New South Wales District Court CITATION: R v Ameli, Farhang Jabal; Bigeni, Joel Benjamin and Zulfigar, Farhad [2008] NSWDC 136 JUDGMENT DATE: 28 March 2008 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Begini, Zulfigar: s. 9 Bonds 15months, 12 months, fined $750. Ameli: s. 11 Bail for 9 months to provide opportunity to demonstrate capacity to rehabilitate. CATCHWORDS: Criminal Law - Sentencing - Affray - Hinder police in investigation of co-accused - Mal wound (Ameli only) - prosecutorial overcharging - objective criminality - claim of accessorial involvement in affray, rejected - hindering police not constituting offence against the courts - false information supplied with secondary purpose of hindering police into co-offender's role as necessary step in hindering police investigation of own criminality - subjective matters - unsuitable psychological report - report fails to provide evidential basis for opinions given - provides opinions contrary to test results - fails to give sufficient details of personal history taken to support opinions given. LEGISLATION CITED: Crimes Act 1900 R v Cuthbert [1967] 2 NSWR 329 CASES CITED: R v Rushby [1977] 1 NSWLR 597 R v Hayes [1984] 1 NSWLR 740 Regina PARTIES: Farhang Jabal Ameli Joel Benjamin Bigeni Farhad Zulfigar FILE NUMBER(S): 2007/00015227001; 2007/00012860001; 2007/00015150001; 2007/00015228001 Defence: S. Odgers S.C. for Bigini COUNSEL: Defence: E.Y. Ozen for Zulfiquar Defence: L.J. Rowan for Ameli SOLICITORS: Mr P.J. Thomson for Crown JUDGMENT 1. It has been true for as long as I can remember that an unsupervised group of fourteen to twenty-six year old males and females plus copious quantities of alcohol is a recipe for unmitigated social disaster. That was the situation at 135 Pennant Hills Road Carlingford on 16 September 2006. 2. Adam Hickey hosted a party, no doubt for his many acquaintances, with no parental supervision. An invasion of fifteen to twenty unwanted male and female youths including these three offenders, saw what was an ill advised situation turn into a display of significant criminal conduct by them; that criminal conduct has been reflected in numerous charges against several of the youths. For my part I am dealing with three youths charged with affray. 3. Within moments of the abandonment of this affray in its aftermath was an incident involving none of these offenders but involving the victim who was at the centre of their earlier unlawful activity. That victim was very seriously wounded by the post affray actions of one of their co-offenders Khosravi. This incident occurred as these three offenders made their way to cars that were to transport them from the scene. Of the group of seven who constituted the affray, the oldest was aged no more than twenty-two. They met at the Castle Hill McDonalds. A juvenile co-offender KJ described how he had robbed the victim of his wallet. The criminality that occurred that night now included the events of the affray, the very serious wounding of the victim and the robbery. 4. In the absence of informed analysis of their criminal behaviour, no doubt all of the males present believed they were in mighty serious trouble arising from all three of these events. Khosravi and KJ decided to give a version of events that would, if accepted by police, see them exonerated of any criminal activity. Those guilty of crime have been doing that sort of thing for years. However, police had put a tap on Khosravi's mobile. Conversations between Khosravi and KJ were taped. Others agreed to be parties to their intended deception which as events turned out would not have hindered any investigation of Khosrave and KJ's additional crimes. 5. When first arrested each gave false accounts to police, as criminals have been doing for centuries. Indeed when secondly arrested two of them persisted in those accounts. Their intention in so doing was to mislead the police in respect of themselves and Khosravi and KJ. 6. In this case police had the evidence. Indeed they were in possession of a tape of a false account before any of these offenders knew of its existence. Their, (that is the offenders') intention to hinder the police in the investigation in respect of Khosravi, was done before police identified the charges that would be preferred against these offenders. Each has been charged with doing acts intending to hinder police investigation in respect of Khosravi. While I wonder whether any jury blessed with common sense would have convicted them of these charges in these circumstances, at law the charge is one available to the prosecution because whilst they may have been intending to protect themselves, which is not an offence, each was also seeking to protect Khosravi. My own view is this is an instance of over-charging by the police and supported by the DPP. Nonetheless the offenders have pleaded guilty to a charge of doing acts intending to hinder investigation. I accepted the plea and now it must be dealt with on its merits. Thus each offender today is to be held accountable for his criminal conduct reflected in the charges. 7. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences, before this Court, committed by these offenders, harming the victim and indeed seeking to hinder the administration of justice in this community. My initial task requires as assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to the offenders, subjective matters. 8. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender. My fact finding task has been circumscribed in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the Court a judge is not a party to the agreed set of facts. The agreed set of facts does not relieve the judge from his fact finding responsibility or indeed from his assessment of the objective criminality. It simply limits the material on which the facts maybe found. 9. To the extent, if it be the case, that the facts as agreed do not reflect the actual events that occurred, it must be remembered that the Court can only find facts from evidence placed before it. Each offender's rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts and, of course, the ultimate sentence disposition to be imposed. None of those can be determined until the primary facts have been settled. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. (See R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740) ADDITIONAL FACTS 10. In respect of the offences for which all of the persons are charged the additional facts are these: Once the group of invaders had arrived at the party, sometime between 9.30pm and 10.30pm, Khosravi became involved in a physical fight with a member of the party. That fight evolved into a significant brawl with as many as 30 to 40 people involved. There were punches, kicks, and bottles being smashed, chairs being thrown. During that time a person by the name of Reynolds was struck to the front of his head with a beer bottle causing a cut to him. Another young person MJ was also struck by a flying bottle. The fight lasted for several minutes. 11. Shortly after the fight each of these three offenders and others with them left. They headed towards where their cars were parked. Meanwhile Reynolds and two other males chased after the group. Reynolds was concerned with who had hit him with the beer bottle. As he came around the corner from Pennant Hills Road into Bettington Road, where some of the cars were parked, he was attacked by six or seven males. They included Ameli, Khosravi, the young person KJ, another AH and two others. 12. The offenders Bigeni and Zulfiqar were present ready and willing to assist if required at this time. It is not the Crown case that either of them otherwise became involved. 13. Reynolds was punched and kicked to the ground. When on the ground he continued to receive punches and kicks all over his body. That attack lasted for several minutes. The agreed facts establish it as being a savage attack. Ameli was involved in that exercise. At the conclusion of the attack KJ removed the victim's wallet from his back pants pocket. This was never part of any common purpose that the other offenders were involved in. Once the attack had finished these three offenders walked away from a victim now lying face down and motionless on the ground. The affray is over at that point. Khosravi remained behind and I need not concern myself here with what occurred at that point in time other than to refer to the remarks made in the introduction. 14. At the conclusion of the affray these offenders ran to their car and ultimately left the scene. They later met at McDonalds at Castle Hill. At that location, as I said, the young person KJ described how he "jacked" Reynolds' wallet. Khosravi described his part in events subsequent to the affray. The youths then left McDonalds. 15. The following afternoon a group including Ameli, Bigeni, Khosravi and KJ were out the front of Castle Towers. Khosravi when asked what to do if police contacted them said, "They won't, but if they do tell them we were at the party. We didn't see any fights and we went home and we didn't hear anything about the guy being stabbed." Incidentally "stabbed" is an inappropriate description for what occurred at the scene. Indeed it is a euphemism, if one can imagine it, for what occurred there. 16. Some people from the party came to the aid of Reynolds and ultimately an ambulance attended. He was admitted into the Emergency Department where his injuries were dealt with. Investigations continued and Reynolds disclosed the loss of his wallet and a hundred and fifty dollars in cash. As a consequence the telephone intercept was placed on Khosravi's mobile telephones. 17. Conversation on 17 October was intercepted. That conversation was between Khosravi and KJ. KJ told Khosravi police were wanting to speak to him, meaning, as I understand it to KJ himself. Khosravi then advised KJ what to tell the police and advised him in these terms: Khosravi: Tell them we were at the party. KJ: Yeah. Khosravi: Tell them that guy started - tell them he threw the first punch then say I didn't do anything. Tell them the truth at the party, what happened at the party but tell them the end how we got in the car, we left. When we left and afterwards we heard what had happened but we don't know who done it. KJ's reply: All right, so I say everyone left the party. Khosravi: Say we did. You left in my car, me, you, Drawl and Dilla. For my part Drawl and Dilla remain unidentified. They are clearly nicknames. KJ: Yeah and Megan. Khosravi: Me, you, Drawl, Dilla and Megan jumped in my car, okay. We left then we heard that everyone else was going to a pub but we don't know who else, who else is there. KJ: All right, no worries and uh, do you reckon I should call everyone up and warn them and shit. Khosravi: Yeah, yeah. I come now to the arrest of Farhang Ameli. On 19 October 2006 Ameli was placed under arrest and conveyed to Castle Hill Police Station. At Castle Hill Police Station Ameli participated in an electronically recorded interview where he stated he attended the party and a fight broke out, the group he was with left and walked to their cars before driving away. Ameli denied being involved in a fight at the party or participating in the malicious wounding, robbery and assault on Reynolds. As a result, it was said, Ameli was released from custody pending further investigations. 18. It is observed and apparently agreed between the parties that the version of the incident provided by Ameli is in line with the version agreed upon by the co-accused Khosravi and KJ in the intercepted telephone conversation of 17 October 2006 I have just referred to. 19. I turn to the arrest of Farhad Zulfiqar. On 31 October 2006 Zulfiqar was placed under arrest at Castle Hill Police Station. He too participated in an electronically recorded interview where he denied all allegations and knowledge of the incident resulting in the malicious wounding, robbery and assault on Matthew Reynolds. It is said that as a result of what he told police he was released from custody pending further enquiry. 20. Joel Bigeni attended the police station at Castle Hill on 6 November 2006. There he provided police with a signed statement. Within that statement he denied any knowledge or involvement in the assault leading to the victim being injured, gave a version which is said to be partially consistent with the version suggested by Khosravi outside Castle Towers on 17 September. It is to be remembered Bigeni was there on that day, as I understand it. Bigeni indicated that he saw the fight but was not involved and did not know anyone involved. The next day a telephone intercept recorded a conversation between Khosravi and Bigeni. The conversation relates to Bigeni asking Khosravi if his phone was secure and after being assured told Khosravi he had just spoken to police. Bigeni told Khosravi what he told police and then told Khosravi that the statements of MJ, DK, KJ and himself are all different because they did not get together beforehand. 21. There was a second arrest of Ameli on 15 September 2006; he attended the Castle Hill Police Station on that day in company with the young person KJ. Ameli was placed under arrest, he declined to be interviewed. During the process however he informed police he wished to tell them the truth and gave to them the same version he had earlier given in his electronically recorded interview. 22. Farhad Zulfiqar was arrested on 20 November 2006 for a second time. He was taken to Castle Hill Police Station, placed in custody. As a result of receiving advice from his solicitors he declined to be further interviewed. 23. Bigeni was arrested on 4 December 2006; he exercised his right to silence. Those are the facts covering both the allegations of behaviour designed to hinder investigation and the affray. OBJECTIVE CRIMINALITY 24. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of the offenders. That is done by comparing objectively the criminality exhibited in the instant offences, that is, the offences before me, with the criminality of offences of similar kind that have been dealt with by this Court in the past. It is in this way that the objective criminality or seriousness of these offences can be evaluated. It would not surprise anyone that the objective criminality has a very significant impact upon the overall sentencing outcome. 25. The more serious offence is the affray. The measure of that offence focuses upon the level of unlawful violence used by an offender and the scale of the affray itself. The unlawful violence must reach a level of disinhibited violence such that a person of reasonable firmness, present at the scene but not necessarily involved in the altercation, would fear for his or her personal safety. The more disinhibited and widespread the violence within the affray the more serious the criminality and, of course, the greater the risk that others will be swept up in it. The offender must intend to use or threaten violence or be aware that his conduct may constitute or threaten violence not just to the person he is administering violence to but to others of reasonable ? present. 26. The scale of the affray can also be measured by both its duration, whether it was of short duration or longer and by the numbers of persons participating in it. An affray involving two or three people is obviously, all other things being equal, less serious than an affray involving up to a dozen. 27. The pleas to the affray have been entered upon the basis the criminality acknowledged by them relates to events occurring after the offenders had left the party but before they had left the area in their vehicles. Specifically the affray focuses upon the time at which Matthew Reynolds was attacked at the corner of Pennant Hills Road and Bettington Road. The agreed facts put the number involved as four to seven but given that six are nominated I could be satisfied beyond a reasonable doubt that six people were involved physically in that affray. 28. Its duration it seems to me is to be measured in minutes and probably less than two or three minutes. Bigeni and Zulfiqar were ready and willing to assist in the assault upon Reynolds. They were part of that group. There appears no dispute that the level of violence given the circumstances in which it was administered, was a level to cause the bystander of reasonable firmness to fear for his safety. None of that level of violence can be attributed to either of these two offenders; however their very presence ready and willing to assist constituted an awareness that the conduct of each in maintaining a presence at the scene threatened violence to others. In circumstances such as that a reasonable person present at the scene would fear for his safety. 29. Each counsel for the two offenders sought to argue each offender was an accessorial offender only. I am satisfied that the presence of each willing to assist constituted a threat and in those circumstances for reasons I have explained by they principals in the first degree. Nonetheless their criminality is substantially removed from those who were directly involved in creating, using and sustaining the magnitude of the actual physical violence. Ameli was one such offender. His criminality must be assessed as involving a level of violence that constituted punching and kicking in company with others until Reynolds was felled to the ground and thereafter continuing to demonstrate the same level of violence until he departed. It is the level of physical violence, its being done in the company of others and its continuation once the victim was felled that brings it to a level where a bystander of reasonable firmness would fear for his safety. In assessing the criminality it is important to note that the unlawful violence did not spread beyond its intended victim. This offence was not planned, indeed all offenders had left the party with the intention of leaving the area. The attack was impulsive, opportunistic and probably led by Khosravi. There were no weapons used as part of the unlawful violence. Its duration would appear to have extended, as I say, to perhaps two or three minutes but not beyond. 30. The numbers involved are said to be between four and seven. Such an agreed fact suggests the Crown is unable to prove beyond reasonable doubt the seven. It does however nominate six participants. Several of the participants were juveniles affrays frequently constitute numbers greater than six all of whom are adult males. That affray with up to twelve all constituting adult males would seem to me, all other things being equal, to be of an affray causing greater fear or more readily causing the fear in the reasonable bystander than an affray of juveniles. Some may differ in that view. 31. In terms of seriousness this affray falls towards the lower range of criminality as envisaged by the relevant section. While the victim was seriously wounded after the affray, offenders participating in the affray cannot be held responsible for that particular criminal act. In fairness nor has the Crown charged them or sought to make them responsible at law for it. 32. The criminality associated with the hindering of police is an offence relating to the proper administration of criminal justice. It is not an offence against the courts per se but rather impeding the proper investigation of serious crime. In this case the investigation intended to be hindered was the investigation of an offence committed at the conclusion of the affray namely, the serious wounding of Reynolds of a co-offender heavily involved in the affray. 33. Section 428B of the Crimes Act includes this offence as an offence of specific intent. 34. Section 315(2) has the effect of deeming a person of interest as having committed the serious indictable offence if a public officer engaged in the investigation or detection of the offence suspects on reasonable ground that the person of interest had committed the offence. Such a definition has the effect of deeming a finding of guilt in circumstances where a tribunal of fact may not so find. The offenders' knowledge of the terms of the offence presupposes awareness by the accused of the commission of the offence. In this case I am satisfied each accused was so aware. There will, of course, be cases where an accused may know of the acts but believe they fall short of a serious indictable offence. In such a case the criminality of the accused would on that score be less. 35. The evidence before me establishes that police had reasonable grounds for suspecting Khosravi had maliciously wounded Reynolds. Those offenders would have understood malicious wounding or as he described it, stabbing, as a serious indictable offence, not in terms of legal definitions but rather by recognising the inherent gravity of such an offence. The actual act triggering the offence is the giving of false information to the police. 36. In the case of Ameli on the evidence before me he appears to have given the same information on two occasions by way of electronic record of interview or an electronic record of interview supplemented by discussions. In each case he had been arrested before supplying the information. I have no doubt he was arrested on each occasion with a view to obtaining sufficient evidence to charge him. I note on 19 October 2006 when first arrested, "He was released from custody pending further inquiries." On the second occasion he simply gave the same version earlier given but on that occasion he was not released until after being charged with the affray and presumably this charge. Interestingly, there is no evidence suggesting the prosecution case against him became any stronger in the interim between the time he was first released and the subsequent time. 37. Zulfiqar was arrested on 31 October 2006; he participated in an electronic interview. This appears to be the only occasion he gave information to the police. I am satisfied the questioning of him was in relation to matters that happened on 16 September 2006 at Carlingford including the affray and anything else that may have occurred after the affray had finished and the offenders travelled from the area. Zulfiqar was also released pending further inquiries. When arrested on 15 November 2006 this offender declined to be interviewed. 38. Joel Bigeni had voluntarily attended the police station in 2006; he was not arrested. He made a statement in which he supplied information to the police. In his case I have not assumed he was cautioned. I have assumed he was not as convinced as the other two offenders would have been that he was facing the imminent and immediate possibility of being charged. When he was arrested on 4 December 2006 he declined to be interviewed. Thus he supplied information to police on only one occasion and in circumstances where, it seems to me, his considerations of his arrest and likelihood of being charged were not playing on his mind to the extent that they would have been with the other two. 39. In all three cases each offender gave the account to police voluntarily. Each was aware the account being given by him was false in material particulars. Further, each was aware these false material particulars would have the effect, if accepted, of hindering the police investigation in respect of Khosravi's commission of the serious wounding of Reynolds. 40. I think it is highly unlikely any of the three were able to delineate with any precision where his criminal liability commenced or ended in respect of the affray. I am satisfied each was primarily motivated to protect himself from prosecution in the false account he was giving. I am satisfied each saw these prospects of being best served by giving an account consistent with the account settled on earlier. It is to be remembered the account settled on earlier absolved each of these offenders from a role in the affray. I am satisfied each was primarily seeking to hinder police investigation into his own criminality and was hopeful and intended the false information supplied in that cause would also hinder in respect of Khosravi. Each saw his own charging as being a necessary precursor to the charging of Khosravi. Each ones' hindering the investigation of Khosravi's criminality was a necessary step in hindering the police in respect of investigating himself. 41. Hindering an investigation is an offence of specific intent. In remarks thus far I have sought to demonstrate that specific intent; however there is no evidence before me establishing that police acquainted any of these offenders with the fact that, (a) He or she suspected on reasonable grounds that Khosravi had committed the offence; and (b) That they were actually investigating Khosravi's role in the offence; or (c) That the offence being investigated was a serious indictable offence; or (d) That the offence of hindering police in such circumstances could constitute an offence. The caution administered to each was that their account could be used in evidence against them. The caution was, no doubt, directed to events of 16 September 2006; it was not directed to the possibility that their lying constituted another offence for which this caution did not apply, or perhaps did depending on one's view of the caution. That is to say that what they said here could be used as evidence in a further offence. [Over and above the one which was the subject of the interview]. 42. It should be noted there is no obligation on the police to reveal their hand and indeed there maybe very good reasons for their not doing so. But in assessing the seriousness of this offence against the needs of the administration of justice, it is easy to recognise the greater criminality would be to hinder an investigation when an offender deliberately intends to hinder police who have already made progress in their investigation and are not particularly concerned about any offence the informer may have committed. 43. The intent to hinder an investigation of Khosravi in circumstances where that is a by- product of seeking to avoid one's own criminality being exposed, must necessarily be of lesser criminality than hindering an investigation for reasons of malice that are not so motivated. The supplying of false information occurred on one occasion in respect of Zulfiqar and Bigeni, Ameli sought to hinder the investigation on two occasions. Because of intercepted conversations obtained by police, there was no actual hindering of the investigation into Khosravi's commission of the serious wounding of Reynolds. In the circumstances, the criminality reflected by each offence can be regarded as being towards the lower end of the range. 44. On the agreed facts while I am satisfied significant criminal conduct has been engaged in, I am not satisfied that the level of criminality exposed in either offence, or both, is such as to call for a full time custodial sentence. SUBJECTIVE FACTORS 45. I turn now to the subjective factors. I am both entitled and required to do that. Not only am I sentencing for these criminal offences but I am also sentencing each of these offenders for them. Each offender coming before the Court will vary from other offenders who stand, or who have stood for sentence. Circumstances personal to each offender may offer to the Court some explanation and insight into the commission of these offences by these offenders or some why a more or a less sentencing outcome is appropriate. 46. None of these offenders gave evidence. In each case a report from a forensic psychologist or psychologists was, or were tendered together with other documentation. In all cases presentence reports were tendered by the Crown. I am aware in circumstances where an offender does not make himself available to the Court for cross-examination upon history given to psychiatrists or psychologists, evidence of history given to and conclusions reached by the experts on that history must be scrutinised carefully before substantial weight can be given to the opinions and sometimes to the history. Joel Bigeni's Subjective Case FAMILY BACKGROUND/PERSONAL CIRCUMSTANCES 47. Joel Bigeni, aged eighteen years five months at the time of offending and twenty at the time of sentence, is a single man of Maltese heritage. His grandparents migrated from Malta. His father owned an electrical business for some years and then undertook property development. The family is said to be close and supportive. If so, the values imparted to this offender by his close supportive family might be called into question if one was to evaluate them by his conduct on the night of 16 September or at the police station. It is reported his life revolved around drugs. How can a close supportive family have missed such an involvement; or if they knew of it not dealt with it more firmly? There are two older brothers and his parents living at home. EDUCATION, SKILLS AND EMPLOYMENT 48. There is no evidence before me as to his level of formal schooling. It would seem he had sufficient education for entry into an apprenticeship possibly relating to the electro technology field. There is evidence from which I infer he left the apprenticeship, in what circumstances and for what reasons are not revealed. 49. Mr Jacmon, the psychologist who prepared a psychological profile for him, says he has recommenced his apprenticeship, apparently since the incident. How all this is to be reconciled with his earlier reasons for leaving is not disclosed. 50. His aunt, Virginia Wells, says he is in his first year (that was in December 2007) of TAFE study in electro technology but working as a landscaper even though he feels that is not his calling. 51. From a sentencing judge's point of view education, employment and skills are crucial issues for assessing rehabilitation prospects; that they should have been dealt with so cursorily by Mr Jacmon suggest that the usefulness of his report for sentencing purpose maybe compromised. GENERAL HEALTH 52. There is very little evidence of this offender's general physical health. He presents as a young man of twenty in what would appear to be reasonable physical health from the material before me. I am unable to say what, if any, impact drugs and alcohol abuse have had upon his physical health. 53. Mr Jacmon claims the psychologist test scores indicate few bodily complaints and that his scores usually indicate individuals who are optimistic, alert and effective. MENTAL HEALTH 54. Mr Jacmon's clinical assessment indicated a background of drug dependence (speed mainly) depression and anxiety at the time of offending. He sought to justify the assessment of major depression disorder and degeneralised anxiety disorder by reference to criteria from the DSMir, that is a diagnostic manual used by psychiatrists. Unfortunately he had not made out his case for either by reference to the history recited or the test results given. 55. So that my finding can be understood I use the first criteria, one which must be established, of major depressive disorder to illustrate the uselessness of his report. Either one or both of these propositions must be established to establish major depressive disorder, (a) Depressed mood most of the day, nearly every day; or (b) Marked diminished interest or pleasure in all or almost all activities most of the day or nearly every day. Mr Jacmon says, "Mr Bigeni's symptoms meet at least five criteria of major depressive disorder" (including those two I have just referred to. And hence, he says), "the condition can be diagnosed for a major disorder." Mr Jacmon should well know he is entitled to express this opinion provided he establishes an evidential basis for it in his report. True, in reciting the offender's background he does opine, "He was anxious, moody, irritable and uncommunicative when not under the influence of drugs." These are also opinions not grounded by facts. Any overview of them does not disclose, "diminished interest or pleasure in all or almost all activities" nor does it established depressed mood nearly every day. It may have something to do with a drug dependency but otherwise it doesn't establish depression. 56. Worse, the psychological testing which, of course, relates to a post incident time gives findings consistent with, * Calm, optimistic, effective in dealing with stress; * Secure, adaptable, calm under fire, little distress across many situations; * Few complaints about unhappiness or distress; * Self confident, active and relaxed; * Open and forgiving in relationship with others; * Effective social relationship and no problems with attention or concentration; * Emotionally stable and having stable relationships; * Emphatic and warm in his relationship with others; * Reasonable control over impulses and behaviour; * Reasonable control over expressions of anger and hostility; * Few thoughts of death or suicide; * Generally satisfied with himself and seeing little need for major change in his behaviour. 57. How can such a person be described as having a major depressive disorder I ask myself? 58. In the absence of any personal history of depressed mood and/or marked diminished interest or pleasure, it is "a leap too far". The presence of personality profile characteristics I have just listed it is a leap too far to understand how Mr Jacmon could reach a diagnosis of major depressive disorder or generalised anxiety disorder. On the material before me these two diagnoses are contra indicated. I reject them. 59. So far as the evidence goes it would appear Joel Bigeni is a well adjusted, socially confident, emotionally stable young man. I reject any claim in the psychological profile that he was suffering any significant mental health problem at the time of his criminal offending. 60. Further, I reject any casual nexus claimed between his criminal offending conduct and his mental health. 61. I would usually view any attempt by an offender to rely upon a claimed nexus as an attempt to minimise his criminality. In this case however it appears the diagnosis came in the absence of history or test results. I am satisfied this offender participated conscientiously in the tests. For some reason a diagnosis inconsistent with them and the history was made by the expert. For that reason I will put to one side considerations of minimisation. ALCOHOL, DRUGS AND ADDICTIVE BEHAVIOUR 62. Mr Jacmon took a history of the use of speed, marihuana and alcohol within a network of youths of Middle Eastern and Persian backgrounds. As best I can tell Bigeni's introduction to drugs and alcohol occurred in 2004 when he was fifteen or sixteen. From early 2005 until the offence in September 2005 the offender estimates he spent to $4,000 to $5,000 on drugs and alcohol. It is said he became drug dependent and would live for the time when he and his associates would use drugs or get drunk. I am satisfied at the time of the offence he was under the influence of alcohol. I am also satisfied he was under the influence of alcohol to an extent that that would have impacted upon his executive functioning of the brain including his judgment skills. CHARACTER AND CRIMINAL PAST 63. Four persons who know Joel Bigeni have supplied character references. Observations such as courteous, respectful, caring, gentle, upright, reliable, approachable have been used to describe features of his character. Two observed the criminal conduct before me is contrary to the character they knew. That confirms my view of his judgment skills being impaired by alcohol, as too has the fact that he has no criminal antecedents. Again that suggests that this act is outside his usual behaviour patterns. Nor as I understand it, has this offender been charged since the offending conduct. ATTITUDE TO OFFENCES 64. Mr Jacmon and his Aunt say he has expressed remorse to them. I am satisfied his plea of guilty has been entered as acceptance of responsibility for his criminal behaviour. I have already expressed my views as to the merits in the Crown case of behaviour with intent to hinder police. I do not regard the Crown case against him in respect of affray as being strong. His pleas were entered early, consistent with the acceptance of accountability I have just referred to. The benefit to be given to him is demonstrated by the ultimate sentencing result. REHABILITATION PROSPECTS 65. There are a number of positive rehabilitation indicators including strong family support, community network, no past criminal history, no offending since this offence, good health, no substantial mental health issues, and an apparent revival of interest in electro technology apprenticeship. Farhad Zulfiqar FAMILY BACKGROUND, RELATIONSHIP AND DYNAMICS 66. Zulfiqar was born in July 1986, aged twenty at the time of offending and twenty-one at the time of the sentence. He and his two siblings live with his parents. He arrived in Australia at the age of fifteen. Both parents are employed, one in the hospitality industry as a director of Crowne Plaza Hotel in Sydney and the other in mental health. He has a stable, supportive life. Presently he is not involved in any relationship. EDUCATION SKILLS AND EMPLOYMENT HISTORY 67. Zulfiqar acquired early education , in the Pakistan private school system. In Australia he first attended school in Year 9 at Castle Hill High. There were claims of some initial bullying. He completed his Higher School Certificate in three subjects. He did Year 11 motor mechanics at TAFE and then dropped out. More recently, he dropped out of the Advanced Diploma of Accounting offered by TAFE. His father has assisted in his employment opportunities; firstly at a fast food outlet and subsequently in January of 2007 at Crowne Plaza Norwest Sydney, in the Housekeeping Department. Since April 2007 he has been employed by the same employer but this time in Stores. His present boss claims he is now undertaking Certificate III in accounting at the Baulkham Hills TAFE. It is said (Emma Collins), that he will probably return to full time studying later this year and maintain only part time work. It is claimed he has 18 months left to complete his certificate. GENERAL HEALTH 68. Emma Collins notes the offender did not report any lasting medical problems. He does however report a history of injuries through fights, including the need to be stitched after being hit with broken bottles. One such incident resulted in him becoming unconscious. MENTAL HEALTH 69. There is no history capable of suggesting any significant mental health issue. However one cannot rule out on the history provided, some anger management issues. One has to query why he has a history of fighting. He has concerns about his inter personal relationships. He appears to be experiencing some social isolation. DRUG AND ALCOHOL ISSUES 70. This offender claims his alcohol history began when he was eighteen. At the same time he appears to have commenced using cannabis. He claims his cannabis use was limited to every one or two months. He also claims to have been on binge drinking on weekends during 2005/2006. By 2006 he was drinking four to five times weekly, with one episode of binge drinking at the weekends. In June last year, 2007, he claims to have made a commitment to be substance free. He denies drug or alcohol use in the last eight months. On the night of the offence he claims he consumed five standard drinks and was feeling the effects of alcohol. It is likely his executive functions of the brain were compromised, including his judgement skills. They would have been affected by his alcohol consumption. CHARACTER AND CRIMINAL HISTORY 71. Farhad Zulfiqar is a 21 year old male, still developing his work and social skills. He appears to possess a reasonable work and study ethos. His sister-in-law reports him as kind, warm hearted, willing to help. In December of 2004 he was charged with two counts of assault. They must have been serious because even though they were first offences, the Local Court imprisoned him for six months. That was reduced on appeal to bonds for twelve months. The pre-sentence report claims this offence to be a breach of the District Court bonds. However on other evidence before me, particularly the criminal antecedents, that would appear to be incorrect. The bond expired in May of 2006. That is four months before this offence. I have certainly acted on the basis of the criminal antecedents as tendered by the Crown. ATTITUDE TO THE OFFENCE 72. I accept his plea as indicating a willingness to be held accountable for his criminal conduct. I do not regard the Crown case against him in the affray as strong. I have expressed my views in respect of the behaving with intent to hinder police. Neither of these were strong Crown cases. His sister-in-law claims he regrets the incident and is now wiser. He told Probation and Parole he had seen things get out of hand and had removed himself from the situation. He has severed relations with those associates who were also involved in this offending, even though it resulted in some social isolation for him. Probation and Parole observed he now presents as committed to his employment and studies and made adjustments to his lifestyle. All this suggests remorse and a desire to rehabilitate. PLEA STATUS 73. He pleaded guilty before the magistrate. He is entitled to the utilitarian value of the benefit of that plea and that also will be given in the sentencing outcome. REHABILITATION PROSPECTS 74. There are a number of positive rehabilitation indicators. Strong family support. Reasonable work ethic. Commitment to obtaining and accounting qualification and attaining accounting skills. No criminal offending since this offence. Progress in drug and alcohol rehabilitation. Good physical health and absence of mental health issues. Farhang Jabal Ameli 75. Before I deal with Mr Ameli's subjective features I must deal with a third offence, for which he is to be held accountable today. This is an offence that he, on 12 July 2007 at Baulkham Hills, did maliciously wound, Sharhin Norozian. FACTS OF THAT OFFENCE 76. Ameli and Sharhin Norozian are friends from the Persian community. It would seem they had a falling out in around April 2007. Early in the evening of 12 July 2007, Norozian was contacted by a third male, also Persian and also a friend of the offender. The third person contacted Norozian and said that the offender had heard from another person, that is a fourth person, that Norozian had been speaking in a derogatory manner about him (the offender) 77. As events would have it, Norozian sometime later arrived in the region of the offender's house. The offender left the house and confronted Norozian in the driveway. There was a discussion about comments, which the offender attributed to Norozian and which indeed Norozian admitted. That conversation then developed into an argument. The offender said, "Why are you talking shit behind my back" and later he said, "A girl told me you called me a fat gronk with man titties". Norozian replied, "It's time for you to buy a mirror and look at yourself. You are one. You're a fat kid with no life". The offender poked Norozian in the left shoulder with his finger and said "Stop talking shit and look at yourself. You're a low life. You lick balls". Norozian said "Well what are you going to do about it if I am talking shit?" The offender said, "Look at yourself, you ugly cunt. You have to get a life". 78. Norozian then grabbed the offender on his left shoulder neck area and said "Bro, I have a life. I study. I work as well. But what are you? You're just a criminal?" It is to be remembered that at this time, the offender stood charge with the two earlier matters I have referred to. The offender replied, "Don't call me "bro", I'm not your brother". 79. He grabbed a carpet cutter from the front loop of his jacket and drove it into the victim's upper left thigh. It says in their agreed facts. The photograph causes me some problems. The prisoner then walked out of the townhouse complex via the driveway with Ashari. Norozian removed his pants and shoes and applied pressure to the wound. He went to Ameli's house and spoke with the offender's mother, informing her he had been stabbed by the offender. He then went to a neighbouring townhouse and contacted emergency services, sat out at the front of the complex then waiting for an ambulance. 80. Police arrived. He was sitting on the road with a blood stained tee-shirt covering his left leg. It was bleeding. Meanwhile the offender contacted police, telling them his friend had stabbed himself in the leg. Apart from those acts, the offender in no other way offered any type of medical or other assistance to him. Norozian was conveyed to Westmead Hospital where he was treated for a 10 millimetre wound to his left thigh, said to be consistent with a wound from a kitchen cutting knife. Detectives attended and arrested the offender. THE OBJECTIVE SERIOUSNESS OF THAT OFFENCE 81. The starting point is to remember that all citizens are entitled to the integrity of their bodies. A deliberate wounding of another human being is an anti social act of a high order. To a greater or lesser degree, it is destructive of the body of the victim. One of the measures of criminality in these offences is the amount of damage done to the victim. In this case the evidence of damage is confined simply to the proposition that it was a wound, it was bleeding, it was 10 millimetres and was said to be to the left thigh. Whether the 10 millimetres reflects the depth or width is unclear but I have taken it to reflect the depth. As earlier remarked the photograph of the wound does little to assist. There are three or four strip bandages across the wound. The photograph disorients the viewer because a black patch in the photograph appears consistent with a sock, in which case the photographed wound would not be on the upper left thigh. There is no evidence of any muscular tendon or artery damage. There is no evidence of hospitalisation beyond casualty repair and treatment. I can but conclude the wound was superficial and healed readily and normally. The offence does not appear planned. But the offender did appear to be carrying a cutting weapon on his person. That would be an aggravating feature. The incident occurred in circumstances where the offender, rightly or wrongly, felt aggrieved at the victim's conduct. I do not take the physical contact by Norozian as to have been aggressive physical contact. I think he was simply making a point. 82. The act of stabbing was not an act done in revenge but an act done in anger. In civilised societies there are limits to how angry people may behave. Resort to any form of physical violence, let alone using a weapon to harm another, is rightly regarded as criminal conduct and inexcusable in an argument setting. This wounding though falls towards the lower range of criminal seriousness by comparison with other malicious wounding. However the seriousness of the offending conduct becomes aggravated by virtue of the fact that it was done while he was on bail for the offences committed in September of 2006 with his co-offenders. SUBJECTIVE FACTS 83. At the time of his offending with the co-offenders, he was eighteen and a half years old, a single man, living with his parents in Baulkham Hills. He and one younger sister had emigrated to Australia from Iran in 2005, having completed in Iran what would appear to be a Year 9 equivalent. His father is an engineer. His mother is a social worker. EDUCATION, SKILLS AND WORK EXPERIENCE 84. He is reported to have a long history of difficulty in concentrating, being impulsive in behaviour and speech and generally finding troubling behaviour easier than being well behaved. He was the class clown. He did poorly in an academic sense. There were behavioural issues in class, including throwing things, making fun of teachers and jumping about. His conduct was of such an order that it led to him being excluded from class on occasions. On arrival in Australia, he attended an intensive English course then progressed to Years 10 and 11 at secondary school. By eighteen he was a part time Year 12 student at TAFE, working full time as a house painter to fund his education. A director of the painting firm for which he now works, guarantees him a full time position. That person described him as reliable and hardworking. GENERAL HEALTH 85. This offender presents as overweight. He has a high serum cholesterol count, suffers hay fever and has had a lipoma removed from his right breast. MENTAL HEALTH 86. Rosemary Boone, psychologist, took a history partly from school reports and partly from the offender and his mother, indicating he had never completed any of his school work, was apathetic, unmotivated, no work ethic, impatient, prone to mood changes, low frustration level, easy to anger and unable to learn from past experience. Information from the home front was of a similar kind. She diagnosed difficulties in frontal, temporal and partial lobes. "This means he will have difficulty paying attention to auditory and visual stimuli, planning and organising tasks, understanding cause and effect relationships and with language, comprehension. In general [he] will also have difficulty controlling his moods and impulses and will at times lack motivation. His tendency to compulsive behaviour, mood swings and low tolerance to stress correlates to brain disregulation in the temporal and frontal lobes". 87. In Australia he has been assessed as having full scale IQ of 85, performance IQ of 96 and a verbal IQ of 81. To what extent if at all language difficulties impacted upon the result is unknown. By contrast his IQ measure in Iran was full scale IQ 120 to 126. He has a reading age of 7.7 years and a spelling age of 10.7 years. 88. Another clinical psychologist Paul Friend diagnoses him as reaching criteria for Attention Deficit Hyperactivity Disorder. Between Ms Boone and Paul Friend, there appears a divergence as to appropriate modes of treatment. That is not unusual but must be unsettling for Ameli until an appropriate regime is worked out. The evidence does disclose some consciousness by this offender in pursuing the treatment regime advised by Ms Boone. My understanding is that the more conventional treatment of ADHD stimulant medication may well become the preferred favoured mode of treatment. I anticipate that the two treatment modes may well be because there appears to be a difference in diagnosis. ATTITUDE TO OFFENCES 89. This offender told probation and parole he now realised how important it is to use good judgment and to think of possible consequences before acting out. He has pleaded guilty to all matters from the outset, consistent with a preparedness to accept full responsibility for his criminal conduct. As I said a moment ago, he appears to be cooperating with Mrs Boone, seeking some stabilisation of his troubling behaviour, through a control of his mental health symptoms, however diagnosed. Given all that, there is nothing before me suggesting any empathy with or for or either of his victims of violence. In respect of the stabbing matter, he contacted police to report the injury and presumably to obtain some form of emergency treatment. He has not denied responsibility for the injuries but he has not expressed contrition in any way relevant, to either of the victims. REHABILITATION PROSPECTS 90. This offender's rehabilitation prospects are more clouded than the others because of the mental health issues and his propensity for being in trouble during his earlier past life. Of course troubling behaviour does not equate with criminal behaviour but there are some worrying features. Anger management issues appears to be one. An apparent failure to comprehend the impact of his behaviour on others, another. A third is the repetition of violent offences within a relatively short period. On the other hand, he does have a strong family support, has been cooperating with treatment plans, has expressed a willingness to commit to rehabilitation and is in employment and gaining painting skills. 91. In respect of all offenders, the following comment can be made. Each of these offenders was young at the time of the offending. Two were eighteen and a half at the time of the offending, the others were either at twenty or in their early twenties. The court has long regarded rehabilitation as an important emphasis in those cases where the criminality does not reflect adult based criminality. There are factors relating to immaturity, peer pressure, inexperience with alcohol and impaired judgement skills that are frequently associated with adolescent behaviour. That being so, rehabilitation is to be given some prominence in the sentencing. SETTING THE SENTENCES - DETERRENCE 92. In determining sentencing disposition, it is useful to remember general deterrence can be effected in many ways. It is thought the most powerful form of general deterrence is incarceration. But there are other forms of general deterrence that may be efficacious for sentencing purposes. In this case, these three youths have been charged, been before the Local and District Courts in respect of these offences. Their involvement in these crimes has become public knowledge in circles in which the families move. A good example of that public knowledge occurs in the third offence for Ameli. Their families have, no doubt, been harnessed by them to pay for private legal representation. That has included in each case, the purchase, at family expense, of professional services of psychologists. Much time, emotion and commitment has been devoted to preparing them for sentencing hearing. Much anxiety has been spent worrying about the sentencing outcome. They have heard their conduct denounced by a judicial officer of this Court. In respect of the affray, a significant penalty in addition to a bond will be imposed. All of these work as deterring agents. Hopefully in the circumstances of this case, that is all of the deterrence necessary. 93. The maximum penalty for the offence of affray is ten years; for behaviour with the intention of hindering police, is seven years and for the malicious wounding, seven years. APPLYING THE PLEA DISCOUNT 94. I have given each offender the benefit of the plea discount. In the case of Bigeni and Zulfiqar, by determining upon a sentence other than imprisonment or a community service order. In the case of Ameli in circumstances where his total criminality may have required some full time custody, by giving him an opportunity to establish he can rehabilitate rather than finalising his matter today, 95. Ameli's role in the affray is greater than the other two offenders. Further his malicious wounding charge means the total criminality being dealt with in his case, relates to three occasions rather than two. Even though his role in the hindering is less, the overall criminality reflected by the general circumstances of that offence was never high against the other offenders. PASSING SENTENCE 96. Mr Zulfiqar and Mr Bigeni, will each of you stand. I convict each of you, that you between 10pm and 11.31pm on 16 September 2006, at Carlingford, used unlawful violence towards Matthew Reynolds, by conduct such that a person of reasonable firmness, if present at the scene, would have feared for his safety. For that offence, you are each fined $750. I also impose as I believe I am entitled to and I stand to be corrected, a bond pursuant to s 9, to be of good behaviour for 15 months. I do not require any supervision of that bond but I tell you each, that in the event you are not of good behaviour, that means any offence such fighting, such as speeding, driving whilst disqualified if that be the case, any offence, you will come back before me and you will be liable to be sentenced for this offence, even though you may have paid the fine of $750. Some judges, mark a breach of the bond to another judge. I do not do that. I want you to understand, I take a personal interest in what happens to people who I sentence. I will not miss you if you come back to me. 97. In respect of the other offence you both stand charged with, I find you guilty, each of you, that you did knowingly give false information to police intending to hinder the investigation of a serious indictable offence committed by Alborz Khosravi. For that offence, you are to enter into a bond, to be of good behaviour for 12 months. Again in the event of a breach of that bond, you will come back before me. You may sit down. 98. In respect of Mr Ameli, would you stand up please, Mr Ameli just at this point in time, all I am going to do until I have heard from your counsel is convict you of each of these offences. I cannot put you on a s 11 bail, which is what I intend to do for nine months, until I have convicted you. Does he understand what a s 11 bail is? ROWAN: In general terms, yes. I'll make sure that it's-- HIS HONOUR: 99. Mr Ameli there is no point in my doing this if you do not want it done. I am not going to sentence you today. I am going to sentence you in nine month's time. If I was to sentence you today, you have heard me say, there is a very strong likelihood you would go to gaol. That third offence, is an offence coupled with the other two, that puts you in gaol, in my view. I can do that today. I would need to go away and think quite what sentence I was going to give you but I can do it. On the other hand, I am going to give you an opportunity to show me that you can rehabilitate. You heard me say, I hope in the course of my remarks, that rehabilitation was important in young offenders. If you were to rehabilitate, so that I was confident that that would continue, (hence the nine months), I would not send you to gaol. I would find some sentence less than gaol. You have a chat quickly with your solicitor because I do not want to go any further if you do not want to do this. ROWAN: Yes your Honour, he understands that. To be fair he did express a concern with his reporting conditions and things like that but I'll certainly-- HIS HONOUR: I'll deal with that shortly. 100. Farhang Jabal Ameli, you are convicted that you, on 12 July 2007 at Baulkham Hills, maliciously did wound Sharhin Norozian. You are also convicted that on 16 September of 2006, you used unlawful violence towards Matthew Reynolds by conduct such as a person of reasonable firmness if present at the scene, would have feared for his or her safety. You are also convicted that you, between 16 September 2006 and 15 November 2006, did knowingly give false information to police, intending to hinder the investigation of a serious indictable offence committed by Alborz Khosravi. 101. There is something I want to say which is more addressed to the parents, I must say, than to the offenders. I will just do that now. No expense appears to have been spared in ensuring the best possible advocacy and experts were retained to present the defence cases. The Court has been assisted by all counsel at the Bar table. Hopefully, however, assistance will stop so far as accepting any responsibility for the criminal behaviour hereafter. So far as I am aware, I cannot prevent any other person gifting or offering the funds necessary to pay or indeed paying the amount of the fine on the account of either of the accused I have fined. However such an action would vitiate the punitive intent behind the penalties imposed. It would constitute in my view, an unwarranted interference with the administration of criminal justice and an over indulgence of the offender. These offenders must learn to be able to account for their own criminal conduct by paying their own fines. In such circumstances, helping any of them pay a fine is seriously contra indicated. If your parents are not here and you plan to get a loan from them, please be good enough to tell them what I have said. 102. So far as the accused Bigeni and Zulfiqar are concerned, they may be excused and can enter their bonds in the registry as soon as I can get the material down there. 103. In respect of Ameli, what I want to do, I said I would set a nine month period. I want to see him on three occasions during that nine month period. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.