Citation: Regina v Amir Ibrahim El Mostafa [2007] NSWDC 219
Court: District Court of New South Wales
Date: 24 August 2007
Judge(s): Cogswell SC DCJ
Background
The offences arose from events in Auburn, Sydney, on the night of 30 January 2005, during the period of Iraqi national elections. Tensions had been running high in the local Muslim community over whether Iraqis living in Australia should participate in the elections. A public demonstration had taken place the previous day, and a minor altercation occurred earlier on the Sunday evening.
Later that night, a group of approximately thirty to thirty-five men descended on a smaller, unsuspecting group in Auburn's main street after 11pm. The larger group was armed, firearms were discharged, and at least one person was wounded by a bullet. Three members of the attacked group sustained serious injuries: a broken nose, a broken wrist, and a fractured skull. The evidence established that most of the attacking group were Sunni Muslims and most of those attacked were Shiite Muslims who had voted in the Iraqi elections.
The offender had been arrested and charged on 29 July 2005, and remained in custody from that date. After a lengthy trial spanning multiple weeks in early to mid-2007, a jury convicted him of riot on 31 May 2007. The jury also returned verdicts of guilty on two counts of assault occasioning actual bodily harm in company and one count of maliciously inflicting grievous bodily harm in company.
Legal Issues
- What role did the offender play in the riot, and did that role amount to being a principal organiser?
- How should the court assess the objective seriousness of the offending, given the public order nature of the riot and the injuries inflicted?
- What weight should be given to the offender's history of mental illness and his personal circumstances as mitigating factors?
- How should the individual sentences for each offence be structured and accumulated so as to reflect totality principles?
Decision
The court found that, while it could not be satisfied beyond reasonable doubt that the offender was the sole principal or chief organiser of the riot, it was satisfied beyond reasonable doubt that he played a significant organisational role. Witnesses observed him directing other aggressors to advance and later giving a signal to withdraw, which supported a finding that he exercised authority over others in the group.
The court treated the offending as objectively serious. The riot involved a large armed group attacking a smaller and defenceless one in a public street at night, shots were fired, and three victims suffered significant physical injuries. The fact that the violence was connected to religious and political differences did not reduce the criminality; rather, the court noted that what had begun as legitimate expression of differing views crossed into serious criminal conduct.
The offender's history of mental illness was considered in mitigation, though the court's reasons do not disclose that it reduced the sentence substantially. The sentences for each count were partially accumulated on one another, with the court applying totality principles to arrive at an overall effective sentence.
Orders Made
- Conviction entered for riot (s 93B(1) Crimes Act 1900)
- Conviction entered for assault occasioning actual bodily harm in company against Mr Al Shemmari: 3 years imprisonment, non-parole period of 2 years, commencing 29 October 2007
- Conviction entered for assault occasioning actual bodily harm in company against Mr Alkhersan: 3 years imprisonment, non-parole period of 2 years, commencing 29 January 2008
- Conviction entered for maliciously inflicting grievous bodily harm in company on Mr Ansary: 4 years imprisonment, non-parole period of 2 years, commencing 29 July 2008
- Overall effective sentence: 8 years imprisonment
- Effective non-parole period: 5 years, commencing 29 July 2005, expiring 28 July 2010
- Overall sentence to expire 29 July 2013
Key Takeaways
- The District Court confirmed that participation in a coordinated, armed attack on a defenceless group in a public street, where the offender directed others and exercised authority during the riot, warrants a finding of a significant organisational role even where sole leadership cannot be proved beyond reasonable doubt.
- A riot connected to religious and political divisions does not attract lesser criminality on that basis; the court treated the public order dimension and the use of firearms as factors that aggravated the seriousness of the offending.
- Where multiple victims sustain distinct injuries during the same riot, separate counts for each victim can each attract their own sentence, with the sentences structured to commence at staggered dates to reflect accumulation while still applying totality principles.
- Time spent in pre-sentence custody counted toward the commencement of the overall sentence, with the effective sentence running from the date of arrest.
- A history of mental illness is a recognised consideration in sentencing, though its weight will depend on the circumstances and it does not automatically result in a substantially reduced term.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 93B(1) (riot; maximum 15 years)
- Crimes Act 1900 (NSW), s 59(2) (assault occasioning actual bodily harm in company; maximum 7 years)
- Crimes Act 1900 (NSW), s 35(2) (maliciously inflicting grievous bodily harm in company; maximum 10 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (non-parole periods)
Cases:
- Regina v Norman and Parker [2006] QCA 517
- Regina v McCormack & Ors [1981] VR 104