R v Aumash

District Court of NSW|2020-05-01

SENTENCE

Pseudonym order: In order to preserve the anonymity and privacy of the complainant she will be referred to by the pseudonym, Ms White.

Introduction

In March 2018 Ahmed Aumash formed a relationship with Ms White (a pseudonym). Ms White lived in southern Wollongong with her young son. Aumash lived in Western Sydney but would stay with Ms White regularly. After about a year Ms White ended the relationship due to Aumash's controlling behaviour and anger. Aumash did not accept her ending their relationship. Between April and June 2019 Aumash committed a series of crimes against Ms White; three are for sentence today. It is appropriate that another nine (9) are to be taken into account on Crimes (Sentencing Procedure) Act 1999 Forms 1.

Facts for sentence - Incidents on 8, 9, 10 and 23 April 2019

Although Ms White had ended their relationship Aumash continued to contact her by telephone and would attend her home uninvited. He refused to accept their relationship was over.
On 8 April 2019 a series of telephone calls culminated in Aumash demanding to know who was at Ms White's home and his threatening to kill anyone who was there. At 10:15 pm he knocked on her door and when she opened it to him he entered without her permission. After she threatened to call the police he left the home but he stayed outside yelling at her, "you're a slut… you're a mutt." He walked around her home knocking on doors and windows before climbing in through her bedroom window.
He confronted Ms White, commenting on her clothing and demanding she tell him who she was seeing and whether she was going out that night. Ms White tried to lock herself in her bedroom. He stopped her shutting the door. He stood over Ms White frightening her. He threatened to stab her male friend. He then searched her house. He picked up a pocket knife and accused Ms White of trying to stab him with it.
Ms White tried to leave. Aumash stopped her. She was able to get away but he followed her into the street calling her a "dirty dog." He spat at her feet and continued accusing her of seeing other men. She reminded they were no longer together. He ignored her. He followed her back into the house but soon after she ran away and hid in a nearby park.
He came looking for her. She remained hidden. He then hopped in his car and drove around the area looking and calling for her. He returned to her home and took her car keys and then her car. He drove that car around the area looking for her. Ms White, from where she was hidden, was able to telephone a friend who called Triple 0. Police attended soon after. They spoke to Ms White who they noted was shivering and frightened. They saw the flyscreen to the bedroom window had been removed. They were unable to find the offender but did contact him by telephone.
An Interim Apprehend Violence Order was obtained by telephone and arrangements made to try and serve it on Aumash.
Tables setting out many of the phone messages sent to Ms White are included in the agreed facts. Those sent between 8:00 pm on 8 April and 5:19 am on 9 April 2019, are numerous; abusive, controlling and threatening toward Ms White and the man Aumash believes she is seeing. At 0:52 am he says "all this over a junkie dog mick, Really babe. This is what I mean to you. You call the cops and I done nothing except for wanting to come spend time with u."
There were also many calls where no message was left. Ms White did not reply.
On 9 April 2019, Ms White and her friend, Mick, were in the backyard of her home. She noticed her side garage door was unlocked. Mick investigated and found Aumash in the garage. He came out holding a piece of wood saying "relax I'm not going to hurt her." Ms White started to cry. The offender then took her to a nearby street where her car had been left. She drove it to her home. The offender remained at her home but she would not let him inside. Aumash then sent Ms White more text messages.
Later that day, at about 12:30 pm, Ms White walked from her kitchen to find the offender in her lounge room. She screamed in fear. Aumash said "I'm not going to hurt you, why don't you know that? Go and drop the charges." After she threatened to call the police, he left. But over the next day over 60 messages and were sent to Ms White. Some begged her to drop the charges; others threatened her and otherwise placed her under emotional pressure. The messages were accompanied by multiple missed calls.
At 5:30 pm Ms White went into her son's bedroom and found Aumash under her son's bed. She ran out saying "Are you fuckin serious…No this shit is not happening." She locked the offender in the room and went to her car. Aumash ripped the screen from the window and ran to the car. He hopped into the passenger seat and would not leave. Ms White started to continuously sound the car's horn. He called her a "fuckin bitch" and ran away. Police soon responded to a Triple 0 call and found Ms White so distraught she could not then give a comprehensive account of what had happened.
More phone messages followed. The next day, April 10, Aumash returned to Ms White's home. He was laughing about the police not being able to find him. He demanded she tell the police to drop the charges or "…I swear to god, I'm gonna take down every single one of your family members individually. You have no idea who you're dealing with. You're listening to all the wrong people, the cops, you're parents the social workers…I'm not threatening you. I'm promising you."
After he left more phone messages were sent. Some profess love, others make promises to stay away from drugs, one accuses her of saying "shit" to the police.
On 23 April 2019, Aumash returned to Ms White's home. She was with a worker from Barnados, who was helping her with moving to crisis accommodation and with an Apprehended Violence hearing, listed on 24 April 2019. Aumash yelled from his car and abused the worker telling her to "fuck off." He drove off at high speed. Both women were scared. They called Triple 0.
About half an hour later Aumash returned. He yelled from the car window and drove off; soon after he was seen outside the home, near Ms White's car. He raised his hands and came toward the house saying, "I come in peace, I just want to talk to Ms White." The Barnados worker put herself between Aumash and Ms White who was cowering on the floor terrified. Aumash stood at the mesh screen door asking to talk to her. The worker told him "there is an AVO you need to go." He replied "I don't give a fuck about the AVO."
Another Triple 0 call was made. Police arrived soon after and took Ms White and the Barnado's worker to a safe location.
A police record search of Ms White's phone shows that between 12:49 am and 10:19 pm on 23 April 2019, Aumash made 488 calls to her. He also sent 98 text messages. None were answered. It is accepted those calls by their content and number were menacing and harassing.
On 4 June 2019, Aumash again came to Ms White's home. She was packing with the help of removalists. He would not leave saying, "you're bat shit crazy if you think I'm leaving you with three males in the house."
Later a removalist found him hiding in the garage. He continued to phone and sent messages to her phone. She ignored him.
Later that evening after Ms White had gone to bed, Aumash entered Ms White's home through a window. The following morning she awoke to find Aumash asleep on a mattress. When he woke he said he had taken her phone to charge it. It had been placed under her pillow. Again, she demanded he leave. He refused. Police arrived and found Aumash hiding in the rear yard. He told them he would never have hurt Ms White and that "I did all the bad stuff to her when I was on "ice" and then I don't remember doing it...I'm clean now."
On 5 June 2019, Aumash was arrested at Ms White's home and served with the Apprehended Violence Order. He was given bail but was arrested on 22 June 2019. He has been in custody ever since.
There are three matters for sentence today; two relate to the Aumash's entries to Ms White home on the 7th and 8th April intending to intimidate her. The offences are aggravated by his knowing she was home at the time: s11(2) Crime Act 1900 (NSW); maximum penalty 14 years. The third relates to the SMS messages left on Ms White's phone and the 488 phone calls of 23 April: s 474.17(1) Criminal Code Act 1995 (Cth).

Assessment of objective seriousness - Enter with intent

The first s 111(2) offence occurred on 8 April when Aumash climbed into Ms White's home through her bedroom window on April 2019. He obviously knew she was home as by his plea he acknowledges he entered intending to intimidate her, that is cause her fear and apprehend injury or violence: s 7 Crimes (Domestic and Personal and Violence) Act 2007 (NSW). The second s111(2) offence occurred on 9 April when at 5:30 pm Ms White found Aumash under her son's bed. It represents an escalation of the ongoing intimidation of his victim.
Looking first at the elements of both offences neither appears to be particularly high in a scale of seriousness. The circumstance of aggravation is not in the same category as some of the other circumstances detailed in s105A Crimes Act 1900 (NSW), such as infliction of actual bodily harm. The offence of intimidation carries a maximum penalty of 5 years; s 7 Crimes (Domestic and Personal and Violence) Act. A serious indicatable offence is any crime with a maximum penalty of 5 years imprisonment or more; s4 Crime Act 1900 (NSW).
Further, knowing someone was in the premises was the rationale for Aumash's entry to Ms White's home. The intention to intimidate, in context, was of course serious. As I have already noted, Aumash had no concerns for Ms White's emotional state, he was thinking only of himself and sought to exercise coercive control over her by putting her in fear. But, the objective criminality caught by each offence is Aumash's intention, not the act of intimidation itself.
A determination of an appropriate punishment does not occur in a vacuum. No offence should be assessed devoid of context. Here, that context is given by the matters to be taken into account on the Form 1 in relation to each count for sentence.

Assessment of objective seriousness - Use carriage service

Few in the modern world can function without their mobile phone. A phone is a boon but it can, if exploited, be a curse. Well over 400 calls were made on 23 April. Nearly 100 SMS messages were sent to Ms White. In earlier messages Aumash had sought to control, threaten, and demean Ms White. His intention this day was clear. It was part of a pattern of behaviour. He also sought to cajole her into dropping the charges and excusing his criminal actions toward her. I can infer from those facts that the messages were similar in content to those sent on other days. That conclusion can be drawn beyond reasonable doubt.
The extent of his harassment and the motivation for his actions this day make this a particularly serious example of offences of this type. It requires a custodial sentence: s17 Crimes Act 1914 (Cth).

The Forms 1

Form 1 matters can be taken into account when determining the appropriate penalty for the offence to which they relate: Attorney General's Application No. 1: (2002) 56 NSWLR 146; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. The court does not "in any sense" impose sentences for those offences: Attorney General's Application No. 1 at [68.]. The matters on each Form 1 here do however operate to increase the sentence that would otherwise be appropriate for the mater to which they relate. The court does so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357, at [51]-[54]. Such an increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No. 1, at [39] - [42]. Sometimes, as here, that increase can be substantial: Attorney General's Application No. 1, at [18]; Grube v R [2005] NSWCCA 140.
So far as the 8 April offence is concerned four matters will be taken into account. They relate to the facts outlined above and involve the crimes of; intimidation, the taking of Ms White's car, and two entries to Ms White's property without her consent.
So far as the 9 April offence is concerned five matters will be taken into account. They relate to the facts outlined above and involve; three acts of intimidation, the entry to Ms White's property without her consent and another of remaining on her property without her consent.
I note that while I will not be sentencing for the Form 1 matters; breaches of the Inclosed Lands Protection Act 1901 carry only a fine as a penalty; both intimidation and take and drive a motor vehicle have a maximum penalty of 5 years imprisonment; 2 years if dealt with in the Local Court.

Victim Impact

Although these proceedings were conducted by using Virtual Court proceedings Ms White was able to attend via a video link. I read her Victim Impact Statement to the offender
In her Victim Impact Statement she spoke of how she felt "gutted and numb" and how she is still trying to understand what had been done to her. Pre-existing mental health issues have understandably been exacerbated by what was done to her. She spoke of the hardship and disruption of having to relocate. She is now less trusting and more suspicious of others but having survived feels stronger.

Guidance

While every offence and every offender requires individualised treatment courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include: the maximum penalties here, 14 years for the s 111(2) offences and 3 years for the Commonwealth use carriage service offence and the decisions of other courts, particularly those designed to give guidance.
Careful consideration must also be given to the matters set out in s 16A and s 17 Crimes Act 1914 (Cth) and s 3A Crimes (Sentencing Procedure) Act (NSW), the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to the victims and the community.

Criminal record

This is Aumash's first time in custody but he has offended before. In particular, his criminal record includes domestic violence type offences in Western Australia in 2017 and NSW in 2016. He is not entitled to the leniency often given first offenders.

Subjective Case

Aumash is now 39. He grew up in Sydney. His parents came from Lebanon. He has two older brothers. He did well at school. He started a University course but left after a year and found employment. He has worked all his adult life. He has been married and has two children. He told Mr Borenstein, his clinical psychologist that he first started using 'ice' while working in the mines in Western Australia. He continued to use that drug until the time this offending commenced. He explained his behaviour by saying he was withdrawing from the drug at the time of his arrest. He says he is not using while in custody; although this is contradicted by one drug related disciplinary offence on his gaol record. He has a job in the gaol. He is concerned for his father is concerned for his father who is unwell.
I have received a Community Corrections Sentence Assessment Report. It notes Aumash has a stable work history and family support. It also notes the emerging pattern of domestic violence offences and Aumash's desire to address that particular criminal aspect of his personality. He has completed the remand Domestic Violence Course. He is assessed at a medium risk of reoffending but a supervision plan can be put in place that might help. The report notes he has verbalised some regret for his actions but his claim that Ms White set him up and his blaming of her for perceived wrongdoings undermine this verbalisation.
A number of personal references speak of an intelligent and respectful man who wants, on release, to start afresh. His referees make no mention of his drug use.
I have the report of Mr Borenstein, a clinical psychologist: exhibit 1. Mr Borenstein sets out the offender's personal history, which is uncontroversial. He notes a history of domestic violence in his earlier relationships. He notes a long history of methylampetamine abuse and gambling problems. He notes a history of depression and low mood. He suggests Aumash was self-medicating for depression and then having stopped using suddenly became more emotionally labile and unstable during the period he was offending. In the absence of sworn evidence I cannot determine whether Aumash was drug affected or suffering withdrawal symptoms. There is no need for me to do so as neither mental state mitigates his offending.
In Mr Borenstein's opinion Aumash would benefit from psychological treatment to address his insecurity and jealousy. He will need drug and alcohol abuse treatment and should engage in the SMART programmes and domestic violence programmes offered by Community Corrections. He needs to develop insight into his past behaviours. If he does his risk of reoffending will be reduced.

Remorse

The guilty pleas were negotiated and entered knowing that a reduction in sentence will be given. These matters must now be explained to all accused by their lawyers: s 22 and 25D Crimes (Sentencing Procedure) Act 1999. The guilty pleas of themselves provide no evidence of remorse and no additional reduction in sentence beyond the required discount; here 25%: CD v R [2013] VSCA 95, at [36]. Aumash did not give evidence. His expressions of remorse and his contrition, through Mr Borenstein and his Community Corrections officer, were qualified by comments such as it was "all a misunderstanding" and "she set me up." Aumash was not remorseful. He has no concerns other than for himself. Even after a year in gaol to reflect he still has no idea how serious his crimes were and how they impacted on Ms White.

COVID-19

In other recent matters I have received and considered an advice prepared for Legal Aid NSW by the Kirby Institute at UNSW (16 April 202); World Health Organisation material on CV-19 and a Corrective Services (CSNSW memo - response to COVID - 19, the most recent being from 22 April 2020: R v Despotovski [2020] NSWDC 110; R v Strickland [2020] NSWDC 164.
The present COVID-19 crisis will increase apprehension about infections in gaols, as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Social visits have been suspended for an indefinite period, although access to telephone calls has increased.
These concerns and considerations apply to every prisoner sentenced and for sentence. I am however sentencing this offender today based on current knowledge of COVID-19 and the response to the crisis as advised by Corrective Services NSW.
If/when COVID -19 enters gaols early parole may be given some but not all prisoners: s276 Crimes (Administration of Sentences) Act 1999. Although he has no immediate health problems Aumash is in a category that can be considered for early release. I cannot predict what will happen to this offender but the lack of visits reducing any capacity to remain in contact with pro-social friends and family, and heightened anxiety and concerns, must be synthesised along with all other matters.

Structure of Sentence

Each sentence will be reduced by 25% to reflect the utilitarian value of the offender's early guilty pleas: s25D Crimes (Administration of Sentences) Act 1999: Xiao v R [2018] NSWCCA 4. I will take care when accumulating not to erode that benefit.
There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. They are part of a single episode of criminality with many common factors, but the three offence and the Form 1 matters that must be taken into account for each NSW offence show a sustained attack on Ms White's physical and psychological integrity over a period of weeks. One sentence could not comprehend or reflect the criminality of the others. The aggregation of all of the sentences must be a just and appropriate measure of the total criminality involved: Mill v The Queen (1988) 166 CLR 59, at [62]-[63]; Postiglione v The Queen (1997) 189 CLR 295, at [307]-[308] per McHugh J; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41.
There will be an aggregate sentence for the NSW matters. A separate sentence must be fixed for the Commonwealth offence. The Commonwealth sentence will start the day Aumash came into custody, 22 June 2019. It will have a fixed term as it will be partially concurrent with and subsumed by, the NSW sentence which will commence 3 months later.
The NSW sentence reflects a finding of special circumstances to take into account the accumulation of sentences and Aumash's need to engage in psychological treatment, drug rehabilitation programmes and domestic violence offender programmes in the community. He should be supervised and assisted for as long as possible while on parole. That said, the minimum period he must spend in custody must still reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, at [59].

Submissions

Ms Collison, solicitor for the Director of Public Prosecutions, and Mr McMahon Counsel for the offender, provided comprehensive written and oral submissions. They were helpful. I have considered and addressed them in coming to my determinations as to the appropriate sentence in each matter.
Ms Collison noted the absence of remorse and submitted that Aumash's continuing attitude toward Ms White indicated his prospects for rehabilitation were guarded and did not justify a finding of special circumstances.
Mr McMahon suggests the offences had bizarre aspects because their genesis was in Aumash's drug use and its abrupt cessation. He accepts drug use cannot mitigate the offences but notes that Aumash's efforts to deal with that problem is an important matter when it comes to my assessment of the structure of the sentence and his prospects for rehabilitation: R v Henry (1999) 46 NSWLR 346, at [275].
While I agree Aumash's prospects are guarded, they will be assisted if he engages in drug rehabilitation programmes. On release he should be supervised for as long as possible. Empirical evidence shows that offenders who received parole supervision upon release from custody took longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology, V 149. No.4. p 497.

Synthesis

Nothing can or should excuse Aumash's behaviour toward Ms White. His crimes were so serious he must be removed from the community for a time. But he must also be returned to the community. Ideally he should be released and never offend against women again. Gaoling him however creates a dilemma - placing men in gaol, an intrinsically violent environment is an ineffective way of addressing the underlying causes of crimes against women. But the need for community protection, supported by growing community perceptions about the impact of domestic violence, requires that men who commit such offences, particularly those who do so repeatedly, be removed from the community.
The High Court recognised that heavy sentences are likely to be of little utility in reducing the incidence of crimes, especially crimes of passion: Munda v The Queen joint judgment. But the Court also said that the proper role of the criminal law is not limited to the utilitarian value of general deterrence. There are other important purposes of sentencing; they include the court's obligation to vindicate the dignity victim of domestic violence and to express the community's disapproval of that offending. Men must be held responsible for their actions.

Orders

For the s 474. 17(1) offence you are sentenced to a term of imprisonment of 9 months. Your sentence is to commence on 22 June 2019 and to expire on 21 March 2020.

Aggregate sentence

For the s 111(2) taking into account the four (4) matters on the Form 1: I indicate a sentence of 2 years 7 months.
For the s 111(2) taking into account the five (5) matters on the Form 1: I indicate a sentence of indicate 2 years 9 months.
Having considered issues of accumulation, concurrency and totality, the total aggregate sentence is 3 years 3 months. There will be a non-parole period of 2 years commencing 22 September 2019 and expiring 21 September 2021. The balance of the sentence of 1 year 3 months is to commence upon the expiration of the non-parole period on expiring 22 September 2021and expiring on 21 December 2022.

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: 04 May 2020

Crimes (Domestic and Personal and Violence) Act 2007(NSW)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (20)