Diab v The King (No 2)

[2023] VSCA 112

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0132

FADI DIAB	Appellant
v
THE KING	Respondent

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JUDGES:	BEACH, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2023
DATE OF JUDGMENT:	12 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 112
JUDGMENT APPEALED FROM:	[2022] VCC 788 (Judge Chambers)

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CRIMINAL LAW – Resentencing of successful appellant – Conviction by jury on two charges of discharging a firearm being reckless as to the safety of a police officer contrary to s 31C of the Crimes Act 1958 set aside pursuant to s 276(1)(a) of the Criminal Procedure Act 2009 – Appellant convicted and sentenced on alternative charge of discharging a firearm at a vehicle to which he pleaded guilty.

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Counsel
Appellant:		Mr D Dann KC
Respondent:		Ms E Ruddle KC with Ms B Goding
Solicitors
Appellant:	Marcevski Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
NIALL JA
KAYE JA:

1. The appellant was convicted, by the jury empanelled on his trial, of two charges of discharging a firearm, being reckless as to the safety of a police officer (contrary to s 31C(1) of the Crimes Act 1958). His application for leave to appeal, and his appeal, against conviction on those charges, were upheld by this Court, pursuant to s 276(1)(a) of the Criminal Procedure Act 2009.[1] As a result, the convictions, and the sentences imposed, on those charges has been set aside, and, in lieu, he has been convicted of an alternative charge of discharging a firearm at a vehicle, to which he pleaded guilty.

   [1]Diab v The King [2023] VSCA 107 (Beach and Kaye JJA; Niall JA contra).

2. Before the jury was empanelled, the appellant pleaded guilty to two charges, contained in a second indictment, namely, one charge of possession of a general category handgun without a licence (contrary to s 7(1) of the Firearms Act), and one charge of handling stolen goods, namely, a .38 Smith & Wesson revolver (contrary to s 88 of the Crimes Act). He also pleaded guilty to a summary charge of failing to store cartridge ammunition (contrary to s 121(1A) of the Firearms Act).

3. After a plea, that was presented on his behalf, the appellant was sentenced by the trial judge to a total effective sentence of 7 years, 5 months and 18 days’ imprisonment, with a minimum non-parole period of 5 years.

4. As a consequence of the appellant’s acquittal by this Court of the two charges of discharging a firearm, being reckless as to the safety of a police officer, it is necessary to re-sentence him by imposing a sentence, on the alternative charge, of discharging a firearm at a vehicle, to which he pleaded guilty, and, accordingly, to set a total effective sentence and non-parole period.

5. The sentences imposed on the appellant, by the trial judge, were as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Trial Indictment K12499808.2A
1	Discharging a firearm reckless to safety of a police officer	15 years	5 years and 6 months’ imprisonment	Base
2	Discharging a firearm reckless to safety of a police officer	15 years	5 years and 6 months’ imprisonment	11 months and 18 days
Related Summary Offence
11	Fail to store cartridge ammunition for Category A or B longarm in manner provided	12 months’ imprisonment or 60 penalty units	3 months’ imprisonment
Total Effective Sentence Indictment K12499808.2A			6 years 5 months and 18 days’ imprisonment
Plea Indictment K124998082B
1	Possession of a general category handgun without a licence	4 years’ imprisonment or 240 penalty units	1 year imprisonment	2 months
2	Handling stolen goods	15 years’ imprisonment	3 years’ imprisonment	10 months
Total Effective Sentence Indictment K12499808.2B:			4 years’ imprisonment, of which 1 year is cumulative on the sentence imposed on Indictment K12499808.2A
Global Total Effective Sentence:		7 years 5 months and 18 days’ imprisonment
Non-Parole Period:		5 years
Section 6AAA Statement:		Indictment K12499808.2A N/A Indictment K12499808.2B 7 years 10 months’ imprisonment with a non-parole period of 5 years and 3 months
Other Relevant Orders:		Indictment K12499808.2A Forfeiture and disposal Orders (Charges 1, 2) Indictment K12499808.2B Forfeiture Order (Charge 1)

Circumstances of offending

1. The circumstances of the offending are set out in some detail in our earlier reasons. In short, at about 4:50 am on 12 September 2019, the appellant was present, with another person, beside a black Volkswagen Jetta sedan that was on a gravel service road on the southern side of Providence Road, Greenvale, near the intersection of that road with Section Road. At that time, Acting Senior Sergeant Stacey and Senior Constable Gee, who were driving along Providence Road, noticed the vehicle, and pulled onto the side of the road to speak to the two persons, who they noticed outside the Volkswagen. At the time, the appellant was armed with a .38 Smith & Wesson revolver. As the two police members alighted from their vehicle, the appellant discharged his firearm, with the consequence that a bullet made contact with the driver’s side door of the police vehicle. The two police members gave evidence that they heard more than one shot being fired. However, based on the evidence, the sentencing judge was not satisfied, beyond reasonable doubt, that the appellant, at that time, discharged more than one shot from his firearm.

2. At the trial, the critical issue was whether the prosecution had proven, beyond reasonable doubt, that, before the appellant discharged his firearm, he knew, or believed that it was probable, that Stacey and Gee were police officers. On the application for leave to appeal against conviction, it was concluded that it was not reasonably open to the jury to be satisfied, beyond reasonable doubt, as to that matter. It was on that basis, that the Court directed that the appellant’s convictions on the two charges, under s 31C of the Crimes Act, should be quashed.

3. After the appellant discharged his firearm, Sergeant Stacey fired his weapon in response, striking the applicant in the neck and shoulder. He was conveyed, by ambulance, to the Royal Melbourne Hospital, where he underwent surgery for the penetrative injury to his neck, and the bullet fragments were removed. After his discharge from hospital on 24 September, he was transported to the Melbourne West Police Station, where he underwent an interview with police. In the course of the interview, he said that he had received the firearm as a gift from his grandmother. That explanation was untrue. In fact, the firearm had been stolen. As mentioned, the firearm was the subject of the charge of handling stolen goods, contrary to s 88 of the Crimes Act, to which the applicant pleaded guilty. The summary charge, of failing to store cartridge ammunition, concerned a quantity of ammunition that was located in a safe, in a bedroom of the appellant’s home in Tullamarine, at which police executed a search warrant in the afternoon of 12 September 2019. Specifically, the ammunition included 22 loose shotgun cartridges, five .223 brass cartridge cases, two rounds of ammunition of unknown calibre, one plastic magazine containing three rounds of ammunition, and a metal box containing 900 rounds of ammunition.

The appellant’s previous convictions

1. The appellant had limited previous convictions. In May 2009, he was placed, by the Heidelberg Magistrates’ Court, on an adjourned undertaking, without conviction, for possessing a prohibited weapon without exemption, namely, a knuckleduster. In December 2009,  he was placed, without conviction, on a community based order for 12 months on charges that included burglary, theft, and making a false report to police. He successfully completed service of the community based order. In 2011, he was convicted and fined an aggregate sum of $6,000 on charges of importing tier 2 goods, namely, a knuckleduster and a laser device. The appellant had no relevant previous convictions between 2011 and the date of the offending in this case, September 2019. Relevantly, he had no previous history for violent offending, and he had not previously served any term of imprisonment.

The appellant’s personal background and mitigating circumstances

1. The appellant’s personal circumstances were set out in some detail in the trial judge’s sentencing reasons. For the purposes of re-sentencing the appellant, it is only necessary to summarise those circumstances in brief form.

2. The appellant was born in Melbourne in November 1990. He is the eldest of three siblings, with a younger brother and sister. The appellant had a difficult childhood, and was subjected to repeated physical violence and abuse by his mother throughout his childhood, into his late adolescence. He became fearful of his mother, and, on a number of occasions, he left home, experiencing periods of homelessness and living on the streets. As a consequence, the appellant had difficulty in his education, which was interrupted by multiple periods of suspensions and expulsions. It would appear that, during that time, he also became involved in the use and sale of illicit drugs.

3. When the appellant was 18 years of age, he left Australia and lived in Lebanon for a period of two years. There, he met his wife, who he married in 2010. The couple returned to Australia. Together, they have raised four children, the youngest of whom, at the time of sentencing, was three years of age. The appellant had largely been able to secure regular employment. In fact, he commenced employment, in his uncle’s pizza shop, at the age of 14 years. Subsequently, he worked for a period in his father’s pizza shop in Hampton, and then he was the manager of a pizza shop in Tullamarine, between 2012 and 2019. In that year, the appellant, with a business partner, secured a loan to lease and renovate premises in Essendon, with the intention of opening their own pizza restaurant. However, that proposal was terminated, upon the appellant’s arrest and remand in custody on the present matter.

4. As we have mentioned, as a result of the injuries that the appellant sustained at the time of the incident, he was admitted to the Royal Melbourne Hospital, where he underwent surgery for the penetrative injury to his neck. The bullet fragments were removed. He underwent a laryngoscope, and a salivary bypass tube was inserted. He was in the intensive care unit for eight days, and in hospital for a total of twelve days. The discharge summary, provided by the hospital, confirmed that the appellant had suffered a penetrative neck injury, extensive subacute emphysema of the neck and chest, a right vertebral artery dissection, a vertebral body impact fracture, laceration of the posterior pharyngeal wall, and a right shoulder entry/track wound. As a consequence of those injuries, he was required to wear a hard collar for the vertebral impact fracture for a period of six weeks. He was subject to ongoing reviews by the orthopaedic and vascular clinics.

5. For the purposes of the plea, the appellant was assessed by Mr Ian Mackinnon, a consultant psychologist, in April 2020. Mr Mackinnon assessed the appellant to suffer a post-traumatic stress disorder (‘PTSD’) as a consequence of having been shot on 12 September 2019. The appellant’s symptoms included flashbacks, nightmares, hyper-vigilant behaviours and anxiety.

6. The appellant was also assessed by Mr Mathew Staios on 1 April 2022, and subsequently, on 24 May 2022. In his first report, Mr Staios expressed the opinion that the appellant’s traumatic childhood, punctuated by abuse by his mother, had impacted on his mental health, resulting in the formation of trauma-based psychopathology, a limited capacity for emotional regulation and practical problem-solving, and substance use as a means of coping and escapism. The appellant had described to Mr Staios, and to Mr Mackinnon, regular cannabis use that had commenced three years before the offending, which he engaged in, in order to cope with his feelings of stress.

7. In the second report, Mr Staios noted that the appellant, while on remand, had recently re-engaged with medical and mental health services, and he was then under the care of a mental health nurse. The appellant had attended counselling on four days between 17 April and 3 May, in order to assist to manage his PTSD symptoms.

8. A number of character references were tendered to the judge on the plea. Those references were prepared by persons who had known the appellant in both employment and personal capacities, and they attested to the appellant being a person who was dedicated to his work and to his family. Each reference also noted that the appellant had expressed regret for his actions.

9. In mitigation, the judge took into account the following factors:

   •The appellant had pleaded guilty to the charges on the second indictment, and the issue at the trial was a confined one, as the appellant did not dispute that he had discharged his firearm. The appellant had indicated an intention to plead guilty to the alternative charge (on which he is now convicted), which was an indication of his remorse.

   •The appellant was seriously injured as a consequence of the incident. That injury constituted extra-curial punishment, which was a matter which should be taken into account in mitigation of the appellant’s sentence.

   •There had been a considerable delay in the finalisation of the matter, through no fault of the appellant.

   •The appellant had utilised his time in custody, to undertake a number of courses and programs, including obtaining numerous vocational training certificates, and engaging in drug and alcohol programs.

   •In view of the appellant’s very good employment history, his family support and his character references, and the fact that he had not engaged in any offending for eight years until September 2019, the appellant was assessed to have ‘reasonably good prospects of rehabilitation in the future’.[2]

   •The appellant’s time in custody had been more onerous due to both the restrictive circumstances of imprisonment as a result of the current COVID-19 pandemic, and also because the appellant was acutely conscious that his period of custody was a very difficult time, emotionally and financially, for his wife and young family.

   •The judge accepted that, as a result of the appellant’s diagnosis of PTSD, his time in custody would be more onerous than otherwise. That fact was qualified by the opinion expressed by Mr Staios that, because the appellant had re-engaged in therapy and was open to testing other medications to assist with his condition, his time in custody was likely to be less onerous than otherwise.

   •The judge also took into account the twelve days on which the applicant was in hospital, before his arrest, which did not qualify as pre-sentence detention. As a consequence, the judge specifically deducted that period from the head sentence, pursuant to the principles referred to in R v Renzella.[3]

   [2]Ibid [62].

   [3][1997] 2 VR 88, 98; see also Akoka v The Queen [2017] VSCA 214.

Conclusions

1. In conclusion, the offending by the applicant, in discharging his firearm at a vehicle, was, of its nature, a serious criminal offence, the maximum sentence for which is 15 years’ imprisonment. In the present case, the offending was attended by a number of matters, which aggravated its seriousness. The appellant, in the dark of night, discharged his firearm at a vehicle, from which two persons had just alighted.

2. On the other hand, as we have mentioned, the judge found, and took into account, a number of mitigating circumstances, which are relevant to the re-sentencing of the applicant on that offence.

3. Further, before the trial, the applicant indicated his intention to plead guilty to the offence, for which he is now convicted, and before empanelment of the jury, he pleaded guilty to that alternative charge. By its nature, the plea would have been of particular utilitarian value, if it had been accepted by the prosecution. As senior counsel for the appellant correctly submitted, the plea, being made in the context of the COVID-19 pandemic, had important additional utilitarian value[4]. In addition, it constituted an appropriate acceptance, by the appellant, of responsibility for his criminal actions. From an early stage, the appellant had admitted, to police, that he had discharged his weapon, and he expressed genuine remorse for doing so. The appellant’s plea, and his remorse, are entitled to appropriate weight in the sentencing synthesis.

   [4]Worboyes v The Queen [2021] VSCA 169 [35] (Priest, Kaye and T. Forrest JJA).

4. Taking those matters into account, we consider that the appropriate sentence, on the alternative charge 3, to which the appellant pleaded guilty, is a sentence of 3 years and 6 months’ imprisonment.

5. Accordingly, the appellant is re-sentenced as follows:

   (1)On charge 3 on indictment K12499808.2A, the appellant is sentenced to 3 years and 6 months’ imprisonment.

   (2)The sentences imposed, by the trial judge, on indictment K12499808.2B, and on the summary offence of failing to store cartridge ammunition, are confirmed.

   (3)The sentence imposed on charge 3 on indictment K12499808.2A is the head sentence.

   (4)The orders for cumulation, made by the trial judge, in respect of the sentences imposed for the offences on indictment K12499808.2B, and in respect of the summary charge, are confirmed.

   (5)Accordingly, the appellant is sentenced to a total effective sentence of 4 years and 6 months’ imprisonment.

   (6)We fix a period of 3 years before the appellant is eligible for parole.

6. Pursuant to s 18 of the Sentencing Act 1991, we declare that 1326 days  of pre-sentence detention be reckoned as having been served under this sentence.

7. Pursuant to s 6AAA of the Sentencing Act 1991, we indicate that, if the appellant had not pleaded guilty to charge 3 on the first indictment, he would have been sentenced to 4 years and 6 months’ imprisonment on that charge. In those circumstances, the appellant’s total effective sentence would have been 5 years and 6 months’ imprisonment, with a non-parole period of 4 years.

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