Director of Public Prosecutions v Al Ghazawi

[2019] VCC 920

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00848

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAJEED AL GHAZAWI

---

JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2019
DATE OF SENTENCE:	20 June 2019
CASE MAY BE CITED AS:	DPP v Al Ghazawi
MEDIUM NEUTRAL CITATION:	[2019] VCC 920

REASONS FOR SENTENCE
---

Subject:  Affray
Catchwords:  
Legislation Cited:  Sentencing Act 1991
Cases Cited:

Sentence:24 month community corrections order with 200 hours of community work

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Accused	Mr J. Lowy

HER HONOUR: 

1Majeed Al Ghazawi, on 21 March of this year you were found guilty by a jury of a single count of affray committed in Mackellar Drive in Roxburgh Park on 25 September 2014.  You were found not guilty of making a threat to kill Safa Al Naseri, aggravated burglary, intentionally causing serious injury to Mahdi Al Naseri and its alternative, recklessly causing serious injury to Mahdi Al Naseri, which offences occurred at the same location and on the same day.

2The charge of affray carries a maximum penalty of five years imprisonment.  This penalty reflects the seriousness with which Parliament regards this offence.

3Your trial in March of this year was largely a replaying of recorded evidence given by witnesses in the same trial held in September/October of 2018 at which time a jury were discharged without being required to consider their verdict.  Both parties asked me to look behind the jury's verdict of guilty to the charge of affray in order to assess the objective gravity of that charge.

4Before turning to those arguments, I accept that, post-verdict, it falls upon me to be satisfied as to the factual basis on which you are to be sentenced. 

5The Crown case at trial is outlined in the trial opening.  In short compass, the Crown case was that you attended at 5 Mackellar Drive, Roxburgh Park in the early hours of 25 September 2014 in company with your two brothers, Najah and Issam Al Ghazawi and some four to six other men.

6That address was the home of Safa Al Naseri where he resided with his parents, Jabbar and Karimeh, his wife Zahra, his sister Huda and her three children, including Safa's nephew, Mahdi Al Naseri.

7Your relationship with the Al Naseri family was in the context of you vouching for the character of Safa Al Naseri in the lead up to his marriage to Zahra Al Kadhemi and her parents' concern about rumours they had heard about Safa.  You were said to have put those rumours to rest and the marriage took place in early 2014.  In your record of interview with police you described yourself as the guarantor of that marriage. 

8Post-marriage, Zahra maintained a close relationship with her mother Batoul.  Upon falling pregnant, Zahra had medical problems and travelled less frequently to visit her family, who were located in Sydney.  Zahra's mother formed the view that her daughter was not visiting because she had been forbidden from doing so by the Al Naseri family.  She contacted you to take action as you had vouched for Safa Al Naseri prior to the marriage taking place.

9In direct response to this communication, you contacted Safa's brother-in-law, Rauf, telling him to ask Safa's father, Jabbar Al Naseri, to let Zahra see her mother.  Safa heard of this call and telephoned you at approximately 11.40 pm on 24 September 2014.  That call was answered by your brother Najah.  During that call your brother became angry, abusive and threatening.  A threat was made to come to Safa's home.  It is likely that you were present for this phone call or advised of its contents shortly thereafter.

10Immediately following Safa's call to your brother Najah, documents tendered at your trial confirmed that  there were calls between your phone and that of your brother Issam, calls between Najah and Issam, and calls between Issam and Ghanim El Bedree.  Each of those persons were at the affray which subsequently unfolded.

11At 11.53 pm on 24 September 20154 you called Haidar Al Janahi.  This call was recorded by Safa's brother, Ali Al Naseri, who was present with Haidar at the time of the call.  During this call I am satisfied that you made threats to harm Safa Al Naseri, told Haidar Al Janahi that you and others were going to Safa Al Naseri's home that night, and asked for Haidar Al Janahi to provide you with Safa's address.  This call was a significant piece of evidence in the Crown case which informs your intention in relation to your attendance at Mackellar Drive, Roxburgh Park, shortly thereafter.

12Haidar Al Janahi contacted Safa Al Naseri and warned him that you were intending to gather people to go to his home and attack.  As a result, Safa and Mahdi Al Naseri kept watch of the street from their house and the police were contacted.  The offence the subject of your trial occurred approximately 30 to 40 minutes after your phone call to Haidar Al Janahi.

13The Crown case at trial was that you and the men with you, which included two of your brothers and Ghanim El Bedree, attended at 5 Mackellar Drive, Roxburgh Park, the home of the Al Naseri family.  According to the Crown case at trial, you then approached the front of 5 Mackellar Drive en masse and threatened to kill Safa Al Naseri, comprising the threat to kill charge of which you were acquitted.  At trial it was said that you then entered the premises with an intention to assault and in possession of weapons, comprising the aggravated burglary charge of which you were acquitted. 

14It was then contended that you were pushed from the premises by Safa Al Naseri and Mahdi Al Naseri and a fight then commenced.  Witnesses Haidar Al Janahi and Ali Al Naseri arrived at the same address partway through this altercation and became involved in the fight which had ensued.  During this fight, Mahdi Al Naseri suffered a serious head injury and at trial you were said to be the perpetrator of that injury by using an iron bar.  As previously outlined, you were acquitted of the charge of intentionally causing serious injury to Mahdi Al Naseri and its alternative of recklessly causing serious injury.

15In a carefully prepared document entitled 'Amended/Updated Plea Summary' dated 1 May 2019, the Crown set out what they contend is the factual basis for sentence on the charge of affray.  I have had recourse to this document.  Whilst not doing such a comprehensive document any justice, in short compass the Crown position is as follows.

a)That you did attend the front of the premises at 5 Mackellar Drive, Roxburgh Park, at which time you were seen to approach the front of the premises;

b)You were seen to approach by Safa and Mahdi Al Naseri, who then armed themselves. 

c)A fight ensued between Safa and Mahdi Al Naseri on one side and you and the men that had accompanied you on the other. 

d)For sentencing purposes the Crown contend that you were wielding a pole and fought with both Safa and Mahdi  and that Mahdi  was struck in the head by you, using the pole, causing him to bleed.

16During the altercation the Crown submit that you made threats of violence, were present when the men with you took items from the tray of a concreter's truck nearby, and then used them as weapons and threw them at the Al Naseri side.  You then fled after being injured.  

17I have also had recourse to a “Defence Outline of Plea Submissions on behalf of Majeed Al Ghazawi” dated 26 April 2019.  Whilst not doing that document justice either, your counsel submits that the jury were told by the prosecutor in his closing address that if they were satisfied beyond reasonable doubt you were on the property then they should readily accept you were guilty of the offences which were said to have occurred on the property, that being the charges of threat to kill, aggravated burglary, causing serious injury to Mahdi Al Naseri and affray.

18Your counsel contends that given you were found not guilty of each of those three charges and the one alternative charge, that I should not be satisfied that by convicting you of the affray charge, it encompassed the jury being satisfied that you entered the property at 5 Mackellar Drive, Roxburgh Park, as opposed to being present in the street whilst the affray unfolded.  Each party effectively contends that I should be compelled to choose between two hypotheses of fact open on the finding of guilt on the charge of affray.

19I accept that any matters unfavourable to your interests need to be proven beyond reasonable doubt and those favourable to you need to be proved on the on the balance of probabilities.  I am sentencing you for the charge of affray.  You should be given the full benefit of your acquittals.  A judge may not rely on facts relating to any more serious offence for which an offender has been acquitted.

20In terms of reaching their verdict of guilty on the charge of affray the jury was instructed as to the three elements the prosecution must prove beyond reasonable doubt.  In consideration of these elements the jury did ask the question about self-defence.  It was responded to by me in the following terms.

'What I say to you in relation to that is self-defence wasn't part of the trial in the sense that the Crown say no self-defence, because the affray started from the door and then continued, stairs, driveway, street.  If you are looking at the accused's record of interview, the defence don't say that Mr Al Ghazawi was acting in self-defence.  They say that he was attacked the moment he arrived at Mackellar Court, he waved a car jack to escape.  That would make him, if you accept his version, would make him not guilty of affray because that is not how the Crown case is put'.

21At trial your position was effectively that you were not present for any of the offending, contending that you had arrived at the scene with one brother only, had been set upon by members of the Al Naseri family, and then fled.  This account was clearly rejected given the instructions given to the jury on this issue and their finding.

22I also reject your record of interview in terms of the reasons for your attendance at 5 Mackellar Drive and as to the acts which you then attribute to yourself.

23I am not satisfied to the requisite standard that at any stage you entered the actual residence of 5 Mackellar Drive, Roxburgh Park, nor am I satisfied that you were directly responsible for the injury caused to Mahdi Al Naseri given the element of serious injury was conceded, the way each party put their case, and the other directions that the jury were given in relation to this charge.  In my view the jury clearly did not accept the evidence of the witnesses that you were directly responsible for that serious injury. 

24Nor am I satisfied that you never entered the precincts or boundary of 5 Mackellar Drive, Roxburgh Park.  For the purposes of sentence I am not sure how much that matters. 

25In terms of resolving the factual findings that each party has proffered, I am of the view that the jury followed the directions they were given.  I am satisfied that you were the instigator, either alone or with your brother Najah, of organising a group to attend No.5 Mackellar Drive, Roxburgh Park; that a group of at least six to eight men attended as a direct result of this organisation and did so with violent intent.  The affray then commenced with the use of weapons and threats of violence.  I am satisfied that the affray started from the front of the premises and continued into the street and that you were actively involved.

26In terms of the overall circumstances, in my view it matters little whether you set foot on to the boundary of 5 Mackellar Drive or not.  You were the organiser and instigator of what unfolded in that locale and you bear responsibility for it.  I am satisfied that this was because of your injured pride or loss of face and your belief that you had been disrespected in the context of the role you perceive you played in the dynamic between the Al Naseri family and the parents of Zahra Al Kadhemi.  I am satisfied to the requisite standard that your group attended with at least some weapons.  I am also satisfied that weapons were located in the vicinity and used by the group with whom you attended as both weapons and missiles.

27I am also satisfied that, at various stages, threats were made by you and those with you to the Al Naseri family.  I am not in a position otherwise to make any direct finding as to what exact acts you performed but, on my view, on the unfolding of the affray you bear responsibility for injuries which were then incurred and which were suffered by members of both the Al Naseri family as well as your own. 

28It is most unfortunate, a word that barely covers the events which transpired, that Mahdi Al Naseri required immediate attention from paramedics and had a seizure.  He was taken to hospital and underwent surgery for head injuries and, as late as 2018, required further surgery.

29Jabbar Al Naseri also required immediate attention from paramedics as he suffered a heart attack.  It is not suggested that you were responsible for this heart attack nor will you be punished for such.  He otherwise suffered skin tears, bruising, and lacerations. 

30Zahra Al Kadhemi was five months pregnant at the time and was treated for abdominal pain and hysteria. 

31Ali Al Naseri had lacerations to his left elbow and bottom lip and Safa Al Naseri also had minor cuts and bruising. 

32Your brother Issam had lacerations and bruising to an eyebrow, cheek, and the back of his head.  There was a small fracture of bone underlying a laceration at his left elbow.  He was assessed for brain injury.  Najah incurred a head injury and deep laceration to the top of his head which required stapling.  He had bruising and lacerations to his leg and buttocks.

33You suffered superficial lacerations to the skull and face, superficial bruising to your right thigh, spinal tenderness and pain to your body.  I accept that when you attended Mackellar Drive you may not have envisaged that things would get so out of hand, but that finding is of little consequence in assessing the objective gravity of your offence.

34Relevant circumstances in assessing this offence include the level of planning, the location of the affray, whether weapons were used, and the impact on victims.  Whilst the planning appears to be in relatively short compass to your argument with Safa Al Naseri, this was not a spontaneous event and planning was still involved in organising an armed horde to attend the Al Naseri address.  The affray occurred in a street where numerous non-participants' and neighbours, innocents were affected by what they saw and heard; weapons were clearly used.

35The events which unfolded would have been both terrifying and shocking to all who had the misfortune to either witness it and/or be impacted by it.  The precipitator to this event, your pride and injury to it, was relatively minor compared with the series of events for which you are directly and criminally responsible. 

36I note that I have no victim impact statements; however, before me was the report of numerous injuries as I have already described, as well as evidence of various witnesses as to the shock they experienced.  You bear responsibility for the terror which was undoubtedly caused to innocent bystanders.  You are responsible for considerable trauma.  I have not yet ascertained any remorse. 

37This is a serious example of affray and your moral culpability is high. 

38Relevant to this sentencing process is the principle of parity.  The parity principle demands that any sentence imposed reflects differences in the culpability and personal circumstances of co-offenders and avoids unjustifiable differences in co-offenders sentences. 

39On 19 May 2017 your brother, Issam Al Ghazawi, pleaded guilty to the charge of affray and unlawful assault to Jabbar Al Naseri, at conclusion of committal proceedings held at Melbourne Magistrates' Court examining the exact same circumstances.  He was convicted and placed on a community corrections order for a period of 24 months, during which he was required to undergo 250 hours of unpaid community work.

40On 20 June 2017 your brother, Najah Al Ghazawi, pleaded guilty to the same charges as part of the same committal proceedings.  He was also convicted and placed on a community corrections order for a period of 24 months during which he was also required to complete 250 hours of community work.  I am unaware as to the exact factual basis of each of these pleas of guilty but they did relate to the events which unfolded in Mackellar Drive on 25 September 2014.  I am also unaware of any prior criminal history alleged against either of your brothers. 

41Whilst you do have an admitted prior criminal history it is limited and of little or no relevance to the charge of affray.  Whilst your brothers' pleas of guilty obviously occurred at a much earlier stage, you faced more serious charges of which you have now been acquitted.  The parity principle has direct application in the circumstances. 

42I am told that you offered to plead guilty to the charge of affray prior to each of your trials commencing.  The parties differ somewhat as to the circumstances of each of those plea offers, which were both rejected.

43No evidence has been called as to the circumstances of your plea offers and I do not propose to make findings as to those circumstances.  I am satisfied that you did offer to plead guilty to the charge of which you have now been found guilty by jury and that you did so prior to each trial.  This fact in my view is a significant matter to consider in your favour in any sentence to be imposed.  Given the jury's verdict, you cannot be criticised in any way for running your trials.

44I accept that the delay between the committal proceedings and these matters finally being resolved by trial has been arduous and not without its impact on you, particularly where you offered to plead guilty to the very charge of which you have now been convicted by jury.  This delay is also relevant in terms of assessing your prospects for rehabilitation.  Given the particularity of circumstances which contribute to this offence occurring, hopefully the lessons learned from it, the serious ramifications for you as a direct result, and the fact that there has been no reoffending since, I am satisfied that your prospects for rehabilitation are good and that you present little risk of reoffending in a similar fashion.

45I am obliged to also take into account your personal circumstances.  In terms of your personal circumstances, you are now 55 years of age having been born in 1964 in Naseri, Iraq.  Your family was wealthy and owned, trucks, buses and a farm.  You were one of 21 children, of which three are now living in Australia, including yourself and your two brothers, Issam and Najah.

46You completed the equivalent of Year 9 education before being gaoled at 15 years of age for openly practising your religion under the regime of Saddam Hussein.  I am told that you were imprisoned five times whilst residing in Iraq.  At various times you were subjected to torture and conscripted to fight.  In approximately 1991 you fled to Saudi Arabia were you spent seven years living in a refugee camp before being resettled in Australia as a refugee in late 1998, and you met your wife that same year.  You initially resided in the Shepparton area before moving to Melbourne. 

47In 2009 you ceased work as a result of a heart attack.  Prior to that time you worked in various labouring jobs and would regularly send money back to Iraq to support family members still living there.  You have had ongoing difficulties with your health and a letter from Dr Adil Al-Hobaish confirms that you experience anxiety and depression, gastroesophageal reflux disease, hypocholesterolemia, and systematic lupus.  This letter indicates you have been under stress due to the court proceedings, which has resulted in chest pain and hospital admission.  You are currently under the care of a cardiologist, psychiatrist and psychologist.  It would appear that all of your conditions are currently being managed.

48You are the father of six children, three sons and three daughters, aged between two and 17 years.  You reside with your brother Najah and his family.  He also has six children.  You plan to return to the Middle East within the next few years.  You are active in a local Iraqi community, you assist new refugee arrivals in transitioning into an Australian way of life, and assist them find work, study, and their local mosque.

49Tendered on your behalf was a reference from Hassan Al-Khirsany.  He is the president of the Australian Shia Gathering Place and confirms the contributions that you have made.  I received a similar reference from Azher Rashim, president of the Iraqi Australian Solidarity Association.  I take the contents of these references into account.  They present a far more positive reflection of you than your offending of September 2014.

50I am asked to make two ancillary orders and I will do so.  The first is for the disposal of some 111 scheduled items.  With your consent, as I understand it, I also agree to a forensic sample being taken from you.  I am satisfied that the seriousness of the circumstances of the offending warrant the order being made.  It is not opposed, and in my view the granting of the application is in the public interest.  That does require a sample being taken from the inside of your mouth using what I will describe as a large cotton bud.  That can be done at the local police station.

51I am obliged to warn you that if you do not participate in that process it can be taken by way of blood sample and reasonable force can be used for the taking of that sample.

52In terms of the sentencing processes, the basic purpose for which a court may impose a sentence are punishment, general deterrence, - which sends a message into the community, specific deterrence - designed to send a message to the individual offender, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.

53I am also required to the interests of the community in denouncing criminal conduct, with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society. 

54I take into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case, as well as current sentencing practices for the charge of affray.

55Your counsel contends that the relevant sentencing considerations can be adequately reflected in the imposition of a substantial fine or a community corrections order.  The Crown position is that these considerations can be reflected in the imposition of a gaol term and/or the imposition of a community corrections order. 

56Given the role I find that you played as instigator and organiser of the affray at Mackellar Drive, Roxburgh Park, I would have had little difficulty imposing an immediate term of imprisonment but for the matters raised on your behalf which are relevant to the sentencing process, particularly the issue of parity with your co-offenders and primarily the fact that you offered to plead guilty prior to each of your two trials for the very charge of which you have now been found guilty by jury.  Also relevant is the fact that there has been no further offending in the five years since.

57I do now turn to sentence and traditionally this is the time to stand. 

58Mr Al Ghazawi, you are convicted and placed on a community corrections order for a period of 24 months.  The length of this order is to reflect the gravity of your wrongdoing and the denunciation required.  It has also been tempered by the matters that I have indicated I have taken into account.  You do have medical issues and the community work required of you will be adjusted accordingly.  You will be required to perform 200 hours of community work during that two-year period.

59I cannot place you on such an order unless you are prepared to sign a document to that effect.  If you wish to speak to Mr Lowy about that I will give you the opportunity to do so.

60OFFENDER:  Yes.

61HER HONOUR:  Do you want me to stand down temporarily?

62MR LOWY:  It should only be 30 seconds, I would think, Your Honour.

63HER HONOUR:  All right. 

64MR LOWY:  I can try to do it now.

65HER HONOUR:  But if anything changes let me know.  You can approach if you wish.

66MR LOWY:  Thank you.  Thank you for that time, Your Honour.  Mr Al Ghazawi is willing to consent to the community corrections order.

67HER HONOUR:  All right.  Mr Al Ghazawi should be under no illusion that this outcome presents you with the opportunity to continue to focus your life in a positive fashion.  These orders can be breached if you do not comply with it in terms of the condition to complete community work, or if you reoffend during the 24-month period.  Should you do so then you will be required to appear before me for a contravention hearing.  This may require me to resentence you for the charge, as well as the charge of contravening the community corrections order.

68Did you have any questions?

69OFFENDER:  (Through Interpreter) No further questions, Your Honour.

70HER HONOUR:  Are you prepared to sign the community corrections order?

71OFFENDER:  Yes, Your Honour.

72HER HONOUR:  Thank you.  I will have my associate approach.
Mr Lowy, you can too, if you wish to do so.

73MR LOWY:  Thank you, Your Honour.

74HER HONOUR:  Anything further from either of you?  You can be seated, thank you.

75MR LOWY:  Not from me, Your Honour.

76HER HONOUR:  Mr Albert?

77MR ALBERT:  Yes, Your Honour.  Would Your Honour consider in your revised ruling or stating it now, Mr Lowy's submissions referred to submissions that I made to the jury in the closing saying that 'If you're not satisfied of him attending in the precincts of the property then you should acquit of the three charges, being intentionally cause injury, aggravated burglary, and threat to kill'.  The submission was all four charges and I'd ask if Your Honour would just note that in the revised ruling or now.

78HER HONOUR:  All right.  Thank you very much.  Just pardon me a moment.  Anything you wanted to add to that, Mr Lowy?

79MR LOWY:  No, Your Honour.

80HER HONOUR:  I just want to make sure I understand your direct reference, Mr Albert.

81MR ALBERT:  Yes.  In your ruling Your Honour referred to my learned friend's plea submissions where in his plea submissions I think he referred to my closing address when I said to the jury, 'If you're not satisfied of the accused being in the precincts of the property then you should acquit'.

82HER HONOUR:  That he is not guilty of all offences effectively.

83MR ALBERT:  I said it was all the offences.

84HER HONOUR:  Yes.

85MR ALBERT:  But my learned friend did not misquote me, I don't think, but the way it came out in Your Honour's judgment it sounds like - - -

86HER HONOUR:  I understand.  Thank you very much, Mr Albert, I appreciate that.  I will amend that when it gets to the stage of revising.

87INTERPRETER:  Sorry, Your Honour, Mr Al Ghazawi wants to speak to his representative.

88HER HONOUR:  Yes, he can do that, Mr Lowy.  If I need to stand down let me know.

89MR LOWY:  Yes, Your Honour.  Thank you, Your Honour.

90HER HONOUR:  Anything arising?

91MR LOWY:  No, Your Honour.

92HER HONOUR:  I thank each of you for the long journey we have all taken together.  I am very appreciative of Mr Thomas' assistance throughout.

93INTERPRETER:  Thank you, Your Honour, pleasure.

94HER HONOUR:  I will close the court now till 9 o'clock tomorrow morning.  Thank you.

---