Assailant Attempts to Use Facebook Photos to Reduce Sentence

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Paul Gregoire and Ugur Nedim

On 23 May 2012, Ahmad Bajouri was having a few drinks with his mates Abdul Hamze, Fadi Arnaout and Mohammad Masri in the poker machine area of the Collingwood Hotel in Liverpool. The four men were heavily intoxicated.

At around 11 pm, another patron George Sermetovski went over to the bar to purchase a drink. One of the four friends hurled belligerent remarks towards Sermetovski’s, and Mr Masri then attacked Sermetovski and pulled him to the ground.

An off-duty security guard, Mr Fonua, was called to intervene. Fonua led Sermetovski away from the group of men and into the pool room. But Bajouri and his friends followed them and began shouting that they wanted Sermetovski taken outside.

Mr Fonua left the pool room and went outside, as he thought if a fight would occur if he did not do this. The five other men then followed him out and Bajouri took a fighting stance against Fonua. The security guard raised his fists in self-defence.

Former first grade rugby league player, Bajouri, then kicked the security guard in the leg three times.

Grievous bodily harm

At 11.16pm, Mr Sermetovski was standing with his arms folded and his head turned away from Mr Bajouri, looking at Fonua. Bajouri then lent in and punched Sermetovski to the face, causing Sermetovski to fall to the ground.

Mr Bajouri then moved to the left side of Mr Sermetovski, who was lying motionless on the ground, and stomped on his face. Thirty-year-old Bajouri and the three others then took off in Mr Arnaout’s car.

The next day, police were able to identify some of the occupants of the car via the number plate. Mr Hamze and Mr Arnaout were arrested, but later released without charge. At 11.20pm that night, Mr Bajouri surrendered himself to officers at Liverpool police station.

Mr Sermetovski was treated at Liverpool hospital as an inpatient for 12 days. He sustained skull fractures due to the force of the blow, amongst other injuries. The breaks required an internal plate to be permanently fixed to his skull.

The charges

On 28 April 2014, Mr Bajouri appeared before Campbelltown District Court charged with one count of intentionally causing grievous bodily harm, under section 33(1)(b) of the Crimes Act 1900 (NSW), and one count of common assault, under section 61 of the Act.

The grievous bodily harm offence carries a maximum penalty of 25 years imprisonment, and a standard non-parole period (SNPP) of seven years.

An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.

The common assault offence – which related to kicks to Bajouri’s leg – carries a maximum penalty of two years.

Bajouri pleaded guilty to both offences on the first day of his trial.

The District Court hearing

District Court Judge Haesler had Mr Sermetovski’s Victim Impact Statement dated 2 October 2014 before him as evidence at the trial.

The Statement outlined that Mr Sermetovski suffered extreme distress in the wake of the incident. He was unable to return to work for several months, lost 20 kilograms, and his family had to move from their house of 25 years, as it was close to the hotel where the incident occurred.

Sermetovski continued to experience flashbacks, nightmares and anxiety attacks, as well as severe pain and blackouts.

During Bajouri’s sentencing, the court heard he had been a successful first grade rugby league player before being seriously injured in a motor vehicle accident in February 2004, which cut short his contract with South Sydney Rugby League Club.

After the motor vehicle accident, Bajouri had turned to heavy drinking to cope.

A repeat offender

Since his accident, Bajouri had been involved in a string of violent assaults whilst under the influence of alcohol.

In March 2005, he was convicted of a series of offences arising from an incident where he punched three security guards at Mount Pritchard Community Club.

Bajouri also assaulted three staff members at Guildford Leagues Club in February 2006. In April 2008, Bajouri punched a staff member at PJ Gallagher’s Hotel in Parramatta. And in May 2011, he assaulted a person in the waiting room of Liverpool police station.

On 27 October 2014, psychologist Ms De Santa Brigida stated in a report that Mr Bajouri’s violent offending was due to the psychiatric and psychological disorders arising from his motor vehicle accident.

The sentencing

In handing down his sentence on 14 October 2014, Judge Haesler remarked that Mr Bajouri had “to come to grips with his alcohol addiction.”

His Honour noted that despite being treated leniently on previous occasions, Bajouri continued to offend and did nothing to address his drinking problem.

Mr Bajouri “is not to be punished again for those crimes, but his record denies him the lenience often shown to first offenders,” His Honour stated, adding that greater emphasis had to “be given to denunciation, community protection, and… specific deterrence.”

Judge Haesler allowed for a 10 percent ‘utilitarian’ discount for Bajouri’s guilty plea, which was also accepted as evidence of remorse.

For the offence of causing grievous bodily harm with intent, Mr Bajouri was sentenced to 8 years imprisonment, with a non-parole period of 5 years. For the common assault, a fixed term of 3 months was imposed, to be served concurrently.

Appealing the severity of the sentence

Mr Bajouri appealed the severity of his GBH sentence to the NSW Criminal Court of Appeal (NSWCCA) on two grounds.

The first was that Judge Haesler had made an error in finding the offence had been aggravated, as the only material in support of that finding was said to be Mr Sermetovski’s Victim Impact Statement.

In delivering its decision, the NSWCCA noted that section 21A(2)(g) of the Crimes (Sentencing Procedure) Act provides that an aggravating factor should be taken into account if “the injury, emotional harm, loss or damage caused by the offence was substantial.”

A factor of aggravation must not already be an ingredient of the offence, and it must be proved by the prosecution beyond reasonable doubt.

In regards to the Victim Impact Statement, the sentencing judge had remarked that “significant and lasting impairment and physical, emotional and economic harm was suffered by” Mr Sermetovski.

Mr Bajouri’s lawyers criticised this statement, as it was not supported by a finding that was beyond a reasonable doubt.

However, the NSWCCA confirmed that the findings of the court were indeed supported beyond a reasonable doubt as the victim’s facial fractures were “significant and lasting” injuries. The court also note that the victim had suffered significant economic harm in the form of loss of work, and substantial emotional harm due to his disturbing memories.

The court further found that if Mr Bajouri had reason to be sceptical about the validity of the Victim Impact Statement, then he had a chance to question this through his lawyers during the sentencing hearing, but he had not done this.

The NSWCCA therefore rejected this first ground of appeal.

Facebook photos don’t hold up

The second ground of appeal was that a miscarriage of justice had occurred due to fresh evidence that had arisen.

Mr Bajouri had obtained photographs from Mr Sermetovski Facebook page, which showed him trail bike riding and jet skiing in March 2013 – 10 months after the assault and 18 months before the date of the Victim Impact Statement.

Bajouri’s lawyers relied on the judgment of Justice Hunt in the 1990 case Goodwin v R to support their request for leave to tender the fresh evidence of the Facebook photos. In that case, Justice Hunt remarked that any such additional material must be “so significant that it would have impacted” the sentencing judge’s original decision.

Bajouri’s lawyers submitted that the photos clearly met that test.

However, the NSWCCA found that the evidence did not satisfy this requirement as the Victim Impact Statement did not specify that Mr Sermetovski couldn’t undertake outdoor activities.

“It is still taking me time to return to doing these things that I used to love,” Mr Sermetovski wrote in a passage from the statement quoted by the NSWCCA. “Many of the activities that I once did with ease, I am still unable to do at my full capacity due to my injury.”’

The appeal court found that, regardless of what led Mr Bajouri to only discover the Facebook images until after his sentencing, and irrespective of the cited pre-requisite, “these Facebook images would not qualify for reception in evidence on the hearing of the appeal.”

The court therefore rejected this second ground of appeal.

The NSWCCA findings

The appeal court found no error in the way the sentencing judge had dealt with the matter.

The court noted that that Mr Bajouri had not sought to appeal the sentence on the basis that it was manifestly excessive, as “clearly it was not, taking into account the brutality of the assault, the severity of the victim’s injuries” and Bajouri’s “appalling record of other” offences.

“Making full allowance for the applicant’s subjective circumstances, this was a moderate sentence,” the appeal court remarked.

The court therefore dismissed the appeal.

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