Director of Public Prosecutions v Mohamed
[2021] VCC 482
•26 April 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-00277
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARVEY MOHAMED |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 April 2021 |
DATE OF SENTENCE: | 26 April 2021 |
CASE MAY BE CITED AS: | DPP v Mohamed |
MEDIUM NEUTRAL CITATION: | [2021] VCC 482 |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Aggravated burglary; causing injury intentionally; damaging property
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Hogarth v The Queen [2012] VSCA 302; DPP v Meyers (2014) 44 VR 486
Sentence:Total effective sentence of 3 years and 7 months imprisonment; non-parole period of 2 years and 3 months; $2,000 fine.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sonnet (For Plea) Mr P. Pickering (For Sentence) | Office of Public Prosecutions |
For the Offender | Dr M. Gumbleton (For Plea) Mr H. Hamka (For Sentence) | Milides Lawyers |
HER HONOUR:
1Harvey Mohamed, you have pleaded guilty on indictment to charges of aggravated burglary, causing injury intentionally and damaging property, all of which occurred on 1 May 2019.
2In sentencing you for your crimes I must have regard to the maximum penalties for each of the offences to which you have pleaded guilty. The charge of aggravated burglary carries a maximum penalty of 25 years imprisonment. The charges of causing injury intentionally and damaging property each carry a maximum penalty of 10 years imprisonment. These maximum penalties reflect the seriousness with which Parliament regards these offences.
3The details of your offending were set out in a document entitled "Summary of Prosecution Opening for Plea" dated 31 March 2021. This is what we call an agreed document and represents an acceptance by you of all of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
The Offending
4In short compass, in the mid-afternoon of 1 May 2019, the victim, Nicholas Cameron, was at his premises in Marin Lane, Maribyrnong, preparing to move house when he heard movement at his back gate and saw someone climbing over it. He went towards the gate and called out "Oi, what are you doing?"
5He then realised that there were in fact three people coming into the property and ran for the door of his house with the three offenders running after him. He did try to lock the door but was unable to turn to the key on the deadlock.
6Mr Cameron had a CCTV camera on the kitchen bench which recorded the entry of the offenders into the house and in pursuit of him. I have had access to this footage. The first and second offenders have not been identified by investigating police. You are said to be the third offender. You entered the house carrying a bicycle wheel in your right hand.
7As you entered, you smashed a glass door with that bicycle wheel, forming the basis for Charge 3, damaging property and, upon entry, Charge 1, aggravated burglary.
8All three offenders then chased Mr Cameron further into the house and into an area which is not shown on CCTV. Mr Cameron was then assaulted for approximately 15 to 20 seconds, during which he was hit all over the body with various objects. Mr Cameron recalled the bicycle wheel particularly and to you holding it above your head, "ready", in his words, "to whack me with it". Of course the aggravated burglary was complete by this time but your actions inside the premises inform the relevant intention, which is particularised as an intention to assault.
9All three offenders ceased the attack on Nicholas Cameron and left through the back door. On leaving, you used the bicycle wheel to break another glass door on the way out, which also forms part of Charge 3, damaging property.
10Police were called and attended at the premises, as did an ambulance. Mr Cameron was taken to hospital and suffered a broken right arm, described as a defensive injury, as well as multiple bruises and abrasions to his face and back, forming the basis for Charge 2, intentionally cause injury.
11You were identified as being involved in the offending as you threw the bicycle wheel into Mr Cameron's backyard and your fingerprint was later identified on this wheel. In addition, a black Mercedes-Benz was recorded on CCTV heading east towards Mr Cameron's address at the time of the offending on 1 May 2019. A vehicle matching the same description was used by you when you attended upon police a week later on 8 May 2019 for the purpose of arrest and interview. The CCTV recorded at Mr Cameron's premises was particularly clear in its depiction of you as the third offender. You are clearly undisguised.
12It was not suggested that you and Mr Cameron were known to each other. Whilst the reasons for your involvement are a little unclear, I am told that this entry and then attack on Mr Cameron was borne of an intention to retrieve property that belonged to the victim's ex-partner, which is somewhat at odds with the intention particularised as part of the aggravated burglary charge. The circumstances appear, at face value, to have a retributive element. Either way, this was not said to have been your issue. You simply should not have been there.
13I have referred to the maximum penalties attached to the offences to which you have entered your pleas of guilty. There is still a need within those thresholds to assess the objective gravity of the offending. I do see the criminal damage at the lower end. The same description does not fit the other two charges.
14In terms of the aggravated burglary, it is trite to say that it is a serious offence. General deterrence must have prominence in order to deter others from committing offences of this nature. I am assisted by the prosecution referring me to the decisions of the Victorian Court of Appeal, including that of Hogarth v The Queen [2012] VSCA 302 and DPP v Meyers (2014) 44 VR 486. I have had recourse to each of those decisions, which are familiar to me in any event. I have been assisted by the provision of current case summaries for the offence of aggravated burglary in the Victorian Sentencing Manual as provided by the prosecution.
15Further, in the decision of Meyers, the Court of Appeal referred to determining the appropriate sentence for an offence of aggravated burglary through an assessment of the seriousness of the offence and that decision included a number of non-exhaustive considerations as being relevant to such an assessment.
16In your particular case, the intent on point of entry was to assault Mr Cameron. It occurred during the day. It is likely that your intention was formed almost immediately prior to entry, the prosecution accepting that they cannot prove you had the requisite intent at the time you left your vehicle. The events which unfolded were relatively short-lived and you were clearly identifiable as an offender, as I have already outlined.
17It is accepted that you were unarmed until just prior to your entry, when you then obtained the bicycle wheel from Mr Cameron's rear yard. It is also accepted that the prosecution are unable to prove that you were aware of the precise nature of the weapons which were brandished by the other two offenders. These factors, in my mind, reduce the objective gravity of the charge of aggravated burglary.
18Be that as it may, this event involved three offenders on one man, axiomatically making Mr Cameron more vulnerable. Observationally, CCTV footage tendered would indicate the three of you were all of a relatively large build.
19You were also present for the physical assault on Mr Cameron. The injuries suffered by Mr Cameron were not at the lower end in terms of his broken arm and associated bruising and abrasions, representing multiple blows. He is perhaps fortunate that the injuries were not more serious given the circumstances in which they occurred.
20Whilst no victim impact statement has been filed, I have little doubt that observing three men climb over his back fence and then entering his home and subsequently assaulting him would have been a frightening event. It obviously occurred in his own home, which is an environment in which he is entitled to feel safe.
Plea of Guilty
21You have, however, taken responsibility for your wrongdoing through your plea of guilty. Your plea has clear utilitarian value in the time and expense it has saved the court and, importantly, it has avoided the need for witnesses, particularly Mr Cameron, to relive traumatic events through the court's process. The history of this matter reveals that your plea was at a relatively early opportunity, in the sense that you were originally charged with the offence of aggravated home invasion, with the matter resolving to the charges on the indictment on the eve of a bail application scheduled for 5 March 2021.
22In addition, your plea of guilty has occurred during the court's response to the COVID-19 pandemic and has additional utilitarian value in the certainty it has then given the parties, witnesses and, indeed, yourself.
23All of these matters will be taken into account in your favour.
Prior History
24You do have an admitted prior history of offending.
25Your first court appearance was at the Preston Magistrates' Court on 22 October 1997 in relation to charges of possess and use cannabis. At that time you were placed on an adjourned undertaking without conviction for a period of 12 months.
26On 29 July 1999 you appeared at the Heidelberg Magistrates' Court in relation to a charge of theft of motor vehicle and were again placed on an adjourned undertaking for a period of 12 months. This order was also made without conviction.
27On 27 April 2000 you appeared at the Preston Magistrates' Court for a charge of careless driving and breaching the undertaking that you had made to the Heidelberg Magistrates' Court on 29 July 1999. You were fined $350 with conviction.
28There was then a six year gap in your criminal history until you appeared at the Sale Magistrates' Court on 21 November 2006 in relation to possessing a prohibited weapon. On that occasion you were fined $400 without conviction.
29On 21 April 2008 you appeared at the Broadmeadows Magistrates' Court in relation to use abusive words in a public place and were fined $1,000 without conviction.
30There was then another significant gap in your criminal history. Relevantly, you appeared at the Melbourne County Court on 19 December 2013 in relation to charges of intentionally cause injury and recklessly cause injury. You were convicted and sentenced to 13 months imprisonment, of which nine months were suspended for a period of 12 months.
31Again relevantly, on 10 November 2015, you were placed on an adjourned undertaking for 12 months by the Melbourne Magistrates' Court in relation to a charge of unlawful assault.
32Three years later you appeared at the Melbourne Magistrates' Court, on 6 July 2018, in relation to charges of possess heroin, possess methamphetamine, possess cartridge ammunition, possess prohibited weapon, importing unauthorised explosives, deal with property suspected to be the proceeds of crime and committing an indictable offence whilst on bail. In relation to these offences you were convicted and placed on a community corrections order for a period of 12 months with conditions. You were subject to this order at the time of your offending on 1 May 2019, which is an aggravating feature to your offending.
33On 30 April 2019 you appeared at the Broadmeadows Magistrates' Court in relation to a charge of contravening family violence intervention order and were again placed on an adjourned undertaking. This was the day prior to the offences to which you have now pleaded guilty, making those matters in breach of your promise to the Broadmeadows Magistrates' Court to be of good behaviour, and represents an additional aggravating feature to your offending the subject of the indictment.
34Your criminal history is one which therefore represents offences of dishonesty, drug possession, weapon possession, violence and breaches of court orders. You are not to be punished for these offences a second time but your history is relevant to the weight in sentencing to be given to specific deterrence (that is, putting you off further offending), denunciation and indeed protection of the community.
35You have clearly had periods in your life when you have been able to comply with the expectations the community would otherwise have of you. By the same token, you have had periods where you have evidently had difficulty managing your own behaviour. I am told that on 1 May 2019 your offending coincided with a return to drug use, namely methamphetamine or ice, but it is hard to see the connection between that information and the offending itself.
Personal Circumstances
36I turn now to your personal circumstances, which were set out in a lengthy document tendered on your behalf.
37You are now 41 years of age.
38Your parents Albert and Jamileh were both born in Syria.
39Your father migrated to Australia in 1967, leaving your mother and six children behind. He returned to Syria in 1969 to make arrangements for all the family to travel back with him to Melbourne and to reside in commission housing in Collingwood, before ultimately being able to purchase a family home. Your mother worked as a seamstress and your father as a furniture polisher. Ultimately, there were nine children of your parents' marriage, of which you are the youngest. Your oldest sibling is aged 63 years.
40On leaving school you completed a civil glass traineeship. In the year 2000 you started working in the Telstra/Crazy John's store in Sunshine as a sales agent, where you met your former wife, Jessica Chillemi, who also worked in sales at that store. You married Jessica in November 2006. There are three children of that marriage: Noah, aged 13 years, Jacob, aged 11, and Isaac, aged eight years.
41You progressed at Crazy John's to the head office where you worked as a sales manager. In 2001, you started your own business in civil construction with a high school friend called Nick Neda. In time, that business grew from three persons to 41 staff. During this time you completed a full-time traineeship and Certificate IV in civil construction and earthmoving concrete construction. You worked in the construction industry from the years 2001 to 2011, during which you obtained further qualifications. You became the co-director of the company called Nedmo Pty Ltd, which involved machinery hire. You had a second job in the security industry. Unfortunately, Nedmo went into liquidation in 2011. Your pursued further business ventures and began working with your nephew, Ali Mohamed, on various NBN installation jobs and doing concrete construction work. You also invested in and worked in a nightclub.
42Unfortunately, your father died in 2012, which coincided with your first remand into custody.
43Upon release, you returned to work in NBN network concreting and various subcontract work.
44Your mother died in 2015 due to kidney failure. You were devastated by this loss and never returned to full-time work. Shortly after your mother's death the family home burnt down and much important family memorabilia was lost. Also in the same year, your relationship with Jessica ended.
45It was not that long after the loss of your mother, family home and marriage that you turned to the use of the drug ice. You did seek counselling for your drug use in 2017 to 2018 and undertook treatment at that time.
46You met your current partner, Kylie Sweet, shortly thereafter. She is not a drug user. In October 2018 Ms Sweet became pregnant and your daughter, Jamileh, named after your mother, was born in August 2019. At this point in time you were on remand for the matters to which you have now pleaded guilty and missed your daughter's birth. You have not been able to participate in your daughter's upbringing to date and Ms Sweet has had to manage this task on her own. I accept that this has been a significant burden on her and an additional burden on you whilst on remand, albeit it is a burden of your own making.
47Ms Sweet has provided a reference. Whilst your relationship commenced around 2018, she had known you for some 10 years and observed you both prior to your remand and during your remand period. She describes you as a good father to your three boys and as a family man and says that you have done your best to father Jamileh from your location. She sees you as using your time in custody to educate, reflect, detox and, importantly, to appreciate what you have waiting for you at home.
48For a period of your remand you were subject to the Corrections response to the COVID-19 pandemic. Generally, this limited some prisoner movement and access to treatment and courses. It did lead to a cessation of personal visits so that all contact with family occurred over a virtual medium. In your case, you instruct that you had four hours per day out of your cell for a period of about 11 months and no in-person visits for a period of 13 months, with Skype calls limited to once per week. You therefore have had limited actual contact with your daughter, other children and Ms Sweet. You also suffer from irritable bowel syndrome and at various stages have been concerned for your own welfare and your ability to access treatment whilst in custody.
49I accept that, in a general sense, these matters have made your remand period more difficult. You were fortunate, however, to have a billet's position, giving you more freedom than some and, given the materials tendered on your behalf, you were able to access some courses and programs.
50This has allowed you to use your time as wisely as you could in the circumstances. You maintained some drug counselling and have come to recognise that you simply cannot either return to or even dabble in drug usage. You have remained drug free whilst on remand and urine screens have been tendered on your behalf supporting that position. You have managed to complete a number of relevant courses to which I have referred. These courses include Keeping Your Cool, Ice and Me, 12 Hour Substance Use Program, Tuning into Respectful Relationships, An Introduction to Managing Anxiety and other skill-based programs.
51Upon your release, you have stable accommodation available to you with Ms Sweet and your daughter, Jamileh. You have maintained contact with your three sons and look forward to resuming your relationship with them. I accept that this gives you significant motivation to stay out of further trouble.
52In addition, you are able to return to full-time employment. A letter tendered from Sansa Building Group confirms there is a full-time subcontract available to you. The owner of that company, Peter Rujanoski, has known you since high school.
53Also tendered on your behalf was a letter authored by Mark Shehata. He also described you as a dedicated family man and that he observed you fall into drug use and abuse after the passing of your mother. He otherwise describes you as hard-working and a skilled civil construction foreman. In addition, he knows your three sons and notes that your eldest son, Noah, appears to be suffering from anxiety and panic attacks and has had difficulty leaving the house. You are keen to help your son, providing you with additional motivation to stay out of trouble.
54Given you have had previous periods of complying with community's expectations, your skillset, the availability of stable accommodation, employment and courses undertaken whilst in custody, together with the significant sanction you have already experienced with your remand, I am satisfied that your prospects for rehabilitation at this point in time are good.
Sentencing
55Both parties contend that a proper reflection of all relevant sentencing considerations calls for the imposition of a head sentence with a non-parole period. I am satisfied in all the circumstances of your case that there is a basis for an extended and supported transition back into the community.
56I have made the ancillary orders as sought for disposal of scheduled items.
57The basis purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have 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.
58I must also balance the interest of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure as far as possible that offenders are rehabilitated and are reintegrated into society.
59I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act1991, where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, as well as the principles of both totality and proportionality.
60I now turn to sentence.
61Charge 1, aggravated burglary, you are convicted and sentenced to three years and four months imprisonment. This is the base sentence.
62Charge 2, intentionally cause injury, you are convicted and sentenced to 12 months imprisonment, of which three months is cumulative on the base sentence.
63Charge 3, damaging property, you are convicted and fined the amount of $2,000.
64This makes a total effective sentence of three years and seven months imprisonment.
65You are to serve two years and three months before being eligible for parole.
66720 days are reckoned as having already been served.
67Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty you would have been sentenced to a total effective sentence of five years and two months imprisonment with a minimum of three years before being eligible for parole.
68Mr Pickering, anything I have missed?
69MR PICKERING: Nothing you missed, Your Honour. My typing was not quite fast enough. The non-parole period, if you could repeat that for me? Two years and?
70HER HONOUR: Three months.
71MR PICKERING: Three months. If Your Honour pleases.
72HER HONOUR: Mr Hamka, anything I missed?
73MR HAMKA: No, Your Honour. All I missed was what Mr Pickering said, that is all.
74HER HONOUR: He did not hear the non-parole period. So he was asking me to repeat it.
75MR HAMKA: I did, thank you, Your Honour. That's fine, thank you, Your Honour.
76HER HONOUR: All right. Well, I will give you the opportunity to speak with your client in private. If that can be done virtually. I thank you, Mr Pickering, for your assistance.
77MR PICKERING: Thank you, Your Honour.
78HER HONOUR: And yours too, Mr Hamka.
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