R v Hussam Ayoub ABOLAIL [2012] NSWDC 181

District Court New South Wales

Medium Neutral Citation: R v Hussam Ayoub ABOLAIL [2012] NSWDC 181 Decision date: 12 April 2012 Before: Cogswell SC DCJ Decision: 6 years imprisonment for each offence of wounding with intent to cause grievous bodily harm, accumulated by 1 year. Total effective sentence - 7 years imprisonment. Total effective non-parole period - 4 years. Catchwords: CRIMINAL LAW - Particular offences - offences against the person - wounding with intent to cause grievous bodily harm - objectively serious offence - slashing of face and neck causing serious and disfiguring scars - Sentence - relevant factors - premeditation - unplanned and irrational behaviour - occurred in the workplace - offender has serious mental health condition - aggravated by drug and alcohol use - depression since childhood, episodes of self mutilation and suicide attempts - impact on the significance of general deterrence - no prior criminality - plea of guilty - at earliest opportunity - 25 per cent discount - remorse - apologised in court - standard non-parole period not imposed - special circumstances - need for rehabilitation from addiction and extended treatment for mental health issues. Legislation Cited: Crimes Act 1900, s 33(1)(a) Category: Sentence Parties: Regina (Crown) Hussam Ayoub ABOLAIL (Offender) Representation: Counsel: Dr B Glennon (Offender) Solicitor: Director of Public Prosecutions (Crown) File Number(s): DC 2011/65538

SENTENCE 1Tui Moaga and Mario Puljiz both went to work as usual on Monday 28 February 2011 but by the end of that day both men were in hospital with serious slash wounds to their faces. Photographs show the extent of the scars. 2Hussam Ayoub Abolail had turned up at work. He was irrational and probably still suffering the after effects of a drug and alcohol soaked weekend. He lashed out at both men with a box cutting knife which was one of his work tools. 3I am about to sentence Mr Abolail for his behaviour. The word "behaviour" is a fairly neutral word to describe two very serious crimes. Mr Abolail has been charged with the same crime for each of the wounds he inflicted on Mr Moaga and Mr Puljiz. He has been charged with two counts of wounding with intent to inflict grievous bodily harm. That offence is regarded as so serious by the Parliament that it has fixed a maximum of 25 years imprisonment. Not only that, it has also fixed a standard non-parole period of 7 years imprisonment. The crime is made into an offence by s 33(1)(a) of the Crimes Act 1900. 4When judges sentence an offender, as I am about to sentence Mr Abolail, they have to give reasons. These were grave offences and sending somebody to gaol is a grave step to take, so the giving of reasons are important. They are important so that the offender knows why they are being sent to gaol. It is important for the victims of crimes to know why the judge has imposed the sentence which the judge regards as appropriate. It is important for the public to know why a particular person has been sent to gaol and what sort of punishment is thought appropriate for the crime. It is important for other courts to know the reasons for sentences which are imposed. 5When judges come to sentence offenders they have regard to the maximum penalty and if there is a standard non-parole period, as there is in this case, they have regard to that as well. They have been described as legislative guideposts which are born in mind when a judge considers the appropriate penalty. The judge must also have regard to what are called the objective circumstances of the offence; that is, standing back and looking at just what happened to make up the crime. Judges also need to take into account what are called the subjective features of the offender; that is, a judge takes into account circumstances and features of the offender which are personal to the offender and which may be relevant to why the person committed the crime. 6I need to say in a little more detail exactly what happened. Mr Puljuz and Mr Moaga were both working for Peri Australia as Mr Abolail was. There was a factory at Glendenning. Mr Puljuz was the yard supervisor and Mr Moaga was the warehouse manager. Mr Abolail was working as a yard hand. Mr Abolail turned up at work at 7am on 28 February 2011. He had at some stage in the past suffered a hand injury. Mr Moaga, as part of his duties, told Mr Abolail that he would be on light duties outside. 7What happened then cannot be explained rationally. Mr Abolail walked into a storage area. He got a Stanley style box cutting knife. He came back to where Mr Moaga was and, as the agreed facts record, "without warning lashed out with the knife in his hand, slashing Moaga across the right side of his neck." The wound obviously bled profusely and it stretched from the right side of Mr Moaga's face from behind his right ear across his cheek and up towards the right side of his mouth. He was taken to hospital where the wound obviously had to be sutured. He was released a few days later. 8Mr Abolail then walked towards the car park. Mr Puljiz saw him. Mr Puljiz did not realise what had just happened. Mr Abolail went up to Mr Puljiz and said, "Mario am I on light duties?" Mr Puljiz replied, "Yeah, you'll be on light duties." Then what happened is again described in the agreed facts. Mr Abolail "lashed out the knife within his right hand, slashing the victim to the left side of his face." Mr Puljiz received a 20 centimetre laceration. It stretched from the left nostril across the cheek to his left ear. He was also taken to hospital where he underwent surgery and spent some days in hospital. 9The police were obviously called. They in fact contacted Mr Abolail on his mobile phone. Mr Abolail later in the morning presented himself to the Mount Druitt Police Station with his brother. He was arrested and put into custody. He has been in custody since that day and I will date his sentences from that day. 10As I have said, I have seen photographs of the wounds caused to both men. They appear to be photographs which were taken soon after the wounds were inflicted. They show serious and disfiguring scars. I do not know of course how long those scars will remain on the faces of the two men. 11What is also important for a judge to take into account are features which are personal to the offender whom the judge is sentencing. 12Dr B Glennon of counsel, who appeared for Mr Abolail, called his client to give evidence. Mr Abolail was born in Jordan and came to Australia in 2006. He confirmed that everything he had told the probation officer and psychologist, both of whom provided reports, was true. 13Mr Abolail could not explain why he attacked both of the men. He accepted that it was a very serious crime and was, of course, very wrong. He apologised openly in court for what he had done. He was obviously very remorseful for the offence. In fact Dr Glennon tendered as exhibit 2 a letter from Mr Abolail to the Court which confirmed the contrition and guilt which he felt about the crimes which he had committed. 14Although he could not explain what happened and although it will be difficult to make a finding, what is clear is that Mr Abolail had a serious mental health condition, which I will come to shortly, and in addition had spent the weekend taking illegal drugs and alcohol. 15He has spent the last year in custody and has used the opportunity to see a psychologist and a psychiatrist as well as the mental health nurse. Custody has had a very sobering effect upon him including witnessing a fellow inmate who had just committed suicide. He confirmed that what he had done was completely out of character. He asserted that in exhibit 2. Indeed the criminal record, which was part of exhibit A, shows that he has no previous criminal offences. 16He has a son who lives in Jordan. The boy is aged 15. He supports him financially. He indicated that he would be prepared to comply with any directions which a psychologist or psychiatrist suggested be parole conditions. 17Cross-examined by Ms L Graham, who appeared for the prosecution, he elaborated on some references (which were unexplained) to traumatic events in his childhood. He had himself been sexually assaulted when he was 12. When he was a teenager and picnicking with a girlfriend they were both assaulted and his girlfriend was raped by a group of men. He has not disclosed that information before. 18He had realised before committing these offences that his life was spiralling out of control because of alcohol and drug use. In fact he sought some treatment the month before and had an opportunity to get some counselling. That obviously had to be discontinued when he went into custody, but he has found the counselling and support which he is receiving in custody to be helpful. 19I have made reference to a pre-sentence report prepared by a Probation and Parole officer. That provides a helpful summary which says that Mr Abolail presents as a quiet and co-operative person. It acknowledges that he "appears to have experienced difficult formative years". It refers to his father's prolonged absences from his home, bullying at school and harsh treatment which he received at home. He spent some 11 years in the Jordanian Air force. It noted experiences of depression since childhood and episodes of self-mutilation and suicide attempts. It thought that the depression may have been a "catalyst in his commencing to use alcohol and other drugs". It noted that since being in custody, "Mr Abolail has remained drug-free. During his interview, he made no attempt to excuse his offending behaviour, instead expressing his shame at what he did and his regret at both the physical and emotional pain he caused his victims." He gets support from his brother who is also in Australia. The author thought that it was "important he continues to address his mental health issues by maintaining compliance with treatment/medication and engaging in counselling." 20There is a detailed psychological report which Dr Glennon tendered in evidence. It is by Professor Stephen Woods, a clinical psychologist. One observation that Professor Woods made is that from a "clinical perspective, it must be assumed that his use of alcohol and drugs at least aggravated what appears to be a pre-existing psychiatric condition." The psychiatric condition which Professor Woods expressed as a "tentative diagnostic opinion" included an alcohol dependence disorder and a poly-substance dependence disorder. Professor Woods also noted symptoms of paranoia and expressed the opinion that that symptom, along with his sustained use of illicit drugs and alcohol before committing the offences, "would at the very least have greatly impaired his ability to fully appreciate the nature of his actions when committing the offences." He recommended a treatment regime which Mr Abolail should undertake. 21Professor Woods thought that Mr Abolail had what he described as a "complex clinical picture". The symptoms he thought were consistent with a severe mood disorder which was likely a major depressive disorder with some psychotic features or a bi-polar disorder. 22Dr Glennon emphasised that his client had early realised the enormity of what he had done. There was no real rational explanation for what he did. Indeed I described it as irrational and that appears to be consistent with the diagnosis offered by Professor Woods. Dr Glennon emphasised the finding by Professor Woods that his client's judgment was impaired. His client had pleaded guilty to the two offences with which he was originally charged at the earliest available opportunity. 23Dr Glennon emphasised the impact of the weekend of indulgence on his client's behaviour. He emphasised the sobering effect of imprisonment. He emphasised his client's remorse and argued that there are special circumstances for adjusting the normal relationship between a non-parole period and the full sentence. He said some of these were that he needed extended treatment when he was released. All of these submissions I accept. 24Dr Glennon did describe the two wounds as being at the lower end of the scale. I do not accept that submission nor did Ms Graham accept it. She argued that the injuries to both men were to their faces and that they were left with scars. I cannot say for how long those scars will remain but they both are ugly scars to the men's faces after serious slashing wounds had been inflicted. She argued that they should not be regarded as the lower end of wounds for this offence and I accept her submission. 25Ms Graham said that there needs to be some accumulation of the sentences because of the two victims. She acknowledged that the offences were obviously unplanned and that Mr Abolail's mental health condition would have an impact on the significance of general deterrence. 26I have taken into account these various submissions. As I say, I regard the wounds - as examples of wounds which can be inflicted - as being serious. On the other hand Mr Abolail has expressed obvious and sincere remorse. He was suffering from a condition aggravated by his drug and alcohol use which obviously produced this irrational behaviour, of the kind which he has never done before. Indeed he has never committed offences before in his life. 27I regard both offences as warranting the same sentence. I regard an appropriate sentence for each of the offences as 8 ½ years imprisonment. 28However, Mr Abolail has pleaded guilty. Pleading guilty means that instead of the resources of the courts being engaged for some days or weeks in hearing the trial, the matter has been able to occupy the court's time only for some hours. This is acknowledged by Parliament and the courts as being a factor which is important to take into account in reducing a sentence. 29I propose to allow Mr Abolail the full reduction of 25 per cent for the plea of guilty which he has offered. Hence the 8 ½ years penalty for each offence would normally be reduced to just over 6 years. I propose to sentence him to 6 years imprisonment for each of the 2 offences. 30I propose to accumulate the offences by 1 year so that in all he will serve some 7 years imprisonment. 31The first sentence will commence on 28 February 2011 and the second sentence will commence on 28 February 2012. Normally a sentence of 7 years imprisonment would have a non-parole period of three-quarters of that time. I propose to reduce the non-parole period to 4 years which is under 60 per cent of that time. I have taken into account what Dr Glennon said about the obvious need for his client to have an extended period available to rehabilitate himself from his drug and alcohol addiction and also to deal with his mental health issues. I propose to fix a non-parole period of 4 years imprisonment. HIS HONOUR: I am going to sentence you now Mr Abolail if you stand up, thank you. I just need to work out how I do this. 32All right for the offence of wounding with intent to inflict grievous bodily harm committed on Mr Moaga I fix a non-parole period of 3 years to commence on 28 February 2011 and to expire on 27 February 2014. The balance of the term will be 3 years to commence on 28 February 2014 and to expire on 27 February 2017. 33For the offence of wounding with intent to inflict grievous bodily harm on Mr Mario Puljiz I fix a non-parole period of 3 years to commence on 28 February 2012 and to expire on 27 February 2015. The balance of the term will be 3 years to commence on 28 February 2015 and to expire on 27 February 2018. 34The total effective sentence is 7 years imprisonment commencing 28 February 2011 and expiring on 27 February 2018. The total effective non-parole period is 4 years which commenced 28 February 2011 and will expire on 27 February 2015. The first date on which Mr Abolail you are eligible for release is 27 February 2015. Whether you are released or not on that date depends not on me but on the Parole Authority. HIS HONOUR: Have a seat Mr Abolail. Now Mr Cohen and Ms Summerfield if you wouldn't both mind first checking whether I have made any factual errors and second whether the mathematical side of the sentence is in order. COHEN: No doubt when you were completing your remarks on sentence you made a mistake when you said that he'd walked out at - this was initially you said it was Mr Moaga that walked out, you were actually referring to Mr Abolail walked out when the first offence occurred, but that your Honour when you check it's quite obvious but you've mentioned that. HIS HONOUR: Thank you. COHEN: The other one, did you make a finding of special circumstances? HIS HONOUR: I did. COHEN: Yes, I wasn't sure. HIS HONOUR: The special circumstances that I found were his need for treatment for his mental health condition and his drug and alcohol rehabilitation. COHEN: That was the only two issues. HIS HONOUR: Thanks Mr Cohen and otherwise the mathematics, so to speak, are in order, Mr Cohen? COHEN: I believe so- HIS HONOUR: Just take your time, these things are important. COHEN: Unless my friend has- SUMMERFIELD: I believe so your Honour. HIS HONOUR: All right just take your time Mr Cohen. COHEN: Thank you your Honour. No actually I already checked, yes, no I don't have anything. HIS HONOUR: All right thank you. 35Okay Mr Abolail as I say I have sentenced you effectively to 7 years imprisonment which is 2 lots of 6 years but one starts a year later because you committed 2 crimes against 2 men. Normally for a 7 year sentence, you have to serve at least 75 per cent of that which would be 5¼ years, 5 years and 3 months. I have reduced that to 4 years so instead of that your non-parole period that you have to stay in gaol is 4 years and I've reduced that because of what we call special circumstances, Mr Cohen referred to it. You will need when you get out over the following 3 years to continue to deal with your mental health issue and with your drug and alcohol problems so that I am allowing 3 years for that. And I repeat your sentence started last year when you went into custody 28 February 2011. The overall sentence finishes 7 years later 27 February 2018 and you are eligible for release, depending on the Parole Authority on 27 February 2015, that's 4 years after you've started it last year. Do you understand? OFFENDER: Yes I do. HIS HONOUR: Okay. Is there anything else Mr Cohen or Ms Summerfield? SUMMERFIELD: No your Honour. COHEN: No your Honour. HIS HONOUR: I don't think so. All right I'll give the papers to my Associate. Mr Cohen you're excused. Have a word to your client and then he can be taken down all right.