R v Abousleiman [2016] NSWDC 80

District Court New South Wales

Medium Neutral Citation: R v Abousleiman [2016] NSWDC 80 Hearing dates: 26 February 2016 Date of orders: 26 February 2016 Decision date: 26 February 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: Criminal Law – Sentence - Domestic Violence Cases Cited: R v De Simoni (1981) 147 CLR 383 Category: Sentence Parties: The Crown Joe Abousleiman Representation: Counsel: K Magnus – Crown M Pickin – The offender

Solicitors: Director of Public Prosecutions File Number(s): 2014/183081

Judgment 1. HIS HONOUR: Offences of domestic violence often cause harm to children who witness such violence. In this case the harm caused to two children was much more direct than simply witnessing violence, they were direct victims of it as well. That is a remarkable feature of the offences for which Mr Youssef Abousleiman is to be sentenced. 2. He was living with a woman by the name of C. She had two children, A who was 4 years of age and J who was 2. C and the offender had been in a de facto relationship for about 8 months. The children were not those of Mr Abousleiman. 3. A dispute arose between C and the offender concerning some telephone calls that were coming through to C's mobile phone. The offender became angry because she would not answer repeated telephone calls coming to the mobile phone from a private number. Why he would get angry is difficult to determine, but angry he did get. He began yelling at her and while they were in the bedroom in the presence of the two children I have mentioned the offender kicked C in her lower back and struck her with force to her head and face a number of times. As he continued to strike C he came into contact with A and J. Eventually he stopped. 4. About half an hour later C noticed that her children had been injured. The offender told her to go to hospital with the children and he called for a taxi. C and her children attended Canterbury Hospital. They were all found to be injured. C was found to have bruising to her hip and back as well as tenderness and swelling to her face and head. She was walking with a limp and had makeup covering bruising to her face. A was found to have bruising to her head and a 2 x 2 centimetre bluish or purple bruise to her right cheek which was swollen. J was found to have a fracture of his left femur with surrounding swelling. 5. I might say something about the nature of the injury to J. Ordinarily I would have considered that a fractured left femur amounted to grievous bodily harm, but to take that into account would be to breach the rule in R v De Simoni (1981) 147 CLR 383. Accordingly I will sentence the offender on the basis that the fracture was a minor one. That may well have been the case anyway because there is no suggestion that J was significantly in pain or unable to walk after his injury was sustained. 6. The offender was arrested the day after he committed these offences. He was certainly not remorseful at the time he was interviewed by police because he denied all allegations. He was then remanded in custody until he was released on bail and was sent to attend a rehabilitation centre which has had some success. 7. The offender pleaded guilty in the District Court to three offences of assault occasioning actual bodily harm. These pleas of guilty came about after negotiations between lawyers acting for him and lawyers acting for the prosecution. In those circumstances I will impose upon him a sentence which is 15% less than it would otherwise have been. The pleas of guilty are also one of a number of factors that have led to me considering the imposition of a different form of sentence from that I would otherwise have imposed. 8. The offender is currently employed as an apprentice spray painter. A very informative reference was tendered from his employer. Informative because the employer not only spoke highly of the man that the offender is today but was also critical of the way he was before, indeed he said: "We were very reluctant to put Joe back on after his was released from rehab in March 2015." 1. It appears that there has been a significant change in the offender. He was previously a man who used a lot of drugs. Indeed he told the author of the pre-sentence report that he had smoked a significant amount of cannabis, as was his daily habit, before the offences took place and that he found that under the influence of cannabis he was antisocial, paranoid and angry. 2. There has been evidence tendered today which demonstrates that the offender is no longer using drugs and has successfully completed the rehabilitation program to which he went upon release on bail. This suggests that there are good prospects of rehabilitation. If the offender is able to put his drug using days behind him then it is highly likely that he will also put his offending ways behind him. He does have priors for criminal offences committed in 2007 and 2008 but significantly, although these offences were committed some time ago, there has been no suggestion of any further criminal behaviour. 3. The time that the offender spent in custody before he was released on bail was about three and a half months, and I will take that into account of course. I will also take into account that for six months he was in quasi custody undergoing residential rehabilitation. 4. I note that these matters could have been dealt with in the Local Court and probably would have were it not for other charges initially being laid against the accused. I note there has been some delay, not great, but some delay in finalising these matters which has allowed the offender to demonstrate rather than just promise rehabilitation. 5. It is a fundamental rule in sentencing that the sentences imposed for offences must reflect their objective gravity. Here the objective gravity of the offending was high. The two children were very young indeed. The offender may not have deliberately targeted them with acts of violence but he was certainly reckless in the way he assaulted C and continued to assault her while the children were present. As I mentioned at the beginning of these remarks on sentence it would be bad enough that he was prepared to assault C while her children were watching, but to assault her in such a way that he caused injuries to the children is a matter of grave concern. 6. I am satisfied that a custodial sentence is required, even given that the offender has spent some time in custody and spent some time in quasi custody. A custodial sentence of some form is required to reflect the objective gravity of the offender's conduct. The question becomes how long that sentence should be and if appropriate what form that sentence should take. I am satisfied that a sentence of less than 2 years is appropriate. 7. That brings into play a number of sentencing options. Mr Pickin submitted that a suspended sentence would be appropriate. He said that the Crown would concede that such a sentence was available. I don't think the Crown did but, even if the Crown had, I would not have imposed a suspended sentence. A suspended sentence in my view would not punish the offender significantly enough to reflect the objective gravity of his misconduct. I am satisfied that the appropriate sentence to impose upon the offender is an intensive corrections order should the offender be suitable for such a sentence. 8. Accordingly, I will continue his bail until 27 May 2016. I will refer Mr Abousleiman for assessment as to his suitability to serve a custodial sentence by means of an intensive corrections order.