Director of Public Prosecutions v Haydar El Hassan
[2023] VCC 33
•20 January 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-00736
Indictment No. J13296807B
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAYDAR EL HASSAN |
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JUDGE: | HER HONOUR JUDGE CARLIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 January 2023 |
DATE OF SENTENCE: | 20 January 2023 |
CASE MAY BE CITED AS: | DPP v Haydar El Hassan |
MEDIUM NEUTRAL CITATION: | [2023] VCC 33 |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: Sexual assault; plea of guilty; delay between offending and sentence; good prospects of rehabilitation; objective seriousness of offending.
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Cases Cited: Worboyes v The Queen [2021] VSCA 169
Sentence: 18 month Community Corrections Order without conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Pezzimenti | Ms A. Ruberto |
For the Accused | Mr N. Howard | Ms R. Rueger |
HER HONOUR:
Introduction
1Haydar El Hassan, on 8 September 2022 you pleaded guilty to; one charge of Sexual Assault contrary to s40 of the Crimes Act 1958 (Vic). This offence carries a maximum penalty of 10 years' imprisonment.
2A plea on your behalf was conducted before me today and it now falls to me to sentence you for your conduct. Both, your counsel, Mr Howard, and the prosecutor, Ms Pezzimenti submitted that a community correction order was appropriate and within range.
3In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[1] Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
[1] Section 5(2) of the Sentencing Act 1991.
Circumstances of the offending
4The agreed facts upon which I sentence you are set out in the Summary of Prosecution Opening.[2] In short you and the victim Lucy MARCOMBE[3] met via the online dating application 'Tinder' on or around 10 May 2018. At that time you were 26 years old, and she was 30.
[2] Exhibit A on the plea
[3] A pseudonym. To ensure there is no identification of a victim of a sexual offence, these published reasons for sentence have been anonymised by the adoption of a pseudonym in place of the name of the victim.
5On 12 May 2018 you and MS MARCOMBE exchanged text messages and arranged to meet at the Bayview Eden Hotel which is located at 6 Queens Road, Melbourne for what was described in the messages as a 'chill out'. MS MARCOMBE arrived at the hotel at approximately 1.15 in the morning on 13 May 2018 and met you. You paid for a room booking and at 2.02 am you and MS MARCOMBE entered the room together. The two of you talked in the room for about five minutes before going into the bathroom to have a cigarette.
6You went back to the main room before MS MARCOMBE did. When MS MARCOMBE returned to the main room you had undressed to your boxer shorts and were lying on the bed. She lay down on the bed next to you. You put your arm around her to which she replied 'back off, no, don't touch me'. You said 'yes' and MS MARCOMBE said 'no'.
7You then grabbed MS MARCOMBE by her hair and forced her to the side of the bed. You sought to force her onto her knees, saying 'Get on your knees'. MS MARCOMBE laughed and said 'Not happening'. You said 'Get on your knees, you'll do as you're fucking told' and MS MARCOMBE replied 'Good luck with that, I never do what I'm told'.
8Because you had hold of her hair MS MARCOMBE was in fact forced to kneel down on her knees. You then shoved two or three fingers into her mouth and down her throat, causing her to have a 'gag' reflex. You hit the roof of her mouth when you did this causing her to cry and gag. [Charge 1 – Sexual Assault]
9You took your fingers out from MS MARCOMBE’s mouth but did not let go of her hair and said, 'I'm going to face fuck you'.
10Finally you let go of MS MARCOMBE. She immediately grabbed her shoes and jacket and ran out of the room. CCTV footage shows her waiting for a lift alone whilst trying to put her shoes on at 2.39 am.
11MS MARCOMBE left the hotel and over the next hour or two texted and called a friend Melisa TRAJKOVSKI to complain about what you had done.
12You also sent several text messages to MS MARCOMBE after she had left. The first at 2. 54 am asked 'Hey you ok?' At 3.29 pm and 3.30 pm you sent text messages apologising and saying you didn’t mean to hurt her. At 3.33 pm she responded saying 'My throat is killing me I feel violated'. You sent further text messages saying 'I'm so sorry, I honestly didn't mean to' and then 'Please accept my apology'.
13Later that day you attended the Moorabbin Police Station to make a report of blackmail by MS MARCOMBE. As I said during the plea, it is hard to know what to make of this, whether it was a genuine complaint, or you, essentially, trying to get in first. You made a statement to police and MS MARCOMBE was interviewed but she was never charged. As I also said during the plea because of the uncertainty surrounding this aspect of the case, I will treat it as a neutral factor.
14On 16 May 2018 MS MARCOMBE attended at the Moonee Ponds Police Station and made a formal complaint about the events on 13 May 2018.
15On 18 May 2018 she attended at the Victorian Institute of Forensic Medicine where she was examined by Dr Morris Odell.
16Dr Odell took photographs of injuries that he observed and they were as follows: a reddened area on the soft palate at back of the roof of her mouth, a healing tear of the mucosa which is the lining of the inside of her mouth, and then several bruises, one on the left lower upper arm, one on the middle left buttock and a complex of bruises on the back of the left calf. All I can say about the bruises is that they are consistent with there being some, what could generally be described as rough handling, but otherwise I have no information as to how they might have occurred.
17On 24 May 2018 you were interviewed at the Moorabbin Police Station. You provided a 'no comment' response to the allegations.
Your personal circumstances
18I am going to turn to your personal circumstances. These were outlined in written defence submissions dated 13 January 2023 and supplemented by oral submissions today.
19You are now 30 years old. You were born in Australia. Your parents came to Australia from Lebanon and are devout Muslims. You have two younger brothers and a younger sister. Although your family relationships are strong and stable, apparently these proceedings have caused difficulties. Your parents consider you have brought shame on the family and are very disapproving. You have been disinvited from certain religious and cultural events and that has been a burden for you to bear.
20You completed Year 12. After school you went on to complete a Certificate III in plumbing and a Certificate IV in cabinet making. You have a strong work history and have had stable and consistent employment in your adult life. You started working as a cabinet maker in 2011 and as a plumber in 2018. You have been full time employed as a plumber for four years. You also work as a self-employed plumber on weekends.
21You support your family financially when you can.
22You have no medical issues and no mental health issues apart from the fact you have been somewhat depressed by these proceedings and have had 12 sessions with a psychologist in connection with them. You have indicated that you are willing to commit to further consultation with a psychologist in the future, however, no psychological report was provided to the court.
23You have a healthy social life and numerous close friends.
24You have had no involvement with police or courts before this matter, and nothing since.
25There were six character references provided to the court.
26Your employer of four years and friend, Mr Pascal Harb, spoke highly of your skills as a plumber. He said that you were mature and supportive as a colleague and friend, that you were disciplined and kind. Mr Pagonidis, a long term close friend. said that you were honest and loyal. Another friend, Mr Lyle Rohde, said that you were honest and had strong morals. Your neighbour, Ms Stephanie Mavros, said that you are trustworthy and respectful. Your former girlfriend, Ms Neophetou, said that you were someone that she can rely on go to with any problem. Ms Kovacevic, another former girlfriend, described you as kind and respectful.
27A common theme across these character references was that your referees were surprised at your offending and found it out of character.
Objective gravity of your offending and moral culpability
28Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. The maximum penalty of 10 years for your offence reflects its inherent seriousness. That said, there is obviously a wide spectrum of seriousness within any offence and yours is no exception.
29Your offending was made worse by the fact that your sexual assault was accompanied by violent and aggressive behaviour. Your victim was vulnerable by virtue of being a female alone with you in a hotel room very late at night. You refused to take no for an answer and displayed, as the prosecutor said, a real sense of entitlement. You thought only of your own wants and desires, not the victim’s, and were prepared to use force to get what you wanted. It was very frightening and serious conduct.
30On the other hand I accept that there was no pre-planning; rather what you did was spontaneous and relatively short lived. You let the victim leave and apologised afterwards, although it is not clear whether you were genuine or simply trying to prevent the matter going any further.
31All up, I consider your offending to be somewhat less than the mid-level of seriousness for your offence and your moral culpability likewise.
Impact of your offending
32I am required to take into account the impact of your offending on your victim and her personal circumstances.[4]
[4] Section 5(2)(daa), (da) and (db).
33MS MARCOMBE read out her victim impact statement to the court. I acknowledge her bravery in doing that. She feels that night has affected her ability to form healthy relationships and to trust men. She experiences flashbacks and panic attacks and has been diagnosed with depression and anxiety.
34The offending has impacted her relationship with her son, she pushes him away and does not feel comfortable discussing it, although he can tell something has happened.
35Immediately afterwards she had bruises and soreness, particularly her throat. She is still experiencing the physical effects of your offending. She says she still cannot eat properly due to the injury to her throat and her hair has not completely grown back.
36In terms of the financial effect, she moved house out of fear of you and has paid out of pocket fees for private GP visits and counselling. Since your offending she has struggled to socialise and stay employed.
37It is obvious your behaviour has had far reaching effects.
Current sentencing practices
38To promote consistency of approach in sentencing, particularly the application of relevant principles, I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.
39I was not referred to any comparable cases by either counsel. Mr Howard submitted that offending of the gravity of yours would commonly be dealt with in the Magistrates' Court and I accept that that is the case.
40The most recent Sentencing Advisory Council Snapshot (August 2021) indicates that the most common sentence in the higher courts, which includes this court, for the offence of sexual assault over the five years between July 2015 and June 2020 was an immediate term of imprisonment with the next most common sentence being a community correction order. This reflects the disparity in seriousness of the offences and in the circumstances of the offender.
41Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Plea of guilty, co-operation and remorse
42You are entitled to a discount in your sentence for the fact you have pleaded guilty.
43You were originally facing much more serious charges of rape. In 2019 you made an offer to plead guilty to the charge before me and that offer was not accepted until the first day of trial on 8 September 22, which is when you pleaded guilty. You therefore can be taken to have pleaded guilty at a very early stage.
44In pleading guilty you facilitated the course of justice and took legal responsibility for your crimes. Ms Pezzimenti, I can see you're puzzling.
45MS PEZZIMENTI: Sorry, yes, Your Honour. Just in terms of the early plea it's my understanding it's understood and it is agreed that the plea is not an early plea. There may have been some discussions at an early stage but we don't have – and my learned friend also doesn't have a particular date when those discussions were had and what the substance of them was and whether or not it's the same, effectively, resolution as what's resolved today so.
46HER HONOUR: I understood Mr Howard to say that – and I may have misunderstood him, that he became involved in 2019 - - -
47MR HOWARD: Yes.
48HER HONOUR: - - - and that he made an offer to plead guilty to that sexual assault or a charge of sexual assault and it was rejected up until the first day of trial.
49MR HOWARD: That's correct.
50MS PEZZIMENTI: Whether it's the same resolution in terms of substance as to how it's resolved today or not though is the question and I – we don't have any specific detail about that. I don't take any issue with the fact that there may have been some discussions, I'm not in a position to, I only became involved in this – and I accept that my learned friend says that he's had those discussions.
51HER HONOUR: I thought he made an offer, I thought that's what he said.
52MR HOWARD: Yes.
53HER HONOUR: And he is indicating he did.
54MR HOWARD: And I said as an officer of the court I stand by that word.
55HER HONOUR: Yes.
56MR HOWARD: That in fact I did.
57HER HONOUR: Yes.
58MS PEZZIMENTI: I understood that in the submissions it was conceded that it wasn't an early plea, in the actual written submissions .
59HER HONOUR: Well he may have said that but in my view if he made an offer and he has just reinforced that he was involved and did make that offer in 2019, that is a relatively early plea.
60MS PEZZIMENTI: Yes, Your Honour.
61HER HONOUR: What I have said is at a very early stage.
62MS PEZZIMENTI: Yes.
63HER HONOUR: Well it still is. I mean considering four years have elapsed it is an early stage if an offer was made in 2019.
64MS PEZZIMENTI: Yes, Your Honour, I won't take it any further.
65HER HONOUR: In pleading guilty you facilitated the course of justice and took legal responsibility for your crimes. You also spared your victim and witnesses the ordeal of coming to court to give evidence for a second time. MS MARCOMBE and her friend and the informant did give evidence at the committal so they did give evidence once, but by pleading guilty to this charge you at least have spared them the ordeal of giving evidence for a second time at trial.
66Moreover, our Court of Appeal has repeatedly emphasised the high values of pleas of guilty entered during the pandemic and the need for sentences to reflect this.[5] That applies to you. That is, you get an extra discount because you are pleading guilty during the pandemic.
[5] For example Worboyes v The Queen [2021] VSCA 169 at [39].
67Mr Howard submitted that you were also remorseful. You did send MS MARCOMBE a series of text messages immediately afterwards, as I have already said. However, and again as I have already said, your motive for doing so is unclear, particularly since you later reported her to the police for blackmail. There is no other record of you indicating remorse, including during your community correction assessment. On balance, I am prepared to accept that your offer to plead guilty to a sexual assault in 2019 and then subsequent plea of guilty to that charge last year does indicate remorse and that is in your favour.
Your character and risk of reoffending
68As I have said you have no prior convictions and nothing since. You are entitled to be sentenced as a person of otherwise good character. You have a good employment history and no issues with drugs or alcohol.
69As I have said, there were six character references and they all spoke very highly of you and also all indicated that the offending was not in character with the person they knew. I accept what they say insofar as what they know of you. In other words, the person they know is not someone who would have committed the offence to which you have pleaded guilty. However obviously they did not know that particular side of you.
70Given your history, that is no other involvement with the law at all, and the character references, that is people who know you who speak highly of you, I am prepared to accept that the events of this night were a one off and that you have been significantly affected by the subsequent court proceedings and are unlikely to offend again. In other words your prospects for rehabilitation are good.
Other mitigating factors
71I take into account the significant delay. It has been more than four years since the offence was committed to you being sentenced for it. This delay has not been of your doing. There have been numerous court appearances, COVID had a big role to play. If there had been an earlier acceptance of the offer to plead guilty to sexual assault, this matter could have been finalised in 2019.
72In saying that I am not being critical of the prosecution, it is just a fact. In all that time you have had the worry of these proceedings hanging over your head, much as they have also been hanging over the head of MS MARCOMBE.
73In one way the delay has worked to your advantage and that is because you have been able to demonstrate that you have not reoffended in all that time and that has assisted you in terms of sentence.
Purposes of sentencing
74I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
75General deterrence and denunciation are the principal sentencing considerations in your case. Sexual assaults of women by male perpetrators are a scourge on our society. It is necessary to deter others like minded from behaving as you did on this night. No matter how you read the situation, you were not entitled to do anything MS MARCOMBE did not want to do.
76I have had you assessed for a community correction order and you have been found suitable and indicated your consent. I am satisfied that all the relevant sentencing purposes can be met in your case by the imposition of a community correction order.
77I have a discretion whether or not to record a conviction for the offence. In exercising that discretion I must have regard to all the circumstances of the case including the nature of the offence, the character and past history of you and the impact of a conviction on your economic or employment prospects.[6]
[6] Sentencing Act (n 4) s 8.
78Mr Howard indicated a concern that you had that if you were convicted it may affect your future employment prospects as a plumber or indeed in your other trade and he also indicated that there was a concern that if you were convicted that it may have consequences within your religious and cultural community in terms of how you are regarded and indeed that it may affect your prospects of getting married in the future. I take those matters into account.
79I have decided that I can impose a community correction order without a conviction in your case, so you will not have a conviction on your record.
Sentence
80On the single charge of sexual assault – and I will ask you to stand up now please – without conviction I sentence you to a community correction order which will last for one and a half years, that is 18 months.
81You are to report to the Dandenong Community Correctional Centre by 4 pm on 20 January 2023.
82MR HOWARD: That’s today, Your Honour.
83HER HONOUR: Let me just check what they have said there.
84MR HOWARD: And that would be three minutes ago.
85HER HONOUR: Yes, 24th sorry, 24 January.
86MR HOWARD: Thank you, ma'am.
87HER HONOUR: As well as the mandatory conditions, and the mandatory conditions on every correction order include not committing another offence, not leaving Victoria without getting permission to do so, obeying all the lawful instructions and directions of the Secretary and other things, but as well as those mandatory conditions I have imposed some special conditions and they are as follows:
88You are to be under the supervision of a Corrections officer for the duration of the order;
89You are to perform 175 hours of unpaid community work over the period of the order, so 175 hours;
90You are to undergo mental health assessment and treatment as directed;
91You are to undergo programs to reduce reoffending as directed. Now what programs you are directed to undergo, if any, is a matter for the Forensic Intervention Service which will assess you. It may include the Sex Offenders Program or it may include another program, it is a matter for them. They will assess you and then you will be directed to undergo any programs that are thought desirable.
92I direct that all of the hours that you satisfactorily undertake in treatment and rehabilitation, so that is mental health assessment and treatment or any programs to reduce offending, all of those hours that you undertake in treatment and rehabilitation are to be counted towards the 175 hours of unpaid community work. In other words, they come off the 175 hours.
93Mr Howard will explain that order in more detail when we conclude today but can I just ensure that you understand the importance of complying with that order.
94OFFENDER: Your Honour, yes.
95HER HONOUR: You can take your mask off. Because, for example, there was some discussion about the fact that you were in a shopping centre at the appointment time. On its face that does not seem a wise thing to have done. You need to prioritise the corrections order.
96OFFENDER: Yes.
97HER HONOUR: Make sure that you really put it ahead of everything else. The reason is that if you breach the order that is an offence in itself so you will be charged with breaching the order and in addition you become liable to be re-sentenced for the original offence.
98The 18 months as I have already said is to give enough time for you to complete any programs that you are directed to do and I just reiterate that if you breach the order, re-sentencing you for this offence is a real option.
99I have not convicted you this time. If you were to reoffend or if you were to breach the order I would not be so optimistic about your future prospects and it is likely that any re-sentencing would be harsher than what I have done today.
100Do you understand?
101OFFENDER: Yes, Your Honour.
102HER HONOUR: Do you consent to the correction order?
103OFFENDER: Yes, Your Honour.
104HER HONOUR: All right, so we will print that order out and we will give it to Mr Howard and he can take it up to you and then you sign it and I sign it and then once that has happened you will be free to go.
105OFFENDER: Thank you.
106HER HONOUR: Just while that is happening, is there anything that I have omitted?
107MS PEZZIMENTI: No, Your Honour.
108MR HOWARD: No, ma'am.