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District Court 8 November 2019

R v Alsharify

[2019] NSWDC 795

Assault & violenceFirearms & weapons
SENTENCING RECKLESS WOUNDING USE OF SWORD

Citation: R v Alsharify [2019] NSWDC 795
Court: District Court of New South Wales
Date: 8 November 2019
Judge: Hatzistergos DCJ

Background

The offender was charged following an incident on 26 March 2018 at Canley Vale, in which the victim was wounded with a sword. The offender was in a relationship with a woman whose ex-boyfriend (the victim) had been staying at her unit, despite an apprehended violence order being in place. After accompanying her to Liverpool Police Station that morning to report the victim's presence, the offender returned to the unit that evening to confront him.

A confrontation occurred inside the unit and continued into the car park below. Multiple witnesses, including the victim and bystanders, observed the offender in possession of a sword. The victim sustained a 7 cm laceration to the left flank, along with bruising and abrasions, and was treated at Liverpool Hospital.

At trial, the jury acquitted the offender of the more serious charge of wounding with intent to cause grievous bodily harm, but found him guilty of the alternative charge of reckless wounding under s 35(4) of the Crimes Act 1900 (NSW). The offender's own evidence, in which he denied ever having a sword, was rejected by the jury.

  • What facts should form the basis of sentencing, consistent with the jury's verdict of reckless wounding rather than intentional wounding?
  • What was the objective seriousness of the offending?
  • Whether the offender's Iraqi cultural background reduced his moral culpability.
  • What weight should be given to protective factors, including the offender's personal circumstances and prospects of rehabilitation?
  • Whether special circumstances existed to justify a non-standard ratio between the non-parole period and the overall sentence.

Decision

Finding the facts consistent with the verdict. Because the jury acquitted the offender of wounding with intent, the sentencing court could not proceed on the basis that the offender intended to cause grievous bodily harm. His Honour accepted that a sword was used to wound the victim in the car park, but was not satisfied beyond reasonable doubt that the offender had carried it into the unit at the outset of the confrontation (as the victim alleged). The court instead proceeded on the basis that the sword was produced during the car park encounter.

Objective seriousness. The use of a sword is an inherently dangerous act. The wound, while not life-threatening, involved a 7 cm cut requiring glue repair, along with other injuries. The court assessed the offending as moderately serious within the range for reckless wounding, noting the confrontational context and the presence of children in the vicinity.

Cultural background and moral culpability. The offender relied on expert evidence concerning his Iraqi background and cultural attitudes, arguing this reduced his moral culpability. His Honour accepted that background and cultural context can, in appropriate cases, be relevant to moral culpability, consistent with established Court of Criminal Appeal authority. However, the court found this factor carried limited weight on the particular facts.

Protective factors and rehabilitation. The court accepted that the offender had genuine protective factors, including family support and limited prior criminal history. Both the Sentence Assessment Report and a psychological report identified capacity for rehabilitation and recommended programs addressing anger management, domestic offending, and cognitive behavioural therapy. His Honour found special circumstances existed, given this was the offender's first substantive period in custody and an extended parole term was desirable to support supervised rehabilitation.

Orders Made

  • The offender was convicted of reckless wounding contrary to s 35(4) of the Crimes Act 1900 (NSW).
  • Sentenced to a non-parole period of 1 year and 2 months imprisonment, commencing 1 June 2019 and expiring 31 July 2020.
  • Upon release, an additional parole term of 1 year and 2 months, from 1 August 2020 to 30 September 2021.

Key Takeaways

  • When sentencing after a partial acquittal, the sentencing court must identify facts consistent with the jury's verdict and cannot proceed on the basis of findings the verdict necessarily excludes, such as intent rejected by the acquittal on the more serious charge.

  • Cultural background and upbringing can be relevant to an assessment of moral culpability in sentencing, but the weight given to such factors turns on the specific facts and is not automatic, as the Court of Criminal Appeal authorities cited here confirm.

  • A sentencing court is not permitted to manipulate the calculation of presentence custody to bring a sentence within the jurisdictional threshold for an Intensive Correction Order, following R v West [2014] NSWCCA 250.

  • Special circumstances justifying a departure from the standard non-parole period ratio may be found where it is a first period of custody and supervised parole with structured rehabilitation programs is considered beneficial.

  • Sufficient evidence from multiple independent witnesses can ground the factual basis for sentencing even where the defendant testifies to the contrary and the primary complainant's account contains some internal inconsistencies.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a), 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 24

Cases
- Dipangkear v R [2010] NSWCCA 156
- Elsobky v R [2006] NSWCCA 168
- R v Bednarz [2000] NSWCCA 553
- R v West [2014] NSWCCA 250
- Shaw v R [2008] NSWCCA 58