Director of Public Prosecutions v Tawil
[2024] VCC 38
•31 January 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00351
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAWIL, Romazan |
---
JUDGE: | Her Honour Judge Blair | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 31 January 2024 | |
CASE MAY BE CITED AS: | DPP v Tawil | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 38 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – SENTENCE
Catchwords: Arson – Burglary – Theft – Co-accused – Rehabilitation – Delay – Plea of guilty
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: 35 days imprisonment served by way of pre-sentence detention
12 month Community Correction Order
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr F. Cameron | Office of Public Prosecutions |
| For the Accused | Mr J. Mortley | Theo Magazis & Associates |
HER HONOUR:
1Romazan Tawil, on 22 January 2024 you sought a sentence indication in relation to two charges of burglary, one charge of arson, and one charge of theft. There was one related summary offence filed as part of this sentence indication of committing an offence whilst on bail.
2Your sentence indication application was not opposed and it was subsequently granted. I indicated that I would impose a community correction order by way of penalty and you instructed your counsel to accept my sentence indication.
3I also indicated that there would be no further imprisonment apart from the 35 days that you have already served to be imposed.
4You were then arraigned on Indictment C2114759.B and pleaded guilty to the charges subject to the sentence indication. Mr Tawil, you agreed to the filed summary related offence being dealt with by this court and pleaded guilty to the charge I have previously mentioned, and further you admitted your prior convictions.
5I requested a pre-sentence report from Community Corrections and you have been assessed as suitable for a community correction order.
6A summary of prosecution opening was read at your sentence indication hearing and has been tendered on both sentence indication hearing and your plea, and what follows is a summary of this document.
7You were involved in the offending with your son who was 19 years old at the time, Abrahim El Tawil and his associate Seckin Koc who was aged 20.
8At 11.09 pm on 25 August 2021 your son sent you a message asking to use the BMW. A short time later, Mr Koc and Mr El Tawil were dropped off at your home at Catalina Drive, Thomastown. You were present there and together the three of you loaded a silver BMW parked at the front of your premises with jemmy bars and jerry cans. You then drove Mr Koc and Mr El Tawil in the silver BMW. You left your address at about 11.40 pm.
9At 12.10 am on 26 August 2021 you parked the silver BMW at the rear of 766 High Street, Epping and stayed with the car. Mr El Tawil and Mr Koc got out of the BMW and gained entry to the rear yard and forced entry to the back door of 766 High Street, being The Cheesecake Shop.
10At 12.28 am you sent your son a message that said 'Okay, like I said, make a line.' Your son responded 'Okay, and come back here, we might have found the back - just need to make sure.' A short time later you returned to the rear of 766 High Street, Epping in the silver BMW.
11At 12.30 am Mr El Tawil and Mr Koc returned to the vehicle carrying Ferrero Rocher chocolates that had been stolen from inside the storeroom at The Cheesecake Shop. You drove away and a short time later parked the silver BMW on Coulstock Street, Epping approximately 50 metres from High Street, Epping. Mr Koc and Mr El Tawil both got out of the car and approached the alley located at the rear of 744 High Street, Epping and you remained in the driver's seat of the silver BMW with the vehicle turned off. The two co-offenders used jemmy bars to force open the rear door into a corridor, leading to the rear shops based on High Street. They entered the corridor but you were unable to gain entry to any of the rear doors.
12At 12.50 am Mr Koc and Mr El Tawil approached High Street, Epping from Coulstock Street. Mr Koc carried a jerry can in his hands. Mr El Tawil approached the front door of 744 High Street, Epping being IR Convenience, and pulled up the unlocked shutter door at the front of the premises. Mr Koc then approached the door and began to hit it with the jemmy bar and front kick it. For approximately 10 minutes your two co-offenders alternated between attempting to gain entry to the front of 744 High Street, Epping and hiding on Coulstock Street to avoid detection as cars passed by on High Street.
13At 1.10 am Mr Koc used a jerry can to pour an accelerant through the broken front door, Mr El Tawil set an unknown item alight with the use of a lighter. Mr El Tawil threw this item through the broken door onto the accelerant which then caught alight causing a brief explosion. Mr El Tawil and Mr Koc then ran southbound on High Street and returned to the silver BMW parked on Coulstock Street. Together you left the scene in the silver BMW.
14At 1.15 am a witness, who was travelling southbound on High Street, Epping observed the flames coming from the store and called Triple 0 to report the incident to the emergency services.
15At 1.18 am police observed the silver BMW travelling southbound on Harbard Street, Thomastown and intercepted the vehicle as it pulled into the driveway at Catalina Drive, Thomastown. The police recorded the conversation they had with yourself, Mr Tawil and Mr Koc on body worn camera. They confirmed your identities. Whilst this was happening police communications notified of the fire at 744 High Street, Epping and the police left a short time later.
16In the meantime, Fire Rescue Victoria had arrived and extinguished the fire at 744 High Street, Epping. They were soon joined by multiple police units who established a crime scene. Whilst on scene police located and seized two jemmy bars, one jerry can nozzle and one broken lock mechanism from the vicinity of 744 High Street, Epping. Two forensic swabs were subsequently taken from the jemmy bars for further examination.
17At 2.04 am your son sent a message that said 'Dad, I'll pick up the chocolates in the car tomorrow'.
18On 27 August 2021 the police executed search warrants at your residence and at the residence of each of your co-accused. A variety of items linking yourself, Mr El Tawil and Mr Koc to the arson were located. These items included eight boxes of Ferrero Rocher chocolates, two jerry cans, three mobile phones, a jacket, sneakers and track suit pants, a jacket, track suit pants, Reebok runners, Air Max runners, a motorcycle helmet and a CCTV hard drive.
19You were arrested and interviewed by police and on this day. You were remanded in custody and released 35 days later on 1 October 2021. Initially you were bailed to reside at your address in Thomastown.
20At the time of the offending before the court you were on bail for various offences including possession of ammunition, drive whilst suspended, deal with proceeds of crimes and others. This is the factual basis for the summary related offence to which you have pleaded guilty.
21The most serious offence you face is the charge of arson. Arson is an inherently serious offence not only because of the maximum penalty of 15 years set by Parliament, but also because it involves fire which is dangerous and unpredictable.
22Although the arson occurred at night, at a time when no one would be in the premises, the target of your offending was a shop that was one of several within a shopping strip. Because of the location of 744 High Street, Epping in a built-up shopping area, the fire was soon witnessed and reported to emergency services.
23Counsel for one of your co-offenders described the offending as an act of vandalism that was unsophisticated. I agree with his characterisation of offending as it relates to both yourself and your co‑offenders. There was no special planning or equipment used apart from petrol, an accelerant and an ignition source. The attempt in which you were involved was a failure. Very little damage was caused to 744 High Street. The tenant at 766 High Street, the Cheesecake Shop, however, suffered damage and loss in the amount of approximately $800.
24Your co-offenders returned the following night without you, determined to damage property at 744 High Street and you were not involved and have not been charged in relation to this second incident. It is noted that it was on this occasion that substantial damage in the order of $800,000 was caused to both the property at 744 High Street and several neighbouring properties.
25I make it clear that you are not to be sentenced in any way in relation to those matters.
26In this regard your role in the offending differs significantly to that of your two co-offenders. The two factors which made this a serious example of arson for your co-offenders, that is the significant level of damage and the determined nature to commit arson and damage property, are absent in your case.
27Although you are older, your involvement in the offending is limited to that of driver on the first occasion of the offending. It appears you had no further involvement in the planning and execution of the offences, although you should not have been involved in any way and you should have counselled your son and his friend against such serious criminal exploits.
Personal circumstances
28You were born in Lebanon in June 1974. You are one of seven children and you have four brothers and two sisters, one of whom is deceased. Your family immigrated to Australia in 1974 when you were a baby.
29Although there was no physical violence, your parents fought frequently and separated under the same roof when you were six or seven years old.
30During your childhood your family constantly moved addresses; you lived in Heidelberg, Clifton Hill, Broadmeadows and other areas. As a consequence you attended six to 10 different schools by the time you completed Year 10 at Hillcrest College in Broadmeadows, and that was in around 1990. You have not undertaken any further formal education since that time.
31Upon leaving school you worked part time as a motor mechanic and automotive electrician for various companies. You attempted an apprenticeship but you found the exams confusing and were not able to complete the examination component to obtain your qualification. Your obtained your security licence in 1995 and commenced working as a motor mechanic during the day and as security guard for Victoria Market and various pubs and clubs at night.
32In 2003 you obtained employment at City Ford as a mechanic. You were promoted to a managerial position which proved stressful and you quit this job by the end of the year. You then commenced work as a commercial painter.
33For a variety of reasons, over the last decade you have not worked. You have been reliant on Centrelink benefits in the form of Jobseeker and carer payments.
34You have had one significant relationship in your life and in the year 2000 you travelled to Lebanon where you met and married your now ex-wife, Wissam. Upon your return to Australia you commenced a visa application for Wissam to emigrate to Australia, she arrived in Australia in 2001.
35Together you and Wissam have three children. Your eldest son is the co‑accused, Abrahim El Tawil, he is 22 years old now. You also have two daughters; one is 19 and the other is nine.
36By 2013 you began to spend a lot of time away from your family, preferring to spend time with the boys. One of your sisters and your mother intervened in your relationship with Wissam. They told Wissam that you were unfaithful and that you were secretly keeping a second marriage and family. You strongly denied that this was the case. Notwithstanding your denials, the intervention of your mother and sister caused problems within your marriage. You remained together with Wissam and you became estranged from your family, in particular your mother and sister.
37Over time your relationship with Wissam further deteriorated and you divorced in 2015. You remained renting the family home in Thomastown and Wissam moved out with the children to a home in Lalor.
38In terms of drug and alcohol use, as a relatively young man of 18 to 21 years you engaged in problematic drinking and some cannabis use. Fortunately you realised the negative impact of your alcohol consumption and were able to cease drinking.
39After the breakdown of your marriage and having left the workforce, by around 2018 you were unemployed, estranged from your family and living alone. You began to make friends with people who were abusing drugs. You were occasionally smoking ice when visiting them.
40It was later in that year, 2018, when you were visited by a nephew who informed you of your other sister's passing in 2013 from cancer. You were devastated. You had been particularly close with this sister during your childhood, and you were not informed or invited to the funeral.
41The news of your sister's death in combination with the other issues in your life saw you gravitate to regular ice use. For the next several years you were smoking ice regularly up to half a gram daily. It is against that background that you became involved in the offending now before the court, with your son and his friend. You were arrested on 27 August 2021 and remanded in custody.
42On 1 October 2021 you were released on bail with a residential condition to reside at your Thomastown address. In August 2022 you relapsed into drug use and were charged with further offending. You spent some time in custody and were again released on bail. This time you were bailed with the support of the CISP program and to reside in Shepparton with your father.
43You continue to reside in Shepparton with your father and stepsister. You provide daily care to your father and you have engaged in drug counselling with Faith Boswell from Goulburn Valley Alcohol and Drug Service. I understand from her letter that was tendered in court on your plea and also from the Corrections pre‑sentence report that you have now had seven sessions of such counselling.
44In June 2023 the offences for which you were on bail and the more recent offences from August 2022 were dealt with in the Magistrate's Court and you were ordered to perform an 18 month CCO. You are currently undergoing this order and are progressing satisfactorily.
45Your physical health is problematic due to chronic pain. At the age of 10 or 12 you were involved in a serious car accident that resulted in significant and ongoing injuries and pain. A motorbike accident in 2013 resulted in you sustaining fractured ribs. Since this accident your chronic pain increased drastically and has impacted your quality of life and ability to work.
46You are currently working with your GP to obtain Centrelink Disability Support Pension and are awaiting an assessment by Centrelink doctors. You are prescribed various medications having refused to undergo the risky prospect of surgery.
47A psychological report was prepared by Mr Ian Mackinnon and has been tendered on your plea. Mr Mackinnon provides useful background material and confirms that at the time of the offending, you were suffering symptoms that met the clinical criteria for mixed depressive and anxiety disorder, in addition to a substance abuse disorder. It was Mr Mackinnon's opinion that your mental state had improved recently in light of your relocation to Shepparton, the cessation of drug use, and your reconnection with family, in particular your children and father.
48I was told you are currently seeing your children about three times per week, leaving early in the morning by train to visit them at Wissam's address. Further, you have been informed that later this year you will become a grandfather for the first time.
49While it cannot be submitted that you have entered an early plea, your plea nonetheless has facilitated the course of justice and saved the court and the community the time and expense of the trial. In fact your case was listed for a 10 day trial to commence 29 January 2024. Your plea has saved the witnesses from having to give evidence, which no doubt would have been a difficult and emotional experience.
50I also take into account the benefits of your plea in the context of the court backlog, which though now easing, were still a relevant issue when your charges entered the court process. Therefore I will allow a perceptible discount to your sentence as a result of your plea of guilty.[1]
[1] Worboyes v The Queen [2021] VSCA 169.
51Delay is another significant mitigatory factor in your case. The offending for which you are now to be sentenced occurred two years and five months ago. This is a significant delay for this matter to be hanging over your head. For the first 35 days since your arrest you were in custody however, you have largely been on bail since October 2021. I have no doubt that the time you spent in custody was difficult given the lockdowns and impacts of COVID-19 on the custodial experience. Further, I expect that you would have been very concerned at the prospect of a return to custody.
52Apart from a brief relapse you have performed relatively well on bail. This is particularly so since you moved to Shepparton. You now have the support of your father and stepsister, you enjoy a positive relationship with your ex-wife and have regular and meaningful contact with your children. Importantly, you have largely ceased your drug use and are engaged in counselling and are taking advantage of the support you have by way of the current community corrections order. In these circumstances despite your prior history, which is somewhat dated, I consider your prospects of rehabilitation to be positive.
53I consider that the relevant sentencing principles that must be applied in your case are general and specific deterrence, just punishment and community protection. In addition, your offending must be denounced by the court and I do so.
54It is my view that the community will be best protected if you can continue on your path of rehabilitation uninterrupted. You have demonstrated over the last year or so that you are serious about making a sustained change, and in light of your demonstrated rehabilitation I assess that you have positive prospects for rehabilitation in the future.
55I take into account the sentencing guidelines referred to s5 of the Sentencing Act1991 where relevant to your case.[2] I have had regard to the sentencing landscape of the offending before me, in particular the offence of arson. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.
[2] Sentencing Act 1991 (Vic) s 5.
56The principles of totality, proportionality and parsimony are also important considerations here. They require me to make sure the total sentence is appropriate to the total criminality, that the punishment should fit the crime, and that I should do no more than necessary to appropriately punish you. I have taken these principles into account in fixing the sentence I am about to impose.
57Finally, I have generally taken into account the sentence imposed on your two co-offenders. It is my view that parity has little to no application in your case given the very significant difference in offending. That is, you were not present or responsible for the extensive damage that was caused on the second occasion of arson. Further, the mitigatory factors relied upon by your co‑offenders was significantly different. They are both young first offenders who each had eight months of Renzella time to be taken into account.[3]
[3] R v Renzella [1997] 2 VR 88.
58So Mr Tawil, I am going to announce the disposition.
59In relation to each of the charges before the court you are convicted and sentenced to be imprisonment for a period of 35 days.
60In addition, I order you to be placed on a community corrections order for a period of 12 months. The conditions of this community corrections order include that you must:
a)Attend for supervision;
b)Undergo assessment and treatment for drug dependence;
c)Undergo assessment and treatment for mental health issues; and
d)Participate in offending behaviour programs.
61In addition to the conditions that I have imposed there are standard conditions that you must comply with and you are likely to already know these, given that you are currently on a corrections order, but I do need to go through them with you.
62So the most important of the standard conditions is that you do not commit another offence punishable by imprisonment within the period of the order, so that is for the next year.
63You need to report within two working days to Shepparton Corrections Office.
64You are required to advise your supervising Corrections Office of any change of address, of where you are living or working, within two clear working days.
65It is a term of all community correction orders that you must submit to visits as directed, obey the instructions and directions of Corrections officers, and also you cannot leave the State of Victoria without their permission.
66So Mr Tawil if you reoffend, you will breach the order. If you do not comply with the conditions I have imposed or the standard conditions, then you will breach the order. If you breach you will come back before me and you will be potentially resentenced on the original charges, all right.
67I can only place you on a correction order if you agree, so firstly do you understand what is involved in the order?
68OFFENDER: Yes I do, Your Honour.
69HER HONOUR: Okay. And do you consent to the order?
70OFFENDER: Yes I do, Your Honour.
71HER HONOUR: Okay, all right, so I reckon that you have already served 35 days' imprisonment by way of pre-sentence detention.
72Pursuant to s6AAA had you pleaded not guilty to the charges and been found guilty, the sentence I would have imposed on you is a term of six months' imprisonment and a community correction order in the same terms as that that I have imposed today.[4]
[4] Sentencing Act 1991 (Vic) s 6AAA.
73So is there anything further gentlemen that I need to deal with?
74MR CAMERON: Not from our end, no.
75MR MORTLEY: No, Your Honour.
76HER HONOUR: Thanks. Mr Tawil, because we are on Webex I cannot get you to sign the order, I can't hand it over to you but I am able to get and have got your verbal consent. I suspect when you turn up for your appointment at Corrections they might get you to sign the order, otherwise the verbal consent has been taken as your acknowledgement and agreement to be bound by the conditions. All right?
77OFFENDER: Yes, Your Honour.
78HER HONOUR: All right. Thanks very much to the parties for the way you have conducted the matter and I will otherwise adjourn the court.
79COUNSEL: As the court pleases.
0