, to be separating themselves from the group and walking around what were described at trial as 'lawyer boxes'(ie where lawyers might visit inmates) which appeared in the yard before joining the group; the offender joining, or meeting another inmate, Shamim; that as the group of inmates walked towards a gate in the yard, the offender and Stanley appeared somewhat detached before having the fight whose details I described; the offender being presented with a green jacket or jumper by another inmate where he had said in his evidence that he did not want what he said was his torn green T-shirt being visible to the corrections officer. The CCTV footage also indicated that very shortly after the offender's fight with Stanley, Shamim was seen to punch and stamp on another inmate, Jack Bernie, who had fallen to the ground in another part of the yard. The CCTV footage indicated the offender lingering after his affray with Stanley in the company of Scollie and Shamim.
By its verdict, the Jury accepted that the Crown eliminated self-defence to the requisite high standard.
Whilst there are circumstances indicative of pre-planning, I am not satisfied beyond reasonable doubt that this element existed. The difficulty is, as Counsel for the offender submitted, that part of the planning would improbably have had to anticipate the precise circumstance that the victim threw the first punch and when he would do so.
Thereafter, the fight was all one way. That this was so was in large part because of the assistance the offender received from the inmate Scollie. The co-offender Scollie was quickly on the scene to assist the offender to literally and metaphorically disarm Stanley. To my observation, Stanley was practicably helpless against the offender's serial punches.
I do not, on the other hand accept a complete assimilation in culpability as between the victim and the offender even if the victim did throw the first punch. The fact is that whatever be the exact trigger for the fight, the offender was braced for a fight, in a fighting position. This enabled him to easily duck the victim's punch. There was no comparison between that initial stance, and opportunity to evade the victim's punch and the complete absence of opportunity in the victim to evade all of the offender's punches; especially once the co-offender intervened.
The other factual difference between the Crown and the offender was whether the offender stamped on the victim's head. I am not satisfied beyond reasonable doubt that he did. There was no CCTV footage of it. Although there was some evidence of stamping from the Correctives Officer Brown, I agree with the submission of Counsel for the offender that the Officer Kitson was in a better position to observe what occurred and it was a conspicuous aspect of that officer's evidence that it was two other inmates who were observed to be doing the stamping; not the offender.

[4]

Factors relevant to objective gravity

The offence of affray is one of a number of offences relating to public order which appear in Part 3A of the Crimes Act. It has been said that relevant factors going to the gravity of the conduct include the level of the violence used and the scale of the affray: Stevens v R [2007] NSWCCA 152 at [25].
The incident was short in duration and there is no evidence of any substantial injury to Mr Stanley.
The Crown case, accepted by the jury, was that the offender committed the offence of affray as a principal in the first degree. I regarded as significant not only the circumstance that the offender inflicted violence upon Mr Stanley but that he continued to do so whilst the latter was restrained by Mr Scollie, thereby rendering Stanley helpless as the offender continued to rain punches upon him.
The Crown submitted that offences occurring in a custodial setting are more serious than would otherwise be the case as they tend to undercut prison discipline and respect for authority.
The Crown further submitted that Stanley was on the ground when the offender (and Scollie) stomped on his head and the violence only ceased when Correctives Officer Shellie Brown intervened. The offender then sought to conceal his participation by putting on another inmate's jacket. I have already indicated any rejection of the proposition that the offender stamped on the victim's head.
The affray was short in duration, but there was a sustained period of violence; which continued when the victim was on the ground. The Crown argued that the offending occurred just above the mid-range of offending for an offence of this kind.
The offender's Counsel submitted that the offending conduct fell below the mid-range of offending.
The level of violence included serial punches to the head. The attack was relatively brief, lasting about 24 seconds. There was no evidence of significant injury to Stanley. He did not give any victim impact statement; although, in the circumstances, that was unsurprising. But more pertinently, there was no objective medical evidence to indicate the nature and extent of any injury. The CCTV footage did not appear to manifest any immediate injury or harm to Stanley. He was depicted as appearing ruffled, but there was no evidence indicating the nature and extent of any injury to him. Indeed he got back to his feet relatively quickly, as if he had shaken off the effects of the attack on him.
The Crown submitted that the victim was vulnerable, although it was clear from its submissions that this was a reference to Stanley's physical vulnerability to being attacked in the particular circumstances; and his inability to escape. I accept that the victim was vulnerable in this respect.
I find below the mid-level of objective gravity, but above the low end of the range.

[6]

Age, background

The offender was 30 years of age at the date of offending and is now aged 32.
A significant history of the offender's background was taken by Dr Kala Ram, who consulted with the offender on 22 November 2021 and produced a detailed report dated 8 December 2021. Dr Ram is a clinical psychologist. Dr Ram has impressive credentials.
As part of his preparation for his report, Dr Ram also spoke to the offender's sister, Ms Saman Munshizada, who concurred in much of the offender's description of the family background, especially as to their mother's relationship to their father. Notably, she opined that everyone in the family had anxiety and depression.
The offender grew up in war-torn Afghanistan. His mother was born of a wealthy family but his father worked in the government. They had a secure lifestyle until that was uprooted with the rise of the Taliban. The offender's father was kidnapped by the Taliban but was able to escape. That was not before being traumatised by certain experiences and resulting in his drinking and gambling as coping mechanisms. The family moved across the border in Pakistan, living in a much less comfortable environment. They came to Australia in 1990.
The relationship between mother and father turned violent, with the offender's father being both emotionally abusive and physically violent towards her in the period from 1991-94. In 1995, the mother took the offender and his siblings to America, to get away, and be with family, but because of an inability to obtain a visa, they could only stay for a year. When they returned to this country, they stayed in an address where, it was expected that the father could not find them. But the father did find them and the family were re-united, if only in a physical sense. The offender received a strict upbringing, curtailing his social development. He was subject to strict discipline and physical punishment.
He attended school at least up until the end of year 10. Whilst aged 8, he received psychometric assessment indicating that he fell within the low average range of intellectual functioning. More testing was done in 2000 which overall indicated a low average range of intellectual ability. His ability to speak and learn English throughout his schooling was limited.
The offender complained of being the victim of sexual assault on four occasions, whilst in Years 7 and 8. He did not complain to his parents or school counsellors. Nevertheless only a matter of months ago (prior to his trial) he authorised a solicitor to send correspondence on his behalf in which he would be a party to a claim of institutional child abuse. In Years 9 and 10 (at a different school), his behaviour at school deteriorated, the offender believed, arising from flashbacks to the sexual assaults. He began to get involved in fights when he was not engaged in truancy. He changed to a different school again, but left after one or two months. The offender struggled with study and, at the age of 17, wanted to leave school. His mother required him to leave home.
It was about the age of 17 that he started to drink alcohol. He did not take to alcohol, being aware of his father's alcoholism. He started taking drugs with cannabis usage at the age of 16, increasing his consumption. This helped alleviate his anxiety after leaving school. He told Dr Lam that he attempted suicide at the age of 17 which he attributed to the effects of being sexually assaulted and his struggles to make friends at school. From the age of 18, he experimented with cocaine, MDMA and ecstasy.
He did some labouring work for 3-4 years, including work as an electrician. In 2008, he was enrolled in a real estate TAFE course. However, he got into trouble and was incarcerated between April 2008 and July 2010. Whilst in custody in this early period, he came under the influence of a man, 'Sultani'.
Whilst incarcerated, he was drug-free. After his release in 2010, he resumed his taking of cannabis and resumed taking cocaine in 2011.
After his release he started an apprenticeship in carpentry. That did not last, however, and he began to work as a truck courier for a tyre company.
The offender reported to the psychologist that in August 2013, when he was nearly aged 25, he was shot at, although he did not apparently surmise why that might be so. At any rate, he reported experiencing anxiety. From 2013, his drug-taking increased. He reported snorting 7-8g of cocaine a week from this time.
One or two months later, Sultani advised him to join the outlawed motor cycle gang, the 'Rebels' for his own protection. The offender reported that he left the Rebels in 2015 as he did not feel comfortable. From 2015, his drug-taking was such that he lost two jobs. He moved in with and was employed by Sultani. He used copious amounts of cocaine until his arrest in November 2016.
The offender has had two serious relationships. The first was when he was aged 16 and this relationship endured for about 5 years. He described it as being 'toxic'. His second was from 2012 to 2015. This was more successful, although after the shooting in 2013, he went off the rails and his partner protested his joining the Rebels.
The offender disclosed to Dr Ram hardships he has endured since his incarceration from November 2016. More recent hardships this year, because of the Pandemic, are the subject of an affidavit from his solicitor, which I will return to later in these remarks.

[7]

Current Mental assessment

Dr Ram opined, with reference to his background, including family domestic violence, sexual assaults perpetrated upon him, being shot at as a young teenager, and development of a substance abuse disorder was consistent with a diagnosis of PTSD, whilst in childhood and as an adult. Further, his background predisposed him to develop a range of other disorders: borderline personality disorder, conduct disorder, and some traits associated with (although no diagnosis of) anti-social personality disorder.
More particularly, using the DSM-5 diagnostic criteria, Dr Ram diagnosed Generalised Anxiety Disorder, PTSD, Cannabis Use Disorder (though in remission) and Cocaine Use Disorder (though in remission).
I accept that the offender has these conditions. I am unable to accept that these conditions were causally connected with the subject offending. Dr Ram stopped short of asserting any causal connection.
The offender invoked principles enunciated in Bugmy v The Queen (2013) 249 CLR 571, whilst accepting that his background was at a different level of disadvantage than the socially institutional disadvantage of the kind identified in that decision. Emphasis was placed upon his exposure to violent behaviour, in a domestic context, at an early age and his being the victim of sexual violence. His Counsel accepted that his background did not excuse his offending; but helped to explain it, in the sense that his background might have predisposed him to aggressive responses to threats. I accept, albeit to a very limited degree, his background might reduce his culpability and moderate the force of general and specific deference. However, the problem for the offender is that even if his culpability might be reduced on account of an inability to control violent impulses and his capacity to exercise rational judgement, that is to say, even if he was a suitable 'vehicle' for the application of Bugmy principles, to the extent that the objective gravity of offending is reduced on account of reduced culpability and accordingly the considerations of general and personal deterrence are reduced, those matters - as the High Court acknowledged in Bugmy at [44] - are offset where the same inability to control his aggressive or violent responses augments the need to protect the community.
The evidence of his disorders (although not the drug abuse disorders) is more relevant to the aspect of hardship flowing from incarceration, which I will address later in these remarks.

[11]

Hardship

The offender relied upon an affidavit sworn by his solicitor, Ms Melissa Huseyin, sworn 7 December 2021. The gist of her evidence was the imposition upon the offender of restrictions created by the Pandemic, especially through the recent Lockdown applicable to all correctional centres from 24 June 2021. According to Ms Huseyin, the offender had been locked in his cell all day from 31 August 2021 to 21 September 2021, save for 20 minutes when he was allowed out of his cell to call his family and legal team. Since 21 September 2021, he has had controlled access to the exercise yard; albeit that he does not interact with any inmates. Other details of his being isolated from other inmates given the cell in which he is housed was in evidence. Ms Huseyin recorded the offender's expression of feeling anxious and depressed whilst in custody; partly generated by anxiety about the status of Covid-19.
Ms Huseyin also referred to reports of a recent Parliamentary inquiry into the outbreak of Covid-19 in the state prison system.
She referred to expert reports on the effects of the Pandemic accessed by the Legal Aid NSW website; specifically those of Professor Butler, of the Kirby Institute at the University of New South Wales and Dr Andrew Ellis, a forensic psychiatrist. A common theme of both reports is the likely impact concerning the mental health and well-being of inmates. Dr Ellis predicted a rise in the development of PTSD and depression.
No reference was made in this affidavit to whether or not the offender was double vaccinated.
Ms Huseyin gave evidence, on information and belief, to the effect that inmates were not given access to personal protection equipment or cleaning equipment in the wing nor allowed to wear masks and gloves in the wing and the cell.
Moreover, it was implied that restrictions may have a greater impact upon the Metropolitan Remand and Reception Centre, since it was announced on 3 September 2021 to that particular correctional centre - which housed a purpose-built hospital - where inmates who had tested positive to COVID-19 were to be taken.
Mrs Munshizada also alluded to difficulties caused by the Pandemic in terms of restrictions on visits.
This evidence may be accepted, so far as it goes, however, the following observations are pertinent.
Usually, the principle of hardship to an offender from a sentence of imprisonment draws a comparison of the effect on the offender against other inmates in comparable position (see for example, R v Way (2004) 60 NSWLR 168 at [175]). Little attempt was made by the offender's solicitor to show how much worse off the offender is from other inmates in the MRRC. Although there are indications that the offender has been particularly isolated, indeed segregated, it is far from clear whether he has been effectively discriminated against in comparison with other inmates and, if he has been discriminated, whether that is the result of the Pandemic as distinct from other causes justifying his particular level of isolation (such as misconduct within the custodial setting).
Even if a comparison, in terms of the impact of social restrictions was legitimately based between inmates and members of the community generally, it is not to be overlooked that many members of the community, especially those in quarantine (whether those who have tested positively or even been close contacts of those who have), have also had restrictions upon who they can see and what exercise they can undertake and, it might be presumed that they too may become more susceptible to the development of new, or the exacerbation of existing, mental disorders. I raise the point not to deride or discount the presumed effects of the Pandemic upon inmates at correctional centres but to insert some element of balance: hardly anyone throughout the community has not sustained some adverse impact as a result of the Pandemic.
Secondly, and following from the first point, although strict levels of protection for an offender of the kind identified by his solicitor may make the custodial conditions more onerous, there may be benefits to this offender from being at any more stringent level of protection to offset the deprivations (Clinton v R [2009] NSWCCA 276 at [25]).
Thirdly, the evidence of conditions from the solicitor is limited in a temporal sense. Her evidence concluded with a conference with the offender on 13 October 2021. This was before the trial. But the environment concerning social restrictions imposed by Government to respond to the Pandemic is fast-moving. Whilst the Court can accept that the period of Lockdown may have been especially onerous for inmates, Ms Huseyin has not supplied any more recent information about the nature of the restrictions in the MRCC specifically attributable to the Pandemic; and, in particular, the prospects for easing of past restrictions. Complicating the last matter is that there is no present information about the likelihood that the recent Omicron strain will lead to the re-imposition of restrictions comparable to the lockdown that occurred this last winter. That is, and will be affected by health assessments about the strain.
Despite these matters, I accept that for substantial periods of his incarceration since November 2019, the offender, has sustained 'hardship' as a result of the COVID-19 Pandemic and, insofar as anyone can predict what is to occur in the future, the effects of the Pandemic, in terms of isolation and restrictions will be more onerous for an inmate of this offender's particular psychological profile. In the circumstances, I place some weight upon the circumstance that the offender has endured hardship in his confinement due to the Pandemic; or the prospect that social distancing restrictions are apt to fluctuate in the future.

[13]

PARITY PRINCIPLE

The Crown placed before the Court reasons for sentence imposed upon other inmates involved in the affray. That concerned Mr Stanley, who was sentenced on 14 December 2020 after entering a guilty plea to the same offence as this offender. I have had regard to the remarks of the sentencing judge published in R v Stanley [2020] NSWDC 879. The penalty imposed upon Mr Stanley was a fixed term of 6 months' imprisonment. Plainly a distinguishing circumstance in Mr Stanley's case was his guilty plea (for which he received the 25% discount), he had a finding of social disadvantage in his favour and he was at risk of institutionalisation. The Crown noted that Stanley had received administrative sanction and a partially positive finding about his prospects of re-offending. The Crown submitted that the parity principle has little application in relation to the offender.
Another distinguishing circumstance, it seems to me, is that although Stanley threw the first punch, it was ineffective - it was easily ducked by the offender - and the offender's conduct was made more serious by his capacity to inflict blows upon the victim whilst the victim was restrained by another co-offender. These circumstances in my view justify a greater sentence upon the offender than that which was imposed upon Stanley.
As to Mr Shamim, he was sentenced on 19 October 2021 for the same offence (R v Shamim, (District Court (NSW), Herbert DCJ, 19 October 2021, unrep)). After a 10% discount on a plea, he received a head sentence of 13 months imprisonment, with a non-parole period of 9 months. I have had the benefit of reviewing Judge Herbert's unpublished sentencing remarks (which were supplied to the legal representatives for the parties prior to the sentencing hearing). Features of that sentencing proceeding included that the offender, Shamim, received a 10% discount on his guilty plea to the same offence; Shamim kicked his victim (Mr Bernie) in the face and also punched him in the face and, separately used his knee to strike Mr Bernie twice; and kicked him again to the torso multiple times. The altercation between Shamim and Bernie lasted for approximately 14 seconds; whereas the altercation between the offender, Stanley and Scollie lasted for about 24 seconds. The injuries to Bernie were observed to include marks to the side of his face. In relation to Shamim's subjective history, the sentencing judge noted that he was 19 years of age at the date of the offending with a prior criminal history, including a prior offence of affray committed when he was a teenager. His youth and maturity were taken to moderate the weight afforded to general deterrence. The sentencing judge found that there was some evidence of contrition from a letter of apology supplied; although that was difficult to assess (he not having giving evidence in the proceeding). He had reasonable prospects of rehabilitation. The sentencing judge considered that Shamim's objective seriousness of offending was higher than the offender and the co-offender Scollie, as it exhibited greater violence and aggression.
The Crown submitted that given the finding that Shamim had no involvement in the affray involving Scollie and the offender, the sentence imposed on Shamim is irrelevant to the sentence to be imposed on the offender.
I agree that the conduct of the offender was less violent than that of the offender Shamim; however, Shamim has a much more favourable subjective case than the offender, based upon relative age and a comparative absence of antecedents, some expression of remorse and a positive finding of rehabilitation prospects; and a substantial discount on penalty because of his plea.
The co-offender Scollie was sentenced to a term of imprisonment for 17 months, with a non-parole period of 11 months. He obtained a 5% discount on a plea. Scollie, like the offender, also had a substantial prior criminal history. Like the offender, he had a rough childhood, and his education was interrupted. He shared some similar disorders, or perhaps the traits associated with disorders, to the offender too, being an antisocial personality disorder and substance abuse disorders. I consider that the offender's offending was on a par with that of Scollie: his involvement was longer. On the other hand, unlike Scollie, against whom a finding of stamping on the same victim's head was made, I have not been able to accept to the same requisite standard that the offender stamped on Stanley's head. Of all the co-offenders, I find that this offender's position most resembles the co-offender Scollie.

[14]

INSTINCTIVE SYNTHESIS

I first have regard to the maximum penalty, as a legislative guidepost. I also take into account my assessment of the objective gravity of the offending conduct and the evidence of the offender's subjective case.
I have regard to all of the sentencing principles in s 3A of the CSP Act.
General deterrence is elevated in a context where the affray occurred in a public place in front of, and involving, persons who were incarcerated (it is unnecessary to distinguish those serving sentences of imprisonment or those on remand for this purpose); lest they be encouraged to participate in like conduct. I respectfully agree with the remarks of the sentencing judge when sentencing Mr Stanley when Buscombe DCJ said (at [22]): "Offences of violence committed by inmates in prison are always serious as they have a tendency to undermine discipline in the gaols".
The offender's record and the circumstances of the present offending indicate that personal deterrence and protection of the community are elevated considerations.
I am mindful of the parity principle and am anxious to avoid the problem of other co-offenders, such as Messrs Stanley, Shamim and Scollie, having a justified sense of grievance.
I am satisfied that the s 5 threshold has been crossed. The offender's Counsel conceded as much.
The offender has been in custody, but none of that time is attributable to the offence. He has been convicted (and is to be sentenced on 17 December 2021) for the murder of several individuals after being arrested and charged on 29 November 2016. That arrest and charge caused the State Parole Authority to revoke a sentence of imprisonment to be served by intensive correction in the community imposed on 10 June 2016 (which had been due to expire on 24 June 2017).
The Crown explained that s 56 of the CSP Act did not apply since he is not a convicted inmate: at the expiry of the ICO, he has been held on remand. The reality is that the offender is expected to be sentenced in the Supreme Court on 17 December 2021 and that this sentence will be subsumed within the very severe penalty the offender is expected to receive on that occasion. That reason suggests that this is an appropriate case for a fixed term to be imposed with no non-parole period. The offender's Counsel did not argue against this approach. The length of the term will reflect the minimum period that I consider should be served. In the circumstances, I see no justification for backdating the commencement of the penalty to some earlier point, given the circumstances in which he has been in custody. The offender's Counsel acknowledged that a commencement date from today would fall within the Court's discretion.