New South Wales District Court CITATION: R v Mohamad Charrouf [2007] NSWDC 292 JUDGMENT DATE: 18 July 2008 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Convicted.; Sentence 6 months N.P.P. to date from 12/12/2010 expire 11/6/2011.; 18 months balance of term to expire 11/12/2012.; Order appellants release on 11/6/2011. Pursuant s51 of Crimes (SP) Act condition of Parole:-; Accept supervision of P&P and counselling he drugs and alcohol and anger management. CATCHWORDS: Criminal Law - Sentencing - Enter premises with intent to commit serious indictable offence - intimidation - criteria measuring objective criminality of intimidation - already serving substantial sentencne on other matters - totality. PARTIES: Regina Mohamad Charrouf FILE NUMBER(S): 06/21/0371 COUNSEL: Defence: K. Buckman SOLICITORS: Crown: Mr Low, Office of the DPP, Parramatta. JUDGMENT 1 HIS HONOUR: During the course of preparing these remarks on the sentence I came across a set of agreed facts in respect of a robbery. I was concerned that there appeared to be an absence of anything putting that matter before me. It was attached to part of exhibit 3. My memory of exhibit 3 was simply that it was the one document relating to the standover of a prostitute on Canterbury Road. Consequently I requested my associate this morning to ring Mr Robinson who obviously referred the matter onto the present Crown who appears. In respect to what the significance of that documentation and whether it was a charge and if so what was the mechanism by which it came before the court, the current Mr Crown advised my associate that it simply was an exhibit giving background information in respect of the accused. INTRODUCTION 2 On 29 May 2007 Mohamad Charrouf pleaded not guilty to two charges upon an indictment. The first alleges an assault on one Sharon Attard between 8 and 12 August 2005. The second charge alleged that on 23 August 2005 he entered the dwelling house of Anwar El Abbas in Riverwood with intent to commit a serious indictable offence, namely intimidation of another person with the intention of causing that person to fear physical harm. 3 The connection between these two charges is Sharon Attard who was, at the relevant time, the partner of Anwar El Abbas. She would, from time to time, stay at the El Abbas unit with her three year old daughter. Indeed, on 23 August she was one of the persons present, as was her daughter. She witnessed the arrival of Mohamad Charrouf. The jury acquitted on the first count but convicted on the second. 4 It falls now to me to sentence this Offender in respect of the second count. It therefore falls to me to resolve a number of competing tension as I strive to determine the appropriate sentence for this offence before this Court committed by this Offender intimidating this victim in this community. My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the Offender, that is his subjective matters. The starting point for such assessments requires the sentencing judge to make findings of fact from the evidence before the Court relating then to both the offence and the Offender. The Offender's rehabilitation prospects will need to be assessed even though looking through a glass darkly, particularly so in this case, as he is serving a lengthy period of custody. 5 Before any sentence can be made there are likely to be technical questions relating to deterrence, whether special circumstances are to be found, totality and finally, of course, the ultimate length of the term of imprisonment to be imposed. What weight needs to be given to all of these matters against the imperative that all sentencing should have, as its primary focus, the protection of the community will also need to be determined. FACTS. 6 The Crown case alleged El Abbas, Sharon Attard and her three year old daughter were present in his unit with a neighbour. Sometime between 9.30 and 10am there was a knock on the door interrupting the breakfast that the three adults were sharing in the lounge room. Attard opened the door and the Offender walked into the lounge room. He sought to speak to El Abbas in private. El Abbas had invited him to sit on the lounge. The Offender insisted they speak in private. El Abbas took the Offender to one of the bedrooms. It was the bedroom of the three year old child. 7 On the Crown case the Offender, once in the bedroom, asked, "Do you have any money on you?" El Abbas replied, "I don't have enough money to buy cigarettes". The Offender then said, "We want your unit, we want to use it". El Abbas said, "No". The Offender said words to the effect of, "I don't care we want the unit, we'll use it anyhow, we'll take it anyhow". El Abbas replied, "You can't do that, I've got a three year old living here." The Offender said, "I don't give a fuck". 8 This conversation was interrupted by a scream coming from the lounge room at about this point. El Abbas ran from the room into the lounge room. The scream had come from his partner. He saw two unknown males running from the lounge room out through the front door. El Abbas turned to the Offender saying "What, you set this up". That conversation continued for sometime down the stairs, El Abbas and the Offender chased after the intruders. 9 During the conversation the Offender swore on his mother and his family, on the Koran, that he had nothing to do with it. El Abbas believed him. The Crown case was these intruders had nothing to do with the Offender. El Abbas and the Offender gave chase to the men without success. 10 Two mobile phones had been taken. The Offender made a call that apparently resulted in one of the mobile phones ultimately being returned. 11 The Accused gave evidence before the jury. His case was that he knew El Abbas, had met him previously a couple of times but was not good friends with him. On 23 August he went to the El Abbas unit, was admitted to the unit by Attard; had asked her, "Can I come in please I want to talk to Anwar". El Abbas, who was eating breakfast, stood up. He still had the knife and fork in his hand. The Offender said "Put them down". El Abbas complied. The Offender noticed the three year old and a male who he did not know. He took El Abbas into one of the bedrooms and said to him, "Can you please stop selling to my brother, please". El Abbas replied "Who is your brother". The Offender said, "Kaloud". Kaloud is the Offender's older brother by some three years. El Abbas agreed to stop selling to Kaloud. Then he told the Offender, "Not to come here anymore". It was at this point that someone ran into the house and their conversation was interrupted. 12 Thereafter there was little difference in the account given by the Offender and El Abbas. In this case the jury decision was really confined to the content of the conversation in the child's bedroom. Notwithstanding the Accused's evidence the jury was satisfied beyond reasonable doubt of the following: A. It rejected the Offender's version of the conversation. Indeed they refused to accept that there was any reasonable possibility the Offender said the words he claimed as his own; B. The conversation given by El Abbas was both accurate and honest; and C. It, together with other factors, was indicative of an intent to intimidate El Abbas with the intention of causing him to fear physical or mental harm. I am obviously bound by their verdict. OBJECTIVE CRIMINALITY 13 For the purposes of this case the essence of the offence of intimidation relied upon by the Crown is to force a person into or to deter him from some action by inducing fear of physical or mental harm. 14 In this case the ultimate purpose of the intimidation was to overawe El Abbas's will to resist the Accused's intention of using El Abbas's unit. 15 Clearly there are varying means or methods of intimidation. For example, the use of physical force, the use of numbers, the use of weapons, the use of threats, the use of conduct such as malicious damage to property and the like, the capturing of some person. The nature of the method used to advance the fear or strength of will, necessarily must be an important measure of criminality associated with this offence. 16 Another measure of criminality must be the nature of the objectives sought and the measure of harm to a person or the community in the event that objective should be accomplished. At one end of the scale would be bullying that caused a child to hand over his lunch to another. At the other end would be the use of weapons and/or crimes against others to force an act of treason from another. Between these two extremes would lie many varying degrees of intimidation. 17 A third measure of the criminality would be the degree of success the Offender had in achieving his intention of causing a person to fear physical or mental harm. 18 A fourth measure of Criminality concerns the element of aggravation, that is, the presence of more than one person present. It constitutes an element of offence. That fact of its own does not aggravate criminality. But when there are special features in respect of those present then there may be criminality related to this element that becomes a feature of aggravation. For example, if the intimidatory acts were done before a group of children, that clearly would be more criminal than the same intimidatory acts done before a group of soldiers. 19 As against those criteria the following observations can be made. The method of intimidation by this Offender, as applied, is best described as menace. No weapon or physical act or threat was made against El Abbas or any other person of importance to him. No specific threat was directed towards anyone. It would appear on this criteria this offence would be towards the lower end of criminality. In this case the ultimate objective of the intimidation appears to be some unfettered access to El Abbas's premises. Because of the interruption to the demands being made by the accused it is unclear on what basis the Offender sought the unfettered access to the unit. Was it on a basis that El Abbas was to move out permanently and sign over the lease? Was it on the basis that there would be one short term interruption or was it on something in between? All of this is a matter of speculation. 20 Indeed El Abbas, when asked in cross-examination as to the nature of the demand, said "Probably to hang out, probably to - I don't know anything" (second day, p 50 ln 49). 21 Its trite law that matters of aggravation need to be proved by the Crown beyond a reasonable doubt. In this case, no doubt because of the interruption, the full purpose of the intimidation is unclear on the evidence. 22 The third measure of criminality is the degree of success the Offender had in achieving his intention. It is to be remembered his intentions are really, in a sense twofold. Firstly, to accomplish the intimidation and secondly, that the intent of the intimidation is to cause that person to fear physical or mental harm [for some specific purpose]. 23 The intimidation exercise was, as I say, interrupted. The two men chased the intruders together. Further, there is no evidence suggesting any fear was engendered in El Abbas and certainly no fear of physical or mental harm. 24 Thus, although the jury was satisfied beyond doubt of the Offender's intention, there is no evidence that that intention of causing fear was achieved. On this occasion the entry was by consent. The acts constituting the intimidation were done in private. There is no suggestion the child or female or guest present were alarmed or disturbed or distressed by the presence of the Accused. 25 By contrast and tendered for contextual background in respect of the Offender's antecedents were facts of another intimidation involving this Offender. In that case the Offender was in company. He demanded payment from a prostitute of $200. In the absence of payment he sought to ban her from Canterbury Road. He and his accomplice each exposed a handgun. The accomplice issued this threat "Do you want me to finish her or do you want to?" At the time of saying this the accomplice was pointing his weapon in the prostitutes direction. 26 Clearly, on the measure I have proposed, that act of intimidation was far more serious. 27 As to the fourth measure of criminality, the presence of persons present, that is the aggravating feature of the offence, it seems to me that because none of the persons present understood an act of intimidation was occurring and do not appear to have been in danger or alarmed, while the act of aggravation must stand, it does not add further to the criminality as suggested by that fourth measure. 28 In those circumstances this is not an offence that falls at or above the midrange or the mid point of seriousness but rather one towards the lower categories of seriousness. SUBJECTIVE MATTERS 29 I turn now to the subjective factors. I am both entitled and required to do that. As I said earlier not only am I sentencing for the criminal offence but I am also sentencing this Offender for it. Each Offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to an Offender may offer to the Court some explanation and insight into the commission of this offence by this Offender, or some reason why a more or a less sentencing outcome is appropriate. Personal circumsatances, family background and relationships. 30 Charrouf was born in May 1983 with a twin brother. He is now twenty-four years old. He has an older brother, Kaloud, who has also been in trouble with the police and prison. Indeed, my understanding is he may currently be in prison. 31 Charrouf's parents divorced some eleven years ago. Both, however, are still relatively supportive of him. All children resided with the mother on separation. The father is a car spray painter. The father's religious beliefs saw him disapprove of Charrouf attending dance parties. For his disobedience he would be physically disciplined by his father. In his early years Charrouf was not interested in pursuing his father's religion but more recently that has changed. Both parents are strict Muslims. The Offender continues to maintain telephone contact with both. 32 Charrouf lived, during his childhood, in Department of Housing accommodation in Riverwood until aged sixteen. His associates and peer groups in this period were involved in crime and substance abuse. The Offender left home at sixteen living in hotels selling drugs to support his own drug addiction. His family moved to Padstow. Charrouf returned to the family home but maintained his contacts with his Riverwood criminal associates. He realised when he went to prison he had lost contact with his Lebanese culture and Muslim faith. Since incarceration he has been praying regularly and now is more committed to Islam. Education, skills and employment 33 Charrouf attended Punchbowl Primary School. He had problems with poor concentration, inattention and difficulties with peers. Dr Jacqueline Barrett, a clinical psychologist, has assessed him as having extremely low intellectual ability (IQ equals 56). Whether those involved with his early education had this information is unclear. He was placed in special classes said to be due to behavioural problems. He received individual tutoring in reading, writing and maths yet would be sent home for discipline problems. He moved on to Narwee High School where his educational difficulties continued. He frequently fought with peers, would suddenly "snap" for no reason. In Year 8 he was expelled. He had begun truanting in Year 7 up to two to three days weekly. He left school in Year 9, attended TAFE in panel beating but absenteeism saw him expelled from that course. However, he did complete eighteen months of a two year welding, boiler making course. He has worked intermittently in both welding and panel beating. His main legitimate income stream was the Newstart allowance, although there was a period when he handed over the entire allowance to ease his mother's financial strains as he had an undisclosed source of income. General health 34 Charrouf's physical health appears to be good. Dr Allnut, a forensic psychiatrist, who reviewed him for the defence checked all the vital signs and it would seem there were no real problems. Mental health issues 35 Dr Allnut considered, but rejected, a diagnosis of bipolar effective disorder in favour of a diagnosis of adult attention deficit hyperactivity disorder. 36 Dr Barrett accepted an earlier diagnosis made when the Offender was aged six of attention deficit with hyperactivity disorder. There may be little differences between those diagnoses. Dr Barrett has assessed Charrouf as functioning in the extremely low intellectual range. Her observation was he had an extremely poor fund of general knowledge related to problems of inattention, culture, language and limited school attendance. His limited general knowledge, she says; "Will effect his learning ability, long term memory and verbal concept formation and ability for verbal abstract thinking. His reduced fund of general knowledge will mean he will struggle with verbal tasks that depend on acquired knowledge and being able to verbally conceptualise and express himself." She places him in the 0.2 percentile on the intellectual scale or range. She makes this point; "Furthermore, his limited cognitive functioning means that he has a limited ability to see the consequences of his actions or to problem solve and find alternate ways of responding to situations particularly if these are novel or stressful situations". Drugs and alcohol 37 This Offender has an extensive history of abusing illicit substances. His interest in illicit substances began at about age fifteen with cannabis. He was smoking two cones three times daily but within a year increased to five to six cones three times daily. At nineteen he claimed to be smoking two sticks, equivalent to 2 grams of cannabis, on a daily basis with his friends. That level of cannabis use is described by Dr Barrett as severe, indicating substance dependence. 38 On occasions, when abusing cannabis, Charrouf would hear voices and become paranoid about police, parents and friends finding out about his substance abuse. Occasionally he would experience some grandiosity. 39 Other substances were also abused. At fifteen he was using ecstasy and cocaine when partying. At sixteen he was smoking heroin because associates encouraged him. That drug, however, only attracted him for about a month and he has not used heroin since. At twenty he was using crystal methamphetamine having a weekly consumption of half a gram. His last abuse of illicit substances was on the day of his incarceration. He does not use inhalants or benzodiazepines. His abuse of alcohol is virtually nil because he does not like it. His last drink, prior to incarceration was on New Year's Eve. 40 He is not the only drug abuser in his family. Both his older brother and twin also heavily abuse cannabis and other substances. To his credit he did an eight week drug and alcohol counselling course at the age of twenty but ultimately it had little effect, ultimately, in curbing his drug abuse. Character and antecedents 41 Charrouf is a twenty-four year old single male. He appears to have strong ties with his family who are supportive of him although I note that his two older brothers are both drug abusers. His associates of choice appear to be the criminal milieu. 42 His criminal history commences in Sutherland Children's Court in June 2001. He was before that court for an offence of robbery in company. In July of the same year there was another robbery in company which was dealt with later by the Sutherland Children's Court. In fact there were another two. I note that he was to have drug and alcohol counselling and anger management counselling back then. In fact there is three of them. 43 There are driving offences, goods in custody offences and fraudulent appropriation offences. He pleaded to stalk/intimidate with intent to cause physical or mental harm for which he was imprisoned for two and a half years. Robbery in company for which he was imprisoned for four years. Maliciously wound for which he was imprisoned for four years. There is an intimidate police officer in the execution of his duty before the Burwood Local Court. 44 So the record is a substantial one with heavy crimes. Particularly noted in the record are crimes similar in character to the one that I am dealing with. 45 His current sentence dates from 13 June 2006. The non parole period expires on 12 December 2010. That is an effective non parole period of four and a half years. His balance of term is eighteen months making an overall sentence that he is serving of six years. Those figures may be the result of composite sentences but that is the overall effect of them. Attitude to offence 46 Charrouf pleaded not guilty. His case is he approached a drug dealer demanding the drug dealer stop supplying heroin to his older brother. There is no suggestion of contrition, nor of any insight into the contradictions inherent in this defence. That is, a younger brother in a Muslim family making demands on behalf of the older brother without that older brother's knowledge in circumstances where all three brothers are all poly drug abusers. SETTING THE SENTENCE. A question of deterrence. 47 Given Dr Barrett's assessment of the intellectual capacity of this Offender he does not present as a suitable vehicle for general deterrence. I do, however, believe that his concrete thinking is capable of comprehending imprisonment as something he would wish to avoid in future. For that reason, imprisonment has some value as a personal deterrent and I have acted on that basis. TOTALITY 48 In setting this sentence I am conscious it falls to be served subsequent to a sentence of six years in which an eighteen month balance of term was imposed. Given the Offender's intellectual deficits he will need a substantial period on parole. Hopefully the length of the period on parole, coupled with knowledge that he would be returned to prison if he breached that parole, will provide some personal deterrences for him. 49 The sentence about to be imposed needs to pay homage to both totality and the need for an eighteen month balance of term. That can only be achieved by way of finding special circumstances. The maximum penalty for this offence is 14 years. Am I right on that Mr Low? HIS HONOUR: Would you stand up please Mr Charrouf. Mr Charrouf you are convicted of the offence that you, on 23 August 2005 at Riverwood, knowing that persons were in the place where the offence was committed, entered Anwar El Abbas's dwelling house which you found at Roosevelt Avenue, Riverwood with an intention to commit a serious indictable offence, namely to intimidate another person with the intention of causing that other person to fear physical or mental harm. That other person was El Abbas. 50 For that offence I sentence you to a six month non parole period to date from 12 December 2010 and to expire on 11 June 2011 and I set an eighteen month balance of term. It is implicit in that that I found special circumstances. That term will expire on 11 December 2012. The effect of what I have done is to add six months to your non parole period and kept the eighteen month additional term as we used to call it. HIS HONOUR: I order the offender's release on the offence that I am dealing with on 11 June 2011, pursuant to s 51 of the Crimes (Sentencing Procedure) Act I require or order that a condition of his parole be that he accepts supervision of the Probation and Parole Service and accept counselling in respect of alcohol, drugs and anger management. The Offender may be returned to custody. ******** 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.