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District Court 18 July 2008

R v Mohamad Charrouf

[2007] NSWDC 292

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCING INTIMIDATION TOTALITY.

Citation: R v Mohamad Charrouf [2007] NSWDC 292
Court: District Court of New South Wales
Date: 18 July 2008
Judge(s): Nicholson SC DCJ

Background

The offender, Mohamad Charrouf, was tried on two charges arising from events in August 2005. The first charge alleged assault on a woman named Sharon Attard. The second alleged that on 23 August 2005 he entered the Riverwood dwelling of Anwar El Abbas, knowing persons were present, with intent to commit the serious indictable offence of intimidation.

The central facts concerned the offender entering El Abbas's unit and, in a private conversation in a child's bedroom, demanding use of the premises and telling El Abbas he would take the unit regardless of El Abbas's objections. El Abbas's partner and her three-year-old daughter were present at the time. While the offender and El Abbas were talking, two unknown males entered the unit and stole mobile phones before fleeing.

The jury acquitted the offender on the assault count but convicted him on the second count of entering premises with intent to intimidate. Sentencing proceeded on the jury's findings, which rejected the offender's account of the bedroom conversation and accepted El Abbas's version as accurate and honest.

  • What was the appropriate assessment of the objective criminality of the intimidation offence?
  • What weight should be given to the offender's personal and subjective circumstances, including intellectual deficits and drug use history?
  • Whether special circumstances existed justifying a departure from the standard ratio of non-parole period to total sentence.
  • How the totality principle applied, given the offender was already serving a substantial existing sentence.

Decision

The court assessed the objective criminality of the intimidation offence by reference to four criteria: the method used to induce fear; the nature and seriousness of the objective sought; the degree of success in causing fear; and any aggravating features, including the presence of a three-year-old child. The intimidation here involved verbal demands and implied threats rather than weapons or physical violence, but occurred inside a private home and in the presence of a young child, which elevated its seriousness.

On subjective matters, the court noted the offender had significant intellectual deficits, was a poly-drug abuser, and had three brothers with similar problems. The court accepted a psychological assessment indicating limited intellectual capacity. Because of those cognitive limitations, the court found the offender was not a suitable vehicle for general deterrence, but concluded that his capacity to understand imprisonment as something to be avoided meant it still served a personal deterrent function.

Special circumstances were found, principally because of the offender's intellectual deficits and the need for a substantial period of supervision on parole. The court also applied the totality principle: the sentence had to be fashioned so that the combined effect of all sentences did not exceed what was proportionate for the offender's overall criminality. That required linking the new sentence to the tail end of the existing sentence and structuring the non-parole period and balance of term accordingly.

Orders Made

  • Offender convicted of entering a dwelling house knowing persons were present, with intent to intimidate another person with intention of causing fear of physical or mental harm.
  • Sentenced to a non-parole period of 6 months, commencing 12 December 2010 and expiring 11 June 2011.
  • Balance of term of 18 months, expiring 11 December 2012.
  • Special circumstances found.
  • Offender ordered to be released on 11 June 2011.
  • Parole conditions imposed under s 51 of the Crimes (Sentencing Procedure) Act: acceptance of Probation and Parole Service supervision; counselling for alcohol, drugs, and anger management.

Key Takeaways

  • The District Court identified four criteria for measuring the objective criminality of an intimidation offence: the method used to instil fear; the seriousness of the objective pursued; the degree of success in inducing fear; and the presence of aggravating features such as a child victim or vulnerable setting.
  • Where a defendant presents with significant intellectual deficits, a sentencing court may find general deterrence to be of limited weight while still treating personal deterrence as a valid sentencing consideration.
  • Special circumstances can be established where an offender's cognitive limitations and rehabilitation needs require a longer than usual period of supervised parole.
  • Upholding the totality principle required the court to structure the new sentence so that it commenced at the conclusion of an existing substantial sentence, without producing an aggregate term disproportionate to the offender's overall criminality.
  • Parole conditions directed at addressing underlying causes of offending, specifically drug and alcohol use and anger management, were imposed as part of the court's focus on rehabilitation and community protection.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 51 (conditions of parole)

Cases cited: None identified in the provided text.