Director of Public Prosecutions v Haggag
[2014] VCC 1568
•17 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01611
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAMER MORTADA HAGGAG |
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11-13, 18-22, 25-29 August, 1-2, 9 September 2014 | |
DATE OF SENTENCE: | 17 September 2014 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2014] VCC 1568 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. D’Arcy | OPP |
| For the Accused | Mr M. Thomas | Pica Criminal Lawyers |
HER HONOUR:
1
Tamer Haggag, on 11 August, 2014, you pleaded guilty to a charge of possessing a drug of dependence (Charge 11), an offence with a maximum penalty of five penalty units. On that day, you pleaded not guilty to
Charges 1-10, and a trial was held.
2
On 1 September 2014, a jury found you guilty of aggravated burglary
(Charge 2), which has a maximum sentence of 25 years’ imprisonment; guilty of false imprisonment (Charge 4), which has a maximum sentence of
ten years’ imprisonment; guilty of common assault (Charge 5), which has a maximum sentence of five years’ imprisonment; and guilty of criminal damage (Charge 7), which has a maximum sentence of ten years’ imprisonment. Later that day, the jury by majority found you not guilty of theft of a car (Charge 1).
3 The following day, 2 September 2014, the jury were unable to reach a verdict on the remaining charges and were discharged without verdict on those charges. On 9 September, 2014, the prosecution filed a Notice of Discontinuance in respect of those charges (Charges 3, 6, 8, 9 and 10[1]).
[1] Charge 3 was a charge of being a prohibited person in possession of a firearm; Charge 6 was a charge of reckless conduct endangering life; and Charges 8, 9 and 10 were charges of theft.
4 I sentence you on the basis of the following facts, consistent with the verdicts of the jury, arising from the evidence given in the trial:
(i) You and your victim, Timothy Gatt, knew each other from secondary school when you were both in your teenage years, about 20 years ago;
(ii) Mr Gatt suffered a brain injury in a motor cycle accident in 2006, a fact of which you were aware;
(iii) In February 2013, a dispute arose between you and Mr Gatt;
(iv) On 7 March 2013, at about 10 am, you broke open the front door to
Mr Gatt’s home and entered without permission, intending to assault him, and knowing that he was home or likely to be home (Charge 2);
(v) Mr Gatt was alone in the house, in bed, and you went to the bedroom, and either pushed him onto the ground or told him to get on the ground;
(vi) When Mr Gatt was on the ground, you put your foot onto his head and pressed “pretty hard”[2], such that he could not move away (Charges 4 and 5); and
(vii) You told Mr Gatt to go to the lounge room, and when he began to use his mobile phone to make a call, you flicked the phone out of his hand, and stood on the phone, cracking its screen (Charge 7).
[2] Trial Transcript, 19 August 2014, p 285.
5 I am satisfied that the context for the offending on 7 March 2013 was the dispute between you and Mr Gatt. However, as I stated during the plea hearing, I cannot and do not make a finding as to your reasons for the offending. I do note that during submissions before the jury were empanelled, your counsel referred to you having used methylamphetamine on the day of your arrest (15 March), but although you have a history of drug addiction to which I will refer later, it has not been submitted that you were drug affected on 7 March when you committed the offences.
6 I received three Victim Impact Statements, one from Mr Gatt and one from each of his parents. I am satisfied from the evidence at the trial that Mr Gatt was scared during the course of this unwarranted intrusion into his home, and the Impact Statements show that this event has had a lasting impact on him, and his parents, in a number of ways. I do take the considerable impact on them into account in deciding the appropriate sentence, but I also note that the prosecution concede that your actions on 7 March were not the sole reason for Mr Gatt feeling the need to move house, and I sentence you having regard to that concession.
7 Aggravated burglary is a very serious offence. Parliament has shown this by prescribing a maximum term of imprisonment of 25 years. The type of aggravated burglary which involves a ‘home invasion’ is a particularly serious form of this type of offence. Courts have recognised, however, that the most serious form of aggravated burglary involves the offender carrying a weapon as well as knowing that someone is at home[3]. In your case, I do not sentence you on the basis that you were carrying a weapon, as the jury were unable to decide the charges relating to possession and use of a gun, and those charges have been discontinued. I sentence you on the basis that I previously outlined.[4]
[3] Hogarth v R [2012] VSCA 302 at [4]
[4] Paragraph 5(iv)
8 Mr Thomas submitted on your behalf that this is not a particularly serious example of an aggravated burglary on the bases that there was no weapon, there was limited violence and no injury arising from the assault, and the whole event was of short duration. I accept those matters and also that you acted alone, but I do find the aggravated burglary was one committed with the aim of confrontation, which aim was achieved. This means that it is not at the lowest level of offending.
9 The prosecutor, Mr D’Arcy, submitted that there was one feature which made your offending more serious, and that was your knowledge of Mr Gatt’s acquired brain injury, and the nature of the abusive relationship you had with him as shown, it was submitted, by the series of text messages sent by you[5] during the dispute in the weeks before you committed the aggravated burglary.
[5] Exhibit E on the trial
10 I am satisfied that Mr Gatt was in a vulnerable situation, living alone with an acquired brain injury. I am also satisfied that you were aware of his vulnerability, but, despite this knowledge, or perhaps because of it, you made the decision to break into his house intending to assault him, did physically assault him and frighten him with your actions, and damage his phone. In that sense, this awareness of his vulnerability is an aggravating feature of your offending.
11 As to the other charges for which you are to be sentenced, they are much less serious than the aggravated burglary, and are also not serious examples of the particular type of offence in each instance. The act which constitutes both the false imprisonment and the assault was over in seconds, and caused no lasting physical effect. It was however, frightening and humiliating for Mr Gatt, and the act of placing a foot “pretty hard” on his head may demonstrate your scant regard for his vulnerability. Because it was the same act for Charges 4 and 5, there will be concurrency between the sentences imposed on these charges.
12 The drug of dependence in your possession was cannabis, a small amount of 5.4 grams, found in your bedroom on the day you were arrested and a search warrant was executed. I take into account that you pleaded guilty to this offence.
13 Mr Gatt has made a claim for compensation for the replacement of his phone damaged by you, and you have consented to an order that you pay the amount claimed of $129.00.
14 That consent to pay him compensation is the only show of any level of remorse by you. As you disputed that any of the acts the subject of the charges occurred, there is no other demonstration of remorse to be taken into account.
15 You have a lengthy criminal record for drug, dishonesty, driving, assault and weapons offences dating from 1995 in the adult jurisdiction. Of relevance to the charges for which you are to be sentenced today are five convictions involving cannabis, five convictions for burglary, eight convictions for assault, and two convictions for damaging property. You have not previously been convicted of aggravated burglary. Your first period in custody was in Youth Training Centre in 1996, when you were not quite 20 years old.
16 You are now aged 37 years, and have spent a great deal of your adult life in prison. Working backwards from now, you have been in custody since the day of your arrest for the offences against Mr Gatt, 15 March 2013. In July 2013, His Honour Judge Montgomery of this court sentenced you after pleas of guilty, to a term of imprisonment for 261 days on charges of assisting an offender and possession of a drug of dependence, which was equal to the time served on those charges. According to His Honour, those offences led to a previous parole order being revoked[6].
[6] DPP v Tamer Haggag [2013] VCC at [4] (Date of sentence: 31 July 2013)
17 Going even further back, in 1998, the Court of Appeal dismissed your application to appeal[7] against your conviction for armed robbery, attempted armed robbery, theft and intentionally causing injury, and your sentence for those offences was four years nine months’ imprisonment with a minimum of two years nine months’ imprisonment. You were then aged 21 years.
[7] R v Tamer Mortada Haggag (unreported) Court of Appeal 23 July 1998
18 Between 1998 and 2009, you were sentenced to imprisonment on ten occasions.
19 I was provided with the sentencing remarks of Her Honour Judge Nicholson of this court[8], who sentenced you in December 2008 after pleas of guilty, to a sentence of 42 months’ imprisonment with a minimum term of 24 months, with 307 days declared as time already served. This sentence was for charges including weapons offences, possession of cannabis and methylamphetamine, cultivation of cannabis, and summary charges of resisting police, possession of ammunition, possession of suspected proceeds of crime, and a driving offence.
[8] R v Tamer Haggag [2008] VCC 1788
20 Her Honour remarked that you had undertaken some programs in custody, but she had concerns about your chances of rehabilitation[9]. In 2013, Judge Montgomery remarked[10] that he had very little confidence in your prospects for rehabilitation.
[9] Ibid at [48]
[10] [2013] VCC at [17] (Date of sentence : 31 July 2013)
21 Before me, a bundle of certificates was tendered to demonstrate the steps you have taken this time in custody[11], and it was submitted on your behalf that unlike the position before His Honour in 2013, there are now some prospects for you to rehabilitate yourself, albeit guarded prospects. While I recognise that you have undertaken a series of programs designed to reduce your risk of re-offending and that is to be encouraged, I disagree that this enhances your prospects of rehabilitation to even a guarded prognosis. These are the same sort of courses undertaken before you were sentenced in 2008, and you have continued to offend. Mr Haggag, you will be 38 years old by the end of this year. It is up to you whether you do change your life, or whether you are so entrenched in a criminal lifestyle, that you will live the rest of your life in and out of custody.
[11] Exhibit 1 on the plea
22 You have demonstrated a capacity to change your life in one significant respect. I will refer to this as I take into account your background and personal circumstances. You were born and raised in Australia by your Egyptian parents. Your father has been in court stoically supporting you in this trial, as I read in the sentences of the other judges, he has done on many other occasions. He was a manager at Australia Post. Sadly, you have not obtained such a work history. I am told that both you and your older brother have been heroin addicts.
23 You were sexually assaulted at the age of 11 by a teacher, which I accept was a significant event in your formative years. You later began associating with an older peer group and apparently became imbued with a criminal culture in the area where you lived.
24 You began using cannabis at the age of 13, then tried heroin at 15. You appeared in the Children’s Court at that age, and received an order which enabled you to complete three years of a spray painting apprenticeship. Sadly for you, and for the community, you did not make the most of that opportunity, but instead tried amphetamines, and then at the age of 18, returned to heroin and had a ten year addiction to that drug.
25 I am told that you were able to finally rid yourself of that addiction by returning home to live and beginning the methadone program, a program you are still on. This is the capacity to change your life to which I earlier referred. This led to a relatively stable period of your life between 2004 and 2008 when you appeared in court on only three occasions for very minor driving offences. Unfortunately, the stability did not last, and you began using methylamphetamines and returned to your criminal habits.
26 On the basis of your personal and criminal history, I find your prospects of rehabilitation to be extremely low. Although one should never give up hope that you will eventually reform your life, there is little before me to suggest that is likely to happen. As a result, the sentence I impose today must have as one of its purposes the need to deter you from re-offending, although clearly prison terms in the past have not achieved that.
27 I am told that apart from the summary matters which I will order to be remitted to the Magistrates’ Court, all outstanding matters are taken care of. After completion of the sentence you receive today, the rest is up to you.
28 My sentencing of you today must also have as one of its purposes the need to deter others from offending in the way you did on 7 March 2013. Any form of home invasion must be denounced by the courts, and the sentence must reflect the serious nature of such an offence.
29
Finally, it was submitted on your behalf that the sentence I impose must take into account the total time you have spent in custody on these offences, and the offences for which you were sentenced by Judge Montgomery while on remand. It is difficult to completely understand what period of time this is, as there is reference in those sentencing remarks to a total period of about
670 days, through revocation of parole, although you were clearly in the community in February and March 2013. Ultimately, I have decided to have regard only to the period of 261 days that was imposed by His Honour as the sentence, reflecting the days you had served for those offences.
30 I have considered the statistics put before me on terms of imprisonment imposed for aggravated burglary, as informing me of sentencing practices. Your counsel conceded that many of the cases there referred to, with a median of two to three years’ imprisonment, involved pleas of guilty, providing mitigation of sentence which does not apply in your case. On the other hand, as Mr Thomas submitted, many of those cases also related to offending with weapons, especially firearms, which as I have stated, is not a feature of your offence.
31 I have also had regard to the remarks of the Court of Appeal that current sentencing practice for aggravated burglary as at 2012, involving a median sentence of two years, with the upper limit generally being six or seven years, failed to adequately reflect the 25 year maximum, and that it was anticipated that sentencing practice for aggravated burglary, in particular those committed with the aim of confrontation, which I have found yours was, would increase in coming years.[12]
[12] Filiz v R [2014] VSCA 212 at [15]; Hogarth v R [2012] VSCA 302 at [62]
32 Taking all of these matters into account, you are convicted and sentenced as follows:
33 On Charge 2 - aggravated burglary – three years, six months’ imprisonment.
34 On Charge 4 – false imprisonment – 15 months’ imprisonment.
35 On Charge 5 – common assault – ten months’ imprisonment.
36 On Charge 7 – criminal damage – eight months’ imprisonment.
37 On Charge 11 – possess drug of dependence – $250 fine.
38 Charge 2 is the base sentence. I direct that the six months of the sentence imposed on Charge 4 be served cumulatively on the sentence imposed on Charge 2. All other sentences are to be served concurrently with the sentence imposed on Charge 2 and with each other.
39 That makes a total sentence of four years’ imprisonment. I direct that you serve a minimum term of two years six months before becoming eligible for parole.
40 I declare that you have served 444 days in pre-sentence detention not including today and these are to be deducted administratively from your sentence.
41 I will not order a stay on payment of the fine. That can be administratively converted to imprisonment.
42 I have signed the disposal order, and the order for compensation.
43 Finally, in respect of the two summary offences, two charges of possession of weapons, I remit those charges to the Magistrates’ Court and remand you to 16 October 2014 at 10am to appear in the Magistrates' Court.
44 (Disposal order signed and acknowledged.)
45 (Compensation order signed and acknowledged.)
46 MR D'ARCY: If Your Honour pleases.
47 MR THOMAS: If Your Honour pleases.
48 HER HONOUR: Yes, thank you. Mr Haggag may be removed.
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