Director of Public Prosecutions v Mourad
[2022] VCC 201
•28 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-00837
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NOHE MOURAD (AKA NELLE ELKHODR) |
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 November 2021 |
DATE OF SENTENCE: | 28 February 2022 |
CASE MAY BE CITED AS: | DPP v Mourad |
MEDIUM NEUTRAL CITATION: | [2022] VCC 201 |
REASONS FOR SENTENCE
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Subject: Criminal Law - sentence
Catchwords: pleaded guilty to burglary and theft - co- offender – deferral of sentence - offender now 48 - difficult home life became parentified with family responsibilities - drug use - family violence - post traumatic stress disorder - prospects of rehabilitation hopeful.
Sentence: 509 days imprisonment reckoned as time served
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Hamill and | OPP |
| (For Plea) | ||
| Mr J. Goetz | ||
| (For Sentence) | ||
For the Accused | Ms J. Prior | Law and Advocacy Centre for Women |
HER HONOUR:
1Nohe Mourad, you have pleaded guilty to one charge of burglary and one charge of theft. These charges resulted from events in which you participated on 14 April 2017 in the company of others.
2A friend of yours, Omar Tiba, had been in contact with Witness A[1], who became the victim of the offending. During a phone call between the two, Tiba asked Witness A if he knew anyone who was selling guns or bullets. Tiba also exchanged several calls with you on 13 and 14 April.
[1] Pseudonym granted as per suppression order, see R v Tiba [2021] VSC 515
3On 14 April you and Witness A agreed that he would come to your house in Northcote after work that evening for what Witness A believed was to be a drug deal. He arrived there just before 6 pm and was greeted at the door by a man called “Mo”. Tiba was also present with you, a woman called “Sophie” and two other people.
4Witness A sat on a stool in the kitchen. Tiba approached him armed with a small, solid bat with a wrist strap known as a “fishing priest”. Tiba accused Witness A of not answering his phone calls and subjected him to a beating which lasted for 45 seconds to a minute. During the beating Tiba told you and Sophie to go into a bedroom. After the assault the men told Witness A to remain on the kitchen floor and they took his jumper and shoes from him.
5Tiba was charged and has pleaded guilty to false imprisonment and the ensuing theft of items from Witness A, his gold Apple iPhone and his car keys. Tiba then went outside to where Witness A’s BMW car was parked.
6After about 15 to 20 minutes Tiba returned and hit Witness A again with the fishing priest. He used Witness A’s phone to answer calls from Witness A’s girlfriend and responded to the calls, pretending to be Witness A. Tiba found on your phone photographs of Witness A’s uncle pictured with guns. He told you and the person called “Mo” to go to Witness A’s house and look for the guns.
7At Witness A’s house you and Mo entered via a rear window and looked for guns. Not finding any, you stole work tools, jewellery, watches, perfume bottles, sunglasses and Nike runners. This gives rise to the two charges on the indictment.
8You and Mo then returned to your house. Tiba then took Witness A’s car and left. Witness A was given $50 and left the house with you and Mo in a Toyota Aurion car driven by you. You gave your phone to Witness A so he could call his girlfriend. He arranged to meet her at a hotel and you dropped him off there without his phone, with no shoes and still bleeding from his face. He was too embarrassed to go inside the hotel, so he hailed a taxi and used the $50 to pay the fare. The taxi driver allowed him to use his phone to call his girlfriend, who agreed to collect him from a McDonald's.
9On arriving at his home the victim found the house had been broken into and property was missing. His BMW was found on 19 April in Reservoir. CCTV captured the Toyota you had driven on 14 April waiting in an adjacent street while the BMW was set alight by two unknown offenders. Those offenders then left in the Toyota Aurion.
10At the scene police found perfume bottles consistent with those stolen from the victim's home. Omar Tiba was arrested on 22 April 2017 and was found to be in possession of Witness A’s Apple iPhone.
11You were arrested on 11 October 2017 and remained in custody until you were granted bail in 2019. You were granted bail in the Supreme Court on 30 April that year but remained in custody for two more days pending a hearing in the Magistrates' Court. On 4 December 2020 you pleaded guilty to one charge of causing a false report to be made to police arising out of the investigation in this matter. You were sentenced to two months' imprisonment, which was declared as already having been served, hence that time is not to be used as time served in this case.
12You originally faced other charges in connection with the case of Tiba, which was before the Supreme Court, but the present charges were severed from the indictment and came to the County Court. Tiba was eventually sentenced in the Supreme Court in relation to this and other matters on 23 August 2021. He was sentenced to one year's imprisonment for theft of items stolen from Witness A, including the theft of Witness A’s car and the items taken from the house.
13This matter was listed for trial in September 2021, but you offered to plead guilty to the current charges in August. The gravity of the offending is to be assessed in the context of a serious event but with your involvement being limited to a part of it. You were asked and agreed to break into the house looking for guns and, finding no guns, you stole the other items.
14Importantly your background and personal circumstances provide some context for your involvement. You are a 48-year-old woman whose offending history began in 1999 at the age of 26. It began and continued in the context of your abuse of drugs, mainly amphetamines. You grew up as the middle child of nine children of your parents, who had immigrated from Lebanon. You were brought up strictly and, as you have described it, with physical chastisement, little affection and with no place for childhood pleasures.
15You enjoyed school because it was different from home and you managed to complete Year 12, despite having to be a parent to your younger siblings. One of your drug counsellors described this as being parentified, with responsibilities extending beyond what may be expected in a healthily functioning household. You were not allowed to have friends and you were isolated within the family. Your father was imprisoned from time to time and family outings were restricted to visiting him in prison.
16After leaving school you worked for five years with a shoe manufacturer. You loved the work and you felt accepted. You then went to Lebanon, the purpose being to find a husband, and you married. This was an unhappy marriage, but you stayed together for 16 years. You had three children with your husband: two sons, who are now young adults and have been in trouble with the law; and a daughter, who is about 14.
17While in custody you maintained contact with them and since your release their welfare has remained your chief focus. You are concerned that your unstable life and imprisonment will have affected them adversely and you are keen to try to address this. Indeed you have made considerable progress towards that goal.
18You began using drugs at the age of 24 and soon afterwards you developed a gambling problem, attending gambling venues during the night when the children were asleep and your husband was looking after them. Your earlier offending was connected to your need for money for drugs and gambling.
19Mr Simmons assessed you for a psychological report in December 2018. He formed the view that your disadvantaged childhood left you vulnerable to substance use, particularly drugs such as methamphetamine, which you found gave you confidence and an increased sense of self-esteem. Your exposure to the drug culture and violence associated with it led Mr Simmons to identify evidence of post-traumatic stress disorder and also a major depressive disorder following the breakdown of your marriage.
20Sadly you suffered violence and coercive control at the hands of a former partner during the 18 months before your incarceration in 2017 and it is thought this may have contributed to the ongoing symptoms of post-traumatic stress disorder.
21When you were in custody you completed a large number of vocational courses and others dealing with drug abuse, including the completion of a 40-hour drug program not once but several times. This appears to have laid the foundation for the rehabilitative programs and treatment you engaged in on a voluntary basis after your release, some of which is continuing.
22You were released from custody in 2019 with strict conditions but with considerable support. One of these supports was a Muslim social welfare program designed to help you meet any court-imposed obligations. Another was counselling through Star Health, or more specifically the Arrest Referral Program. A report dated April 2020 from Ms Boothby, who works with you, states that you and she developed a strong rapport and you have expressed considerable insight into your offending behaviour. You had regular sessions with a psychologist and began building a resume to begin part-time employment.
23I note that this report was written at the beginning of the COVID pandemic, and so little more could have been achieved at that time. Ms Boothby emphasised the progress you have made and the determination you have applied to your efforts. You have done this while trying to manage asthma and severe respiratory issues, sometimes requiring hospitalisation. Indeed you became ill with COVID-19 quite recently and for that reason, on the advice of your doctor, you had to temporarily delay being vaccinated.
24At the last hearing the most recent report was dated 23 November 2021 from a counsellor, Adriana Butler, at Odyssey House. You were referred there and arrived to take part in the program on 12 July 2021 but immediately suffered an asthma attack and the treatment plan was changed to permit you to pursue rehabilitation in the community. This counselling began in September and the counsellor, Ms Butler, has remained in close contact with you. She states that you have been actively engaging in the process and you present well. You are strongly motivated to stay abstinent and to rebuild relationships within your family. She states that you are remorseful about your past offending and you are aware that relapse would lead you back to offending and remove you and isolate you from your children. One of your goals at the time of the last hearing was to find stable accommodation for you and your children.
25As a result of being incarcerated in 2017, you lost your home, which you had cared for assiduously over some years, something you enjoyed and took pride in. On your release you have been unable to obtain stable accommodation and have had to rely on family members, with changes from time to time. It is accepted that this instability might have made it difficult for you to comply strictly with obligations under court orders and could jeopardise your overall compliance.
26However, two very recent reports tell a different story. Ms Butler at Odyssey House reports that you have continued to engage well with counselling, you have remained abstinent from drugs, you have moved into a new residence with your sons, I believe, and you are looking for employment. You remain determined to rebuild your life and not return to prison.
27A report from the case manager at the Law and Advocacy Centre for Women states that that organisation is helping you to settle into your new home and assisting you with your search for job opportunities. Your past experience of participating in theatre through the well-known Somebody's Daughter Theatre Company is important to you, and your case manager is helping you to find a local theatre group.
28The minimum penalties for these offences are 10 years' imprisonment in each case. Your plea of guilty means that you are to be given a discount on your sentence, because a trial has been avoided and you have accepted responsibility for your offending. If you were to serve any further time in prison for these offences you would experience the restrictions imposed by the COVID pandemic, which create considerable hardship for prisoners now and in the foreseeable future. That is also a matter to be taken into account.
29Your prospects for rehabilitation appear to be hopeful, as Mr Prior put it on your behalf, as long as you continue to be supported and manage to avoid past influences which might lead you to relapse into drug use. Although it has only been three months since the deferral of this matter, you have demonstrated good progress, and because your community supports have been successful so far and you remain well motivated there is no need for a Community Correction Order. I will sentence you to time served.
30This is one of those rare cases in this court where an aggregate sentence is appropriate and I sentence you to 509 days' imprisonment, covering both charges, which I declare to have been already served and that will be noted on the court record. That sentence takes into account both general and specific deterrence. Your long history of offending and the sentences of imprisonment you have experienced over the years, as well as the time on remand, suggest that this sentence will help to deter you from further offending.
31If you had pleaded not guilty I would have sentenced you to two years and nine months' imprisonment with a non-parole period of 20 months.
32Are there any other matters, first of all, Mr Goetz?
33MR GOETZ: No, Your Honour. I understand the ancillary orders were made on one of the Tiba matters, so they're not required in this case.
34HER HONOUR: All right, thank you. Anything else, Ms Prior?
35MS PRIOR: No, thank you, Your Honour.
36HER HONOUR: Ms Mourad, I hope you continue to do well.
37OFFENDER: Thank you so much.
38HER HONOUR: Anything further? If not I'll leave the Bench and just allow my staff to speak to you in case there's anything else that has to be attended to.
39MR GOETZ: May it please the court.
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