R v Salah BENE & Calvin ABBOSH

District Court of NSW|2010-10-01|Before: Ms J, Mr P

CITATION: R v Salah BENE & Calvin ABBOSH [2010] NSWDC 218

DECISION: First count, I sentence each of the offender to a period of 16 years of full time imprisonment with a non-parole period of 8 years. Second count, I sentence each of the offender to a period of 10 years of full time imprisonment with a non-parole period of 5 years.

Regina PARTIES: Salah BENE Calvin ABBOSH

Ms J CASH (Crown Prosecutor) COUNSEL: Mr.M CRAWFORD-FISH (for Mr BENE) Mr P MCGRATH (for Mr ABBOSH)

Office of the Director of Public Prosecutions SOLICITORS: Benjamin & Leonardo Criminal Defence Lawyers (for Mr BENE) Nyman Gibson Stewart (for Mr ABBOSH)

Australia is a peaceful country, but unfortunately, from time to time, people commit violent criminal acts which disturb the peace.

In many parts of Australia, it is common on a weekend to have markets or fairs which are attended by many people seeking to buy clothes, books, items of furniture, food and beverages such as coffee. It is also common for food stalls selling meals and drinks to be present at these markets. On 3 February 2007, there was such a market at Fairfield, an outer western suburb of Sydney.

A family with the name Qummou operated a stall which sold food, coffee and ice cream. They rented space in an aisle from the Fairfield City Council and they placed some tables in that aisle so that their customers could sit, eat and drink what they had purchased from the family's stall. The top of each table had writing in it to indicate that it was reserved for customers.

Salah Bene, accompanied by a friend, towards lunchtime decided to sit at one of these tables and consume food that they had purchased elsewhere. Fayez Qummou asked them to leave but they refused and became very angry. The accused Bene hurled the money on the ground; and when Mr Qummou declined to take it, became very abusive, uttering abusive threats in very commonly used words of abuse. He then rang his brother, Calvin Abbosh, who was not at the markets at the time and told him to come to the markets. He spoke to his brother in Arabic, the language commonly used by him.

This conversation was heard by Fayez Qummou and by his son Ayed Qummou, both of whom understood Arabic.

It is perfectly obvious that Fayez Qummou was entitled to require people who had not purchased food at the Qummou stall to cease using the table. The accused Salah Bene acted in a very arrogant and offensive manner when he refused to go and both threw money on the ground and abused the Qummou's. If the matter had ended there, no real complaint could have been made except that Mr Bene was unacceptably rude and angry.

However, what happened then was Calvin Abbosh, full of anger and upset at the "disrespect "shown to his brother, came to the markets, carrying a knife with him. He then attacked Ayed Qummou, a man he had never met before, stabbing him in the front and the back of his body. When Issam Qummou intervened, he stabbed him as well, but the injuries he caused to Issam Qummou were slight. In my opinion, the evidence at the trial showed that he intended to stab and wound Ayed Qummou, having formed that intention at least by the time he had arrived at the markets. He also intended to stab and wound Issam Qummou but did this in the course of a struggle. There is no evidence that he had any previous intention to wound Issam Qummou.

It is completely unacceptable that someone should attack someone else, wounding him with an intention of causing grievous bodily harm merely because he considered that person had shown "disrespect" to his brother. Both of the accused grew up in Iraq and were Christians living in a majority Muslim country. When they were growing up, Saddam Hussein ruled that country in a tyrannical fashion. There is evidence that all the members of their family suffered at the hands of that regime in some way and ultimately, because of fear, they fled Iraq and came to Australia. Nevertheless, those facts do not provide any explanation or justification for what was done on this day.

I cannot begin to understand what it must have been like to live in a country such as Iraq. I would accept that both of the accused had every reason to flee Iraq and obviously, they managed to satisfy Australian government requirements to be accepted as refugees. I am also prepared to accept that anyone living on a daily basis with a fear that they might be arrested and imprisoned or killed, could be affected psychologically, but that does not explain the extreme violence in reaction to nothing more than a polite request to leave some tables at a market.

The indignation of Mr Bene at being asked to leave the table was out of all proportion. However, he carried this indignation to an extreme length when he decided to ask his brother to come to the market. When his brother came, he had on him a knife and there is no doubt in my mind, as there was no doubt in the mind of the jury, that Calvin Abbosh brought the knife to the marketplace for the purpose of attacking Ayed Qummou, wounding him and causing him grievous bodily harm. I am also satisfied beyond reasonable doubt that Saleh Bene knew that his brother was carrying a knife, knew that he intended to use it, approved of this use and joined in the attack on Ayed Qummou by striking him in the back of the head.

Evidence that Salah Bene also had a knife in his possession was given by Ayed Qummou and Fayez Qummou. Other witnesses did not see this knife and it was put to me that I could not be satisfied beyond a reasonable doubt that he did have a knife in his possession. However, I accept as credible and reliable the evidence of Ayed Qummou and Fayez Qummou on this and on other matters. Their evidence convinces me beyond reasonable doubt that Mr Bene had a knife in his possession. In my opinion, Ayed and Fayez Qummou were in the best position to see if the offender, Bene, had a knife. Other persons nearby, because of the speed of events and their surprise at what was happening, were not totally reliable witnesses of these events. Furthermore, he joined with his brother in attacking Ayed Qummou and his brother Issam Qummou; and the jury verdict that he was guilty of wounding with intent to cause grievous bodily harm to both brothers was clearly correct.

Ayed Qummou received very severe wounds which caused him to be admitted to hospital. Fortunately, none of the wounds penetrated any vital organs but during his hospital stay he received an infection which caused him to be admitted for a second time when he needed operative treatment. As a consequence of all this, he suffers from continuing pain, has bowel problems and will have to be careful about his diet for the rest of his life.

Why was he attacked? Initially the dispute was between the offender Bene and Fayez Qummou. His son, Ayed, became involved only because he thought that his father needed assistance. He did not touch or threaten the offender Bene. He merely asserted the entitlement of the family to insist that Bene go elsewhere.

Calvin Abbosh gave evidence directed to establishing that he was defending himself when he found the knife on the ground and just struck out to try and push off him the two Qummou brothers. The jury, by its verdict, rejected this evidence. In my opinion, it was clearly false evidence and the jury correctly rejected it. What the offender did was to arm himself with a knife, come to the market and seek out his victim with an intention of stabbing him, wounding him and causing him grievous bodily harm. In the course of his attack on Ayed Qummou, Issam Qummou came to assist his brother and was himself stabbed, but this occurred because he had joined the struggle. He was not a primary target of Calvin Abbosh or Salah Bene. Nevertheless, the jury correctly convicted both men of wounding Issam Qummou with intent to cause him grievous bodily harm.

To the present time, both of the offenders continue to maintain the false version given in evidence by Calvin Abbosh at the trial. Neither of them has shown any contrition or remorse. Not only that, but Mr Bene, in an interview with a Psychologist has sought to put forward a claim that his reaction to what happened at the table was influenced by his realization that the Qummous were Muslims. In my opinion, this shows nothing more than that he still wishes to maintain a false version about what happened and to raise racial and religious matters as some form of explanation. There was no evidence about the religious beliefs of the Qummous, or about their racial origin, except that they were not Assyrian.

In my opinion, the facts show that the offender, Bene, invited his brother to attend and knew that he would act violently when he did come. He also joined in the attack on Ayed Qummou, being carried out by Calvin Abbosh.

Calvin Abbosh brought a knife to the markets and possibly two knives and in my opinion, the evidence shows that he intended to use a knife on Ayed Qummou because Mr Qummou had shown "disrespect" to his brother. Both men engaged in this violent and potentially life threatening activity without any regard whatever to public safety. At that time, there were numerous people in the vicinity. Numerous people felt at risk because of what happened

The only reason given by Calvin Abbosh for his involvement was what he described as the "disrespect" shown to his brother. As I have said before, the harsh treatment apparently meted out to this family in Iraq does not explain in any way this attack. There is some evidence to show that they were victims of oppression in Iraq, but nothing to explain why either of them would behave in this way.

There was evidence of psychologists and probation officers about both men. What each of them said to those persons is hearsay and was not supported by any evidence from them. Obviously, they came to Australia as refugees and the country they came from is a war torn and dangerous country. They were Christians in a Muslim country and were part of an ancient but now minor racial group, the Assyrians.

Why these men should have seen it as appropriate to stab shopkeepers over a minor dispute is unexplained. If it is because of some cultural norm in Iraq or in Assyrian society, then I am of the opinion, that this court must reject that norm. However, there is no evidence that there is such a norm. In my opinion, what happened was savage, unprovoked and something deserving of severe punishment.

Disputes in Australia must not be resolved by resort to violence and those who use this as the means of resolving disputes must expect severe sanctions will be visited on them.

Notwithstanding their lack of contrition or remorse, it is a tragedy to see these two men here. At the time of this attack, the offender Abbosh was a hard-working man with a job in Canberra in the building industry. His brother, because of disabilities was on some sort of benefit but spent his time trying to assist Assyrian youth. Amongst other things, he was the manager of a soccer team. Both men were well regarded in the community, were married and had families.

I have read references about both of them, from family members, priests and people from the community. An impressive witness gave evidence in support of the good character of Mr Bene and explained something of his background

In July 2007, the offender, Abbosh, was involved in a very serious car accident, from which he received serious physical and psychological injuries. Medical evidence was presented before me to show something about the seriousness of these injuries. Custody for him will undoubtedly be harder than it is for prisoners who have no injuries

Imprisonment is a sentence of last resort, but for offences such as this, it is the only possible sentence. The Court must impose sentences that demonstrate to the community that conduct such as this, even if committed by persons of good character, will result in severe sentences. I must have regard to the needs of individual deterrence, general deterrence, retribution and rehabilitation.

The maximum sentences for these offences are 25 years imprisonment and there are standard non-parole periods of 7 years.

I must have regard to both the maximum sentence and the standard non parole period as two yardsticks when I impose sentence. By law, I am required to assess whether each offence is a mid- range offence, less than a mid range offence or greater than a mid range offence, since it is the mid range offence which attracts a standard non parole period.

The Crown has submitted that the malicious wounding of Ayed Qummou was a greater than mid range offence because there was the actual use of a weapon, there was premeditation, the offence was committed in company and it was committed without regard to public safety. The offence committed against Issam Qummou, in the submission of the Crown is less serious because it was not premeditated and happened in the course of the stabbing of his brother. In the Crown submission, this is a lesser offence.

Nevertheless, the Crown submits there should be at least partly cumulative sentences. 2. Mr McGrath

Mr McGrath on behalf of Mr Abbosh submitted that the offences against Ayed Qummou were more serious than the offences against his brother and that these offences should be regarded as mid -range offences. He pointed to the subjective material favouring his client, the material showing his medical and psychological condition and submitted that I should not find that his client deliberately intended serious harm to Ayed Qummou. He submitted that the offences against Issam Qummou were of a lesser character and could not be classified as mid-range. He submitted that both offences should receive concurrent sentences or slightly cumulative sentences because they arose from the same events. He also submitted that because of the subjective material, including material about is client's health, that he should receive less than the standard non parole period for the more serious offence. He also submitted I should find special circumstances and that he has good prospects of rehabilitation. 3. Mr Crawford-Fish

Mr Crawford Fish on behalf of the offender, Bene, submitted that I should find that his client's criminality was less than that of his brother and that I could not conclude beyond reasonable doubt that he knew his brother had a knife before he produced it to stab Ayed Qummou. He also submitted that I could not be satisfied beyond reasonable doubt that he had any intent to cause grievous bodily harm before he produced the knife, that there was no evidence he became directly involved in the fight until seeing his brother on the ground being kicked and therefore he should receive a lesser sentence.

He also submitted that Mr Bene's offending was isolated and out of character, that there was some degree of provocation, that he himself was not in possession of a knife, he has expressed some remorse and there are special circumstances.

I have considered these submissions and, whilst I am prepared to find that the offenders have never before committed such offences, I cannot accept that either of them is in any way remorseful. Both persist in telling lies about what happened and this means, in my opinion, that I cannot be certain about rehabilitation.

There was no provocation and no excuse for what happened, which was a deliberate vicious attack with knives on unarmed men, apparently in revenge for those men having told Mr Bene to stop using some tables.

There was clear evidence that Mr Bene recruited his brother, Mr Abbosh to come to the Markets to deal with the Qummous, that he came with at least one knife and he used it on Ayed and Issam Qummou. It is also clear that Mr Bene had a knife in his possession and that he was in a position to use it. It is not clear whether he was carrying the knife himself or whether his brother brought it with him to the Markets.

I am satisfied beyond reasonable doubt that both of the offenders participated in the attacks and both of them were armed with knives. Mr Bene not only encouraged his brother to attack the unarmed Ayed Qummou, but he joined in the attack himself, by hitting him on the back of the head and assisting him in the struggle. He is every bit as responsible for what happened as his brother.

The offences against Ayed Qummou are more serious than mid range offences and warrant a larger non-parole period than seven years. The offences against Issam Qummou are less serious and warrant a non-parole period less than seven years. I accept the Crown submissions on the seriousness of the offences.

The subjective factors, health factors and language factors (of Mr Bene alone) warrant some amelioration of the non parole period I would otherwise impose.

Because they should both be regarded as first offenders, because they have never been in custody before and because the overall sentence I impose is a severe one, I have decided to impose slightly cumulative sentences only. In each case I find special circumstances.

The maximum sentence is 25 years. For the offences against Ayed Qummou a head sentence 18 years would be warranted, not only because of the need to deter others but also to mark the seriousness of these offences. However because of the factors I have mentioned I intend to impose a head sentence of 16 years and a non-parole period of 8 years. These offences were clearly much worse than mid range offences and the imposition of any lesser sentences would be wrong. At the same time, the sentence of a non-parole period of 8 years with a head sentence of 16 years affords considerable leniency to the offenders.

For the offences against Isam Qummou, there will be a head sentence of 10 years and a non-parole period of 5 years. There will be a cumulation on the non-parole period for the first offence of 1 year. Thus, the overall sentence will be 16 years and the overall non-parole period will be 9 years. I will backdate these sentences to take into account previous custody.

Count 2. I sentence the offender to a non parole period of 8 years .The non-parole period will commence on 12th April 2010 and will conclude on 11th April 2018. The balance of the term will go from 12th April 2018 until 11th April 2026.

Count 5. I sentence the offender to a non-parole period of 5 years. The non-parole period will commence on 12th April 2014 and will conclude on 11th April 2019. The balance of the term will go from 12th April 2019 until 11th April 2024. The offender is eligible for parole on 11th April 2019. All consequences of the sentences expire on 11th April 2026.

Count 2. I sentence the offender to a non parole period of 8 years .The non-parole period will commence on 1st September 2009 and will conclude on 31st August 2017. The balance of the term will go from 1st September 2017 until 31st August 2025.

Count 5. I sentence the offender to a non-parole period of 5 years. The non parole period will commence on 1st September 2013 and will conclude on 31st August 2018. The balance of the term will go from 1st September 2018 until 31st August 2023.

The offender is eligible for parole on 31st August 2018. All consequences of the sentences expire on 31st August 2023.

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