Director of Public Prosecutions v Balawee

[2021] VCC 1829

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01965

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN BALAWEE

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2021
DATE OF SENTENCE:	22 November 2021
CASE MAY BE CITED AS:	DPP v Balawee
MEDIUM NEUTRAL CITATION:	[2021] VCC 1829

REASONS FOR SENTENCE
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Subject: Aggravated burglary and make threat to kill

Catchwords:              Guilty plea –– confrontation of strangers in context of marriage breakdown – mid-level offending – high utilitarian value of guilty plea – limited criminal history – positive steps to rehabilitation – strong protective factors

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Worboyes [2021] VSCA 169; R v Doran [2005] VSCA 271; Hogarth v the Queen (2012) 37 VR 658; DPP v Meyers (2014) 44 VR 486; DPP v Shane O’Brien [2019] VSCA 254; DPP v Craig Simmons [2019] VSCA 288; Adrian Stapleton v R [2020] VSCA 147; Jake Lucas v R [2021] VSCA 314; R v Biba [2021] VSC 327; R v Postiglione (1997) 145 ALR 408

Sentence:                   Combined sentence of 1 year and 10 months’ imprisonment and a 3-year community correction order; $2,500 fine

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Karamicov Mr B Sonnet	Office of Public Prosecutions
For the Accused	Ms M Brown	Sarah Tricarico Lawyers

HIS HONOUR:

1Dean Balawee, you have pleaded guilty to:

·one charge of aggravated burglary; and

·two charges of make threat to kill.

2You have also pleaded guilty to the related summary offences of:

·committing an indictable offence whilst on bail;

·contravening a Family Violence Intervention Order;

·failing to stop after an accident;

·breaching an interlock condition; and

·being a non-prohibited person possessing imitation firearm.

Circumstances of offending

3The circumstances of your offending are set out in the summary of prosecution opening[1]. They are agreed facts.

[1] Exhibit A.

4Sometime between 6 and 7 am on 11 January 2021, you knocked on the door of the Meadow Heights home of Ahmad Dib and Mohamad El-Abdallah. You were carrying an imitation pistol and knew there was someone home. You intended to confront a man inside the house about your wife. When Mr Dib opened the door, you pushed past him and entered the house. You showed him an image of a Telstra phone bill which was on your phone and asked him if the address on the bill was the same as Dib’s home. When he said it was, you grabbed his T-shirt and pushed him against the wall. You accused him of cheating with your wife. He tried to calm you down to explain he did not know your wife. He did not know you either. (Charge 1 – Aggravated burglary).

5You produced an imitation pistol and put it to his head. You told him, “I want to kill you – shoot you.” (Charge 2 – Make threat to kill).

6The noise woke Mr El-Abdallah. When he looked out from his bedroom door you pointed a gun at him and yelled, “Go back or I’ll shoot you”. He was holding a mobile phone and you grabbed it from him. You told him if he came any closer you would shoot him. He took a few steps back and tried to calm you down. When he asked you what you wanted from them, you showed Mr Dib the phone bill which was in your wife’s name. You said your wife had left you and you were looking for her.

7When you realised neither man knew you wife, you turned your aggression from them to yourself. You forced the pistol into Mr Dib’s hand. You put his hand to your head and asked him to shoot you. When he refused, you tried to get Mr El-Abdallah to do the same thing. Mr Abdullah refused to touch the pistol.

8Mr El-Abdallah sat you down in the lounge room and tried to calm you down. When he asked you what happened, you told him you had been watching the property, and Mr Dib, and you knew when Mr Dib went to work and the registration number of his utility. You admitted, on one occasion, you had hid in the bushes outside their home. You told them you had been parked outside the house all night, watching and waiting.

9While you were talking, you put the pistol on the table and removed from it a magazine which you put in your pocket.

10When Mr El-Abdallah asked you to leave, at first, you refused. You asked them to call the police and said you would wait for them to arrive.

11While you were talking in the lounge room, Mr Dib photographed you and sent the image to his brother, Ali, with a message, “… please help”.

12Mr El-Abdallah had also called Ali Dib.

13Mr El-Abdallah and Mr Ali Dib eventually persuaded you to leave.

14When Ali Dib arrived, he saw you in a Toyota Hilux. He pulled up next to it and, when he told you he wanted to speak to you, you drove off at a fast speed.

15A short distance away, you lost control of your car, on a bend, and crashed into a car parked in its driveway. You drove off without stopping. (Summary charge 19 – Failing to stop after accident).

16You were driving a rental car. You were prohibited from driving a motor car which did not have an alcohol interlock device fitted to it. The Hilux was not fitted with such a device (Summary Charge 21 – Breach interlock condition).

17Your surveillance of Mr Dib, and his home, breached a Family Violence Intervention Order condition you not attempt to locate your wife or put her under surveillance (Summary Charge 12 – Contravening a Family Violence Intervention Order).

18When you committed the aggravated burglary and make threat to kill offences, you were on bail, granted on 5 January 2021, in respect of other charges (Summary Charge 2 – Commit an indictable offence whilst on bail).

19Police arrested you on 19 January 2021. They found the imitation firearm at your work address. It is a gel blaster pistol which resembles a .45 calibre automatic Colt pistol. If a pressurised carbon dioxide cartridge is loaded into the pistol, it can discharge gel balls loaded into a magazine (Summary Charge 22 – Non-prohibited person possessing imitation firearm).

20At interview, you denied going to the home of Mr Dib and Mr El-Abdallah and described their account as “ridiculous”. You denied any knowledge of the imitation pistol. You said you were the victim.

21After the interview, you were charged and remanded in custody.

22The charges against you were resolved at a committal case conference on 10 September 2021 and you were committed to appear in this court by straight hand-up brief.

Victim impact statements

23Mr Dib’s victim impact statement was read to the court.[2] He has suffered nightmares and sleep disturbance. For two months, he found it hard to go to work, because he feared to leave the house, and eventually he was fired. His brother helped him find a new job and drives him to work. His reliance on his brother has strained their relationship. Your menacing and threatening conduct has also strained his friendship with Mr El-Abdallah.

[2] Exhibit B.

24Mr El-Abdallah declined to make a victim impact statement. However, I note he told police, he was shocked and scared when you pointed the pistol at him and too scared to call police when you asked him to. He just wanted you to leave. He was recovering from a broken leg which became painful again because he had walked on it in “the shock” of you confronting him in his home.[3]

[3] Statement of Mohamad El-Abdallah dated 1 January 2021.

Criminal record

25You have admitted a criminal record.

26On 28 February 2008, in the District Court of New South Wales, in Sydney, you were sentenced to 23 months’ imprisonment, which was wholly suspended, for the supply of a commercial quantity of a prohibited drug.

27Between 2000 and 2010, in five appearances at New South Wales Local Courts, you were fined for driving offences, possession of a prohibited drug, in 2004 and 2010, and common assault, in 2003.

28More recently, on 22 May 2018, at Broadmeadows Magistrate’s Court, on a charge of unlawful assault, you were released on an adjourned undertaking without conviction.

Personal circumstances

29You were born in June 1980. You were 40 years old when you offended. You are now 41.

30You are married with 3 children aged 3, 4 and 6 years.

31Your wife gave evidence.

32She has known you since childhood. She married you in October 2013. She said it was a good marriage. However, after your father died, in 2018, you started drinking heavily and taking drugs, often in the garage at home. She said you stopped spending time with the kids and her and you neglected them. She said she could not talk to you about it because you did not want to believe you had a problem so she packed up and left with the children.

33All the while, you continued to operate a successful re-blocking business which you had started in 2016.

34She said, after your separation, she had obtained a Family Violence Intervention Order against you. You breached the order when you went to her home in the middle of the night, accused her of cheating and you told her you had put a listening device in her car. She said you had not been physically violent at any time.

35She said, when you were remanded in custody, she let the children speak with you, but would not herself. Over time, she saw the children were relating well with you so she started talking to you again. She has observed a change in you for the better.

36She said you have acknowledged you did the wrong thing and want to reconnect with the children and her.

37Your wife told me her family will support you. They propose, when you are released from prison, that you will live with her father and return to work in your business.

38While you have been in custody, your wife has been supporting the children and herself from your joint assets.

39She said there is a possibility the two of you could reconcile. However, you must first focus on the welfare of your children and then work on rebuilding trust between the two of you.

40Her sister was present for court hearing and she provided a character reference. She has known you all her life. You have helped her at times when she has needed it. She described you as decent and hard-working. Drugs and alcohol changed you for the worse. She wrote she speaks to you daily and believes you have learned from your mistakes.[4]

[4] Exhibit 4.

41While in custody, you have privately engaged a counsellor to help you address your drug and alcohol issues.

42You have had six sessions with Karly Doyle.[5] You told her you had been drinking a bottle of spirits and smoking at least 1g of methamphetamine daily. She wrote you are “deeply embarrassed and ashamed of [your] actions”. You told her you believe you would not have committed your crimes if you were not substance affected at the time.[6] You have expressed a commitment to abstinence with goals of reconnecting with your wife and children and returning to your re-blocking business.

[5] Exhibit 2.

[6] Exhibit 2.

43In prison, your drug screens have been negative[7] and you have work as a billet.

[7] Exhibit 5.

44You were raised in the Catholic Church. You have been a member of the Reservoir Parish of your Assyrian church for more than 20 years. Your priest wrote you had been a regular attendee at mass and have volunteered at Parish events since your time in the Youth Group.[8]

[8] Exhibit 3.

Defence submissions

45Ms Brown, who appeared on your behalf, acknowledged the offence of aggravated burglary is serious.[9]

[9] Exhibit 1.

46As to the assessment of the objective seriousness of your offending, she noted:

(a)   you knocked on the front door then pushed past Mr Dib, rather than forcing the door or breaking a window;

(b)   you were alone;

(c)   you had an imitation firearm and intended to scare the occupants but not physically harm them; and

(d)   you had a delusional belief your wife was cheating with one of them and, when you realised you were wrong, you calmed down and stopped being a threat.

47She submitted the impact of your pre-planning of the aggravated burglary should be moderated, by operation of the Doran principle, because it is known only because you disclosed it to your victims after you had confronted them.[10]

[10] R v Doran [2005] VSCA 271.

48In mitigation of penalty, she relied on:

(a) your early guilty plea for its utilitarian value, greater during the COVID-19 pandemic,[11] and as evidence of your acceptance of responsibility for your actions;

(b)   the absence of any previous serious violent offending;

(c)   your good work history; and

(d)   the steps you have taken, since your arrest, to reform.

[11] Worboyes [2021] VSCA 169, [35].

49She submitted, in the circumstances, a combination sentence of imprisonment and a community correction order would best achieve the punitive and rehabilitative purposes of sentencing in your case.

Prosecution submissions

50Ms Karamicov, who appeared for Director of Public Prosecutions, submitted your confrontation, with a weapon, of persons completely unknown to you, with intent to assault them, in their home, early in the morning was a “medium level” example of aggravated burglary.

51She submitted, for crimes of this type, general deterrence is the primary sentencing factor.

52She told me, on 28 October 2021, you were fined an aggregate sum of $5,000,  without conviction, for offences of stalking your wife, damaging her property and, between 4 November 2020 and 1 January 2021, persistently contravening a Family Violence Intervention Order which had been made for her protection. You were on bail for those offences when you committed the index offences.

53She submitted, given your criminal history, and considering a Family Violence Intervention Order and bail failed to deter you from reoffending, there is a need for specific deterrence in your case.

54She submitted, because you were prepared to commit a violent crime because of an unhealthy infatuation with your wife, community protection is a relevant consideration.

55She submitted the only appropriate penalty for your offending is an immediate term of imprisonment constituted by a head sentence and non-parole period.[12]

[12] Exhibit C.

56After I indicated I would have you assessed for a community correction order to enable me to properly consider the competing sentencing submissions, she submitted, if I decided to impose a composite sentence, a component of the community correction order should include a requirement you undergo programs to reduce the risk of offending, including the men’s behaviour change program.

Community correction order assessment

57I have had you assessed for a community correction order and you were found suitable.

58You told the assessing officer your drug and alcohol abuse caused the breakdown of your marriage and, after your wife left you, you became paranoid she was cheating on you. You said you are ashamed of your offending and you expressed remorse for the trauma you had caused your victims. You said you are motivated to undertake a community correction order to reconnect with your wife and children.

Consideration

59The maximum penalty for the offence of aggravated burglary is 25 years’ imprisonment. Making a threat to kill carries a maximum penalty of 10 years’ imprisonment.

60I have had regard to the principles set out in Hogarth v the Queen (2012) 37 VR 658 and DPP v Meyers (2014) 44 VR 486 and to the guidance in other recent Court of Appeal decisions.[13] I have also taken into account a number of aggravated burglary sentences, including composite sentences, imposed by this court, with appropriate adjustment for the differing circumstances of the offending and the offenders.

[13] DPP v Shane O’Brien [2019] VSCA 254; DPP v Craig Simmons [2019] VSCA 288; Adrian Stapleton v R [2020] VSCA 147; Jake Lucas v R [2021] VSCA 314.

61A confrontational aggravated burglary is inherently serious.

62As the Court of Appeal said in DPP v Meyers, at [6]:[14]

Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.

[14] (2014) 44 VR 486.

63Yours was serious offending.

64Your conduct was premeditated, confrontational and occurred in the context of a relationship breakdown.

65You knew someone was home because you had been watching the house. You went to the front door, early in the morning, when your victims were vulnerable to surprise. You intended to put them in fear of serious harm and you used the pistol in such a way that they would believe it was real.

66On the other hand, your crime was less serious than some others because:

(a)   you did not force a door or broken window to gain entry;

(b)   you were on your own;

(c)   you intended to frighten, not physically harm, the persons inside the house; and

(d)   more importantly, you ceased to become a threat when you realised your mistake.

67Your crime was “mid-level” for the offence of the type.

68Your threats to kill each of the victims, while brandishing the pistol, is added criminality which requires additional punishment.

69The offence of threat to kill is a serious violent offence.[15] Upon being sentenced to a term of imprisonment on Charge 2, you fall to be sentenced as a serious violent offender on Charge 3. In the circumstances, for that charge, community protection is the principal sentencing factor, a disproportionate sentence may be imposed to achieve that purpose[16] and cumulation of sentences is the default position.[17]

[15] Sentencing Act 1991 (Vic), s 6B.

[16] Sentencing Act 1991 (Vic), s 6D.

[17] Sentencing Act 1991 (Vic), s 6E.

70That you were on bail for family violence offences involving your wife, when you committed these crimes, is an aggravating feature of your conduct.

71General deterrence and denunciation are important sentencing considerations.

72Because you breached court orders, namely, bail and a Family Violence Intervention Order, when you committed these crimes there is also a need for specific deterrence.

73A custodial sentence must be imposed.

74There are a number of mitigating factors in your favour.

75You are entitled to a substantial sentencing benefit for your guilty plea. It has high utilitarian value, especially during the public-health pandemic, because it alleviates the current strain on the justice system.[18]

[18] Worboyes [2021] VSCA 169, [35] and [39].

76You are also entitled to some moderation of your sentence for the additional hardship of prison, due to removed prison visits, reduced prison programs and increased isolation during the pandemic.[19]

[19] R v Biba [2021] VSC 327, [38].

77I accept, when you realised your mistake, you were remorseful. You told your victims you had watched their house, and Mr Dib, and you left, after initially saying you would wait for police, when they asked you to go.

78Your wife gave very impressive evidence. She is not prepared to have you back unless or until you have earned her trust by proving you can again be a loving and caring parent and husband. You have considerable family support available to help you. For a man who had a good marriage, connecting again with your children and your wife is a powerful motivating factor.

79I am satisfied drug and alcohol abuse lead to your offending. Importantly, you understand that. In prison, you are in a period of enforced abstinence. You have voluntarily engaged in counselling which would otherwise not be available to you in gaol.

80You also understand you must earn your wife’s trust again before there is any reconciliation. In that regard, I note, on 28 October 2021, you consented to a Family Violence Intervention Order, which police obtained for your wife’s protection, which prohibits you from committing any act of family violence, damaging property, or being with or near your wife or children or being near their home, workplace or school, if you are drug- or alcohol-affected.

81Considering the strong protective factors of family and work, I have confidence you can address your drug and alcohol issues and, if you do, you are unlikely to reoffend.

82I do not consider protection of the community requires me to impose a disproportionate sentence on Charge 3.

83Because you are to be sentenced for a number of offences, applying the totality principal, I must ensure your overall sentence is “a just and appropriate measure of your total criminality”.[20]

[20] R v Postiglione (1997) 145 ALR 408, 416-17.

84After careful consideration, I have decided a composite sentence of imprisonment and a community correction order, with its punitive and rehabilitative components, can achieve all sentencing purposes in your case.

85Mr Balawee, by the sentence I impose I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

86Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

(a)   on the charge of:

(i)aggravated burglary (Charge 1); and

(ii)on each of the two charges of make threat to kill (Charges 2 and 3); and

(b)   the summary charges of:

(i)committing an indictable offence on bail (Summary Charge 2); and

(ii)contravening a Family Violence Intervention Order (Summary Charge 12)

you are convicted and sentenced to one year and 10 months’ imprisonment in combination with a community correction order.

87The duration of the community correction order is 3 years. It will commence upon your release from prison.

88In addition to the core conditions, I impose the following special conditions:

(a)   drug treatment and rehabilitation;

(b)   alcohol treatment and rehabilitation;

(c)   programs to reduce reoffending; and

(d)   supervision.

89I impose an additional special condition that you attend for judicial monitoring so the court has oversight of your progress on the CCO.

90Your first judicial monitoring session will take place on 22 May 2023.

91I have imposed an aggregate sentence for those offences because they arose from a single episode.

92I have decided a monetary penalty is appropriate punishment for the remaining related summary offences.

93On the charges of:

(a)   failing to stop after an accident (Summary Charge 19);

(b)   breaching an interlock condition (Summary Charge 21); and

(c)   being a non-prohibited person in possession of an imitation firearm (Charge 22)

you are convicted and fined an aggregate sum of $2,500.

94Pursuant to section 18 of the Sentencing Act 1991 (Vic), I declare you have already served 367 days of your sentence by way of presentence detention.

95While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to 4 years and 3 months’ imprisonment and fixed a minimum non-parole period of 2 years and 9 months.

96I make a disposal order in the terms of the order filed with the Court on 19 October 2021.

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