Director of Public Prosecutions v Al Harbiah
[2023] VCC 2403
•18 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-01730
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HADY AL HARBIAH |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 DECEMBER 2023 | |
DATE OF SENTENCE: | 18 December 2023 | |
CASE MAY BE CITED AS: | DPP v Al Harbiah | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2403 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Possess firearm contrary to firearm prohibition order; commit indictable offence whilst on bail, contravene conduct condition of bail.
Legislation Cited: Sentencing Act 1991; Bail Act 1977
Cases Cited:
Sentence: Convicted and Sentenced as an aggregate to 1 month imprisonment for Summary Charge; Convicted and Sentenced to 3 years and 9 months imprisonment with a non-parole period of 22 months; Pre-Sentence Detention of 552 days reckoned as served – s6AAA: 5 years and 2 months imprisonment with a non-parole period of 3 years and 8 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. D. Ellwood | Office of Public Prosecutions |
| For the Offender | Mr M. Bazzi | City Group Legal |
HER HONOUR:
1Hady Al Harbiah, you have pleaded guilty on indictment to a 'rolled up' charge of possessing a firearm contrary to a firearm prohibition order.
2You have also entered guilty pleas to three related summary offences, those being summary Charge 6, commit an indictable offence whilst on bail, namely the possessing of a firearm contrary to a firearm prohibition order, and summary Charges 7 and 11, which are two charges of contravene a conduct condition of bail.
3In sentencing you for your crimes, I am obliged to consider the maximum penalties for each of the offences that you have committed. The charge of possessing a firearm contrary to a firearm prohibition order carries a maximum penalty of 10 years imprisonment and each of the offences against the Bail Act 1977 carry a maximum penalty of three months imprisonment.
4Those maximum penalties reflect the seriousness with which parliament regards these offences.
5The circumstances of your offending were set out in a document entitled 'Prosecution Summary of Facts' dated 15 November 2023 and the same document dated 12 December 2023. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty as well as the factual basis on which I am to sentence. Whilst referred to only briefly in my sentencing reasons I have had full recourse to the entire document.
The Offending
6On 17 June 2021 you were served with a firearms prohibition order.
7At the time of your offending you were associated with both Murtada Alessawi and Jaidyn Snowball. The prosecution contend that they were 'junior' associates of yours.
8At approximately 7:30 pm on 12 June 2022 you had contacted Mr Alessawi saying that you needed to see him for something. Mr Alessawi agreed that he would meet with you.
9At approximately 12:46 am on 13 June 2022, Mr Alessawi and Mr Snowball met at the Parc Hotel in Bundoora where Mr Snowball was residing at the time. They drove to meet you in Jocelyn Street Lalor, exiting their vehicle and entering the blue VW Golf which you were driving.
10Unbeknownst to all three of you, the VW Golf was already the subject of a surveillance warrant tracking its movements. Conversation within the vehicle was being recorded by investigators.
11Once all three of you were inside the vehicle you produced two firearms- which included a Soviet model 68 assault rifle- and described their use to Mr Alessawi and Mr Snowball.
12The sound of weapon actions being worked could be heard, indicating that the occupants of the vehicle were familiarising themselves with the operation of the firearms.
13You also provided Mr Alessawi and Mr Snowball with a used mobile phone and instructed them to contact you on a Wikr social media application on the phone. I understand this application to be one where communications tend to be encrypted.
14At approximately 1:04 am on 14 June 2022, Mr Alessawi and Mr Snowball left a car park in High Street Lalor and, travelling in a stolen van, drove to Surrey Street, Pascoe Vale. They were under surveillance at the time.
15Both men got out of the stolen van. Mr Snowball was carrying a Norinco 911 semiautomatic handgun. Mr Alessawi was carrying the Soviet assault rifle. Both weapons had been supplied by you.
16They were fired upon by an unidentified person from the vicinity of 14 Heather Street, Pascoe Vale, and took shelter in the front yard of a house in Surrey Street and returned fire. At least 15 rounds were discharged in the direction of 14 Heather Avenue.
17Both men made it back to the stolen van and Mr Snowball drove away from the scene with Mr Alessawi as his passenger. They were intercepted by police in Boundary Road and arrested. The assault rifle and handgun supplied by you were observed between the front seats at the time of their arrest.
18You were observed in Jocelyn Street Lalor at 3:38 am after arriving in a grey Toyota Camry previously seen to be driven by Mr Alessawi.
19You were arrested on 14 June 2022 and gave 'no comment' responses when interviewed by police, as is your right.
20Subsequent investigation revealed DNA linked to you on the assault rifle trigger and trigger guard. Lower quality DNA was located on the grip of the assault rifle as well as on some ammunition located in the grey Toyota Camry seized at the time of your arrest on 14 June 2022. It is not suggested that you provided ammunition.
21You had been released on bail on 4 February 2022 by the Heidelberg Magistrates Court with special conditions which included a curfew requiring you to be present at home between the hours of 9:00 pm and 6:00 am. On both nights of 13 and 14 June 2022 you breached this condition of your bail as you were not at home during the curfew hours. This forms the basis for the summary Charges 7 and 11 - breach conduct condition of bail.
22Your offending the subject of the indictment occurred whilst subject to this bail order, forming the basis for summary Charge 6 of commit an indictable offence whilst on bail.
Offence gravity
23Whilst 'rolled up' charges can proceed with the consent of an accused person, such a charge does represent more than one occasion of separate criminality and therefore represents greater criminality than a charge involving a single episode. In this case the 'rolled up' charge on the indictment relates to your possession of two weapons on 13 June 2022, particularised as a Norinco brand model 911 A1 semi-automatic pistol and a Soviet calibre Jianshe Arsenal brand model type 68 selective-fire rifle. Photographs of the weapons were tendered by the prosecution.
24Firearm prohibition orders were introduced into Victoria in May 2018. The firearm prohibition order scheme was designed to, and operates to protect, the community and reduce firearm-related crime by targeting those who want to possess, use or carry firearms for unlawful purposes.
25It is axiomatic that firearms should not be in the possession of those who are not entitled to do so.
26You have pleaded guilty to that possession on 13 June 2022 but clearly each weapon had to be sourced. You had the connections to do so.
27You provided no instructions as to that circumstance.
28Each weapon was then divested to Mr Alessawi and Mr Snowball, persons known to you. You provided some instruction as to the use of each weapon.
29You possessed two high powered weapons, as their use ultimately bore out, and did so in flagrant breach of an order prohibiting you from doing so, an element of the offence with which you are charged.
30The crown do not suggest that you had any connection with what did occur in the subsequent use of these firearms by Mr Alessawi and Mr Snowball, nor do I, or could I, find that you did.
31These acts of Mr Alessawi and Mr Snowball are not those for which you fall to be sentenced but they provide overall context for an assessment of the objective gravity of your offending to be undertaken and sets context for the relationship between the three of you at that time. Each person was known to you, you were aware -given the timing of the provision of the weapons, the location and the conversation- that you were providing very dangerous weapons and likely for some nefarious purpose. I accept the crown submission that your actions were particularly reckless in those circumstances.
32Principles of general deterrence are paramount as a mechanism for community protection.
Plea of guilty
33The Sentencing Act 1991 obliges me to take into account the stage at which you entered your plea.
34I do accept that you pleaded guilty at an early stage. You were charged on your arrest on 14 June 2022. and entered your plea of guilty at committal mention proceedings on 3 October 2023 after more serious charges were withdrawn. These, in effect, represented your first opportunity to plead guilty.
35Your plea has saved the time and expense of contested proceedings as well as the need for witnesses to attend court and give evidence.
36Your plea has additional utilitarian value as it occurred at a time when the court was still responding to the backlog created by the COVID 19 pandemic.
37Whilst expressed in the materials before me, remorse for your offending is somewhat difficult to discern as opposed to you regretting your actions and where they have taken you. I accept that, through your plea, you have taken responsibility for your actions.
38These factors will be taken into account in your favour.
Personal circumstances
39Your personal circumstances were set out in helpful written submissions and other materials tendered on your behalf.
40You were born in Shepparton in January 2001. You have four younger siblings being three brothers and one sister.
41Your parents were each born in Iraq and met and married in Syria. Your parents' income is via Centrelink payments. You have always lived at home.
42You were bullied during your secondary school education at William Ruthven Secondary College in Keon Park. You then transferred to Lalor Secondary College where you remained for part of your Year 8 education. Your parents then made arrangements for you to relocate to Iraq because by that stage, when aged 14 years, you were already dependent on cannabis, methamphetamine and heroin.
43You had started using cannabis at 12 years of age and by 13 years were smoking and injecting methamphetamine. You also started injecting heroin prior to going to Iraq when you were still 14 years of age. Nothing in the material sheds any light on such an early resort to drug use.
44You continued to use drugs in Iraq and witnessed and experienced a number of traumatic events which were outlined to me in the written materials.
45You remained in Iraq for three years where your parents would visit you every few months.
46You returned to your parents' home in Lalor when 17 years of age when you worked briefly as a scaffolder. You have not worked since as you have continued to use drugs of addiction. You have not obtained a driver's licence.
47At the time of your arrest on 14 June 2022 you report typically injecting up to two grams of heroin daily and smoking between half and two grams of methamphetamine daily, as well as smoking two or more 'bongs' of cannabis of a night. You were also occasionally abusing buprenorphine and, for approximately two months in advance of your arrest, were abusing Lyrica tablets which had been prescribed to you two years earlier for pain relief.
Prior criminal history
48Your prior criminal history forms part of your personal circumstances.
49It is perhaps no coincidence that it commences upon your return from Iraq.
50Your first appearance before a court was at the Melbourne Children’s Court on 15 March 2017 where you were placed on a youth supervision order for a period of 12 months in relation to five charges of armed robbery, five charges of attempted armed robbery, one charge of aggravated burglary, and various other offences of dishonesty as well as charges of committing an indictable offence whilst on bail, unlicensed driving and careless driving of a motor vehicle. No conviction was recorded. There was no information before me as to the circumstances of the armed robberies or attempted armed robberies, but by their very nature, a weapon must have been involved.
51Three months later you again appeared at the Melbourne Children’s Court. On 27 June 2017 you were placed on another youth supervision order for a period of 12 months in relation to charges of affray, criminal damage and without lawful authority or excuse enter into a private place. No conviction was recorded.
52On 16 May 2018, at the Heidelberg Children’s Court, you were placed on a good behaviour bond for a period of six months for charges of unlicensed driving and drive a vehicle causing a loss of traction. No conviction was recorded and the bond was dismissed on 16 November 2018 after compliance with your promise to be of good behaviour. Again, no conviction was recorded.
53On 17 April 2019 you were fined the amount of $700 by the Heidelberg Children's Court for charges of unlicensed driving, use unregistered motor vehicle on a highway and careless driving of a motor vehicle. No conviction was recorded.
54You were placed on an adjourned undertaking for a period of 12 months by the Sunshine Magistrates Court on 21 August 2019 in relation to charges of possessing drugs of dependence and commit an indictable offence whilst on bail. No conviction was recorded. You were discharged from your undertaking on 20 August 2020.
55On 15 January 2020 you were placed on a good behaviour bond by the Heidelberg Children’s Court for charges of unlicensed driving and possess prohibited weapon without exemption. No conviction was recorded. The bond was dismissed on 31 December 2020 after compliance with your promise to be of good behaviour.
56On 13 December 2021 you were fined the amount of $1500 for a charge of commit indictable offence whilst on bail, two charges of contravene a conduct condition of bail, unlicensed driving and careless driving. You were also convicted and discharged for the possession of cannabis.
57ON 31 May 2022 you were fined $1500 for charges of fail to answer bail, non- probation driver drive with 'P' plates, unlicensed driving and driving at a speed dangerous. You were convicted and discharged for the possession of cannabis.
58The offending before me occurred within two weeks of this court appearance.
59This history reflects eight court appearances within a five-year period which appear book ended by armed robberies and then the serious offence the subject of the indictment.
60You are not to be punished for your criminal history a second time. Your criminal history is relevant to the assessment of the weight to attach to the sentencing principles of specific deterrence, denunciation and protection of the community. All of these are relevant to your sentencing exercise. You have relevant matters involving the possession of weapons and relevant matters for offences against the Bail Act 1977.
61Your prior criminal history also informs your prospects for rehabilitation, to which I now turn.
Prospects for rehabilitation
62You were 21 years of age at the time of your offending and are now aged 22 years.
63You still are, and were, relatively young at the time of your offending. The principles in relation to young offenders and the focus that places on rehabilitation in the sentencing exercise remains relevant to your case. It remains of obvious interest to the community that young offenders are, where possible, supported in their rehabilitation and led away from criminal behaviour.
64You have been in custody since your arrest on 14 June 2022, a period of some 552 days. Apart from a brief period on remand previously, this is the longest time which you have spent in custody. It is also the most prolonged period which you have had without drug use. It has given you the opportunity for quiet reflection.
65Your experience to date is capable of acting as a deterrent into the future, and, if your efforts in custody are anything to go by, would indicate that you are treating it as such.
66ON 4 May 2023 you were issued with a construction induction card registering you to perform construction work.
67You have used your time wisely and have completed programs and courses which include 'Cannabis and Me', ' Ice and Me', 'Participate in Workplace Safety Arrangements', 'Use Hygienic Practices for Food Safety,' 'Control Traffic' and 'Investigate Driving and Owning a Car'. You are currently on a waiting list to do 'Keeping your Cool', 'Check your Thinking' and 'Building Better Relationships.' What you have accessed to date gives you additional workplace and life skills.
68A letter authored by Ms Karly Doyle, Forensic Alcohol and Other Drug Specialist, from OnTrack Counselling and Consulting dated 6 December 2023, has also been tendered on your behalf.
69You first engaged Ms Doyle’s assistance in August of 2022 and attended 11 teleconference sessions between then and March 2023. You re-engaged in November of 2023. You attended all scheduled teleconference appointments.
70You are described as engaging well and as to being open and honest in your communication. You demonstrated insight and self-reflection. Your drug abuse has been long-standing for someone so young and relates to self-medicating for psychological distress. You were welcoming of treatment and expressed a commitment to it in order to make personal gains. Ms Doyle did recommend that you continue with drug treatment as well as commence individual counselling.
71You have clearly benefited from assistance to date and have the advantage of an established therapeutic relationship which is able to continue both whilst undergoing remand or sentence and when you return to the community.
72You are also in receipt of buprenorphine.
73You are apparently keen to get mental health treatment upon your release.
74Mr Mohammad Al Shaikhly of 313 Building and Construction has offered you full time employment as a labourer, confirmed in correspondence dated 1 December 2023. Apparently, you worked for him for a short period in 2017.
75A letter from the Australian Shia Gathering Place dated 26 November 2023 confirms that you and your family are well known in the Iraqi Shia community. You are welcomed to attend the Islamic centre located in Reservoir with your family. The mosque is able to support you to resume what is described as a 'normal life.'
76In the last eight months you have formed a relationship with Monika Kustura who you had previously known as a friend. You each plan for a committed relationship on your release from custody with an intention to marry and have children. Ms Kustura visits you weekly.
Ms Kustura has provided a character reference in which she confirms that she has known you for four years and speaks of your offending as being 'out of character'. You have been, as I have said, in a relationship for the last eight months. Ms Kustura says: 'Hady expresses to me constantly how deeply remorseful he is for any mistakes he may have made.' She describes you as gentle, peaceful and respectful, which does seem at odds with your criminal behaviour, but stands as a reflection of the person which Ms Kustura knows. Ms Kustura speaks of your plans to marry and have children and I accept that this is something you also wish for. It should be a significant motivator for you.
77Your mother, Khansa Alia, has provided a character reference. She speaks of her sadness and her shame and to not being able to visit you for 15 months as a result of your offending. Of course, she bears no responsibility for your actions or your choices.
78Your mother only visited you in custody more recently. I accept that your family's chosen absence from your life has made your remand period more difficult. You have explained to your mother that you are sorry for what you have done and she considers the separation from your family to be a degree of punishment. She also describes your current partner as 'a beautiful girl'.
79Ms Alia speaks of noticing a positive change in your behaviour and to being somewhat grateful for your remand as it has given you the opportunity to start thinking about where your life was otherwise heading. I accept that you are well supported by family. You mother, father and other family members attended your plea hearing on 15 December 2023. You are able to return to the family home upon your release.
80You have provided your own letter entitled 'Letter of Apology'. In handwritten form it is undated, in typewritten form it has the date of 15 December 2023. Your letter opens with the sentence 'Your Honour, I want to start off by apologising and taking accountability of my offences' and later explaining 'the only reason why I had possession of these firearms was for my protection and I can’t afford anyone else that I love to lose them. I’m very sorry for that, I’m not justifying my actions, they were wrong, I admit that.'
81The bulk of the document otherwise details the difficulties you have faced in life and how tough it has been for you and your family for you to be on remand. You also speak of your intentions for the future, to marry, to have a family, to work and to be drug free.
82I attach limited, if any, weight to your apology which is further diminished by your unwillingness to discuss the full context of your offending. You have demonstrated no real insight.
83I do see some value in the fact that you have found your remand difficult in the deterrence it offers for your future decision making and in your expressed desire for a different way of life upon your release as a positive motivator. Both auger well for your prospects for rehabilitation, coupled with the efforts which you have made to undergo courses and programs and undertake drug counselling.
84Also tendered on your behalf is an assessment of you authored by Mr Jeffrey Cummins, psychologist, dated 28 November 2023. Mr Cummins was able to video conference with you on 23 November 2023. You initially presented as a very guarded interviewee who displayed a high level of paranoia and defensiveness.
85You told Mr Cummins that you were paranoid at the time of your offending and that you knew you should not have had anything to do with guns. You said that you had them from protection. This is difficult to reconcile with you providing them to others.
86You also speak of being somewhat glad for being arrested as it has forced you to take a closer look at your situation.
87Mr Cummins described you as displaying an elevated level of paranoia. You presented as being of below average intelligence but did not have any obvious impairment in your perception, judgment or reasoning ability.
88In Mr Cummins' opinion you suffer from complex post-traumatic stress disorder and poly substance dependency and were so at the time of your offending. In his opinion your protracted dependency on illicit drugs is linked to repressing traumatic memories. No reliance is placed on the Verdins principles. These diagnoses give you a targeted position from which to seek and engage in further treatment.
89I accept that you have greater prospects for rehabilitation now than perhaps you would have in the past.
Parity
90Mr Alessawi and Mr Snowball were each sentenced by me for their offending, some of which occurred immediately after your provision to them of high-powered weapons.
91It does not appear to me that there is any need for the application of the parity principle in those circumstances and where the Crown do not press that you had knowledge of their respective intentions.
Sentencing submission
92In terms of sentencing submissions, the Crown submit that the relevant sentencing principles encompass the imposition of a head sentence with a non-parole period.
93Your counsel's focus is on supported release into the community through either a combination sentence, a term of imprisonment in combination with a community corrections order, or a head sentence but with a lengthy period of supported transition into the community given your relative youth and time on remand to date. I accept this submission.
Sentencing purposes
94The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, 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. I observe that the culpability for your offending would appear to be high.
95I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, where possible, that offenders are rehabilitated and safely reintegrated into society.
96I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, noting that at this stage there is limited guidance for the charge particular to your indictment.
97I also take into account the important principles of totality and proportionality.
98For the summary charges, noting your relevant history, you are convicted and sentenced as an aggregate, noting the similarity of the offending, to one month imprisonment.
99For the charge on the indictment, you are convicted and sentence to three years and nine months imprisonment. You are to serve 22 months before being eligible for parole. This is, in effect, your total effective sentence.
100552 days are reckoned as having already been served.
101Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty I would have sentenced you to five years and two months imprisonment with a minimum three years and eight months before being eligible for parole.
102Anything arising, Mr Ellwood?
103MR ELLWOOD: No, Your Honour.
104HER HONOUR: Mr Bazzi?
105MR BAZZI: No, Your Honour.
106HER HONOUR: Thank you. If the technology allows us, do you wish to speak with your client?
107MR BAZZI: Yes please, Your Honour.
108MR ELLWOOD: I will leave the room.
109HER HONOUR: I will give you that opportunity. Thank you, I will close the court until ten o'clock tomorrow.
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