Citation: R v David Houssein [2008] NSWDC 388
Court: District Court of New South Wales
Date: 30 July 2008
Judge(s): Cogswell SC DCJ
Background
The offender pleaded guilty to two counts of malicious wounding under s 35 of the Crimes Act 1900, each carrying a maximum of seven years imprisonment. The offences arose from a violent incident on 24 June 2007 at the offender's unit in Croydon, where an argument over cannabis broke out between the offender and two brothers he had invited back to his home. The offender's mother was present during the argument.
The offender retrieved a knife with a twelve-inch blade and repeatedly stabbed both brothers, including pursuing them out of the unit and continuing the attack on the steps outside. One victim sustained multiple lacerations including injuries to the abdomen and groin area, causing rectal and urethral lacerations. Both victims required ambulance and hospital treatment.
The offender entered his guilty plea on the day the trial was listed, 26 May 2008. He had a prior criminal record, predominantly for dishonesty offences, and had previously served more than six months in custody on remand pending an earlier appeal.
Legal Issues
- What weight, if any, should be given to provocation as a mitigating factor given the nature and persistence of the attacks?
- Whether the hardship that full-time imprisonment would cause to the offender's disabled mother was sufficient to mitigate the sentence or influence the sentencing approach.
- Whether periodic detention was an appropriate alternative to full-time imprisonment, including whether the offender was eligible under s 65A of the Crimes (Sentencing Procedure) Act 1999.
- What sentence, including non-parole period and balance of term, was appropriate across the two offences?
Decision
The court accepted that the argument involved some threatening and abusive behaviour directed at the offender's mother, and treated this as a degree of provocation. However, Cogswell SC DCJ found that the element of provocation was short-lived and did not substantially reduce the seriousness of the offending. The attacks were described as vicious and persistent, and the offender had pursued the victims outside the unit and continued stabbing after they attempted to flee.
On the question of hardship to the offender's mother, the court applied the established principle that family hardship must reach an extremely high threshold before it can function as a mitigating factor in sentencing. The court was not satisfied that threshold was met. Evidence indicated other family members existed who might be able to assist Mrs Houssein, though no detailed evidence about their capacity to help had been led.
On periodic detention, the court identified two obstacles. First, the offender appeared likely ineligible under s 65A of the Crimes (Sentencing Procedure) Act 1999, which restricts periodic detention for offenders who have previously served more than six months imprisonment. Second, and separately, the court found that the seriousness of the offences made periodic detention an inappropriate sentencing option regardless of eligibility. Full-time imprisonment was the only appropriate response.
The late guilty plea, entered on the first day of trial, attracted only a modest discount. The court acknowledged the offender's psychological history, his long-standing care role for his mother, and a positive prognosis from a clinical psychologist, but these matters did not displace the need for a custodial sentence.
Orders Made
- For each of the two malicious wounding offences: 22 months imprisonment, with a non-parole period of 15 months and a balance of term of 7 months.
- The sentence for the first offence was backdated to 30 June 2008; the sentence for the second offence commenced 30 July 2008.
- Automatic release on parole from 29 October 2009, subject to conditions including good behaviour and supervision by the Probation and Parole Service.
Key Takeaways
- The District Court confirmed that family hardship must reach an exceptionally high level, described as near inhuman or merciless, before it can carry weight as a mitigating factor in sentencing; ordinary or even significant inconvenience to family members does not meet this threshold.
- A provocation element may reduce the overall seriousness of a wounding offence, but where the provocative conduct was brief and the subsequent violence was persistent and severe, the mitigating effect will be limited.
- Under s 65A of the Crimes (Sentencing Procedure) Act 1999, an offender who has previously served more than six months in custody may be ineligible for periodic detention, even where that custody arose from remand rather than a completed sentence.
- Seriousness of the offending can independently disqualify an offender from periodic detention, separate from any question of statutory eligibility.
- A guilty plea entered on the first day of trial attracts a reduced discount compared with an early plea, reflecting the limited utilitarian value to the court and the justice system.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35 (malicious wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 65A (eligibility for periodic detention), s 66
Cases: No specific cases were cited in the text provided.