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District Court 7 June 2019

R v Elhamoud

[2019] NSWDC 429

Assault & violenceTheft & propertyDomestic & family violence
CRIME SENTENCE

Citation: R v Elhamoud [2019] NSWDC 429
Court: District Court of New South Wales
Date: 7 June 2019
Judge: Bourke SC DCJ

Background

The offender was the estranged husband of the victim. Following the breakdown of their relationship, the victim had obtained an interim apprehended domestic violence order (ADVO) against him in May 2017. The offender was also on bail at the time, facing a charge of common assault against the same complainant.

In the early hours of 10 June 2017, the offender attended the victim's home at approximately 2 am. After finding that his key would not open the front door, he broke the glass panel in the door, reached through, and unlocked it from the inside. The victim was inside with her two young children, including a nine-month-old infant.

Once inside, the offender confronted the victim in the kitchen and assaulted her with a closed fist, his elbow, and his knee. She sustained a bleeding nose and fell to the floor during the attack. Neighbours heard screaming and called triple-0. After neighbours emerged from their homes, the offender fled and drove to Melbourne before flying to Lebanon, where he remained until voluntarily returning to Australia in September 2017.

  • What sentence was appropriate for the principal offence of breaking and entering a dwelling house while aware of occupants and committing assault occasioning actual bodily harm, contrary to s 112(2) of the Crimes Act 1900 (maximum: 20 years imprisonment; standard non-parole period: 5 years)?
  • What weight should be given to the relevant aggravating factors, including that the offence occurred in the victim's home and that the offender was on conditional liberty at the time?
  • Whether the offence constituted planned criminal activity.
  • What sentence was appropriate for the related offence of contravening the ADVO, dealt with on a s 166 certificate under the Crimes (Domestic and Personal Violence) Act?
  • Whether any alternative to full-time custody was appropriate.

Decision

Bourke SC DCJ assessed the objective seriousness of the break and enter offence as falling at approximately the mid-range. Several aggravating factors were established beyond reasonable doubt: the offender was on conditional liberty (bail) at the time of the offence, and the offence was committed in the victim's own home. His Honour confirmed, following the Court of Criminal Appeal's decision in BB v R, that the home of the victim constitutes a distinct aggravating factor and is not merely an element of the offence.

The Crown submitted that the offence involved planned criminal activity. His Honour declined to make that finding on the facts. While the offender clearly had some prior intention to visit the premises and retained a key, His Honour was not persuaded beyond reasonable doubt that the offence was planned in the relevant sense.

His Honour rejected the offender's account that he entered the home believing he had a lawful entitlement to do so or that the victim had attacked him first. The ADVO in place, the victim's security precautions, and the hour of the intrusion were wholly inconsistent with any claimed consent to entry. The jury's verdict confirmed rejection of the offender's version of events.

On the question of alternatives to full-time custody, His Honour concluded that an intensive correction order would be inadequate given the seriousness of the offending. The need for both specific and general deterrence was identified as a significant sentencing consideration, with His Honour citing the Court of Criminal Appeal's remarks in R v Edigarov about the courts' duty to adequately punish domestic violence, describing such conduct as "brutal, cowardly and inexcusable."

Orders Made

  • Aggregate sentence of 2 years and 3 months imprisonment, with a non-parole period of 21 months, commencing 9 January 2019.
  • Earliest parole eligibility date: 8 October 2020.
  • Balance of term expiring 8 April 2021.
  • Backup charge of assault occasioning actual bodily harm dismissed.
  • Offender remanded into custody.

Key Takeaways

  • The District Court confirmed, consistent with BB v R [2017] NSWCCA 189, that committing an offence in the victim's own home is a discrete aggravating factor under the Crimes Act 1900 and is not absorbed into the elements of the offence of break and enter.
  • Being on bail at the time of an offence constitutes a separate and significant aggravating factor, particularly where the bail conditions required good behaviour and compliance with an ADVO protecting the same victim.
  • An offender's genuine remorse, utilitarian value of a guilty plea, and subjective circumstances remain relevant mitigating factors, but the court found that full-time custody was the only appropriate response where a domestic violence home invasion falls at the mid-range of objective seriousness.
  • Sentencing courts are required to give substantial weight to general deterrence in cases involving violence against women in domestic settings, a principle affirmed in R v Edigarov [2001] NSWCCA 436.
  • Where an offender flees the jurisdiction following an offence, that conduct is relevant to the assessment of remorse and consciousness of guilt, even where the offender later returns voluntarily.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter)
- Crimes (Domestic and Personal Violence) Act (NSW), s 14(1) (contravention of ADVO)

Cases:
- BB v R [2017] NSWCCA 189
- R v Edigarov [2001] NSWCCA 436