R v MATAR [2011] NSWDC 208

District Court New South Wales

Medium Neutral Citation: R v MATAR [2011] NSWDC 208 Hearing dates: 7 October 2011 Decision date: 07 October 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period three years and a head sentence of five years. Catchwords: CRIMINAL LAW - Sentence - Assault occasioning actual bodily harm - Recklessly cause grievous bodily harm - Form 1 - Offender's significant mental health problems. Category: Sentence Parties: The Crown Amgad Matar Representation: Mr T Bailey - Crown Director of Public Prosecutions Armstrong Legal - Offender File Number(s): 2009/230029

SENTENCE 1HIS HONOUR: Amgad Matar was responsible for a lengthy period of sustained violence during which he assaulted his wife, causing her significant and serious injuries. Indeed, photographs tendered to me showing the external injuries suffered by the victim in this matter reveal extensive injuries over virtually every part of Ms Zaki's body. Those injuries are entirely consistent with the sustained violence to which she was subject at the hands of the offender. The Crown tendered a statement by Dr Maria Nittis, who has been a doctor since around 1990. She also looked at the photographs and said this: "The bruising is extensive and the worst I have seen in my professional career." 2I have to say that, despite many years involvement in the criminal law, my assessment is the same. The bruising to Ms Zaki's right arm and right thigh in particular is disturbing to look at. 3The offender pleaded guilty in this Court to two offences: (1) that on 2 October 2009 he assaulted Ms Zaki thereby occasioning to her actual bodily harm; and (2) he also pleaded guilty to a charge that on 17 October 2009 he recklessly caused grievous bodily harm to Ms Zaki. The Crown explained that the grievous bodily harm on which he relied for that offence was a subdural haematoma. When I sentence him for the recklessly causing grievous bodily harm matter, the offender asked that I take into account five further offences of assault occasioning actual bodily harm committed on 3 October, 4 October, 7 October, on or about 10 October and 16 October 2009. It is clear from the dates of the offences offences alone that this was a sustained period of violence. 4The offender and Ms Zaki were married in Egypt in 1999. They came to Australia in 2000. It is important to understand that at the time of the offences I am about to describe, Mr Matar was psychiatrically unwell. He was hearing voices. He gave evidence that the voices told him both that his wife had been unfaithful and that he should hit her. 5On 2 October 2009, Ms Zaki spoke to a priest about her marriage. When the offender learned what had happened, he accused Ms Zaki of speaking to the priest for sexual gratification. When he got home from work he told her to go to the kitchen and stay there until he let her come out. He wrote out a list of questions for her to answer. He then called her into the bedroom and asked whether she had been unfaithful to him. She denied that she had which, somewhat surprisingly, angered the offender. He picked up a plastic chair and, using that as a weapon, hit Ms Zaki with it to her legs and arms. He continued doing this until it broke. He did not stop, though. He then picked up a toy gun and used that as a weapon, too, again hitting Ms Zaki with it many times until it broke. 6Of course, given the other offences that I am about to describe, it is impossible to attribute particular bruising to a particular offence, but Ms Zaki said that her legs were so sore from the assault that I have just described that she could not stand up. The offence I have just referred to is the first for which the offender must be specifically sentenced. The next five offences appear on the Form 1. 7The offender again wrote out questions he wanted to ask Ms Zaki when he returned from work. He began examining her mobile phone. He wanted to know where the number for the priest was. Ms Zaki told him that she had deleted it because she was scared. He then started to go through the mobile phone, asking Ms Zaki about the phone numbers stored in it. When she was not able to tell him some matters that he wanted to know, he became angry and began hitting her with his fists, all over her face and head. This continued for several hours resulting in swelling to Ms Zaki's eyes and head. 8The following day the offender required that his wife compile a list of the telephone numbers in her mobile phone and who they related to. A few days later, when the offender wanted to know where an old pillow was, and Ms Zaki told him that she had thrown it out because it was torn, he became angry and punched her in the head. Not surprisingly the pain that Ms Zaki felt on this occasion was exacerbated because she was being punched on top of her already swollen and bruised face. Not only was she fearing physical pain, but during the assault the offender said, "I want to kill you." 9We next move to 7 October. The offender again abused Ms Zaki about talking to priests about their marriage and began hitting her. Somewhat remarkably, the offender complained about the pain he was experiencing. I repeat, it was the offender who complained about pain that he was suffering. He was suffering from this pain in his hand and arm because he had been hitting Ms Zaki. That he was concerned about his injuries and the pain that he felt, rather than Ms Zaki's condition, says a lot about the offender and the position he was in at the time. Ms Zaki gave him some Panadol, but all that seems to have done is to allow the offender to resume assaulting his wife. The statement of facts records, " When the accused felt better he hit the complainant again with the same hand . " 10There were a number of large cardboard cylinders at the home. A photograph of one of them was tendered. It is clearly an item which is not as dangerous as a baseball bat or something heavier, but it was capable of inflicting injury and it did. The offender grabbed one of those cardboard cylinders and began hitting Ms Zaki with it. This assault continued all night, causing further bruising to Ms Zaki's face and legs. 11On the weekend of 10 October, the offender again began questioning Ms Zaki about what she had said to the priests. Throughout this conversation, the offender was hitting Ms Zaki. In fact, he hit her so hard that she fell off a chair. He hit her on her legs, her arms and on her side. He hit her on her left side so much that she could not even bend over. He threw her onto the bed and stomped on her back with his feet very hard. That he would use his feet to inflict injury only makes this offence worse than it would otherwise have been. He pulled her hair, he wrapped his hands around her head and neck and moved her head from side to side. He then went and got a knife. Fortunately, it seems, at this stage one of their three children, who was born in 2002, came into the room and the offender stopped. Later that day the offender used the large cardboard cylinder again to hit Ms Zaki around the body and he punched her in the face as well. Ms Zaki was in a lot of pain and could barely walk. 12On 16 October, Ms Zaki got home from collecting keys for a house that she had leased. Again the offender said "I want to ask you some questions". Ms Zaki put the children to bed he began accusing her of infidelity, and again began hitting her and beating her all over the body using both his hands and the cardboard cylinder. 13We now come to the most serious offence for which the offender is to be sentenced. On 17 October the offender again began questioning Ms Zaki about what he said was her infidelity, and again he was hitting her with his fists, hitting her to the face and to her torso. He punched her in the kidneys. After one punch to her torso in the area of her liver, Ms Zaki screamed because of the pain that she felt. It appears from medical evidence that this blow had actually caused a laceration in Ms Zaki's liver, which is no doubt why she suffered the pain that she did. 14In response to having caused such a significant injury to his wife that she would scream, the offender simply said, "Shush, I don't want to hear your voice again," and continued to beat her. Once more he picked up the cardboard cylinder and struck Ms Zaki repeatedly. This assault caused such significant swelling to Ms Zaki's left eye that it closed and she could not see out of it. The offender did not think that he was responsible. Instead, he blamed Ms Zaki, saying , "See what you have made me do to you. You have made me do this to you." He then grabbed her hair and pulled her head back. He placed his hands around her throat and started choking her, and began violently twisting her head from side to side. Not surprisingly, Ms Zaki thought she was going to die. It would appear that it is the offender's actions in violently twisting Ms Zaki's head from side to side that caused the subdural haematoma, later identified by doctors when Ms Zaki was taken to hospital. 15The offender stopped what he was doing and went and played with his children. Ms Zaki had had enough, not surprisingly, and she called the police. Police came to the premises and saw the terrible injuries that she had suffered. While the police were there, the offender said to his wife, in Arabic, that he had nothing else to live for except to come back and kill her. 16I mentioned before that photographs showed the extent of external injuries suffered by Ms Zaki, but of course there were internal injuries as well. The statement of facts accurately summarises the injuries that were observed by medical staff. She was treated for the following injuries: 17An acute subdural haemorrhage. The evidence would suggest that a subdural haemorrhage is a potentially life-threatening event, which has a seventy-five per cent chance of causing death when it is acute, and a significant likelihood of some neuronal damage. There is no evidence to suggest that Ms Zaki has suffered any consequences from the subdural haemorrhage. I gather that she is extremely lucky. 18Doctors also found a left front scalp haematoma which was consistent with the site of some external bruising. There was a boggy swelling to the occipital region of her head. During the course of submissions there was some discussion as to whether that amounted to a fracture to the bones of Ms Zaki's head, but I will sentence him on the basis that what was referred to as a boggy swelling is, in this case, a large area of bruising with no underlying fracture. 19She also had generalised bruising to her face, forehead, left eye and chin. She had a large bruise over her right posterior chest wall, with fractured right lower ribs. Her sternum was tender. There was blood in her urine which revealed the small liver laceration I referred to earlier. Her upper and lower limbs demonstrated extensive large bruises of various shades, meaning that they were of various ages. In particular, there were large purple bruises covering her right arm and right hand. There was bruising to her left forearm and to both surfaces of her left hand. There was extensive large bruising over her right thigh, a large bruise on her left thigh, as well as multiple patchy bruising over the remainder of both her legs. There was bruising to her right shoulder. In fact, her injuries were so bad that she could not even chew food, and for a while was only able to take in fluids. It appears that, physically, Ms Zaki has recovered with no lasting consequences. 20The offender was taken to Bankstown Police Station where he admitted hitting his wife over the past two weeks. He told police that she told him to hit her and kill her. He said , "She upset me so I hit her." It is difficult to convey in words the extensive nature of the injuries suffered by Ms Zaki, but I have done my best. 21The offender was born in Egypt. As I mentioned, he married his wife whilst in that country, and they came to Australia in 2005. They have three children. The offender has no other matters on his criminal history. Growing up in Egypt with two brothers, the offender was subject to violence at the hands of his father, who was a soldier and who, the offender said, was very strict. His father would get angry and then hit him and yell at him. The offender told the psychologist that this led him to becoming reclusive and introverted, with things getting worse when he was at school. His interactions with other children appear to have been infrequent, and, when they did occur, they were to the offender's detriment. He was bullied at school and, not surprisingly, had feelings of isolation. He said that he had always lived with feelings of depression. 22At a very young age he began exhibiting symptoms of psychosis. At twelve or thirteen he began to hear voices and hallucinate. He was treated with monthly injections and daily tablets, which helped him to some extent, but made him lethargic and sleepy. The voices and hallucinations decreased a little bit, but I gather they never went away completely. His father wanted the medication to stop. And so, after a few years, he went untreated. 23It seems that his mother was psychiatrically unwell also. She would go for regular ECT therapy. In 1996 and 1997 he, once again, began being medicated for his psychiatric conditions. His hallucinations decreased, but once more he stopped being medicated, this time in 1998. He met his wife the following year, but did not tell her about his psychiatric history. 24Things went downhill in 2008. It was that year that his mother died, and the hallucinations and voices increased. He began to believe that his mother was talking to him and that he could see her moving around in the house. He began drinking for the first time. The voices began to become specific, telling him that his wife had been unfaithful to him, and telling him that he should hit her. It think it was around this time that a supervisor at work approached him and told him that he was making many mistakes, and that if he made another one he would be sacked. This led to him crying for about three hours, which led to the supervisor softening his approach somewhat, but the offender remained scared about job security and how he would provide for his family if he lost his job. 25Despite the fact that he was being told by voices to hit his wife, he knew that it was wrong. In evidence he said that he was sorry that he did things to her and accepts that the marriage is over. 26Ordinarily, conduct of this kind would result in the offender spending a very lengthy time in prison. The community is rightfully concerned about domestic violence offences, which go undetected to a large extent. Ordinarily, there would be a need for a sentence containing a substantial component of general deterrence to be imposed upon the offender. Because of the offender's significant mental health problems, which he was suffering from at the time of the offence and which contributed to the offence, he is an inappropriate person to use as a vehicle for general deterrence. 27On the other hand, it is undeniable that personal deterrence remains an important aspect of the sentence that I shall ultimately impose upon the offender. As Gleeson CJ, pointed out, personal deterrence can become even more important because of a mental illness, at the same time as general deterrence becomes less important. The offender's knowledge that he was doing things that were wrong is a recognition by him of the wrongfulness of his conduct, despite the fact that he was being told by voices to do what he did. 28Of course, the offences are all serious examples of their type. I note that the offence of recklessly causing grievous bodily harm carried with it a standard non-parole period of four years, which I will take into account. I am not going to impose the standard non-parole period for reasons which appear throughout these remarks on sentence. 29One matter which was the subject of some evidence this morning, concerned the question of whether this sustained period of violence was the only time during the marriage that there had been violence on the part of the offender. The Crown tendered a statement by Ms Zaki which referred to other acts of violence, but the offender gave sworn evidence denying that he had ever hit his wife before. The Crown did not suggest to him that he was not telling the truth. I will, therefore, sentence him on the basis that the only time he was physically violent to his wife was in October 2009, and that these offences were isolated in that sense. On the other hand, given that this was a sustained period of violence, during which the offender continued beating his wife, even though the injuries that she had already suffered must have been clear to him, each individual offence is far from isolated. 30In assessing the seriousness of the offences, of course I take into account many matters, including the injuries caused, the consequences for Ms Zaki, and, it was eventually conceded, the fact that, statistically, there was a significant risk that Ms Zaki might have died. Other matters pointing to the seriousness of the offences concern the length of time over which each individual beating occurred, and the fact that they were all part of a lengthy period of violence. 31I might at this stage refer to one submission made by the Crown. He suggested that because there were no other acts of violence in the marriage, then these offences were worse because Ms Zaki was mentally unprepared for what occurred in October 2009. At the time he made that submission, I accused him of making a "Crown prosecutor's submission", because I am sure that in another case, perhaps with another Crown prosecutor, where there was sustained violence on other occasions, I would receive the submission that it was aggravated for precisely that circumstance. I am not going to accept the Crown's submission. This would have been worse if there had been other acts of violence before October 2009. The mental harm to Ms Zaki, I am sure, would have been greater if that had happened. 32Most sentencing exercise are difficult, but cases such as this are more difficult than most. We have terribly serious crimes committed by a man who is less able to control his actions than someone who does not suffer from the mental illness affecting him. On the one hand, objectively, a very lengthy sentence of imprisonment is required. But that has to be weighed against the fact that Mr Matar is significantly psychiatrically unwell, and that treatment for his psychiatric problems would at least reduce the risk of further offending in the future. 33The plea of guilty was entered after the matter had been listed for trial, but not, I gather, on the day the trial was due to commence. No-one has made any reference to any formal case conferencing which would mandate the discount for sentence that I will allow for the utilitarian value of the plea of guilty. In those circumstances, I will reduce the sentences I would otherwise impose by about fifteen per cent, to reflect the utilitarian value of the pleas of guilty. I will also make a finding of special circumstances in the offender's favour. It is perhaps more modest than most findings of special circumstances, but I have chosen the appropriate non-parole period as the least that is appropriate for the circumstances of this case. 34It is clear that there needs to be some accumulation of sentence. Although most of the offences of assault occasion actual bodily harm are to be taken into account when I impose sentence for the most serious offence on the indictment, it should not be thought that the first offence can, effectively, be overlooked. There needs to be some measure of accumulation. 35For count 1 on the indictment, the offender is sentenced to imprisonment. I set a fixed term of eighteen months to date from 17 October 2009. For count 3 on the indictment, the offender is sentenced to imprisonment. I set a non-parole period of two years, to date from 17 October 2010, and a head sentence of four years. That means that the overall sentence is one consisting of a non-parole period of three years and a head sentence of five years. The non-parole period thus expires on 16 October 2012, which is the first day on which Mr Matar can be released to parole.