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District Court 9 April 2021

R v El Hajjar

[2021] NSWDC 116

Assault & violence
PRINCIPLE OF TOTALITY

Citation: R v El Hajjar [2021] NSWDC 116
Court: District Court of New South Wales
Date: 9 April 2021
Judge: Mahony SC DCJ

Background

The offender was an inmate at the Metropolitan Remand and Reception Centre (MRRC) at Silverwater, serving an existing aggregate sentence of 9 years and 6 months for serious offences including armed robbery and firearms offences. On 5 October 2019, when he was 28 years old, he attacked a fellow inmate who had been transferred into his pod only the day before.

The attack involved approximately 20 stabbing motions with a sharpened improvised weapon ("shiv") directed at the victim's neck and upper body. The victim was struck from behind while seated alone in a common area. The attack lasted less than 30 seconds and the offender only stopped when other inmates intervened. After the attack, the offender concealed the weapon in a toilet, and a co-accused later hid it behind a washing machine in the laundry.

The offender pleaded guilty to one count of wound with intent to cause grievous bodily harm under section 33(1)(a) of the Crimes Act 1900. At the sentencing hearing, the court received a psychological report, evidence from the offender's mother, and testimony from two fellow inmates.

Legal Issues

  • What was the appropriate level of objective seriousness for the offence?
  • Whether the attack was provoked or whether the offender acted in self-defence
  • Whether premeditation and planning were established as aggravating factors
  • How the sentencing principles under section 56 of the Crimes (Sentencing Procedure) Act 1999 (which presumes consecutive sentences for offences committed in custody) interacted with the totality principle
  • Whether the sentence should be backdated, and if so, to what date
  • Whether special circumstances existed to vary the statutory ratio between head sentence and non-parole period

Decision

Objective Seriousness

The court characterised the attack as ferocious, involving roughly 20 stabbing motions with a sharpened shiv aimed at the neck and upper body of a victim who was seated with his back turned and had no reason to anticipate an attack (at [74]). Although the attack was brief and the injuries, while real, did not include life-threatening wounds, the court found the overall conduct fell just below the mid-range of objective seriousness for a section 33(1)(a) offence, while still constituting very serious criminal offending (at [74]).

Provocation and Self-Defence

The court rejected the claims that the offender was provoked or acted in self-defence. The evidence was insufficient to establish either on the balance of probabilities (at [74], [76]). The court found the attack was an unjustified response arising from paranoia, consistent with provisional diagnoses of unspecified Personality Disorder, PTSD, and substance/medication-induced Psychotic Disorder (at [74]).

Aggravating and Mitigating Factors

Aggravating factors included the use of a weapon, premeditation and planning, and the offender's poor custodial disciplinary record (at [75]). The offender's early plea of guilty was accepted as evidence of some remorse (at [76]), and his background of early exposure to domestic violence and absence of his mother were accepted through unchallenged affidavit evidence (at [80]). However, the court assessed prospects of rehabilitation as guarded and the risk of reoffending as reasonably high, given the offender's extensive criminal history and repeated failures to address drug, mental health, and anger management issues (at [77]).

Commencement of Sentence and Totality

Section 56(2) of the Crimes (Sentencing Procedure) Act 1999 required any new sentence to be served consecutively with the non-parole period of the existing sentence. The court retained discretion under section 56(3) to direct otherwise, and found that backdating to the date of the offence would render the new sentence almost entirely concurrent with the existing term, which was not appropriate (at [81]). Instead, the court backdated commencement to a midpoint between the date of the offence and the expiry of the existing non-parole period, landing on the date of sentencing itself: 9 April 2021 (at [81]). The court also declined to find special circumstances, satisfied that the statutory ratio would provide sufficient time for supervised rehabilitation on parole (at [82]).

Sentence

After applying a 25% utilitarian discount for the early guilty plea, the court imposed a head sentence of 4 years and 6 months, with a non-parole period of 3 years and 4 months (at [83]).

Orders Made

  • The offender was convicted of wound with intent to cause grievous bodily harm pursuant to section 33(1) of the Crimes Act 1900.
  • A non-parole period of 3 years and 4 months, commencing 9 April 2021 and expiring 8 August 2024.
  • A balance of term of 1 year and 2 months, commencing 9 August 2024 and expiring 8 October 2025.

Key Takeaways

  • The District Court confirmed that general and specific deterrence carry significant weight when sentencing for violent offences committed by prisoners against other prisoners in custody, with the court emphasising that condign punishment is required to maintain public confidence in the administration of criminal justice (at [78]).

  • Where an offender asserts provocation or self-defence but gives no evidence and the claim rests primarily on unverified self-reporting to a psychologist, a sentencing court may find the claim unestablished on the balance of probabilities, particularly where the response was grossly disproportionate (at [74], [76]).

  • Under section 56 of the Crimes (Sentencing Procedure) Act 1999, sentences for offences committed while serving a term of imprisonment are presumed consecutive, but the sentencing court retains discretion to order partial concurrency where full consecutive operation would produce a disproportionate total (at [81]).

  • Backdating a new sentence to the date of the index offence, where it would render the new sentence almost wholly concurrent with an existing term, is not automatically compelled by the totality principle, and a midpoint commencement may be appropriate (at [81]).

  • A history of repeated failures to rehabilitate, extensive custodial misconduct, and ongoing poly-substance abuse and mental health issues may lead a court to assess prospects of rehabilitation as guarded and decline to find special circumstances to extend the parole period, even where a psychological report recommends a treatment regime (at [77], [82]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Evidence Act 1995

Cases
- AM v R [2012] NSWCCA 203
- Banks v R [2018] NSWCCA 41
- Beil v R [2015] NSWCCA 120
- Dixon v R [2019] NSWCCA 85
- El Masri v R [2014] NSWCCA 13
- Hillier v DPP [2009] NSWCCA 312
- Imbornone v R [2017] NSWCCA 144
- Kiernan v R [2016] NSWCCA 12
- R v Jeremiah [2016] NSWCCA 241
- R v Tuuta [2014] NSWCCA 40
- Touhifalou v R [2018] NSWCCA 283
- Veen v R (No 2) (1988) 164 CLR 465