R v Hakim

[2023] NSWDC 605

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Hakim [2023] NSWDC 605

Hearing dates:

20 October 2023

Date of orders:

20 October 2023

Decision date:

20 October 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Jason Hakim is convicted.

2   Taking into account the matters on the Form 1 and the discount for the plea of guilty, I impose a term of imprisonment of 3 years with a non-parole period of 18 months to date from 30 September 2022. The non-parole period will expire on 29 March 2024 and the head sentence will expire on 29 September 2026.

3   The offender will be eligible to be released on parole on 29 March 2024.

Catchwords:

CRIME — Property offences — Break, enter and commit serious indictable offence

CRIME — Property offences — Destroying or damaging property

CRIME — Violent offences — Stalking or intimidation

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 1907

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Jason Hakim (Offender)

Representation:

Counsel:
H White (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Takchi and Associates (Offender)

File Number(s):

2022/258332

Publication restriction:

None

JUDGMENT

1. Jason Hakim (the offender) appears for sentence after entering a plea of guilty in the Local Court to an offence of aggravated break and enter and commit serious indictable offence, contrary to s 112(2), Crimes Act 1900. The maximum penalty for the offence is 20 years imprisonment. The standard non-parole period is 5 years.

2. The offender also asks the Court to take into account the following offences on a Form 1 schedule:

1. one count of intentionally or recklessly destroy/damage property (DV) contrary to s 195(1), Crimes Act 1900; and

2. one count of stalk or intimidate intending to cause fear of physical or mental harm (DV), contrary to s 13(1), Crimes (Domestic and Personal Violence) Act 2007.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

6. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147.

Facts

7. The parties tendered an Agreed Statement of Facts. I have taken into account the entirety of that document in coming to the appropriate sentence. What follows is a summary of the facts to permit an understanding of the sentence imposed.

8. The offender and Keeara Reilly had been in a relationship for 10 years. They separated on 22 August 2022. Following their separation, Ms Reilly resided part-time with Nicolas Hanna at his family home in Panania (the residence). His parents and brother also resided there.

9. From 2019 onwards, the offender was the subject of multiple Apprehended Domestic Violence Orders, where Ms Reilly and Ms Reilly’s mother were protected persons.

10. On 20 August 2022, Mr Hanna met the offender for the first time through a mutual friend and stayed overnight with the offender at his hotel room.

11. On 22 August 2022, Mr Hanna and Ms Reilly commenced a relationship.

12. On 23 August 2022, police lawfully recorded a conversation between the offender and an associate. Between 1:42am and 5:04am, the offender called his associate and made several threats of harm towards Mr Hanna, stating the following:

1. “Where can I find this cunt, I’m going to kill him, I’m going to kill him straight out”;

2. “it’s not even funny anymore, I’m really going to hurt this cunt I swear to god, I’m not going to sleep until I hurt him, if I have to kidnap Vivienne, I’ll kidnap Vivienne” (referring to Vivienne Glazenburg);

3. “I don’t want to shoot him I just want to slap him”;

13. From 23 to 29 August 2022, the offender regularly sent threatening text messages to Mr Hanna, including threats of death, rape and violence towards him and his family. These messages included the following:

1. “I’ll murder your whole family”;

2. “You’re a Fkn gronk and I’m going to rape you”;

3. “I’ll take everyone you ever loved like you did to me but I’ll put them, 6 feet deep”. Following this message, the offender sent a photograph of a handgun to Mr Hanna via Facebook Messenger.

29 August 2022

14. On 29 August 2022 at around 11am, police attended the residence because Mr Hanna had reported to police that he had been receiving threatening text messages from the offender.

15. At around 4:15pm on 29 August 2022, the offender entered the backyard of the residence. He began banging on the glass laundry door while screaming Ms Reilly’s name. Ms Reilly locked the door to prevent the offender from entering the residence and observed the offender holding a sledgehammer.

16. The offender shouted “Keeara! I know you’re in here, I’m going to kill the both of yous”, before using a sledgehammer to break the glass laundry door and enter the residence.

17. The offender then went into Mr Hanna’s bedroom and smashed the television screen and pulled the clothes out of his wardrobe.

18. Mr Hanna and Ms Reilly locked themselves in the bathroom and could hear the offender yelling violent death threats towards them.

19. The offender hit the door multiple times with the sledgehammer while yelling, “I’m going to kill yous, I’m going to kill yous”.

20. Ms Reilly was pushing her right shoulder against the bathroom door and on one of the occasions where the hammer struck through the door, it hit Ms Reilly on the right side of her head and causing her pain.

21. At 4:23pm, the offender was captured on CCTV footage smashing the rear of Mr Hanna’s Volkswagen Golf GTI (the car) with a sledgehammer, before leaving the residence.

22. A black jumper with the offender’s DNA was located at the scene and a wooden sledgehammer was also located in the rear of the car.

23. At 6pm, the offender sent Mr Hanna further text messages asking him to tell Ms Reilly to call the offender so that “this will stop”.

24. Police interviewed the offender on 30 August 2022 after he was arrested. During this interview, the offender initially denied going to the residence, but subsequently identified himself when shown images from the CCTV footage.

25. He denied making threats to Mr Hanna or Ms Reilly by text message or in person. He denied owning a handgun.

26. He told police that he did not remember going to the residence the day prior, due to having used cannabis, anti-depressants, Xanax and methamphetamine.

27. He stated that his hotel room had been robbed and that Ms Reilly had “run off” with Mr Hanna and gone missing. He asserted that he was concerned about Ms Reilly’s safety as she had not responded to numerous text messages sent to her and her mother.

Offender’s Case on Sentence

28. The offender tendered the following documents:

1. report of Dr Shelley Xia dated 21 August 2023;

2. letter of apology from the offender dated 11 August 2023;

3. letter of support from Noha Hakim (the offender’s mother) dated 4 September 2023;

4. Alternative Sanction Program completion certificate dated 1 September 2023; and

5. Dialectical Behaviour and Resilience-Based Program completion certificate dated 1 September 2023.

29. The following is a precis of the evidence relied upon by the offender.

30. The offender was born in Australia. He is 30 years old.

31. He has three older sisters, with an 11-year gap between him and his youngest sister. He had a good relationship with his sisters until he began using substances as a teenager. He has good relationships with both of his parents.

32. His father was involved in a motor vehicle accident prior to his birth, resulting in a traumatic brain injury. As a child, the offender witnessed his father engaging in violent acts such as breaking plates or drawers and throwing things at his mother or around the house. He observed his father “grab” his mother at times. He denied that his father physically abused him but reported that he would throw items in his proximity when upset.

33. His mother was hospitalised on multiple occasions when he was a child due to depressive symptoms. He did not understand the situation at the time but found it quite frightening. His mother also gambled and this was a source of conflict in the family home. His parents separated when he was around 16 years old. After this, he stayed with either his sisters, cousins or his mother for weeks or months at a time.

34. He was sexually abused at around age 10 or 11 by a male teacher at his primary school. He reported that the teacher would get him in trouble, put him in detention and tell him that he could go home if he performed sexual acts for the teacher. This occurred on six occasions over the period of a year. He did not tell anyone about these incidents and was scared of being blamed, as well as shamed in the context of his Islamic faith. He started talking to his sisters about his abuse approximately three years ago, following one of his sisters asking him about why he took drugs. He reports experiencing flashbacks to this abuse once or twice per week and is triggered by reports of child sexual abuse in the news and when passing schools. He has nightmares about his abuse once or twice per month. The matter is currently the subject of a civil claim.

35. He was well-behaved as a child prior to this sexual abuse. Following the abuse, he began to try to avoid school, avoided talking to teachers and his concentration deteriorated. He developed a hatred of teachers and would engage in fights at school. He was suspended in high school and then transferred to a different school. He was required to attend a behavioural school one day per week. He was expelled in Year 11 for truancy. He did not perform very well academically but never had to repeat grades.

36. After leaving school, he began a TAFE course in mechanics. He did not complete this course. He then began a bricklaying course which he is still in the process of completing.

37. He initially worked as a car mechanic apprentice but was fired on multiple occasions due to his substance use or not attending work as a result of his substance use. He has worked in bricklaying for over five years at several companies. His longest period of employment was for two years.

38. The offender started consuming alcohol when he was 16. He reported a binge-drinking pattern from the age of 18. He reported that these binge-drinking episodes would occur once per month and he would drink up to one litre of spirits in an episode, resulting in blackouts. He began consuming cannabis at age 17, using up to three grams per day. He last used cannabis just prior to his arrest for the current offences. He started using cocaine at age 20 on weekends. At around the age of 25, his use became more regular and he began selling cocaine to support his own habit. He experienced physical complications from his cocaine use, namely a hole and deviation in his septum from inhaling cocaine. As a result, he substituted his cocaine use with methamphetamine. He would smoke up to three grams of methamphetamine per day. He identified that he would occasionally become paranoid when using methamphetamine. The offender started using heroin concurrently with methamphetamine, to “come down” from methamphetamine. He started by smoking heroin, but then began using it intravenously. He last used heroin and methamphetamines just prior to his arrest. He told the psychiatrist that his heroin use resulted in increased aggression and conflict with Ms Reilly. He used benzodiazepines for approximately 10 years, with his use escalating to three tablets per day.

39. Due to his drug use, he was unable to maintain employment. He would spend all his money on drugs and sell his possessions to sustain his drug use.

40. He attempted drug rehabilitation twice. In 2021, he began a residential rehabilitation program at Odyssey House specifically for heroin and methamphetamine use as part of a court ordered program. He attended treatment, but later absconded as he felt that he was not ready.

41. The offender had gambling issues in the context of his substance use. He would gamble more than he could afford, resulting in issues with his partner and concerns about being able to pay rent and buy food.

42. He reported being abstinent from drugs in custody, and that he feels that his mental and physical wellbeing is improving.

43. He was in a relationship with Ms Reilly from the age of 19. He reported that they regularly used substances together. He reported that the first eight years of the relationship were “good” but the relationship deteriorated after they lost their jobs as a result of the COVID-19 pandemic. In the last two years of the relationship, both the offender and Ms Reilly were reportedly using “heavy drugs” and began spending time with anti-social associates. During this period, their relationship started to become a violent one. He told the psychiatrist that he does not deal with relationship breakdowns well.

44. Four years ago, the offender was hospitalised in the context of suicidal ideation secondary to relationship conflict. He was discharged after 24 hours and did not receive any follow up. Additionally, approximately three years ago, he experienced an episode of drug-induced psychosis and was admitted to hospital. He was discharged after two days with a recommendation that he engage in follow-up treatment, which he did not pursue.

45. His parents and sisters are supportive of him. He expressed a wish to no longer associate with his anti-social friends and to avoid contact with people who use substances.

46. The offender reported knowing Mr Hanna through someone that he had previously bought drugs from. They knew each other for approximately one year prior to the offence. Two weeks prior to the offences, Mr Hanna stayed in the offender’s hotel room after he had been evicted. The offender reported that there were items missing from his hotel room and he attributed this to Mr Hanna.

47. Prior to the incident, the offender had been partying with friends for two days and had not been contacting Ms Reilly in this period. He reported that Ms Reilly became angry with him for this and went to stay with her mother, and when he called her the next day she did not respond. He called her mother who said that she had not seen her. He reported that in the two or three days that he could not locate Ms Reilly, he did not sleep and consumed alcohol, cannabis, methamphetamine, heroin and alprazolam, reportedly to manage his anxiety about not knowing her whereabouts. He heard that Ms Reilly was staying at the house of a male acquaintance and he felt upset, embarrassed, jealous and angry. He went to the residence and felt “panicked” and kicked the door “in a rage”. He told the psychiatrist that he did not take the sledgehammer to the house and instead found it there. He denied having access to the gun and stated that he sent the image of the gun to Mr Hanna to scare him because he was ignoring his other messages.

48. He has completed the Alternative Sanctions Program in custody and his certificate notes that he has remained engaged and has actively participated in all sessions. He has also completed the Remand Addictions Program, the CONNECT program, a domestic violence course and Dialectical Behaviour and Resilience program during his incarceration. He has also been attending Narcotics Anonymous meetings.

49. He acknowledged his wrongdoing to the psychiatrist. In his letter to the Court, the offender expressed his remorse and acknowledged the impact of the offending on the victims. He also wrote that he has made a number of positive changes to his life in custody and has implemented what he has learnt in the various programs he has completed. His mother, in her letter to the Court, noted that he currently has a positive mindset and is eager to start afresh. She has offered the offender a place to stay on his release and is prepared to support him with seeking assistance to address his substances use issues and mental condition.

50. The psychiatrist diagnosed the offender with Complex Posttraumatic Stress Disorder relating to his experiences of childhood sexual abuse and Substance Use Disorder in relation to methamphetamine, opioids, benzodiazepines and cannabis. In relation to his risk of violent reoffending, Dr Xia found that he has a high loading of historical risk factors and a moderate to high loading of current risk factors associated with violence and reoffending. However, Dr Xia also found that he has some protective factors, including motivation to engage in treatment, goals and leisure activities as well as family support.

Consideration

Objective seriousness

51. The offence involves significant objective gravity.

52. The offence was premeditated and involved some planning in that the offender went to the residence to retrieve Ms Reilly. For a few days he had expressed ill-will towards Mr Hanna.. The offender used the sledgehammer to break the glass of the laundry door to force entry into the premises. He then proceeded to smash the television screen and pull clothes out of the wardrobe. Ms Reilly locked herself in the bathroom to evade the offender. The offender hit the bathroom door with the sledgehammer causing damage to the door and injury to Ms Reilly who was trying to hold the door closed. When the offender could not gain entry to the bathroom he went outside and smashed the back windscreen of the motor vehicle before leaving.

53. The serious indictable offence committed inside the residence was intimidation of Ms Reilly. The offence involved substantial threats of violence, including threats to kill Ms Reilly, Mr Hanna and their family members. Ms Reilly would have been scared for her own safety by reference to all those threats. The offence was domestic related and occurred in the context of a breakdown of his relationship with Ms Reilly and her new relationship with Mr Hanna.

54. The circumstances of aggravation relied on by the Crown was that the offender knew that there were persons in the residence when he entered.

55. The offender had a deprived upbringing brought about by his father’s injury, his mother’s mental health, sexual abuse and disrupted schooling. By his late teens he had turned to abusing alcohol that in turn led to increasing drug use. He developed complex PTSD as a result of his childhood trauma and a substance use disorder, which has been out of control for some time. I am satisfied that by reference to all of these matters that his moral culpability for the offences is reduced.

56. I have taken into account the maximum penalty for the offence and the standard non-parole period.

Deterrence

57. General deterrence is of significance to the offences before the Court. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will be met with appropriate punishment. General deterrence can be afforded less weight when a person suffers rom a mental condition. I am satisfied that there was a causal connection between the offences and his mental condition.

58. There is also a need for specific deterrence. The offender has some criminal history including drug and domestic violence offences. He has been incarcerated on a number of occasions. He presents a danger to the community unless he engages with treatment for his mental condition and substance abuse issues. The penalty imposed on him must bring home that if he continues to commit serious offences, he will be met with significant punishment.

Aggravating Factors

59. The offence involved the actual or threatened use of a weapon: s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999.

60. The offence occurred in the home of Mr Hanna: s 21A(2)(be) Crimes (Sentencing Procedure) Act 1999.

61. The offender was on conditional liberty at the time of the offence: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. The offender was on an Intensive Corrections Order for 6 months, imposed on 6 June 2022.

Mitigating Factors

62. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has some insight into his need for drug rehabilitation. He has tried to engage in the Odyssey House Program before but could not sustain the commitment. On remand he has undertaken a number of courses available to him and has remained abstinent from drugs in custody. I am satisfied that he has engaged in genuine attempts towards drug rehabilitation.

63. The offender has demonstrated remorse in his letter to the Court and his family. His plea of guilty also indicates remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999.

64. The offender has been in custody since 30 August 2022. He was required to serve the balance of the ICO in full-time custody between 30 August 2022 and 5 December 2022. I will partially accumulate the sentence imposed on this sentence to take into account that the ICO was revoked solely by reference to this offence.

65. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions have made the offender’s time in custody more onerous and that the restrictions may be imposed for some time into the future. I am also satisfied that the offender’s mental condition has made his time in custody more onerous.

Form 1 Offences

66. The Form 1 offences are also domestic violence related. They do call for the imposition of a higher sentence.

Penalty

67. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

68. Jason Hakim is convicted. I have taken into account the Victim Impact Statement of Ms Reilly.

69. I make a finding of special circumstances. The offender’s mental condition requires an extended period of treatment that will be best provided for in the community and he has not previously had the benefit of a lengthy period of supervision on parole, which may provide him with the opportunity to participate in residential drug rehabilitation.

70. Taking into account the matters on the Form 1 and the discount for the plea of guilty, I impose a term of imprisonment of 3 years with a non-parole period of 18 months to date from 30 September 2022. The non-parole period will expire on 29 March 2024 and the head sentence will expire on 29 September 2025.

71. The offender will be eligible to be released on parole on 29 March 2024.

72. Mr Hakim you will have to apply for parole and the success of that application will depend on how you continue to apply yourself to your rehabilitation goals in custody.

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Amendments

26 February 2024 - Error made in paragraphs 2 and 3 on the cover sheet.

Decision last updated: 26 February 2024