R v Zraika

District Court of NSW|2020-02-20

Judgment

Sajah Zraika pleaded not guilty to one offence that she did, on 10 November 2017 at Miller in the State of New South Wales, break and enter the dwelling house of Oumaya Eid at Miller Road, and did commit a serious indictable offence therein, namely assault occasioning actual bodily harm, in circumstances of aggravation, namely, she was in the company of Janene Tevelein and Zena Al-Hazzouri. This is an offence contrary to s 112(2) of the Crimes Act 1900 (NSW)1 and carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of 5 years imprisonment.
On 20 February 2020, after a trial of some 7 days, the jury entered a verdict of guilty.
Following a delay brought about by logistical arrangements affecting Sydney District Court and my own availability, I heard sentencing submissions on 29 May 2020.

Defence submissions

The Defence submitted that the background to the offence is that all women in the offence knew each other and that Ms Al-Hazzouri had a grievance against the Victim which was both irrational and prone to be violent. It contended that until the offence actually occurred, nothing immediately preceding it corroborates the criminal act the Offender was found guilty of. In terms of the offence, it submitted that there was no planning, and there was no intention to participate. In particular, there was no evidence to support a contention that there was any premeditation on the part of the Offender, in the sense that she believed that there was going to be a physical altercation between Ms Al-Hazzouri and the Victim. It noted that Ms Al-Hazzouri asserted that the Offender participated in the breakdown of the door which was denied by the Offender, and submitted that Ms Al-Hazzouri's version should be significantly diminished on credibility. It acknowledged that the Offender attended in circumstances where she ought to have known that some argument and shouting might otherwise occur between the Victim and Ms Al-Hazzouri. It noted that the Offender took no part in the actual acts which would form part of the criminality, and rather it was the circumstance of aggravation (in company and complicity rules) which visits criminality upon her.
The Defence submitted that the evidence of the Offender was that once the argument started, she walked outside the house. Whilst it was acknowledged there was cross-examination on the participation of the Offender, no admission or concession was made and this fact could not sustain a finding of guilt. The Defence contended that if the jury accepted this version it was then not open to consider that the Offender's knowledge was such a level that it was a reasonable conclusion that Ms Al-Hazzouri would carry out the act of violence that were to occur. The Defence instead sought to contend that the Offender's guilt is to be founded on the basis that she assisted the Principal offender (Ms Al-Hazzouri) to escape in the car after knowing that she had committed a violent offence.

Findings

The difficulty with the Defence's version of events is that it does not accord with the case which was advanced by the Crown and accepted by the jury.
On the evidence, I am satisfied that prior to attending the Victim's home on 10 November 2017, the Offender had contacted Ms Al-Hazzouri and told her that she was angry that the Victim had slept with her ex-boyfriend. Ms Al-Hazzouri told the Offender not worry about it and that she would call her back when she got home. A short time later, she gave evidence that the Offender rang her back up and told her, "By the way, she's sleeping with your ex-husband." [2] At that point, Ms Al-Hazzouri indicated that she wanted to go and pick up her belongings and get out. She asked the Offender to pick her up, which she did with a second co-offender, Ms Janene Tevelein and another unknown female, and they drove to the Victim's house.
I further accept that that four persons described arrived at the Victim's home at around 11.45pm on 10 November 2017, following which the Victim let them into the house and the Victim and Ms Al-Hazzouri began arguing. At one stage Ms Al-Hazzouri went outside with the co-offenders to take some of her belongings to the car. When they returned to the house, they were confronted with a closed door and banged on the door trying to get back in.
Ms Al-Hazzouri's evidence was that the Offender broke the door down. When asked if she knew how she broke the door down, she replied that she did not know. When she was asked if she saw her break the door down, she stated "Yeah, we were at the door." [3] She subsequently stated that they were all at the door trying to break it down, but in the end it was the Offender who broke down the door. She was asked whether she saw any damage to the door and she said "Like, it just went flat down on the floor." [4] In cross-examination, she stated that they all tried to break the door down, but the Offender was the one who "kicked it down." [5]
The Crown case was that it was the Offender that broke the door open. The Defence case was that it was Ms Tevelein. The jury rejected the Offender's evidence and I am satisfied beyond reasonable doubt that whilst the participants were seeking to force the front door open, in the end it was the Offender who succeeded in doing so by forcing it open and damaging the door frame and adjoining wall and leaving a hole on the opposing wall where the doorknob was pushed against it. On the evidence I am satisfied beyond reasonable doubt that there was a fourth person present. I further accept that the door was broken open, it being plain from photographs taken shortly after the events in question that it did not go flat to the ground. [6]
The Crown case was that the relevant intent was formed at some point prior to the break of the door and it was the basis on which the jury were directed.
Whilst I am satisfied that it was the Offender's contact with Ms Al-Hazzouri precipitated the journey undertaken to the Victim's house, I am not satisfied that there was any intent to commit the offence in question until immediately prior to the breaking of the door.
As to the Offender's involvement in the violent event that followed, the Defence sought to rely on the evidence of the Victim to sustain a finding that the Offender was not involved in striking the Victim.
The Crown submission was that at some stage some if not all of the Offenders joined in a melee and started punching the Victim.
The Victim's evidence on the question of the assault was that the main physical contact was with Ms Al-Hazzouri. However she stated that when she was on the floor there was more than one person punching into her. [7]
Ms Al-Hazzouri described that they were fighting with the Victim. When she was asked who was fighting with her she stated, "I think we all ganged up on her." [8] Ms Al-Hazzouri conceded that she grabbed hold of the Victim and started punching and kicking her, before taking the rest of her stuff to the car. [9] When she was asked whether she saw what the others were doing, she stated "No. Well, there was that one point where we were all ganging up on her, like, and that was one time." By all, she described herself and the Offender. [10] She maintained that the argument with the Victim started with her alone but then, "We all ganged up on her." [11]
Ms Al-Hazzouri denied that the Offender and Ms Tevelein pulled her and the Victim apart. She accepted that towards the end of the altercation it was she that grabbed a lamp and struck the Victim.
The Crown submission to the jury was that they did not need to be satisfied that the Offender struck the Victim as long as they were satisfied that she was part of a joint criminal enterprise to do so.
On the evidence and in light of the Crown submission, I am not satisfied beyond reasonable doubt that the Offender actually struck the Victim, although I accept by the jury verdict that she was part of a joint criminal enterprise to do so.
Based on the Victim's evidence, I am prepared to accept on the balance of probabilities that the Offender sought at one point to remove Ms Al-Hazzouri so that she could cease striking her.

Objective seriousness

The Crown contended that this offence fell below the mid-range of objective seriousness.
The Crown contended that the offending was aggravated in light of the number of intruders, the fact that it was committed in the home of the Victim and occurred when the Offender knew that the Victim would be in residence, and that the four persons were intruding. Reference was made to the decision in Maxwell v R [12] where it was stated that the more circumstances of aggravation (referred to in s 105A of the 1900 Act) the more serious the offending.
The Defence conceded that the offence was serious, anti-social and required condign punishment.
The fact that the offence was committed in company with two others was an integral part of the offence. To the extent that a fourth person was present, the evidence does not identify any active role that person played such that it adds further to the objective seriousness.
I accept that the circumstances developed rapidly and the relevant offending was otherwise not pre-planned. I bear in mind that the four intruders were present, three of whom were known to the Victim, and that it occurred at night in her home. Although the offending occurred in circumstances where the Offender knew of the presence of the Victim being in attendance at her home there must be no double counting with the essential elements of the offence. Although the Victim's daughter was in the house there was no evidence that she was disturbed or witnessed what occurred and the Crown made no submission in this regard. It is accepted that so far as the offence was concerned the Offender was not the principal. I cannot be satisfied that she struck the Victim, although I accept that she was a party to the agreement to do so. I also accept that at one point she acted to remove Ms Al-Hazzouri from the Victim.
It was Ms Tevelein that drove the vehicle that departed from the Victim's home with the Offender, Ms Al-Hazzouri and the fourth unnamed person.
The Defence advanced no submission that the Offender's moral culpability was reduced on account of the findings of Mr Chafic Awit psychologist discussed below. This matter could be put to one side as the Offender has denied involvement in the offence in question.
Overall, I accept that the Offender's involvement was less than that of Ms Al-Hazzouri. The Defence contended that the Offender's involvement can be viewed as no more and only less than Ms Tevelein. The Crown contended that the involvement was higher than that of Ms Tevelein. Overall, despite the fact the Offender broke open the door, her involvement does not appear to be higher than that of Ms Tevelein as submitted by the Crown. I accept that the injuries were those submitted by the Crown and there is no evidence that they required ongoing medical attention. I find that the offending fell at within the lower range of objective seriousness towards the bottom.

Plea

The Offender did not plead guilty and therefore is not entitled to a sentence discount.

Remorse

In the Sentence Assessment Report, the Offender continued to deny responsibility, although she did state that she "felt bad" for the Victim, and had she known what Ms Al-Hazzouri's intentions were she would not have accompanied her to the Victim's residence. She stated that the Victim did not deserve what happened to her.
Whilst I acknowledge the empathy expressed for the victim, remorse has not been established pursuant to s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). [13]

Prior Convictions

The Offender has one prior conviction for assault on 3 August 2015, in respect of which she received a fine for $1000. It was accepted in the circumstances that the Offender does not have a significant record of previous convictions within the terms of s 21A(3)(e) of the 1999 Act.

Prior Good Character

Two references have been tendered on the Offender's behalf; one of Ms Calista Maatouk and another of Ms Jennifer Obeid. [14] Both persons state that they have known the Offender for an extended period and describe her favourable terms. I accept that based on that evidence, and limited criminal history, that the Offender can be described as being of generally good character.

Background

According to a report Mr Awit, [15] the Offender was born in Sydney and is the middle child of five siblings. Her parents divorced when she was aged fifteen. A conflict arose between her and her father which was described as bullying and humiliating treatment. The Offender had little contact with her father until her marriage in 2018. Before that she was supported by her mother who worked as a cleaner to support the family.
The Offender attended school to Year 12. At school she was described as having suffered significant bullying, resulting in anxiety attacks to the point where she was passing out and impacted her studies. Whilst at school she completed a Certificate II in Hair and Beauty, and she advised that she commenced a Certificate III in Business Administration at TAFE after completing School, however did not complete this. In 2016 she commenced a Diploma in Beauty Therapy, but halfway through the course she had an allergic reaction to the products being used and was forced to cease the course.

Employment

The Offender commenced employment at the age of 19 working in a hairdressing salon for a period of four months before the business was closed down. She thereafter was unemployed for a year before she found a waitress job in a restaurant and worked there for a couple of months before being let go. She remained unemployed for six months before finding employment as a waitress again for seven months before that business closed down. Thereafter she was unemployed, although she is currently a full-time mother to her one year old daughter. The Offender was married in 2018 and has one daughter. The relationship is described in positive terms. The Offender also stated to Mr Awit that she has a handful of friends that she has remained friends with since Primary School.

Likelihood of Reoffending and Prospects of Rehabilitation

Mr Awit stated that the Offender reported symptoms that met the DSM-V Diagnostic Criteria for Generalised Anxiety Disorder, noting that the Beck Depression Inventory indicated suffering Moderate Depression. Mr Awit opined that over the years she has significantly struggled with Anxiety and Depression, and has often struggled to think through decisions.
Nevertheless the Offender is described as being at low risk of reoffending. Mr Awit noted that the Offender had been very willing to engage in further treatment, regardless of the outcome of the court hearing. He recommended a treatment plan comprising a number of components
The Sentence Assessment Report records that the Offender has been assessed at a low risk of reoffending according to the Level of Service Inventory - Revised (LSR-R).
The evidence establishes that the Offender is now in a relationship that is described in positive terms and that she bears the responsibility of a young child.
She has been on stringent bail conditions including curfews, place restrictions, non-association conditions and reporting to police at various points since 21 December 2017 until 20 February 2020. Following the jury's verdict and pending sentence today, bail had been granted on conditions including reporting to police 3 days a week and not to contact any witnesses or co-offenders. There is no report of failure to comply.
Although the Offender did not plead guilty or express remorse, as was stated by Giles JA in Alseedi v R [16] (with Hidden and McCallum JJ agreeing) at [65]: …there can be rehabilitation without confession, and offenders found guilty after a trial are not all but automatically deprived of a finding of good prospects of rehabilitation unless they then acknowledge their guilt.
Overall I accept that that the Offender is at low risk of reoffending, and despite her denial that there is a reasonable prospect of rehabilitation.

Parity

Ms Al-Hazzouri was sentenced by O'Brien DCJ on 5 July 2019 at Campbelltown District Court, having pleaded guilty to multiple offences in respect of which an aggregate term of imprisonment was imposed comprising of a total term of three years and nine months imprisonment, with two years and two months non-parole. The offence under s 112(2) of the 1900 Act to which Ms Al-Hazzouri pleaded guilty was break enter and commit serious indictable offence therein, namely larceny, in circumstances of aggravation being that the offender knew that there were persons present. The sentence indicated was two years and seven months imprisonment with an indicative non-parole period of 18 months, taking into account a 25% discount for an early plea.
The facts on which Ms Al-Hazzouri was sentenced indicated that Ms Al-Hazzouri, along with those in her company, demanded that the Victim open up the door and that when she declined, the door was kicked in. The four females then rushed into the home. An argument ensued over the retrieval of the Victim's phone. The Victim refused which resulted in a physical altercation which included both Ms Tevelein and the Offender. The agreed facts record that Ms Al-Hazzouri took a knife from the kitchen drawer, and then one of the females picked up a silver metal lamp and hit the Victim over the head. The facts further record the Victim's phone was taken.
O'Brien DCJ stated:- The circumstances of aggravation relied upon by the Crown is that the offender was aware that persons were present in the property at the time that it was entered by her and others. Other of the circumstances of aggravation that are set out in s 105A of the Crimes Act are also present here, including that the offender was in company and that actual bodily harm was occasioned to the victim. The fact that there are multiple aggravating features present is a relevant matter in assessing the objective seriousness of the offending (see Maxwell v R [2007] NSWCCA 304 at [26]). As Simpson J observed in R v Huynh [2005] NSWCCA 220 at [30], "It is only common sense that, generally speaking, the more circumstances of aggravation in s 112(2) are present the more serious will be the offence." (emphasis added)
In this case, O'Brien DCJ assessed the matter as falling below the mid-range of objective seriousness for offences of this type.
Apart from the factual differences referred to, the sentence in relation to Ms Al-Hazzouri noted that at the time of the offending, she was on two section 9 bonds imposed on 27 March 2017 at Bankstown Local Court on respective charges on common assault and stalk and intimidate. She was also the subject of a recognisance under s 20(1)(a) of the Crimes Act 1914 (Cth) in the sum of $400 to be of good behaviour for 12 months in respect of a charge of use carriage services to menace, harass or offend. Further, she was in breach of a s 12 bond imposed at Fairfield Local Court on 31 May 2017 in respect of making a false representation resulting in a police investigation. The same day she was given a further s 9 bond in respect of a charge of possess prohibited drug.
All the breach matters, save for the Commonwealth matters, were called up before his Honour. In sentencing Ms Al-Hazzouri, his Honour also noted the presence of a knife was a feature which aggravated the seriousness of the offence such that it called for the imposition of a significant sentence as a matter of both general and specific deterrence. Overall, O'Brien DCJ viewed Ms Al-Hazzouri's prospects of rehabilitation as reasonable, particularly if she maintained psychological intervention recently commenced. However, he was unable to conclude that she was unlikely to reoffend.
Ms Tevelein was sentenced by O'Brien DCJ on 15 May 2020 at Wollongong District Court, having pleaded guilty to two offences. Ms Tevelein was sentenced to an aggregate term of two years and three months imprisonments, after taking into account time already served. The indicative term of the offence under s 112(2) was two years, after taking into account a 20% discount for an early plea.
The offence of which Ms Tevelein pleaded guilty was that she broke and entered and committed a serious indictable offence therein, namely, larceny, in circumstances of aggravation, being that she was in company. The circumstances in which the door came to be open were the same as those described in the facts of Ms Al-Hazzouri's sentence. The confrontation occurred immediately. The agreed facts did not record Ms Tevelein's involvement in striking the Victim. It did note that the Victim felt herself being kicked and punched while on the ground. During the altercation, one of the Offenders then picked up a silver metal lamp and hit the Victim with it. After hitting the Victim with the lamp, one of the Offenders took the Victim's phone and wallet and they all ran from the premises to their car parked at the front of the house and drove away.
In Ms Tevelein's case the objective seriousness was assessed as falling below that of Ms Al-Hazzouri towards the bottom of the range, but not at the bottom of the range. O'Brien DCJ assessed the prospects of rehabilitation as sitting somewhere between hopeful and reasonable.
At the time of the offending O'Brien DCJ noted that Ms Tevelein was on three section 9 bonds.
The parity principles mean that the Court must, in the position of sentencing, avoid an unjustness and disparity between the sentences of people who are involved in a joint criminal enterprise. It is the avoidance of disparity that is not justifiable that the Court will seek to achieve. [17] An application of the principles does not necessarily equate to the imposition of numerically equivalent sentences, and I bear that in mind in sentencing the current offender.
The serious indictable offence incorporated in the s 112(2) offences that both co-offenders were sentenced was larceny, whereas in the instant case it is that of assault occasioning actual bodily harm. The latter is a more serious offence carrying a maximum penalty of 7 years imprisonment as opposed to 5 years. Nevertheless, the assault occasioning actual bodily harm was an aggravating feature found in sentencing Ms Al-Hazzouri and Ms Tevelein. Beyond that, the Crown did not make any submission in respect of the larceny being an aggravating feature of the offence involving the Offender.
I have earlier discussed the Offender's role compared to that of the other co-offenders on the facts before me.
This Offender was not on conditional liberty and her antecedents are minimal.
The Offender's prospects of rehabilitation and likelihood of reoffending are more favourable than the two co-offenders.
These factors satisfy me that the parity principles do not require the imposition of a similar sentence leaving aside the fact that the co-offenders were recipients of plea discounts.

Sentence

Having regard to the purposes of sentencing, I accept that the largely impulsive nature of what occurred led on by the principal offender lessens the need for general deterrence. I do not consider that any emphasis needs to be placed on specific deterrence. I accept that the sentence needs to provide for punishment, accountability, denunciation of the Offender's conduct and recognition of harm to the victim in the context of a proportionate sentence. The sentence also needs to provide for the Offender's rehabilitation. By reason of my finding as to the Offender's future prospects, I do not consider that there is any particular need to protect the community from the Offender.
In sentencing the Offender, I bear in mind the statutory guideposts provided by the maximum penalty of 20 years imprisonment and the standard non parole period of 5 years imprisonment for an offence whose objective factors affecting the relative seriousness is in the middle range of seriousness.
Both parties by their submissions acknowledged that no penalty other than imprisonment met the purposes of sentencing for the purposes of s 3A of the 1999 Act. However, as I have found that the objective features affecting the relative seriousness of the offence fall towards the bottom of the range, I have departed from the standard non-parole period.
In sentencing the Offender, I take into account the time that she has been subject to stringent bail conditions to which I have earlier referred. [18]
In all of the circumstances, I would propose a sentence of 24 months imprisonment.
Bearing in mind the length of the sentence I am required to consider how it is to be served.
Having regard to the purposes of sentencing and the paramount consideration of community safety under s 69 of the 1999 Act, I am of the view serving the sentence of imprisonment in the community by way of intensive correction is more likely to address the offender's risk of reoffending than full time imprisonment.
As the Offender has served 1 months and 6 days in custody, and the sentence is to commence from today, I propose that presentence custody be accounted by reducing the length of the order to one of 1 year 10 months and 24 days from 3 July 2020 to 27 May 2022. [19]
For these reasons. 1. The Offender is convicted. 2. The Offender is sentenced to a term of 1 year 10 months and 24 days imprisonment. 3. Pursuant to s 7(1) of the 1999 Act, the sentence is to be served by way of Intensive Correction in the community subject to the following conditions: 1. The Offender must not commit any offence. 2. The Offender is to be placed under the supervision and guidance an officer from Community Corrective Services (Liverpool) for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the Offender is to obey all reasonable directions of that Service whilst under supervision and guidance. 3. The Offender is to report to Community Corrections Liverpool as soon as practicable but no later than seven days from today. 4. The Offender is subject to an unlimited non-association condition such that she is prohibited from being in the company of or communicating in any way with Zena Al-Hazzouri or Janene Tevelein. 5. The Offender is not to approach or have any communication with the Victim, Oumaya Eid.

Endnotes

Hereinafter referred to as "the 1900 Act".
T 163.34-.41.
T 160.05-.06.
T 162.27-.41.
T 163.04.05.
T 188.30-.32.
Trial Exhibit A.
T 19.31-.37.
T 163.17-.18.
T 163.20-.24.
T 163.26-.32.
T 200.46-.50.
[2007] NSWCCA 304; (2007) 177 A Crim R 498 at [26].
Hereinafter referred to as "the 1999 Act".
Sentence Exhibit 2.
Sentence Exhibit 1.
[2009] NSWCCA 185.
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [19].
R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167 at [18].

Amendments 02 November 2020 - Typographical error amended 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: 02 November 2020

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