R v Abdallah [2025] NSWDC 33

District Court New South Wales

Medium Neutral Citation: R v Abdallah [2025] NSWDC 33 Hearing dates: 24 February 2025 Decision date: 26 February 2025 Jurisdiction: Criminal Before: Noman SC DCJ Decision: Imprisonment of 2 years and 3 months, with a non-parole period of 1 year and 2 months, to date from 25 January 2025 Catchwords: SENTENCING — imprisonment — recklessly causing grievous bodily harm Legislation Cited: s35(2) Crimes Act 1900 (NSW) Category: Sentence Parties: Rex; Adam Abdallah Representation: Counsel: Crown: H Bates Defence: G James AM KC

Solicitors: Crown: K Lawrence Defence: B Elkheir File Number(s): 2023/137733

JUDGMENT 1. The offender Adam Abdallah pleaded guilty to the offence of recklessly causing grievous bodily harm to Khodr Yaghi on 28 April 2023 pursuant to s35(2) Crimes Act 1900 (NSW). 2. The maximum penalty for this offence is 10 years imprisonment, with a standard non-parole period of 4 years imprisonment. Both operate as legislative guideposts and represent the legislature's assessment of the seriousness of the offence. 3. Plea 4. The plea was entered in the District Court on 19 September 2024, after having originally been committed to trial on 21 February 2024 on this and a more serious offence. However, the offender offered to plead guilty to this offence in lieu of the more serious offence in the Local Court. This offer was ultimately accepted during a 'super callover' in this Court. In this circumstance, I intend to apply a reduction of 25% after the otherwise appropriate sentence has been determined to reflect the timing of the offer of the plea of guilty. This was a compelling Crown case, supported as it was by witnesses and recordings of keys parts of the offending. There was an initial acceptance of some responsibility. There is a utilitarian benefit from the offering of the plea. 5. Facts 6. The facts are detailed in the agreed facts document. I have read and will have regard to the entire document. I shall refer to the salient aspects in assessing the objective seriousness. 7. On 28 April 2023 the offender attended an evening local football game as a spectator. The victim was a registered referee and was performing the role of linesman at the game. He was wearing the uniform of a linesman. The age of the victim is not disclosed in the tendered evidence, but the victim appeared in the recordings to be older than the offender. At the end of the game the offender approached the main referee and verbally abused him over his performance. The victim and the other linesman told the offender to leave. The offender focussed his attention on directing verbal abuse towards the victim. The victim used the wrist brace end of his linesman flag to strike the offender on the head causing him to fall to the ground. This flag is about 40cm in length, with a light-weight pole to which the flag attaches and a padded foam end. Although light weight it would be capable of causing pain if used with force. After the offender was assisted to stand, team players separated the offender and the victim. The offender was attempting to approach the victim but was restrained by players. The victim and the offender continued to yell at each other. The offender was walked away by a friend for about 10 seconds. The offender walked towards the victim and both were still yelling at each other. The offender walked away. 8. The victim yelled at another male until he was stopped by the referee. The offender turned and approached the victim. The victim swung his hand at the offender. The offender hit the victim in the face causing him to fall to the ground. The offender forcefully hit the victim in the head at least three times. The victim was covering his head with one arm. He was punched multiple times and kicked once to the head. The victim was on the ground throughout. 9. Others intervened. The offender ran around this group and attempted to approach the victim. The offender picked up a plastic chair but was restrained by three males and escorted from the field. 10. After waiting for keys, the offender jogged towards his car. When police sirens were heard, he started to run in another direction. Other males called out for him not to run. He jogged back to his car and drove away. 11. Aspects of the interaction and events were captured on recordings. 12. The victim suffered a significant injury, consonant with the requirement that there was grievous bodily harm. He suffered two acute displaced fractures to his jaw. He required surgery to insert three separate plates. He lost four teeth. This is significant harm and above the minimum. I note I am assisted by a Victim Impact Statement. The victim outlines the continuing impact. This is not included in the agreed facts and the content is not available to assess the objective seriousness. It will be taken into account elsewhere in acknowledging the harm. 13. At the request of the police the offender presented with a lawyer at the police station on 30 April 2023. He participated in an interview. The offender was not truthful in some respects that are inconsistent with the agreed facts, including: not driving to and from the game, whereas he was observed driving away; being unable to walk, whereas he was able to jog and drive; and not having boxed, whereas he has boxed. He also sought to advance a scenario of no memory of the assault upon the victim due to being concussed and having blacked out. The fact of concussion is not pressed. 14. The offender had photographs taken of the left side of his face on the night of the offending at about 10.46pm (Tab 6 of Exhibit 1). The defence tendered the medical notes. The offender delayed seeking medical attention on the day of the incident and specifically noted the notes could be released to police. The offender saw a GP on the evening of 29 April 2023 and injuries were recorded. The medical summary refers to superficial bruising to the left forehead area and bruising and redness to the left neck area. No swelling was observed to the forehead. Only the forehead injury would be attributable to the victim. Those injuries were not visible the following day when photographs were taken by police. 15. Objective seriousness 16. The facts do a presentable job in detailing what occurred. Some portions must be derived from witness statements. The portions captured on one or other recording significantly supplement what is described in words. 17. I have taken into account the overall circumstances of verbal exchanges and physical acts and the injuries informing the offence. The offender should not have been at the game as he had been suspended as even a spectator for previous conduct. The offender commenced the verbal exchange that precipitated the victim and another to become involved. Through this conduct, the offender directed offensive comments directed at the victim. In response to this insult, the victim used a flagpole he was holding to hit the offender once to the head. There was sufficient force used to result in the offender falling to the ground and receiving swelling and a superficial bruising to his temple. The victim used a pole he was already holding. I do not determine he armed himself in anyway preparatory to using it. Although the end used to strike contained padding, if used with force it is capable of causing injury as demonstrated by the outcome. The victim instigated the use of violence. Although the offender was assisted to stand, the observations are that he sought to continue the altercation with the victim. Any incapacity must have been fleeting given the manner of continuation of conduct. There was no difficulty in movement observable on the recordings. I do not accept the overall account advanced by the offender is reliable. The overall impact of his responses is to be evaluated. He sought to present he was compromised mentally and physically and this is not demonstrated at all. Aspects of this version was already advanced when he saw a doctor and canvassed those notes being provided to police. Other persons were involved in keeping them apart. None of the words attributed to the victim were particularly offensive. The offender maintained an aggressive manner and continued to yell directly at the victim. The offender had commenced to leave when he determined to return and continue the altercation. The victim continued to exchange comments with the offender. When approached by the offender, the victim only swung his hand at the offender. The offender hit the victim with sufficient force to cause him to fall to the ground, and once in this vulnerable position the offender commenced to further forcefully hit and punch him multiple times, and to kick him once to the head. It is of some significance that the offender delivered a number of contact blows including the use of a kick to the head. This is more serious given the victim was defenceless and on the ground. Any attempt to shield himself with his hand was unsuccessful. The offender did not voluntarily desist and sought to return to the victim and also sought to arm himself with a plastic chair. Although it was not an offence of long duration it involved more than one blow to the head when the victim was on the ground, and it was cowardly. 18. The offence occurred in public at the end of a local sporting game and was witnessed by various members of the public. 19. The offence involves causing grievous bodily harm and being reckless as to causing actual bodily harm. Reckless is defined to include intent. In this case the Crown submitted there could be no interpretation from the acts other than that actual bodily harm was intended and that this was proven beyond reasonable doubt. Senior Counsel for the offender submitted this finding could not be made on the available evidence. The offender was a person with some previous knowledge of throwing punches based on his boxing experience. The footage shows his gusto in punching and kicking the victim. I accept that the exact degree of force used cannot be ascertained. However, the consequence of one or more contact punches or the kick is known. The offender has accepted he acted out of anger. Although I strongly suspect he held the requisite intention, I am unable to be satisfied to the requisite degree of satisfaction. I do however determine that he conducted himself with a high degree of recklessness. 20. The explanation in the facts as to what precipitated the offending does not in any significant way serve to ameliorate the offender's conduct. The impact is modest. I do not regard the conduct of the victim to demonstrate 'extreme provocation' as submitted on behalf of the offender. Although the offender commenced the interaction through his unjustified and inappropriate contact with the referee, it was the victim who escalated the interaction by the unwarranted assault. As may have been anticipated, this did not diffuse the incident but served to antagonise the offender. 21. The victim was the first to introduce physical interaction in response to the offender's verbal conduct. He used the pole he was holding once and then both the victim and the offender were separated. The offender chose to return and approach the victim before again being urged away by a friend. There was no ongoing violence and the victim and the offender were separated. The offender commenced to leave more than once but broke away from those directing him. After a period of minutes after the use of the pole, and while both were still yelling, the victim approached the offender and unsuccessfully swung his hand towards the offender. It is not suggested it connected. The offender then engaged in the sustained assault upon the victim during which there was no retaliatory action. The conduct of the offender occurred after the initial situation had diffused, he was not proximate to the victim and he chose to return and escalate the situation. I adopt the offender's belated description of his conduct as contained in his 'statement' wherein he said his actions were 'excessive and inexcusable'. 22. The Crown submitted the offending fell above the mid-range. It was submitted on behalf of the offender that the offending fell below the mid-range. I consider that this offence falls within the mid-range of objective seriousness. 23. Harm to the victim 24. The victim prepared a Victim Impact Statement. Within this document he particularised more physical injury than disclosed in the agreed facts. It is not evident why the full injuries were not documented in the agreed facts. In addition to the stated injury to the jaw, the victim suffered an ongoing injury to his lip that compromised both his speech and eating. The victim suffered pain and side effects from pain medication. There was not unexpected emotional harm from the event but also from experiencing the injuries and their impact on his day-to-day living. Unfortunately, the harm described is what may be expected from suffering grievous bodily harm. There have also been financial ramifications including addressing medical needs. Additionally, given the emotional impact to the victim there has been a flow on impact to his family. 25. Antecedents 26. The offender was aged 25 at the time of offending. He has limited driving offence entries on his criminal history commencing in 2022. The offender is essentially of good character and his limited antecedents entitle him to leniency. 27. Other conduct- offender 28. The offender was involved in a separate incident during a football game on 18 March 2023. Other players were involved. This offending is about 6 weeks prior to the index offending. The offender was ultimately found guilty of 'instigating a melee' and suspended from even being a spectator for 2 years. This incident reflects a further example of out of character conduct, in a not dissimilar environment and relatively close in time. 29. None of the authors of the reports were advised of this incident. 30. Sentencing Assessment Report 31. I am assisted by a Sentencing Assessment Report prepared in December 2024. The author refers to the offender's pro-social parents and wife. The offender is self-employed, running two unrelated businesses. It is reported the offender minimised his behaviour and perceived himself as the victim acting in self-defence. He was said to have accepted some responsibility for his actions, and expressed some regret mixed with self-concern regarding the sentencing outcome. It is stated that he wanted to confront and hit the victim and that he acted out of stress and anger. It is stated he showed insight into the impact to the victim, his family and witnesses. He expressed an interest in apologising to the victim. He also remarked upon the impact to himself if placed in custody. 32. The opinion of the author was that the offender was in the low risk of reoffending. 33. The lack of empathy and victim blaming is evidenced. I observe that given the questionable acceptance and perception of himself as a victim, any communication with the victim to express an apology would be shallow. 34. Psychological and psychiatric evidence 35. I am assisted by a report from Dr Sringeri, psychiatrist and Mr Watson-Munro, psychologist. Dr Sringeri provided ongoing treatment. Mr Watson-Munro had access to Dr Sringeri's report. 36. I am also assisted by the affidavit of the offender's mother, Ayda Abdallah. She is a registered nurse working for 15 years in a psychiatric ward. She provided the background that the offender was diagnosed at 4 years of age with ADHD. She said medication was not recommended at that time due to his age. However, he did not return for any further consultation and nor did he ever receive medication. She advanced he exhibited impulsive behaviour. This impulsive behaviour was not suggested to ever result in fights through his entire schooling. She said violence and aggression were entirely out of character. 37. Further, the offender's PE teacher provided a reference and advanced the offender was disciplined and that he did not demonstrate the impulsivity exhibited by teammates. 38. The offender's sister, Sarah Khazma, provided an affidavit attesting to the offender's positive qualities and observed she had never seen or known the offender to be a violent person. 39. Neither expert was briefed with this material. 40. Dr Sringeri noted the offender to have symptoms of anxiety and depression as a result of stress of legal proceedings, media and a period on remand. Dr Sringeri observed these were improving with repeated consultations. A diagnosis of major-depressive disorder with anxious distress was opined. This is based on post-offence symptoms. The offender advanced he was threatened whilst on remand. He also claimed as a consequence of his arrest his business suffered and he was required to sell possessions to fund his legal expenses. Childhood ADHD extending into adulthood demonstrated by impatience and impulsivity was noted. A diagnosis of ADHD was made. As part of the history the offender volunteered that he had anger issues as a child. This is not explored and is to be informed by his mother's evidence that he was not involved in violent conduct. The opinion expressed is that the ADHD symptoms of mood swings, impulsivity and irritability informed the offending by playing a 'major role in his behaviour'. Dr Sringeri extended his opinion to proffer that the offender, suffering from his untreated ADHD, acted impulsively in striking the victim. 41. Dr Sringeri opined the offender's prognosis was good based on compliance with treatment, insight, plans, family support and the absence of substance abuse and personality disorders. Despite this positivity, long-term treatment is said to be required for the ADHD and continued management for the major depressive disorder. He suggested treatment would be sub-optimal if incarcerated and there could be a relapse of post-trauma symptoms. 42. Mr Watson-Munro relies on the offender having reported a loss of consciousness to suggest he was concussed at the time of his offending. This opinion is of significance as it is used to suggest concussion and ADHD related impulsivity would have impacted his judgement at the time of offending. There is no supporting evidence of loss of consciousness in the medical notes and no medical evidence of concussion. The author transitions from referencing the possibility of concussion to 'evidently concussed' without explanation. He received 15/15 GCS the following night. Any suggestion he had blurred vision and dizziness does not reconcile with his conduct after the assault and his driving soon after the incident. Senior Counsel for the offender abandoned reliance on the offender suffering concussion and admitted there was no evidentiary basis for this. It was submitted that the court should accept the offender believed he suffered a concussion. 43. Mr Watson-Munro recorded that the offender expressed appropriate remorse for his behaviour. There is no record of what was said. There is a concern that part of the history that is recorded is questionable, and this informs the reliability of what was said to have occurred over which remorse was expressed. 44. Mr Watson-Munro recorded the absence of support for the offender's wife and toddler in Sydney given her family were in Melbourne. Elsewhere the offender's extended family is noted. There is nothing to suggest they could not provide assistance. There is said to be a financial penalty in that if incarcerated it would impact both businesses. 45. He opined the risk of reoffending to be low and that the offender was highly motivated to not reoffend. This opinion is not assisted by the material disclosing the March 2023 conduct. The statement by the offender that he is not usually prone to aggression or violence cannot be accepted as reliable given this other incident. It is of some significance that impulsivity linked to ADHD is advanced as linked to the offending. This impulsivity only surfaced on the index occasion and possibly one other occasion. There is no history of ADHD informed impulsivity being related to violence. The opinion coincides with that of Dr Sringeri that the offender would not receive consistent treatment in custody. It is of some significance that Mr Watson- Munro coupled the possible concussion with the ADHD linked impulsivity to explain the impact on judgement. As concussion is not advanced, this undermines part of the basis for the suggested impact on judgement. I accept that the opinion is still maintained that ADHD impacted on judgement referrable to diminished impulse control and consequential thinking. 46. Significance of ADHD 47. On behalf of the offender, it was submitted that ADHD substantially affected both the objective seriousness and moral culpability. It was submitted '[t]he offender had, by reason of the victim's actions a diminished capacity with a fair degree of composure as consequence of the strike. As it happened, at the time he was struck, he was also suffering from ADHD, which may well have caused his response, having the degree of violence that it did but it is plain that the provocation, even if coupled with the ADHD, substantially affected the objective seriousness and moral culpability": DSWS at [7]. The link between provocation and ADHD was further advanced in the submission '[i]t is likely that the provocation had particular impact on him by reason of the ADHD from which he suffered, resulting in the offending conduct": DSWS at [15]. 48. To the extent the experts report the offender's ADHD to inform he acted impulsively, this must be read with his account to the author of the Sentencing Assessment Report that he was stressed and angry and that he accepted he wanted to confront and hit the victim. This acceptance, and the absence of the offender in 21 years of suffering untreated ADHD exhibiting violence, results in my determination that his emotions, in particular anger, more inform the offending. The offender was rude and confrontational to the referee. He commenced this interaction. He was hit to the head by the victim, conduct I accept to be entirely unwarranted. Once hit, the offender maintained a focus on confronting and returning to the victim despite the intervention of others and moving away. It reflects sustained anger that directly informs the attack upon the victim. To the extent it is described as impulsive, I deduce it exhibited a loss of control. 49. I accept the diagnosis of ADHD. I have considered the opinions expressed together with evidence sourced elsewhere. Some of this evidence provides me with an advantage. The offender's ADHD does not warrant anything other than modest lessening of moral culpability. 50. Moral culpability 51. The prosecution submitted that the offender's moral culpability was increased based upon his boxing experience increasing his capacity to inflict violence. I do not adopt this reasoning. 52. On behalf of the offender, it was submitted that the moral culpability was lessened based on provocation, mental health, and age. The conduct relied upon for provocation was addressed under objective seriousness. I do not consider age to be pertinent. 53. As indicated above, I do not determine ADHD operates to warrant other than a modest reduction to moral culpability. 54. Remorse 55. I appreciate the offender accepted responsibility by entering a plea of guilty. This outcome was not unexpected given that the incident was recorded but it still is of utilitarian value and may exhibit remorse. There is also direct and hearsay evidence suggestive of remorse. The offender has provided versions to others in which there is an absence of fulsome remorse. The expressed remorse is however interlinked with the perception by the offender that he was a victim, and by his attempt to blame the victim. Some expressions of remorse are intertwined with the impact to the offender. It is qualified remorse. His statement of 21 February 2025, on the eve of sentencing, is the first unqualified expression of remorse in which he accepted his conduct was excessive and inexcusable. I approach this statement with caution given the timing and the history of various, more limited accounts. 56. Character 57. The offender is supported by evidence of his good character and various expressions that this conduct presents as out of character. 58. I accept that the offender is pro-social. He has a stable family and has succeeded in business. But for his conduct in 2022 he is a person who had demonstrated positive qualities observed by others. 59. Remand and bail 60. The offender was in custody on remand from 30 April 2023 until 31 May 2023. This is a period of 32 days of pre-sentence custody. 61. Upon his release to bail he was subject to a home detention order that permitted only limited opportunity to leave the premises including daily reporting or when in the company of his wife or mother. 62. Bail was varied on 5 October 2023 [or about 4 months later] to allow the offender to attend work and reporting was reduced to 3 times weekly. Further, on 6 February 2024 the offender was only subject to a curfew from 9pm to 6am and he was allowed out if accompanied by any of four nominated persons. 63. Although suggested to be relevant when considering sentence, it was not suggested on behalf of the offender that this was quasi-custody requiring a quantified reduction to sentence. 64. I accept this shows a prolonged period of compliance with restrictive conditions. The offender demonstrated his ability to adhere to court orders. The conditions were restrictive although the conditions were eased over time. I will take this into account when determining sentence. 65. Extra-curial punishment 66. It is submitted that there should be recognition of extra-curial punishment in the form of 'negative media articles'. There had been media interest in this matter and that has entailed the offender being identified for his offending conduct. This has caused some loss of support for the offender from his associates. I accept this added a component of public censure for his conduct and would have entailed discomfort. As comprehended, the publicity captured and focused on the offending. I do not consider this warrants any amelioration to sentence. 67. Hardship to family 68. The offender's wife affirmed an affidavit. Therein she detailed the emotional and financial support she receives from the offender and the impact to her if the offender was incarcerated. She shares a toddler with the offender and is pregnant. She is concerned about her health given difficulties experienced with the birth of their first child. Although the offender has a large family it is suggested there is limited support as Ms Abdallah's family are in Melbourne. 69. The offender's 'statement' to the court detailed his concern for his wife and children should he be incarcerated. 70. I accept that incarceration would prove difficult for both the offender and those reliant upon him. 71. Purposes of sentencing 72. I recognise a purpose of sentence is to recognise the harm done to the victim of the crime and the community. This was an extreme and senseless offence that occurred in public at a sporting game with significant physical injuries well supporting grievous bodily harm. 73. The offender was aged 25. Although he was a young offender and I do not overlook his age, he was and is not of an age where rehabilitation assumes a more significant role. The offender's prospects of rehabilitation and of not reoffending are positive. Dr Sringeri opined there was a need for continuing treatment including for ADHD. Given my finding on the role of ADHD, the fact that treatment has not concluded does not adversely impact this finding. I do not overlook his failure to heed the suspension order imposed upon him by the Football Association. This reflects wilful disobedience albeit of a sport related order. Court related orders would likely be treated with greater adherence. There are two instances of public misconduct in his history, and although evidenced close in time, they are to be weighed against otherwise good character. He has been capable of acting without succumbing to impulsive behaviour said to correlate to ADHD. His wife refers to his general impulsivity but does not link this to manifesting in violence. His arrest and the consequences will provide a salutary lesson. It follows that personal deterrence serves a limited role. 74. General deterrence and denunciation are important sentencing considerations in senseless acts of violence. I do not consider this is limited by the ADHD diagnosis. 75. I am assisted by both statistics and suggested comparative cases. Each provide some assistance, noting the limitations that arise from statistics in general and more so those with limited cases or cases that are not truly comparable. The maximum penalty and the standard non-parole period also provide guidance. 76. Detailed submissions were advanced on behalf of the offender on community safety and the appropriateness of the imposition of an Intensive Correction Order. Some forensic urging was provided on the length of sentence. The prosecution submitted only a sentence of full-time imprisonment would address the offending. Based on my determination of the sentence the consideration of an Intensive Correction Order is not available. 77. Having considered all the possible alternatives, I am satisfied no penalty other than full-time imprisonment is appropriate. Sentence will be backdated by 32 days to reflect the period on remand. 78. I make a finding of special circumstances relying on this being the first custodial sentence, the possible impact to mental health caused by incarceration, the pausing of psychiatric treatment whilst incarcerated and the impact of a custodial sentence to family. 79. Orders 80. The offender is convicted. 81. Taking into account the 25% reduction for the plea, the sentence imposed is a term of imprisonment of 2 years 3 months with a non-parole period of 1 year and 2 months imprisonment to date from 25 January 2025. The non-parole period expires on 24 March 2026. 82. This is a variation of the statutory ratio to one of 51% and gives effect to my finding of special circumstances. No lesser sentence would reflect the seriousness of the offending.