District Court New South Wales Medium Neutral Citation: R v Issa [2024] NSWDC 555 Hearing dates: 25/3/24-8/4/24, 5/7/24, 2/8/24, 9/8/24 Date of orders: 9/8/24 Decision date: 09 August 2024 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Convicted and sentenced to an aggregate term of imprisonment of 2 years 9 months with a NPP of 1 year 8 months (5/1/24-4/9/25). Indicatives: Count 1 Break with intent to commit intimidation – 2 years 6 months with NPP 18 months Count 3 Stalking – 12 months. Catchwords: Crime – Sentence – Break and enter dwelling house and intimidate - Stalking Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 Ponfield v R (1999) 48 NSWLR 327 Category: Sentence Parties: NSW DPP – Crown Osman Issa - Offender Representation: Mr D Rainey for Crown Mr A Cassels/Mr AJ Karim for Offender File Number(s): 22/257192 Publication restriction: Statutory non-publication of the identity of the victim remarks on sentence 1. The offender, Mr Osman Issa, stood trial before a jury in a trial presided over by myself from 25 March until 8 April 2024 when the jury found him guilty of counts 1 and 3 on the indictment but not guilty of count 2. He is now to be sentenced in relation to counts 1 and 3. 2. Count 1 is an offence of breaking and entering on 6 August 2022 the dwelling house of the victim, Ms EH, and committing an act of intimidation in circumstance of aggravation. The aggravation being that the offender knew there was a person present in the house. The maximum penalty for that offence is 20 years' imprisonment and a standard non-parole period of five years is specified. 3. Count 3 is an offence that between 15 and 23 August 2022 the offender stalked the complainant with the intention of causing her to fear physical or mental harm. The maximum penalty for that offence is five years' imprisonment. 4. The maximum penalties and, where applicable, standard non-parole period, are guidelines in the sentencing exercise to which I have had appropriate regard. FACTS 1. Turning to factual matters. The facts of the two offences are for me to determine based on the evidence admitted in the trial. Matters in aggravation must be proved beyond reasonable doubt, while matters in mitigation need only be proved on the balance of probabilities. 2. A summary of the suggested relevant facts was set out in the Crown's written submissions, and counsel for the offender accepted that they provided an accurate summary. Based partly on that summary and on the evidence at trial, I find the following facts. 3. The offender and the victim met each other around 2015 and, after exchanging phone numbers, they became friends. The victim and the offender got on very well for some years and the victim described the offender as being very nice and caring and a good friend. At an earlier time, the victim had been living with her mother. However, in May 2022 she moved with her then 12-year-old son into her own premises at Granville. 4. The relationship between the victim and the offender was at that time friendly and normal, and they would exchange texts with each other and meet up fairly regularly. However, shortly after this, the relationship changed and the offender commenced to visit the victim very frequently without notice or invitation. The offender also loaned or gave money to the victim, which was at his insistence. These changes in the relationship occurred around the same time as the victim moved into her own premises. The offender's visits to the victim's house became very frequent, with the victim describing them as being practically every day. The offender started asking questions of the victim which she described as being controlling and at times aggressive, because he would, for instance, ask her about why she had certain people coming to her house. 5. These changes in the relationship between the offender and the victim are, in part, demonstrated by the text exchanges in trial exhibit 1, which included texts up until 19 June 2022 when the victim changed her number. Prior to that time the messaging included the victim saying to the offender by text, "Why are you stalking me?" and, "That's creepy," as well as others in which she threatened to "call the cops". A large number of further texts were exchanged, including one in which the offender referred to the victim as "baby" and another in which he said, "I can't be friends." 6. The offender's somewhat obsessive and possessive interest in the victim was also evidenced by text messages that he sent to a male friend of the victim on 18 June 2022 asking that the friend "stay away" from the victim as the offender was "getting more serious with her". Although the victim had changed her phone number, the offender continued to attempt to contact her, which was largely in the form of regular attendances at the victim's house where she would avoid him by pretending not to be home. This evidence about other contact or attempted contact of the victim by the offender is relevant as background or context only and I have taken care not to treat this as a separate course of offending or as an aggravating matter. 7. The count 1 offence took place on 6 August 2022. At about 11pm that night the offender attended the victim's residence, uninvited, and then broke into the premises by opening a closed but unlocked side door to the victim's garage. The garage had been converted into a home gym and at the time the victim was using the gym for a "workout". After opening the door the offender entered the garage and committed the serious indictable offence of intimidation by his use of menacing actions and words which he directed at the victim. The offender said, "Why did you go to the police?" At the time the offender was wearing a hoodie with the hood up. When the victim informed him that there were cameras in the garage, the offender pulled the hood further forward on his head. 8. At the time the offender was holding a screwdriver in one hand and another object in his other hand and said to the victim, "Don't fucking go to Court. Make sure you don't fucking go to Court," as well as, "We've been friends for so long. Don't go to Court…We're going to be dragged in and out…Just don't…Don't go to the police." In response the victim said, "Okay, if you don't come back and leave me alone I won't." Although the victim was scared by this incident, she said that she felt relieved because the offender said something like, "Take care. Good luck with your life," and she thought that it, that is, the offender's pursuit of contact with her, was over. 9. Count 2 on the trial indictment was an allegation that during this same incident the offender assaulted the victim by grabbing hold of her "crop top" and saying, "I will hurt you." However, the victim did not recount this part of her allegation until she was cross-examined by the Crown pursuant to s 38 of the Evidence Act 1995, which may go some way to explain why the jury found the offender not guilty of that count. Again I am reciting this part of the evidence by way of context only. The assault allegation is, therefore, a matter that I ignore for the purposes of sentencing. 10. The count 3 offence involved the offender having stalked the victim by attending her premises on 16 and 22 August 2022. He did so with the intention of causing her to fear physical or mental harm. This was several weeks after 18 June 2022 when the victim and the offender had had a heated argument via text message exchange. Trial exhibit 4 comprises WhatsApp messages sent by the offender to the victim on the evening of 16 August 2022 at a time consistent with the CCTV footage in trial exhibit 5. The victim blocked the offender's number on 16 August 2022, and subsequently changed her mobile number. Trial exhibits 7 and 8 contain WhatsApp messages between the offender and the victim via her son's phone, which were sent on 22 August 2022 at a time after the offender had attended the victim's premises that day, stalking her. On that day the offender sent a message to the victim via her son's phone which said: "You have to be ashame yourself after everything that I've done for you for seven years and your show me a message of somebody that I had nothing to do with it. Are you sick in the head? Is this something wrong with you? Well, I have something for you"-- 1. And then a thumbs up sign, to which the victim replied, "This message is going to the police." 2. The offender also sent the victim a message telling her to go home, and when the victim responded, "You have drove me and my son crazy," the offender sent a message that said, "By the way I'll give you that as a birthday present not to have sex with you. Man, how can you bring that up. That's fine I'll see you at Court. It's no problems." To this the victim replied, "Leave me alone and don't message my son any more. He is very upset. Pleaseee go away," and, "I will see you at Court." 3. The offender's attendances at the property of the victim, which are the subject of count 3, were captured in CCTV material, which became exhibits 5 and 6 in the trial. On 16 August 2022 the offender's white van was depicted circling, that is, driving past, the victim's property on seven occasions at various times between 8.14pm and 9.52pm. On 22 August 2022 the offender's attendance at the property was captured in two recordings between 9.44am and 9.54am. On that date the offending ended with the intervention of the victim's ex-partner who happened to be at the property at the time and who, as shown in the CCTV material, escorted the offender away from the property. Those are the relevant facts of the offences. OBJECTIVE SERIOUSNESS 1. Turning then to my consideration of the objective seriousness. The potential seriousness of the offences before the Court are marked, firstly, by the substantial maximum penalties and the specification of a standard non parole period for the count 1 offence. As I have said earlier, these are, of course, important guideposts or yardsticks in the sentencing exercise. 2. The objective seriousness of a "break and enter"-type offence is to be assessed by reference to all of the circumstances, as well as the matters discussed in Ponfield v R (1999) 48 NSWLR 327. I note, however, that most of the objective matters referred to in Ponfield are now contained in s 21A of the Crimes (Sentencing Procedure) Act 1999. 3. In assessing the objective seriousness of the count 1 offence, it is relevant to have regard to the nature of the serious indictable offence, which, in this instance, was one of intimidation. That offence itself carries a maximum penalty on indictment of five years' imprisonment, which places it at the lower end of indictable offences in terms of potential seriousness. The offence involved some minimal level of planning by reason that the offender had armed himself with a screwdriver and another item. There was some reference in the trial to the other item being a hammer, but I am unable to be satisfied about this beyond reasonable doubt and so I put this suggestion aside. However, the presence of the screwdriver is a matter that would clearly have added to the intimidating nature of the offender's presence in the garage. 4. The offence also took place in a building that was the victim's residential home, or at least part of it. While all break and enter offences require entry into premises, the offence can involve a variety of premises, and the fact that this offence involved the victim's home makes it more serious because that was a place where she was entitled to feel and be safe. The premises were also ones where, to the offender's knowledge, it was likely that a child, that is, the victim's son, would be present, as was, indeed, the case. While it is an element of the count 1 offence that the offender was aware that a person or persons were present in the premises, the fact that, as the offender knew, it was likely that a child would be present is a relevant matter when assessing the objective seriousness of this offence. I note, however, that the child was not present during the actual confrontation between the offender and the victim and so this is not an aspect that increases the seriousness of the offence to any material degree. 5. The offence also involved exploitation of the offender's familiarity with the premises by reason of his regular attendance there and, I infer, his knowledge about the victim's use of the garage gym area. The count 1 offence also occurred at night, which would have increased the isolation, vulnerability and sense of fear that the victim would have experienced. 6. It was submitted by the Crown that the seriousness of this offence should be informed partly by the fact that the offender was uninvited and that the offence occurred in the context of a fractured friendship and following a heated argument by text messages on 18 June 2022. The Crown submitted that these matters go to a breach of trust, essentially. I have considered these arguments but I am not of the view that either of these matters amount to a breach of trust or that they add anything to the seriousness of the offence beyond what I have already set out and so I put them aside. 7. On the other hand, the offence was not sophisticated and given the jury's not guilty verdict on count 2, it did not involve any actual physical violence, although there was certainly a threat of violence. Nor did the offence involve any damage to property. I also accept that the duration of the offending was relatively short, being a period of some minutes. Having regard to all of the circumstances I would describe the offence as being above the low range but below a notional midrange offence. 8. Turning then to count 3. In assessing the objective seriousness of count 3 I note that, while this count is expressed as being between 15 and 23 August 2022, the relevant offending is limited to the offender's actions on two days only, namely, 16 and 22 August 2022. However, the offending on 16 August was persistent, with the offender driving by the victim's home on seven occasions, some of which she was able to see by means of CCTV cameras installed in her house. On 22 August 2022 the offender attended the premises on two occasions, the second of which involved him approaching the front door and having to be escorted away by the victim's ex-partner. On the other hand, I accept that the offending did not involve any real planning or sophistication. Having regard to all of the circumstances, I assess this offence as being above the low range but below the mid range of objective seriousness. SUBJECTIVE MATTERS 1. I turn then to subjective matters relating to Mr Issa himself. The offender's background and current circumstances have been placed before the Court essentially by means of a psychological report and some other written material. Also, his younger sister, Ramia, gave oral evidence. 2. The offender is now aged 47. This is his first period of full-time custody but he has previously been the subject of Community Correction Order and an Intensive Correction Order, with most of his criminal history involving offences of a domestic violence nature, although it would appear that he has only been found guilty on two occasions of actual physical assaults. 3. His criminal history, however, does not assist him in claims for leniency. 4. The offender is of Lebanese background. The psychologist notes that he has a complex developmental history. His father was shot in the head when the offender was only six years old and this left the father significantly disfigured and disabled and very dependent on his wife and family. The father would become very angry quickly and this anger would be visited upon the family. The offender has always been close to his mother, and the offender's sister in her evidence confirmed that the offender was a very significant support to their mother, visiting her every day before his incarceration. I note that the offender's mother and five other extended family members were present in Court for the hearing last Friday and so it is clear that the offender retains considerable support from his family. I note also that the offender will have available stable accommodation with his family when he is released. 5. The psychological report notes that the offender was previously married and has two teenage children. The report notes that the offender was separated for some time from his children in the aftermath of a marriage breakup but that his children have, in more recent times, reconnected with him. The report notes that during the period of the pandemic around 2020 the offender's mental health suffered, partly due to not seeing his children and the stress associated with custody disputes. It is also noted in the psychological report that in the months prior to the offence the offender became increasingly distressed and was self-medicating with smoking and was isolating himself and working excessive hours to escape intrusive thoughts. 6. Notwithstanding all these problems, the offender was still able to develop and run a successful kitchen installation business which, however, appears now to be winding up as a result of the offender's recent incarceration. The psychologist concluded that the offender meets the diagnostic criteria for severe Major Depressive Disorder and anxious distress and says that he needs treatment in the form of various psychological therapies. While it is not suggested that there is any link between the offender's mental condition and the offences, I do accept that the existence of these mental conditions is a matter that has and will operate to make the offender's time in custody more onerous: see the principles in the well-known case of Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1. 7. Evidence was also led in the sentence hearing to the effect that the offender has been the subject of threats and assaults while in custody. While this is not a matter which rises to the level that it can impact significantly on the appropriate penalty to be imposed, it is a matter to which I have had regard insofar as it is likely to impact upon the offender's existing mental conditions. 8. As I have earlier said, the offender's sister, Ramia, gave evidence in support of him. She said that the offender has acknowledged to her that he needs to change, and that his voice and actions tend to be intimidating to others. She also said that in recent times the offender has entered into a relationship with a woman and that the family is supportive of this relationship. REMORSE 1. In terms of remorse I make the following observations and findings. The psychologist says that the offender appears to understand the seriousness of his offending and has expressed sincere remorse and contrition. This is contradicted to some degree by the comments attributed to the offender in the Sentencing Assessment Report. However, the offender's claims of remorse are supported by the fact that he told the psychologist that, since being incarcerated, he has had time to reflect, and acknowledges and respects the jury's findings. An acknowledgment of that kind in the aftermath of a contested trial is extremely uncommon and, indeed, one that I have never seen in a post trial psychological report. In the light of that, and taking into account also the evidence of the offender's contrition, which was described by his sister, I accept that in this case there is genuine remorse and contrition. RISK AND REHABILITATION 1. In terms of the offender's future risk and his prospects of rehabilitation, the greatest concern is his criminal history and the persistent and obsessive nature of the conduct underlying the offences now before the Court. Balanced against this is the offender's good work history, his family support, his remorse and his expressed willingness to address his problems. His willingness to address his problems is supported by the fact that he has completed courses while in custody, including a domestic and family violence course. There is also the fact that there have been no subsequent instances of offending like those before the Court. Taking into account all of these matters, I assess his prospects of rehabilitation as being guarded but reasonable. 2. I note that in the Sentencing Assessment Report the offender's risk of reoffending is assessed as medium-low, which is broadly consistent with my own view, although I would lean towards the descriptor medium rather than low. In my assessment, he will remain a material risk of reoffending until, as suggested by the psychologist, he engages in sustained treatment for anger management and other issues. ONEROUS BAIL 1. In determining the sentence I have also taken into account that during much of the offender's time awaiting trial he was subject to fairly onerous bail conditions, including a curfew. DETERMINATION 1. In determining the sentence I have had regard to the terms of s 3A of the Crimes (Sentencing Procedure) Act 1999, namely, the need to ensure that the offender is adequately punished, to prevent crime by deterring the offender and others, to protect the community, to make the offender accountable, to denounce his conduct, to recognise the harm done to the victim, but also, to the extent possible, to promote the rehabilitation of the offender. In my view, general deterrence is of significant importance in this case given the prevalence of stalking and intimidation-type offences involving female victims. I also consider, and as was conceded on behalf of the offender, that specific deterrence of this particular offender is also of importance in this case. Community protection is obviously also important. None of those comments mean, of course, that I have not had regard to the other purposes of sentencing in s 3A to which I have made reference. 2. I intend to impose an aggregate sentence which will not exceed three years. While I did not understand the offender's counsel to seek the consideration of an Intensive Correction Order, I record the fact that, in my view, such an outcome would not be appropriate. While community safety is the paramount consideration in determining whether to impose an ICO, it is not the only consideration. In this matter I am of the view that personal deterrence, general deterrence and the protection of the community are of particular importance, such that community safety requires that the term of imprisonment I am about to impose should be served by full-time custody. 3. However, I have made a finding of special circumstances for adjusting the ratio between head sentence and non parole. I have made that finding based upon this being the offender's first period of full-time custody and the need for a reasonable period under parole supervision. 4. In determining the indicative sentences and the final sentence I have had regard to statistics assembled by the Judicial Commission of New South Wales, as well as a number of decision of the New South Wales Court of Criminal Appeal. 5. Given that I am intending to impose an aggregate sentence, it is necessary that I set out the indicative sentence for each of the two offences. These are not the final sentence. I will make the final sentence clear in a few moments. 6. The indicative sentences are as follows: for count 1 imprisonment of two years six months and I nominate a non parole period of 18 months and for count 3 a period of imprisonment of 12 months. TOTALITY 1. I have had regard to the principles of totality in determining the ultimate aggregate sentence, that is, the importance of avoiding imposing a crushing sentence but of course, considering the totality of the criminality and determining just what is ultimately required. In my view, there needs to be some level of notional accumulation between the two sentences so as to acknowledge the two separate types and occasions of offending. Having regard however, to the fact that the offences related to the same victim and were essentially part of a course of conduct, the level of notional accumulation ought not be great. 2. The sentence I impose is as follows: I impose a head sentence of two years nine months' imprisonment; I impose a non parole period of one year eight months' imprisonment. 3. Each of those will date from 5 January 2024 so as to take into account time already served. The head sentence, therefore, will expire on 4 October 2026. The non parole period will expire on 4 September 2025. 4. Mr Crown, Mr Karim, anything to raise about any of those factual matters or those dates? 5. RAINEY: No, your Honour, thank you. 6. HIS HONOUR: All right, Mr Issa, your lawyer will no doubt speak to you but you will be eligible for release on parole on 4 September 2025. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 November 2024