R v Habib

Citation: R v Habib [2014] NSWDC 324
Court: District Court of New South Wales
Date: 28 November 2014
Judge(s): Berman SC DCJ

Background

A family dispute over payment for tiling work at a Westfield Shopping Centre provided the backdrop to this sentencing proceeding. The offender and his cousin had been in conflict for some time, with the cousin regularly driving past the offender's home and convenience store and exchanging words with him. The dispute had previously been resolved by court proceedings in the cousin's favour, but the offender continued to believe money was owed to him.

On the evening of 9 March 2013, the cousin drove past the offender's shop with his children in the car. Words were exchanged, and the offender retrieved a knife from under the counter of his supermarket. Despite his wife physically attempting to stop him, he walked down the street and raised the knife above his head in an attempt to stab his cousin. The cousin managed to grab the offender's arm and sustained only a minor abrasion.

During the ensuing struggle over the knife, the offender was injured and lost the sight in his left eye. A jury convicted him of attempting to wound his cousin with intent to cause grievous bodily harm. He was acquitted of a separate charge relating to a minor wound sustained by the cousin's wife during the struggle.

Legal Issues

• What was the appropriate sentence for a conviction after trial for attempted wounding with intent to cause grievous bodily harm, carrying a maximum of 25 years imprisonment?
• Whether the loss of the offender's eye during the struggle constituted extra-curial punishment warranting a reduction in sentence.
• Whether hardship to the offender's wife and young son could be taken into account as a mitigating factor.
• Whether provocation by the victim, the offence's unplanned nature, and the offender's good character affected the appropriate sentence.
• Whether an alternative to full-time imprisonment, such as an intensive corrections order or suspended sentence, was appropriate.

Decision

Objective seriousness of the offence

The court firmly rejected any characterisation of the conduct as a mere threat or an intention to cause lesser injury. The jury's verdict established that the offender intended to wound his cousin and cause grievous bodily harm, and the sentencing proceeded on that basis (at [5]). Taking a large knife and attempting to stab someone in the street constitutes criminality of a very serious order, regardless of the fact that no serious physical injury was ultimately inflicted on the victim (at [24]).

Subjective circumstances

Several matters operated in the offender's favour. The offence was unplanned, arising spontaneously when the cousin drove past, and was provoked by the cousin's comments as he did so (at [19], [21]). The offender was 49 years of age, a man of good character with no previous convictions and no history of violence, and the court was satisfied the offence was isolated with good prospects for rehabilitation (at [10]). The court placed particular weight on the loss of the offender's sight in his left eye as significant extra-curial punishment (at [16]). On the other side, the offender demonstrated a lack of real remorse, refusing even after conviction to admit he had intended to stab his cousin (at [17]).

Hardship to third parties

The offender's wife and young son faced real difficulties if he was imprisoned: the son, aged 8, was acutely distressed at the prospect of his father's absence, and the wife's limited English made running the business without the offender very difficult. The court acknowledged these hardships but declined to treat them as a significant mitigating factor. The circumstances were described as commonplace rather than exceptional, as many families suffer when a breadwinner is imprisoned (at [15]).

Sentence determination

The court treated general deterrence as the paramount consideration. The court noted that members of the community too often resort to violence and weapons to settle disputes, and that an offence of this gravity required full-time imprisonment to send an appropriate deterrent message (at [25]). The court declined to impose an intensive corrections order or suspended sentence. A head sentence of three years was imposed with a non-parole period of 18 months (at [26]).

Orders Made

• The offender is sentenced to imprisonment with a non-parole period of 18 months commencing 20 November 2014 and a head sentence of 3 years.
• The non-parole period expires on 19 May 2016, on which date the offender is to be released to parole.

Key Takeaways

• The District Court confirmed that sentencing for an attempt offence must reflect the offender's actual intent as established by the jury's verdict, not a lesser intent consistent with the physical outcome; the absence of serious injury to the victim did not diminish the gravity of the conduct (at [5], [9]).

• Extra-curial punishment suffered by an offender, here the permanent loss of sight in one eye sustained during the struggle that followed the attack, constitutes a recognised mitigating factor in sentencing and can reduce the sentence otherwise warranted (at [16]).

• Hardship to an offender's family, including a young child's severe anxiety and a spouse's dependence on the offender's assistance in a business, will not ordinarily qualify as exceptional circumstances sufficient to avoid full-time imprisonment; such consequences are treated as commonplace rather than unusual (at [15]).

• General deterrence carries primary weight in sentencing for offences involving the use of a weapon to resolve a personal dispute, particularly where the offence is attempted wounding with intent to cause grievous bodily harm (at [25]).

• Provocation and the unplanned nature of an offence are relevant mitigating factors even where an offender had an opportunity to desist and failed to do so; however, they did not displace the need for a custodial sentence in this case (at [19]-[21]).

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated