Citation: R v Ameli, Farhang Jabal; Bigeni, Joel Benjamin and Zulfigar, Farhad [2008] NSWDC 136
Court: District Court of New South Wales
Date: 28 March 2008
Judge(s): Nicholson SC DCJ
Background
In September 2006, three young male offenders attended an unsupervised teenage party at Carlingford, New South Wales, as part of a group of uninvited guests. A significant brawl broke out involving 30 to 40 people, and shortly afterwards a victim named Reynolds was subjected to a savage group attack in a nearby street. He was punched and kicked to the ground and rendered motionless. A co-offender then stole his wallet, though this was not part of any common purpose involving the three accused.
Following the incident, the offenders met at a McDonald's restaurant and became aware of the broader criminality of that evening, including a serious wounding of Reynolds carried out by co-offender Khosravi. The offenders then provided false accounts to police when arrested, seeking to protect both themselves and Khosravi from investigation. Unbeknownst to them, police had already recorded telephone conversations between Khosravi and a juvenile co-offender, and were in possession of a false account before the offenders knew such a recording existed.
All three were charged with affray and with knowingly providing false information to police intending to hinder the investigation of a serious indictable offence committed by Khosravi. The first accused, Ameli, faced the additional charge of malicious wounding arising from a separate incident in 2007. All three pleaded guilty.
Legal Issues
- What was the appropriate objective assessment of criminality for the affray and the hindering charges?
- Whether the hindering charges constituted an offence against the courts or merely against the police investigation process
- Whether the offenders' primary purpose of protecting themselves negated the charge of hindering police in relation to a co-offender
- Whether the offenders played an accessorial role in the affray or were principals
- Whether the psychological report tendered on behalf of one offender was suitable evidence for sentencing purposes
- What sentences were appropriate across the three offenders, having regard to subjective matters including age, rehabilitation prospects, and guilty pleas
Decision
Nicholson SC DCJ found that the hindering charges, although available at law, reflected prosecutorial overcharging. The court reasoned that the offenders' primary motivation in giving false accounts was to protect themselves, which carries no criminal liability. However, because each offender was simultaneously seeking to protect Khosravi, the charge was technically available. The court expressed doubt that a properly directed jury would have convicted on these facts, but accepted the guilty pleas and proceeded to sentence accordingly.
On the nature of the offence, the court held that hindering police in an investigation does not constitute an offence against the courts. The court also addressed the argument that providing false information to shield a co-offender was a necessary step in concealing the offender's own criminality: this did not, of itself, convert self-protective conduct into conduct directed at hindering a co-offender's investigation, though on the facts both purposes operated together.
Regarding the affray, the court rejected a submission that two of the three offenders were merely accessories. Bigeni and Zulfiqar were found to have been present and willing to assist in the attack on Reynolds, satisfying the elements of affray. Ameli was found to have been actively involved in the assault itself.
On the psychological report tendered for one offender, the court found it unsuitable. The report failed to provide an evidential basis for the opinions expressed, offered conclusions contrary to the offender's own test results, and did not set out sufficient details of the personal history taken to support those opinions. The court declined to rely on it.
Orders Made
- Bigeni: Section 9 bond, 15 months; fined $750
- Zulfiqar: Section 9 bond, 12 months; fined $750
- Ameli: Section 11 bail continued for 9 months, with three review appearances before the court, to provide an opportunity to demonstrate capacity to rehabilitate; convicted of malicious wounding, affray, and hindering police
Key Takeaways
- The District Court confirmed that a charge of doing acts intending to hinder a police investigation is available at law where an offender provides false information intending to protect a co-offender, even where self-protection is the primary motive, provided the intent to shield the co-offender is also present.
- Hindering police in an investigation does not constitute an offence against the courts; it is directed at the investigative process only.
- A psychological report tendered in sentencing proceedings must provide an adequate evidential foundation for all opinions expressed, must not contradict the offender's own test results without explanation, and must record sufficient personal history to support the conclusions drawn; failing these requirements, a court may decline to rely on the report.
- Presence at the scene of an affray while ready and willing to assist co-offenders can satisfy the elements of affray, even where a person does not directly participate in the physical violence.
- Nicholson SC DCJ directed a pointed observation to the parents of offenders that paying fines imposed on their children would vitiate the punitive intent of the sentence and would constitute an unwarranted interference with the administration of criminal justice.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
Cases:
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] 1 NSWLR 597
- R v Hayes [1984] 1 NSWLR 740