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District Court 17 September 2015

R v Yousif

[2015] NSWDC 407

Assault & violence
CRIMINAL LAW SENTENCE INTOXICATION VIOLENCE SUBSTANTIAL PRE SENTENCE CUSTODY

Citation: R v Yousif [2015] NSWDC 407
Court: District Court of New South Wales
Date: 17 September 2015
Judge(s): Berman SC DCJ

Background

The offender, a young man from the Sudanese community, was sentenced for affray arising from an incident outside the Chatswood Club in the early hours of 7 October 2012. At a community function attended by approximately 60 people, violence broke out as the crowd dispersed. The offender punched one man in the eye and then kicked another man while he was on the ground.

One victim, Mr El-Haj, lost the sight of his right eye as a result of being struck by a ceramic plate. However, the Crown did not attribute that injury to the offender, and the court accordingly placed very limited weight on Mr El-Haj's victim impact statement, which focused on that loss of sight.

At the time of the offence, the offender was already subject to a Community Service Order for a prior offence of actual bodily harm. He subsequently committed a further offence of affray after the index offence. He pleaded guilty shortly before trial was due to commence.

  • What weight should be given to a late guilty plea for the purposes of sentencing discount?
  • How should substantial pre-sentence custody be factored into the sentencing exercise?
  • Whether a suspended sentence was an appropriate disposition given the offender's criminal history and the circumstances of the offence?
  • What weight, if any, should be given to a victim impact statement where the offender was not criminally responsible for the injury described in it?

Decision

His Honour identified general deterrence as a significant sentencing consideration, noting that alcohol-fuelled violence is a persistent and serious community concern. The offender's criminal history, including the prior Community Service Order and a subsequent affray conviction, weighed against him.

The guilty plea attracted only a 10 per cent discount rather than the standard reduction. His Honour reasoned that the plea was entered late and appeared to have been delayed while the offender hoped the Crown would withdraw the more serious charge on the indictment. The utilitarian value of the plea was therefore reduced.

In mitigation, the court accepted the offender's difficult background, including exposure to domestic violence in Sudan and subsequently in Australia, his excessive alcohol use, and his efforts at rehabilitation, including completing courses in custody, securing employment, and abstaining from alcohol. These factors, combined with one year and four and a half months of pre-sentence custody, informed the court's conclusion that a return to full-time imprisonment was not necessary.

His Honour imposed a custodial sentence of 20 months but suspended it pursuant to section 12 of the Crimes (Sentencing Procedure) Act, on the basis that the substantial pre-sentence custody already served made an immediate custodial term unnecessary.

Orders Made

  • The offender was sentenced to 20 months imprisonment.
  • The sentence was suspended under section 12 of the Crimes (Sentencing Procedure) Act upon the offender entering into a good behaviour bond for the duration of the sentence.
  • Bond conditions included: good behaviour, supervision by the Probation and Parole Service, attendance before the court if called upon, and notification of any change of residential address to the court Registrar.

Key Takeaways

  • A late guilty plea, entered shortly before trial and apparently motivated by negotiations to have a more serious charge dropped, attracted only a 10 per cent sentencing discount rather than the larger reduction typically associated with an early plea.
  • Victim impact statements have limited utility at sentencing where the offender is not criminally responsible for the injury described in the statement. The District Court placed very little weight on the statement in those circumstances, as the Crown conceded.
  • Substantial pre-sentence custody (here, one year and four and a half months) can be a decisive factor in determining whether an immediate custodial term remains necessary, even where a full custodial sentence is warranted in principle.
  • Under section 12 of the Crimes (Sentencing Procedure) Act, a court may impose a term of imprisonment and then suspend it, making the offender's return to custody contingent on compliance with bond conditions during the operational period.
  • General deterrence carries significant weight in sentencing for alcohol-fuelled violence, even where personal circumstances and rehabilitation prospects are favourable.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), section 12 (suspended sentences)

Cases cited:
None stated in the judgment.