Local Court New South Wales Medium Neutral Citation: Director of Public Prosecutions v Razzak [2012] NSWLC 9 Decision date: 10 July 2012 Jurisdiction: Criminal Before: Deputy Chief Magistrate Culver Decision: See [37]-[41] Catchwords: CRIMINAL LAW - sentence - reckless wounding - victim stabbed in altercation following persistent harassment by offender - use of knife - offence committed in breach of existing good behaviour bonds - little weight to be given to provocation or excessive self defence - no sentence other than full-time imprisonment appropriate - bonds for prior offences revoked and terms of imprisonment imposed Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: JT v R [2011] NSWCCA 128 Nowak v R [2008] NSWCCA 89 R v Borkowski (2009) 195 A Crim R 1 R v Dickinson [2004] NSWCCA 457 R v Doan (2000) 50 NSWLR 115 R v Doyle (1996) 84 A Crim R 287 R v Hampton [1999] NSWCCA 341 R v Morris (unreported, 14/7/95, NSWCCA) R v Reid (2005) 155 A Crim R 428 R v Shepherd [2003] NSWCCA 351 R v Tapueluelu [2006] NSWCCA 113 R v Watt (unreported, 2/4/97, NSWCCA) Category: Sentence Parties: Omar RAZZAK Director of Public Prosecutions Representation: Ms Sutherland (Legal Aid Commission) Mr Noll (DPP) File Number(s): 2011/397377 Judgment 1The offender, Omar Razzak, is before the Court for sentencing in respect of an offence of reckless wounding. That offence was committed on 1 December 2011 whilst the offender was subject to four good behaviour bonds under section 9 of the Crimes (Sentencing Procedure) Act 1999 ('the Act'). The offence of reckless wounding. 2The offender pleaded guilty to the charge under section 35(4) of the Crimes Act 1900 of recklessly wounding Christopher Ristov on 1 December 2011 at Kogarah. The maximum penalty for this offence is 7 years imprisonment with a jurisdictional limit of 2 years imprisonment. 3The agreed facts are as follows. At about 7pm on 1 December 2011, the victim was walking alone along Rocky Point Road at Kogarah. As he reached the Perea Greek Restaurant near the intersection of Shaw Street, he was confronted by three males, one of whom was the offender. 4The offender stood in front of the victim and asked, "What are you doing? Do you have five bucks?" The victim replied, "Who's that?" The offender said, "Omar cuz". The victim then said, "Omar who?" to which the offender replied, "Omar from Hurstville". The victim had met the offender and seen him on previous occasions in the Hurstville and Brighton area. The offender continued to ask the victim for money. The victim attempted to walk away from the offender and refused to give him any money. The offender then pushed the victim to his chest area with open palms and said, "You think you're a mad cunt walking away". 5The victim walked further along Rocky Point Road and stopped at the Perea Greek restaurant. The offender and his companions followed the victim to the restaurant. The victim said to a staff member of the restaurant, "I'm having a few dramas with these boys here. Can I stand here for a bit until my brother comes?" The male staff member replied, "We have people here, this is a restaurant". He ushered the victim out of the restaurant. 6As the victim was fearful, he moved a few metres from the restaurant and used his mobile phone to call his father. His mother answered and said his father was not at home. The victim then called his friend, Michael Semrani, and told him he was on Rocky Point Road and was being "harassed by lebos". At this stage, the offender and his companions were grabbing at the victim's pockets. The victim asked Mr Semrani to pick him up. 7Whilst the victim was on the phone, the offender said words to the effect of, "Come around the corner you bitch cunt". The victim ran back to the restaurant and asked the staff member again if he could stand there for five minutes until his brother arrived. The offender followed and continued to harass the victim. The staff member from the restaurant again told the victim, "Get out of here". The staff member ushered the victim away. 8At this time, the offender approached the staff member outside the restaurant. Whilst the offender was momentarily distracted, the victim ran to the house of his friend, Alex, which was on Austral Street, some 30 to 40 metres from the restaurant. When he arrived there, the victim saw a friend, Nick, outside the house. The victim said, "I'm going to drop Omar, right fucking now". 9About two minutes later, the victim saw his friend, Michael Semrani, and four other males pull up in a car on Rocky Point Road. The victim and Alex ran back up Austral Street towards Rocky Point Road, where he saw the offender. 10The victim started walking up towards the offender and yelled to the offender, "You wanna fight, let's fight". The victim then ran to the offender and tried to kick him in the head. The offender moved out of the way. The offender then produced a knife and stabbed the victim once to his left rib area. The offender and the two persons with him then ran away. 11The victim applied pressure to the wound that had just been caused under his left armpit. He ran to Mr Semrani's car and was taken to the emergency department of St George Hospital. The victim was treated with the insertion of a chest drain that withdrew 200ml of blood. He had air and blood in his left chest cavity consistent with the penetrating wound. He was discharged from hospital six days later. 12Offences of reckless wounding generally may be regarded as serious crimes. They necessarily involve violence and injury to a victim and therefore warrant emphasis in the sentencing proceedings on general deterrence. Furthermore, this offence was committed in two circumstances of aggravation. 13Firstly, the offence was committed with a weapon, namely a knife. The law recognises that an offence of reckless wounding can be committed without resort to a weapon: R v Shepherd [2003] NSWCCA 351 at [32]. The Court of Criminal Appeal has frequently held that the use of a knife especially aggravates the offence: Nowak v R [2008] NSWCCA 89; R v Dickinson [2004] NSWCCA 457 at [23]; R v Reid (2005) 155 A Crim R 428 at [25]. It is trite to observe that the use of a knife in an emotionally volatile situation increases the potential for danger and the penalty that is liable to be imposed: R v Hampton [1999] NSWCCA 341 at [10]. Any assault involving the use of a knife calls for a significant sentence for the purposes of both specific and general deterrence: R v Watt (unreported, 2 April 1997, NSWCCA). The use of the knife to inflict a wound to the chest area under the left armpit is particularly serious. It involves an area of the body with some proximity to the heart and lungs. The victim had a penetrating wound from which it seems blood and air entered the chest cavity and had to be drained. Although there was just the one action involving the knife, it is difficult to conceive a more serious injury which would not support a more serious charge. 14In this case, the need for specific deterrence to be reflected in the sentence is particularly enlivened by the offender's criminal history. The offender's relevant history is constituted by matters dealt with in the Children's Court. These offences are admissible in these proceedings by virtue of section 15(1) of the Children (Criminal Proceedings) Act 1987 and the fact of the offender having been convicted on 24 June 2010 of an offence of possess prohibited drug: R v Tapueluelu [2006] NSWCCA 113 at [13]. The offender's record reveals that, whilst a juvenile, he was sentenced on 28 March 2006 for being in custody of a knife on 8 August 2005 and for robbery whilst armed with an offensive weapon on 10 March 2006. 15The second circumstance of aggravation is that this offence was committed whilst the offender was on conditional liberty by virtue of the section 9 good behaviour bonds. 16On behalf of the offender, there were three main circumstances of mitigation relied upon. Firstly, it was contended that the offence was committed under provocation from the victim or even committed in excessive self defence. That is, it was argued that the victim could have extricated himself from the scene, but instead he returned with Alex following him and attempted to kick the offender in the head. 17Not much weight ought to be given to provocation or excessive self defence in this case. It was the offender who, whilst in the company of two others, persistently harassed the victim in a manner that was conceded to be intimidatory. The victim twice unsuccessfully sought refuge from the offender in the restaurant and had made phone calls to family members to be picked up. When the victim managed to flee, it was only 30 or 40 metres away in circumstances where the offender and his associates remained in the vicinity. The victim returned to the offender's location only about two minutes afterwards. Any hiatus between the initial behaviour of the offender and the response by the victim was brief. It would be artificial to allow the defendant much mitigation by virtue of provocation or excessive self defence in circumstances where the victim's actions were provoked in direct response to the offender's behaviour towards him shortly beforehand. 18The second circumstance of mitigation relied upon is the offender's age. The offender was 21 years old at the time of the commission of this offence. He is now 22. Generally young adults enjoy good prospects of rehabilitation. However, the youth of an offender does not automatically lead to a reduced sentence. The more grave the offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation: JT v R [2011] NSWCCA 128 at [34]-[35]. 19The third circumstance of mitigation was the offender's plea of guilty. The plea was entered on 24 May 2012, the seventh occasion the matter was before the Court. A more serious charge was withdrawn by the prosecution and the charge of reckless wounding was first before the Court on that date. Twice a brief had been ordered in the preceding mentions. It was conceded that a discount of 20 percent is attracted by the plea: R v Borkowski (2009) 195 A Crim R 1 at [32]. 20The plea of guilty ordinarily also provides some evidence of remorse. Here, the offender was recognised by the victim and was identified by the victim in a photographic identification parade, so there might also be recognition of a strong prosecution case involved in the plea. Furthermore, the Pre-Sentence Report states the offender told the author of the report that he was not present at the time of the commission of the offence. It was contested on behalf of the offender that, because the plea of guilty was maintained, little weight should be placed on that comment and there was no attempt to traverse the plea of guilty. Whilst this circumstance will not greatly impact on the determination of the appropriate sentence, it is troubling to consider the offender's prospects of rehabilitation when his insight would seem to be minimal. The section 9 bonds. 21On 11 January 2011, the Court imposed four good behaviour bonds under section 9 of the Act for a period of 12 months. It was a condition of those bonds that the offender accept Probation Service supervision for as long as considered necessary by that Service. 22The breaches of three of the four bonds by the commission of the offence of reckless wounding on 1 December 2011 are admitted and proven against the offender. The remaining bond of the four bonds was imposed in error. 23The bonds were imposed in respect of the following offences: (1)Intentionally or recklessly damage property by fire on 8 June 2010 [section 195(1)(b) Crimes Act 1900]; (2)Light a fire upon railway premises on 9 June 2010 [clause 38(a) Rail Safety (Offences) Regulation 2008]; (3)Intentionally or recklessly damage property by means of fire on 18 July 2010 [section 195(1)(b) Crimes Act 1900]; and (4)Intentionally or recklessly damage property by means of fire on 19 July 2010 [section 195(1)(b) Crimes Act 1900]. The maximum penalty for offences (1), (3) and (4) is 10 years imprisonment, with a jurisdictional limit in the Local Court of 2 years imprisonment or a fine of $2,200 or both. The maximum penalty for offence (2) is a fine of $1,100. 24There was no power to impose a section 9 bond in respect of offence (2). This is because section 9 of the Act only allows a section 9 bond to be imposed instead of a sentence of imprisonment. As the maximum penalty for offence (2) does not involve the possibility of a sentence of imprisonment, a section 9 bond is not available for that offence. Because the bond was imposed in error, there can be no breach of that bond. Under section 43 of the Act, the sentencing proceedings for offence (2) are reopened to correct that sentencing error. 25The facts concerning offences (1) to (4) are as follow. On 8 June 2010, when the offender was 20 years old, he went to Rockdale Railway Station just before midnight. He is depicted on closed circuit television footage briefly waiting for a train and then setting fire to a Railcorp security camera lens [offence (1)]. Shortly afterwards, the offender caught a train to Kogarah Railway Station. He initially sat on a bench for a brief time and then he was filmed by a security camera as he set fire to an object and dropped it under the bench [offence (2)]. On 18 July 2010, the offender attended the Bus Bay Interchange at Rockdale Railway Station, placed a piece of paper across the lens of a security camera and set fire to it with a lighter, so damaging the lens [offence (3)]. On 19 July 2010, the offender attended the Allawah Railway Station and entered a lift. He immediately punched a security camera and caused damage to the lens. He hit the camera again with his forearm and then set fire to the camera using a lighter, so further damaging the lens [offence (4)]. All of these actions were captured by security camera. The value of total damage caused by these offences is estimated to be $2,200. 26These offences generally are serious and require the emphasis of general deterrence in the sentencing exercise. The risk with such offences is that the fire might remain uncontrolled and cause extensive damage and injury. Although there was not great damage in this case, the offender has targeted the security cameras at railway stations on four days over some six weeks, potentially exposing others to danger and potentially allowing crimes to be committed undetected. These circumstances render the offences more serious. 27The offender initially pleaded not guilty to these offences on 19 October 2010, but following the order for a brief of evidence, he changed his plea on 30 October 2010 to pleas of guilty to all four offences. 28Prior to these offences, the offender had not committed similar offences. 29The expectation of being sentenced to a good behaviour bond is that the offender will be of good behaviour for the currency of the bond. The Court sentences offenders to a particular term of bond which is determined by reference to all of the relevant circumstances of the particular case, including the appropriate period by which the offender is to have the opportunity to rehabilitate and to demonstrate such rehabilitation. Sentencing for a breach of bond should reflect that, by breach of the trust placed in the offender by the Court, he has shown a lack of remorse and his prospects of rehabilitation are cast in doubt: R v Morris (unreported, 14 July 1995, NSWCCA); R v Doyle (1996) 84 A Crim R 287. In sentencing an offender for a breach of bond, the Court must take into account the period for which the offender complied with the bond and anything done by the offender in compliance with the bond: section 24(b) of the Act. 30In this case, it is argued on behalf of the offender that the Court should take no action in respect of the breaches. The reasons advanced were that the Probation Service had terminated supervision at the time of the breaches and that there was just over a month before the bonds expired. The Pre-Sentence Report dated 3 July 2012 confirms the offender responded positively to the supervision requirement that was terminated in June 2012, some 5 months prior to breach of the bonds. 31Whilst this is not a case involving a suspended sentence of imprisonment under section 12 of the Act and section 98(3) of the Act does not apply, the Court should still have regard to the gravity of the offender's failure to comply with the bond. His failure was constituted by the commission of a serious offence of reckless wounding. That offence was committed when there was about an eighth of the bond remaining. The seriousness of the breach renders the rejection of the Court's trust in the offender's rehabilitation unable to be excused. Instead, greater emphasis shifts to the need for specific deterrence. Accordingly, the bonds are revoked and the offender is to be resentenced for those offences that were the subject of the bonds. In resentencing the offender, the totality of criminality for these offences and the offence of reckless wounding must be reflected in the combination of sentences: R v Morris, above. The subjective features 32Further to the offender's age, the Pre-Sentence Report reveals further subjective information. The offender currently lives with his parents and siblings. He had a stable upbringing and has a good relationship with his parents. The offender is unemployed and receives Centrelink benefits. He has a limited employment history, with his longest period of employment lasting three months. He has worked as a builder's labourer with his brother. He attained his school certificate at school. The offender reported a history of cannabis use, but claimed that he ceased his use just prior to the offence. The sentences 33In sentencing the offender, the Court can only take into account the purposes of sentence listed in section 3A of the Act. The weight to be given to those purposes depends on the circumstances of each case. It has already been stated that the need for both general and specific deterrence for these offences looms large in this sentencing exercise. 34The Court must also sentence with regard to the maximum penalties providing the range of seriousness, rather than the jurisdictional caps prescribed by Parliament for each offence: R v Doan (2000) 50 NSWLR 115. 35Furthermore, the Court must determine a sentence that is appropriate for each offence in the context of the circumstances of the offence and the offender, but which also, when taken in combination, is reflective of the total criminality. 36For the section 9 bond matters, the bonds are revoked and the offender is resentenced. For offences (1), (3) and (4), the offences are of such a serious nature that only a full-time custodial sentence is appropriate and no other available sentence can adequately reflect the criminality involved. 37For offence (1) on 8 June 2010, the offender is sentenced to a term of four months imprisonment. A fixed term of less than six months is imposed as it takes into account the discount for pleading together and part compliance with the section 9 bond. It is backdated to have commenced on 6 May 2012 to reflect the period of time the offender was in custody awaiting the outcome of these matters. The offender is eligible for release in respect of that sentence on 5 September 2012. 38For offence (2) on 9 June 2010, as this offence carries a maximum penalty of a fine and the offender has just been sentenced to full-time custody, the matter is dealt with under section 10A of the Act. That is, he is convicted with no further punishment for that matter. 39For offence (3) on 18 July 2010, the offender is also sentenced to a term of four months imprisonment for the same reasons as for offence (1). It is to be served partly concurrently and partly consecutively upon offence (1) in order to reflect the separate offences but also to accommodate an overall appropriate totality in sentence. The sentence commenced on 6 June 2012 and the offender is eligible for release in respect of that sentence on 5 October 2012. 40For offence (4) on 19 July 2012, the offender is sentenced to a term of four months imprisonment for the same reasons as for offence (1). It is also to be served partly concurrently and partly consecutively upon offences (1) and (3). The sentence commenced on 6 July 2012 and the offender is eligible for release in respect of that sentence on 5 November 2012. 41For the offence of reckless wounding, only a full-time custodial sentence can adequately reflect the seriousness of the offence and the need for both specific and general deterrence. There is no other available sentence which can adequately address these concerns. With the 20 percent discount, the offender is sentenced to a non-parole period of twelve months with a total term of 24 months. The sentence is to be partly concurrent and partly consecutive with offences (1), (3) and (4). It commences on 6 August 2012, so causing the offender to be eligible for release in respect of his entire sentence on 5 August 2013, whereupon he is to submit to supervision on parole. Special circumstances justify the departure from the usual statutory ratio between the non-parole and parole periods. It is the offender's first sentence of imprisonment and the total sentence will need to afford a period of supervised parole following the offender's release from custody. Deputy Chief Magistrate J Culver Downing Centre Local Court ********** 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. Decision last updated: 25 October 2012