R v Abou-Zeid
[2000] VSCA 56
•5 April 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 252 of 1999
| THE QUEEN |
| v |
| MARIAN ABOU-ZEID |
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JUDGES: | WINNEKE, P., CHARLES and CALLAWAY, JJ.A. | |
WHERE HELD: | GEELONG | |
DATE OF HEARING: | 5 April 2000 | |
DATE OF JUDGMENT: | 5 April 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 56 | |
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Criminal Law – Sentence – Burglary and causing injury recklessly – Sentence of four years’ imprisonment with minimum term of one year and nine months not manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. J.D. McArdle, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. R. Backwell | Victoria Legal Aid |
WINNEKE, P.:
The applicant, Marian Abou-Zeid, who is aged 25, pleaded guilty in the Melbourne County Court on 11 October 1999 to one count of burglary and one count of causing injury recklessly, the offences being alleged to be contrary to s.76(1) and s.18 respectively of the Crimes Act 1958. No prior convictions were alleged against the applicant and, indeed, it is accepted that he had a good prior history.
The maximum term of imprisonment which the legislature has set for the crime of burglary is ten years and for the crime of causing injury recklessly is five years.
The learned judge, after hearing a plea in mitigation, imposed sentences on the burglary count, which was count 1, of three years' imprisonment and on the recklessly causing injury count, which was count 2, a term of two years' imprisonment. His Honour cumulated one year of the sentence on count 2 on the three year sentence imposed on count 1. The total effective sentence was therefore one of four years and his Honour directed the applicant to serve a minimum term of one year and nine months before becoming eligible for parole.
The applicant has sought leave to appeal against the sentences on a number of grounds, all of which seem to me to really be particulars of an assertion that the sentences are manifestly excessive. Before I turn to them, it is necessary to say something about the circumstances of the offences. Those circumstances, I think, do little credit to the applicant.
In the early hours of 18 February 1998, the applicant entered a three-bedroom unit in Brighton. The unit was one of four in a block of units and was occupied by a 68 year old woman ("the victim") who lived alone in the belief, no doubt, that she was secure, a belief which was supported, one would assume, by the fact that she was surrounded by others in the remaining units. In fact, one of those units was occupied by the sister and brother-in-law of the applicant and the applicant resided with them at the material time.
The applicant's wife was apparently away in Taiwan with her mother and there was material before the learned judge which suggested that her absence was causing some concern to the applicant.
Early in the morning of 18 February, at a time which approximated half past two, the applicant entered the victim's unit through a back window, having removed the wire screen. Before entering the premises, he had "tripped" the switch on the power board in the carport, thus rendering unusable any of the lights in the premises. Wearing rubber gloves, he had rifled the drawers in the unoccupied front bedroom and had also moved material from the lounge into the kitchen.
The first the victim knew of the applicant's presence was when she woke with a start to find him in her bedroom. He flung himself upon her and grabbed her around the neck. She struggled and yelled, and with justification, as it seems to me, she thought she was going to be killed.
Finally, the applicant, who was not recognised by the victim, desisted and fled through the back door. The victim was able to summon assistance. She was hoarse and bruised around the neck, forearm, back, legs and upper chest. It is not suggested that the injuries suffered were other than physically minor injuries.
Through a fragment of the rubber gloves, which had been worn by the applicant, being ripped off during the struggle, the police were able to identify the applicant as the culprit. He had initially denied when first questioned that he was the culprit, but, when confronted with the results of a DNA test of the material found in the tip of the glove recovered from the apartment, conceded his responsibility.
Essentially, as I understood what he was telling the police, he blamed his behaviour upon the alcohol which he had consumed that evening. He asserted, effectively, that he was not a drinker, that drinking was contrary to his religion, but that he had been drinking with his brother-in-law in a social setting and that eventually it was his lack of tolerance to the alcohol consumed that produced behaviour which was out of character with his normal behaviour.
Although the sentencing judge described the circumstances of this burglary and the infliction of injury, and in my view correctly, as serious examples of the offences with which the applicant was charged, he nevertheless made findings which were generous to the applicant and by reference thereto, as I see it, mitigated the sentences accordingly.
It is contended by Mr Backwell, who appeared for the applicant in this court, that his Honour could not have given sufficient weight to the mitigating circumstances. First, it is said that his Honour referred to the applicant's plea of guilty as "recent" and, in that sense, had reduced the significance which should have been attributed to it. Secondly, it was said that his Honour had paid insufficient attention to the applicant's prospects of rehabilitation and placed too much emphasis on general and specific deterrence. The error, it was said, was in the balancing exercise; too much weight being given to deterrence, and particularly specific deterrence, in circumstances where too little had been given to the maturity of the applicant, a man without prior convictions. So obvious, it was said, was the imperfection in the balancing process that the sentences imposed can ultimately be seen to be manifestly excessive.
For my own part, I am not persuaded by any of the arguments which have been put to this Court. This very experienced trial judge has clearly, in my view, paid regard to all the mitigating circumstances which were raised in favour of the applicant, including the plea of guilty. The mere fact that his Honour described the plea of guilty as recent, a term which was in fact correct, does not mean that he rejected its true significance. In that respect, the circumstances are, I think, distinguishable from the case of R v. Dyer ([1999] VSCA 136 at [16] and [17])to which counsel referred.
Nor, in my view, can it be argued with any real justification that his Honour gave too much weight to the aspects of general and specific deterrence to the exclusion of the prospects which the applicant enjoyed for rehabilitation. It would seem to me that both explicitly and implicitly all of these factors were adequately taken into account by his Honour and properly balanced.
In the course of his sentencing remarks, his Honour said:
"I am satisfied that your otherwise unblemished record, your plea of guilty, you being adversely affected by liquor at the time of your commission of these offences causing you to act out of character and your emotional upset at the time are all mitigatory factors which must be brought into account. I am further satisfied that you are remorseful for your actions. However, when coming to sentence you for these serious offences, I must balance considerations of punishment of you, along with deterrence of you and others on the one hand, with considerations of your reformation and rehabilitation and the mitigatory factors which I have specified I accept on the other hand. Having done so, I am satisfied that not only am I compelled to impose a custodial sentence upon you but that it should be a sentence which is to be served immediately.
In my judgment, in circumstances where the incidence of domestic burglaries and crimes of offences against a person is unacceptably high, the court is obliged to demonstrate its stern disapproval of such anti-social behaviour. Elderly, vulnerable women, as your victim was, must be able to look to the court for their protection. With these types of crimes particularly, in my judgment, the consideration of general deterrence must constitute a very significant factor when deciding the appropriate sentence to impose. However, by reason of the mitigatory factors which I have enumerated, I am satisfied that a significantly more clement sentence is appropriate to impose upon you than otherwise would have been the case and, further, that the discrepancy between head sentence and minimum term be greater than would ordinarily be allowed."
In the light of these comments, it is, I think, impossible to contend that his Honour has not paid proper attention to the relevant sentencing principles or that the sentences which he in fact imposed do not give effect to them. I would therefore dismiss the application.
CHARLES, J.A.:
I agree.
CALLAWAY, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.
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