R v Habib [2014] NSWDC 324

District Court New South Wales

Medium Neutral Citation: R v Habib [2014] NSWDC 324 Hearing dates: 28 November 2014 Date of orders: 28 November 2014 Decision date: 28 November 2014 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is sentenced to imprisonment consisting of a non-parole period of 18 months and head sentence of 3 years. Catchwords: CRIMINAL LAW - Sentence after trial - Attempt to wound with intent to cause grievous bodily harm - Extra curial punishment - Loss of sight in one of offender' eyes Category: Sentence Parties: The Crown Ramez Najim Habib Representation: Counsel: Mr S Russell - Offender

Solicitors: Director of Public Prosecutions – Crown Family Legal & Thexton Lawyers File Number(s): 2013/74483

SENTENCE 1. HIS HONOUR: Families and friendships fracture for various reasons, but, often enough, money is involved. In this case a dispute over money led to the offender attacking his cousin with a knife. Fortunately his cousin sustained only a very minor injury but the offender never the less faces being sent to gaol for his violent conduct on 9 March 2013. 2. A dispute arose between Sleimen Chidiac the offender's cousin and the offender over some tiling work done at a Westfield Shopping Centre. The evidence established that there was some court proceedings which were resolved in Mr Chidiac's favour, but the offender continued to maintain and continued to believe that Mr Chidiac owed him a considerable sum of money. Tension simmered for some-time with the dispute being kept on the boil by the circumstance that Mr Chidiac would often drive past the offender's premises and exchange words with him on his way to visit his brother who lived near the offender. 3. I am satisfied despite the submissions to the contrary by the Crown that the offender has established on the balance of probabilities that Mr Chidiac would yell things out to him as he drove past the premises where the offender often was, it being the location of his home and the attached convenience store which he ran with his wife. 4. Matters came to a head on the evening of 9 March 2013. We know a lot of what happened that day because it was filmed by closed circuit television cameras installed in the offender's premises. The offender was sitting on an upturned milk crate out the front of the supermarket. Mr Chidiac drove past with his children in the car. Words were exchanged, as was usually the case, but this time the offender's anger boiled over, he was seen on the CCTV footage to go inside his supermarket and arm himself with a knife which was kept under the counter. He then partially secreted the knife before heading down the road towards Mr Chidiac. The offender's wife, no doubt alarmed at what she had seen her husband do, tried to prevent him from approaching Mr Chidiac. She stood in front of her husband, but he pushed past her because he was not to be deterred. When he got to Mr Chidiac the offender raised the knife above his head and brought it down towards Mr Chidiac intending to stab him. Fortunately Mr Chidiac was able to grab the offender's arm and he suffered only a very minor abrasion. Other members of Mr Chidiac's family arrived on the scene and they too got involved attempting to take the knife away from the offender so that he could not stab Mr Chidiac. Eventually they succeeded. 5. I of course will sentence Mr Habib, consistent with the jury's verdict, on the basis that he attempted and thus intended to wound his cousin with intent to cause grievous bodily harm. It is important to understand this fundamental matter. I am not going to sentence Mr Habib on the basis that he merely intended to threaten his cousin or that he intended some injury less than grievous bodily harm. Submissions made to me today on behalf of Mr Habib get close to overlooking the fundamental nature of the guilty verdict returned by the jury. 6. Somehow in the course of the struggle for the knife the offender himself was injured. Most significantly he suffered injury to his left eye and he has lost the sight in that eye. Mr Russell suggested that this occurred as a result of gratuitous violence on the part of Mr Chidiac and his family members. I reject that submission entirely. I am satisfied that the offender was injured accidentally in the course of the struggle over the knife after he attempted to stab his cousin, whether he would not let go of it because he was genuinely afraid for his own safety is beside the point. Mr Chidiac's family were aware that he had just attempted to stab Mr Chidiac and, they were aware that the offender was refusing to let go of the knife. In those circumstances one can easily understand why there would be a violent struggle. It is unfortunate that in the course of that struggle over possession of the knife the offender was injured as significantly as he was. 7. Also injured in the course of the struggle was Ms Noelle Chidiac, Mr Sleimen Chidiac's wife. She suffered a minor wound to her thumb. The offender faced a charge in relation to that injury but the jury acquitted him, no doubt on the basis that at the time the wound was occasioned the offender was unable to control the movements of his knife. 8. The jury verdict was entirely appropriate and indeed any other outcome would have been perverse. The offender's case, a case that he maintains in evidence even today, was that he merely wanted to frighten Mr Chidiac. But, as the jury verdict indicates, he wanted to do much more than that, he intended to wound Mr Chidiac thereby occasioning him grievous bodily harm, a serious offence which carries a maximum penalty of 25 years imprisonment. 9. That of course is not to overlook the fact Mr Habib the offender did not succeed in wounding or causing grievous bodily harm to his cousin. He is not to be sentenced as though he had achieved his objective, even though of course, it was no change of mind on the offender's part which led to the absence of serious injury to Mr Chidiac. 10. The offender is now 49 years of age and a man of otherwise good character. That good character can be looked at in both positive and negative terms. In a positive sense many people speak highly of him and he has achieved a great deal. In a negative sense he has no previous convictions. He has never before been violent and never before acted in a way which would lead to harm to another person. I am satisfied this offence is very much an isolated one. The offender has good prospects for rehabilitation and there needs to be little component of personal deterrence built into the sentence that I will shortly announce. 11. The offender was born in Lebanon to a poor, hard working family who farmed the land. He is one of nine children. He was married in Lebanon when he was 19 and first came to Australia when he was 28, for two reasons: Lebanon was undergoing significant conflict at the time; and there was work available in Australia. He came to Australia on a work visa, immediately found work, and became a permanent resident, before his wife joined him in this country. He and his wife attempted for many years to have a child and it was only after considerable efforts that they were rewarded with the birth of their son. I will return later to the circumstances of the offender's son in a short time. 12. The offender has maintained the family tradition of being a hard worker. He developed skills as a tile and stone polisher while in Lebanon and continued to follow that trade in Australia. He and his wife also run a mixed business shop. The pre-sentence report prepared after interviewing the offender suggests that he did the buying and the stocking of the shop while his wife generally operated it. 13. There is evidence that Mr Russell relies on as to the consequences to the offender's wife, son and business in the event that he is sent to full time gaol. The offender's son, now 8 years of age, has reacted badly to the events which have occurred since the 9 March 2013. He is very anxious at the prospect of his father going to gaol, he often wakes in the middle of the night believing that his father is gone and screams out for his father. The psychologist report says Charbel is very attached to his father and any separation will likely cause further exasperation of his condition. 14. The offender's wife relies on his assistance in running the shop, her English skills are poor and I accept that both she and the business will suffer in the event that the offender is incarcerated. 15. On the other hand the law is clear. I can only take into account hardship to third parties in circumstances which are exceptional. I regret to say that the circumstances I have described are far from exceptional, indeed they are commonplace when bread winners and fathers are sent to gaol. Many children with a close relationship to a parent suffer when that parent goes to gaol for offences that person has committed. Many spouses who are assisted in the running of a business also suffer when a wrongdoer goes to gaol. In this case I cannot take the hardship to third parties into account, except as part of the general mix of subjective factors. One of those subjective factors will of course be that the offender will know that it is his wrongdoing, even if he is not prepared to admit the extent of it, which has led to his son, wife and business suffering as a result of his incarceration. 16. One matter which I will take into account very much in the offender's favour is of course the extra curial punishment occasioned to the offender through the loss of sight of one of his eyes. An ophthalmic surgeon's report was tendered. The sight in Mr Habib's injured eye was described as extremely poor with him only vaguely perceiving light in that eye. Various doctors have recommended to the offender that the injured eye is removed in order to reduce the risk of sympathetic ophthalmia, a condition whereby an otherwise healthy eye begins to lose sight because of an injury to the other eye. The offender has resisted accepting that advice. Fortunately his good eye is, at present, functioning well. It is hard to overestimate the consequence for the offender of having lost the sight in one eye. All aspects of his life will have suffered since 9 March 2013. It is a very significant price to pay for his offending on that date. 17. The offender pleaded not guilty. He of course is not to be punished for that, but it does indicate a lack of real remorse for what he did. That lack of real remorse continues to this day, although the offender said that he made a mistake in carrying the knife he still refuses to admit that he intended to stab his cousin and apparently says that he is sorry only because he did not know how it was going to have such a destructive effect on his family. He makes bizarre suggestions that somehow he was lured into a trap with the group who attempted to disarm him, having hidden themselves from view before he approached. 18. Ordinarily this lack of remorse would be a significant part in me assessing the prospects of the offender's rehabilitation, but as I have already said, and this is so even despite the lack of real remorse, I am satisfied he does have good prospects for rehabilitation. In a way it is understandable that he might focus on what has happened to him rather than the consequences for his cousin and his cousin's family. 19. The offence was clearly unplanned, it was obvious on the CCTV footage that the offender was simply enjoying a quiet evening with a couple of friends outside his shop when his cousin drove past. His decision to go and get the knife and head after his cousin whilst armed with that weapon was clearly a spur of the moment decision. 20. He did have the opportunity to turn around after his wife attempted to persuade him to desist, but as is clear and as I already mentioned, he was not to be deterred. 21. I find also on the balance of probabilities that the offence was provoked by Mr Chidiac's comments to the offender as he drove past the offender's shop. 22. Mr Russell has helpfully provided me with a number of cases where people were sentenced for offences involving what was described in earlier times as malicious wounding with intent to do grievous bodily harm. It is to be noted that, and this is stating the obvious, no other case is ever truly comparable. However, I am able to take note of the differences between the case before me and the cases to which Mr Russell referred and I have found assistance in those cases, taking into account of course that the offender did not plead guilty and was convicted of an attempt rather than the completed offence as two of the most obvious differences between cases relied on by Mr Russell and the present. 23. It was Mr Russell's submission that I should deal with this matter by means of an intensive corrections order or a suspended sentence of imprisonment. Implicit in that submission is of course the concession that a sentence of imprisonment was required. Quite clearly I have no hesitation in accepting that concession. The next step in the process is to consider the length of the appropriate sentence of imprisonment and only if the sentence is such that there are alternatives to full time imprisonment do I need to consider whether one of those alternatives should be adopted. 24. It is a fundamental rule in sentencing that an offender needs to be sentenced for the objective gravity of their conduct. Even though the offender was through no decision of his own unsuccessful in actually stabbing his cousin, his conduct was gravely criminal. To take a large knife, wander down the street and attempt to stab someone with that knife in an attempt to cause grievous bodily harm is of course criminality of a very serious order. 25. General deterrence is of prime importance. Often enough various members of the community decide that they will resolve disputes and they will respond to provocation with violence and weapons. In far too many cases people are significantly injured and indeed even killed by such actions. Thus where a person is convicted of an offence of attempting to wound with intent to cause grievous bodily harm, unless there are unusual circumstances, a sentence must be imposed which would go at least some way to deterring others who may be tempted to do what the offender attempted to do that night. I have decided on a sentence of imprisonment which is such that no alternatives to full time imprisonment arise. 26. The offender is sentenced to imprisonment, I set a non-parole period of 18 months to date 20 November 2014 and a head sentence of three years, the non-parole period will expire on 19 May 2016 on which day the offender is to be released to parole.