R v Baradaaji [2020] NSWDC 685

District Court New South Wales

Medium Neutral Citation: R v Baradaaji [2020] NSWDC 685 Hearing dates: 7/8/20, 21/8/20, 2/9/20 Date of orders: 2/9/20 Decision date: 02 September 2020 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Convicted and sentenced to imprisonment for 3 years 6 months with a NPP of 2 years 4 months (4/2/19-3/6/21). I find special circumstances. Catchwords: Crime – Sentence – Recklessly cause GBH in company Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v R (2013) 249 CLR 571 Greaves v R [2020] NSWCCA 140 Category: Sentence Parties: DPP (NSW) – Crown Mouman Baradaaji - Offender Representation: Mr Cramer for Crown Mr Soukie for Offender File Number(s): 2018/382450

sentence 1. Mr Mouman Baradaaji is for sentence in relation to an offence of recklessly causing grievous bodily harm to a Mr Vaddepalli while being in company with Abdullah Cheikho. The maximum penalty for that offence is 14 years imprisonment and a standard non-parole period of five years is specified. The offender was committed for trial from the Local Court on 25 October 2019. A plea of guilty was entered in this Court on 12 June 2020 at a pretrial mention, and it is agreed that a discount of 10% is appropriate to be given on account of that plea of guilty, and I apply that discount of 10%. Of course the maximum penalty and the standard non-parole period are important guides in the sentencing exercise.

FACTS 1. The facts of the matter are agreed, and in summary are as follows. On Saturday, 1 September 2018 Mr Vaddepalli was on duty at the United Service Station at Wilberforce. He was accompanied by another employee, a female, Yagitha Nakka and they were rostered to close the service station at the end of business which was 10 o'clock at night. This offender and Mr Abdullah Cheikho and a number of other males had been during that day at a place called the Southern Chariot Stud Religious Site on the Putty Road at Colo, and had been there for a barbeque and an afternoon of four wheel driving. 2. Mr Cheikho and this offender Mr Baradaaji were travelling together in Mr Cheikho's utility together with an unknown male. Three other males were travelling together in another utility, those being Mr Ibrahim, Mr Ibrahim-Kadir and a Mr Arnaout. Shortly before 10pm those various men left the religious site and travelled along Wilberforce Road towards Richmond. At about 10pm the two vehicles pulled into the United Service Station at Wilberforce, where Mr Vaddepalli had just turned off the pumps, set the shop alarm, and was in the process of locking the doors. Ms Nakka, his co-worker, was also with him, and she was intending to give him a lift home on her motorcycle as his motorcycle had apparently broken down. 3. The two utilities pulled up in front of the diesel pumps and Mr Cheikho got out and approached Mr Vaddepalli. He said, "We want fuel. Can you please open the door?". Mr Vaddepalli replied saying, "Sorry, we have locked the shop completely. If we open it now it's like breaking in again. The alarms are turned on. It's against the rules." Mr Cheikho, however, again said "We want fuel. Can you please open the door?" Mr Vaddepalli replied, "We can't open it again" and Ms Nakka added, "Sorry, we can't open the shop because it will be like we are breaking in." An argument then developed between Mr Vaddepalli and Mr Cheikho. As a result, Mr Cheikho spat twice in Mr Vaddepalli's face. One of the other males who were with the group approached Mr Cheikho and told him to calm down. However, this offender, Mr Baradaaji then came running towards Mr Vaddepalli, and one of the other males from the vehicles began punching and kicking Mr Vaddepalli about the face. Mr Vaddepalli lost consciousness and he fell to the ground. Mr Cheikho then dragged him along the ground for about 5 metres and stopped just in front of an ice refrigerator. 4. Ms Nakka had removed her motorcycle helmet and gloves and was about 2 metres away. She saw all the occupants of the two vehicles, which was about four to five males, including, obviously, Mr Cheikho and this offender Mr Baradaaji, surrounding Mr Vaddepalli as he lay unconscious on the ground. All the males began kicking Mr Vaddepalli, striking him in the head and upper body. It is not known how many kicks or punches Mr Baradaaji effected. However, it is agreed that he was at that stage a party to a joint criminal enterprise to assault the victim. 5. While this was happening, one of the other males called out to Ms Nakka and said, "Don't call the police". Ms Nakka was concerned that Mr Vaddepalli was unconscious and that he was not doing anything to protect himself from the assault he was being subjected to. In an attempt to stop the assault she, rather bravely, threw her helmet at the group. Mr Baradaaji, however, picked up the helmet and threw it back at her narrowly missing her head. At that stage Mr Baradaaji, Mr Cheikho and one of the other males returned to Mr Cheikho's utility and they drove away. The other three males stayed at the service station and one of them assisted Ms Nakka in getting Mr Vaddepalli inside the service station to be rendered some first aid. 6. Each of the three males remained at the service station until police arrived, but when questioned about the matter denied knowing any of the other offenders. Ms Nakka used Mr Vaddepalli's phone to call police, despite one of the males telling her not to. Mr Vaddepalli at that stage was bleeding heavily from his mouth, and so Ms Nakka went outside onto the road to try to flag down some passing cars. After a few minutes the police arrived. Mr Vaddepalli regained consciousness but he had no memory of what had happened. He was taken by ambulance to Nepean Hospital where he was admitted and had X-rays and CT scans carried out. It was determined that he had multiple fractures to his jaw, but the doctors were not able to operate at that stage because of the swelling to his face. 7. On Wednesday, 5 September, that is four days later, doctors were finally able to operate on him. Mr Vaddepalli had two plates attached and screwed into his jaw. Two small drainage tubes were inserted into his neck to drain the fluid over the following 24 hours. To get access to his jaw the doctors had to make a 9 centimetre incision, and they had also to remove a back tooth. He now has a visible scar on his neck. On 7 September Mr Vaddepalli underwent a second set of surgery as a result of doctors having to make adjustment to the braces that they had fitted during the first surgery. On 10 September, that is another three days later, the doctors wired shut Mr Vaddepalli's jaw and he was discharged from hospital that night. 8. Over the next six weeks he had to return to the hospital every Monday and Thursday so that the bands in his mouth could be replaced. During the six weeks that his jaw was wired shut he was unable to eat any solid foods and was only allowed to drink water, milk and some filtered juices. He lost between 8 to 10 kilograms and had persistent shooting nerve pain up the left side of his face. He returned to Nepean Hospital for his third surgery on 15 October. That surgery was to remove the wiring and to affix braces to repair his jaw permanently. For the next seven weeks he had to return to the hospital every Monday and Thursday so that the bands on his braces could be replaced. He lost another 4 kilograms. On 15 February 2019 the braces were finally removed. He faces further dental work as the screws holding the plates in place in his jaw will apparently destroy his back teeth. He has been doing exercises to regain the full use of his mouth and jaw daily since the braces were removed. 9. As part of the investigation, police obtained CCTV footage from the service station but that material did not capture the actual incident. Police seized Ms Nakka's motorcycle helmet and a fingerprint was found on it that belonged to this offender Mr Baradaaji. As part of the investigation police also intercepted Mr Cheikho's telephones and a number of calls were identified, including several calls between he and other parties, including Mr Baradaaji. The facts before me, however, are silent as to any admission made by either of them in those calls, although Mr Cheikho apparently asked one of the other men to lie for him. However, there is no indication of any admissions made by this offender in those calls. 10. Mr Cheikho was arrested on 8 November 2018 and made no admissions to the offence and denied being at Wilberforce at the time. On 12 December 2018 this offender, Mr Baradaaji, was arrested. He, after being explained his rights, declined to participate in an interview but he did consent to a forensic procedure in the nature of a buccal swab being carried out. Those are the facts upon which the offender is to be sentenced.