R v Merza [2020] NSWDC 189

District Court New South Wales

Medium Neutral Citation: R v Merza [2020] NSWDC 189 Hearing dates: 3 April 2020 Decision date: 15 May 2020 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of 12 years with a non parole period of 9 years. Catchwords: CRIME - SENTENCE - wound person with intent to cause grievous bodily harm - doing an act intending to cause a person to be called as a witness in a judicial proceeding to give false evidence. Legislation Cited: Crimes Act 1900 (NSW): s33(1)(a), 323(a) Category: Sentence Parties: Regina (Crown)

Olever Merza (Offender) Representation: Mr Kotsis (Crown Prosecutor)

Mr. T. Hughes (Counsel for the offender) File Number(s): 2016/281692 Publication restriction: Nil

Judgment 1. Olever Merza, on 23 September 2019, you were arraigned before a jury panel in waiting on an indictment which contained three Counts, the second being an alternative to the first. The three Counts were: 1. that on 7 August 2016, at Fairfield in the State of New South Wales, you did wound Ahmad with intent to murder the said Ahmad; 2. that on 7 August 2016, at Fairfield in the State of New South Wales, you did wound Ahmad with intent to cause grievous bodily harm to the said Ahmad; and 3. that between 28 September 2016 and 17 January 2017, at Silverwater in the State of New South Wales, you did an act intending to cause Ahmad, a person to be called as a witness in a judicial proceeding, to give false evidence. 1. Upon your arraignment you pleaded not guilty to each Count. 1. A jury was then empanelled and, at the conclusion of the trial which then followed, that jury found you not guilty of the first Count on the indictment but guilty of the second and third. 2. The jury returned its verdicts on 17 October 2019. 3. The sentence hearing date was initially fixed for 13 December 2019. 4. That hearing date could not proceed because of sanitary problems in the Court's custody cells, giving rise to occupational health and safety issues. 5. A further sentence hearing date was then fixed for 3 April 2020. 6. That hearing did proceed and, at the conclusion of it, I reserved my decision to today. 7. Because the matter proceeded by way of trial, it is necessary for me to make findings of fact, beyond reasonable doubt, consistent with the verdicts of the jury. I am satisfied of the following facts to that standard. 8. As at August 2016 you were almost 26 years old. 9. Your family and that of Mr Martin Hana (he being almost 24 years old at that time) had known each other for a long time and Mr Hana was a very good friend of yours. Indeed, you were known to protect Mr Hana and to stand up for him. 10. At about 11:30pm on 5 August 2016, Ahmad, who was 14 years and 5 months old, and two of his friends, were involved in a physical fight with Mr Hana and an unknown man outside McDonalds at Fairfield. 11. Mr Hana came off second best in that fight – he received a black eye from Ahmad. 12. Two days later, on 7 August 2016, Ahmad and some of his friends wanted to buy cannabis. They went to a carpark not far from Fairfield Station to purchase this illegal drug. In that carpark was a motor vehicle which contained Mr Hana and one other person. Ahmad was seen by Mr Hana, who was the driver of that vehicle. 13. This motor vehicle drove around the area several times. Mr Hana and the other occupant of the car were looking for Ahmad. 14. Ahmad and his friends in the meantime had gone to the Fairfield railway station intending to catch a train to Cabramatta. As he walked to the railway station, Ahmad saw Mr Hana's motor vehicle on several occasions. 15. When Ahmad and his friends arrived at Fairfield railway station, he again saw this motor vehicle. Mr Hana said to him, "come under the bridge". The vehicle then drove away. 16. A short time later, Mr Hana returned to the railway station. He was not alone. You were with him as well as an unknown man. It is not clear to me whether this unknown man was the same person who had earlier been with Mr Hana. But this time, however, the three of you arrived not in the same vehicle as before, but in your BMW. 17. Once you arrived at the railway station, you, Mr Hana and the third man, ran from your vehicle towards Ahmad and his friends. An argument broke out between these two groups. Ahmad and his friends were so afraid that they jumped onto the train tracks to get away from you and your two companions. Ahmad gave evidence at the trial that each member of your group was armed with a knife. No other witness gave that evidence. I am not satisfied of that asserted fact beyond reasonable doubt. 18. After a while, Ahmad and his friends returned to that platform. You and your companions were still there. 19. You continued to act aggressively towards him and his friends with the result that Ahmad jumped back onto the train tracks and ran away. 20. As Ahmad was running away, one of your group shouted out, "Catch him so we can chop his leg off". 21. As events unfolded, this statement (like the earlier "invitation" to "come under the bridge") was no idle threat from whomever made it. 22. As Ahmad ran away from the railway station, you and your two companions got back into your car. You were soon joined by a second unknown male. 23. Ultimately, Ahmad ran to a home unit complex where a friend of his lived and in which he was intending to seek refuge. 24. You and your three companions drove to that complex. 25. Ahmad's friend lived on the first floor. Ahmad entered the building and started running up the stairs. 26. But you and your three companions caught him on the stairwell. 27. Ahmad was dragged down the stairs and found himself in a dark place under the stairwell. 28. Whilst in that location, he was stabbed multiple times. 29. You were present in the stairwell with Mr Hana and the other two unknown men whilst Ahmad was being stabbed. 30. The evidence does not establish whether more than one knife was used to stab Ahmad; nor does it establish that it was you who was armed with any knife. However, the jury's verdict means that it was satisfied that you and the others were part of a joint criminal enterprise to wound Ahmad - and with the intention of inflicting grievous bodily harm on him. 31. The attack was only broken up when Ahmad's friend came out of the unit after he heard Ahmad calling for help. 32. After this gentleman came to Ahmad's assistance, you and your companions ran from the scene. 33. Ahmad was taken to hospital where nine penetrating injuries were discovered. They were very serious injuries indeed, and if there had been no medical intervention, Ahmad, in all probability, would have died. 34. It is these facts which constitute the offence of wounding with intent to cause grievous bodily harm. 35. You were arrested on 20 September 2016 and refused bail. 36. Whilst you were on remand, you caused a series of phone calls to be made to associates of yours with the intent that Ahmad should be persuaded, by one means or another, "to drop the charge for the stabbing". Of course, it was not for Ahmad to make any decision to drop any charge. That was a matter for the police and the Crown law authorities. 37. On 14 October 2016, Ahmad was approached by someone, at your direction, and he was offered $20,000.00 to drop the charge for the stabbing. 38. It is this fact which constitutes the second matter of which the jury found you guilty. 39. The offence of wounding with intent to cause grievous bodily harm involves a contravention of s 33 (1) (a) of the Crimes Act. The maximum penalty for that offence is 25 years imprisonment. There is standard non-parole period of 7 years imprisonment. 40. The offence of doing an act with the intention of causing a person to be called as a witness in judicial proceedings to give false evidence involves a contravention of s 323 (a) of the Crimes Act. The maximum penalty for that offence is 7 years imprisonment. There is no standard non-parole period. 41. There was some contest in the sentencing submissions as to whether you were aware that Ahmad was as young as he was. 42. In all the circumstances, I am not satisfied beyond reasonable doubt that you in fact knew that Ahmad was about 14 and a half years of age – although, it would have been obvious to you that he was not a mature adult. 43. In terms of their objective seriousness for offences of their kind, the wounding offence is above the middle of the range; and the other offence is a mid-range offence. 44. The wounding offence is additionally aggravated by two factors: first, you were in company; and secondly, the offence involved a grave risk of death. 45. You are now 29 years old. 46. You did not give direct evidence in the sentencing hearing. 47. Your subjective circumstances have been mainly provided through three psychological reports (tendered by the Crown) and prepared for earlier sentence hearings. Those reports were dated 1 April 2013, 23 August 2013, and 5 November 2018. 48. Numerous difficulties arise for you in those reports and those difficulties are set out with particularity in paragraph 11 of the Crown's written submissions – difficulties not disputed by your experienced counsel. I accept each and all of those submissions which I incorporate by reference into these reasons. 49. You were born in Iraq. 50. You and your family apparently fled that country when you were 4 years old and you came to Australia. 51. You went to school in Sydney where you completed Year 10. 52. After leaving school, you have had some legitimate employment, but you have also engaged in very significant and prolonged criminal activity. 53. You have a significant issue with substance abuse. You commenced abusing alcohol and cannabis when you were 15 years old. You commenced abusing cocaine and ice when you were 17 years old. 54. You have not had, or really sought, any effective treatment in relation to those long-term drug issues. 55. However, your use (or abuse) of drugs, on the evidence, was not a factor in the offending for which you are to be sentenced today. Your motive in connection with the first offence was to seek retribution or punishment on a person who had bettered your friend in a fight. And clearly, on the evidence, you were one of the leading figures, if not the leading figure, in the events of that night. And your involvement in the second offence was to seek to avoid the consequences of the first offence – and to do so by attacking the criminal justice system at its heart. 56. Your first offending as an adult occurred shortly after your 18th birthday. And it is notable that this first adult offence was also an offence of violence – assault occasioning actual bodily harm - for which you received a meaningful term of imprisonment. 57. You were undeterred by that term of imprisonment and you have committed many offences since. Those offences have involved firearms offences, supplying prohibited drugs, dealing with the proceeds of crime, and directing the activities of a criminal group. You have received numerous terms of imprisonment but still you continue to offend. 58. I do not regard your prior offending as an additional aggravating factor for either offence; but it does mean that you are not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender. 59. You did not get into the witness box to express any remorse on oath and I am unimpressed with the references given on your behalf. You may well have told the persons who wrote those references the matters contained in the references. But I do not believe that what you told them was true – not least because the matters set out in paragraph 11 of the Crown's written submissions to which I have already referred. 60. In your case, both specific and general deterrence are fully engaged, as is the need to protect the community. 61. And whilst your rehabilitation remains a relevant factor, it is of reduced significance. 62. In my opinion, your prospects of rehabilitation are poor. 63. They would not be enhanced by a longer period on parole – and in any event, the non-parole period that I intend fixing will be sufficient for that purpose. 64. Mr Hana was sentenced for his role in the attack on Ahmad by his Honour Judge Pickering SC on 16 October 2018. Except for the discount of 25 per cent which his Honour gave Mr Hana, my calculations are that his Honour would have imposed a sentence of approximately 8 years 4 months. 65. Whilst parity remains significant, it is of reduced significance because of the matters listed in paragraph 20 in the Crown's written submissions - again, matters that were not disputed by your counsel. Again, I accept (with one qualification) each and all of those submissions which I incorporate by reference into these reasons. That qualification is that I do not agree with the submission made by the Crown that "the victim was obviously very young" – reference to Exhibit 1 will reveal why. 66. I intend imposing an aggregate sentence. Accordingly, it is necessary for me to state the indicative sentences underpinning the ultimate aggregate sentence. 67. In relation to the wounding with intent to cause grievous bodily harm, the indicative sentence is 10 years imprisonment. The indicative non-parole period is 7 years 6 months. 68. In relation to the offence of acting with intent to influence a witness, the indicative period is 3 years 6 months. 69. I note that since the time you were arrested, you have served various other terms of imprisonment for totally unrelated matters. 70. Accordingly, the sentence which I shall soon impose will be backdated so as to commence on 26 September 2019. 71. In fixing that start date, and in fixing the aggregate sentence, I have had regard to totality. 72. Olever Merza, of the offences of which you were found guilty by the jury, I sentence you to a term of imprisonment of 12 years. 73. I fix a non-parole period of 9 years commencing 26 September 2019, and which will expire on 25 September 2028. 74. I fix a balance of 3 years to date from 26 September 2028 and which will expire on 25 September 2031.