R v Serour
[2013] NSWDC 175
•21 June 2013
District Court
New South Wales
Medium Neutral Citation: R v Serour [2013] NSWDC 175 Hearing dates: 21 June 2013 Decision date: 21 June 2013 Before: Neilson DCJ Decision: Sentenced to 4 years and 6 months imprisonment, with a non-parole period of 3 years
Catchwords: CRIMINAL LAW - Sentence - Specially aggravated enter and commit serious indictable offence - Larceny - Intentional wounding - Offender and co-offender entered dwelling of victim - Offender struck victim with baseball bat multiple times to head and chest - Offenders made demands for valuables - Threats of further harm if victim did not help the offenders - Offenders searched through dwelling for twenty minutes - Offender again hit victim with baseball bat in eye area a couple of times and on back of his head and on his knees - Two mobile phones and wrist watch taken by the offenders - Victim admitted to hospital overnight and discharged following day - Victim a full-time live-in carer for elderly person - Victim a long time volunteer for Salvation Army - No evidence of long term sequelae from lacerations - Offender on conditional liberty at time of offence Legislation Cited: Crimes Act 1900 s 111(3) Cases Cited: R v Kenny Li (unreported, NSWCCA, 9 July 1997) Category: Sentence Parties: Regina (Crown)
Pierre Serour (Offender)Representation: Mr P Bakalidis (Crown)
Mr D Evenden (Offender)
File Number(s): 2012/179551
Judgment
Pierre Mina Serour stands for sentence as a consequence of having pleaded guilty to a charge that on 23 December 2011 at Kingsford in this State, being armed with an offensive weapon, he did enter the dwelling house of Jordan Sancin situated at 125 Houston Road with intent to commit a serious indictable offence therein, namely larceny, and while inside the said dwelling house did wound Jordan Sancin. That is an offence contrary to s 111(3) of the Crimes Act 1900. It is a very serious offence, as is reflected by the maximum penalty prescribed by Parliament, imprisonment for twenty years. The facts of the specially aggravated entering of a dwelling house are disturbing.
Jordan Sancin, who was aged forty-three, lived in a house in Houston Road, Kingsford. He was a live-in carer for another man who lived at those premises who can be described merely as Richard. Richard was elderly and had a number of health problems. Despite his age and frailty, Richard was a man who on occasions had engaged in the possession and supply of prohibited drugs.
On the evening of 23 December 2011, Mr Sancin was at home alone as Richard had gone out to play cards with friends. At about 10.30 Mr Sancin was getting ready for bed when he heard a knock at the front door. He elected not to answer the door because he was not expecting any visitors.
A few minutes later he heard a noise outside the house. He walked down the hallway and looked into the bathroom. He noticed that the window was fully open, which he thought was odd because it was normally only ever left partially open. As he was about to walk into a bathroom to inspect the situation, he was struck on his head and chest several times with a metal baseball bat wielded by the current offender. The offender then ran to the front door and admitted another man, whose identity remains unknown, into the house. That man was a co-offender.
Mr Sancin was told to sit down in a chair in the dining room. The offender asked him where were the drugs and where was the money, or words to that effect. Mr Sancin said that he did not know, that he merely lived in the house. The offender then went through several rooms searching obviously for drugs and/or money. Whilst that was happening, the co-offender was standing over Mr Sancin again making demands for valuables and pointing out to Mr Sancin that the co-offender and the offender did not want to leave the house "empty-handed". The offender then returned to where Mr Sancin was sitting and threatened further harm if he did not help the offender and his co-offender find what they wanted to find. Again Mr Sancin pleaded with the offender that he did not know where any drugs or money were kept.
The offender and the co-offender then continued to search through the house for about twenty minutes. The offender then returned to Mr Sancin and hit him with the baseball bat in the eye area a couple of times. He was then hit again with a bat on the back of his head and on his knees. Mr Sancin then asked to be allowed to call an ambulance, promising not to call the police. The offender and the other male then left the house.
Mr Sancin called for the ambulance, which arrived shortly thereafter as did the police. While he was waiting for the ambulance to arrive Mr Sancin looked about the house and noticed that his two mobile phones were missing as well as his wristwatch. The offender asks me to take into account on a Form 1 the larceny of those objects.
Mr Sancin was taken to St Vincent's Hospital. He was attended to in casualty by Dr Kirsty Short at five minutes to midnight. Dr Short found a 2-centimetre laceration 3 centimetres above the victim's left eyebrow. She also found a 1-centimetre laceration immediately above the left eyebrow. There was a boggy swelling to the left occipito-parietal region with two overlying lacerations each 4 centimetres long, that is, a laceration on the top of the scalp on the left-hand side. There was a black eye of the left eye. There were abrasions to the victim's left loin and buttock. He also had contusions of both forearms and his left knee and there was swelling and tenderness of his right wrist. A CT scan of the brain and the cervical spine were carried out but they revealed no abnormality. There was no suggestion that there were any broken bones. One of the lacerations was glued and the remaining lacerations needed stitching. The victim was discharged from the hospital on the following day, Christmas Eve.
There is in evidence a victim impact statement from Mr Sancin. He recounts much of what any informed observer would realise about somebody who has been assaulted in the way that Mr Sancin was. He has suffered from anxiety, stress and depression. He has been made angry. He now mistrusts people. He exhibits hypervigilance when hearing noises from people around him or from people entering any building in which he is. The final statement in the victim impact statement is this: "I spent so much time doing volunteer work for the Salvation Army and helping needy people and this is what I get. Not fair". The inference to be drawn is that Mr Sancin was acting as Richard's carer because of his voluntary work for the Salvation Army. No doubt the job as a carer gave Mr Sancin perhaps free accommodation but still his work appeared to have been voluntary.
The circumstances of aggravation and circumstances of special aggravation for this offence are set out in s 105A of the Crimes Act. There are three circumstances of special aggravation. They can shortly be described as intentional wounding or intentionally inflicting grievous bodily harm, recklessly inflicting grievous bodily harm, and being armed with a dangerous weapon. Merely being armed with a dangerous weapon is not, in my view, as serious as intentional wounding.
The circumstances of aggravation are six in number. That pleaded is being armed with an offensive weapon, namely the baseball bat. However, there are here other circumstances of aggravation. For example, the offender was in company. The offender also deprived the victim of his liberty, he was kept locked in the house for at least twenty minutes when the house was being searched by the offender and his co-offender. The sixth circumstance of aggravation is that the alleged offender knows that there is a person or that there are persons in the place where the offence is alleged to be committed. Under subs (2A), if there was a person in the place in relation to which the offence is alleged to have been committed at the time the offence was committed, the accused is presumed to have known that fact unless he satisfies the Court to the contrary. The offender has not sought to establish that he did not believe that there was anybody at home. Indeed the fact that he entered the house with a metal baseball bat is only consistent with the fact that he anticipated that he might encounter somebody in the house.
The additional circumstances of aggravation can be taken into account as aggravating factors at common law, making the especially aggravated offence even worse.
Furthermore, there are other aggravating factors within s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. Here the wounding involved the actual use of a weapon. Wounding can be inflicted without the use of a weapon. A split lip can amount to a wound and such a wounding can be caused by a punch.
There is also the aggravating factor that this crime was carried out in the home of the victim. Every member of our community expects to be safe and sound in his or her own home. For a crime of violence to be inflicted upon someone in his or her own home is clearly an aggravating factor. It is a moot point here whether harm suffered by the victim was substantial. Physically, one would not expect there to be any long-term sequelae from lacerations; however, psychic trauma suffered by the victim can persist indefinitely. The evidence does not permit me to find that the harm was substantial but it is something that in any event I must consider.
The final aggravating factor is that this offence was committed whilst the offender was on conditional liberty. He was on a bond at the time to be of good behaviour, a bond for two years imposed by the Local Court at Kogarah on 4 April 2011. Both under the statute and at common law the commission of an offence when a person was at conditional liberty is an aggravating factor.
There are a number of disturbing features about what can be essentially described as an armed home invasion. The first is that the victim was not given any opportunity of surrendering by the offender. The offender merely attacked him with a baseball bat without any warning. The offender and his co-offender then persisted in their search of the premises for at least 20 minutes in which the victim obviously would have been in fear. The prolongation of the invasion is significant. The offender then again attacked the victim with the baseball bat to try to obtain further information.
All of these facts are extremely disturbing. In R v Kenny Li (unreported, NSWCCA, 9 July 1997) Abadeen J pointed out that offenders convicted of home invasion offences can expect to receive severe and condign punishment from the Courts in order to protect the public and in particular to protect citizens of this state who are lawfully in their own home.
Anyone with any experience of the criminal law would know that it was highly likely that the reason for this home invasion was to obtain drugs or money with which to buy drugs to support a drug habit. This is exactly what occurred in the current case. The offender had an expensive drug habit. At the time that he committed these offences he was affected by marijuana, a prescribed drug Xanax, which he abused, and cocaine. The offender told Ms Caroline Hare, a psychologist, that on the day of this offence the drugs had made him "ruthless." His drug ingestion also caused him not to care about the consequences of what he was doing. However, that can be no excuse in law for what the offender did.
Of the personal circumstances of the offender much can be said. It countermands to some extent the seriousness of the offence committed by this offender. Despite having what looks like a French name, the offender's parents are both Coptic Orthodox Egyptians who raised the offender in Sydney. He is one of three siblings. He has an older sister who is shortly to marry and a younger brother who is five years his junior. The offender's father was a violent man. The offender witnessed domestic violence being perpetrated by his father on his mother on a regular basis and was himself the victim of domestic violence perpetrated by his father when he attempted to "stand up" to his father.
The offender told Ms Hare that he recalled a particular incident when he saw his sister and mother hiding under a bed whilst his father kicked the bedroom door down and entered the room looking as if he would kill his mother and sister. On one occasion the offender's father had used a statue to strike him, causing the offender a serious wound. On that occasion the police needed to be called. The offender's parents separated when he was nine and it appears that there has been no contact between the offender and his father since.
The offender then took on the role of the man of the house. He adopted the values that his father had and, no doubt, had inherited from his Egyptian background. That is, that a woman's place is in the home, that the man must protect and rule, and the man must be strong and show no emotion. This appears to have led the offender both into drug use and into mental health problems. The psychologist, Ms Hare, provided this "formulation":
"Mr Serour impressed as a young man who had experienced repeated violence within the home during his early childhood. He was exposed to poor parental modelling. He failed to develop secure attachments with primary care givers due to the abuse he experienced. He appeared to feel pressure to be the 'man of the house' following his parent's eventual separation and engaged in this role by modelling the types of attitudes and behaviours he had observed in his father, which included apparent misogynist beliefs. Lack of exposure to appropriate modelling by his caregivers left Mr Serour unable to manage his emotions and lacking skills to develop mutually supportive interpersonal relationships. He subsequently experienced significant interpersonal difficulties resulting in volatile relationships and ultimately leaving him socially isolated.
Mr Serour appears to have engaged with substance misuse in response to a number of stressors, including: being unable to pursue his soccer career overseas and therefore 'giving up'; being unable to meet the expectation of others; an associated sense of failure/low self worth; peer influence; and self medication to regulate his emotions. Subsequently, he became increasingly embroiled in antisocial subculture as a result of being unsuccessful in studies, not gaining a place at university or maintaining stable employment, ongoing misuse of substances, lack of finances, and feeling accepted by his antisocial peers rather than feeling judged and found wanting. Polysubstance abuse has been a consistent problem for Mr Serour since the age of 14 and appears to have impacted upon his life across a range of areas, including his mental and physical health. Identifying whether psychological issues preceded, or resulted, from his substance misuse is challenging. However, the types of behaviours described above, his presentation in interview, and the results of the psychometric testing are suggestive of personality difficulties.
Mr Serour appeared to commit the index offences in the above context. The offences were more immediately triggered by his need for finances to buy drugs, his general impulsivity and lack of consequential thinking, and his antisocial attitudes linked to his negative peer associations, which allowed him to override any inhibition to committing the offences."
I accept that formulation as being accurate. Earlier in her report, Ms Hare had listed the offender as having a number of dysfunctional personality traits, including problems regulating his emotions and associated aggression/hostility, impulsivity and risk taking behaviours and unstable personal relationships. The offender cannot be held accountable for his dysfunctional upbringing, the actions of his father. To the extent that his personality traits reflect his dysfunctional upbringing, the offender cannot be held morally culpable.
The offender commenced drinking alcohol at the age of 14. He tended to binge drink at weekends and on occasions would even go to school drunk. However, he was dissuaded from binge drinking alcohol at the age of 16 when he saw friends of his having their stomachs pumped. Instead he turned, excessively, to smoking cannabis, which he had also started to smoke at the age of 14. He has been smoking daily since the age of 18 at least up until he was taken into custody when arrested on 8 June 2012. He was smoking up to an ounce of cannabis per day.
Between the ages of 16 and 19, the offender used methamphetamine approximately every second day. However, at the age of 19 he replaced methamphetamine with cocaine. He commenced snorting cocaine at the age of 17 and, by the age of 19, smoking it. However, he did not give up taking ice completely and would take it once a week from the age of 21. He started misusing Xanax at the age of 14. The offender has, since being taken into custody, given up all illicit drug taking.
A 14 year old boy - and I use the word "boy" advisedly although most 14 year olds would present such usage - cannot foresee the likely effect of starting drug use and becoming addicted to drugs. It would appear that the offender was addicted to drugs before he finished school. By starting to take drugs at age 14, the offender made a poor choice but a choice that many young people unfortunately make. It is different if, for example, a person takes up drug use after reaching maturity. Again, that attenuates the offender's culpability for his drug taking somewhat.
I accept that the offender is contrite. He wrote a letter to me, which became exhibit 9. He gave sworn evidence and I was impressed by his evidence. In his letter he said this:
"Daily, I put myself in the shoes of Mr Jordan Sancin, and I had become completely horrified every time. I can only imagine the terror he went through that evening. I am very sorry for my actions, and I always want to try and find a way to help Mr Sancin and also let him know how remorseful I really am."
He displays true victim empathy, which is what the Court always seeks in looking for remorse and contrition. The Court is hardly impressed by self pity or pity, for example, for family members who feel let down by an offender's behaviour. The Court always looks for empathy with the victims of the crime so that the offender understands the nature of what he has done.
The offender has realistic plans and insight. In the same letter he said this:
"After being in custody and choosing to stay away from these people [anti social peers], and remaining drug free, I have realised that, the drugs and the crowd of people I was mixed in with, had a major influence on all the wrong decisions and poor choices I had made in my life."
Later in his letter he went on to tell me that since becoming drug-free in custody was the first time in his life that he acknowledged that he needed serious help. Such help can be provided by counselling and drug and alcohol rehabilitation whilst in custody.
The offender originally pleaded not guilty to perhaps a more serious charge. He was committed for trial in this Court by the Local Court on 16 June 2012. He was arraigned on 16 November 2012 and a trial date was fixed for Monday 15 April 2013. On the following day, the offender pleaded guilty to the offence for which he now stands for sentence. The plea must be seen as a late plea of guilty and only attracts a discount of 10%.
The prospects for rehabilitation are good, provided that the offender maintains his resolve to stay away from drugs and alcohol and to stay away from a poor peer group. He told me of his efforts to do so in the witness box. However, when he is released from custody there will be greater temptations than he might now have in custody. There would be a prolonged need for supervision by the Community Offender Service to ensure that the offender maintains his resolve to stay away from drugs and a poor peer group. In other words, there are grounds for finding special circumstances.
I must balance the seriousness of the offence against the offender's personal circumstances. This is the most difficult part of sentencing. Statistics available from the Judicial Commission provide little assistance. They record only 29 cases in which the sentence has been passed under s 111(3). One offender obtained a suspended sentence. One offender was sentenced to periodic detention. 27 offenders were sentenced to imprisonment. There were only 16 non-consecutive sentences. The median head sentence is three and a half years and, much to my surprise, the median non-parole period is only one and a half years. At the top of the 80% range, the head sentence is six years and the non-parole period is three years.
I have determined that the appropriate starting point for this sentencing exercise is a head sentence of five years imprisonment. I discount that by 10%, which reduces the head sentence to four years and six months. That should theoretically give me a non-parole period of three years and four months but it in my view, the more appropriate non-parole period, bearing in mind my finding of special circumstances, is three years imprisonment.
No one wants any further reasons do they? In passing that, I have not formally passed sentence but I take into account him making those findings of matter and that is on the Form 1. No one wants any further reasons do they?
EVENDER: No your Honour.
HIS HONOUR: Now three years takes him to 5 June 2015. What is one and a half years after that - 5 December 2016, is it - 5/12/16? So those dates are right - 6/6/12 to 5/6/15 and then to 5/12/16.
Pierre Mina Serour, on the charge that on 23 December 2011 at Kingsford in this State, whilst being armed with an offensive weapon, you did enter the dwelling house of Jordan Sancin, situated at 125 Houston Road, with intent to commit a serious indictable offence therein, namely larceny, and while you were inside the said dwelling house you did wound Jordan Sancin, you are convicted. I sentence you to imprisonment. I set a non-parole period of three years commencing on 6 June 2012 and expiring on 5 June 2015. I impose a further period of imprisonment of one and a half years, to commence upon the expiration of the non-parole period and expiring on 5 December 2016. The total sentence is therefore four and a half years, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. I have taken into account the matter on the Form 1 in passing that sentence. It is a term of your release to parole that you obey all reasonable directions of Community Offender Service regarding drug and alcohol rehabilitation, counselling and testing.
Any other orders sought?
EVENDEN: No your Honour. Sorry, could I just have a moment with?
HIS HONOUR: Certainly yes.
EVENDEN: Thank you your Honour.
HIS HONOUR: Good luck, Mr Serour.
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Decision last updated: 19 September 2013
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