Supreme Court New South Wales

• Medium Neutral Citation: R v AM [2012] NSWSC 1635
• Hearing dates: 30 August; 9 and 12 December 2012
• Decision date: 14 December 2012
• Jurisdiction: Common Law - Criminal
• Before: Latham J

Decision

Convicted of the offence of affray. Accused is to enter a bond under s 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for a period of three years to date from today (14 December 2012).

• Catchwords: CRIMINAL LAW - sentence - affray - plea of guilty - parity - offender may only be sentenced for conduct giving rise to affray not conduct resulting in other offence - objective gravity of offence assessed as being particularly serious - juvenile offender
• Legislation Cited: Children (Criminal Proceedings) Act 1987
• Cases Cited: R v Mariam [2012] NSWSC 1023; R v Abdulhardi NSWSC 20 April 2012; Stevens v R [2007] NSWCCA 152; Khanwaiz & Ors v R [2012] NSWCCA 168
• Category: Sentence
• Parties: Regina - Crown; AM - Offender
• Representation: Counsel; P Barrett - Crown; Greg Scragg - Offender; Solicitors; Solicitor for Public Prosecutions - Crown; Lawyers Corp - Offender
• File Number(s): 2010/97237
• Publication restriction: The name of the offender and any information capable of identifying him is prohibited under the Children (Criminal Proceedings) Act 1987

SENTENCE

1 The offender, AM, pleaded guilty on 30 August 2012 to one count of affray committed on 25 June 2009. The offence carries a maximum penalty of 10 years imprisonment.

2 On the day of the offence, eleven young men gathered in a car park at Milperra to settle a dispute between two opposing groups. The tragic consequences of that evening have already been the subject of sentences imposed upon this offender's older brother, MM (see R v Mariam [2012] NSWSC 1023). This offender stands to be sentenced on the basis of an agreed statement of facts that does not attribute to him any knowledge of the presence of firearms at the scene.

3 There are obvious considerations of parity at play, given the sentencing of a number of co-offenders for their part in the same affray, in particular this offender's older brother MM. I have previously commented on the absence of any upward movement in relation to the range of sentences imposed for affray since the maximum penalty was doubled as and from 15 December 2005 ; R v Abdulhardi NSWSC 20 April 2012.

The Offence

4 At about 9pm on 25 June 2009, HEK was involved in a physical assault with Samir Mohamad at Bankstown's Centro shopping centre. This offender 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 as a "dog".

5 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 El Kobaili 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. This offender called members of the El Kobaili group and his two older brothers,  resulting in this offender being picked up by M outside the address of Samir Mohamed at Padstow in a green Honda two door coupe. This offender and M spoke with Samir Mohamed and Ibrahim Mohamed about the earlier incident and dispute with HEK at Bankstown.

6 At about 10:29pm, three members of the Mariam group, MM, Tarek Elbadar 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.

7 At about 10:34pm, the Honda car driven by M with this offender as passenger, pulled into the car park and parked between KFC and Hungry Jack's. They remained in the car.

8 A short time later, a white van carrying the El Kobaili 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.

9 Almost immediately,  MM who was advancing from the direction of the Aldi store perimeter, began shooting at the El Kobaili group.  One of the occupants of the van returned fire.

 

10 HEK and another occupant left the white van while its engine was still running and ran to the Honda. HEK started fighting with M. This offender locked the passenger door as soon as he was approached. Other occupants from the van began attacking the Honda with a large piece of wood and a steel wrench.

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

12 Mr Abdulhardi received serious gunshot wounds to the abdomen. M received gunshot wounds to the right forearm as he was standing outside the Honda. At some point, this offender left the vehicle and ran from the scene.

13 Within minutes of these events, the El Kobaili group retreated to the van and left the car park. This offender went to Bankstown Hospital, together with M, in a vehicle driven by Tarek Elbadar. Meanwhile, MM drove from the scene in the Honda at high speed, pursued by police, and was ultimately arrested in the front yard of his home. The Ruger semiautomatic pistol used by MM was recovered by police from the side of the road between the car park and his home. The magazine was empty. Eight spent cartridges and two live rounds from the Ruger were found within the car park.

14 In addition, there were four spent rounds from another .22 calibre weapon, a rifle, and one further unfired cartridge from the same weapon recovered from the car park.

15 The offender's role in these events consisted of communicating with HEK for the purposes of arranging the meeting and enlisting the help of his older brothers. There is no reliable evidence capable of establishing what it was that the offender anticipated would happen. The offender gave an account to Dr Nielssen, psychiatrist on 15 October 2012, in which the offender claimed that he was acting as a peacemaker at the shopping centre, that he rang HEK but has no memory of how he came to have his telephone number or what was said between them, and that he had no intention that the violence between the two groups would escalate, rather that he thought he was going to stop everything and "it just went out of hand".

16 A similar account was given to the Juvenile Justice officer who interviewed the offender on 22 November and 3 December 2012. To the Juvenile Justice officer, the offender claimed that he does not now recall how his brothers became involved. He said that he was unsure what to expect when the meeting was planned but that he thought it would be an opportunity to resolve the issue. The offender acknowledged that an altercation may occur but denied that he anticipated how serious it would become.

17 These accounts are untested by cross-examination. I am sceptical of the offender's claimed lack of recollection surrounding the circumstances leading up to the meeting in the car park. However, I accept that the offender was appalled at the escalation in the violence once they arrived at the scene. Nonetheless, the invitation to his older brothers is strongly suggestive of a realisation on the offender's part that he needed additional physical and moral support to assert the will of his associates over that of the El Kobailis.

The Objective Gravity of the Offence

18 I have previously considered 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. I repeat what I have previously said on this issue for the purposes of sentencing this offender.

19 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.

20 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.

21 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 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.

22 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.

23 The offence demonstrated a measure of planning and premeditation, the participants were variously armed with firearms, pieces of timber and other implements, it was a large group, it occurred in full view of numerous members of the public in a public car park and it involved the actual use of violence. These are all factors that are relevant to an assessment of objective gravity.

24 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.

25 For these reasons I have determined that the offender must be dealt with at law. That said, his role in the events at the carpark was extremely limited. He was not involved in the infliction of any violence and he did not engage with anyone once the affray started. I accept that he attempted to withdraw by locking the door of the car, although that act of self preservation was not surprising given the size and bulk of the man who was immediately threatening him.

26 The offender was only 15 years of age at the time of the offence. There is some merit in the submission of the offender's counsel to the effect that the offender's older brothers demonstrated a complete failure of moral and filial duty towards the offender. He has no criminal history and stands to be sentenced as a person of otherwise good character.

27 Whilst general deterrence has a role to play in the sentencing exercise, specific deterrence is of negligible consideration. Given his personal circumstances and the effect which his involvement in the events of that night have had upon him, I regard his prospects of rehabilitation as sound.

Subjective Circumstances.

28 The offender is presently 19 years of age, the youngest of five brothers. The offender continues to reside with his parents in the family home. He is the only child of the marriage who remains at home. The offender is described by his mother as a well-behaved and compliant child who has maintained positive behaviour throughout his adolescence.

29 The offender has completed his secondary schooling to HSC standard. He left school in August 2010 following a period in custody before he was granted bail. Reports that were obtained from the offender's high school indicated that the offender did not apply himself academically and did not achieve his potential.

30 The offender apparently commenced working full time as a carpenter and continued to work casually in that capacity throughout 2011. Contact with the offender's employer by Juvenile Justice did not produce any confirmation of the duration of full-time employment and the date upon which that ceased.

31 At the beginning of 2012, the offender began to work full-time for his father in his father's spray painting business where he continues to be employed. The offender has started an apprenticeship in automotive spray painting and is currently completing this apprenticeship through Granville TAFE. The offender's father reports that the offender is hard-working and conscientious.

32 The offender has reportedly ceased contact with many of the peer group that he had at the time of the offence. In large measure this was due in part to the conditions of his bail. Somewhat surprisingly, the offender reported that he has not been exposed to antisocial or criminal behaviour by his older siblings. That statement appears to overlook the central role that his oldest brother MM had in the events in the car park.

33 The offender displays a disturbing lack of insight in respect of his brothers' involvement in the offence. The Juvenile Justice report notes that the offender "may be minimising his offending behaviour by his vague recollection of the circumstances surrounding the offence and statements purporting his involvement occurred as a result of his young age and lack of common sense at the time." On the positive side, the offender recognises that he made a poor decision to participate in the offence and that he reacted impulsively with little thought for the consequences of his actions.

34 The offender has reported to others, including his immediate family and the Juvenile Justice officer, that he feels regret for the deceased victim and for members of his family. It is said that the incident has affected him greatly and that he has developed into a reserved and anxious young man. Given the offender's reluctance to take responsibility for his part in the offence, it is difficult to gauge whether this regret constitutes genuine remorse in the absence of hearing and seeing the offender express it to the Court.

35 The offender spent the period between 21 April and 18 August 2010 in custody for the instant offence.

36 The offender offered to plead guilty to affray in full discharge of the indictment when the matter was still in the Parramatta Children's Court. This offer was rejected by the Crown. Accordingly, the offender is entitled to a 25% discount on the sentence that is otherwise appropriate to the offence.

37 The law in relation to the sentencing of juvenile offenders is well settled and does not need to be repeated. The principles that inform the Children (Criminal Proceedings) Act recognise that the relative immaturity and vulnerability of juvenile offenders potentially renders them inappropriate vehicles for general deterrence, with a correspondingly greater emphasis on rehabilitation.

38 In terms of parity, this offender is one of the least culpable of all of the participants in the affray. Unlike SE, this offender was not armed and unlike HE, he was not aware of the existence of firearms in any of the vehicles.

39 Taking into account the period of almost 4 months in custody on this offence, the offender's strong subjective case, his limited role in the affray itself and his youth at the time of the commission of the offence, I do not regard a sentence of imprisonment as the requisite penalty.

40 AM, you are convicted of the offence of affray. I direct that you enter a bond under s 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for a period of three years to date from today.

Decision last updated: 05 March 2013