Director of Public Prosecutions v Arabi

[2021] VCC 2047

Revised

Not Restricted

Suitable for Publication

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Case No. CR-19-01762

Indictment No. K10357445.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMAL ARABI

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JUDGE:	HIS HONOUR JUDGE TRAPNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2021
DATE OF SENTENCE:	8 December 2021
CASE MAY BE CITED AS:	DPP v Arabi
MEDIUM NEUTRAL CITATION:	[2021] VCC 2047

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D A J Gray	Ms Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Ms G F Connelly	James Dowsley and Associates

HIS HONOUR:

1       Amal Arabi, you have pleaded guilty to an indictment containing two charges of common law assault. The maximum penalty for these offences is five years' imprisonment.

The Facts

2       The prosecution filed a summary of prosecution opening dated 8 December 2021,[1] which your counsel agreed I can treat as a statement of agreed facts for the purposes of sentencing you.

[1]     Exhibit P1.

3       At the time of these offences you were aged 28 years and resided at Unit 3/2 Saltley Street, Kingsville South. The first complainant in this matter, Ms Benedicte Mukanv, at the time of the offences, was aged 19 years.

4       The second complainant in this matter is Mr Bashala Bafwf. At the time of the offences, he was 22 years old and resided at Unit 4/2 Saltley Street, Kingsville South.

5       On the evening of 8 February 2019, Mr Bafwf together with his housemate Mr Francis Thomas, his friend Ms Mukanv, and Mr Thomas's girlfriend Lela Melese, were at Mr Bafwf's unit having finished work for the night.

6       Shortly after midnight on 9 February 2019, you called Triple 0 and made a complaint of excessive noise coming from Unit 4. You told the operator 'the people are drinking and loud. I think they were having a party before.' You stated the party had been going since '8 pm to 8.30 pm’.

7       Police attended the unit complex at about 1.30 am on 9 February 2019 and informed you that given they were not able to hear any noise, they would not be taking any further action.

8       You made a second call to Triple 0 shortly after 1.30 am to again report excessive noise coming from Unit 4. You told the operator 'they've calmed down’ but they were 'completely interrupting your sleep’.

9       At approximately 2.30 am on 9 February 2019, Mr Bafwf and Ms Mukanv left Unit 4 and began walking to Mr Bafwf's car, parked outside the front of the unit complex, in order to retrieve Mr Bafwf's wallet. As they were walking past Unit 3, you opened the door to the unit and shouted, 'Shut up. You guys are fucking making noise’. Ms Mukanv replied: to you and said, 'You need to relax, you little bitch’.

10     You rushed out of your unit and proceeded to kick Ms Mukanv to the left-hand side of her stomach, causing pain. This comprises Charge 1 of common law assault.

11     Mr Bafwf then attempted to intervene, which resulted in you and him grabbing hold of each other. As this occurred, Ms Mukanv ran to Unit 1 and called for help.

12     After hearing sounds of an altercation occurring outside, Mr Christian Mpongo and Mr Thomas left Units 1 and 4 respectively and separated you and Mr Bafwf. Mr Mpongo and Mr Bafwf then entered Unit 1, closed the door and locked it from behind.

13     A short time later Mr Bafwf came out of Unit 1, to return to Unit 4. As he was walking towards Unit 4, you approached him and punched him to the left ear. This comprises the circumstances giving rise to Charge 2 of common law assault. You then returned to your unit, as did Mr Bafwf.

14     As a result of the assaults, neither complainant suffered physical injury.

Victim Impact

15     Neither Ms Mukanv nor Mr Bafwf have prepared a victim impact statement. Nonetheless, where no victim impact statement has been tendered in respect of a crime, a judge is entitled to take into account the likely consequences for any victim of the offending conduct to which they were subjected. Undoubtedly, Ms Mukanv and Mr Bafwf would have suffered, at least, some distress and annoyance at your behaviour, and possibly some pain. I take the likely effect on them of your offending conduct into account in sentencing you.

Offence Seriousness

16     The offence of common law assault is a moderately serious offence carrying a maximum penalty of five years' imprisonment. I consider your offending conduct falls in the lower range of seriousness for offences of this type.

17     It was committed against a background which was outlined by your counsel during the plea in her outline of submissions, dated 8 December 2021,[2] which I accept: She characterises your offending as follows:

[2]     Exhibit D1.

The offending occurred following a period of sustained frustration and sleep deprivation and only after attempts to resolve the problem appropriately by contacting police did not succeed.

The assault of Mukanv was a spontaneous reaction to the verbal taunt uttered by her.

The assault of Bafwf followed the above and the additional intervention of two other males.

No injuries were sustained by either victim.

18     I accept if this matter had proceeded simply on the present charges, it would almost undoubtedly have been dealt with in the Magistrates' Court.

19     I note the offence took place during the currency of a Community Correction Order (CCO), which is a significant matter, and I do not ignore that circumstance. However, if you are to be breached on that order, that will be a separate criminal charge for which you will be dealt with and it would constitute double punishment for me to take that into account in sentencing you for these charges.

20     Moreover, I note you have successfully completed that CCO.

Personal Circumstances

21     You were 28 years old at the time of the offending conduct and you are now aged 31. You were born in Egypt and your mother Nadia had both Lebanese and Egyptian citizenship. Your father Saad was Lebanese. Both of your parents were hairdressers. Your parents separated when you were aged four years. Your father moved to Australia and remarried.

22     You have six siblings from your father's subsequent marriages. Your mother died in 2008, when you were 18 years old, as a result of strokes, secondary to diabetes and dementia.

23     Despite being born in Egypt, because your father was Lebanese, you did not have Egyptian citizenship. This meant you had no right to reside in Egypt, to own or rent property, or to operate a business.

24     Consequently, you moved to Lebanon in 2009 and resided with an aunt. You then came to Australia in 2010 with that aunt, on a holiday visa and resided with your father. You were ineligible for a family visa because you were over 18 at the time of your arrival.

25     Between 2010 and 2012 you helped your father and uncle with their hairdressing businesses. In 2012, you refused a marriage arranged by your father and uncle to a man from Lebanon. In consequence of that, you were subjected to domestic violence.

26     You reported this to police, and you have instructed your counsel that as a result your father and uncle tried to kill you. You instruct that your father and uncle have connections in Lebanon, and you fear that if you return to that country you will be killed.

27     Your father withdrew his sponsorship of your visa and so you then moved to Melbourne and became homeless and fell into drug use.

28     Your 2013 convictions all occurred while you were in the grip of addiction and in the context of homelessness. You have little memory of what you were doing at that time.

29     You were supported to leave your living arrangements with your father by the Red Cross and a domestic violence service associated with The Salvation Army. You were temporarily accommodated in a refuge and provided with food vouchers.

30     I have read the supportive character reference of Dr Mary Burbidge,[3] in which she speaks of the support she provides you and the accommodation she provided to you over the period 2016 to 2019. She speaks very highly of you as a person.

[3]     Exhibit D3.

31     The Asylum Seeker Resource Centre assisted you to obtain a refugee visa and that application form has been tendered and exhibited.[4] You are presently a permanent resident of Australia. You successfully completed the CCO I have previously referred to, and as part of that you successfully completed an anger management program.

[4]     Exhibit D2.

32     As I previously mentioned, you resided with Dr Burbidge and her husband for three years until you could maintain private rental accommodation. You regard Dr Burbidge as a mother figure.

33     You are a qualified hairdresser and you have been so since coming to Australia. You have worked casually from time to time, but now full-time at a hairdressing salon in the Highpoint Shopping Centre.

34     During periods of lockdown you were not able to work as a hairdresser and you worked variously 12-hour night shifts, casually at Bread Solutions Australia, preparing, packing and bagging bread for sale at Coles and Woolworths, and during the day at Cedar Meats as a machine operator, skinning meat to be sent to China. You have also worked night shift picking and packing nuts for sale at Coles. It is quite clear from your work history that you are a very hardworking person and that augers well for your future prospects of rehabilitation.

35     I refer to a passage from Dr Burbidge's reference where she says:

I know from recent contact with her current employers that they value her as a competent and reasonable employee to the extent that they have been willing to support her in dealing with recent financial problems.

When she has not been able to get work in hairdressing, Amal had worked hard in meat processing and similar demanding factory situations to help make ends meet. This has involved riding her bike long distances and doing long night shifts. This sort of work became impossible for her during Covid lockdowns.

Your counsel elaborated on that by indicating you would ride for 45 minutes for quite some distance at night in order to undertake some of that work.

36     Dr Burbidge describes your character in these terms:

I find Amal a very sincere and likeable person and consider her a supportive friend. I am happy to support her when she needs help as I believe she always does her best and has the potential to be [a] good and responsible citizen who contributes to her community.

37     From 2018, including at the time of the offences, you were studying to become a personal trainer at the Victoria University of Technology. Those studies were interrupted when you were remanded in custody for the present offending.

38     You resumed a comparable course at the Footscray Institute of Technology, but your completion of that course has been delayed by the COVID-19 pandemic. Although you have already paid $6,000 towards the course, you cannot resume the studies because they cannot be completed online until you have saved enough money to support yourself while doing your study. You presently live alone in Footscray.

Criminal History

39     You have a relevant prior criminal history. It looks longer than it actually is because it is all double-counted by the Broadmeadows Magistrates' Court where you appeared on 12 December 2013. You were before that Court on 14 charges of theft, five charges of aggravated burglary (person present), one charge of possess a controlled weapon without excuse, one charge of burglary, one charge of deal with property suspected of being the proceeds of crime, two charges of possess amphetamine, one charge of intentionally damage property and three charges of dishonestly undertaking in the retention of stolen goods. For all of that offending, ultimately, on appeal to this Court on 11 April 2014, you received a CCO for 12 months to undergo assessment and treatment.

40     It appears you completed that CCO, because you were next before a Court on 16 August 2018 at the Broadmeadows Magistrates' Court. Those offences are more relevant to the present matters, comprising two charges of making a threat to kill, which is a very serious offence, and a charge of unlawful assault. These are very relevant to the matters that are before me.

41     On that occasion, you were once again, with conviction, released on a CCO for 18 months and you were required to undergo supervision, treatment and rehabilitation, with a number of other program conditions. I was told by your counsel you successfully completed that CCO, although I do note the present matters do breach it. That order was imposed on 16 August 2018 and the present offences occurred less than six months later on 9 February 2019.

Mitigating Circumstances

42     These matters were resolved on the first day of the trial that was listed before me yesterday. However, in light of the fact the major charge on that indictment of aggravated burglary has now not been proceeded with, I consider in all the circumstances your pleas ought to be considered early pleas of guilty. That is, pleas that have been entered at the earliest forensically reasonable opportunity.

43     I accept your pleas have utilitarian benefit and have saved the victims the trauma of giving evidence. Your pleas also indicate an acceptance of your responsibility for your offending conduct and a willingness to facilitate the course of justice and moreover the utilitarian benefit of your pleas is very significant in the current COVID-19 climate. The courts have recognised that pleas of guilty must be given greater weight in sentencing because of the backlog that has been caused in the criminal justice system by reason of the COVID-19 pandemic.

44     However, on the material before me, there is insufficient evidence to make a finding in your favour that you demonstrate true contrition and remorse for your offending conduct beyond what is evident from the pleas themselves.

45     I note no Verdins principles have been sought to be engaged in your case.

46     Delay is a significant consideration. The effect of delay is a mitigating circumstance in your case. It is now some two years and 10 months since you were interviewed and charged in relation to the present offences. Much of that delay has been as a result of the COVID-19 pandemic, and as I understand from your counsel there were three prior listings of the trial which had to be vacated. Each time you have had the anxiety of coming to court to face these charges, plus the far more serious charge of aggravated burglary which is now not being proceeded with.

47     The delay between now and the commission of the crimes is of real significance in your case. As the Court of Criminal Appeal has observed in Rodriguez v DPP (Cth):[5]

Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one's head during the period of delay is akin to punishment in itself.[6]

[5] (2013) 40 VR 436.

[6] Ibid 445–46 [36] (Warren CJ and Redlich JA) (citations omitted).

48     So far as your rehabilitation during the period of delay is concerned, it is noteworthy you have committed no further offences since the present offending, concluding in February 2019, and you have no matters pending or outstanding. You have also successfully completed the CCO you were on at the time of the present offending, and that included you undertaking an anger management course.

49     While I am dealing with your prospects of rehabilitation, I also note you have demonstrated a history of consistent work and study in arduous occupations, and you have shown perseverance in the maintenance of work while facing the challengers brought about by the present pandemic.

50     The fact you have maintained consistent employment and remained offence free, augers well for your prospects for rehabilitation which I consider to be very good.

51     I also note your counsel's submission, which I accept, that you have undergone other consequences as a result of being remanded in custody in relation to these offences. As a result of that, you lost the lease on your unit and you also, as I have previously stated, were unable to finish the course of study you were undertaking at the time at the Victoria University of Technology. I take those matters into account as part of your personal circumstances in sentencing you on these charges.

52     You were remanded in custody on 3 April 2019, and you have 53 days of what would be pre-sentence detention, to be declared in the event that that becomes relevant.

53     The other matter I should allude to is, I accept if you were sent to prison for these offences there would be a greater level of custodial hardship as a result of COVID-19 restrictions. COVID-19 is relevant to sentencing in at least four ways. First, an offender is a higher risk of contracting COVID-19 if they are incarcerated, presuming an outbreak in custody. Secondly, the inherent utilitarian value of the guilty plea is greater during the pandemic, as I earlier indicated. Thirdly, the pandemic is causing additional stress and concern for those incarcerated and for their families, as it is for every member of the community. Fourthly, the pandemic can impact on prison visits, work and educational opportunities, depending on the number of COVID cases in the community at any given time. Those are the reasons why a sentence of imprisonment in this particular climate is particularly onerous.

54     While I accept you would have found the 53 days you have spent on remand very isolating and difficult, there is no evidence before me to indicate you will suffer any particular additional custodial hardship over and above that of the average prisoner as a result of COVID-19.

55     However, I do accept that, given your citizenship status, you would be concerned if you were imprisoned with regards to any affect a sentence of imprisonment might have on your capacity to stay in Australia. I take that potential additional hardship into account.

Application of Sentencing Principles

56     I have had regard to current sentencing practices in relation to the offence of common law assault, as informed by the decisions of the High Court of Australia and R v Kilic[7] and DPP (Vic) v Dalgliesh (a pseudonym).[8] It is always difficult to gauge more than a general yardstick from so-called comparable cases, given the wide range of offending conduct that can constitute the offence of common law assault and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.

[7] (2016) 259 CLR 256.

[8] (2017) 262 CLR 428.

57     The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, the impact on the victims, and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.

58     In cases of this type, general deterrence, denunciation and just punishment must be given significant weight and, in your case, because of your prior criminal history, some weight needs to be given to specific deterrence and protection of the community. Although, in light of your last three years of good behaviour in the community and you hard work, those matters do not require a great deal of weight. As I said earlier, I assess your prospects for rehabilitation as being very good.

59     After balancing all relevant considerations in your case I consider sentences of imprisonment are not called for in this case in order to achieve the purposes for which these sentences are imposed. Sentences of imprisonment are sentences of last resort and, in my view, are not required to properly reflect all relevant sentencing considerations in your case.

60     Accordingly, that finding raises a difficulty with regards to how best to deal with you, because you have 53 days of pre-sentence detention which is declarable. This means you have served already 53 days in prison, on charges for which I do not consider you should be imprisoned. In that sense, the time you have already served becomes effectively ‘dead time’ and that becomes a relevant factor in determining what is an appropriate sentence in your case.

61     As your counsel, in my view, rightly submitted, because of the fact you have served these 53 days, which are not going to be brought to account as pre-sentence detention, that justifies what would ordinarily appear to be a very lenient sentence in your case. So you are getting a very lenient sentence, Ms Arabi, because you have already served 53 days in prison in respect of this offending which I cannot do anything about. I am not going to sentence you to imprisonment just so I can declare 53 days PSD. I do not consider that is an appropriate application of sentencing principle in your case.

62     What it does mean is you are going to receive a much less severe sentence than this sort of offending, given your personal circumstances, would  ordinarily call for.

Stand up Ms Arabi

On Charge 1, common assault, with conviction, you will be released on an adjourned undertaking for a period of two years. That starts from today and will last until 8 December 2023. The undertaking is subject to the following conditions. You are to be of good behaviour during the period of the adjournment and you are to attend before the Court if you get a notice telling you to do so during the period of the adjournment.

63     On Charge 2, I make a similar order, with conviction you be released on an adjourned undertaking for a period of two years commencing today with the same conditions.

64 In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have convicted you and sentenced you on both charges to a total effective sentence of 53 days imprisonment.