Regina v Jouayde

Court of Criminal Appeal (NSW)|2003-09-05|Before: Meagher JA, Sully J, Kirby J

CITATION : Regina v Jouayde [2003] NSWCCA 240 HEARING DATE(S) : 01/09/03 JUDGMENT DATE : 5 September 2003

JUDGMENT OF : Meagher JA at 1; Sully J at 2; Kirby J at 3 DECISION : Leave to appeal granted; Appeal dismissed and sentence confirmed.

CATCHWORDS : Criminal Practice & Procedure - assault on police officer in execution of duty - parity - matter capable of being dealt with in Local Court - whether sentence excessive LEGISLATION CITED : Crimes Act 1900 Summary Offences Act 1988 DPP v Carr (2001) 127 A Crim R 151 Royall v The Queen (1990) 172 CLR 378 R v Richards [1981] 2 NSWLR 464 CASES CITED : R v Crombie [1999] NSWCCA 297 Regina v Doan [2000] NSWCCA 317 R v Hamilton (1993) 66 A Crim R 575 Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999, No 2 of 2002 [2002] NSWCA 515 PARTIES : Regina Mohammed Jouayde FILE NUMBER(S) : CCA 60301/03 COUNSEL : Miss E Wilkins (Crown/Resp) Ms A Francis (Appl) SOLICITORS : S E O'Connor (Crown/Resp) Michael Croke & Co (Appl)

LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/0407 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60301/03

MEAGHER JA SULLY J KIRBY J

Friday 5 September 2003 REGINA v Mohammed JOUAYDE Judgment 1 MEAGHER JA: I agree with Kirby J. 2 SULLY J: I agree with Kirby J. 3 KIRBY J: Mr Mohammed Jouayde (the applicant) seeks leave to appeal against the sentence imposed by Williams DCJ on 25 October 2002. The applicant pleaded guilty to two counts of having assaulted a police officer in the execution of his duty, occasioning actual bodily harm to that officer. Under s60(2) of the Crimes Act 1900 ("the Act") the maximum penalty for that offence is 7 years imprisonment. Mr Jouayde also asked his Honour to take account of two other offences on a Form 1. The first was resist a police officer in the execution of his duty (s58 of the Act), and the second offensive language, an offence under the Summary Offences Act 1988. 4 On the first count, taking account of the matters on the Form 1, and making allowance for the plea of guilty, his Honour imposed a sentence of 18 months imprisonment. His Honour found special circumstances. He fixed a non parole period of 6 months. On the second count, his Honour imposed a fixed term of 6 months imprisonment, to be served concurrently. The Grounds of Appeal 5 Three complaints are made, namely: · First, a complaint about parity. It is said that persons involved in the same incident (namely, the applicant's father and brother), received sentences which were significantly more lenient, such that the applicant has a justifiable sense of grievance. · Secondly, it is said that his Honour failed to advert to a matter relevant to his discretion, namely that the offences could have been dealt with summarily. · Thirdly, it was said that, in any event, the sentence imposed was manifestly excessive. 6 Let me briefly state the circumstances giving rise to these charges in order to deal with each of these arguments.

The Incident 7 On Saturday 6 January 2001, three police constables were on duty in Auburn in a marked police vehicle. They were Constable Gear and Probationary Constables Mitchell and Williams. At approximately 5.40 pm they saw a red Honda Firestorm 1000 motorcycle. It had a white seat, which was unusual. The rider was wearing a dark singlet, shorts and joggers. The police vehicle followed the motorcycle which, in Constable Gear's words, "accelerated harshly". The police gave chase. The motorcycle made several turns and disappeared from sight. 8 The police continued their patrol. In Dudley Street, Auburn, they saw a motorcycle which exactly matched the red motorcycle they had seen, including the white seat. It was parked on the footpath outside a house. The police stopped. There were several young men in the front of the premises. One, the applicant, was wearing clothing which matched those of the rider in the incident I have described. Constable Gear felt the exhaust of the motorcycle. It was very hot, indicating to him that it had recently been used. 9 Constable Gear asked the young men who owned the motorcycle. They professed not to know. Constable Gear then conferred with his colleagues. He intended to issue a parking infringement notice. Whilst Constable Gear was speaking to his colleagues, the applicant and his brother, Mustafa, began to wheel the motorcycle inside the premises. Constable Gear asked them not to do so. They ignored his direction. He then warned them that if they were to continue to move the motorcycle they may be arrested. The applicant thereupon said, according to Constable Gear, these words: "Just give me a ticket and fuck off you dog cunts." 10 Constable Gear then moved to arrest the applicant. The learned sentencing Judge was critical of his having done so. It was a matter which, quite as easily, could have been dealt with by a summons (DPP v Carr (2001) 127 A Crim R 151, per Smart AJ). 11 Constable Gear took hold of the applicant's singlet. The applicant's father, Nouradine Jouayde, intervened, separating the applicant and the police constable. The applicant and his brother then took hold of Constable Gear, each holding one arm. They dragged him down the driveway. The other police officers went to his rescue. Punches were exchanged. Constable Gear said this: "17. Mohammed Jouayde has then punched me three times to the face with a closed fist striking me once in my left eye, once on my forehead and once on my lower jaw. I have stumbled backwards and felt strong pain in my left eye." 12 These were the actions relied upon by the Crown in support of the second count. The applicant's brother, Mustafa, meanwhile, was yelling abuse. Constable Mitchell sprayed him with capsicum spray. He became hysterical. He punched Constable Williams three times, giving rise to one of the charges against him, to which I will later refer. 13 The scene was obviously confused. Constable Mitchell went to the assistance of Constable Williams whilst the latter was struggling with Mustafa Jouayde. Constable Mitchell said this: "28. During this struggle the male punched me with his right fist at least two times to my nose which caused me to loose my grip on his right arm. At this time I was affected by OC spray which Constable Williams delivered during the struggle." 14 Constable Mitchell said he felt severe pain in his eyes. He was unable to see clearly. He placed his hands over his eyes to recover. He then said this: "29. ... A short time later I felt a severe blow to my nose and mouth which caused me to fall to the ground." 15 Constable Mitchell added: "30. Moments later while I was still lying crouched on the ground, I felt another severe blow to my nose and mouth. At this time I became blank." 16 Constable Gear described what happened: "18. ... I saw Mohammed Jouayde king hit Constable Mitchell in the face with a closed right fist. I saw Constable Mitchell's head jerk backwards and he stumbled and then fell to the ground onto the left side of his body. Constable Mitchell was not moving after he hit the ground. I saw blood coming from Constable Mitchell's face. Mohammed Jouayde has then ran at Constable Mitchell and kicked him directly in the face with his right foot. Constable Mitchell was kicked with such force that his head flicked backwards and his body followed. Constable Mitchell just lay on the ground and he was not moving. I saw blood all over the ground and all over Constable Mitchell's clothing. I could see that he had extensive facial injuries ..." 17 The applicant, according to Constable Gear, was about to kick Constable Mitchell a second time, when Constable Gear pulled out his gun. He told the applicant to get away from Constable Mitchell. The applicant did so, although he again attacked the police once Constable Gear had put his gun away. 18 Meanwhile, however, Constable Williams had managed to break free and had summoned help on the police radio. The applicant, his brother and his father, were arrested. They were conveyed to a police station and charged. 19 Constable Gear was taken to the Auburn Hospital. His head and shoulders were x-rayed. There was no abnormality. He was seen by a doctor who noted a red eye and tenderness around the eye. He also had a left shoulder injury, as well as an injury to the left little finger. 20 The injuries to Constable Mitchell were far more serious. He was taken by ambulance to Westmead Hospital. He had a cut to his upper lip, requiring four stitches. He had bruising to his left eye and severe pain in his neck. He had also sustained a serious injury to his nose, which was fractured with septal deviation to the left. The injuries caused swelling and total nasal blockage, with a flattening of the dorsum of the nasal bridge. 21 On 23 January 2001, Constable Mitchell underwent an operation known as septoplasty to straighten the deviation in the nose and remove the fractured cartilage which intruded upon the airway. The operation improved the appearance and function of the nose. However, disability remains. 22 Let me turn to the grounds of appeal.

Ground 1: Parity 23 The same Judge dealt with the charges against the applicant, his father and brother. His remarks on sentence in each case make it plain that he was acutely aware of the need for parity. 24 Parity, of course, requires a comparison between the objective criminality and the subjective circumstances of each offender, such that none should feel a justifiable sense of grievance arising from the sentences imposed. A comparison between the objective criminality of Mustafa and that of Mohammed (the applicant) depends, in part, upon the resolution of a factual issue, namely; who was responsible for the grievous injuries suffered by Constable Mitchell to his nose? It was said on behalf of the applicant that his Honour had not attributed responsibility for such injuries to the applicant. Alternatively, if he had, it was not open to him to do so beyond reasonable doubt. 25 Dealing with each limb of that argument, I believe it plain that his Honour did attribute responsibility to Mohammed Jouayde (the applicant) for the damage to Constable Mitchell's nose. His Honour's findings in respect of the first count against the applicant were made in these terms: "Mohammed Jouayde, the prisoner before me, then approached Constable Mitchell who was affected by the capsicum spray and punched him to the face which caused him to fall to the ground, receiving a wound to his upper lip. While he lay on the ground, the prisoner kicked Constable Mitchell in the face with his right foot. Eventually, other police arrived and some order was attained. Constable Mitchell was conveyed to hospital. It appears that he had a broken nose and received operative treatment for that on 23 January 2001." 26 When his Honour came to deal with Mustafa Jouayde, he described his actions as follows: "... Constables Williams and Mitchell were struggling with Mustafa Jouayde. In an attempt to avoid further assault Constable Mitchell sprayed Mustafa Jouayde with his police issued capsicum spray. As a result of that Mustafa Jouayde became hysterical and ran towards Constable Mitchell and punched him twice on the face. That is the first assault occasioning actual bodily harm. The injuries sustained by Constable Mitchell are difficult to tell from the medical reports provided because as I will come to later he sustained far more serious injuries at the behest of Mohammed Jouayde a short time later." 27 Was it open to his Honour to be satisfied on this issue beyond reasonable doubt? Constable Mitchell had been subjected to a series of blows, directed at his nose. He had been struck by Mustafa at least two times with a closed fist. There followed what Constable Gear described as the "king hit" by the applicant. Such was the force of the blow that Constable Mitchell fell to the ground. Finally, the applicant kicked Constable Mitchell's face. According to the applicant, any one of these blows may have caused the injuries. The medical evidence simply described the injuries without identifying a particular cause. 28 I believe that it was open to his Honour to form the view, beyond reasonable doubt, that it was the blows from the applicant that caused the damage. Constable Mitchell, in the passages identified, described the severity of each blow. The blows from Mustafa were simply described as "punches to the nose". The blow from Mohammed Jouayde (the applicant) was "a severe blow to my nose and mouth". Constable Gear used the term "king hit". It knocked Constable Mitchell off his feet. The blow that followed, when Constable Mitchell was on the ground, was described by Constable Mitchell as "another severe blow to my nose and mouth". Constable Gear said that, such was the force of the kick, "Constable Mitchell's head flicked backwards and his body followed". 29 Issues of causation are not philosophical or scientific questions. They are questions to be determined in a common sense way (Royall v The Queen (1990) 172 CLR 378 (per Mason CJ at 387, Deane and Dawson JJ at 411, and Gaudron and Toohey JJ at 423 approving Burt CJ in Campbell v The Queen (1981) WAR 286)). His Honour, on this material, formed the common sense conclusion that the applicant was responsible. 30 Once that issue is resolved against the applicant, questions of parity largely disappear, as Counsel acknowledged. Although Mustafa was, like the applicant, charged with two counts of assaulting a police officer in the execution of his duty, occasioning actual bodily harm, the nature of each assault is obviously important. I have already described the assault by Mustafa against Constable Mitchell, which was the basis of one count. Mustafa punched Constable Mitchell in the face with a closed fist at least twice. The other assault was upon Constable Gear. He also was punched. The injuries, although serious enough, and obviously painful, were superficial. Mustafa, like his brother, asked his Honour to take account of additional offences on a Form 1. One offence was hinder police and the other an unrelated matter, which was serious, namely threatening injury to a witness who was to be called by the prosecution in other proceedings against his brother. 31 However, there was present in the applicant's case, although not in the case of Mustafa, the aggravating circumstance that the offences were committed whilst on bail (R v Richards [1981] 2 NSWLR 464). His Honour carefully weighed these matters. In respect of Mustafa, he imposed a sentence of 8 months imprisonment on each count, concurrent, such sentences to be suspended upon entry into a good behaviour bond. 32 Given the differences between Mustafa and his brother, I do not believe that the applicant has a justifiable sense of grievance. 33 The same can be said of the applicant's father, Mr Nouradine Jouayde. He wrapped his arm around the neck of Constable Gear and pulled him away from his son. His actions did not cause injury, although plainly they frustrated Constable Gear's attempts to assert authority. The applicant's father had no criminal record. In the circumstances, his Honour imposed a 2 year good behaviour bond. 34 I would dismiss the first ground.

Ground 2: Local Court or District Court? 35 The second ground suggested error in failing to advert to the fact that the sentence was capable of being dealt with summarily. The applicant relied upon the remarks of Wood CJ at CL in R v Crombie [1999] NSWCCA 297, where his Honour said this: (paras 15-16) "15. This Court has acknowledged that the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge; see Dalton-Morgan (CCA, 14 December 1989), Jason Clyde Smith (CCA, 11 September 1991) and Shepherd ((1991) NSW CCA 162). 16. None of those decisions go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Moreover, where it appears that in the circumstances has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal." 36 Here, the matter was not overlooked. When sentencing the applicant his Honour incorporated his remarks on sentence in respect of the applicant's father. The actions of the father, already described, were not as serious as those of his sons. When sentencing Nouradine Jouayde, his Honour said this: "It is somewhat of a mystery as to why he was included in an indictment with Mohammed and Mustafa Jouayde in regard to far more serious offences." 37 He added, in the same reasons: "As I said, this is a matter that really should have been dealt with in the Local Court. In that Court it would have carried a maximum of two years imprisonment." 38 It is plain from these remarks that the objective and subjective criminality of the applicant's crimes, and indeed those of his brother, made it entirely appropriate, in his Honour's mind, that the matters against them should proceed on indictment (cf Regina v Doan [2000] NSWCCA 317). 39 I believe there is no substance in the second ground.

Ground 3: Sentence excessive 40 The final submission was that the sentence was excessive. It was said that his Honour was in error because he failed to have regard to a number of mitigating factors. Many of the matters identified (such as the applicant's turbulent upbringing, the stable relationship he had formed with his girlfriend, and his plans to marry) were matters recorded in the Probation and Parole report. His Honour plainly had regard to that material. His remarks on sentence, for instance, included the following, derived from that report: "Mr Jouayde told the Probation and Parole officer that he didn't think he had a problem with anger management, although his girlfriend and his sister think he does have a problem, although it has been diminishing over recent years. He has indicated his willingness to undertake an anger management program. He does not accept full responsibility for his offending behaviour." 41 It was unnecessary for his Honour to repeat everything in the report. 42 Specific complaint, however, was made that his Honour failed to have regard to the principle of totality. When the applicant was sentenced on 25 October 2002, he was already serving another sentence which had been imposed on 5 April 2002. He had been convicted of supplying a prohibited drug and sentenced to 2 years and 9 months imprisonment, with a non parole period of 18 months, commencing on 14 February 2002. The non parole period, therefore, expired on 13 August 2003. His Honour, in these circumstances, said this: "The matters before me today are quite unrelated to the drug charges for which he is now serving a sentence. It seems to me that at least the first count on the indictment is deserving of a prison sentence and one that should be served in addition to the sentence that he is already serving."

His Honour ordered that the sentence begin at the end of the non parole period in respect of the drug matters (13 August 2003). 43 His Honour added these words which, to my mind, make it plain that he was conscious of the principle of totality: "But having said that, I have to take into account the fact that he is serving a sentence and that he has been in custody now since 14 February 2002. In those circumstances, whilst otherwise I would not be prepared to do so, I will find special circumstances." 44 Was the sentence of 18 months imprisonment with a non parole period of 6 months otherwise excessive? The sentencing principles with respect to this class of offence are not in doubt. Gleeson CJ in R v Hamilton (1993) 66 A Crim R 575, said this: (at 581) "It is incumbent upon the Court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task. The risks that were run by the police officers who were involved in the present case were substantial." 45 In Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999, No 2 of 2002 [2002] NSWCA 515, Spigelman CJ (with whom other members of the Court agreed) said this: (at para 26) "... The authority of the police, in the performance of their duties, must be supported by the courts. In cases involving assaults against police there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances, are generally appropriate in such cases." 46 Far from being excessive, I regard the sentence imposed as remarkably lenient. The action of the applicant in kicking Constable Mitchell in the face whilst he was on the ground was as vicious as it was cowardly. He caused significant injury, the effects of which remain. 47 I would likewise dismiss this ground.

Order 48 I would therefore propose the following orders:

However, I would dismiss the appeal and confirm the sentence. **********

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