R v Jibran

[2019] NSWDC 317

District Court

New South Wales

Medium Neutral Citation:

R v Jibran [2019] NSWDC 317

Hearing dates:

06 February 2019

Decision date:

06 February 2019

Jurisdiction:

Criminal

Before:

Colefax SC DCJ

Decision:

Aggregate term of imprisonment of 4 years with a non parole period of 3 years - decline to find special circumstances. 

Catchwords:

CRIME -SENTENCE - Aggravated kidnapping - drive whilst disqualified - destruction of property.

Legislation Cited:

Crimes Act 1900 (NSW), ss; 86(2)(b), 195(1)(a), and Road Transport Act 2013, ss 54(1)(a)

Category:

Sentence

Parties:

Regina (Crown)

Mohammed Jibran (Offender)

Representation:

Mr Sit (ODPP Parramatta)

Mr Brock (For the offender)

File Number(s):

2018/141608

Publication restriction:

Nil

​

1. Mohammed Jibran, you appear for sentence today in relation to 3 offences.  The first, and principal, offence is that of aggravated kidnapping, taking or detaining a person with intent to obtain an advantage.  The maximum penalty to that offence is 20 years' imprisonment and there is no standard non‑parole period. 

2. In addition to that principal offence, you have consented to this Court dealing with two matters on a s 166 certificate.  Those matters are driving whilst disqualified and destroying property.  The maximum penalty for those offences in the Local Court is 12 months and 2 years imprisonment respectively.

3. The facts surrounding the 3 offences are substantially contained in an agreed statement of facts. Those facts are, to an extent, supplemented by information which has been provided to the Court by the sentencing assessment report and the expert psychologist's report.

4. In 2018, you were 30 years old.

5. You had been married when you were between the age of 20 and 30 years. 

6. During the course of your marriage, you had a number of extra‑marital affairs which brought stress to the marriage. 

7. It is not entirely clear from the facts whether, as at 4 May 2018, you had separated from your wife.  But whether or not you had actually formally separated from her, the marriage was on shaky ground to say the least.

8. On 4 May 2018, you had been released on bail by police.  

9. Somehow, in circumstances not revealed in the statement of agreed facts, you left the police station and managed to travel to premises at Merrylands where you met a young woman with whom you had previously had an affair.  You arrived about 10pm.  You and she then got into a motor vehicle and drove from Merrylands to Concord, where she lived. 

10. Although you had been in an intimate relationship with her, she did not want you to know precisely where she was then living.  She told you to the drive the motor vehicle near her home and she asked you to stay in the car while she went inside to retrieve some of your property that she had been keeping for you and which she was going to return to you.

11. When she returned to the motor vehicle, you then drove her and yourself towards the city so that you could meet a friend.  This was getting on towards midnight and the young woman told you that she was getting tired.  You were trying to make arrangements to stay in a hotel.  While these arrangements were being negotiated, the young woman continued to tell you that she wanted to go home to sleep.  There was an argument between the two of you and you asserted that you wanted to spend the night with her.

12. At about half past 12, the young woman managed to book a taxi on her mobile phone.  Precisely where, and in what circumstances, the taxi was to meet her is not revealed by the statement of facts but it would seem that, although the taxi was booked to collect her from some place at some time, she accepted an offer by you that you would drive her home. 

13. As you drove her back towards where she lived, you and she argued about why you could not go into her house.

14. Ultimately, the motor vehicle which you were driving and in which she was a passenger arrived at the street in Concord where she lived.  She told you that she needed to go to sleep and that you and she would talk the next day.  You said that you would sleep in the car.  She got out of the motor vehicle and began walking up the street towards her home.  You then called out to her and asked her to talk further with you in the your car.  She said she did not want to and she continued walking up the street.  You then drove the car after her and got out of the car. There was an argument in the street.  You, again, asked to spend the night with her.  She told you that she did not want to do that; she wanted to go home; and she threatened to call the police.  You continued to argue with her, not being willing to take "no" for an answer.

15. The young woman then called triple‑0 on her mobile phone.  She told the operator that you were following her and that you wanted to come back to her house and that you would not let her go home. 

16. Whilst the young woman was giving the triple‑0 operator her address, you took that phone off her and you put your hand over her mouth.

17. I pause to observe that I do not know the physical qualities of the young woman, but I do know yours - you are a tall and powerfully built man.

18. You then pushed her along the street towards the motor vehicle. The triple‑0 operator could hear her screaming - as did three different residents who lived near the young woman.

19. You pushed her into the back of the car, locked the door, and tried to start the car. 

20. You then swung your arm at her.  

21. You then drove off and threw her mobile phone out of the window.  As you were driving off, she asked you to stop.  She told you she was hurt.  The agreed statement of facts do not reveal how she was hurt or where she was hurt or how she came to be hurt.  In any event, you ignored her.  You drove off.

22. So terrified was this young woman of you that she thought of jumping out of the car because she did not know what more you were going to do to her. And she did jump out of that car, whilst it was still being driven by you, when she saw that there were no cars beside yours.  Consistently with the unhelpful nature of the agreed statement of facts, there is no statement as to how fast the car was driving when she jumped out.  However, the Court has been told that, as a consequence of her jumping out of the car, she had two large grazes to her leg, a cut to her right foot, and grazes to her elbow. 

23. Once she got out of the car, she was so frightened of you (she feared that she could not outrun you) she climbed over the fence of some premises in Concord and hid from you. 

24. You then went looking for her.  You went to the premises adjacent to where she had climbed over the fence.  You rang the door. A male occupant answered it and you told him that your "girlfriend"  (which of course was a lie) was in the back of his house. You told him that she was a methylamphetamine addict (which was another lie) and you demanded to be let in. 

25. Fortunately, this occupier did not believe your lies.  He told you go away and that he was going to call the police.  Also, fortunately, the occupier's wife was a nurse.  She formed the opinion that your victim was not affected by ice.  She dressed the wounds and they made a triple‑0 call.

26. The police arrived at the premises.  Amongst other things, the young woman told them that you had punched her.  Whether this was what caused her to complain that she was hurt at about the time you threw her mobile phone out of the window of the car is not clear to me. She was taken to Concord Hospital for treatment.  You were arrested later that morning.

27. You have never held a driver's licence and, in fact, as of the date of this offending when you were driving around Sydney in this motor vehicle, you had been disqualified from obtaining a licence until 2024. 

28. It is the placing of that young woman in that motor vehicle, and driving it in the way that you did, that constitutes the offence of aggravated kidnapping. 

29. It is the destruction of her mobile phone, by throwing it out of the window, that constitutes the offence of damage property.

30. It is the driving of the motor vehicle on that night which constitutes the offence of driving whilst disqualified. 

31. In terms of objective seriousness of the offences for offences of their kind: the kidnapping is slightly below a mid-range offence; the damage to property is towards but not at the bottom of the bottom of the range; and the disqualified driving is at the top of the range.

32. Each of these offences is additionally aggravated by the fact that you were on bail. 

33. There is no victim impact statement from this victim but it is clear enough to me that this young woman was terrified that night; so terrified of you that she jumped from a moving motor vehicle; and indeed sufficiently scared of you that she was most keen for you not to know where she lived. 

34. You are now 31 years old. 

35. Your subjective circumstances have been advanced through two documents: first, a psychologist's report dated 24 January 2019; and secondly, by a sentencing assessment report dated 5 February 2019. 

36. To a large extent, the two documents have some degree of commonality. But there are two significant respects in which they are in conflict.  In the psychologist's report, the impression given is that your relationship with your wife is one which you hope to be able to reconcile.  However, when that issue was raised by the community corrections officer for the purpose of the sentencing assessment report, you refused consent to that officer contacting your ex‑wife - and therefore I discount what you told the psychologist.

37. In the psychologist's report some history is given of your work. It states that your previous employer (you worked as a cabinetmaker) would have work for you.  You refused permission to the community corrections officers to check that asserted fact. I therefore discount what you told the psychologist.

38. You come from a good family.  You were brought up in a loving and supportive household.  There were no issues of domestic violence or inappropriate behaviour by your parents or your siblings.  But, regrettably, when you were an early teenager, your father died. From that moment on, your life began to unravel.  The next eldest male in the house was an 18‑year‑old boy who was expected to take over the role of the "man of the house" - but as I have said he was only 18 himself.  You, therefore, did not have an appropriate senior male to assist you through the difficulties of adolescence.

39. You sought to deal with the grief of the loss of your father through abusing alcohol and illicit drugs.

40. Your range of drug‑taking has included cannabis, ecstasy, methylamphetamine, GHB and Xanax.  You also have significant gambling issues. 

41. At the time that you committed the offence on this young woman, you had taken methylamphetamine.  The concept of a man as big as you, out of control on ice, is a terrifying prospect.

42. You have not sought treatment for your extensive and prolonged use of illicit drugs.  You have not sought assistance in relation to your anger issues. Indeed, in the expert's report tendered on your behalf, the psychologist concludes that you constitute a high risk of intimate‑partner violence as a result of your emotional coping and drug abuse issues. 

43. You purported to express remorse in the witness box today.  But as the author of that expert report himself noted, you reflected minimisation of the severity of the violence on that woman. I am not satisfied on the balance of probabilities that you are genuinely remorseful.

44. By reference to your own psychologist's report, as well as the sentencing assessment report, your prospects of rehabilitation are guarded at best. 

45. This is not your first criminal offence.  You have numerous offences of driving without a licence or whilst disqualified.  You have one prior offence of violence.  You have offences of dishonesty.  You are not entitled to the leniency which, in appropriate circumstances, is extended to a first offender.

46. Insofar as each of the offences are concerned, the s 5 threshold is crossed.

47. You pleaded guilty at the first available opportunity and you are entitled to a 25% discount on the sentence for each of the offences.

48. I intend imposing an aggregate sentence on you.  For that reason, it is necessary for me to state the indicative sentences.

49. In relation to the damage to property offence, the indicative sentence is 6 months imprisonment minus 25%; that is, 4 months imprisonment.

50. In relation to the drive whilst disqualified, the indicative sentence is the maximum penalty, 12 months imprisonment minus 25%, which is 9 months imprisonment.

51. In relation to the offence of aggravated kidnapping, (and having regard to the 2 decisions of the Court of Criminal Appeal to which I was taken during submissions) the indicative sentence is 4 years' imprisonment minus 25%, that is 3 years' imprisonment.

52. You have been in custody for 7 months and five days and consequently the start date for the non‑parole period will be backdated to 5 July 2018.

53. Although the Crown has conceded that I could make a finding of special circumstances, I decline to do so.  Notwithstanding that this is your first period of imprisonment that, in and of itself, is not a sufficient reason to make a finding of special circumstances. I do not believe your prospects of rehabilitation would be enhanced by a longer period on parole.  There are no issues that attend upon your serving your sentence which would be more onerous than for others. 

54. I impose an aggregate sentence of 4 years' imprisonment. 

55. I fix a non parole period of 3 years' imprisonment to date from 5 July 2018 and which will expire on 4 July 2021.

56. I fix a balance of 1 year to date from 5 July 2021 and which will expire on 4 July 2022.

Decision last updated: 30 July 2019