STATE OF TASMANIA v MISHAL ALMISHALAWY GEASON J
COMMENTS ON PASSING SENTENCE 17 JUNE 2019
Mr Almishalawy you have been found guilty by a jury of a single count of wounding. The circumstances in which the crime was committed are these: on 30 October 2015 you attended at the home of the complainant, Mr Shigri. He was not there, but a person known to you both, Mr Sultan Ali, was there and you had a cup of tea together. There was nothing to indicate that your purpose when you went there was to be violent towards anyone. When the complainant got home he was not happy about you being there. He says, because of an issue that had arisen in relation to a car that he claims you had purchased from him. Whether or not you had bought a car from him is ultimately irrelevant, save to explain his displeasure at you being at his home. He says that he asked you to leave. You did not leave and a verbal exchange took place that involved the exchange of insults about other family members.
Matters soon took an aggressive turn and Shigri told the Court that you struck out at him and hit him on the nose. At some point a physical struggle developed, and after you managed to break free you picked up a pair of scissors which were sitting on a table nearby. I find that you swung the scissors towards Mr Shigri, knowing such action carried the real possibility that the scissors would strike him and cause a wound but choosing to take that risk anyway. The scissors came into contact with Mr Shigri’s head causing a wound which required four stiches.
I find that the duration of this episode was relatively short. You left immediately after the complainant sustained that injury, and Mr Shigri went straight to the hospital. He required four stiches to his head.
I have read Mr Shigri’s victim impact statement and I accept that this was a distressing event for him. He has never before been involved in a fight and afterwards he was unable to eat or sleep. This incident affected his work, and the type of work he was able to do. He had to move interstate to find suitable work, but was unable to do so for some time. Fortunately he is working again now.
You were interviewed over two years later, and you denied having been at the complainant’s address and you denied the conduct alleged against you. You maintained that denial at trial, and you gave evidence in your trial to that effect. The jury did not accept that version. One relevant aspect of the delay in bringing this matter on is that it enables you to point out that in the period since the offending you have committed no further offences, a matter I regard as relevant to personal deterrence.
You are 35 years of age and you have a productive working career in this country. I accept that you present as a person of good character. I accept therefore that this offence, was out of character. I acknowledge that there is a potential for consequences upon your Visa status flowing from a term of imprisonment, but the position seems to me to be uncertain. The submission from Mr Kovacic is that until a prison sentence reaches two years or more such consequences possible, but are unlikely to ensue.
Mr Almishalawy, wounding is viewed very seriously by the Courts and it is necessary to deter you and others from engaging in conduct that carries with it the risk of serious harm. In this case it is fortunate that more serious harm was not inflicted on Mr Shigri in consequence of your actions.
Convictions for this type of offence typically result in a custodial sentence, and it is the risk of causing serious harm that explains the need for such sentence, and in my view that ought to be the result in this case. There is little to mitigate your conduct even though I accept that you went to Mr Shigri’s house with no intention to do violence.
Because of your previous good character, and because you have not offended in nearly four years since this offence was committed, I am satisfied that I can suspend such term of imprisonment as I intend to impose whilst fulfilling the sentencing purposes of deterring you and others, of denouncing your conduct and vindicating the victim of this offence. I have had you assessed for a community correction order and you are considered to be suitable therefor. Performance of community service orders will, in my view, maintain a punitive element to the sentence.
Mr Almishalawy I sentence you to six months’ imprisonment. The whole of that sentence is suspended for two years on the following conditions:
- That you commit no crime for which a term of imprisonment may be imposed during that period;
- That you will perform 120 hours of community service orders. I incorporate the usual conditions prescribed by the Sentencing Act.