Citation: R v Salah BENE & Calvin ABBOSH [2010] NSWDC 218
Court: District Court of New South Wales
Date: 1 October 2010
Judge(s): Finnane QC DCJ
Background
On 3 February 2007, a dispute arose at a Fairfield market when one offender refused to vacate tables reserved for customers of a family food stall. After being asked to leave, he became abusive and telephoned his brother to come to the market. Both the offender and his brother are Iraqi-born men who came to Australia as refugees.
The brother arrived at the market carrying a knife and stabbed the adult son of the stall operator multiple times, wounding him in both the front and back of his body. When another member of the stall operator's family intervened, he was also stabbed, though his injuries were less serious. A jury convicted both men on two counts each of maliciously wounding with intent to cause grievous bodily harm: one count relating to the primary victim and one relating to the intervening family member.
The sentencing proceedings addressed the gravity of the offending, the personal circumstances of each offender, and the appropriate length of custodial terms. Neither offender had a prior criminal history.
Legal Issues
- What sentences were appropriate for two co-offenders convicted of maliciously wounding with intent to cause grievous bodily harm, where the victims were separate individuals?
- How should the sentences be structured, including head sentence, non-parole period, and the degree of concurrency or cumulation between counts?
- Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the balance of the head sentence.
- What weight should be given to the offenders' refugee background, absence of prior criminal history, lack of remorse, and the serious and premeditated nature of the attack?
Decision
The District Court found that the attack on the primary victim was premeditated. Finnane QC DCJ was satisfied beyond reasonable doubt that the brother who carried the knife came to the market intending to stab the victim, and that the other offender knew his brother had a knife, knew he intended to use it, approved of its use, and participated in the attack by striking the primary victim in the back of the head. Both men were found to have also had the requisite intent in relation to the secondary victim, who was stabbed while attempting to assist his brother.
The court rejected the self-defence account given by the knife-wielding offender at trial, finding it clearly false and noting that the jury had correctly done the same. Both offenders continued to maintain that false account at the time of sentencing and showed no contrition or remorse. One offender's attempt during a psychological interview to frame the incident in religious or racial terms was treated as a further effort to advance a false narrative rather than a genuine explanation.
The court acknowledged the offenders' difficult personal histories in Iraq, including exposure to the tyranny of the Saddam Hussein regime and the psychological effects of living under such conditions. However, it found that those circumstances provided no explanation or justification for the extreme violence inflicted in response to a polite request to vacate a table at a market.
Because both offenders were first-time offenders and the overall sentences were already severe, the court found special circumstances justifying a slightly extended balance of term. The sentences were made slightly cumulative rather than fully concurrent, producing an overall non-parole period of nine years for each offender.
Orders Made
- Count 1 (offences against the primary victim): Each offender sentenced to 16 years imprisonment with a non-parole period of 8 years.
- Count 2 (offences against the secondary victim): Each offender sentenced to 10 years imprisonment with a non-parole period of 5 years.
- The non-parole periods were made slightly cumulative, with a one-year overlap, producing an effective overall non-parole period of 9 years for each offender.
- Salah Bene: Non-parole period for Count 2 commencing 12 April 2010; eligible for parole 11 April 2019; all consequences of sentence expire 11 April 2026.
- Calvin Abbosh: Non-parole period for Count 2 commencing 1 September 2009; eligible for parole 31 August 2018; all consequences of sentence expire 31 August 2023.
- Sentences backdated to account for time already served in custody.
Key Takeaways
- Premeditation and the deliberate arming of an offender prior to attending the scene were treated as seriously aggravating features, supporting a head sentence of 16 years on the principal count against a maximum of 25 years.
- The District Court declined to treat refugee background or exposure to trauma under an authoritarian regime as a mitigating explanation for serious premeditated violence, while acknowledging those circumstances as matters of fact.
- A complete absence of remorse, combined with the maintenance of a false account through to the sentencing hearing, weighed against the offenders and precluded any reduction on those grounds.
- Special circumstances were found, justifying a non-parole period that represented a proportionally smaller fraction of the head sentence than the standard ratio, given that both offenders were first offenders and the overall sentences were severe.
- Where two victims are involved in a single incident, sentences for each count may be made slightly cumulative rather than fully concurrent, particularly where the offending against each victim is distinct in character or degree.
Legislation and Cases Referenced
No specific legislation or cases were cited in the provided text of the judgment.