Director of Public Prosecutions v Darwich
[2022] VCC 2271
•14 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00817
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEHAD DARWICH |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2022 | |
DATE OF SENTENCE: | 14 December 2022 | |
CASE MAY BE CITED AS: | DPP v Darwich | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2271 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Home invasion (2 charges) – Theft – Recklessly causing injury – Summary charges – Commit indictable offence whilst on bail – Possess controlled weapon without excuse – Co-accused – No parity issues - Two victims - Two separate home invasions committed 7 days apart on same victims – Limited criminal history - History of drug abuse – Drug related offending – Expert opinion – Dislocation and severity of upbringing resulting in intellectual difficulties including verbal comprehension – Interrupted educational and developmental history
Legislation Cited: Sentencing Act 1991 9Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Worboyes v The Queen [2021] VSCA 169
Sentence: Convicted and sentenced to Total Effective Sentence of 5 years 6 months’ imprisonment with a non-parole period of 3 years’ imprisonment – 432 days’ imprisonment declared as having already been served - s.6AAA Sentencing Act 1991 declaration – Ancillary Disposal order
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Van Dyk | Solicitor for Public Prosecutions |
| For the Accused | Mr T. McCulloch | Bowler & Co |
HER HONOUR:
1Jehad Darwich, you have pleaded guilty to two charges of home invasion, one charge of theft, and one charge of recklessly causing injury.
2You have also pleaded guilty to the summary charges of committing an indictable offence whilst on bail (two charges in relation to that offence) and one charge of possessing a controlled weapon without excuse.
3The maximum penalty for home invasion is 25 years' imprisonment; for theft – 10 years' imprisonment; and recklessly causing injury – five years' imprisonment. The maximum penalty for committing an indictable offence whilst on bail is three months' imprisonment, and for possessing a controlled weapon without excuse – one year's imprisonment. I must take into account the maximum penalties in sentencing you as these reflect the seriousness with which Parliament regards the offences.
4Your co‑accused are Fawwaz Al-Naqdi, who was 23 years old at the time of the offending; Jermaine Tui, who was 21 years old; and Sienna Allen[1], who was 17 years old at the time.
[1] A pseudonym
5The victims in this matter are Braeden Macarcio and Donna Tolliday.
6At the time of the offending, the victims were living at an address in Dimboola Road, Broadmeadows.
Incident 1: 2 September 2021
7On Thursday, 2 September 2021 at about 3.30am, the victims were at home when you and your co‑offenders, to whom I have just referred, arrived at the property in a Toyota RAV4 and parked in the driveway. The car was being driven by you, with Tui in the front passenger seat, and Allen and Al‑Naqdi in the back.
8You and your co‑offenders forced entry to the property by kicking in the front door, causing damage to the door and door frame. CCTV footage from the property shows that you entered first, followed by the three others. This gives rise to Charge 1.
9At the time, the victims were asleep in the bedroom. When Ms Tolliday heard the door being smashed and multiple aggressive voices, she fled through the back door and jumped over the fence into a neighbouring garden. She began knocking on neighbours' doors in a state of panic to get help.
10Mr Macarcio remained in the front room at the residence and asked you and your co‑offenders what you were doing. Once inside, Mr Al‑Naqdi produced a taser from his pocket and held it towards Macarcio whilst activating it, causing Macarcio to feel significant fear for his safety.
11I pause here to note that the prosecution does not rely on the possession or activation of the taser by Mr Al‑Naqdi as something which aggravates your offending, in circumstances where there was no offence to which you have pleaded which reflects this incident, and no evidence that you knew that Mr Al‑Naqdi had the weapon or would behave as he did.
12However, after this occurred Mr Macarcio felt significant fear for his safety and retreated to the kitchen. You and your co‑offenders began to search through the victims belongings in the living room. Al‑Naqdi placed some unknown items from the front room coffee table into his inner jacket pocket, and Tui placed some items from the front room coffee table into the front pocket of his hooded jumper.
13You and your co‑offenders left the premises with Macarcio's car keys, as well as a necklace, bags of clothing, and two mobile phones belonging to the victims, being Samsung Galaxy phones. This gives rise to Charge 2, theft.
14You and Tui and Allen packed the stolen items into the RAV4, then left the scene. Al‑Naqdi was handed the keys to Ms Tolliday's car, a Holden Trax, which was parked in the driveway, and he drove off in that.
15Ms Tolliday was able to obtain the help of a neighbour who called Triple 0 at 3.43 am.
16At about 3.50 am police arrived and took statements from each of the victims. Subsequently, police obtained CCTV footage from inside the house and the neighbouring address. The footage clearly showed you and your co‑offenders arriving at the premises, and also recorded Tui and Allen leaving, carrying some of the stolen goods. Al‑Naqdi is seen leaving in possession of Ms Tolliday's car. I was told that you were all readily identifiable due to the high quality of the video footage, and police commenced enquiries into your whereabouts.
17On Friday, 3 September 2021 Ms Tolliday's car was found, abandoned outside an address in Meadow Heights. It was seized and towed for forensic examination, and finger and palm prints identified as belonging to Tui were found.
Incident 2: 11 September 2021
18On 11 September 2021 at about 6.10 am, you and an unknown male co‑offender were captured on CCTV approaching the front gate of the same premises where the previous home invasion had been committed seven days earlier. The victims were asleep in the home at that. This time they were asleep on the couch, due to their fear arising from the previous home invasion. They were awakened by you and the co‑offender walking through the kitchen into the lounge room, having forced entry through the back door of the house. One of you was carrying a metal pole. This gives rise to Charge 3 – home invasion.
19Mr Macarcio recognised you as being one of the offenders from the previous offending the week before. You and the unknown co‑offender were yelling 'Give me the money, give me the money.' Ms Tolliday jumped up and grabbed her dog, then fled the property. She began knocking on the doors of neighbouring properties again, trying to raise assistance.
20Mr Macarcio stood up and walked over toward you. Either you or your co‑offender struck the victim to the left side of his head, near his temple, two or three times, with the metal pole. This caused Mr Macarcio to fall to the ground and briefly lose consciousness. This gives rise to Charge 4 – recklessly causing injury.
21When Mr Macarcio stood up he grabbed a can of degreaser and sprayed you and your co‑offender. You and your co‑offender then ran out through the back door, jumped the side gate, and left from the driveway.
22Police attended a short time later and found Mr Macarcio sitting on the couch in the lounge room, bleeding from a wound to his head. They conducted a walk through and noted damage to the back door and items strewn all over the floor near the entrance of the property. CCTV footage seized from the property showed you and your co‑offender jumping over the fence as you left, and one of you was still carrying the metal pole, which was found a short distance from the scene.
23Mr Macarcio was taken to the Northern Hospital by ambulance and seen in the emergency department. Treating clinicians noted the following injuries:
(a) 3 cm by 4 cm boggy haematoma to the frontal region of the head;
(b) small 2 cm by 2 cm superficial laceration to the head;
(c) pain to neck requiring stabilisation with a c-spine collar whilst awaiting investigation;
(d) tender right wrist; and
(e) superficial abrasions to both knees.
24Upon further examination, no fractures or subdural haemorrhage was found. The laceration to the victim's head was repaired with two stitches, and he was provided with pain relief.
25Ms Tolliday was assessed by paramedics but decided not to go to hospital as she had only suffered minor injuries, being cuts to her feet and cuts and bruises to both knees, as she had fallen over when running barefoot from the property.
26On Thursday, 16 September 2021 police found you in the passenger seat of your car in Broadmeadows with your partner, Vicki Vagianakis, in the driver's seat.
27Police approached the car and told you that you were being arrested. You said 'I'm not coming with yous', and began to step away from the car. You were then subdued, restrained, and your person and the car were searched. Police found a machete in the boot of the car. This gives rise to Charge 14 – possess controlled weapon without lawful excuse.
28You were taken to Broadmeadows Police Station. During the record of interview, you told police that you knew Mr Macarcio, as you bought cannabis from him. You said you did not drive, as your licence was suspended, and you denied knowing the co‑offenders. You said you had no memory of the incident on 2 September and denied that any of the people shown in the CCTV footage were you. You said you had purchased from Mr Macarcio three or four times, with the first time being approximately three weeks ago. You said the machete that the police found was for self-defence.
29You said you smoked ice every week and denied that you were involved in either of the home invasions.
30You were remanded in custody.
31Checks confirmed that at the time of the offending you were on bail, giving rise to Summary Charges 7 and 12. As the learned prosecutor set out, you were in fact on three separate bails at the time, relating to charges of criminal damage and some driving offences, including dangerous driving.
Co‑accused arrest
32I was told that on Saturday, 4 September 2021, police arrested Tui, who was not interviewed due to being heavily substance-affected. On 17 September 2021, police found Al‑Naqdi and Allen hiding in an abandoned property in Ophir Street, Broadmeadows. Each of them were taken to Broadmeadows police station for interview and remanded in custody.
Co‑accused
33Ms Allen's matters have resolved. She pleaded guilty to theft, theft of a motor vehicle, and home invasion. She had no criminal history and was 17 years old at the time of the offending. She was dealt with in the Children's Court by way of a diversion program, and I understand that she is to return to court on 6 December in respect of this.
34Mr Tui pleaded guilty to home invasion, theft, theft of a motor vehicle, and related summary offences of committing an indictable offence whilst on bail. He is on remand and his matters are listed for a plea hearing in this court on 10 March next year.
35Mr Al‑Naqdi pleaded guilty to home invasion, theft of a motor vehicle, possess drug of dependence, and related summary offences of committing an indictable offence on bail, entering a private place without authority, and assault with a weapon. His application to be dealt with in the Drug Court was successful, so he is being dealt with under that regime. You made an application to the Drug Court to be dealt with there however, you were unsuccessful. I was told that this was due to the fact that you committed a second home invasion and had also committed the offence of recklessly causing injury.
36Mr Darwich, your offending is most serious and deserving of a punishment which is just in all of the relevant circumstances. Your conduct must be appropriately denounced.
37On each occasion, you and your co‑offender/s broke into the home of the victims at a time when you would well expect them to be asleep. They were entitled to feel safe in their own home. However, you and your co‑offenders saw fit to violate this, confronting them in a most frightening way and marauding through their belongings. In saying this, I have put aside the taser incident which I have previously referred to as being something you were not a party to. However, after that incident, you and your co‑offenders took a number of the victims' possessions, and you also took Ms Tolliday's car. You had no regard for either of the victims, and, as the offence bears out, you went to their premises in order to steal, choosing a time when they would be in a vulnerable position.
38To make matters far worse in your case, you returned to the premises only seven days later with an unknown co‑offender and broke in again, effectively re-victimising Ms Tolliday and Mr Macarcio. Moreover, on this occasion you were party to recklessly causing injury to Mr Macarcio when either you or your co‑offender hit him on the head with a metal pole.
39Your offending is aggravated by the fact that you attended on each occasion in numbers rather than on your own, and of course on the second occasion a weapon was used in a bid to subdue Mr Macarcio. Again, Ms Tolliday was so frightened that she escaped and alerted a neighbour in the dead of night as to the second home invasion. Also, you were subject to a number of sets of bail at that time, although there are separate offences in relation to that aspect and I am mindful not to doubly punish you in that regard.
40I accept that your offending was lacking in sophistication, although this needs to be seen in the context of your explanation to Mr Simmons that the offending related to collection of a drug debt owed to one of your co-offenders; although this varies a little from what you told me in your letter. On any view, your offending appears to have been drug related. It is also apparent that you were affected by drugs on each occasion, so all these factors are relevant to the lack of sophistication of your offending.
Victim impact statement
41In terms of impact on the victims, I have received a victim impact statement from Ms Tolliday. Ms Tolliday made an extensive and articulate victim impact statement, saying that your offending had changed her profoundly, in that she had lost trust in everyone and had become introverted. She said she was terrorised by what you did, and she spoke of her terror as she tried to escape the house, not knowing what there might be in the backyard of the premises she escaped into. She said that she is now frightened at the slightest of sounds and she was a nervous wreck nowadays. She spoke of her extreme feelings and thoughts when she discovered you had broken into her home, and she also described her physical injuries caused by jumping the fence.
42She said she had worked hard all her life to buy the car that you stole, and it was her only asset. She was most concerned that you had taken her keys and spoke of the ramifications of this. She had become hypervigilant. She spoke of the second home invasion and the fact that she and the other victim were too frightened to sleep in the bedroom, so were sleeping on the couch on this occasion. She said that she opened her eyes to see you standing there and staring at them. She spoke of her extreme terror as she tried to escape, and of the physical impact to her body as she fell on a number of occasions.
43She said that the offending had completely ruined her social life as well as her physical and emotional wellbeing.
44She spoke of the financial impact that your offending had upon her. She had to relocate due to fears that the police had held for her safety, and she spoke of her fear of staying in a motel while they were trying to find another house, due to her fear that you would come back again, and she would not be able to escape.
45She said that the offending had caused her to endure the worst time of her life, and that she suffered sleeplessness, and that she had been placed on anti-depressants as well as Valium to get some sleep. She expressed her extreme anxiety about you and your co‑offenders being in the community, and she also said that she was unemployed but trying to get her factory up and running, which was a business she had been involved in before your offending.
46She also spoke of the financial impact of the offending, saying that she had had to relocate, which had cost she and the other victim a fortune. She spoke of the need to pay for rubbish removal, two new doors and locks, security cameras which the police needed to take, taxi costs, and sharing payments for a motel. Also, the real estate agent demanded that they pay 30 days' rent, which was in addition to the cost of the motel.
47Mr Darwich, these are the very real and profound effects that your offending has had upon Ms Tolliday in this matter. The other victim did not give a victim impact statement, but it takes no imagination to know that your offending has had a negative impact upon him as well. These are matters that I take into account in sentencing you.
48In sentencing you, I take into account your criminal history, which is rather limited and not too relevant. However, it does indicate that you have previously been dealt with by the courts.
49In 2017 you were dealt with for driving offences, including driving a vehicle causing loss of traction and driving in a manner dangerous, as well as driving without L‑plates or an experienced driver. You were granted an adjourned undertaking without conviction.
50In October 2019 you came back before the Broadmeadows Magistrates' Court for wilful damage, injure, trespass, and you were fined without conviction. This gave rise to a contravention of the adjourned undertaking, which appears to have resulted in a further adjourned undertaking to be of good behaviour until 20 April 2020.
51In sentencing you, I take into account your background:
52You are now 27, and you were 26 at the time of the offending.
53As Mr McCulloch said on your behalf in his written submissions, you have an unusual and complex personal background:
54You were born in Syria and migrated to Australia when you were one.
55Your parents divorced, and your father took you to Syria when you were only seven years old. He also took your younger siblings. This occurred without any consultation with your mother. You were fluent in English and you were removed from this country and taken back to a country where you did not speak the language. You were forced to live with your father and his new partner and you were required to call her 'Mum'.
56You lived in Syria until you were 18 or 19, and during that time you were subjected to brutal treatment at the hands of your father. You were required to work in his bakery and attend school. You were not fluent in Arabic, and so you encountered a great deal of difficulty in this regard. I accept that this had significant consequences for your development. You were subjected to severe physical discipline at the hands of your father and received no emotional support from him. The things that you wished to pursue when you were in Syria, such as playing soccer or doing things that the other children enjoyed, were not permitted.
57As submitted by your counsel and supported by psychologist Mr Warren Simmons, the dislocation and severity of your upbringing, including you being subjected to a sudden change in culture, language, and living arrangements, and no doubt being wrenched from your own mother, has resulted in intellectual difficulties in so far as verbal comprehension is concerned.
58When you were 18 you returned to Australia without your father's knowledge, and with the help of your mother and maternal grandmother.
59I accept that the dislocation in your childhood had profound impacts on your education and development during your formative years. What is more, when you returned to Australia you struggled with English, and whilst you have functional language, you still rely on an interpreter for more complex conversations. Also, whilst your mother was supportive of your move, after a short while she, who had remarried for the fourth time, asked you to leave after conflict arose between you and her husband.
60Therefore, effectively you were rejected by your own mother, which must have been very difficult for you. You were then rendered homeless, forced to live in cars and sometimes with the family of your then-partner. You were homeless for a number of years.
61I understand that you have engaged in employment when you can, and have tried to do this, but have been limited by your disrupted education and language difficulties. I understand that at one stage you milked camels for a year in Rochester.
62You were introduced to cannabis when you were 21 by your former partner, and then subsequently to ice, to which you developed an addiction. This has a good deal of relevance to the offending.
63In 2019 you were involved in a significant motor vehicle accident which caused significant injuries to your arm and raised questions as to whether you had suffered an acquired brain injury. However, a subsequent assessment found a premorbid level of function in the low average range, and verbal intellectual functions as very limited, these being related to your interrupted developmental history. However, despite Mr Simmons' views about this, neuropsychologist Dr Benjamin Harris indicated that you did not have an acquired brain injury, and as your Counsel conceded most properly, the evidence of Dr Harris is to be preferred in view of his expertise in the area.
64I accept that in your case the principles of Bugmy[2] have some application. Although you have not suffered the extreme deprivations as referred to in that decision, they have been rather profound, unusual and complex. I accept that due to the dislocating and terribly difficult upbringing that you endured, it is appropriate in all the circumstances to mildly reduce your moral culpability in respect of the offending, in circumstances where it is evident that you quickly became addicted to drugs against a background of profound deprivation, rejection and dislocation. The prosecution accepted that Bugmy principles were engaged to the extent submitted by your counsel. I also allow for a commensurate reduction in the weight which I would attach to general deterrence, in circumstances where otherwise the weight to be attached would be very strong in a bid to deter others from offending as you have.
[2]Bugmy v The Queen (2013) 249 CLR 571
65You are presently in a relationship with Vicki with whom you formed a relationship about three years ago. You have a child with Vicki who was an infant at the time you went into remand; your child is now nearly 12 months old; hence you have spent most of her life on remand. You will have the support of your partner, as well as that of your aunt and mother to look to upon your release from gaol.
66I allow for a significant discount in the sentence that you would otherwise receive due to the fact that you entered pleas of guilty at an early stage, saving the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings. Also, I must allow for a palpable discount in your sentence due to the fact that you have entered pleas of guilty during the pandemic, and thereby, you have contributed to the reduction in the backlog of trials to be dealt with in this court.
67I have read your letter, your partner's letter and the reference to your regret in Mr Simmons' report. I accept that you are remorseful for your actions and have some insight in respect of the seriousness of what you have done; this ought be seen in the context of repeat offending against the same victims, factoring in that on each occasion, you were apparently badly affected by drugs and had limited recall of what occurred. I also factor in that your language skills may well hamper your ability to fully express remorse and insight. However, overall, I accept that you have remorse and a level of insight in respect of the seriousness of your offending and how it might have impacted others.
68I have also taken into account the letters from your partner, aunt and mother in relation to your character. Your aunt and mother attest to the very difficult upbringing you have experienced and your aspirations to turn things around now, in view of your wish to support your wife and child. Your partner speaks highly of you as a person, saying that the crimes that you committed do not reflect the person she knows, she said that she believes that you will be a great and loving father, and that she is willing to give you a second chance as her husband.
69I have also taken into account that you have never had any therapeutic dispositions in the past.
70In sentencing you, I factor in that time in gaol will be harder for you as this is your first time in gaol, and also you are suffering from reactive depression and anxiety, you have some ongoing issues in respect of your physical injuries arising from the car accident and also due to the various COVID-19 restrictions that have been and will be in place from time to time. I understand that you have already been impacted by these restrictions in terms of your ability to receive face to face visits.
71I was told that you are now drug free and it is apparent from your letter to me that this is the way you intend to remain when you are released from gaol. In relation to your drug taking, I make it clear I do not regard it as an aggravating or a mitigating feature of your offending however, it is part of the context in which it occurred and is relevant. You aspire to be a good husband and father and lead a law-abiding life.
72In all of the relevant circumstances I assess your prospects of rehabilitation as guardedly fairly good - much depends on your ability to stay away from drugs and negative peers when you are released from gaol. I allow for a fairly modest reduction in respect of your moral culpability due to Bugmy considerations, and I make a commensurate reduction in respect of punishment, and the weight attaching to specific and general deterrence. If not for these reductions I would have placed fairly moderate weight on specific deterrence and strong weight on general deterrence, punishment and denunciation. I place moderate weight on protection of the community.
73As you were well and truly an adult when you committed the offences, you committed two home invasions and recklessly cause injury as opposed to your co-offenders and those who have been dealt with have been dealt with in either the Children's Court or the Drug Court, which are different regimes to this court, parity is not an issue in your case.
74I accept that you are a fairly young man and in the circumstances I must do what I can to maximise your chances of rehabilitation. I must apply the principle of totality in your case.
75I have also had regard to current sentencing practice, bearing in mind that this is but one factor in sentencing you and not a controlling one. I have also borne in mind cases such as Hogarth where our Court of Appeal has provided a good deal of guidance in respect of the sentencing for the type of offending in which you have engaged. In terms of my application of Bugmy principles in relation to my earlier remarks as to the sentencing factors impacted, I intend to revise these remarks so as they reflect the findings that I have made in that regard.
76It is accepted by your Counsel on your behalf, most properly that a head sentence and non-parole period are warranted in your case, but it was submitted that in a bid to maximise your chances of rehabilitation it would be appropriate to impose a sentence that would see you eligible for a lengthy period of parole. Further Mr McCulloch submitted that a merciful non-parole period was warranted in your case.
77The learned prosecutor, Ms Van Dyk, submitted that a head sentence and non-parole period was warranted and accepted that the community had an interest in your rehabilitation.
78In the end, I have arrived at a sentence which, in my view, adequately addresses the weight that needs to attach to all relevant sentencing considerations in your case. I have done what I can in respect of the non-parole period and the gap between it and the head sentence.
79You are convicted of the offences.
80I make the disposal order that is sought by the Crown and not opposed by you.
81You are sentenced as follows:
82Charge 1: 3 years 6 months' imprisonment
83Charge 2: 4 months' imprisonment
84Charge 3: 4 years 6 months' imprisonment which will be the base sentence
85Charge 4: 18 months' imprisonment
86Summary charges.
87In relation to each of summary Charges 7 and 12, you are sentenced to 1 month imprisonment and in relation to summary Charge 14 you are sentenced to 2 months imprisonment.
88To accommodate totality, I make the following directions in relation to cumulation. I direct that 8 months from the sentence on Charge 1 and 4 months from the sentence on Charge 4 be served cumulatively with each other and upon the base sentence, producing a total effective sentence of 5 years 6 months imprisonment and I direct that you serve 3 years before becoming eligible for parole. I declare that you have already served 432 days by way of pre-sentence detention which will be deducted from your sentence.
89If not for your pleas of guilty I would have sentenced you to a total effective sentence of 8 years 6 months with a non-parole period of 6 years.
90In sentencing you I have had regard and have applied the principles set out in Worboyes.
91Is there anything further?
92MS VAN DYK: No, Your Honour.
93MR McCULLOCH: Just the disposal order, I think.
94HER HONOUR: I made that.
95MR McCULLOCH: Yes, sorry, Your Honour. Nothing further.
96HER HONOUR: All right, thank you. Now did you wish to have a word with your client over the airwaves before we finish up?
97MR McCULLOCH: No, Your Honour. I will organise a conference.
98HER HONOUR: Yes, thank you. All right, yes, thank you, counsel. Thank you very much Mr Ibrahim for your assistance.
99INTERPRETER: Thank you, Your Honour.
100HER HONOUR: We will now adjourn.
101INTERPRETER: I just unmuted myself. Thank you, Your Honour. I reported to Mr Darwich the total sentence as Your Honour has announced.
102HER HONOUR: Thank you very much. Yes, we will adjourn.
- - -
0
2
0