Citation: R v Awad [2020] NSWDC 711
Court: District Court of New South Wales
Date: 2 April 2020
Judge: Norrish QC DCJ
Background
The offender, Talal Awad, appeared for sentence on a charge of reckless wounding under the Crimes Act 1900 (NSW). The offence occurred on 19 January 2019 at Padstow, when the offender stabbed a man known to him, Mohamed Naaman, in the left forearm during a physical struggle that arose from an argument over money. The two men were associates and the incident occurred in the offender's home.
The victim sustained a 5 to 6 centimetre laceration with protruding muscle tissue, requiring surgery to repair severed muscles and two days of hospitalisation. No evidence of permanent disability was before the court. After the stabbing, the offender attempted to bind the wound before telling the victim to leave.
The offender pleaded guilty and had been in continuous custody since his arrest on 19 January 2019, a period of approximately 15 months by the time of sentencing. The proceedings were conducted via audiovisual link due to the COVID-19 pandemic.
Legal Issues
- Where on the objective seriousness spectrum did the offending fall, taking into account the standard non-parole period of three years?
- What weight should be given to the offender's lengthy criminal history, particularly prior offences of personal violence?
- How should the offender's significant mental and physical health conditions, including a substantial substance use disorder, affect the sentence?
- Whether the COVID-19 pandemic constituted a relevant hardship factor in sentencing, given the offender's health vulnerabilities.
- Whether special circumstances existed to justify varying the ratio between the non-parole period and the balance of sentence.
Decision
Objective seriousness: His Honour placed the offending below the middle range of objective seriousness, though not at the lowest end. The knife used was a domestic steak knife that had not been brought to the scene for any threatening purpose. The violence was reactive, unplanned, and arose from a mutual physical struggle. The Crown conceded sub-middle range seriousness, and the court accepted that the use of a weapon under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 was an aggravating factor, though one tempered by the domestic and opportunistic nature of the instrument.
Criminal history: The offender's record extended over 30 years and included convictions for robbery whilst armed, drug supply, assault, and other offences of personal violence. While this history did not entitle the offender to leniency, His Honour declined to treat it as aggravating the objective seriousness of this particular offence. The court found that the circumstances of the wounding arose uniquely from the situation between the offender and victim on the day, and could not conclude that the prior record contributed causally to the conduct.
Subjective factors: The offender's substantial substance use disorder, mental health conditions, and multiple physical health conditions were treated as relevant to both the weight to be given to personal deterrence and the utilitarian value of the guilty plea. The offender's offer to bind the victim's wound was accepted as evidence of genuine remorse. These factors, combined with the need to promote rehabilitation, supported a finding of special circumstances justifying a longer-than-standard balance of sentence.
COVID-19: His Honour acknowledged that the pandemic created additional hardship for prisoners, particularly those with health vulnerabilities, by reference to the Victorian Court of Appeal's reasoning in Davis v R [2020] VSCA 60. However, given the offender's parole eligibility date was only 16 days from the date of sentencing, the court found this factor carried limited practical weight in the final sentence calculation, while noting that correctional authorities bear responsibility for protecting the health of those in custody.
Orders Made
- Offender convicted of reckless wounding.
- Sentenced to a total term of imprisonment of two years six months, commencing 19 January 2019.
- Non-parole period of one year three months, expiring 18 April 2020.
- Balance of sentence of one year three months, expiring 18 July 2021.
- Offender eligible for release to parole on 18 April 2020.
Key Takeaways
- The District Court confirmed that a substantial criminal history for personal violence offences does not automatically aggravate the objective seriousness of a subsequent offence if the circumstances of that offence arose independently of the prior conduct pattern.
- Unplanned, reactive violence involving an opportunistically seized domestic implement, without premeditation or intent to cause grievous bodily harm, will generally be placed below the middle range of objective seriousness for reckless wounding, even where a weapon was used.
- A diagnosis of substance use disorder and other health conditions can reduce the weight afforded to personal deterrence in sentencing, consistent with the principle in R v Engert (1995) that the purposes of sentencing must be moderated by the offender's individual circumstances.
- The COVID-19 pandemic was accepted as a factor capable of constituting additional hardship in custody, particularly for offenders with health vulnerabilities, though its practical weight depended on the length of the remaining custodial period.
- Special circumstances were found to exist, permitting the court to depart from the standard non-parole period ratio in favour of a longer period on parole supervision to support rehabilitation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2)(c), 54A(2), 54B(2)
Cases:
- Davis v R [2020] VSCA 60
- De La Rosa [2010] NSWCCA 194
- Makarian v R [2005] HCA 25; 228 CLR 357
- R v Engert (1995) 84 A Crim R 67
- R v Israil [2002] NSWCCA 255
- R v Smith (1987) 44 SASR 587