Director of Public Prosecutions v Habib
[2023] VCC 193
•14 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-00908
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED HABIB |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 February 2023 |
DATE OF SENTENCE: | 14 February 2023 |
CASE MAY BE CITED AS: | DPP v Habib |
MEDIUM NEUTRAL CITATION: | [2023] VCC 193 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Make Threat to Kill; Common Assault
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Mercer (a pseudonym) v The Queen [2015] VSCA 257
Sentence:Convicted and fined $1000 on Charge 1; Convicted and fined $1000 on Charge 2; Convicted and sentenced to 59 days imprisonment reckoned as served in combination with a 2 year Community Corrections Order; Ancillary order made.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Fallar | Office of Public Prosecutions |
For the Accused | Ms. A. Cannon | David Barrese & Associates |
HER HONOUR:
1Mohammed Zadir Habib, you have pleaded guilty on indictment to two charges of make threat to kill and two charges of common assault.
2I note that Charge 4, common assault, is a rolled charge of three occasions.
3In sentencing you for your crimes I must have regard to the maximum penalties for the offences you have committed. Those maximum penalties are as follows: make threat to kill - 10 years imprisonment, and common assault -5 years imprisonment. These maximum penalties reflect the seriousness with which Parliament regards these offences.
4The circumstances of your offending are set out in a document entitled “Agreed Summary of Prosecution Opening for Plea Hearing”, dated 10 February 2023. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty as well as the factual basis on which I am to sentence.
5I will not repeat that summary as it is, firstly, a matter of record and, secondly, has just been read to the court.
Offence gravity and victim impact
6In terms of the gravity of your offending, this is obviously very serious offending. When interviewed by police, you took no responsibility and sought to blame the victim and accuse her of being mentally unwell.
7The first charge of threat to kill was remote in the sense that it was made over the phone when Mrs Habib was in Jordan, but it is very clear from her response that she took your threat seriously.
8I accept the submission that Charge 2, common law assault is relatively low level for an offence of its' type. Your threat to kill, the subject of Charge 3, was made multiple times and in the presence of your children, elevating the seriousness of that charge. As I understand it, it was committed on the same day as Charge 4.
9Your offending overall is in circumstances of family violence and continued over a period of some two to three weeks escalating to the final charge which was extreme. Whilst there is no victim impact statement, the circumstances of that offending was doubtless terrifying for your victim, someone you once professed to have loved.
10Your offending, the subject of Charge 4, is very concerning, if not horrifying. One can only imagine that fear the victim held as you held that knife to her throat and then to her genital region and the fear she would have felt as you strangled her to the point where she was unable to breathe.
11The circumstances of this offending is very alarming in its own right, and in terms of the threat you may pose in any future intimate partner relationship.
12The Court of Appeal said in Mercer (a pseudonym) v The Queen [2015] VSCA 257 and I quote:
'This court has said on many occasions that domestic violence will not be tolerated and that general deterrence is a very important sentencing principle in the sentencing disposition which must be and must be seen to be condemned by the Courts. To borrow from what this Court said recently in Filiz v The Queen, offending of this nature is too often perpetrated by men whose response to conflict with a partner is one of violent rage. Such a response is utterly unacceptable. This Court has made it clear and will continue to make it plain that offending of this kind will attract serious consequences.'
13At the time of your offending you and the victim were long-separated and she was entitled to go about her life as she wished.
Plea of guilty
14The Sentencing Act 1991 does oblige me to take into account the stage at which you entered your pleas of guilty. Your matter resolved at a sentence indication hearing on 9 December 2022.
15Sentence indication is a process which permits a judicial officer to give a defendant a general indication of the sentence that would be likely to be imposed if a defendant pleads guilty at that stage of the proceedings. A sentence indication can resolve some concerns about the likely sentence that may be causing the defendant to defer entering a guilty plea, or otherwise electing to proceed to trial.
16The sentence indication given by me was that should you determine to plead guilty, then I would impose a gaol term in combination with a community corrections order, the custodial part of such would not exceed the available pre-sentence detention. You accepted that sentence indication.
17I note you were originally committed to this court on a more extensive range of charges. I do accept in those circumstances that your plea represents one at a relatively early stage. It is also a plea which saves the court time and expense, a factor which has utilitarian value and additional value as the court continues to respond to the impact of the COVID-19 pandemic and resultant backlog in trials. Your plea therefore offers finality and certainty to all parties involved.
18In addition, your plea saves the trauma for witnesses in having to give evidence and relive distressing events, of particular importance given the circumstances of your offending.
19I am satisfied on the materials before me that your plea is also an indicator of remorse for your actions. These factors will be taken into account in your favour.
Personal circumstances
20I turn now to your personal circumstances. You were 43 years of age at the time of the offending and are now 47 years old. You were born in Afghanistan and grew up amidst your home country's turmoil and violence. You were one of five children, being raised with an older sister and brother and two younger brothers. Your father was employed in the Army whilst your mother was a stay-at-home caregiver. You describe your parents as being 'excellent.'
21You were reportedly living in a stable home environment until the Taliban took control when you were 21 to 22 years of age.
22In 1995, you were present when your father and older brother were both shot and killed by the Taliban. You were subsequently beaten with various weapons and repeatedly kicked on the ground and left for dead. You suffered serious injuries following the assault, including a broken left arm with protruding bones, broken fingers and an eye injury.
23Prior to your father's passing, you were a medical student and had completed eight semesters of study. You were forced to abandon your studies to help support the family. You worked in a clothes shop alongside your brother for some two to three years.
24In 1998, you became engaged to your wife, the victim in this matter. In 1999, you left Afghanistan and first went to Pakistan and then to the United Kingdom. You worked in a pizza shop and remained in the United Kingdom for two and a half years. You married your wife in England in 2002 and joined her in Australia in 2003, she having travelled to Australia in the Year 2000. She sponsored you and you were placed on a Humanitarian visa. You settled in Deer Park.
25You have four children together, aged between 14 and 19 years. You have worked variously as a painter and a taxi driver. You started your own painting business in 2008 which closed in 2019 when you were incarcerated.
26As referred to earlier, you separated from Mrs Habib and later divorced in 2019. As I understand it, except for your older son Mohammed, you have not seen your children since being released from remand. You currently receive Centrelink payments but hope to return to painting work.
Prior criminal history
27In terms of your criminal history, it is limited but relevant in terms of the offending before this court.
28You first appeared on 23 April 2018 at the Sunshine Magistrates' Court and entered into an adjourned undertaking without conviction for one year for charges of unlawful assault and contravene a family violence intervention order. The undertaking required you to complete a Men's Behavioural Change program and provide evidence of completion to the court.
29On 23 August, 2018, again at the Sunshine Magistrates' Court, you entered into an adjourned undertaking without conviction for eight months for the charge of contravene a family violence final intervention order. The undertaking required you to complete a Men's Behavioural Change program and provide evidence of completion to the court.
30Subsequent to the matters before me, on 18 December 2019, you appeared at the Sunshine Magistrates' Court for two charges of contravening a family violence intervention order for offending which occurred shortly after that which is before me. You were convicted and fined the amount of $1000.
31I understand that each of these matters relate to the same victim of the offending before me. It appears you coped poorly with the demise of this relationship and this history would indicate you have had difficulty complying with court orders.
Rehabilitation
32In terms of your prospects for rehabilitation, in a report dated 7 December 2022, Dr Cunningham diagnoses you with post-traumatic stress disorder linked to your exposure to war-related trauma in Afghanistan. Dr Cunningham notes you have been prescribed with Pristiq and Lithium and that you present with negative alterations in cognition and mood in the form of feelings of worthlessness and death.
33Dr Cunningham opined that you are marked with arousal in the form of sleep disturbance, difficulty concentrating, irritability and hypervigilance. Dr Cunningham suggests that you managed your trauma through employment and commitment to your family. He further suggests that the deterioration of your relationship affected your coping method which led to an increase in symptoms of trauma.
34Furthermore, Dr Cunningham states that the separation from your wife and children aggravated your sense of isolation and loneliness and that you have been suicidal and presented with severe signs of mental illness. He does indicate that you require ongoing support in the community.
35Overall, there does appear to be a link between your mental state at the time of your offending and the offences themselves, such to allow for some moderation of deterrence and in the assessment of your level of moral culpability. This much, as I understand it, is conceded.
36In addition, there are certainly concerns raised about the impact of your mental health on any further incarceration. Dr Cunningham opines that incarceration would aggravate your post-traumatic stress disorder symptoms. He further states you have distressing recollections of your time in gaol and that your medication continues to be altered as your mental health continues to deteriorate.
37Dr Cunningham states that exposure to violence in gaol would aggravate symptoms of your trauma and that you need increasing mental health support. He concludes that true emotional connecting with a family member as well as seeing your family would be the main factor improving your mental health. Overall, his assessment and concerns about further incarceration is another factor I take into account in the sentencing exercise.
38Letters were tendered, authored by Shereen Manib, psychologist, dated 21 October 2020 and 30 September 2022. Concerningly, she noted minimal improvement in your symptoms of mixed anxiety and depression. She recommends continual intensive support and therapy and describes you as quite emotionally vulnerable and fragile.
39Dr Ashok Singh, Consultant Psychiatrist, notes adjustment disorder with anxiety, depression and possible PTSD symptoms. He refers to a range of prescribed psychiatric medication. You intend to continue with mental health treatment. I encourage you to do this to minimise your future risk and give you a better life overall.
40You also present with a range of physical ailments, the primary one being a significant back injury for which you still await finalisation of treatment. This is a condition which provides you with pain on a daily basis.
41You did spend some 59 days on remand directly referrable to this offending, and a further 165 days in custody before being convicted and fined by the Sunshine Magistrates' Court in December of 2019 for breaching an intervention order. I accept there has been a degree of both sanction and deterrence in these periods in custody.
42Whilst on remand, you did manage to complete a number of rehabilitative and educational courses, certificates of completion have been filed. These indicate continued efforts of your behalf to improve your future prospects.
43I note that you were charged in July of 2019 and the offences, now the subject of indictment, were in the summary stream but uplifted by a Magistrate. A committal hearing was adjourned due to COVID-19 and required a second listing.
44Those facts and various administrative matters have meant that your matter could not be finalised until some three years and nine months after the offences occurred. I do accept that this has been an additional burden on you, impacted by a number of personal events which have occurred during that time.
45You met your current wife, Habiba on a brief trip to Afghanistan in 2018. Habiba was known to you and your family since childhood and with the support of your family you married remotely in June of 2020. Your wife remains overseas subject to the Australian Government's visa approval process. You are concerned about her welfare due to the presence of Taliban in her area. You have been unable to visit her.
46In addition, your mother became ill with lung cancer in 2020 and passed away in 2021. You were not allowed to visit your dying mother due to bail conditions.
47The period since charge and sentencing is also one in which to assess your prospects for rehabilitation. There has been no further offending since mid-2019. I have had regard to character references provided on your behalf, which in general terms, speak of your deep regret and remorse and describe your offending as uncharacteristic.
48It appears from material tendered on your behalf that have you identified your need for mental health assistance. I accept you are genuinely trying to improve your sense of wellbeing.
49I accept the analysis that your risk of reoffending at the present time would appear to be low, but as referred to earlier, you do need to maintain a mental health regime. With this analysis, this reduces the weight that I need to give in the sentencing exercise to both specific deterrence and protection of the community, but they are still relevant sentencing considerations.
50Given my sentence indication and the combined submissions of the parties, that a combination sentence would adequately reflect all relevant sentencing considerations, I had you assessed as to your suitability for a community corrections order. You have been assessed as suitable for a community corrections order.
51An assessment by the Mental Health Advice and Response Service opines that you are a vulnerable person with significant mental health issues including depression, anxiety, post-traumatic stress disorder and suicidal ideation. A mental health condition is recommended should a community corrections order be imposed.
52The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
53In sentencing you I must regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.
54I am also required to balance the interests of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure where possible that offenders are rehabilitated and are re-integrated into society.
55I have taken into account the relevant sentencing guidelines referred to in s5 of the Sentencing Act. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the important principles of both totality and proportionality.
56In relation to charge 1, you are convicted and fined the amount of $1000, that is for the charge of threat to kill, the first offence in time.
57In relation to Charge 2, common assault, you are also convicted and fined the amount of $1000.
58For Charges 3 and 4, I do propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts or form or a part of a series of offences of same or similar character. Indeed, they did occur on the same day as part of the one event.
59For Charges 3 and 4, you are convicted and sentenced to 59 days imprisonment. Fifty nine days are reckoned as having already been served. This term of imprisonment is in combination with a community corrections order for a period of two years.
60During that two year period, you are required to be supervised by the Office of Corrections to complete 175 hours of community work, to be assessed and treated for mental health assistance and to complete referred programs to reduce offending. One hundred hours of treatment are to be offset against the community work condition. On reflection, I have declined to impose a judicial monitoring component.
61You need to be aware, Mr Habib, and I will give you the chance to speak with Ms Cannon in a moment, that this can be breached if you do not complete it, and it can be breached if you commit another offence punishable by imprisonment, during the 24 month period.
62Should that occur, you will be brought before me for contravention proceedings. I may have to look at re-sentencing you for the offences as well as to impose punishment for breach. So you need to be aware of those factors before you consider signing the document
63Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges.
64If not for your pleas of guilty, I would have sentenced to 20 months, with a minimum of 10 months before being eligible for parole.
65Ms Cannon I will stand down temporarily so you can speak with Mr Habib about that order.
66MS CANNON: Thank Your Honour, I will not be long.
67MS FALLAR: One other matter is the ancillary order.
68HER HONOUR: What ancillary order?
69MS FALLAR: In relation to the mobile phone Your Honour.
70HER HONOUR: I understand you were going to sort it out and if you could not, you were going to come back.
71MS FALLAR: Thank you, Your Honour.
72HER HONOUR: All right. Stand down temporarily.
73(Short adjournment.)
74HER HONOUR: All right.
75MS CANNON: He consents to the order, Your Honour.
76HER HONOUR: Yes, all right, well thank you to each of you for your assistance. You are excused so I can try and deal with the other matter which may well have gone pear-shaped and if you could let us know if you have or haven't resolved the outstanding issue.
77MS FALLAR: Yes.
78MS CANNON: Yes.
79HER HONOUR: But otherwise, thank you very much.
80MS FALLAR: Thank Your Honour.
81MS CANNON: Thank Your Honour.
82MS FALLAR: I seek to leave the Bar table.
83HER HONOUR: Absolutely, yes, excused, thank you.
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