Director of Public Prosecutions v Ibrahim
[2020] VCC 2048
•16 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01189
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERKIN IBRAHIM |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2020 | |
DATE OF SENTENCE: | 16 December 2020 | |
CASE MAY BE CITED AS: | DPP v Ibrahim | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2048 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of aggravated burglary – offender attended home of victims (his estranged sister and her husband) in state of rage over a grievance concerning posts that she had made on Facebook – when refused entry and his sister stated that she would call the police, the offender picked up a number of large rocks and aggressively threw them through the glass window adjacent to the front door, shattering the window and causing damage to the inside walls of the house – offender’s sister fled over rear fence whilst offender and his daughter (co-offender, dealt with in Magistrates’ Court) barged into the house and offender aggressively demanded to see his sister, before offender’s son encouraged him to leave – damage of $4,889 caused – early plea of guilty – no prior convictions – history of depression – good work history and evidence of prior good character – good prospects of rehabilitation – evidence of remorse –
Sentence: Convicted and sentenced to a Community Correction Order for 2 years’ duration with conditions to engage in mental health treatment, undergo an anger management program and to donate the sum of $2000 to Safe Steps Family Violence Response Centre Inc.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E Maguire | Solicitor for Public Prosecutions |
| For the Accused | Mr J Singh | Mr A Isaacs |
HER HONOUR:
1 Erkin Ibrahim, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment.
2 The circumstances of your offending are detailed in the Amended Summary of Prosecution Opening (Exhibit A). In short, in the context of a significant number of years of estrangement from your sister, Musteyde Boudsocq, who is your victim in this matter and married to the secondary victim, Phillipe Boudsocq, and in a fit of rage over some Facebook posts made by your sister, on 31 May 2020 you made 10 telephone calls to her mobile telephone in the space of four minutes. All of these calls were unanswered. Approximately half an hour later, at 5.34pm, accompanied by your daughter, Shenel Ibrahim, who is a co-offender, and your son, Levent Ibrahim, you drove to your sister’s home and went to the door and rang the front door bell.
3 Your sister observed you and, when you aggressively demanded that she open the door, she told you to go away or she would ring the police. Internal CCTV footage (Exhibit “B”) at your sister’s home, picks up very loud and frightening aggressive speech by you, and then very loud sounds of glass smashing, as you threw a number of large rocks from a nearby garden bed at the glass window beside the front door, shattering it and causing extensive damage to it and the inside walls of the house.
4 Your sister is seen running away from the front door and she fled out the back of the house and jumped a fence into a neighbour’s yard, where she called 000 for assistance. Her husband, Phillipe, was forced to take cover behind a wall near the front entrance as the glass shattered and flew inside his home. Your daughter, Shenel Ibrahim, is seen on the footage barging past Mr Phillipe Boudsocq, who is walking backwards away from you, asking what you are doing. At all times, he appears to be endeavouring to calm you down and to be unaware of why you have invaded his home.
5 He puts his arms outstretched trying to calm you down, as you resist and keep yelling in a violent and irrational fashion, while your daughter is seen charging around the house both downstairs and upstairs looking for your sister. When she comes downstairs, she joins in with you, shouting and demanding to know where your sister is. Your sister’s husband appears to be perplexed about why you are there and, at one stage, appears alarmed and says “don’t hurt me, don’t hurt me”, and in response you say “I’m not fucking hurting you, alright”.
6 There is then a great deal of unintelligible shouting, particularly from you, about what your sister has done, and your daughter says such things as “she’s fucked in the head. We all know that”. You continue to rant about what your sister has apparently written on Facebook. Ultimately, your son, Levent, intervenes and encourages both you and your daughter to leave, which you then do.
7 Police attended the home of your victims at approximately 5.45pm, took photographs and blood samples, which apparently came from an injury to your left hand caused when you smashed the window. They attended your home at 6.12pm, where you told police that your sister bullies your family on social media and everyone is getting upset, and you went around there to talk to her. You claimed falsely that her husband had come out and grabbed you by the throat, but did ultimately tell police that you were sorry about what you did, that you did not want that to happen, and had felt very angry.
8 Following your interview with police on 31 May 2020, you were charged with the offence and granted bail. You pleaded guilty at a very early stage, at a committal mention on 29 September 2020, and the matter proceeded by way of straight hand-up brief for plea hearing at the County Court on 4 December 2020.
9 You are presently aged 55 years, having been born on 21 December 1964. You come before the court with no prior criminal history and no subsequent criminal offending or matters pending.
10 In a plea on your behalf by Mr Singh, the court was told that you were the fourth of seven children and migrated to Australia with your parents and siblings in 1970. You grew up in the Sunshine area and attended school until you completed Year 10, following which you commenced a carpentry apprenticeship and became registered as a builder. You worked as a builder with your own business until you were approximately 40 years old. At that stage, you suffered “a nervous breakdown”.
11 You presented to your general practitioner, Dr Foenander, in September 2006 with a major depressive episode. In a report dated 30 November 2020 (Exhibit “1”), Dr Foenander noted that you had severe mood disturbance, shakiness and agitation, suicidal ideation, anergy and insomnia. He noted that you had unresolved grief associated with your father having died from cancer some 20 years earlier, which you perceived had led to a significant disruption of the family unit, resulting in disharmony. Dr Foenander recorded that you perceived that your sister, who is the victim in this offending, had tormented you and undermined your connection and contact with your elderly mother, who is a diabetic and now suffering from dementia, and that you had had little contact with her since you were diagnosed with depression in 2006.
12 Dr Foenander noted that, although you are supported by your wife of many decades and your son and daughter, to whom I have referred, you have required medication for your depression and anxiety ever since 2006, which fluctuated from time to time, although over the last three years you have been able to reduce your antidepressant medication to a low level with no adverse effects, which is achieving a more stable level of functioning. With the help of such medication, Dr Foenander noted that you were able to continue working as a carpenter albeit in an employed rather than self-employed capacity.
13 It is apparent that the immediate trigger for your offending behaviour was a post on Facebook by your sister, Musteyde Boudsocq, which was critical of her three brothers (you included), their wives and grandchildren not caring about or visiting your elderly mother. This was followed by one of the sisters-in-law of your victim posting a photo of herself with the other two sisters-in-law, commenting on their closeness, and then two of the sons of that sister-in-law commenting on how much they loved their favourite aunties. Your victim, Musteyde Boudsocq, then followed the last message with another on 31 January 2020, referring to her three sisters-in-law featured in the photo as “bitches”.
14 It was following this post that you repeatedly tried to ring your victim, with whom you had apparently had had no contact for the last 15 years, and then turned up at the home of her and her husband and committed the offence.
15 Your behaviour in smashing your way into your estranged sister’s home and presenting such a violent and threatening presence as to make her, a 51 year old woman, flee into her back garden and jump over a fence, shows a disgraceful lack of control of your emotions and an extraordinarily bad example of behaviour to your son and daughter who were with you. Not only was it frightening and disturbing for your estranged sister and her husband, but no doubt extremely embarrassing for them having their neighbours aware of your violent, intrusive presence and the need for your sister to seek refuge in one of their homes so that she could call the police.
16 Your offending behaviour strikes at the heart of a person’s entitlement to feel safe in their own home and must be denounced by this Court. No provocative comments or posts on social media could ever justify anyone taking the law into their own hands and behaving in such an uncivilised fashion.
17 Having said that, I recognise that the posts of your sister apparently came in the context of an unhappy, lengthy period of bad relations between you and other members of your family, on the one hand, and her, on the other hand. As your counsel appropriately commented in his submissions, your sister told police in a statement on 4 June 2020 that, although she was still petrified and could not sleep, she did not want anything bad to happen to you, but wondered why you did not just walk off. She stated that she did not want revenge and that, if it were up to her, she would not be pressing charges, but it was now in the hands of the police. All she wanted you to know was that you cannot resolve issues with violence.[1]
[1]Depositions page 21
18 In the circumstances, that seems to be a generous attitude of your sister, and she has apparently elected not to make a Victim Impact Statement. As I commented at the plea hearing, perhaps now is the time for you to try and behave in an adult fashion and try to begin to heal this poisonous rift which has grown up between you and your sister. I note that, since the plea hearing, you have heeded my comment and a letter of apology to your sister has been emailed to my Associate (Exhibit “4”). I ask that it be forwarded to her by the prosecution. Hopefully your expressions of contrition in this document will go some way to assuaging the fear and other adverse psychological consequences which were described by your victim in her statement to police.
19 It is to your credit that you pleaded guilty at the earliest opportunity, and I accept Mr Singh’s submission that your plea is a truly remorseful one. In your record of interview, you told police that you were sorry for what you had done, wished that you had not done it, it was stupid of you and you feel bad about it. I further note that Dr Foenander, in his report, stated that you now present as “a broken man, deeply remorseful for his actions”.
20 A report was also tendered on your behalf from Mr David Sullivan, forensic psychologist, dated 27 November 2020 (Exhibit “2”). Mr Sullivan had seen you on two occasions, 18 June 2020 and 23 November 2020, and your wife was present on those occasions. He noted, as Dr Foenander had, that, apart from the dysfunctional long-term relationship with your sister who is the victim, you had a long history of anxiety and depression and there were other ongoing stressors in your life. These included your mother’s dementia, a brother who lives with your mother who is unable to work because of injuries he received in a motor vehicle accident a year ago, another older brother who has been diagnosed recently with stage 3 cancer for which he has had surgery and is undergoing chemotherapy, and the fact that your wife’s mother also has dementia and Parkinson’s Disease and requires a lot of care.
21 Mr Sullivan considered that your scores on testing for depression and anxiety suggested an extremely severe disorder and, indeed, Dr Foenander had noted that from July 2020 he had urged you to double your dose of antidepressant medication and undergo supportive counselling with a mental healthcare plan.
22 Mr Sullivan considered that both your depression and anxiety indicated that therapeutic treatment was warranted. He stated that you were at a loss to say what caused your entirely out of character, inappropriate, disproportionate and excessive reaction to your sister’s posts on Facebook. He noted that your immediate family was stable, as was your employment, and you had no aberrant or deviant personality dysfunction and appear to have reacted disproportionately to the distress of both your daughter and wife from the Facebook posts.
23 He described you as trying to obtain an immediate resolution of a longstanding and seemingly intractable family dispute and becoming enraged when your sister refused to speak to you. He considered that you are a practical man, who is not confident or articulate, and were neither intellectually or psychologically well-equipped to manage the provocation you received. He stated that there is nothing in your history to indicate that you have behaved in this aberrant fashion in the past, and he considered that you were dismayed, confused and distressed by the way you had behaved, and had expressed remorse in your record of interview and to him.
24 He considered it likely that you will continue to suffer a moderate to severe major depressive disorder indefinitely and would probably require antidepressant medication for the rest of your life, but noted that given your lifelong responsible and stable conduct, stable marriage and work situation, there was little risk of you engaging in inappropriate social, unacceptable or criminal conduct in the future. However, he did consider that perhaps monthly psychological treatment over the next 6 to 12 months might contribute to you gaining greater insight and reducing the risk of any recurrence of dysfunctional impulsive behaviour.
25 Mr Ibrahim, although the conduct for which I must sentence you is violent and antisocial and serious, there is a very substantial body of material before me that suggests that this is out of character for you. Your long-term general practitioner, Dr Foenander, states that he was shocked and disbelieving when he became aware of the details of the offending, as you have always been a composed and courteous patient. I have no doubt from Dr Foenander’s report that you have taken this criminal charge to heart and have been very distressed when you reflect upon your behaviour, a matter that was commented upon also by Mr Sullivan.
26 Eight character references were tendered as Exhibit “3”. All of the authors write in their various ways of how shocked they were upon learning that you had been involved in anything violent or criminal, as you have always been a decent, hardworking, kind, generous and caring man who is well-respected in the community. They also comment about the impact that reflecting upon your offending has had upon you, that you have become withdrawn and emotional and very distressed about having behaved in the way that you did.
27 I accept that that is so, and I also accept that you were a person of prior good character. Your acceptance of responsibility for this behaviour and your true remorse, coupled with a willingness to seek ongoing treatment, leads me to believe that your prospects of rehabilitation are extremely good and that it is unlikely that you will be involved in anything of this nature again.
28 It is plain from the material before the Court that, after migrating from Cyprus due to the difficult Turkish/Greek dispute there, you arrived in Australia not being able to speak English and then lost your father when you were still a teenager. Nevertheless, you have shown strength of character by having an excellent work history. You have clearly been very well-regarded in the wider community, despite having struggled with depression for nearly one and a half decades. It seems that on the background of a longstanding family dispute with your sister, who is the victim, there were a number of other stressors in your life at the time, and that out of misplaced loyalty to family members you completely and utterly overreacted to what you perceived to be criticism or your lack of care for your mother, and then a derogatory remark about your much beloved wife and other sisters-in-law. I accept that your offending behaviour was not premediated, but occurred in the heat of the moment. I believe that you can genuinely see how childish and inappropriate your behaviour was and you have indicated to the Court your deep regret for it.
29 The maximum penalty of 25 years’ imprisonment for aggravated burglary indicates how seriously our legislature regards this offence. Generally, a term of imprisonment would be imposed for it. However, notwithstanding that it was a nasty episode, your counsel has persuaded the Court that the sentencing objectives of denouncing your conduct, deterring others and imposing just punishment can be satisfied by a Community Correction Order.
30 I have taken into account your long-term mental health issues and the other stressors impacting upon you at the time of offending and the fact that you have been seeking treatment by way of medication and counselling since that time. I consider on the material put to the Court on your behalf that your risk of reoffending is low and, given your long-term mental health history, sincere remorse and embarrassment about your appalling conduct, there is no need for any significant emphasis upon specific deterrence, particularly given your prior good character and the lack of subsequent offending. However, it is appropriate to ensure that you continue to undergo treatment for your mental health issues with Dr Foenander and Mr Sullivan and I also consider it desirable that you should undertake an anger management program. I also consider it appropriate exercise the discretion in section 48 of the Sentencing Act to require you to make a donation to an organisation which deals with the fallout from family violence. As unpaid community work is currently suspended due to the pandemic, I do not propose to order such condition. I note that in an assessment report dated 7 December 2020 (Exhibit “C”), you have been assessed as suitable for a Community Correction Order with a sole recommendation for programs to reduce the risk of reoffending.
31 On one charge of aggravated burglary, you are convicted and sentenced to undertake a Community Correction Order for a period of 2 years. The core conditions of the order are as follows:
· you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
· you must comply with any obligation or requirement prescribed by the regulations;
· you must report to, and receive visits from the Secretary during the period of the order;
· you must report to the Sunshine Community Corrections centre within 2 clear working days after the order coming into force;
· you must notify the Secretary of any change of address or employment within 2 clear working days after the change;
· you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
· you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
32 In addition, I order the following special conditions:
(a) that you continue to undergo mental health treatment with Dr Foenander and Mr Sullivan as recommended by such treating practitioners.
(b) that you undergo a program to reduce reoffending, namely, an anger management program.
(c) that pursuant to section 48 of the Sentencing Act, you make a donation of $2000.00 to Safe Steps Family Violence Response Centre Inc at GPO Box 4396, Melbourne VIC 3001 by 30 January 2021 and forward a receipt of such donation to both the Court and your case manager.
33 Mr Ibrahim, I can only make this order if you consent to it. Do you consent?
34 OFFENDER: Yes, Your Honour.
35 HER HONOUR: Pursuant to section 86 of the Sentencing Act, I order that you pay compensation in the sum of $4889.70 to CommInsure, Level 5/2 Dawn Fraser Avenue, Sydney Park, NSW 2127.
36 Pursuant to section 6AAA of the Sentencing Act, I state that had it not been for your plea of guilty, the sentence imposed would have been 18 months’ imprisonment, with a non-parole period of 9 months.
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