District Court New South Wales Medium Neutral Citation: R v Elhamoud [2019] NSWDC 429 Hearing dates: 24 May 2019 and 7 June 2019 Date of orders: 07 June 2019 Decision date: 07 June 2019 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Sentenced to aggregate imprisonment of two years three months and a non parole period of 21 months. Catchwords: Crime – Sentence - Breaking and entering a dwelling house and committing a serious indictable offence in circumstances of aggravation Legislation Cited: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act Cases Cited: BB v R [2017] NSWCCA 189 R v Edigarov [2001] NSWCCA 436 Category: Sentence Parties: DPP (Prosecution) Mohamad Elhamoud (Offender) Representation: Ms Y Prowse for DPP (Solicitor Advocate) Mr R McCrudden for the Offender (Counsel) File Number(s): 2017/188369 Publication restriction: None Sentence Judgment 1. On 25 March 2910, the offender, Mr Elhamoud, was found guilty by a jury of an offence under s 112(2) of the Crimes Act 1900 of breaking and entering a dwelling house and committing a serious indictable offence in circumstances of aggravation, namely that he was aware that there was a person or persons present in the dwelling. The house in question was the home of the offender's estranged wife, Fatme Mouhajar, and the serious indictable offence was an assault occasioning actual bodily harm. 2. The maximum penalty for that offence is 20 years imprisonment and it is subject to a standard non parole period of five years. I have regard to the maximum penalty and the standard non parole period as important guideposts in my sentencing discretion. 3. I am also required to deal with the offender for an offence which is on a s 166 certificate under s 14(1) of the Crimes (Domestic and Personal Violence) Act, that being an offence of contravening an apprehended domestic violence order. The maximum penalty for that offence is two years' imprisonment and/or 50 penalty units. 4. The facts of which I am satisfied are as follows. 5. The offender and Ms Mouhajar commenced a relationship in August 2012 when the offender travelled to Lebanon where he and Ms Mouhajar engaged in an Islamic marriage ceremony. Although the offender returned to Australia shortly after this, Ms Mouhajar and her daughter did not come to Australia until March 2014 when they commenced to live with the offender at unit 1, number 15 Hishion Place, Georges Hall. In August 2016 the son of the offender and Ms Mouhajar was born and, at that time, the relationship between the offender and Ms Mouhajar was still a going concern. 6. In her evidence, Ms Mouhajar claimed that on three occasions prior to the offence, the offender had announced, by using a form of words, that the couple were divorced. The offender, in his evidence before the jury, denied this assertion. It is unnecessary for me to make any determination about whether there had, in fact, been any divorce prior to the offence because there is no dispute that events had occurred in the months leading up to the offence which indicate that the relationship had deteriorated and later effectively ended. 7. More specifically, Ms Mouhajar said that an incident took place on 19 March 2017 which resulted in the offender moving out of the premises at Georges Hall. Furthermore, on 27 May 2017, after Ms Mouhajar approached police, an interim apprehended domestic violence order was granted and that order remained in place up to the time of the offence. The offence occurred in the early hours of 10 June 2017. At the time Ms Mouhajar was inside the house with her two children, Kareem, who is a child of the offender and Ms Mouhajar, at that time aged about nine months, and Ghina, Ms Mouhajar's eight year old daughter from a previous relationship. 8. At 1.58am and 1.59am a number of triple-0 calls were made by persons living near the premises. In addition, there was another triple-0 call at 1.57am of zero seconds duration which I conclude was an attempted call by Ms Mouhajar. Neighbours said that at about 2am they heard breaking glass and the sound of a woman screaming for help. A neighbour, Ms Risaie, also heard a male voice shouting, "Shut up," and her son, Mr Adra, saw a male running out of the house and a woman screaming, "Help me," and, "He hit me." Another neighbour, Mr Jharboou, heard a lady screaming and begging for help and a male voice say, "Get back in the house." 9. On the evening of 9 June, being the same night on which the offence occurred, Ms Mouhajar had locked the front door but left the key in the back of the lock so as to prevent a key or other device being used to open the door from outside. Later that night she heard the metal security door being pulled open violently and then heard the offender banging on the main door, screaming and trying to open the door. She went upstairs, told her daughter to lock her bedroom door from inside, then went downstairs with her telephone, trying to call police. It was at that point that the offender broke the glass section of the front door, placed his hand through the door and unlocked it using the key that was on the inside of the door. 10. After the offender entered the house there was a confrontation in the kitchen where he punched the victim with a closed fist and hit her also using his elbow and knee. While being hit, Ms Mouhajar fell to the floor and the back of her head contacted with the oven, which she said caused "the key", as she referred to it, on the oven to come off. After this, she ran from the house calling for neighbours to help. After neighbours came from their houses the offender ceased his violent actions and shortly thereafter he left. 11. Immediate complaint was made by Ms Mouhajar to neighbours and soon after to police. A photo taken by police shows Ms Mouhajar with a bleeding nose, which I accept was an injury she suffered as a result of the assault. After leaving the house and in order to avoid apprehension, the offender drove to Melbourne and then flew to Lebanon the same day. He remained outside Australia until 26 September 2017 when he voluntarily returned and was arrested and charged. 12. The offender gave evidence in the trial in which he admitted breaking into the house but said he did so because he thought he was entitled to enter given that his key did not work and that he broke in because he feared that something bad had happened to Ms Mouhajar and/or the children. He denied that once inside the house he committed an assault on Ms Mouhajar and claimed that she attacked him by trying to take his mobile phone so as to prevent him calling her father in Lebanon. 13. He claimed that any injuries were not caused by him but were inflicted by Ms Mouhajar on herself. The verdict of the jury indicates that it did not accept the offender's version but, rather, accepted the essence of the Crown case in that the offender unlawfully broke into and entered the premises, knowing there were persons inside and that, while in the premises, he assaulted Ms Mouhajar and caused her actual bodily harm. 14. I am required to sentence him on the basis of the facts found by me as I have set out above and which are consistent with the verdict of the jury. I am required, before taking into account any aggravating feature, to be satisfied of that matter beyond reasonable doubt. The offence is aggravated, as the offender accepts, because he was on conditional liberty at the time in that he was on bail in relation to a charge of common assault of the same complainant for proceedings before the Local Court. 15. The conditions of that bail were that he be of good behaviour and not commit any offence and comply strictly with the terms of an apprehended domestic violence order which was made on 1 June 2017 and which included the standard conditions that the offender not assault, threaten, harass or intimidate the protected person. Another undisputed aggravating factor is that the offence occurred in the home of the victim, a matter which is not merely an element of the offence, as found by the New South Wales Court of Criminal Appeal in BB v R [2017] NSWCCA 189 at [38]. 16. The Crown has also submitted that the offence was a planned criminal activity. Texts and other messages between the offender and Ms Mouhajar between 20 April and 23 May 2017 indicate that, during that time, there was a reasonably amicable relationship but by late May, the relationship had soured and on 27 May, Ms Mouhajar approached police. It seems, however, that the offender retained a key to the premises and he gave evidence at trial that it was when his key would not open the door that he broke the glass and let himself in. 17. During the trial, the offender gave evidence that he believed he had the right to enter the premises and had been doing so on a fairly regular basis with Ms Mouhajar's consent and in order to have contact with the children. Although it seems to me it is possible that there was some arrangement to this effect at some earlier time, I do not accept that there was any such agreement or arrangement at the time of the offence. 18. The alleged existence of such an arrangement is totally inconsistent with the fact that an apprehended domestic violence order was in place and also inconsistent with Ms Mouhajar's evidence, which in this respect I accept, that she held fears of being assaulted by the offender and had taken the security measure of leaving the key inserted in the lock of the door to prevent access from outside. The assertion of a right to enter is also totally inconsistent with the fact that it occurred at 2 o'clock in the morning. 19. It was put to Ms Mouhajar in the trial that, in the period before the offence, she had engaged in some form of intimate relationship with Mr Fiordelli and was attempting to hide this from the offender. While she did not agree with this suggestion, the bottom line is that she was perfectly entitled to enter into a relationship with anyone she chose to and, if she did so choose, it was none of the offender's business. It may be that the suspicion of such a relationship was one of the matters that led to the offender attending Ms Mouhajar's house on the night of the offence, although it is also possible that his attendance arose from some other conflict or issue between them, such as the apprehended domestic violence order or the assault proceedings or perhaps some dispute over contact with the child, Kareem. 20. Ultimately, these are matters about which there is insufficient evidence for me to reach any conclusion. I am, however, satisfied beyond reasonable doubt that on the night of the offence, the offender intentionally went to the house in an angry state with the intention of assaulting her and with no genuine belief that he had any right to enter. Whether or not it was true that Ms Mouhajar had been having some form of relationship with Mr Fiordelli is irrelevant, in my view, because, even if she was, that provided no excuse at all for the offender to intimidate, control or assault her. 21. I have read the victim statement of Ms Mouhajar which sets out some of the lasting consequences for her of what must have been a terrifying incident. However, I note that the Crown does not rely on the contents of the victim statement as an aggravating feature and, therefore, I do not treat it as such. 22. In relation to mitigating factors, it has been argued that the injury, emotional harm, loss or damage caused by the offence was not substantial. While I accept that the offence is not in the worst category of case, I am not satisfied that any injury or emotional harm can be described as insubstantial. As I have already noted, the incident must have been, especially in the middle of the night with her children present, at least upstairs, a terrifying one for Ms Mouhajar. 23. I accept that the offender has no prior convictions and has otherwise been a hardworking and law-abiding member of the community. A sentencing assessment report prepared for the Court has assessed the offender as being of low risk of reoffending, although it also notes that he has demonstrated little insight into the impact of his behaviour and attempted to justify his actions. Despite this, I conclude, based largely on his general prosocial history prior to this offence, that he has reasonably good prospects of rehabilitation and is unlikely to reoffend. I intend to give him the full benefit of that finding in determining the sentence to be imposed. While I note that the defence written submissions refer to a transcript of Local Court proceedings being tendered, I record that this did not, in fact, occur. 24. Turning to subjective matters, I have little evidence as to the background of the offender. He is 44 years of age and was 42 at the time of the offending. He was born in Lebanon and subsequently immigrated to Australia. He met the victim upon travelling to Lebanon in 2012 and in about August or September 2012 they went through a form of Islamic marriage. On his return to Australia the offender worked as a truck driver, sent some money to Ms Mouhajar in Lebanon and made preparations for Ms Mouhajar and her daughter to come to Australia, which they did in about March 2014. 25. Some time after that the offender, while still driving trucks, also became involved in a travel agency business with Ms Mouhajar and a friend, Mr Fiordelli. It appears, however, that that business eventually became unprofitable and was wound up. Since his release on bail in February 2018 the offender has worked as a truck driver. Exhibit A in the sentence proceedings is a testimonial from his employer which explains that he is a trusted and reliable worker. The offender's employer also states that, in her opinion, the offender has learnt from his mistakes and wishes to move on with his life. It is apparent that, apart from the offences before the Court, the offender has otherwise been a hardworking and law-abiding member of the community and these are positive matters which I have taken into account in his favour. 26. The offender was in custody bail refused in relation to the break and enter charge from 26 September 2017 until his release on bail on 23 February 2018. Since then, he has been subject to daily reporting and curfew conditions. I have taken into account the fact that the offender's liberty has been restricted, to some degree, by those conditions and that this has already amounted to some form of punishment. A significant factor in this case is the importance of both specific deterrence of this offender and the need to deter others from engaging in similar conduct. It is a notorious and shameful fact that in our society there is an unacceptable level of violence against women and especially violence in the context of domestic or former domestic relationships. 27. The New South Wales Court of Criminal Appeal has observed that violent attacks in domestic settings must be treated with real seriousness and that, typically, the man is physically stronger than the woman and able to inflict considerable harm, sometimes resulting in death. As the Court of Criminal Appeal said in R v Edigarov [2001] NSWCCA 436 at [41], "In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished." 28. I have assessed the objective seriousness of the offence of break and enter as being at about the midrange. Having taken into account the facts as found by me and all the aggravating and mitigating factors, I have formed the view that a sentence of imprisonment is the only appropriate penalty. I have considered whether any of the alternatives to full time custody are appropriate; however, in my view, the offending is of such seriousness that the use of an intensive correction order, with its inherent leniency, would be inadequate. 29. I note that the offender has already spent a period of four months 29 days in custody bail refused and I have taken this into account in setting the commencement date of sentence. I will impose an aggregate sentence. Had I not done so, I would have imposed a sentence for the aggravated break and enter of two years with a non-parole period of 18 months, and for the offence of contravene apprehended domestic violence order a term of eight months. I do not consider that there are any special circumstances for varying the ordinary ratio between head sentence and non-parole period in this case. 30. I impose an aggregate sentence of two years three months and a non-parole period of 21 months. That will date from 9 January 2019. The earliest date on which the offender will be eligible for parole is 8 October 2020. The balance of term will expire on 8 April 2021. As requested by the Crown, I dismiss the backup charge of assault occasioning actual bodily harm. The offender can be taken into 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. Decision last updated: 22 August 2019