R v Haddara
[2022] ACTSC 224
•29 August 2022, 7 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Haddara |
Citation: | [2022] ACTSC 224 |
Hearing Dates: | 29 August 2022, 7 November 2022 |
DecisionDates: | 29 August 2022, 7 November 2022 |
Before: | Mossop J |
Decision: | See [64] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – joint commission aggravated robbery – use of weapons and in company – plea of guilty – not proven beyond reasonable doubt offender had a leadership role or personally inflicted violence – low end of mid-range of objective seriousness – good rehabilitative prospects – motivation for offending unclear – sentence of imprisonment imposed – sentence to be served by way of intensive correction order with fine and community service |
Legislation Cited: | Criminal Code 2002 (ACT), ss 45A, 310 Crimes (Sentencing) Act 2005 (ACT), s 11(3) |
Cases Cited: | R v Apps (No 2) [2019] ACTSC 369 R v Batcheldor [2021] ACTSC 208 R v Wilson; R v Beath-Williams [2022] ACTSC 20 |
Parties: | The Queen (Crown) Omar Haddara (Offender) |
Representation: | Counsel A Chatterton (Crown) M Kukulies-Smith (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Numbers: | SCC 29 of 2022 SCC 30 of 2022 |
MOSSOP J:
Reasons given on 29 August 2022
Introduction
On 19 July 2022 the offender, Omar Haddara, pleaded guilty to one count of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (CC2021/10092). The offence was an offence by joint commission by virtue of s 45A of the Criminal Code which provides that a person is taken to have committed an offence if they had entered into an agreement to commit an offence, pursuant to which the offence was carried out.
The maximum penalty is 25 years’ imprisonment, a fine of $400,000 or both.
Facts
The facts are agreed and are in summary as follows.
On 23 and 24 August 2021 the offender made multiple calls and sent multiple text messages to the victim of the offence in relation to an alleged debt:
(a)on 23 August the victim received 18 missed calls and the following messages from the offender:
(i)“its Omar here debt has been passed to me you have until tonite to pay what you owe. Try me”;
(ii)“where we meeting”; and
(iii)“with the money in full”.
(b)He also received a call from Kyle Butkovic in which Mr Butkovic told the victim that he owed him $600 for cocaine that Mr Butkovic had given him a few months earlier.
(c)On 24 August the victim received two further missed calls from the offender and the following message at 9:25pm: “You’re a weak dog and your debt has Just doubled and you’re getting flogged when I see you”.
The offender and Jennifer Hanson, who has already been sentenced for being knowingly concerned in the robbery, had been communicating with each other via Snapchat for a week or two prior to the offending. They knew of each other through mutual acquaintances.
On 24 or 25 August 2021 the offender told Ms Hanson that the victim owed “them” some money. Hanson told him to leave it with her. On 26 August 2021 she lured the victim to her house by initiating contact with him via social media. They had met once or twice before through mutual friends. Ms Hanson organised for the victim to attend her house to drink alcohol and stay the night, sending him her address at 5:35pm.
At 5:59pm, Ms Hanson called Mr Butkovic. At 6:01pm, she sent him a text message saying “are you guys ready to come whenever from now”.
The victim arrived at Ms Hanson’s residence in Moncrieff at approximately 6:30pm. The two of them sat in the lounge until a short time later there was a knock on the door. Ms Hanson got up to answer it. The victim asked Ms Hanson who was at the door, but she ignored him. The offender, Mr Butkovic, Jake Trewartha and a fourth unidentified male entered the house. The offender was not wearing a mask. Some of the co-offenders were.
A friend of Ms Hanson, who I will refer to as FN, also arrived at the same time unannounced. She attempted to follow the four males into the house, but the door was slammed in her face.
Ms Hanson went into her bedroom. The males entered the lounge room. The victim tried to leave through the back door, but he was grabbed and pulled back to the couch.
The victim recognised Mr Trewartha as he had been assaulted by him in the city several months prior. Mr Trewartha was holding a baseball bat.
The victim recognised Mr Butkovic as he knew him. Mr Butkovic was holding a box‑cutter style knife.
The unidentified male had a black-handled machete with a large blade.
The offender asked the victim why he had been ignoring his texts, and confirmed when the victim asked, that his name was Omar.
FN was still at the front door and heard someone inside yell “where’s our money”. A man then opened the door and pulled FN inside into the loungeroom where the victim was being held down by three of the males. Ms Hanson appeared and pulled FN into her bedroom. Ms Hanson’s partner was also there. Ms Hanson said words to the effect of: “What are you doing here? You shouldn’t be here. He’s got – He’s in the game but he is in a lot of debt. He fucked up. I lured him here. I only met the guy tonight”.
One of the males said to the victim words to the effect of “do you know why we’re here? We need the money”. The victim then told the men he had nearly $5000 in his bank account. The men emptied his bag and asked “where’s your cash?”. The victim told them he did not have any cash and that his money was all in his account, which he would transfer to them. He thought that if he did this, the men would not hurt him.
Using internet banking on his mobile phone, the victim then made two transfers totalling $800 to Mr Butkovic. The victim tried to make a third transfer, but this was unsuccessful. Mr Trewartha then struck the victim with a baseball bat, and upon trying to strike him again, the offender pushed Mr Trewartha. The victim put up his hands and the bat scraped his head and arms. The victim tried to explain that he thought the failed transaction was because he had reached his daily limit, not as a result of him “fucking around”.
The unidentified male came out of the kitchen and threw something small and hard at the victim’s face before striking him repeatedly to the head. This lasted about 10 seconds. The offender pulled the male off the victim and said “stop”, “no more” and “we don’t want a home invasion”.
Mr Butkovic then obtained his bank account details and the victim transferred $2515.60 to Mr Butkovic’s account. Mr Butkovic agreed that the victim could keep $700 in his own account for rent.
Mr Butkovic and Mr Trewartha again assaulted the victim and Mr Trewartha said “let’s just put him in the boot”. The offender told them to stop and said words to the effect of “no we can’t do that. We don’t want this to look like a home invasion”. The offender also said to the victim words to the effect of “if it wasn’t for me you would have your legs broken”.
In total, the victim was struck three times to the head with a baseball bat and punched multiple times in the face. The strikes with the baseball bat were not full force but the punches were. The victim did not fight back.
During the time the four co-offenders were in the house, the offender left the loungeroom at least twice and went to speak with Ms Hanson in her bedroom. Prior to leaving, he went to her room and said “[w]e’re all done here”.
The offender told the victim to get up and leave. The victim followed the four offenders to the front door where the offender told the victim to get in his own car and go, not to cancel the transaction or go to the police or hospital.
The victim drove to his ex-partner’s address and his ex-partner drove him to the Canberra Hospital. Police attended the hospital and spoke with the victim. They subsequently spoke with Ms Hanson and FN, who at that time denied that the robbery occurred.
The day after the robbery, the victim managed to stop the third payment. As a result of the investigation by the victim’s bank, Mr Butkovic’s account was frozen. Mr Butkovic then took steps both in relation to his bank and the victim to have the account unfrozen. Those steps did not lead to Mr Butkovic recovering the third payment.
The offender gave oral evidence that was not challenged that he travelled to the premises in his own vehicle and that the other offenders had arrived separately.
Objective seriousness
The offence is one of joint commission. It involved a degree of premeditation. The offending occurred in the context of the enforcement of a drug debt. Having regard to the traceability of the money transfers, the success of that enforcement was contingent on the unwillingness of the victim to seek police assistance. It depended upon instilling fear in the victim sufficient to deter him from doing so. The offending involved weapons and the infliction of actual violence. It was committed in company.
Although not agreed, the Crown asserted and the offender did not dispute that the victim suffered bruising to his head and face and tenderness elsewhere on his body.
It is not proven beyond reasonable doubt that the offender was aware of exactly what would be done with the weapons by his co-offenders. It is at least reasonably open that his earlier reference to giving the victim a “flogging” was intimidation rather than reflecting an actual intention at that stage. However, I infer that the offender was aware of the potential for violence of at least the sort that actually occurred. That is because he went there with the understanding that the victim would be intimidated into paying money, a process which may well involve the infliction of violence. Further, he understood that his presence was necessary, because of the victim’s associations and that his presence would help to ensure that things went “smoothly”. I infer that this was through weight of numbers.
It is not proved beyond reasonable doubt that the offender inflicted any violence upon the victim. He was not carrying a weapon. He took some steps to moderate the violence of others.
The Crown submitted that a number of factors pointed to the offender having a leadership role in relation to the offending conduct. Those were:
(a)the fact that he contacted the victim and in that contact asserted that he had taken over the debt;
(b)the role that he played in communicating the existence of the debt to Ms Hanson; and
(c)the role that he took in moderating the violence upon the victim by physically intervening or directing his co-offenders not to go further than they did.
While he plainly did contact the victim and those communications do assert that he had taken over the debt, they do not prove that was the case. They are equally consistent with him asserting that in order to provide a basis (which would make sense in the context of drug related debts) for him to be pursuing payment. It is clear that Mr Butkovic continued to assert a debt owed to him, a fact inconsistent with the debt having been actually taken over otherwise becoming a debt owed to the offender. The role in relation to Ms Hanson is not clear, particularly why she was motivated to assist him. The statements that he made during the incident are equally consistent with him not having a leadership role but wanting to moderate the violence inflicted. The conclusion that it has not been proved beyond reasonable doubt that he was a leader of the offending is also consistent with:
(a)the fact that he is not proven to have received any financial benefit from the enforcement of the debt; and
(b)that Ms Hanson contacted Mr Butkovic rather than the offender to say that they should come to the house.
On the other hand, he is not proved on the balance of probabilities to have been merely a follower. I have treated his evidence as to his motivation for being involved with some caution, as it did not really provide a coherent reason. Something led him to become involved with his old associates Mr Butkovic and Mr Trewartha, but the evidence did not satisfactorily explain what. As a consequence, his actual role and motivation remains obscure.
Overall, the objective seriousness is at the low end of the mid-range of objective seriousness for this very serious offence.
Subjective circumstances
The subjective circumstances of the offender are set out in a pre-sentence report dated 23 August 2022, the offender’s oral evidence, a letter from the offender and three character references.
The offender is 30 years old. He was born in Melbourne and described his upbring as “different to his friends”. He was subject to physical discipline by his father and their relationship is now distant. He has a positive relationship with his mother who he visits and calls weekly. There were no alcohol or drug issues in his family home.
The offender has five brothers and a sister. Four of his brothers have spent time at the Alexander Maconochie Centre (AMC), but his youngest siblings who are 17 and eight years old have had no contact with the criminal justice system. The offender has a positive relationship with his siblings and currently resides at his brother’s home with his brother, his brother’s wife and child.
He has a wife who lives in Lebanon. While they have a good relationship, he has been unable to see her for the previous few years due to the COVID-19 pandemic. His long‑term goal is to obtain a visa for his wife to relocate to Australia so they may live together. He also has an amicable relationship with his ex-partner with whom he shares custody of their two children. His ex-partner has principal responsibility for the children although he sees them on weekends and at after-school activities during the week.
The offender completed Year 12 and commenced but did not complete a university bridging course. He owns a gardening business which he has had for four years and prior to this, he spent five years working as an earth mover. His financial position is stable. His business involves doing landscaping and garden maintenance work for bodies corporate and other businesses around Canberra and Queanbeyan. It was established in 2018. The business was successful enough to own two vehicles, a trailer and various pieces of equipment. He employs two staff, although it is not clear whether they are full-time, part-time or casual employees.
The offender recognised that he was associating with antisocial individuals who were negatively impacting his behaviour but has now severed ties with these people. He has abided by his bail conditions not to associate with any of his co-offenders.
The offender has no substance use problems. Submissions made on his behalf identified that he had difficulties with alcohol consumption and illicit substance use for an unspecified period after he left home at the age of 18. That is consistent with his early period of offending up until 2013.
In relation to the circumstances of the offending, he agreed with the statement of facts and stated that he was trying to help someone who was retrieving money owed to him by the victim. The offender identified that he should not have become involved. He said that he did not engage in any physical violence towards the victim and recognised the impact the offence may have had on the victim.
The pre-sentence report author assessed the offender as having a medium-low risk of general reoffending, with his primary risk factors being his history of offending and his companions, but noted that it was to his credit that he claims to have ceased contact with antisocial peers and that this would be monitored if he was to be given a community‑based sentence.
Shortly prior to the offending, the offender had suffered a serious penetrating injury to his right eye. This occurred when he was using a chainsaw at his home without safety or other glasses. He spent two nights in hospital and had surgery on his eye. He subsequently had to attend the hospital on a number of occasions. He was temporarily blinded in his right eye. His right eye has substantially recovered over the year since. He described that he was using unprescribed Endone and Xanax following the incident.
It was while at the hospital that he came into contact again with Mr Butkovic. Mr Butkovic had been a friend of his at the time of his earlier offending in 2013. He visited his house in a number of occasions prior to the offending. The explanation that he gave of why he associated with Mr Butkovic or got involved in assisting him to enforce his debts was unclear. It is not clear what his motivation was. It is clear that he very much regrets that involvement. In his oral evidence, he demonstrated remorse for his conduct in the sense of recognising that such conduct had the potential to completely upend the family and business life that he had.
I take into account the three character references. I accept, in particular, the evidence of his former partner about his past and present family circumstances and circumstances at the time of his offending.
Criminal history
The offender has a criminal history in the ACT commencing in 2010. He has subsequently been convicted of common assault, breaching a good behaviour order twice, furious, reckless or dangerous driving, failing to display P-Plates, driving while his license was suspended, affray, joint commission minor theft, minor theft and possessing an offensive weapon. In New South Wales, he has a larceny charge from 2013.
The most recent offending prior to his current offence was in 2013, before the birth of his first child in 2014.
Plea of guilty
The offender pleaded guilty in the Supreme Court following criminal case conferencing and after the matter had been allocated a seven-day trial date.
Contrary to the submission made on behalf of the offender, I do not consider that the plea itself is evidence of remorse. Rather, it appears to have been a pragmatic decision in light of the prospect of a finding of guilt at trial. Nevertheless, the plea has significant utilitarian value. It is appropriate having regard to its timing that the sentence that would otherwise have been imposed be reduced by 15 percent.
Time in custody
The offender has spent one day in watchhouse custody in relation to this offending.
Consideration
The co-offender Jennifer Hanson who was charged with being knowingly concerned in the aggravated robbery received a sentence of imprisonment of 16 months, which along with other sentences of imprisonment, were to be served by intensive correction order: R v Hanson [2022] ACTSC 107. The Crown provided a table of sentences for aggravated robbery. The cases were R v Apps (No 2) [2019] ACTSC 369, R v Evans; R v Reid [2020] ACTSC 169, R v Batcheldor [2021] ACTSC 208; R v Wilson; R v Beath‑Williams [2022] ACTSC 20. Those sentences involve starting points prior to discounts for pleas of guilty of between five years and six months and three years and nine months’ imprisonment. The objective seriousness of the offending in these cases is generally greater than the conduct of the offender in the present case.
The offender accepted that the threshold for a custodial sentence had been passed. He submitted that an intensive correction order would be appropriate.
The offending was serious offending. It involved the enforcement of drug debts. The extralegal enforcement of such debts is a consequence of the illegal nature of the market for illicit drugs. It is dependent upon the assumed unwillingness of victims of such offending to involve the police. It is an area in which general deterrence is a very significant sentencing consideration.
So far as the offender is concerned, his prospects of rehabilitation are good. Prior to the present offence, he had a significant period without criminal offending. He also has his business, his children and family responsibilities and ties to the community. The reasons why he became involved again with criminal conduct of this type are not clear.
The appropriate starting point for the sentence is a sentence of three years’ imprisonment reduced to 31 months (two years and seven months) on account of the plea of guilty. As to how this is to be served, the options are full-time custody with a non‑parole period, a partially or wholly suspended sentence or a sentence served by way of intensive correction. Unfortunately, the pre-sentence report does not also include an assessment of suitability for an intensive correction order. I cannot rule out the possibility that an intensive correction order may be appropriate in combination with some other penalties. Therefore, it is necessary to adjourn the matter and direct that an intensive correction assessment be prepared.
Orders
The orders of the Court are:
1.Direct preparation of an intensive correction assessment.
2.Note that reasons have been given and sentence length determined and it is not necessary for the intensive correction assessment to repeat material in the pre-sentence report.
3.Adjourn the proceedings until Monday 7 November 2022 at 9:15am
Reasons given on 7 November 2022
On the last occasion I directed the preparation of an intensive correction suitability assessment. That assessment indicates that the offender is suitable for an intensive correction order and has signed an undertaking to comply with all obligations of an intensive correction order. It identifies the factors that would be targeted if an intensive correction order was made as being: companions (antisocial peers); criminal history; emotional/personal (mood regulation issues).
The difficulty with an intensive correction order is that, having regard to the limited nature of the issues to be addressed, it may be seen as having an inadequately punitive component and fail to address the seriousness of the offence and the harm to the community. However, in my view, the purposes of sentencing can be adequately addressed if the punitive component of the sentence is increased by the imposition of a requirement to perform a substantial period of community service and a fine. With those additional penalties then, having regard to the factors referred to in s 11(3) of the Crimes (Sentencing Act) 2005 (ACT), it is appropriate to deal with the matter by way of intensive correction order notwithstanding that the sentence exceeds a period of two years.
Counsel for the offender asked that the court take into consideration the fact the offender runs his own business and that time spent doing community service would be time that could not be spent in his business. He asked that this be considered when setting the period of community service.
I have taken this factor into account. In my view, notwithstanding this factor, a substantial period of community service is required as well as a fine in order that the sentence reflect the gravity of the offending.
The community service component will be a period of 400 hours to be completed prior to the expiry of the order. The fine will be $7500.
The intensive correction order assessment recommends certain conditions be imposed, involving referral for counselling in relation to emotional regulation and motivational interviewing in relation to better choices. In my view, in this case, the content of supervision is best left to the supervising officer which may include those matters but the evidence is not so clear that I consider it necessary for me to impose those conditions.
Orders
The order of the Court is:
1. On the charge of aggravated robbery (CC2021/10092) the offender is convicted; and
(a) sentenced to imprisonment for a period of two years and seven months commencing on 7 November 2022 and ending on 6 June 2025 which sentence is to be served by intensive correction in the community subject to the core conditions and the following additional conditions:
(i) that the offender perform 400 hours of community service within the period of the order; and
(ii) that the offender comply with the fine order made on the sentencing date.
(b) fined $7500 and allowed 12 months to pay.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 10 November 2022 |
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