State v Saad (2015) H&FLR 2015-29

State of Michigan v Bassel Abdul-Amir Saad (2015) H&FLR 2015-29

Wayne County Circuit Court (Michigan)

13 March 2015

Coram: Judge Cameron

Appearing for the Prosecution: Erika Tusar (of Wayne County Prosecutor’s Office).
Appearing for the Defendant: Cyril Hall (of Law Office of Cyril C. Hall, PC)

Catchwords: Michigan – soccer – referee – assault – death – homicide – manslaughter – sentence

Facts: The defendant, a 36-year-old Lebanese national, was playing in a recreational soccer match at Livonia on 29 June 2014.  The referee, John Bieniewicz, issued him with a red card, ejecting him from the game.  The defendant lost his temper and punched the referee, causing fatal injuries.

The accused was charged with second degree murder and pleaded guilty to involuntary manslaughter.  His history included assaulting another soccer player during a match in 2005.

Held: Sentencing the defendant to fifteen years imprisonment with a minimum term of eight years –

1. That the defendant was an example of what the community considered wrong with escalating violence in sports. His offence was “a childish, senseless act of taking another man’s life with no excuse or justification other than dealing with rage that [he was] unable to contain” (1).

2. That the defendant pay $9,265 restitution to the deceased’s family in respect of funeral expenses.

Note: It is possible that the defendant’s potential deportation following his term of imprisonment may have been a factor in the sentence imposed.

Judgment

The court’s case record (including a summary of the sentence) is available here.  This report also used information contained in reports published in the Detroit News of 20 February 2015, the Detroit Free Press of 13 March 2015, the New York Daily News of 13 March 2015, USA Today of 13 March 2015, and reported on NBC News on 13 March 2015, on CBS News on 13 March 2015 and on WXYZ Detroit on 13 March 2015.

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(1) Cf the sentencing remarks in DPP v Ryan (2007) H&FLR 2014-49.

R v Langford (2009) H&FLR 2015-2

The Queen v Jessica Maree Langford (2009) H&FLR 2015-2

Melbourne County Court (Victoria)

29 March 2009

Coram: Judge Howie

Appearing for the Prosecution: Anne Hassan (of the Office of Public Prosecutions)
Appearing for the Defendant: Dermott Dann (instructors not identified)

Catchwords: Victoria – criminal law – swimming – alcohol – culpable driving – death – sentence

Facts: The defendant was aged 19 years on 29 November 2008. She and her boyfriend had attended Shoreham Beach late that night where they swam naked and drank premixed bottles of vodka and soft drink as well as a bottle of neat vodka.  After swimming they dried themselves with their clothes and the defendant (still naked) began to drive them back to Frankston.  At Hastings the car was involved in an accident and the defendant’s boyfriend was killed.

The defendant’s blood alcohol reading two hours after the accident was 0.09%.  As a probationary driver she was not permitted to have a blood alcohol reading higher than 0.00% (1). The police concluded that at the time of the accident the defendant was driving at 104kph in a 90kph zone.

The defendant was charged with culpable driving causing death and dangerous driving causing death. Magistrate Wakeling committed her to stand trial in the County Court: DPP v Langford (2009), Sydney Morning Herald, 8 September 2009.

The Crimes Act 1958 (Vic.) provides as follows regarding these offences –

[in §318(1 & 2)] – Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both. 

… a person drives a motor vehicle culpably if he drives the motor vehicle—

(a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or

(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or

(c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; …

and

[in §319(1)] – A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

The defendant pleaded guilty in the County Court to dangerous driving causing death. Her barrister noted that she suffered from marked pre-existing psychological problems, had a post-accident history including substance abuse, multiple suicide attempts and a diagnosis of bipolar affective disorder, and had been prescribed anti-psychotic medication. He noted that she had no criminal history.

The Crown submitted that the defendant’s mental health was irrelevant, and that her good character and prospects for rehabilitation did not alter the need for general deterrence. It was submitted that the defendant should be detained in a Youth Training Centre.

Held: Sentencing the defendant to a community based order and prohibited her from driving for 18 months, that –

1. The attitude of the deceased’s family, who forgave the defendant and openly supported her at trial, was relevant to imposing a lenient sentence.

2. It was relevant that the defendant’s psychological state was fragile and that her recovery would not be assisted by a custodial sentence.

Judgment

No written judgment is available.  This report has been prepared based on accounts in the Herald Sun (Melbourne) of 29 March 2010, the Daily Telegraph (Sydney) of 23 March 2010 and the Sydney Morning Herald of 8 September 2009 and 15 February 2010.

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(1) The limit in Victoria for the holder of a full licence is 0.05%.

State v Mayer (2014) H&FLR 2014-65

State v Margaret Renee Mayer (2014) H&FLR 2014-65

230th Criminal District Court (Texas)

11 December 2014

Coram: Judge Hart.

Appearing for the Prosecution: Alison Baimbridge (of Harris County District Attorney’s Office)
Appearing for the Defendant: Guy Womack (of Guy L Womack & Associates)

Catchwords: Texas – criminal law – cyclist – collision with car – failure to aid – sentence

Facts: At 10:20pm on 1 December 2013, a truck driven by the defendant (aged 36) struck cyclist Chelsea Norman (aged 24).  Norman’s injuries included swelling of the brain which lead to her death. The defendant did not stop or attempt to aid the deceased after the collision.

At the time of the accident the street was dark.  The deceased was not wearing a helmet.  Her bicycle did not have lights and she was wearing dark clothing.  Investigators could not determine whether she had been riding in the bicycle lane. The defendant had been drinking with coworkers and become lost while attempting to drive home.  It was not established whether she was intoxicated.

The defendant was charged with failing to stop and render aid, a felony.  She pleased not guilty on the basis that she claimed to have thought that she had hit a tree and not a person.

During the trial the jury were advised that the defendant had been convicted of driving while intoxicated in 2002 and that she may have regularly abused alcohol and drugs. In April 2014 she was remanded after breaching her bail conditions by drinking alcohol.  The jury were also shown photographs of the deceased’s autopsy (1).

Held: The defendant was convicted of the charge presented.  It was open to the court to impose penalty ranging from two years probation to twenty years imprisonment.    She was sentenced to fifteen years imprisonment.

Judgment

Sentence was decided by the jury and no written judgment is available.  This report has been prepared based on accounts in the Houston Chronicle on 11 December 2014 and 12 December 2014, on radio station KHOU on 10 December 2014 and website Click2Houston on 10 December 2014.

Note: The strong penalty imposed in this case suggests it may represent a high water mark in hostilities between motorists and cyclists. In 2014 commentator suggested that some motorists might understandably take steps to harm cyclists (2).  One Australian broadcaster referred to cyclists whose conduct falls short of perfection as “cockroaches on wheels” (3), although no doubt the implied threat of extermination was unintentional (4).   One might hope that the dissipation of antagonism predicted by Allen Mikaelian is underway (5)

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(1) There is room for doubt as to what inferences the jury could usefully have drawn from these photographs.  See Kevin Davis, ‘Brain Trials’, 98(11) ABA Journal 36 at 39-41 (2012).

(2) Courtland Milloy, ‘Bicyclist bullies try to rule the road in D.C.’, Washington Post, 8 July 2014.

(3) Derryn Hinch, ‘Cockroaches on Wheels’, Human Headline website, 19 August 2013.

(4) Disturbingly, ‘cockroaches’ was the name used by the perpetrators of the Rwandan genocide for their victims: Prosecutor v Bizimungu, The Independent, 18 May 2011 (Int. Crim. Trib. Rwanda, 2011); United States v Munyenyezi (1st US Cir. Ct. App., Lynch CJ, Thompson and Barron JJ, 25 March 2015, unreported).

(5) Allen Mikaelian, ‘Pedaling through Memory’, 52(6) Perspectives on History 61 (2014).

State v Corrigan (1998) H&FLR 2014-63

State v Marlene Corrigan (1998) H&FLR 2014-63

Contra Costa County Superior Court (California)

27 February 1998

Coram: Arnason J.

Appearing for the Prosecution: Brian Haynes (1) (of Contra Costa District Attorney’s Office)
Appearing for the Defendant: Laurie Saunders and Michael Cardoza (of Cardoza Law Offices)

Catchwords: California – child abuse – obesity – heart failure – bed sores – sentence.

Facts: The defendant was the mother of Christina Corrigan, who died of congestive heart failure in November 1996 aged 13 years.  At the time of her death, the deceased weighed 680 pounds (309 kilograms) (2).  The evidence indicated that she was suffering from bedsores, that excrement was lodged in the folds of her skin, and that she had spent her final months immobile on a dirty sheet in front of a television in the family home.  She had not attended school since Grade 6.   She had been seen by medical practitioners 90 times up to age 9 (at which time she weighed 237 pounds / 108 kilograms) but had received little or no medical care since that time.

The defendant was charged with felony child abuse.  She contended that she had been overwhelmed with personal responsibilities and posited that the deceased may have suffered from Prader-Willi Syndrome.  She denied being aware of her daughter’s bedsores.

Held: Convicting the defendant of misdemeanour child abuse, that –

1.  Conviction of a misdemeanour rather than a felony was appropriate because it was her passive rather than active misconduct that contributed to the deceased’s congestive heart failure (3).

2.  The maximum penalty for this offence was six months imprisonment; the court however imposed a sentence of 240 hours community service, three years probation (to include counselling and being barred from working in child care) and a $100.00 fine.

Judgment

No written judgment is available.  This report has been prepared based on accounts in the Philadelphia Inquirer of 10 January 1998, the Los Angeles Times of 2 March 1998 and the San Francisco Chronicle of 28 February 1998.

Note

This case suggests that a person’s duty to take active steps to prevent a family member coming to harm (4) will take priority over the absence of a general duty to rescue a person intent on injuring themselves (5)

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(1) Since appointed to the Contra Costa County Superior Court.

(2) The weight may be considered significant: a weight of this magnitude, even in an adult, is noted to pose very considerable problems for both mobility and medical care: Dr Edward Thompson, ‘Supersize Me’, Pulse, 22 November 2013.  Medical care is likely to require long-term hospitalization and may cause irreparable injury: Dr Karen Hitchcock, ‘Fat City’, 87 The Monthly __ (2013).  An indication of the potential for significant discomfort associated with pronounced skin folds is offered by the post “Day in the Life: Shower, Chafing, & Jock Itch” on the blog Living ~400lbs … and believe me I am still alive.

(3) Cf R v Stone and Dobinson [1977] 2 All ER 341 (Eng. Ct. of App.), in which the defendants were convicted of manslaughter for failing to take adequate steps to prevent a mentally unbalanced relation who lived with them from starving and mistreating herself to death.

(4) R v Russell [1933] VLR 59 at 67-68 (per Cussen ACJ) and semble 76-77 (per Mann J); but see 83 (McArthur J, dissenting) (Sup. Ct. of Vic.)

(5) Stuart v Kirkland-Veenstra (2009) 254 ALR 432 at 457 (per Gummow, Hayne and Heydon JJ) and semble 463 (per Crennan and Kiefel JJ) (High Ct. of Aust.)

Police v Unidentified Driver (2014) H&FLR 2014-62

Police v Unidentified Driver (2014) H&FLR 2014-62

Wonthaggi Magistrates Court (Victoria)

c. 26 November 2014

Coram: Magistrate Raleigh

Appearing for the Prosecution: Leading Senior Constable Kimberly Stewart (instructed by Victoria Police)
Appearing for the Defendant: Ruby Oldham (of Oakleys McKenzie-McHarg)

Catchwords: Victoria – traffic offences – stop sign – school crossing – children – recklessly endangering life – sentence

Facts: The defendant drove dangerously on two occasions.  On 11 November 2013, while on her way to take her children to school, she ‘ran’ a stop sign.  She then sped through a school crossing at 60 km/h.  After dropping off her children, she ‘smoked’ her tyres while performing a U-turn, and then sped through the school crossing again.  Subsequently, on 8 March 2014, she was seen travelling between 60-70km/h in a 60 km/h zone.  She stopped at an intersection and again ‘smoked’ the tyres when accelerating away.

These incidents breached a community corrections order which had previously been imposed for another matter.  She was charged with a number of offences including reckless conduct endangering life (Crimes Act 1958 (Vic), §22).

Held: The Court noted that the defendant’s actions had the potential to kill her own children as well as those of others.  His Honour oberserved that the children may be safer without their mother and that her previous court appearance had not affected her behaviour.  He noted there was evdience she was continuing to use marijuana.

The defendant was sentenced to three months imprisonment, suspended for 12 months.  Her drivers licence was cancelled for 12 months and fined her $500.00.

Judgment

No written judgment is available.  The report prepared based on the account in the South Gippsland Sentinel-Times, 2 December 2014, p.25.

Note

The case is reported here because of its potential relevance to dangerous driving in the vicinity of athletic events.

R v Unidentified Sports Coach (2014) H&FLR 2014-61

The Queen v Unidentified Sports Coach (2014) H&FLR 2014-61

Albury District Court (New South Wales)

2 December 2014

Coram: Judge Whitford

Appearing for the Appellant: Christine Mendes (instructors not identified)
Appearing for the Respondent: Andrew Hanshaw (instructed by NSW Director of Public Prosecutions)

Catchwords: New South Wales – sports coach – indecent assault on a girl under 16 years – grooming – appeal – sentence

Facts:  The defendant was a 25 year old sporting coach from a small community in the Riverina.  In 2013 he committed a number of offences in relation to a 14 year old girl.  It appears the victim was known to him in their community but not part of the sports team he coached.  Over a period of some months he sent her a number of sexually explicit text messages and suggested both sexual activity and developing a relationship.  On two occasions he touched her in a sexual manner.  He was charged with indecent assault on a girl under 16 years (Crimes Act 1900, §61L), and with grooming (Crimes Act 1900, §66EB).

The NSW Local Court (Magistrate Greenwood) noted the impact of the offences on the victim, including her loss of reputation and feeling judged and blamed.  A pre-sentence report indicated that the offender had little insight or remorse into his offending.  He was sentenced at first instance to 20 months imprisonment, to serve a minimum of 15 months:  R v Unidentified Sports Coach (2014), Border Mail, 15 July 2014, p.__.  The defendant appealed against the severity of the sentence.

Held: allowing the appeal, that the defendant had extensive support from his family and community.  A variation of the penalty was considered to have the potential to continue the defendants efforts at rehabilitation.  The sentences imposed by Magistrate Greenwood were converted to suspended sentences.

Judgment

No written judgment is available.  The report prepared based on the account in the Border Mail (Albury Wodonga), 3 December 2014, p.3.

State v Nisbet (2014) H&FLR 2014-58

State v Andrew Nisbet (2014) H&FLR 2014-58

Alameda County Superior Court (California)

9 October 2014

Coram: Grimmer J

Appearing for the Prosecution: Edward Viera-Ducey (Deputy District Attorney)
Appearing for the Defendant: Timothy Rien

Catchwords: California – criminal law – golf – coach – assault on student – sentence

Facts:  The defendant was a prominent 32 year old youth golf instructor.  He sexually assaulted three of his students who were aged between 12 and 17 years.  He ultimately pleaded guilty to one count of “lewd and lascivious acts” on each of his victims, forced oral copulation, possession of child pornography and three counts of solicitation to murder (concerning an attempt to hire an assassin to kill his victims).  As a result of a plea agreement 79 other charges were withdrawn.

Held:  The offender was sentenced to 27 years and four months imprisonment and fined $10,000.00.  He was ordered to pay compensation to his victims and to register as a sex offender.

Judgment

No written reasons are available.  This report has been prepared based on reports in the Contra Costa TimesNew York Daily News and ESPN.

Note

The sentence imposed bears comparison to the 28 year sentence imposed in R v John Xydias (2009), The Age, 30 June 2009. for a much greater array of offences.  This suggests the significance that might be attached by Californian courts to the breach of trust involved in an assault by a sports coach on one of their charges.

Police v Morey and Hall (2014) H&FLR 2014-23

Police v Kylin Morey and Benjamin Hall (2014) H&FLR 2014-23

Albury Local Court

1 April 2014

Coram: Greenwood M

Appearing for the Prosecutor: Not known
Appearing for the Defendants: Not known

Catchwords: Australia – New South Wales – prominent football player – affray – sentence

Facts: The defendants pleaded guily to affray in connection with two assaults at the Boomerang Hotel on 26 October 2014.  Morey had repeatedly struck one man who did not retaliate, and another who tried to intervene.  He threw a table at the second man as he was being escorted off the premises.  Hall, his friend, had also been ordered to leave the Hotel, but ran back inside and struck another patron, rendering him unconscious.  Morey gave evidence that he had been too drunk to remember the incidents.  Evidence was given that Morey had argued with members of another group prior to the fight.

Morey was decribed in one account as a “Hume football premiership hero”, having kicked eight goals for the Brocklesby-Burrumbuttock ‘Saints’ in their premiership win over the Holbrook ‘Brookers’.  In connection with the assault, he expressed remorse and embarassment.

Held: The court described the matter as ‘really troubling’.  In connection with Morey, Her Honour noted that a gaol term would have been imposed but for his plea of guilty and the fact that he had voluntarily gone to police and admitted his involvement.  In relation to Hall, she noted that a blow rendering someone unconscious may cause fatal injuries*

Morey and Hall were both sentenced to 150 hours community service for affray.  Hall was also fined $1500.00 for being an excluded person on licensed premises.

Judgment

Written reasons are not available.  Details in this report have been taken from the Newcastle Herald of 19 February 2014 and the Border Mail of 2 April 2014 at p. 7.

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* Cf R v William John Lovel(Supreme Court of Victoria, Hollingworth J, 16 October 2013, reported in Shepparton News, 22 October 2013 at p. 1 and Campaspe News, 22 October 2013 at pp. 1 and 3)