Director of Public Prosecutions v El Houli

[2022] VCC 445

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01315

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAREK EL HOULI

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2022
DATE OF SENTENCE:	5 April 2022
CASE MAY BE CITED AS:	DPP v El Houli
MEDIUM NEUTRAL CITATION:	[2022] VCC 445

REASONS FOR SENTENCE
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Subject:CRIMINAL

Catchwords:              Plea of guilty – one charge common law assault – one related summary offence of committing an offence whilst on bail – circumstances of COVID-19 pandemic

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Sentence:                  3 months’ imprisonment and $700 fine

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T. Crouch	Office of Public Prosecutions
For the Accused	Mr W. Barker	Theo Magazis & Associates

HER HONOUR:

1Tarek El Houli, you have pleaded guilty to one charge of common law assault, the maximum penalty for which is five years' imprisonment, and one summary charge of committing an indictable offence (common law assault) whilst on bail, the maximum penalty for which is 30 penalty units or three months' imprisonment.

Circumstances of the offending

2The prosecution opening dated 15 March 2022 sets out the circumstances of your offending. It was tendered on the plea and became Exhibit A. It is attached to and forms part of these reasons. I will summarise just some of the facts giving rise to your offending here.

3The victim in this matter is Kahled Braiss; he is your brother-in-law. At the time of this offending, Mr Kahled Braiss was living with his 21-year-old son Moussah in Point Cook. Moussah Braiss was taking strong pain medication after a recent surgical procedure and has little memory of the incident.

4In the background: you and Mr Khaled Braiss had fallen out over a car and other issues; and you, at this stage, were generally unwelcome in his home.

5On the evening of 23 April 2020, Khaled Braiss was watching television at home, from a position in the lounge room where he could not see the front door.

6His son Moussah Braiss was also at home, but sitting in the garage, closer to the front door.

7At around 10pm, Khaled Braiss heard a knock. He began to walk to the front door and on his way, he heard his son saying, 'Don't hurt me, I just got out of hospital'.

8Mr Braiss then saw you punching his son. There is no evidence as to the terms of your entry into the house.

9Mr Braiss tried to help his son and a fight broke out between the three of you; it moved to the back door of the house. Mr Braiss senior opened the back door, and his son went outside. The fight between you and Mr Khaled Braiss continued, and the two of you ended up close to the front door again.

10At this point, Mr Khaled Braiss recognised another man standing out the front of the house. That other man, Mr El Sayegh, intervened and blocked Mr Braiss from coming out of the house – you, at that stage, were grabbing him by the shirt. During all of this, a wall of the house was damaged.

11Mr Khaled Braiss managed to get away and run to a neighbour's house. The neighbour gave Mr Braiss a phone, and he called ‘000’ at 10:18pm.

12At this point, you and Mr El Sayegh drove away in a black Commodore.

13Police attended Mr Braiss' home at 11:17pm, where they saw a broken window and a hole in the plaster in the hallway.

Arrest and Interview

14You were arrested and interviewed on 6 May 2020. You admitted to going to the house; you said you were invited there. You made a range of statements, ultimately admitting to the altercation, but either denying parts of it or minimising your role in it.

Prior Criminal History

15You have a relevant criminal history. You were sentenced in this Court for the charge of intentionally causing serious injury in 2006, though I note that was dealt with by way of a three-month suspended sentence. In 2007, you were sentenced for the charge of recklessly causing injury; there are other charges in your history too, but they seem to be more about driving and minor drugs offences and therefore of less relevance to this sentence.

16At your filing hearing on 7 May 2020, you applied for and were granted bail (you accrued, I note, a day's pre-sentence detention at that point).

17A committal hearing was listed, but had to be adjourned for lack of an interpreter. I note at that stage, there was an offer to resolve the case on a slightly different basis than that which proceeds today, but somewhat equivalent. That offer was rejected as the prosecution embarked upon a process of approving a much more serious charge. I note that it has always been your intention, expressed at an early stage, to plead guilty to this assault.

18After your committal to this court on this case, on 26 October 2021, you were remanded on another matter, which is now still in the committal stream in the Magistrates' Court.

19This matter went through the case management process in early 2022, and this resolution was as a result of that.

20The related summary offence of committing an indictable offence while on bail was as a result of your being on bail for a driving charge at the time of your commission of this offence.

Nature and gravity of the offending

21I will now assess the nature and gravity of your offending. The charge is particularised as the common law assault on Khaled Braiss, and I am careful not to sentence you for any other charge. However, the context of your offending includes the fact that you are inside Mr Khaled Braiss' home, in circumstances of antipathy and being unwelcome there, at least by Mr Braiss senior. On the plea, the offending was described as having taken place over approximately a minute. This puts it above some of the lowest forms of offending in its class. It also seems you gained some form of assistance at one stage in the latter part of the process, in the form of Mr El Sayegh towards the end.

22This is a protracted and as I see it, a fairly serious version of the charge of common law assault – your aggression towards Mr Khaled Braiss persisted. It was in this man's private home. Whatever the reason was for your going there, you confronted Mr Khaled Braiss where he had the right to be in privacy and safety. It is completely unacceptable. You were on bail at the time, and this gives rise to the summary offence of committing an indictable offence while on bail

Personal circumstances

23You were born in 1987, you are currently 34 years old, and you committed these offences when you were 32.

24You were born in Melbourne, your parents separated when you were seven years old. You remained living with your mother, and your father cut ties with you and your family. You had no contact with your father until two or three years ago.

25You have a strong relationship with your mother Hanan. When out of custody, you spend a great deal of time together and you maintain regular contact from custody.

26You have four siblings: two brothers and two sisters.

27You are engaged to Clara, you have known each other for around 10 years, but have only been in a romantic relationship for a short time. Clara visits you in custody regularly.

28You completed Year 11 before leaving school and beginning an apprenticeship at Universal Smash Repairs whilst also undertaking a TAFE course. You completed your apprenticeship at Universal Smash Repairs over four years and continued working there for around another two years.

29After leaving Universal Smash Repairs, you worked at several panel beating shops as a spray painter over the course of about four years. You then opened your own factory, called Pro-Coat Smash repairs. You and one other employee ran the business for about three years. You closed that business, due to personal issues with drug use, a relationship breakdown, and being a carer for your mother.

30After the current offending, and prior to your remand in October 2021, you were in the process of setting up a similar business, and paid the first six months in rent. On your release from custody, whenever that may be, you hope to return to this business.

Impact on victims

31I am obliged to take into account the impact of your offending on your victim. No victim impact statement was tendered on your plea; however I sentence you on the basis that it was, at the very least, alarming and most unpleasant for your victim, particularly in the light of these events taking place in his home.

Matters in mitigation

Plea of guilty

32At any time, a plea of guilty warrants a reduction in sentence; but at this time, when the administration of justice has been so constrained by the consequences of the pandemic, it is particularly important that your plea is given additional and palpable recognition to be expressed in units of time. I make it clear that were it not for this feature, the sentence I would be imposing on you would be significantly longer.

Prospects of rehabilitation

33I am obliged to have regard to your prospects for rehabilitation. Your criminal history is concerning, particularly the offending in 2006, intentionally causing serious injury, and the reckless cause injury in 2007. Although these previous offences are now quite some time ago, and much more serious, there is a disturbingly similar feel of you physically confronting someone you think has wronged you, and you need to give it up.

34I note that the unproven allegation against you arising from your arrest in October 2021 involves a shooting: a serious offence against the person. Naturally, I do not take this into account as a prior conviction, and it clearly remains to be seen whether or not the charge is even made out – but it does constrain the sentencing options that I have in your case.

35You certainly have some matters in your favour. You are engaged to be married; you have taken up education where you can; you have a trade qualification, and some degree of experience in the community of living a normal, prosperous existence. Given the long gaps between this and your earlier offending, and the other matters in your favour, the inclination to assess your prospects for rehabilitation is to be determined as good

36However, it is difficult to assess these really with a shadow of what sounds like very serious charges currently sitting over you and I assess your prospects in all the current circumstances as medium.

COVID-19 pandemic circumstances

37I note that time in custody at the moment is still more difficult for prisoners because of the pandemic. You have been remanded at Barwon since October – you have signed up for every course available, and have completed what education you can get there. You have been subjected to the quarantine regime, which involves isolation in a cell with no sun or natural light or no visits, or even virtual ones during the quarantine period. You have suffered lockdowns and restrictions on time out of your cell, suspensions of visits and uncertainty. I accept that your imprisonment is and will be more onerous because of the COVID-19 circumstances in custody.

38Having regard to the question of delay, I acknowledge that it is coming up to two years since you were arrested and interviewed, and this forms additional punishment, in that you have had it over your head all this time, and an originally much more serious charge awaiting you. Your offer to resolve the case in similar terms much earlier, when you were out on bail, was unsuccessful, and I take this limb of delay into account. This is not a case, however, where efforts at rehabilitation during this delay are pleaded in mitigation, and your barrister conceded frankly that there is no heavy reliance on remorse in this case.

Sentencing principles

39I must apply the proper sentencing principles in your case. You must be punished for what you did; this sentence should also have the effect of deterring others from behaving in this way. Taking into account your history and the circumstances of the offending, I find that there is a role in this sentence for some specific deterrence – that is, to prevent you from behaving in a similar way again. At some stage, you have to work out that confronting people in this and more serious ways is completely unacceptable, and will only conclude in further and longer sentences of imprisonment for you. I must also have regard to community protection in this sentence and through me in this sentence, the community expresses its denunciation of your conduct: the notion that it is all right to assault someone anywhere, but particularly in their home for whatever reason is completely rejected.

40I have had regard to other sentences in this class of offending. No sentence is quite like yours, but I sentence you in the general landscape.

41Your counsel submitted on your plea that I should sentence you by way of a fine for this conduct. I considered that submission carefully, but ultimately reject it, having regard to all the sentencing factors that are live, but particularly on the basis of your prior history, and the objective gravity of what you did. In the end, I determined that a period of imprisonment was the only valid sentencing option in all the circumstances.

Disposition

42Mr El Houli, I now sentence you in the following way.

43On the charge of common law assault, you are convicted and sentenced to a period of imprisonment of three months.

44On the related summary offence of committing an indictable offence while on bail, you are convicted and fined a total of $700, resulting in a total effective sentence across the two charges of three months' imprisonment and a fine of $700.

45Pursuant to s18 of the Sentencing Act 1991, I declare that you have served a total of five days to be deducted as already served pursuant to this sentence.

46I declare that had you not pleaded guilty but been found guilty after trial, I would have imposed a period of imprisonment of five and a half months.

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