R v Jebara

Judgment on sentence

1. Allam Jebara appears, represented, by AVL from custody for sentence before the Court today. He has pleaded guilty to five charges involving unlawful entry: two of break and enter a dwelling house and stealing property, both of which carry a maximum penalty of fourteen years' imprisonment; one offence of break and enter a dwelling house with intent to steal and one of entering a dwelling house with intent to commit an indictable offence, both of which carry maximum penalties of ten years' imprisonment; and an offence of entering land or buildings with intent to commit an indictable offence, which carries a maximum penalty of seven years. The last offence mentioned, that is, the entry into the land and buildings without consent to commit an indictable offence, involved a younger co-offender who, after spending eight months in custody, was given a twelve-month Community Corrections Order as her sentence.
2. In Count 1 on 17 January 2019, Mr Jebara entered a residential granny flat in Granville by opening a window and removing a fly-wire screen, using a garbage bin for elevation. The resident victim was not home at the time. Mr Jebara opened all of the victim's bedroom drawers and took with him jewellery, a 13" Apple MacBook Air in a blue case, a pair of Tiffany & Co sunglasses and $2,000. The victim on arriving home called the police and Mr Jebara's fingerprints were found on the window frame.
3. In Count 2, on 30 January 2019 at about 7.30am with a 20-year-old female co-offender, Mr Jebara rang the bell and knocked on the door of a house in Merrylands. The residents of the house comprised the victim, his wife and three daughters. At 7.40am, the 15-year-old daughter came downstairs and noticed Mr Jebara, whom she did not know, having opened the backdoor and tugging at the still-closed fly-wire screen-door. The co-offender was standing behind Mr Jebara. The daughter asked Mr Jebara, "What are you doing here?" to which he replied, "I have to fix the locks, I'm a locksmith. Your husband knows about it." The daughter told Mr Jebara to wait out the front. When she phoned her father, she was instructed to call the police. Whilst she was doing so, CCTV from a neighbouring house showed Mr Jebara and the co-offender leaving the property.
4. Count 3 concerns events at about 3pm that same day, at another house in Merrylands, where Mr Jebara broke a window flyscreen, opened the window, searched through a house and took property. Some of the property he deposited into the front yard, including bags that contained passports, credit cards, personal identification documents, a pre-loaded flight card, a PlayStation and games, toys, an iPad, an Apple TV, a vacuum cleaner, clothing, food, a lawn mower and power tools. Stolen from the house and taken away from the property were a Peruvian football jersey, Peruvian currency and jewellery. Subsequently that day, Mr Jebara was found to be wearing the stolen Peruvian football jersey and carrying the currency and jewellery in his pockets and underpants.
5. Count 4 concerns another offence on that same day, at a nearby house in Merrylands, where Mr Jebara entered a garage, stole a number of fishing rods before exiting the garage and partially closing the roller door and then subsequently pulling up the roller door and re-entering the garage with the fishing rods. Mr Jebara, when confronted, informed the female resident that he was selling fishing rods for $13 each. The female resident declined and told him to leave, which he did, with the fishing rods. Subsequently, the female resident discovered that the fishing rods had come from her garage and argued with Mr Jebara, who became agitated and aggressive, but eventually relinquished the rods and jumped the back fence.
6. Count 5 concerns an offence that same day next door to the location of Count 4. Mr Jebara opened that garage door, looked at items and touched a bicycle in that garage. When the female neighbour referred to in respect of Count 4 yelled, the resident of the premises confronted Mr Jebara who said to him, "I am dropping off fishing rods." When that resident yelled at Mr Jebara about "going to call the cops", Mr Jebara said: "If you call the cops and I get done, I will get my mates and I will come back. I know where you live, I know what you look like and I will come back and get ya!"
7. The resident feared for himself and his family, as did the female neighbour. Mr Jebara was subsequently apprehended by the police and found to possess the items I earlier mentioned, as well as 0.4 grams of methylamphetamine.
8. In relation to the final charge of break and enter a dwelling house with intent to commit an indictable offence, where Mr Jebara went into the garage, looked and touched some of the items there before being confronted, I am to take into account the offence on the Form 1 of stalk or intimidate a person intending to cause fear of physical harm under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, constituted by his words to the neighbour that I have quoted.
9. I am also to sentence Mr Jebara in respect of the related offence on the s 166 Certificate of possession of a prohibited drug, an offence carrying a maximum penalty of two years' imprisonment.
10. As Mr Jebara has pleaded guilty at an early time before committal, he is entitled to a 25% discount for the utilitarian value of the plea. His co-offender was sentenced in respect of only one of the charges against Mr Jebara, the offence with the lowest maximum penalty of the offences in the indictment, so, when looking at considerations of parity, it is of little guidance or utility in determining the appropriate overall penalty.
11. In R v Brewster, [1] it is recorded that: "Domestic burglary is, and always has been, regarded as a very serious offence. It may involve considerable loss to the victim. Even when it does not, the victim may lose possessions of particular value to him or her. To those who are insured, the receipt of financial compensation does not replace what is lost. But many victims are uninsured; because they may have fewer possessions, they are the more seriously injured by the loss of those they do have. The loss of material possessions is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar. Generally speaking, it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night; but that does not mean that the offence is not serious if the victim returns to an empty house during the daytime to find that it has been burgled."
12. In this case, in Counts 2, 4 and 5 there were occupants in the house when the offences took place, although, as indicated, Count 2 does not involve the elements of a burglary.
13. As submitted, I also have regard to what was said in [27]-[29] of R v Huynh, [2] although in this case, there was no offensive weapon, no violence or deprivation of liberty, and apart from Count 2 the offences were not committed in company. Each matter must depend on its own circumstances.
14. I am reminded that in McGoldrick v Regina, [3] it was said that "heavy sentences should generally be imposed for break, enter and steal offences committed by repeat offenders on domestic premises, whether or not they were aggravated forms of the offence".
15. I accept in this case that there was a lack of professional or significant planning, but this does not reduce the seriousness of the offence to any material degree as a lack of planning might be expected to be common in break and enter offences. [4]
16. In this case, Count 1 involved items of value including cash of $2,000 plus a laptop, the deprivation of which would, in addition to its value, have inconvenienced the victim. Count 1 also involved the jewellery and the sunglasses.
17. Count 2 was, as I have said, committed in company, and involved an interaction with a child of fifteen, who was present at the time, both of which are aggravating factors.
18. Count 3 involved taking personal identification documents, the loss of which would cause significant inconvenience as would the ransacking of the premises where quite a number of goods were taken from the premises and deposited on the front yard or strewn throughout the house.
19. Counts 4 and 5 involve the presence of the victims at the home, a matter to be considered as indicated in the decision of Brewster. In addition, the intimidation offence, where Mr Jebara threatened to "come back and get ya" is a matter to be taken into account on the Form 1 in relation to the penalty under Count 5, and so enhances the gravity of that offence.
20. I accept that, taking all these matters into account, the various offences are, as submitted by the defence, towards the middle of the range in terms of objective seriousness.
21. Mr Jebara is 42 years old. He has three sons, who are adults or adolescents. He has a lengthy history of break and enter offences and also some even more serious offences. He has been imprisoned for a significant proportion of his adult life.
22. I have taken into account a reference provided by his brother, but that reference is limited as to the assurance it gives as to Mr Jebara's prospects of rehabilitation.
23. Mr Jebara also tendered a psychological report. It discloses that Mr Jebara has a problem with incontinence, which, it was submitted, has resulted in him not sharing a cell during the current health safeguards. As a result, his time in custody will be somewhat more solitary and difficult for him and I take that into account.
24. The psychological report also discloses Mr Jebara's long-term difficulty with drugs and that he is currently prescribed the opiate replacement Suboxone. The ongoing problem with drugs, and its involvement in the particular offences, is not a mitigating factor, but it identifies one of the needs that must be considered if Mr Jebara is to be rehabilitated. To my reading of the report it indicates that Mr Jebara displays little insight into his offences. He recognises they are wrong, as his pleas also indicate, but he is unable to understand what causes his offending, although he does profess a desire to end it. I accept that drug rehabilitation would assist Mr Jebara but, because of past offences involving violence with a firearm, he does not qualify for compulsory drug treatment.
25. Whilst in custody, Mr Jebara spends half of the day confined in his cell in the current health environment. He cannot go to the gym, I am told, but of course neither could he go to the gym if not in custody under present health regulations so I do not think that is especially material. The reduction in face-to-face family contact during the current Coronavirus restrictions would impact on him more significantly than it might if he was in the community and so I take that into account as an additional burden in his period of imprisonment.
26. It is not disputed, and I find, that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 is satisfied and that a sentence of imprisonment is the only appropriate penalty having considered all the alternatives. Mr Jebara's penalty must, in my view, involve a period in custody. I note that in the six months before the offences were committed, Mr Jebara, having been released from custody, did not offend, indicating that with proper treatment there is at least some prospect that he is able to change the pattern of offending that has so far characterised his life.
27. None of the offences carry a standard non-parole period. But in view of the circumstance that all of the offences occurred in a confined period of a fortnight and all but one of them occurred on the same day, there should be some degree of concurrency and I propose to order an aggregate sentence in respect of the offences.
28. The sentencing purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999 must be considered. In this collection of offences the protection of the public has particular significance as does the need to recognise the harm done to the victims and the community. So also there is the need for deterrence, the need to make Mr Jebara accountable for his crimes, for adequate punishment and to denounce the conduct comprising the offences.
29. Taking all these matters into account, and in particular the 25% reduction for the guilty plea, I indicate that the sentences that I would give in respect of the various offences are: 1. In respect of Count 1, 20 months' imprisonment. 2. Count 2, 16 months' imprisonment. 3. Count 3, 20 months' imprisonment. 4. Count 4, 18 months' imprisonment; and 5. Count 5, taking into account the Form 1, 20 months' imprisonment. 6. And in respect of the s 166 Certificate, for possession of a prohibited drug, three months' imprisonment.
30. The aggregate sentence that I impose upon Mr Jebara in respect of these offences is imprisonment for a term of four years commencing from 30 January 2019 and concluding on 29 January 2023, with a non-parole period of two years and six months so that Mr Jebara would be eligible for parole on 29 July 2021.
31. In view of the drug addiction, I find special circumstances.

Endnotes

1. [1998] 1 Cr App R 220 at 225.
2. [2005] NSWCCA 220.
3. [2012] NSWCCA 7 at [35].
4. See Andrew Smith v R [2013] NSWCCA 209 at [57]. 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: 11 May 2020