Director of Public Prosecutions v Hamad (a pseudonym)
[2022] VCC 1703
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUNIR HAMAD (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 3 October 2022 | |
CASE MAY BE CITED AS: | DPP v Hamad (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1703 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dearman | Office of Public Prosecutions |
| For the Accused | Mr L. Dean |
HER HONOUR:
1Munir Hamad,[1] you have pleaded guilty before me to one charge of home invasion, one charge of theft and one charge of possession of the drug of dependence. You have also pleaded guilty to associated summary offences, uplifted pursuant to s145 of the Criminal Procedure Act. They are that you committed an indictable offence whilst on bail, trespass, and, or in fact there is two charges of committing an indictable offence on bail, one charge of trespass and one charge of assault with a weapon.
[1] A pseudonym.
2
The facts underlying your offending are as follows. This offending occurred in company with two other people, they being Ramon Daniels[2] and Matthew Hines.[3] On Thursday 2 September 2021 at about 3.30 in the morning, the victims
Mr Hopkins[4] and Ms Poole[5] were at home when you, Mr Daniels, Mr Hines, and a Ms Long,[6] arrived at their house and parked in the driveway. You were a passenger in that car.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
3
On arrival you all forced entry into the house in Dimboola Road, kicking in the front door which caused damage to the door and the door frame. CCTV footage showed that Mr Daniels went first, followed by you, then Mr Hines, then
Ms Long. Those actions underly Charge 1 on the indictment, home invasion.
4
Ms Poole ran from the house through the backdoor and jumped a fence into a neighbouring garden, knocking on the door in a panicked state to seek help.
Mr Hopkins, stayed in the front room and asked all of you what you were doing. Once inside, you produced a taser and held it towards Mr Hopkins at the same time activating it causing Mr Hopkins to feel very frightened. Those actions underly Summary Offence 13, assault with a weapon.
5Mr Hopkins retreated to the kitchen and the rest of you began searching through all he and Mr Poole’s belongings in the living room. You put some unknown items from the coffee table into your jacket pocket, as did Mr Hines. You all then left, at which time you had taken Mr Hopkins’ car keys, a necklace, bags of clothing and two mobile phones belonging to both Mr Hopkins and Ms Poole. The two phones were a red Samsung Galaxy and a black Samsung Galaxy. Those actions underly Charge 2 on the indictment, theft.
6
The neighbour raised by Ms Poole rang Triple 0 and police arrived at the house about 3.50 in the morning taking statements from Mr Hopkins and
Ms Poole. They obtained CCTV footage from inside the house, clearly showing you and the others coming to the house kicking the door in and leaving with bags of Mr Hopkins’ and Ms Poole’s belongings.
7On 17 September 2021, police units were patrolling through the Broadmeadows area searching for your and Ms Long who had so far managed to stay away from police. At about 11.25 am, police located you and Ms Long hiding in an abandoned property at 40 Ophir Street, Broadmeadows. Your presence there relates to Summary Offence 10, entering a private place without authority or trespass. You were placed under arrest and asked if you had anything in your possession which you should not and you produced a clear plastic bag containing 2 grams of cannabis. Your possession of that cannabis underlies Charge 3 on the indictment, possessing a drug of dependence.
8
Later that day you conducted a record of interview with police, saying you could not remember anything about breaking into Dimboola Road. You confirmed you were one of the people from a photograph taken from CCTV footage, showing the driveway on the house at Dimboola Road. You denied knowing Mr Hines, you said you had known Mr Daniels who you met when you came to Australia but were not speaking to him at the time. You made partial admissions I suppose is what you would say. Admitting you were in photographs identifying
Ms Long, telling police you did not remember the night as was maybe you had taken something.
9You said you had been to that house before because Mr Daniels asked you to collect about $5,000 from Mr Hopkins. You did not know where the taser was or remember driving away and told police that while you smoked cannabis you did not take any other drugs. You thought that maybe you had gone to that house that night in company to ask for money. You eventually said you remembered having the taser and pulling it out but could not remember if it was activated. You were then placed in custody. Checks by police confirmed that at the time of the offending you were on bail and so, the home invasion and possession of cannabis, underlaid the two summary offences of committing an indictable offence on bail.
10On 16 May 2022, you entered a plea of guilty to relevant charges at a committal mention and on 2 June at an initial directions hearing, you wished to seek referral to a drug and alcohol treatment court.
11The maximum penalty for home invasion is 25 years' imprisonment. The maximum penalty for theft is 10 years' imprisonment, the maximum penalty for possession of a drug of dependence, which in you case was a small quantity of cannabis, about two grams, is five penalty units. The maximum penalty for assault with a weapon is two years' imprisonment. The maximum penalty for committing an indictable offence on bail is three months' imprisonment. The maximum penalty for entering a private place for that authority is six months' imprisonment.
12Ms Dearman, there are a number of charges where the maximum penalty is listed that I do not think have application to his case.
13MS DEARMAN: Yes, Your Honour.
14HER HONOUR: Is that right? All right, thank you
15I now turn to your personal circumstances. You are 25 years of age. You were born in Iraq. When you were seven your father was killed and you were present at his death. There is then a little bit of confusion, it appears your mother then left the family, but also your father's mother came in and took you and your brothers and sisters into care. Ultimately, the next year you moved to Syria with your grandmother, two sisters and brother who are all younger than you. You told Psychologist, Gina Cidoni whose report dated 7 July 2022 was tendered on the plea, that in the first five years Syria was a good place to live. You were young, you were about 14, you worked in various jobs as the primary financial support for your family. Then the war broke out and you told Ms Cidoni that you often saw people dying, that there were bombings, that you rescued people from shootings and other conflicts including a friend who you cared for after he was shot. Ms Cidoni stated, 'He was exposed to severe civil war and large-scale civilian death.'
16In 2017, you, your grandmother and siblings moved to Melbourne. You came here as a political refugee and you are here on a refugee visa. One of the concerns for you is that as a result of this offending you are at risk of deportation and you have no family left in Syria or Iraq and are very concerned about being returned to those countries. Apparently, your mother ended up in Switzerland and has started a new family. You made some contact with her, but her interest in her new family has meant that contact has not continued, and it appears you feel abandoned by her.
17You stopped attending school when you were 13 and began work and you had no English skills when you came to Australia and still have some difficulty. I note you were given one day of language course but then you pulled out. In Australia, you began trade work including asbestos removal, painting, fixing caravans and demolition. You had period of unemployment and you left one job because you believed you were being underpaid by your employer. You have been on Centrelink benefits for the last four years.
18You have had some medical problems. You were operated upon for a piece of bomb shrapnel which was lodged in your shoulder. Two years ago you were assaulted by strangers at the Broadmeadows Shopping Centre. Your jaw was broken and screws had to be inserted. You were also involved in a car accident where your car flipped because you had been taking too much Xanax. You did not sustain any serious injuries from that accident.
19You declined to have jaw surgery while in gaol because you wanted to stay at Marngoneet, which allowed visits from your wife and you currently take painkillers for your jaw. You told Ms Cidoni, that you never feel suicidal but that you have ongoing stress, trauma and flashbacks because of your experiences in Syria. You have trouble falling asleep a couple times a week. You also have had no history of alcohol abuse.
20Before coming to Australia, you told Ms Cidoni, you had never taken drugs. But was introduced to cannabis by friends here, who you had known in Syria. Very quickly you had a daily habit of about 7 grams a day of cannabis use, which continued until you were arrested and placed in gaol. You told Ms Cidoni that using cannabis helped you forget the trauma from the war zones you had lived in.
21In 2018, you started smoking ice and this had become daily use of 1-2 grams a day by 2019. You also occasionally used GHB, from about five months before being placed in gaol. I was informed by your counsel, Mr Dean, that at the time of this offending, you had not been asleep for about five days, had been using ice on a daily basis and it was in that context that this offending occurred, and why your poor memory arose when you were talking to police.
22Testing administered by Ms Cidoni resulted in a diagnoses of post-traumatic stress disorder, a generalised anxiety disorder and what she described as a severe stimulant use disorder, that is drugs, a severe drug dependency. Ms Cidoni said you presented with a chronic form of anxiety involving persistent worry that was out of proportion to the situation. She felt that your drug use was used by you to escape from the negative symptoms and emotions from your post-traumatic stress disorder.
23You married in 2019. At the time you were living in Roxburgh Park with your grandmother and siblings. You were a carer for your grandmother. She apparently did not know at the time that you were in gaol. However, there have been a number of problems. It appears you have been violent to your wife and your sisters have taken out intervention orders against you. It appears that you believe your sisters were urged to take out an intervention order by other people and that you denied the violence, but I have to say, Mr Hamad, I get the impression that you may well have been violent to the female members of your family including your wife probably because of your heavy drug use.
24
Ms Cidoni noted that people who suffer from post-traumatic stress disorder often engage in risk taking behaviours as part of compulsive re-exposure to trauma and as a way of trying to heal unresolved traumatisation through, what she called
re-enactments of early experiences of violence. What that means is people who have got post-traumatic stress disorder, are triggered to
re-experience the emotions they felt at the time of the trauma, often engage in violent behaviour as somehow that feels more comfortable and healing. If you are taking drugs like ice at the time, that is going to make this even worse.
25Ms Cidoni said that you had experienced regret and remorse and a wish that you had not been involved. Whilst in custody you appear to have done well. You appear to have stayed off drugs and to have worked within the gaol. I received in particular references from your sister, who said that she and your wife had visited you in gaol and spoken to you on the phone and that she had noticed a change in you, saying you had changed from a 'nervous to a calm understanding person' who is now thinking about his future.
26Your wife wrote a wonderful reference for you. Your wife talked about meeting you as her brother's friend, saying that the relationship between the two of you stared in about 2017, when you began to talk to her about your life. She said you opened your heart to her and trusted her. You talked about your life in Syria, the huge responsibility you had had, taking care of your brothers and sisters. She said you then started a friendship with people who used drugs. She said she stood up for you and faced her family believing that you would change, that you married in September of 2019. She left you in about June of 2021, because of difficulties she was having herself and probably because of the behaviour you were showing to her, although I suspect she is too loyal to put that in her reference to you.
27
She said, 'After two months I realised that my life is harder without [Munir] and I went back to him but it was very late, because he started a very bad life with his friends and drugs.' It is quite clear to me that your wife loves you very much. She said, [Munir] is an angel inside and very good person.' She said she has visited you three times; she believes that you she will change your life. She also stated, 'As his wife I worked two jobs, 16 hours a day for months to be buy a car and afford a better life for us.' So, you have a very loving and a very strong
hard-working wife, and I hope you appreciate her. She said she will support you on your release.
28I received reports from the drug and alcohol clinical advisor and from a case manager at the Drug Court. Ultimately, Mr Howe, a DATC clinical advisor found that your drug habit was sufficiently severe to be linked to your offending and he believed that a Drug and Alcohol Treatment Order would be an appropriate way to deal with the problems that you have. The case manager, Megan Kew, believed you would not be suitable for a drug and treatment order partly because you cannot go back to Roxburgh House. The house is too small, and you do not have accommodation within the gazetted area. She did note that you have the support of your family and wife, but she was worried that you did not have good insight into your behaviour, particularly that your behaviour towards your wife and your sisters.
29You might believe that your behaviour to them has not been a problem but it is very clear to me Mr Hamad that something must have happened for sisters who clearly love you and a wife who clearly loves you to have reacted to your behaviour via a Family Violence Intervention Order. It is the experience of these courts that people who are using a lot of drugs, particularly ice, are very difficult to live with. They are moody and angry; they are violent often and they do not care about anyone except themselves, because all that matters to them, is that they satisfy their craving for drugs. In a way, it has been very good for you to have been in gaol for this long period of time.
30
You will be sent to emergency accommodation when you are released on this order, but it is not high standard accommodation. It will be difficult. There may be people in those areas using drugs and you must rely on your wife and on the
Drug Court treatment team to make sure you do not fall back into drug use. I have not referred yet to your criminal record.
31
There is an amount of violence in your record. You were dealt with in 2019 for unlawful assault, and then in the same year for intentionally causing injury and fighting in public causing terror, and also for criminal damage. The offending you have engaged in before was worrying but of particular concern for you is that it is clearly getting worse. You have to offend very seriously to come before the
County Court. You have now committed an offence for which the maximum penalty is 25 years. That is one of the highest penalties available under our criminal justice system. You have previously had to undertake enormous responsibility at a young age for your grandmother and your sisters. And while that must have extraordinarily stressful it is also to your credit that you were able to do this.
32
You are either going to get over the drugs, that almost destroyed your marriage, destroyed your relationship with your family, and saw you ending up in gaol for hundreds of days, or if you do not, you will spend many, many years going in and out of gaol. If you keep doing that eventually your wife is going to leave you, your sisters will not want to have contact with you, your grandmother may die while you are in gaol. You will end up a very sad and lonely man. You have a lot to lose
Mr Hamad. I hope you understand that. I am prepared to release you on a
Drug and Alcohol Treatment Order. It will not be easy. You will have to meet many, many appointments. You will find it annoying and difficult. But if you do not make a success of it, I am very concerned that as I have said you will simply spend more and more time in gaol.
33
In sentencing you I take into account your early plea of guilty. I am satisfied you have some remorse for your actions. I take into account your traumatic upbringing in both Iraq and Syria. I accept that the principles enunciated in the High Court decision of Bugmy have application in your case. The High Court recognise that young people who have been exposed to a great deal of trauma often have trouble maturing and continue to offend because they cannot learn from the lessons in life. I accept that you have done well in gaol. I accept that you have strong
pro-social support in the community from both your sisters and brother and especially your wife.
34I also received victim impact statements where both victims talked about the terrible emotional effect your offending had upon them. They are frightened, they relive the incident in the same way you relive the war zones you lived in, in Iraq and Syria. You had done that to two other human beings.
35I also take into account your relatively brief criminal history and the recommendation from Gina Cidoni that a drug and alcohol treatment order be imposed in your case as an appropriate way of trying to rehabilitate you. I therefore sentence you as follows.
36On Charge 1, you are sentenced to 18 months' imprisonment.
37On Charge 2, you are sentenced to 10 months' imprisonment.
38On Charge 3, you are fined $100.
39On Summary Charges 7 and 11, you are sentenced to one month imprisonment on each charge.
40On Charge 10, you are sentenced to two months imprisonment.
41The base sentence will be the sentence imposed on Charge 1.
42I order that six months of the sentence imposed on Charge 2 be served cumulatively or in addition to the sentence imposed on Charge 1. That gives a total effective sentence of two years. What is the PSD please Ms Dearman?
43MS DEARMAN: It's 367 days.
44
HER HONOUR: I declare that 367 days of that sentence has been served by way of pre-sentence detention. Now the way a drug and alcohol treatment order works Mr Hamad, is that it has two parts. The first is what is called the treatment and supervision part. This has some core conditions, basic conditions. These are that for the next two years while you are on this order, you must not commit any offence punishable by imprisonment. You must attend Drug Court when you are required to by the court. You must report to Melbourne Drug Court House within
two working days, that is by Wednesday of this week.
45You must report to and receive visits from members of the Drug Court teams. You must undergo treatment for drug dependency by the Drug Court. You must give any notice of a change of address at least two working days before the change to a specified Drug Court officer. You may not leave Victoria unless you have permission of the Drug Court. And you must obey all lawful instructions given to you by the Drug Court team.
46
There are now what are called program conditions. These are that you must submit for drug and alcohol testing as directed. You must submit to detox or other treatments as directed. You must attend vocational, educational and employment programs as directed. You must submit to medical, psychiatric and psychological treatment as directed. You are to reside where the court's direct you until further notice. You may not associate with Ramon Daniels, Matthew Hines, or
Kelly Long. You may not go to St Kilda. There is to be a curfew, you must be at your place of residence between nine at night and six in the morning.
47You are not to use a drug of dependence without lawful authorisation. You are also to do or not do anything else that the Drug Court considers necessary concerning either your drug or any alcohol use or the personal factors that the Drug Court considers contributed to your criminal behaviour. If you breach the drug and alcohol treatment order, you will be liable to serve the rest of the gaol sentence that I have imposed, less the pre-sentence detention.
48
Pursuant to s6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of three years and ordered you serve a minimum term of two years. All right, I think that is all I need to attend to. Do we have anyone from the Drug Court here? Hello, Ms Nguyen. What does
Mr Hamad do now?
49
MS NGUYEN: Hi Your Honour, I will be meeting Mr Hamad outside
Courtroom 1-8 and we can walk outside the County Court together and perhaps to Drug Court House.
50HER HONOUR: All right.
51MS NGUYEN: He's got an appointment today at 3.30.
52HER HONOUR: All right, thank you very Ms Nguyen. It starts today Mr Hamad, all right. Can you tell Mr Hamad, I am sitting in Drug Court for the next three weeks, so I know all about your Mr Hamad, and I particularly know about your lovely supportive wife, that you are so lucky to have. I will be watching closely to see how you go. This order is very, very important for you, it is going to affect how the rest of your life goes, all right? And you understand you cannot have any association with Ramon, Matthew, or Kelly, they are out of your life, all right?
53And the other thing Mr Hamad, you are going have to be talking to your case manager and to the Drug House counsellors and I am mentioning this because I think it might be a problem for you. You need to open and honest and you need to talk about your feelings, including talking about craving drugs if you are. It is much harder to give up drugs in the community than it is in gaol. Everyone understands that, but the most stupid thing you can do is not tell anybody about wanting drugs if you are, or using drugs if you are, because we rely on people's honesty. There is lots of drug testing and we will always know. All right, that will do, thank you very much. Mr Hamad needs to sign it please. Thank you.
54MR DEAN: Your Honour there's just one thing.
55HER HONOUR: What did I do?
56MR DEAN: Your Honour, I don't believe Your Honour announced the sentence on Charge 13, the assault with a weapon.
57HER HONOUR: I didn't either. All right, well look, you're quite right. The assault with the weapon, six months for that and in fact, and I will cumulate two months so that will be two years and two months. So it is two years and two months. Thank you very much Mr Dean.
58MR DEAN: May I approach Mr Hamad Your Honour.
59HER HONOUR: Of course.
60MR DEAN: Thank you.
61HER HONOUR: Thank you Mr Interpreter, you've been wonderful.
62INTERPRETER: My pleasure, Your Honour.
63HER HONOUR: I've been very, very impressed.
64INTERPRETER: It's my pleasure Your Honour.
65HER HONOUR: Yes, you're terrific.
66INTERPRETER: This is my 30th year servicing the court.
67HER HONOUR: Really? You can tell. You can tell you are clearly an expert thank you so much.
68INTERPRETER: Thank you, Your Honour.
69HER HONOUR: Thank you, so much, we've been very lucky to have you today.
70INTERPRETER: It's my pleasure Your Honour.
71HER HONOUR: A lot of Arabic interpreters are fantastic. Yes, I've always been very impressed, thank you.
72INTERPRETER: Thank you, Your Honour.
73HER HONOUR: And you did a terrific plea, I don't want to leave you out Mr Dean, all right.
74MR DEAN: Thank you, Your Honour.
75HER HONOUR: No, you did a great job. Yes Ms Dearman, thank you.
76MS DEARMAN: Your Honour in relation to the review hearing that is booked for tomorrow or Wednesday is it the same as standard County Court matters that the OPP books the interpreter for those hearings?
77HER HONOUR: I've got no idea. Anna, what do we do? Do we need an interpreter for Mr Hamad tomorrow?
78
MS NGUYEN: We may do. If an interpreter can't be arranged by tomorrow,
Mr Hamad can be reviewed on Wednesday instead just to give us some more time.
79HER HONOUR: Yes, that might be better.
80MS DEARMAN: Thank you, Your Honour.
81HER HONOUR: Let's do that, let's make it Wednesday so you're not under the pump too much, Ms Dearman, would that be better?
82MS DEARMAN: Yes, Your Honour, I'm grateful, thank you.
83HER HONOUR: Because we've got the judge's conference this week, I'm having to compress all the hearings into tomorrow and Wednesday, otherwise I'd give you more time.
84MS DEARMAN: Yes, Your Honour thank you.
85HER HONOUR: That's all right. Thank you, is there anything else I need to - I'll see you tomorrow, Anna. All right?
86MS NGUYEN: I'll see you tomorrow, Your Honour, yes.
87HER HONOUR: No worries. Thank you very much.
88MR DEAN: Thank you, Your Honour. If Your Honour pleases.
89HER HONOUR: Thank you everyone for their assistance in this matter and we will adjourn to 9.30 tomorrow morning, thank you.
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