Director of Public Prosecutions v Bahouche

[2023] VCC 2267

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01362

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMED BAHOUCHE

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2023
DATE OF SENTENCE:	1 December 2023
CASE MAY BE CITED AS:	DPP v Bahouche
MEDIUM NEUTRAL CITATION:	[2023] VCC 2267

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Sentence indication hearing – criminal damage – intentionally cause injury – trespass – plea of guilty - rehabilitation

Legislation Cited:      Sentencing Act 1991

Cases Cited:

Sentence:                  416 days imprisonment served by pre-sentence detention

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y. Hardjadibrata	Office of Public Prosecutions
For the Offender	Mr R. Bhattacharya	Emma Turnbull Lawyers

HER HONOUR:

1Mohamed Bahouche, your matter was listed before me as a plea of guilty on 27 November 2023.  With the consent of the prosecution your counsel made application for your matter to proceed as a sentence indication rather than a plea and I allowed your application.  It was not until today that I gave a firm indication of the sentence I would impose and this was in circumstances where I was concerned to ensure that you had a suitable plan and supports available to you for your release into the community.

2Today I have been advised that enquiries have been made with a variety of service providers and you have the details of those service providers together with the details of the worker from Reconnect with whom you have previously spoken. I am confident you will be able to find some housing upon your release.  Accordingly, I indicated that upon a plea of guilty to the charges before the court, I would impose a term of imprisonment equivalent to that which you have served and I would give an adjourned undertaking with conviction as a form of monitoring your progress in the community. I have been advised that you have accepted my indication and you have pleaded guilty to those charges on the indictment.  In addition, you have consented to a summary related offence being heard by this court and have pleaded guilty to that charge and that is a charge of trespass.

Circumstances of offending

3The agreed factual basis for your offending is set out in the prosecution opening on plea dated 24 November 2023, and this was tendered at your plea hearing and marked as Exhibit A.

4The two complainants in this matter are Gitza Dragarska and Ricky Scanlan. At the time of your offending Mr Scanlan was staying with Ms Dragarska who was your ex-partner, and that was at her address in Greensborough.  Mr Scanlan was known to you as you had spent time together in gaol. 

5You were released from custody on 9 October 2022 and had been in contact with Ms Dragarska to collect your property which you had stored at her address whilst you were in gaol.  Ms Dragarska responded to your message telling you that she did not have your property and she did not agree to you coming to her address.

6At around 9.40 am on 10 October 2022 Ms Dragarska observed you walk up her driveway and enter the front yard through the gate.  She told you to 'Get the fuck out', 'get off my property' and 'get away'.

7After you refused to leave Ms Dragarska contacted police at approximately 10 am and she left the property.  Mr Scanlan was inside the property and Ms Dragas told him 'Do not let him inside'.

8Mr Scanlan had come to the front door after hearing Ms Dragarska screaming and the front wooden door was open but the flyscreen security door was locked.  From the front door Mr Scanlan could hear you enter the garden shed by breaking the lock.  Charge 1 – criminal damage.

9You then returned to the front of the property and approached the security door. Mr Scanlan saw you shake the door and then use some sort of tool to break it open.  Charge 1 – criminal damage.

10When you got inside you hit Mr Scanlan over the head with a torch.  The blow caused a laceration of approximately three to four centimetres to the back of Mr Scanlan’s head which bled profusely.  Whilst Mr Scanlan was on the floor you continued to hit him across the face and jaw with the torch and you also kicked his body and legs.  Charge 2 – intentionally cause injury, related summary Charge 10 – trespass.

11Mr Scanlan used his legs to kick you away and you fell backwards.  You followed him through the bathroom and laundry and demanded he give you his phone. Instead Mr Scanlan hit you on the neck with his phone and ran out of the front door of the house.

12At approximately 10.10 am police officers who attended the address observed Mr Scanlan sitting in the driveway and one of the officers saw a deep, bloodied laceration on the back of his head, numerous bruises to his legs and torso and swelling on his right cheek and numerous abrasions on his body.

13Mr Scanlan was taken by ambulance to the Austin Hospital.  There has been no medical material filed in relation to the injuries sustained by Mr Scanlan, however, photographs included in the depositional material depict his injuries and the torch.

14At the property police saw you removing your items of property from the garden shed and placing them in the carport.  You were placed under arrest and taken to Heidelberg police station for interview.

15During your record of interview you told police that you had sent text messages to Ms Dragarska asking for your legal documents but she said that she had thrown them all out.

16You said you had gone to the Reservoir police station and had spent 20 minutes talking to an officer and asking for assistance to retrieve your property.  In that context you had gone to the property with the intention to pick up your belongings civilly, but Ms Dragarska had told you to 'Fuck off' before leaving in her car.

17You said that Mr Scanlan had told you that your items were in the shed and you admitted to using a hammer to open the latch and force your way in where you found your property.

18You then confronted Mr Scanlan at the screen door, which was closed, about whether your identifications and cards were at the property and you had a confrontation with him inside.  You denied using the hammer to hit the screen door.  I might also say in your record of interview that you gave an explanation more consistent with self-defence or that you had disarmed Mr Scanlan who had the torch and then used the torch in that manner.

Victim impact

19A victim impact statement from Ms Dragarska was read by the prosecutor in court. The statement was marked Exhibit C on the plea.

20Ms Dragarska described that your offending has left her feeling consistently anxious and afraid.  The significant anxiety she experiences in social settings and when she has to leave the house has inhibited her ability to see family and friends, to run every-day errands and pursue other interests which require interaction with others.  She also reports issues with sleeping and nightmares.  Your offending left her feeling violated at her own home and caused her to move to another address not known to you.

21Although Mr Scanlan did not make a victim impact statement, I accept that in his statement he said in essence this was a frightening experience that has affected him mentally and psychologically.  In addition, he said that he has suffered ongoing pain from his injuries.

22I take into account in sentencing you the impact of your offending on each of the victims.

Nature and gravity of offending

23In determining the gravity of your offending, I have had regard to the maximum penalties for each of the offences, that is, 10 years for intentionally cause injury and criminal damage and six months’ imprisonment or 25 penalty units for the offence of trespass.  The maximum penalty of an offence is the yardstick set by parliament and the starting point when considering objective seriousness.

24The prosecution submitted that in assessing the gravity of your offending I should consider the charge of intentionally causing injury to be the most serious of the charges before the court.  It was submitted  this was a sustained assault, to several areas of the body, with a torch and punches and kicks that had occurred inside the victim’s house.  Your offending caused injuries that required Mr Scanlan to spend five hours at the emergency department of a local hospital.

25In relation to the other offences the prosecution submitted you damaged the locks on the shed and the front door and you trespassed into the house after having been refused entry by Ms Dragas.

26Your counsel conceded your offending was towards the mid-range of seriousness for offending of this type, as it occurred inside the victim’s home, and you used a weapon.  However, your counsel also submitted that you had made enquiries of the police and had asked for assistance.  You were clear that you had not gone to the address to cause trouble but wanted the return of your property.

27You went to Ms Dragarska’s house at a reasonable time in the morning after your release from custody the day before.  I accept that you went there to retrieve your property, some of which was entirely necessary for you, that is your identification documents and cards.  I accept that you had been to the police for assistance but this assistance was not forthcoming as there was no crimes family violence order in place.  Mr Bahouche, rather than break into the shed and enter the house and assault Mr Scanlan you should have returned to the police and again asked for assistance.

28Instead, you popped a lock on the shed and found your property, you then gained entry to the house and assaulted Mr Scanlan with a torch.  I accept that the torch was not something that you had brought with you as a weapon but was something you were able to use in that manner as the events unfolded.  The injuries caused to Mr Scanlan, from what I see depicted in the photographs in the depositional material, consisted of a laceration to the top of his head and several bruises and abrasions to his legs and face.  I consider it to be an aggravating feature of your offending that it occurred in the place where Mr Scanlan was staying and somewhere he should have been able to feel safe.  Further, you hit Mr Scanlan to his head which is a vulnerable region of the body.

29I accept that you attended for the reasons you gave in your record of interview and that you attended alone at a reasonable hour of the day.  Further, your offending was of a very short duration, it was not premeditated as the events unfolded quickly.

Personal circumstances

30You are currently 45 and you were 44 at the time of the offending.

31You grew up in Melbourne in the care of parents who were immigrants from Lebanon.

32You left school after Year 11 to start an apprenticeship in refrigeration which you did for two years before leaving for the construction industry.  In 2019, following release from a period of time spent in custody, you worked briefly as a landscaper.

33In 2011 you commenced a relationship with Ms Dragarska which ended in 2018 and following a period of reconciliation you separated for a final time in 2021.

34Your long history of illicit drug use began when you were in your early 20s and escalated following the breakdown of your relationship with Ms Dragarska in 2018.

35These factors align with the start of the vast majority of your prior criminal history. In 2018 you were sentenced to a 12-month community correction order for trafficking methamphetamine and possession of several drugs of dependence.  You went on to breach this order in 2019 with several more drug related offences and drug related offending.  It continued into 2020 and 2022.

36You have some relevant priors from 2022 when you were sentenced on two separate occasions for charges related to criminal damage, contravention of an interim family violence intervention order and unlawful assault.  The day prior to the current offending you had been released from custody after serving a sentence of just under one year and two months’ imprisonment.  You were not released on parole.  This was in relation to charges of unlawful assault and contravention of an intervention order.

37You have been on remand for the current matters since you were arrested on 10 October 2022.  In court you advised that you have been working in the canteen whilst in custody but you stopped this work recently in order to complete certificates related to re-entering the workforce in preparation for release.

38You have also spent your time on remand completing other courses and programs relating to addiction and healthy relationships as well as attending Alcoholics Anonymous and Narcotics Anonymous.

Matters in mitigation

39You have pleaded guilty to the charges which I take into account in your favour. Although it may not necessarily be said yours was an early plea, your matter has resolved in a way that is very favourable to you with the most serious charge of aggravated burglary being withdrawn.  This necessitated time and negotiation.  I accept that your plea has spared the court the time and expense of a trial and as such has significant utilitarian value.  Further, I accept that through your plea you have facilitated the course of justice and you have spared Mr Scanlan and Ms Dragarska from giving evidence at trial.

40I take into account the benefit of your plea in the context of the court backlog, which though now easing, was still a relevant issue when your case entered the court process.  In the circumstances I propose to give you a significant discount for your plea of guilty.

41Your counsel submitted that you are remorseful for your offending.  In this regard he pointed to answers in your record of interview.  In my view those answers –that is – 'I thought I was doing everything right.  I should have just walked off the property'; 'I opened the garage forcefully, I knew that was wrong'; and 'I’ll cop the injury'; speak more of your acceptance of responsibility for your wrongdoing and in this way, together with your plea, indicate your remorse.

42Further, in his testimonial tendered to the court today, Peter Wroblewski, the area coordinator for the Victorian Prisons AA and NA said:

'In my relationship with Mohamed, he advised me by way of discussion in numerous meetings of his past experiences with addiction and the consequences of his offending, as well as his genuine remorse for his offending, and regrets of the harm caused to victims which often brought him to prison over a considerable amount of time while using, and of his desire to recover through the AA and NA 12 Step Program of Recovery, as well as his involvement with other programs while he has been incarcerated, such as Caraniche, Atlas, A and OD, and Anger Management.'

43Your commitment to rehabilitation in my view is the most significant expression of your remorse.  Not only did I receive the letter from Peter Wroblewski but your counsel tendered a bundle of certificates from a variety of programs you have completed whilst on remand.  This indicates to me that you have taken the very important step of not only accepting responsibility for your offending but undertaking treatment to deal with the difficult issues that have led you to offend. In the circumstances I accept that your remorse is genuine.

44In addition, your commitment to change is evidence that you have good prospects for rehabilitation, this is despite your reasonably lengthy prior history.  With regard to this history, I have previously noted you have very limited history for matters involving violence.

Sentencing principles

45The basic purposes for which a court may impose a sentence are punishment, general deterrence and specific deterrence, rehabilitation, denunciation and protection of the community.

46General deterrence remains the primary purpose of sentencing in this case given the seriousness of your offending.  The weight, however, to be given to specific deterrence should be somewhat moderated in light of the rehabilitation you have undertaken in custody and your relative lack of prior convictions for violent offending.  In your case I regard protection of the community to be a relevant consideration.  However, I consider this will be best achieved by your rehabilitation. In your case this is what will reduce the risk of offending in the future.

47I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case.[1]  In particular, I have had regard to the sentencing landscape for the offending before me, particularly the intentionally cause injury.  Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.

[1] Sentencing Act 1991 s 5.

48The principles of totality, proportionality and parsimony are also important considerations in your case.  They require me to make sure the total sentence is appropriate for the total criminality.  I have taken these principles into account in fixing the sentence I will now impose.

49Weighing up all relevant matters I consider that a further sentence of imprisonment is not required in the circumstances of your case and the sentencing factors of general deterrence, just punishment and denunciation can be addressed by the imposition of a term of imprisonment which I will announce shortly.

Disposition

50Mr Bahouche, in relation to the charges before the court you are convicted and I consider that your charges are founded on the same facts and form part of the series of offences of the same or similar character. So I plan to deal with your matter by the imposition of an aggregate term of imprisonment.  So in relation to each of the charges before the court you are convicted and sentenced to 416 days' imprisonment and I declare that this time has been served by way of pre-sentence detention.

51Mr Bahouche, I have decided against the indication that I gave to ask you to enter into an undertaking to be of good behaviour, and I have done that because it has occurred to me that you are now 45, you have been through this system before, you should be able to manage without the supervision of the court. You have NA and AA meetings that you can attend, you have the details of accommodation services, you have the friend in Murrumbeena that you spoke to, that might still be an option.  You also have the details for Reconnect and no doubt you have used that service before, you know that they can help you to get identification organised, they can also help you potentially with a phone or similar, they are able to assist.  And presumably you might have some withholdings and have a little bit of money upon release as well.  So that is what I intend to do.

52In relation to s6AAA of the Sentencing Act but for your plea of guilty the penalty I would have imposed is a sentence of two years six months and a non-parole period of 20 months.[2]

[2] Ibid s 6AAA.

53So your plea of guilty has saved you a significant amount of time in custody, Mr Bahouche.

54Is there anything further?

55MR HARDJADIBRATA:  I'm sorry, Your Honour, so the aggregate sentence was in relation to all three charges?

56HER HONOUR:  Yes, I have changed my mind.

57MR HARDJADIBRATA: Yes, thank you, Your Honour.

58MR BHATTACHARYA:  As Your Honour pleases.

59MR HARDJADIBRATA:  Thank you.  As Your Honour pleases.

60Hopefully everything will work out, Mr Bahouche.  Make sure that you don't go back to try and retrieve these documents.  I don't know that you know where Ms Dragarska lives but I suppose in imposing this sentence I am taking you at your word in your record of interview that you understand that the relationship is over.  Certainly I don't think that you're going to go and seek out Mr Scanlan, but nor should you want to because you'll know where you end up if you do that, I don't need to tell you.  I must say I was quite impressed with the certificates and with the reference from Mr Wroblewski and your commitment to the rooms and 12-step program, so that is where you need to focus your attention, okay?

61Alright, we will adjourn court.

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