Director of Public Prosecutions v El-Hassan
[2013] VCC 1091
•30 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02246
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOUNA EL-HASSAN |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 16 July 2013 | |
DATE OF SENTENCE: | 30 July 2013 | |
CASE MAY BE CITED AS: | DPP v El-Hassan | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1091 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Ms M. Zammit (Plea) Ms T. Russell (Sentence) | Office of Public Prosecutions |
For the Accused | Mr G. Davis (Plea) Ms M. Rudolphus (Sentence) | Ann Valos Criminal Law |
HIS HONOUR:
1 Mouna El-Hassan, you have pleaded guilty to an indictment containing three charges of theft. Each charge is a rolled-up charge, being a charge that contains many instances of theft that are aggregated into one charge. The period covered by the charges is from 7 May 2007 to 11 September 2009. The total amount stolen by you was $172,462.97. The maximum penalty for theft is 10 years’ imprisonment.
2 The facts that support the charges are set out in the summary of prosecution opening which was read aloud in court and tendered as Exhibit A on the plea. The facts set out therein were accepted by your counsel as accurate. In short compass, you were employed as an accounting officer with Civil Air, the industrial organisation that represents Air Traffic Controllers. You used a number of methods to perpetrate your thefts, including duplicating payments to suppliers of Civil Air, with the duplicate payment being paid into one of your two bank accounts. You forged the signature of a signatory to the Civil Air cheque account, as well as preparing false documentation.
3 Your employment was terminated by Civil Air in September 2009, but your dishonesty was not revealed until June the following year. Police were notified shortly thereafter, and you were interviewed under caution in February 2011. During the interview you made a number of admissions. You were not charged until July 2012.
4 Tendered on the plea as Exhibit B was a victim impact statement sworn by the executive secretary of Civil Air. He writes about your breach of trust and the frustration felt by your fellow employees as a result of your conduct. As a result of your thefts, Civil Air was obliged to seek alternate and smaller office premises, as well as introducing a range of cost-cutting measures. As well, the operating loss which you caused had to be reported to the organisation’s membership and also to external regulatory bodies like the Fair Work Commission. In short, you have caused immense harm to your former employer.
5 An application for a compensation order in the sum of $172,462.97 to Civil Air was consented to by you.
6 You were born in 1980 and you are one of eight children. Your family is spread between Australia and Lebanon, where your parents were born. Your father died of cancer in 2000. Your mother is aged sixty-four, but is in poor health as a result of having suffered a stroke.
7 Tendered as Exhibit 2 on the plea was a report from Ian Joblin, forensic psychologist, dated 28 February 2013. There appear to be a number of conflicts between your instructions to him and those given to your counsel, Mr Davis. Some of these matters were raised with your counsel, and ultimately not a great deal turns on them.
8 You were educated to Year 12 standard, and thereafter attained a Certificate in Business Administration from Footscray TAFE. You married when you were twenty years of age, but this was an unhappy union that dissolved after eighteen months. One child was born of the marriage, Joseph, who is now aged twelve. Your relationship with your ex-husband was strained, and when Joseph was four years of age your ex-husband took him to Lebanon and left him there with his parents and extended family. Despite many trips to Lebanon you were unable to secure Joseph’s return to Australia until about twelve months ago. Joseph is now a stranger in the country of his birth and is having trouble assimilating into his new environment, especially in respect to his education. (See Exhibit 1 on the plea.)
9 At twenty-three you commenced a relationship which was equally as unpleasant as that experienced by you with your first husband. This new relationship, which lasted eight years, was marked by the aggressive and controlling behaviour of your partner. This relationship was extant at the time of your offending.
10 In late 2011 you met your present husband, and born to you a few weeks ago was a girl, Ebru. Ebru was born three weeks premature, but is now a healthy child. Your husband works as a fencing contractor and earns about $800 per week. He works from 6am to 6pm per day.
11 Put on your behalf on the plea was that you found the workplace at Civil Air as “blokey”, and that you were the subject of religious bigotry because of your Muslim faith. Whether this was in fact so is not really to the point. I accept that you felt unwelcome in your workplace and you were of a view that you were the subject of “unfriendly scrutiny”.
12 In Exhibit 2 it was suggested that you were the subject of sexual harassment in the workplace, but your counsel accepted that such was not the case. Rather, you were the recipient of sexually-explicit emails from a member of Civil Air. The author was expelled from that organisation as a result of his conduct, and the emails which brought about that expulsion were sent to you very late in your offending.
13 Despite the contents of Mr Joblin’s report in which he recorded that you had instructed him that you had been estranged from your mother since the break-up of your marriage, Mr Davis put on your behalf that at the time of your offending you were living with your mother and one of your sisters and her three children. He said that you regarded yourself as the achiever in the family, and you felt obliged to care for your mother and sister and her children. Accordingly, in part your thefts were motivated by an obligation that you felt in respect to your family.
14 Your counsel submitted that you had pleaded guilty to the offences at an early stage and that this was evidence of your remorse, and further that your sentence should be reduced because of the utilitarian benefits that flow from your plea. He also relied on the delay between the time of your interview and the time that you were charged, being some eighteen months. You have no prior convictions.
15 When your matter first came on before me on Tuesday, 2 July it was submitted that your relationship with your family is all but non-existent, and that there is no one other than your husband to care for Joseph, and his employment precludes him from properly doing so because of Joseph’s special circumstances. Accordingly, it was submitted that the hardship caused to your family as a result of your incarceration would be exceptional and therefore should be taken into account as a specific mitigating circumstance on your behalf. Your counsel submitted that exceptional circumstances were made out in respect of Joseph because:
· he is a relative stranger in Australia,
· he had not been cared for properly in Lebanon,
· his English is poor,
· he is in his last year of primary school, and it is anticipated he will commence secondary school next year and would do so in circumstances where his language skills would cause him great difficulty in coping, and
· he has only one person in Australia with whom he has bonded, and that is you, and, should you be imprisoned, he would be unable to cope.
16 Your matter was adjourned for sentence to Tuesday, 16 July and you were remanded in custody. In the intervening period your son was seen by psychologist Alison Mynard as a result of his reaction to your incarceration. On 16 July a further plea was conducted. Tendered on the plea as Exhibit 3 was a report from Alison Mynard, psychologist dated 10 July 2013, and she was called on the plea and spoke to her report. Contained within the report was information not available to your counsel on 2 July 2013.
17 Your son Joseph was subjected to violence at the hands of his father and his father’s family whilst he resided in Lebanon. He witnessed mob violence and fighting in the streets where he lived. His schooling was sporadic, and as a consequence he found it difficult to learn.
18 On returning to Australia last year, subsequent to your interview with police but prior to any charges being laid against you, Joseph’s lot improved, and he commenced to live, for the first time in his life, a normal childhood.
19 Ms Mynard, who had been in contact with the vice-principal of Joseph’s school, reported that although Joseph is in Grade 6 his academic level is at Grade 3 standard.
20 Joseph has reacted to your incarceration by not eating, hoping in a childlike way that this would bring about your return. He has experienced physical symptoms such as stomach pain, and aches and pains in his body.
21 Ms Mynard opined that Joseph suffers post-traumatic stress disorder and adjustment disorder (mixed anxiety and depression) which arises out of his experiences in Lebanon and his long term separation from you. Ms Mynard in evidence opined that this newly-imposed separation raised the real risk of Joseph becoming increasingly withdrawn generally, and particularly from your husband Mr Houssein, and that there are risks of the onset of violent outbursts and even self-harm and suicide.
22 Because of his age and difficulties, his capacity to understand the predicament that you face, and that any separation is not permanent, is limited. Joseph’s mental health is fragile, and he has reacted in a significantly worse manner than most children would. The explanation for this is plain. Having for the first time in his life, as a child of eleven or twelve years of age, commenced a proper relationship with his mother, this has been stopped by your incarceration.
23 No steps were taken by you or your husband to prepare Joseph for what was the likely result of your plea hearing. Should you have done so, this may have alleviated some of the adverse consequences of his separation from you. Additionally, your husband has not taken Joseph to visit you so that he may see and perhaps come to understand that your separation from him is not permanent or by choice.
24 Be that as it may, on the evidence before me there is a real and unacceptable risk that a prolonged separation from you will have permanent and adverse psychological effects on Joseph over and above those that he currently experiences. Notably, Joseph is presently a quiet and withdrawn child, and he is likely to withdraw further and perhaps permanently so in the future.
25 Your counsel repeated his submission that exceptional circumstances had been made out and relied on Markovic v. R (2010) 30 VR 589, R v. Tran [2005] VSC 220 and R v. Aller [2004] NSWCCA 378 in support of his submission. In my judgment, exceptional circumstances have been demonstrated by you in respect to the issue of family hardship; namely, the adverse effects caused to your son Joseph, and the real prospect that permanent psychological damage could be done to him by any extended separation from you because of his unusual personal history.
26 The effect of the evidence heard on the further plea caused your counsel to withdraw his earlier concession that an immediate custodial disposition was the only appropriate one. The Crown submitted that a sentence which involved some immediate imprisonment was appropriate because of the nature and duration of your offending.
27 Your offending was both prolonged and serious. Crimes of this kind are hard to detect, and difficult to investigate and prosecute. You breached the trust that your employer placed in you. There has been substantial harm caused to your employer as a consequence of your offending. As against that, you are 33 years of age and without prior convictions. You have pleaded guilty at the earliest opportunity. During the time that you have spent on remand you have felt the separation from your son Joseph acutely, knowing that he suffers greatly by this separation. Additionally, you have had to nurture your newborn whilst in custody.
28 By this sentence I must punish you, publicly denounce your conduct, and deter others from committing crimes of this kind. However, mercy must be shown to you, because of the adverse effects that imprisoning you will have upon your son Joseph. Taking into account the circumstances of the offences and their effects, with your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
29 On charge 1 you are sentenced to 12 months’ imprisonment,
30 On charge 2 you are sentenced to 12 months’ imprisonment,
31 On charge 3 you are sentenced to 12 months’ imprisonment.
32 I order that 3 months of the sentence imposed on charge 2, together with 3 months of the sentence imposed upon charge 3, be served cumulatively upon the sentence imposed on charge 1. This results in a total effective sentence of 18 months’ imprisonment.
33 I order that 12 months of that sentence be suspended for an operational period of two years. That means that you will serve an immediate term of imprisonment of six months.
34 I declare that you have served 28 days by way of pre-sentence detention, not including today.
35 Pursuant to s6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have sentenced you to a total effective sentence of 3 years’ imprisonment with a non-parole period of 20 months.
36 Please sit down.
37 Mr Associate, those ancillary orders.
38 (Order signed and acknowledged.)
39 As a matter of consent I have signed the order for compensation in favour of the Civil Air Operations Officers Association and I hand down those orders.
40 Remove the prisoner please.
41 Thank you very much for your attendance.
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