Supreme Court New South Wales

• Medium Neutral Citation: R v HEK [2012] NSWSC 1364
• Hearing dates: 28, 29 February; 1-30 March; 2-29 April; 2, 7, 8, 9, 10, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 26,. 27, May; 6 July; 17 August 2012
• Decision date: 30 August 2012
• Before: Latham J

Decision

Convicted of the offence of affray. Sentenced to a non parole period of 2 years to date from 10 April 2010, expiring 9 April 2012 with a balance of term of one year expiring 9 April 2013

Further convicted of the offence of maliciously damage property by fire. Sentenced to a fixed term of 2 years to date from 10 September 2010 expiring 9 September 2012. Entitled to release on 10 September 2012.

• Catchwords: CRMINAL LAW - sentence - conviction by jury - affray - maliciously damage property by fire - juvenile offender - dealt with according to law - discharge of loaded firearms as a feature of the affray - objectively a particularly serious example of affray - whether a victim impact statement should be received by the Court
• Legislation Cited: Children (Criminal Proceedings) Act 1987; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Stevens v R [2007] NSWCCA 152; Khanwaiz & Ors v R [2012] NSWCCA 168
• Category: Sentence
• Parties: Regina - (Crown); HEK - (Offender)
• Representation: Counsel; P Barrett - (Crown); M Paish - (Offender); Solicitors; S Kavanagh - Solicitor of Public Prosecutions (Crown); Voros Lawyers - (Offender)
• File Number(s): 2010/97241
• Publication restriction: Prohibition on publishing the name of the offender or any information capable of identifying him : Children (Criminal Proceedings) Act 1987

SENTENCE

1 The offender, HEK, stands to be sentenced for an offence of affray and an offence of maliciously damage property by fire. He was convicted of both offences by a jury on 28 May 2012. Each of these offences carry a maximum penalty of 10 years imprisonment.

2 The circumstances giving rise to the affray have been outlined in the course of previous remarks on sentence, relating to a number of co-offenders (Abdulhardi ; HE ; SE). The following represents a summary of the facts established by the evidence at trial, of which I am satisfied beyond reasonable doubt.

3 At about 9pm on 25 June 2009, HEK 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. HEK was the instigator of the conflict by referring to Samir Mohamad in derogatory terms.

4 Over the following hour, numerous telephone calls were made between associates and family members of the two opposing camps, namely the offender's 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 offender recruited other people to participate in the planned confrontation. The offender's two younger brothers and a cousin were told of the planned confrontation by the offender. They became part of the offender's group.

5 At about 10:15pm, three members of the Mariam group, including Mahmoud Mariam and Rami Abdulhardi, travelled to the vicinity of the car park in a Mazda. 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.

6 Shortly afterwards, a Honda car occupied by two other members of the Mariam family, pulled into the car park and parked between KFC and Hungry Jack's. Those persons remained in the car.

7 A short time later, at about 10:25pm, a white van carrying the offender's 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.

8 HEK left the white van and ran to the Honda. HEK started fighting with one of the occupants. Adel Elkobaili left the van carrying a rifle.

9 Almost immediately, Mahmoud Mariam, who was advancing from the direction of the Aldi store perimeter, began shooting at the offender's group. Adel Elkobaili returned fire. Very shortly thereafter the offender and his associates retreated to the van and left the carpark.

10 One of the bullets fired by Mahmoud Mariam in the car park struck a truck driver, Mr Knight, who was travelling on Milperra road, resulting in his immediate death.

11 Mr Abdulhardi received serious gunshot wounds to the abdomen. A member of the Mariam group from the Honda received gunshot wounds to the arm.

12 After the offender left the carpark and the occupants of the van dispersed, he drove the van, which belonged to a Mr. Taha Elroz, to a suburban street where he set fire to it, using an accelerant. I am satisfied beyond reasonable doubt that he did so with the intention of destroying any evidence of his, or others', participation in the affray. The owner of the van was told by the offender to report it stolen. These events constitute the offence of maliciously destroy property by fire. Given that it constitutes a separate and distinct offence, some small measure of accumulation of sentence is appropriate.

13 It is relevant to note that the jury acquitted Adel Elkobaili of all offences, including affray, and that the only way in which those verdicts can be reconciled with the guilty verdicts returned against this offender and Mahmoud Mariam is on the basis that the jury was not satisfied beyond reasonable doubt that Adel Elkobaili was not acting in self-defence. The corollary of that proposition is that the jury found as a fact that Mahmoud Mariam was the first to discharge a firearm. That finding appears to me to be consistent with an acceptance by the jury that the combined actions of the Mariam group constituted a form of ambush, to which Adel Elkobaili responded.

14 It is important however to note that this offender left the van with the intention of physically assaulting an occupant of the adjacent vehicle before any firearm was discharged. It beggars belief that he would have exposed himself to serious injury by leaving the cover of the van after it became apparent that the Mariam group were shooting in their direction. I accept that a firearm was discharged very shortly after he left the van, and that the offender was initially unaware that the sound he was hearing was in fact gunfire. The offender nonetheless actively participated in the affray in that sense and by actually assaulting another person. The jury plainly accepted that this offender was not acting in self defence.

15 The more contentious aspect of the offender's role arises from the presence in the van of a firearm to the knowledge of the offender. I am satisfied beyond reasonable doubt that the offender knew that his cousin was in possession of a loaded rifle at some point during the journey to the car park. I accept that it was not within the offender's contemplation that anyone in the Mariam group would also possess a loaded weapon. I am not persuaded beyond reasonable doubt that, notwithstanding the offender's knowledge of the presence of a loaded weapon within his group, he contemplated that the weapon would be discharged in the course of the affray. There was evidence at trial that suggested this offender disavowed any reliance on the use of firearms.

16 I pass to a consideration of the objective gravity of the affray, both for general sentencing purposes and in order to determine whether the offender ought be dealt with at law or pursuant to the provisions of the Children (Criminal Proceedings) Act 1987. The decision under s 18(1) of the Act must be made having regard to the seriousness of the indictable offence concerned, the nature of the indictable offence concerned, the age and maturity of the person at the time of the offence and at the time of sentencing, the seriousness, nature and number of any prior offences committed by the person, and such other matters as the court considers relevant.

17 This offender has no relevant prior criminal history. His age at the time of the offence was two months short of 18. Given his relative maturity and his pivotal role in instigating the affray, I am of the view that he must be dealt with according to law. The principal factors in that determination are the gravity of the offence and the fact that affray represents a most serious breach of public order.

18 When sentencing Mr Abdulhardi, I said :-

One 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.

Notwithstanding 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.

19 I adopt these remarks and would only add the following. There was some debate during the sentencing hearing about the extent to which the Court could have regard to the fact that the discharge of firearms resulted in the death of an innocent bystander in assessing the gravity of the offence. That is an issue that has been considered by the Court of Criminal Appeal in similar cases.

20 Most relevantly, in Stevens v R [2007] NSWCCA 152, Price J (McClellan CJ at CL and Hidden J agreeing) said at [25] to [27] :-

In determining an appropriate sentence for an offence of affray contrary to section 93C of the Crimes Act an offender's conduct is to be considered in the context of the conduct of a co-offender. The level of violence used in the scale of the affray is relevant. An offender however, may only be sentenced for that part of his conduct and the conduct of the co-offender which give rise to the offence of affray and not that conduct which resulted in some other offence being committed by him or by the co-offender; see R v Huynh [2000] NSWCCA 18; R v Eleter [2003] NSWCCA 130 and R v Fajka [2004] NSWCCA 166.

His Honour found as I have mentioned that the applicant and Davis were the aggressors. Furthermore it was open to the judge to find that they had attacked both victims with extreme violence. The attack by Davies upon Mrs Herring with a tyre lever was part of the co-offender's conduct which gave rise to the offence of affray. In my view, the nature and extent of the physical violence was an objective factor relevant to the seriousness of the offence.

21 Most recently in Khanwaiz & Ors v R [2012] NSWCCA 168 , Beech-Jones J said (Basten JA and Harrison J agreeing) :-

50. Further the significance of the distinct element of the affray charge, namely the effect of the attack upon persons at the scene, cannot be understated. Offences such as s 93C have a wider focus that just the impact on the direct victim of the unlawful violence. Section 93C is located within Part 3A of the Crimes Act which deals with public order. Attacks of the kind participated in by Noman can undermine the public's confidence in the security of their streets and homes. His Honour recognised this is in the sentencing judgment when referring to the "separate policy considerations effectively requiring separate assessments of the criminality and issues of accumulation" with the affray offences.

22 It is axiomatic that in determining the appropriate sentence to be imposed upon the offender for the affray, he is not to be punished for the manslaughter of Mr Knight. He was acquitted of that offence. He stands to be sentenced on the basis of his individual role in the commission of the affray. That, however, does not preclude the Court from taking into account, for the purposes of assessing the objective gravity of the offence, the fact that the discharge of loaded firearms was a feature of the affray. That feature of the offence demonstrated the extent to which members of the public were put in fear for their personal safety.

23 This analysis brings me to another controversy during the sentencing proceedings, that is, whether a victim impact statement from Mr Knight's daughter could properly be received by the Court for the purposes of sentencing this offender.

24 This issue is governed by s 26 of the Crimes (Sentencing Procedure) Act 1999. It defines a victim impact statement as :-

a statement containing particulars of:

(a) in the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence, or

(b) in the case of a family victim, the impact of the primary victim's death on the members of the primary victim's immediate family.

25 "Primary victim" is relevantly defined as a person against whom the offence was committed. "Family victim" is defined as :-

in relation to an offence as a direct result of which a primary victim has died, .... a person who was, at the time the offence was committed, a member of the primary victim's immediate family, and includes such a person whether or not the person has suffered personal harm as a result of the offence.

26 It is therefore abundantly clear that Mr Knight was not a person against whom the affray was committed. It cannot be said that his death was a direct result of the affray, in the sense that the verdict against this offender necessarily brought with it a finding that he envisaged that the discharge of firearms was likely or probable. Strictly construed, the statement by Mr Knight's daughter is not receivable by the Court for the purposes of sentencing this offender on the affray.

27 Returning to the objective gravity of the offence, the Crown submitted that this affray was "towards the worst case", including as it did a measure of planning and premeditation, the fact that the participants were variously armed with firearms, pieces of timber and other implements, that it was a large group, that it occurred in full view of numerous members of the public in a public car park and that it involved the actual use of violence. The Crown further submits that the offence calls for a sentence towards the upper range for offences of this kind.

28 I have previously commented in the course of sentencing Mr Abdulhardi that the range of sentences imposed for this offence have not perceptibly changed since the maximum penalty was doubled in December 2005. For the same reasons that I articulated on the previous occasion, this offender nonetheless has a legitimate expectation that he will receive a sentence in accordance with the existing sentencing practice.

29 To the extent that the gravity of the offence is affected by its short duration and the fact that it occurred late at night, after the various retail outlets on the perimeter of the car park had closed, those factors are of some, albeit, limited significance. The relatively short period of time during which the affray took place, in the order of minutes, was no doubt the product of the repeated discharge of at least two firearms and the wounding that resulted to two of the Mariam group. The participants in the affray were in exposed positions in the car park. The longer they remained there, the more likely it was that they themselves would be injured. Notwithstanding that the fast food outlets were no longer trading, there were members of the staff of those outlets who were waiting in the car park to be collected by friends and relatives. Moreover, adjacent to the car park, there was a service station and 711 store which was, at the time of the affray, trading with members of the public. All of these people were potentially put at risk of serious injury. That risk materialised in the death of Mr Knight.

30 In the result, it is not necessary to embrace the Crown's description of the offence as one approaching the worst case. It is always possible to envisage circumstances that would render the offence more objectively serious, although that does not preclude a finding that an offence is in the worst case category. This affray did not take place at a time or in a place that engendered in a large number of members of the public fear for their personal safety. That does not detract from my assessment of the offence as objectively a particularly serious example of affray.

31 The nature and gravity of the offences would, in the case of adult offenders, elevate general deterrence in the sentencing exercise. However, the principles established by the common law and s 6 of the Children (Criminal Proceedings) Act are capable of ameliorating that factor. The extent of that amelioration depends in part upon the degree to which the offender realised that what he was embarking upon when he arrived at the carpark was a most serious offence. The other considerations prescribed by s 6 are nonetheless relevant to the sentencing exercise.

32 I turn to a consideration of HEK's role in the offence and his subjective circumstances.

33 The offender did not give evidence at trial or on sentence. Through a report prepared by a Juvenile Justice officer (Exhibit C) the offender admitted to a history of altercations between himself and a former peer from his school, namely Samir Mohamad. This was the impetus for the assault at the Bankstown Centro shopping centre on the relevant evening. Having determined to resolve the dispute by meeting Mr Mohamad's associates later that night, the offender reported that he believed the "worst case scenario" was that he would be meeting for a "one-on-one" fight.

34 The offender said that he became aware from the nature of the telephone conversations prior to the meeting that there would be more than one person in the opposing group. He therefore took the step of recruiting associates older than himself in order to demonstrate that he had support. His two younger brothers would not have been present in the van if the offender thought that the situation would escalate as it did.

35 The offender maintained that he became aware of the death of Mr Knight later that evening. The report indicates that the offender was remorseful both for the death of Mr Knight and for the injuries to others at the scene. He reflected on the impact that the offence had on everyone in the community, including the employees of the retail outlets within the car park. These expressions of remorse appear genuine and demonstrate a level of insight. However the weight to be attached to them is tempered by the fact that they were not given on oath.

36 The offender claimed that his destruction of the van was carried out on the advice of one of his co-offenders. He reportedly apologised to the owner of the van and agreed to reimburse him for the loss of the vehicle.

37 Despite the offender's youth, I regard general deterrence as a significant factor in the sentencing exercise, primarily because the offender is representative of young adult males who too frequently resort to the use of violence when slighted by other young males within their community. The offender was a prime mover in the commission of the affray and was solely responsible for the destruction of the van (whether or not that was attributable to advice that he received). On his own admission, he became aware before the meeting in the car park that the numbers in the respective groups had grown and he nonetheless resolved to continue with the confrontation. He was not so immature or unworldly that he did not understand the potential for injury, including serious injury, arising out of such a scenario. In arriving at this finding, I have not overlooked the evidence at trial from Mr Howard, a forensic psychologist, to the effect that the offender demonstrated an IQ between 65 and 72, placing him in the "below average" to "lower extreme" range of general intelligence.

38 The offender is presently 20 years of age. He has been in custody since his arrest on these offences on 10 April 2010. He is the oldest male in a close and supportive family which underwent considerable stress between 2007 and 2009, owing to the serious illness of the youngest child. The offender's mother noted a change in his behaviour during this period and consequent upon her and her husband's absence from the home while they were at the hospital or at medical appointments.

39 The offender was the victim of a stabbing on 21 October 2009. The incident was so traumatic for the offender that he underwent counselling prior to his incarceration. The offender's mother claimed that this incident also produced a change in the offender's behaviour.

40 The offender attended Condell Park high school from years 7 to 9. He transferred to Bass High school where he successfully completed year 10. There were episodes of hostile and aggressive behaviour at Condell Park high school and there were three suspensions during the offender's time at Bass High school, of which two were for aggressive behaviour towards other students. The school reported no identified learning disabilities.

41 After leaving school, the offender obtained casual employment in the construction industry until attaining an apprenticeship in carpentry in early 2010. He was attending TAFE. He lost his employment upon his arrest.

42 Given that the offender still enjoys the support of his family and that his period in custody appears to have allowed him the opportunity to reflect upon his poor impulse control and address his anger management issues, I regard his prospects of rehabilitation as reasonably sound. The sentences to be imposed should ensure, notwithstanding the objective and subjective criminality, that the offender's rehabilitation is given some emphasis at the expense of punishment and retribution. I do not regard specific deterrence as a relevant factor.

43 Taking all of these matters into account, a sentence of imprisonment for the affray and for the malicious damage offence are necessary in order to mark the objective gravity of the offences and the offender's criminality. I acknowledge that the offences are capable of being dealt with summarily but the fact remains that the offender's indictment on a charge of murder brought him before the higher courts. Some slight mitigation of penalty is appropriate.

44 The offender has been in adult gaols since 24 June 2011. It is appropriate to recognise that his first time in custody at a young age has been more onerous on that basis, given that he was initially in a juvenile institution.

45 Accordingly, I propose to sentence the offender as follows :

46 HEK, you are convicted of the offence of affray. I sentence you to a non parole period of 2 years, to date from 10 April 2010, expiring 9 April 2012, with a balance of term of one year, expiring 9 April 2013.

47 You are further convicted of the offence of maliciously damage property by fire. I sentence you to a fixed term of 2 years imprisonment, to date from 10 September 2010, expiring 9 September 2012. You are entitled to release on 10 September 2012.

Decision last updated: 12 November 2012