Director of Public Prosecutions v Al Sha Ban

[2023] VCC 288

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01813

DIRECTOR OF PUBLIC PROSECUTIONS

v

SARMAD AL SHA BAN

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	23 January 2023
DATE OF SENTENCE:	30 January 2023
CASE MAY BE CITED AS:	DPP v Al Sha Ban
MEDIUM NEUTRAL CITATION:	[2023] VCC 288

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Threat to destroy property – Contravention of a Family Violence Safety Notice intending to cause harm or fear for safety – Plea of Guilty – Worboyes – Delay – Excellent prospects of rehabilitation – Covid-19 pandemic.

Legislation Cited: ss 5, 6AAA, 18 Sentencing Act 1991 (Vic).

Cases Cited:Pasinis v The Queen [2014] VSCA 97; R v Cotham [1998] VSCA 111; Worboyes v The Queen [2021] VSCA 169.

Sentence:                  16 month adjourned undertaking.

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APPEARANCES:	Counsel	Solicitors
For the DPP	T Crouch	Office of Public Prosecutions
For the Accused	P Bloeman	Stary Norton Halphen

HER HONOUR:

1Sarmad Al Sha Ban, you have entered a plea of guilty to one charge of threat to destroy property and one charge of contravention of a Family Violence Safety Notice intending to cause harm or fear for safety. You have also agreed to this Court hearing, and have plead guilty to, one summary charge of trespass.

Summary of offending

2The primary victim of your offending is your ex-wife. You and your ex-wife lived together in a family home in Werribee with your four children.

3On 7 November 2020, after an argument, you permanently fixed shut the sliding door to the kitchen, effectively separating the house into an area for yourself and a separate area for your ex-wife and your children.

4On 25 November 2020, police attended your home due to a domestic argument.  You were arrested for assaulting your ex-wife and subsequently issued a Family Violence Safety Notice, listing your ex-wife and all four children as protected persons and excluding you from being within 200 metres of their address.

5On Sunday 29 November 2020, your ex-wife was at her home address with the children. The house was still separated into two separate living areas.

6At about 5.00pm, you came to the house through the back yard and tried entering through the back door. Your ex-wife told you that you should not be there. She let you in to collect some of your clothes. You then left the house.

7At about 10.30pm, you returned and entered the house without speaking to anyone. At this time, your ex-wife was asleep in her bedroom. You entered your son’s room and he went into your ex-wife’s room and said that you wanted to speak to her. Your ex-wife then went to the kitchen and saw you had already entered the house and were inside the kitchen (Summary Charge 1 – Trespass).

8There was petrol on the kitchen floor. The prosecution is not able to prove how the petrol came to be on the floor. You spoke to your ex-wife in the kitchen and threatened to burn down the house if you did not separate on good terms. (Charge 2 – Threat to Damage Property; Charge 3 Indictable Breach Family Violence Safety Notice).

9Your ex-wife left the house and ran down the street, asking for help saying ‘my husband, my kids, a fire’.  Police were subsequently contacted. 

10Sometime after this, you left the house exiting into the back yard.

11Police arrived at 10.42pm. Your ex-wife directed them into the house and stated you had said you would burn the house down. Police entered the house and could smell and see petrol. Your eldest son answered the door. Your other three children were asleep in their bedroom at the time. 

12Police evacuated the house and secured the area.

13On 30 November 2020 police arrested you at your workplace and conveyed you to the Sunshine Police Station.

Gravity of the offending

14In assessing the gravity of your offending I take into account the maximum sentences for the offending. Trespass carries a maximum penalty of six months’ imprisonment and the remaining charges have maximum penalties of five years’ imprisonment. 

15I take into account that your offending involves family violence. As the Court of Appeal has repeatedly stated, ‘general deterrence is of fundamental importance in cases of domestic violence’.[1] You attended your ex-wife’s home without permission and in breach of an intervention order and made serious threats to destroy property. Your ex-wife was entitled to safety and security in her home and to be expect that you would abide by the intervention order. I note the observations of the Court of Appeal in Cotham that ‘intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders’.[2] While the general principle has application, I am mindful that in that particular case, there had been repeated and contemptuous breaches of intervention orders, which is not the case here.

[1] Pasinis v The Queen [2014] VSCA 97.

[2] R v Cotham [1998] VSCA 111.

16The prosecutor submitted that the objective seriousness of your offending was high.  While it is not suggested that you were responsible for the petrol, it is relevant to context and would have heightened the fear or concern that your threat would be carried out. 

17I accept that your offending is serious and that general deterrence should be given prominence. Overall I regard your offending to fall within the middle range of seriousness for such matters. I take into account the relevant context of the threat you made but I must be careful not to sentence you on the basis that you were responsible for the petrol either being in the home or on the kitchen floor. I also note that it was not put that your conduct took place in front of your children, which I would have regarded as aggravating.  In addition, in sentencing you I must avoid double punishment and take into account that the breach of intervention is constituted by your trespass or attendance at the home and your threat of family violence.

18The Court did not receive a victim impact statement in this matter. It is clear enough that your ex-wife was fearful at the time of your offending.

Plea of guilty

19You entered a plea of guilty to these charges shortly prior to the commencement of trial, on 28 October 2022. This is not a plea at the earliest opportunity.  However, I do accept that the preliminary hearings, including the s198B application, assisted in the resolution of this matter.  Also, you were initially charged with substantively more serious offences, including an aggravated burglary and conduct endangering life.

20I regard your plea of guilty as important and as warranting a significant discount in sentence. Your plea of guilty evidences your willingness to facilitate the course of justice and has utilitarian value. The Courts continue to labour under the adverse effects of the pandemic, which entitles you to a further discount in sentence, in accordance with Worboyes[3]. 

[3] Worboyes v The Queen [2021] VSCA 169.

21I also accept, through your subsequent conduct and the representations you have made, that you are remorseful and ashamed of how you behaved on this occasion. 

Personal circumstances

22You were born in Iraq and are of Palestinian descent. You migrated with your family to Baghdad when you were seven years of age. You grew up in a loving family but were discriminated and treated as a second class citizen in Iraq and largely forced to live in poverty. You managed to complete up until around Year 9 in Baghdad but were compelled to leave school to work. You lost many friends to the regime during the war. You fled Iraq because of threats on your own life and escaped to a refugee camp in Syria, where you remained for some seven years.  During this time you experienced considerable hardship and insecurity, surrounded by death, poverty and crime. Your first son was born in the camp in 2009.  

23You arrived in Australia in 2009 upon being accepted as a refugee. In 2018 you were granted Australian citizenship. You arrived in Australia with your ex-wife and children. Given the displacement of your extended family from their original home, they are now scattered all over the world. You have two brothers in America, one in Finland, two sisters in regional Iraq, one sister in Sweden, and many other nieces and nephews overseas.

24On your arrival to Australia you worked very hard, as it was put on your behalf  ‘day and night’, to achieve financial independence and security for your family. As a testament to your hard work, in 2015 you managed to purchase a home with a mortgage for your family. 

25In terms of your employment history, from around the age of ten you worked as a factory hand and cleaner. In Syria you completed ‘electrical studies’ and worked for about six months in that industry. These qualification were not recognised in Australia. Since 2010 you worked full time as a baker with the ENK Group Bakery, where you continue to be employed. You are a skilled and valued employee and have travelled to South Australia to start up a new factory/bakery over there. Your boss, Ibrahim Khudruj, gave evidence at your original bail application hearing in December 2021. 

26You married your ex-wife, the victim of your offending, in 2005. You separated in November 2020 and divorced in July 2022. In an earlier s198B hearing, your ex-wife gave evidence before me. In her evidence, she stated that but for the recent conflict, you had been a ‘good father’, you used to take the children out and do your ‘fatherhood responsibility’.

27There are four children of the relationship, aged between eight and 14 . As referred to in the opening, there was an intervention order taken out against you which prohibited contact. The order remains in place but in December 2022 a written child agreement was put in place through mediation and you have recently resumed contact with your children. You also pay child support. You currently live in shared accommodation with a friend. Your ex-wife and children remain in the previous matrimonial home.

28You have no formal mental health diagnosis. You suffer from Type 2 Diabetes which is managed with medications. You also have intermittent back problems from a slipped disk but this generally does not affect your ability to work. 

29I take into account your personal history, including your history of hardship and displacement, in sentencing you. I also take into account that you are a mature man of good character, with no history of offending. 

Period on remand and bail

30You spent 369 days in custody, from 30 November 2020 until 3 December 2021.  In custody you completed a couple of courses and undertook random urine screens, which were received as exhibits. You were remanded during the height of the Covid-19 pandemic. I take into account that this period was more onerous and restrictive, that it was your first experience of custody and that you were more isolated because English is not your first language.  

31I also note that during your period on remand your parents, who had migrated to America earlier in 2020, passed away from Covid related illnesses. 

32On 3 December 2021 you were bailed by this Court on a  number of conditions including that you comply with CISP and attend for judicial monitoring. You attended before me on several occasions and CISP reports were periodically provided. You engaged in weekly appointments with CISP and you regularly engaged with your general practitioner and Community Plus for support with addressing family matters.  Notwithstanding your reported difficulties during this time, including the challenge of being isolated from your family and your limited family and social connections in Australia, ‘you displayed a strong motivation to maintain a positive and prosocial lifestyle’. You displayed a strong work ethic and a commitment towards prosocial decision making. You presented with regret and shame relating to your involvement with the criminal justice system. The final report of October 2022 confirmed that you continued to engage throughout the program, presented consistently and motivated, could independently reach out for support, attended all appointments and engaged with workers in a respectful, open and meaningful manner. Pursuant to the recommendation in October 2022 you were exited from the program and were no longer required to attend for judicial monitoring. You were engaged with CISP for a period of around nine months.  

33I further note during your period on bail you were restricted from joining some of  your siblings in America to honour and mourn your parents.  Also, up only until recently, as a consequence of your offending, you had no contact with your children.

Delay

34On your behalf, Mr Bloeman relied upon additional factors in mitigation, including the delay in the finalisation of your case. I accept that this is a powerful factor in mitigation. This case has been ‘hanging over’ your head, causing you anxiety and uncertainty for a considerable period of time. Second, within this time you have demonstrated that you are someone who can take significant steps to rehabilitate yourself over a lengthy period of time. I note there is no suggestion here that there have been any further breaches of the intervention order or any subsequent offending. For completeness, you have one outstanding matter which allegedly occurred prior to this incident and triggered the original application for the intervention order. 

Prospect of rehabilitation

35In all the circumstances, I consider that you present with excellent prospects of rehabilitation. You are 41 years of age and I accept that the legal process of this matter has had a significant and deterrent impact on you.  You have suffered a range of earlier hardships, including war and displacement, but successfully transitioned to Australia and built a life for you and your family here. You have a history of hard work and of being a productive member of the community. You have complied with bail and engaged meaningfully and pro-actively with CISP over an extended period of time and demonstrated insight and motivation. You have not reoffended, you continue to work and you are clearly a skilled and valued employee. You have recently resumed regular contact with your children and continue to provide them with financial support.

Sentencing principles

36The basic purpose for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation and protection of the community. As I have already stated, given in particular the context of your offending, general deterrence and denunciation are important considerations. I consider that specific deterrence and community protection are significantly moderated, as sentencing purposes, given a range of factors including your lack of prior history, your demonstrated rehabilitation and lengthy period served on remand.

37I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic), where relevant to your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty. Of course, each case turns on its own particular facts.

38In many respects, your case is an unusual or challenging sentencing exercise. The prosecution submit that a term of imprisonment is within range, either alone or in combination, but concede that it should not exceed the time you have already served. Your Counsel submits that the powerful mitigating factors in your case, when combined, justify a non-custodial sentence. The Court was urged to consider a merciful disposition and release you on an adjourned undertaking, with appropriate conditions. Submissions were also made in support of a without conviction disposition. 

39You have already served a significant period in custody on remand. However, this should not dictate the outcome and the Court must not impose a sentence for reasons of convenience or because you have already served time.   The Court’s task is to impose a sentence according to law and one that is just and proportionate, reflecting your overall criminality and also weighing up the mitigatory factors in your case. 

40Taking into account all of the circumstances in your case and the principles of parsimony and proportionality, I am satisfied that a disposition, aside from imprisonment, is capable of adequately addressing each of the sentencing principles and purposes that arise here. The sentence I impose must reflect the gravity of your offending and the mitigating factors advanced on your behalf. I propose to significantly moderate the sentence to take account of your lengthy period on remand and your lengthy period on bail, where you were actively engaged, monitored, and case managed. This may result in a disposition that, on the face of it, and without regard to these significant factors, appears lenient.

Sentence

41On the charges of threat to damage property, breach intervention order and trespass, I consider that the purposes for which sentence is to be imposed in your case can be achieved by placing you on an adjourned undertaking with conditions.  In other words, I order your release on the adjournment of the hearing of this matter for a period of 16 months with conditions.  I do not view this as an insignificant disposition.  Such a penalty keeps the matter open against you for an extended period of time and a condition of the undertaking is that you be of good behaviour for that period.  A further condition of the undertaking is that within ten months of the undertaking Mr Al Sha Ban must contribute the amount of $700 to the White Ribbon Foundation and that a receipt to the court is provided acknowledging such payment. 

42I’m obliged as a matter of law to warn you, Mr Al Sha Ban, as to what will happen if you breach the undertaking.  The undertaking is a promise and you will break the promise by either committing a further offence during that 16 month period, which starts today, or failing to comply with the condition.  That’s the payment – the additional payment that you need to make to a charity.  If you break any of the conditions you can be brought back before the court and face breach proceedings and one of the things which can happen on breach proceedings is that the undertaking can be cancelled and you can be resentenced, and you may also receive a penalty for the breach itself.  Do you understand? 

43ACCUSED:  Yes.

44HER HONOUR:  Do you agree to being bound by the undertaking of 16 months to be of good behaviour and within ten months to pay the amount of $700?

45ACCUSED:  Yes.

46HER HONOUR: Very well. In deciding how to exercise my discretion as to whether or not to record a conviction, s18 of the Sentencing Act 1991 (Vic) requires that I have regard to all of the circumstances of the case, including the nature of the offences, your character and past history, and the impact of recording a conviction on your economic or social wellbeing or on your employment prospects.  I have given this matter very careful consideration.  Taking the entirety of the circumstances of this case into account, and having full regard to the matters raised by Mr Bloemen, ultimately I consider that these factors, including the nature and gravity of this offence as I have assessed it to be, requires a conviction to be imposed.  So the adjourned undertaking that I’m sentencing you to is with a conviction.

47HER HONOUR: To be clear, while I have obviously taken into account the substantial period on remand, I make no declaration pursuant to s18 of the Sentencing Act 1991 (Vic). I’m also, as I understand the legislation or read it, not required to give a s6AAA declaration and I’m not proposing to, but I can indicate this for you, Mr Al Sha Ban, that I have given considerable weight to your plea of guilty, as I’ve outlined, and if your matter had not resolved in the manner that it had, and if you had not entered a plea of guilty then you would have faced an immediate term of imprisonment.

48HER HONOUR:  I’ll make the disposal order in the terms sought. 

49HER HONOUR:  The undertaking starts from 30 January 2023.  It goes for 16 months ending on 30 May 2024. 

50MR BLOEMEN:  May it please the court.

51MR CROUCH:  May it please the court.

52HER HONOUR:  We’ll adjourn the court.

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