Citation: R v Al-Mansoori [2024] NSWDC 466
Court: District Court of New South Wales
Date: 12 September 2024
Judge(s): Colefax SC DCJ
Background
The offender, a 35-year-old Iraqi-born man on a temporary bridging visa, was sentenced for three offences arising from a road rage incident on 30 December 2022 in Merrylands, NSW. The victim attended his former wife's home to deliver money for their children. A heated verbal argument broke out between the victim and the offender, during which the victim made an offensive remark about the offender's mother.
The offender initially drove away but, in a state of rage, performed a U-turn and drove back toward the victim at speed. He deliberately veered his vehicle toward the victim, striking him and causing him to fall to the ground before the vehicle also collided with the victim's truck. The victim sustained abrasions and a fractured left tibia requiring surgical fixation. The offender drove away without stopping to assist and then attended a police station where he gave a false account, including falsely claiming his partner was the driver and that the victim had thrown himself at the car.
The three offences were dealt with together in the District Court by consent, as the failing to stop and assist charge would ordinarily have been heard in the Local Court.
Legal Issues
- The appropriate objective seriousness of each of the three offences within the relevant sentencing range
- The weight to be given to the offender's subjective circumstances, including a difficult personal history, post-traumatic stress disorder (PTSD), and the fact he was a first offender
- Whether special circumstances existed to justify reducing the statutory non-parole period
- The appropriateness of an aggregate sentence and the applicable guilty plea discount
Decision
The court assessed the objective seriousness of the offences as follows: using an offensive weapon with intent (sequence 7) was placed slightly below the mid-range; assault occasioning actual bodily harm (sequence 6) and failing to stop and assist (sequence 4) were each placed equidistant between the middle and the bottom of the range. No additional aggravating factors were identified.
In assessing the offender's subjective circumstances, Colefax SC DCJ considered a traumatic background that included childhood abuse, living through the American invasion of Iraq, and threats from Islamic militants that culminated in a bomb being detonated at his business. The court accepted a diagnosis of PTSD arising from these cumulative experiences. The offender had no prior convictions and had maintained full-time employment in Australia. Character references and an employer's letter were tendered, and the court assessed his prospects of rehabilitation as reasonable.
A guilty plea discount of 25% was applied. Special circumstances were found on four grounds, justifying a reduction in the otherwise applicable statutory ratio between the non-parole period and the balance of the sentence: it was the offender's first period of custody; he had endured harsh conditions due to language difficulties; his PTSD had gone untreated during custody; and a longer parole period would better support rehabilitation.
The court also made a pointed observation about the conduct of the offender's psychologist, Mr Albassit, noting a failure to comply with the Expert Witness Code of Conduct. The court directed that his report not accompany the warrant and strongly recommended that Community Corrections not engage him as the external psychologist for the offender's supervision plan upon release.
Orders Made
- Aggregate sentence of 3 years imprisonment for all three offences
- Sentence backdated to 15 November 2023, accounting for 302 days spent in pre-sentence custody
- Non-parole period fixed at 1 year, expiring 14 November 2024
- Balance of sentence fixed at 2 years, expiring 14 November 2026
- Report of psychologist Mr Albassit directed not to accompany the warrant
- Community Corrections strongly recommended not to appoint Mr Albassit as external psychologist for the supervision plan
Key Takeaways
- Using a motor vehicle as a weapon in a road rage attack can support a charge under s 33B(1)(a) of the Crimes Act 1900 (NSW), with the court treating the conduct as slightly below the mid-range even where there was some uncertainty about whether the contact with the victim was deliberate or reckless.
- A diagnosis of PTSD arising from sustained trauma, including wartime experience and targeted violence, can carry meaningful weight in mitigation at sentencing, even where it does not excuse the offending conduct.
- Special circumstances under NSW sentencing law can be established by a combination of factors, including a first custodial experience, language-related hardship, untreated mental health conditions, and the rehabilitative value of an extended parole period.
- Providing false information to police after an offence, including falsely implicating an innocent third party, was noted by the court as a relevant aspect of the offender's post-offence conduct, though it was weighed alongside his decision to attend the police station promptly.
- The District Court's express criticism of the psychologist's non-compliance with the Expert Witness Code of Conduct, and its recommendation that Community Corrections not engage him, illustrates the practical consequences of expert witnesses failing to meet their obligations to the court.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33B(1)(a) (use of offensive weapon with intent to commit an indictable offence)
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm)
- Road Transport Act 2013 (NSW), s 146(1) (fail to stop and assist after impact causing injury)
Cases cited: None stated in the judgment.