R v Abdulhadi [2012] NSWSC 1658

Supreme Court New South Wales

Medium Neutral Citation: R v Abdulhadi [2012] NSWSC 1658 Hearing dates: 27 February, 23 March, 2nd April, 2012 Decision date: 20 April 2012 Before: Latham J Decision: Sentenced to 3 years and 7 months, commencing 25 October 2010, expiring 24 May 2014. I fix a non parole period of 2 years, expiring 24 October 2012. The offender is eligible for release on 25 October 2012. Catchwords: SENTENCE - guilty plea - affray - 10% discount for guilty plea at late stage - high level of objective gravity - significant level of general deterrence - no expression of remorse - offender's criminal history not a significant factor - finding of special circumstances based on offender's medical and psychological issues Legislation Cited: Crimes Act 1900 Cases Cited: R v Barghachoun [2011] NSWSC 1534 Category: Sentence Parties: Regina - (Crown) Rami Abdulhadi - (Offender) Representation: Counsel P Barrett - (Crown) P Little - (Offender) Solicitors Solicitor for Public Prosecutions - (Crown) Grays Legal - (Offender) File Number(s): 2009/19163 2010/98091

Judgment 1The offender, Rami Abdulhadi, pleaded guilty on 27 February 2012 to one count of affray contrary to s 93C of the Crimes Act 1900. The offence carries a maximum penalty of 10 years imprisonment. 2The plea was entered two weeks after the empanelment of a jury in relation to a charge of murder then preferred against the offender. Following legal argument and the withdrawal of evidence upon which the Crown relied in relation to the murder charge, the offender acknowledged his guilt of the alternative count and it was accepted in full discharge of the indictment. 3In these circumstances, a discount of 10% is warranted for the offender's plea. The utilitarian value of the plea is, in my view, very low, given that the Crown had undertaken all of the preparation necessary to put the offender on trial. It matters not that there was no offer from the Crown to accept such a plea in discharge of the indictment before the withdrawal of the critical evidence ; it was always open to the offender to admit his guilt of the affray charge. 4The agreed statement of facts are Exhibit A in these proceedings. They record that on 25 June 2009, Hamden Elkobaili was involved in a physical assault with Samir Mohamad at Bankstown's Centro shopping centre. Adam Mariam was also present. The assault was interrupted by security staff and by police. Both groups were escorted from the premises. Hamden Elkobaili was said to be the instigator of the conflict and was heard to refer to Samir Mohamad as a "dog". 5Over the following hours, numerous telephone calls were made between associates and family members of the two opposing camps, namely the Elkobaili group and the Mariam group, as well as between members belonging to each group. During these telephone calls, arrangements were made to meet in order to pursue the earlier conflict. During these calls both the Mariam group and the Elkobaili group recruited other people to participate in the planned confrontation. 6The offender was recruited by the Mariam group, some of whom had earlier gathered at a barbecue at Mahmoud Mariam's home in Georges Hall. The offender was requested to accompany the group to the car park where the planned confrontation was to take place. 7Mahmoud Mariam, Tarek Elbadar and the offender travelled to the vicinity of the car park in a Mazda driven by a Elbadar. They parked near a roundabout on Starkey Drive and walked from the vehicle into the car park adjacent to a Hungry Jack's food outlet. The trio was seen by a number of employees of that outlet. They changed direction and walked towards the Aldi store on the northern edge of the car park. They remained in view of the Hungry Jack's employees until those employees left the parking lot shortly thereafter. 8Mahmoud Mariam and Tarek Elbadar positioned themselves in the KFC car park behind some trees, facing towards Hungry Jack's. Shortly afterwards, a Honda car driven by Moustafa Mariam with Adam Mariam as a passenger pulled into the car park and parked between KFC and Hungry Jack's. Moustafa Mariam and Adam Mariam remained in the car. 9A short time later, a white van carrying the Elkobaili group entered the car park and parked alongside the Honda. At this point in time, the high beam of the Honda was activated, whereupon some members of the Mariam group started walking towards the white van. 10Hamden Elkobaili left the white van and ran to the car carrying Moustafa Mariam. The two men started fighting. Adel Elkobaili left the van carrying a rifle. 11Almost immediately, someone in the Mariam group began shooting at the Elkobaili group. Adel Elkobaili returned fire. Very shortly thereafter the Elkobailis retreated to the van and left the carpark. 12The offender was present in the carpark with a view to encouraging and assisting the Mariams in giving a "few slaps" to the Elkobaili group when he was shot near the KFC. He was shot in the abdomen and fell to the ground. Moustafa Mariam was shot in the arm. 13One of the bullets fired during this incident in the car park struck a truck driver, Mr Knight, who was travelling on Milperra road, resulting in his immediate death. 14Tarek Elbadar drove Moustafa Mariam and Adam Mariam to Bankstown Hospital after a triple 0 call to report the incident. The offender was left outside the KFC outlet and was attended to by police and ambulance officers who then transported him to Liverpool Hospital. 15One only has to relate the circumstances surrounding the commission of the affray to appreciate its objective gravity. The level of violence meted out in the course of these events and the premeditated assembly of 11 young men in a public place, adjacent to a major arterial road in western Sydney, at about 10:30pm on a week night, for the sole purpose of settling a score that seems to have arisen during a petty assault earlier that day, marks this affray as a particularly serious example of the offence. 16Notwithstanding that the events outlined above took place over a relatively short period of time (including the discharge of firearms over a matter of minutes), it bore all the hallmarks of a complete disregard for, indeed a contempt for, the rule of law. It was an abhorrent and despicable display of male aggression. 17Whilst the offender is not responsible for the infliction of any injuries on others, he was a prospective participant in the confrontation and must have acknowledged the possibility, if not the probability, of physical injuries being occasioned to others. So much is acknowledged by the reference to a "few slaps" in the agreed facts. I do not accept that the offender envisaged that the confrontation would amount to no more than striking others with an open hand. It offends common sense to draw that conclusion when the whole point of the exercise was, to the offender's knowledge, to exact revenge for an earlier assault committed by a member of the Elkobaili group on an associate of the Mariam group. 18The offender was there to assist if and when required. Whatever contribution he intended to offer was cut short by the fact that he was shot. There is no evidence before me that he withdrew from the enterprise at any stage before being wounded. 19These observations in no way seek to punish the offender for the conduct of others, in particular the possession and/or discharge of firearms resulting in the death of Mr Knight. It is relevant however to an assessment of the objective gravity of the offence to take into account its scope and scale. It is only by having regard to these factors that one can appreciate the extent to which members of the public were put in fear. 20It remains true to say that this offender agreed to accompany others, in the knowledge that they were to confront another group for the purposes of assaulting members of that group, with whom this offender had no direct relationship and against whom he had no cause for aggression. Such mindless mob mentality is the precondition for this type of offence. It often leads to, and did in this case, unintended consequences of tragic proportions, including the wounding of this offender. 21A very significant level of general deterrence arises from the fact that the offence represents a breach of the public peace and a deliberate flouting of the law. This feature should be reflected in the sentence to be imposed. 22The offender gave no evidence and has expressed no remorse for his conduct on the night in question. To the contrary, he has complained long and loud about the failure of the police to charge anyone with his shooting. That state of affairs is largely a product of his refusal to co-operate with investigating police, as was his right. To the extent that there is a statement in the report of Mr Watson-Munro of 15 March 2012 that "it is also apparent that Mr Abdulhadi is genuinely sorry for the victim of this matter and the deceased's family reflecting some insight to the impact of this tragedy upon others in the community", that opinion is unsupported by any reference anywhere in any of the three reports from Mr Watson Munro to such a sentiment actually expressed by the offender. It has no weight. Similarly, I regard the remorse inherent in the plea of guilty as almost negligible. 23The offender has a minor criminal record including driving offences, a number of vehicle thefts and their illegal use, and possession and supply of prohibited drugs. The offender served a short term of imprisonment for an ongoing supply offence, committed between 27 January 2010 and 9 February 2010, relating to the supply of methylamphetamine to undercover police officers. This offending was accepted by the sentencing judge in the District Court to have been motivated by a degree of entrapment. The offender received a sentence of 2 years imprisonment, including a non parole period of 7 months. He was entitled to be admitted to parole on 25 October 2010, but remained in custody bail refused on the instant charge. It is accepted that the sentence to be imposed ought commence from that date. 24Whilst this record deprives the offender of a claim to good character, it cannot be said that it demonstrates escalating criminality. The offender's criminal history is not a significant factor for the purposes of sentence for the instant offence. 25The offender's subjective circumstances are set out in a number of reports that are part of Exhibit 1 on sentence. 26The offender is currently 30 years of age. He is the eldest of three children born to parents of Lebanese extraction. He had a supportive and stable upbringing. He failed to complete year 10 and was encouraged by his parents to complete his education at TAFE. However, the offender did not participate in further education and took up employment in various family owned businesses. He is described by his father as a capable worker with excellent customer service skills. 27The offender denies abusing alcohol although he commenced using cannabis at 16 years of age and developed a daily pattern of use. He began reducing his consumption of cannabis in his mid-20s and resolved to cease his association with a drug using peer group. There is nothing to indicate that his criminal history is in any way linked to his abuse of drugs. 28The offender's response to supervision in the past has been less than satisfactory. The offender is noted to have breached a community service order in 2002 by way of poor attendance and has breached a good behaviour bond by way of the commission of further offences. However, a community service order imposed in April 2006 was satisfactorily completed and supervision was terminated on 24 July 2006. 29I am not persuaded that the offender's prospects of rehabilitation are promising, but the offender has the ongoing support of his family, particularly his father, and in those circumstances it is reasonable to infer that secure employment will be available to the offender. For the reasons that I will shortly provide, I am of the view that the offender will benefit from a lengthy period of supervision after his release into the community. 30The offender's conduct on prior occasions in custody has attracted internal misconduct charges. The most recent period of incarceration has been complicated by the extensive medical and psychological needs of the offender, arising out of the gunshot wound to his abdomen. The injury has given rise to anxiety and a diagnosis of post traumatic stress disorder. He has been prescribed sedatives and antidepressants within the Justice Health system. It is submitted by his counsel that his present medical needs are not being met within the gaol. 31The offender experiences chronic pain, for which he has been prescribed medication, and has lost a considerable amount of weight. His injuries require a particular dietary regime, consisting of seven small meals a day. Part of the projectile remains within the offender's abdomen and will require surgical removal at a later date. 32The extent to which the offender's medical and psychological needs are being met within the correctional system and the willingness or otherwise of the offender to undergo surgical treatment while still in custody for the removal of the projectile were matters of considerable debate between the Crown and the offender. It is not relevant for present purposes to resolve those issues, except to acknowledge that the defendant does require medical attention and that optimal treatment is unlikely to be available in custody. These considerations have led me to the view that special circumstances ought be found and the ratio between the non-parole period and the balance of term will be altered accordingly. However, it is nonetheless necessary for the non-parole period itself to adequately reflect the objective gravity of the offence. 33Before proceeding to impose sentence, I would make the following observations in respect of a submission by the offender's counsel that relied upon other sentences imposed by this Court for affray, all of them connected with a brawl between two opposing bikie groups at Mascot Airport in March 2009. Hulme J imposed sentences varying from 2 years and 2 months to 2 years and 5 months upon four offenders, following their pleas of guilty to affray. They were also sentenced for manslaughter. The sentences for the affray were expressed as fixed terms, given their partial accumulation on sentences imposed for manslaughter. 34Hulme J expressed the view that the fixed terms represented what should be regarded as the total term of the sentence. The offender's counsel therefore submitted that the sentence to be imposed upon the offender should fall within the same range. It should be noted that Hulme J was not dealing with an affray involving the discharge of firearms. 35Similarly, the offender's counsel relied upon the JIRS statistics for the offence. Those statistics demonstrate that, for the 7 offences committed before 15 December 2005, which resulted in terms of imprisonment, sentences between 6 months and 30 months were imposed. Further, of the 18 offences committed after 15 December 2005, which resulted in terms of imprisonment, sentences between 12 months and 36 months were imposed. Only one of the sentences imposed by Hulme J comes within the scope of these latter statistics, which include sentences imposed up to and including March 2011. 36The date 15 December 2005 is significant. An affray committed after that date attracts a maximum penalty which is twice that for an affray committed before that date. It was the intention of the NSW legislature to signal, by doubling the maximum penalty for affray, that it regarded the offence as correspondingly serious and that it deserved condign punishment. So much is clear from the second reading speech of the Law Enforcement Legislation Amendment (Public Safety) Bill on 15 December 2005, by the Special Minister for State :- Proposed sections 93B and 93C increase the penalty for riot from 10 years to 15 years and from five years to 10 years for affray. These tough new sentences send a clear message to would-be thugs and hooligans that if they tear up the fabric of our society, they will pay the price-a price that, as of today, just got a whole lot heavier. 37It would appear that very little recognition has been given to the increased maximum penalty for the offence by sentencing judges. A general increase in the range of sentences imposed of 6 months hardly reflects such a significant change. 38Counsel's submission that his client is entitled to be sentenced according to the prevailing range of sentences for affray has some validity in the absence of any challenge to that range by the Crown, in respect of sentences imposed for offences committed since 15 December 2005, on the ground that I have explored above. 39To the extent that the offender also relies on a number of sentences imposed for manslaughter, where the death of the victim arose out of an affray, I am also conscious that sentences in the order of 4 to 5 years are not unusual where an offender has played a more active role than this offender : see for example R v Barghachoun [2011] NSWSC 1534. 40However, the range of sentences imposed for manslaughter notoriously reflects the protean character of the offence. Moreover, the broad range of the sentencing discretion tends to undermine any direct comparison with such cases, particularly at the lower end of the range. 41Taking these matters into account and having regard to the objective and subjective factors I have outlined above, I would impose a sentence of 4 years, to which a discount of 10% is applied, resulting in a sentence of 3 years and 7 months, commencing 25 October 2010, expiring 24 May 2014. I fix a non parole period of 2 years, expiring 24 October 2012. The offender is eligible for release on 25 October 2012. 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 September 2013