Director of Public Prosecutions v Alessawi
[2023] VCC 1835
•6 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00592, CR-23-00593, CR-23-00939
CR-23-00594, CR-23-00595
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MURTADA ALESSAWI JAIDYN SNOWBALL |
---
JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 August 2023, 2 October 2023 |
DATE OF SENTENCE: | 6 October 2023 |
CASE MAY BE CITED AS: | DPP v Alessawi & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1835 |
REASONS FOR SENTENCE
---
Subject: Criminal law
Catchwords: Theft, armed with firearm with criminal intent, possess unregistered general category handgun, possess unregistered Category E longarm, discharge firearm at premises with reckless disregard for safety, possess banned radiocommunications equipment for use, home invasion, intentionally damage property, attempt to pervert course of public justice, blackmail, commit indictable offence whilst on bail, young offender.
Legislation Cited: Sentencing Act1991 (Vic), Crimes Act 1958 (Vic), Firearms Act 1996 (Vic), Radiocommunications Act 1992 (Cth), Bail Act 1977 (Vic).
Cases Cited:Sabbatucci v The Queen [2021] VSCA 340, The Queen v Mills [1998] 4VR 235, Azzopardi; Baltatzis & Gabriel v The Queen [2011] 35 VR 43.
Sentence:Alessawi: Term of imprisonment of eight years, non-parole period of four years and 10 months and a $1750 fine.
Snowball: Term of imprisonment of seven years, non-parole period of four years and two months and a $1750 fine.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Ellwood | Office of Public Prosecutions |
For Accused Alessawi | Mr P. Smallwood | Slaveski & Associates |
For Accused Snowball | Mr A. Chernok (Plea) | City Group Legal |
| Mr M. Bazzi (Sentence) |
HER HONOUR:
1Murtada Alessawi and Jaidyn Snowball, you have each pleaded guilty on Indictment C2215455.1 to charges of home invasion and intentionally damage property. You, Murtada Alessawi, have pleaded guilty on the same indictment to a charge of attempt to pervert the course of public justice.
2You have each also pleaded guilty on Indictment C2215453.1 to charges of theft of a motor vehicle; armed with firearm with criminal intent; possess an unregistered general category handgun; possess an unregistered Category E longarm; discharge firearm at premises with reckless disregard for safety; and possess banned radiocommunications equipment for use.
3In a separate indictment numbered N1242664 you, Murtada Alessawi, have pleaded guilty to charges of blackmail and attempt to pervert the course of justice and a related summary offence of committing indictable offences, those being blackmail and attempt to pervert the course of justice, whilst on bail.
4In sentencing each of you for all your crimes I am obliged to have regard to the maximum penalties for the offences you have each committed. Those maximums reflect the seriousness with which parliament regards each offence and are as follows:
(a) Home invasion and attempting to pervert the course of justice - 25 years imprisonment;
(b) Discharge of firearm at premises with reckless disregard for safety and blackmail - 15 years imprisonment;
(c) Criminal damage and theft each carry 10 years imprisonment;
(d) Possess unregistered category handgun and possess unregistered Category E longarm - seven years imprisonment for the first offence;
(e) Armed with firearm with criminal intent - five years imprisonment;
(f) Possess banned radio communications equipment for use - two years imprisonment; and
(g) Commit indictable offence whilst on bail - three months imprisonment.
5The charge of home invasion is a Category 2 offence under the Sentencing Act 1991. In sentencing an offender for a Category 2 offence, the court must make an order under Provision 2 of Part 3, that is a custodial order - other than a sentence of imprisonment in addition to the making of a community corrections order in accordance with s44 of that Act.
6The circumstances of your respective offending were set out in documents entitled, 'Prosecution Summary of Facts', two of which were dated 4 July 2023 and a third dated 1 August 2023. These were agreed documents and represent your acceptance of the elements of each offence to which you have pleaded guilty, as well as the factual basis on which I am to sentence. I turn to those facts now, which I will refer to in brief compass. I have had regard to each document in full.
Indictment C2215455.1
7In May 2022 you were each aged 18 years. You, Jaidyn Snowball, are the younger by some four months. You, Murtada Alessawi, were residing with your family in Epping and you, Jaidyn Snowball, were residing at the Parc Hotel in Bundoora. On 18 February 2022 you, Murtada Alessawi, signed hirer's documentation for a white LDV G10 van. You made contact with the hiring company twice, wanting to extend that hire.
8At approximately 7 pm on 13 May 2022, Robert Beattie arrived home at his
Narre Warren South address and saw a white LDV G10 van parked opposite to England Walk. He thought this was suspicious as the registration plates were covered with blue tape and he saw one person inside wearing a hi-vis jumper with the hood pulled over. Mr Beattie called police, who attended around 8 pm but did not locate the white van.
9At 7.23 pm the LDV van was recorded on CCTV parked outside 8 Manna Walk close by to England Walk. At approximately 9.23 pm you arrived outside
12 Nana Walk and parked the white LDV van. You were each masked and gloved. You left the engine running whilst you each attended the front door of
14 Nana Walk. The victim, Marcus Denning, rented a bedroom at that address and was at home. You each repeatedly kicked the front door but were unable to force it open. You, Murtada Alessawi, took an imitation revolver from your clothing.
10Meanwhile, having heard a noise coming from the front door, Mr Denning fled out the back door, jumped the back fence and sought shelter with a neighbour.
Mr Denning said, 'It's a home invasion. Someone is trying to kill me. Call the police'. You tore down the CCTV camera at the front door of the premises, forming the basis for charge 2 on this indictment, intentionally damage property.
11These cameras belong to the home owner, Jerome Leak. You then smashed a lounge room window next to the front door and gained entry to the premises, forming the basis for charge 1, that of home invasion.
12Your intention was to assault. You began searching the bedrooms for Mr Denning. You kicked open the bedroom belonging to Mr Leak, who was not at home at the time. You then moved to another bedroom occupied by Dolores Jayan, who was at home and had locked herself inside her room. You kicked at her door until a large hole was created. Ms Jayan screamed in fear. One of you looked inside and upon seeing who was in the room left the house and you returned to the LDV van.
13Meanwhile several neighbours had called ‘Triple 0’. Mr Denning returned to the premises and checked on Ms Jayan. Police arrived shortly thereafter. Your mobile phones were subsequently linked to the area and the van was identified from dash cam and City Link footage.
14On your mobile phone, Jaidyn Snowball, were Mr Denning's personal details including his home address. In a ‘note’ entitled, 'Missions', the following was listed:
14 Nana Walk Narre Warren
Toyota Corolla BQB-738,
Mazda XMT 793
Cameras around the house.
Easy access
15A second address and details for Mr Denning’s partner were also listed.
16At approximately 8.40 pm, concerned that the LDV van had been identified in the home invasion you, Murtada Alessawi, reported to police that the van had been stolen some time between the afternoon of 13 May 2022 and 4 pm on
14 May 2022. The van was located by police in Epping the next day with pieces of blue tape found on both the front and rear registration plates.
17You were each arrested on 14 June 2022 in relation to the offending the subject of Indictment C2215453.1. You each denied participating in the criminal damage and the home invasion in Narre Warren South.
18You, Murtada Alessawi, persisted with an account that the white LDV van had been stolen. The charge of attempting to pervert the course of justice is particularised against you as:
(a) Falsely reporting to police that the white van had been stolen and inventing a series of events in support of that false report; and
(b) Lying to police in your record of interview with police that the white van had been stolen and inventing a series of events in support of that lie.
Offence gravity
19This is obviously serious offending, particularly the home invasion. For a first offence for each of you, you have started at the serious end of the criminal calendar.
20It is conceded that each of you were commissioned to attend at Mr Denning's premises. Neither of you will say anything further about the circumstance but it clearly involved a degree of planning. Whilst I cannot form the view that you were involved in the actual planning, you must have had some awareness in order to participate. You were provided with instructions and information relating to two persons: Mr Denning and his then partner. This was targeted offending.
21Secondly, you accessed a van and made some attempt to hide the registration details. You each made efforts to disguise your appearance in the sourcing and the wearing of masks and gloves. You obtained an imitation firearm.
22Finally, you remained in the vicinity for some time before executing your mission. Once inside the premises, it is clear that locating Mr Denning was your focus. You were prepared to follow the instructions which you had been given.
23You were undeterred by your initial difficulty in gaining entry and persisted, smashing your way in. You left the van running for a quick get-away.
24You showed complete disregard for the other residents of the premises. Thankfully for Mr Leak, he was not at home but he is, in effect, a victim of the criminal damage. Ms Jayan was less fortunate. Whilst I have no Victim Impact Statement, you apparently terrified Mr Denning, given his flight from the premises, and undoubtedly also terrified Ms Jayan, given her efforts to protect herself from you and her screams of fear.
25The criminal damage offence was designed to further reduce your likelihood of being identified. I accept that this offence is not at the higher end for an offence of its type.
26You, Mr Alessawi, took a step further when, fearing detection, you resorted to reporting the white LDV as stolen and maintained that falsehood.
The charge of attempting to pervert the course of justice is a serious offence because it is one that strikes at the heart of the justice system. This offence was designed to disguise your responsibility (and likely that of your co-accused) for serious offending. It was deliberate, persistent with, and motivated by self-preservation. You have each chosen to provide no background or information as to the circumstance of your attendance at Mr Denning's premises.
Indictment C2215453.1
27A month later, your offending the subject of this indictment occurred. Again, this was commissioned offending.
28In terms of this offending, the prosecution contend that at all times you were acting on the direction of Hady Al Harbiah, a person aged 21 years at the time, who only today has been arraigned and entered a plea of guilty to a charge of possess firearm contrary to firearm prohibition order, and a number of related summary offences.
29In a phone conversation intercepted on 9 June 2022 you, Mr Alessawi, described yourself as the right-hand man to Mr Al Harbiah. In a further intercepted conversation between Mr Al Harbiah and you, Jaidyn Snowball, Mr Al Harbiah threatens that if your behaviour does not improve, you will not be working for him and you will have to go back working with another group.
30At 5 pm on 12 June 2022 Mr Qazim Abdallah had a silver Hyundai iMax van stolen from outside his home. CCTV shows a white vehicle stopped beside the iMax at around 7 pm when a person stepped from the white vehicle, entered Mr Abdallah's van and both vehicles then drove away. You were each charged with the theft of that vehicle between the 12th and 13th of June 2022, which is charge 1 on this indictment.
31You had each been in contact with Hady Al Harbiah in the lead-up to the events
of 14 June 2022.
32In the early hours of 13 June 2022, you each met with
Hady Al Harbiah in his vehicle, a VW Golf. The Golf was subject to a surveillance warrant, its movements tracked, and conversations within the vehicle were being recorded.
33Hady Al Harbiah produced several firearms including a Soviet Model 68 assault rifle and explained the use of the weapons. The sound of weapon actions being worked could be heard as you familiarised yourself with them.
34Charge 2, armed with criminal intent, commences. You were provided with a mobile phone and instructed to contact Hady Al Harbiah on a Wickr social media application. I understand this application to be one where communications tend to be encrypted. At a later stage that day there was a conversation recorded in which you decided to, 'call it off until tomorrow'.
35In the afternoon of 13 June 2022, there were various movements in various vehicles including the VW Golf, and you each had contact with Hady Al Harbiah.
36At 1.04 am on 14 June 2022 you each travelled in a stolen iMax van to
Surrey Street, Pascoe Vale.
37When you got out of the stolen van you were each disguised with gloves and balaclavas. You, Jaidyn Snowball, were carrying a Norinco 1911 semi-automatic handgun, and you, Murtada Alessawi, were carrying a Soviet assault rifle.
38As you moved along the western side of Surrey Street you were fired upon by unidentified persons from the vicinity of 14 Heather Avenue, Pascoe Vale. This address was close to the corner of Surrey Street.
39You took shelter in the front yard of a house in Surrey Street and returned fire, discharging at least 15 rounds in the direction of 14 Heather Avenue.
40You, Murtada Alessawi, provided a burst of covering fire while Jaidyn Snowball made his way back to the Hyundai van with you following shortly afterwards.
41You, Jaidyn Snowball, drove yourself and Murtada Alessawi away from the scene. You were intercepted nearby by armed police at around 1.30 am. The guns were observed between the front seats. The pistol had the serial number ground from it and magazines with cartridges were also located. Further ammunition was found secreted inside the door panels, totalling 14 rounds, five of which could be discharged in a pistol.
42Police also searched the VW Golf on 14 June 2022 and located a device known as a signal jammer the subject of charge 6 on this indictment, possess radio communications device, the subject of permanent ban. The device was switched on and it was designed to disrupt or disturb radio communications, in this case
six radio frequency bands.
43You were each arrested. On interview by police, you each gave ‘no comment’ responses, as is your right. On subsequent investigation your mobile phone, Jaidyn Snowball, had a locked ‘note’ labelled, 'Missions', on which the following was written:
16 Heather Avenue
Hyundai White
Big gate out the front
Family inside the house
On the corner of the street
Offence gravity
44Like the previous indictment, this was organised, indeed contracted or commissioned, offending.
45It is extremely serious. There was nothing from your previous endeavour in May which appears to have deterred you from the events of June 2022. Indeed, your willingness to participate in such an event after your offending in May 2022, only weeks before, increases your moral culpability and elevates the need for community protection.
46You were again well prepared. You met with Mr Al Harbiah days in advance, viewed and familiarised yourself with the weapons. This indicates that you were actively involved in the planning. The weapons used appear to be both high calibre and powerful, increasing the potential risk to others. Communications between the three of you were encrypted. The instruction received by your phone, Jaidyn Snowball, included that there was a family inside the targeted address. This much was known to at least you at the time of your attendance.
47Given you called it off the day prior, you were clearly making active decisions about the best time to fulfil your mission. When you did attend, it was in a stolen vehicle in the early hours of the morning, again with the use of disguise in balaclavas and gloves and with an instrument by way of signal jammer, designed to protect you from immediate identification. The pistol, as I have referred, had a serial number ground from it. The guns were loaded and you had additional ammunition with you.
48This appears to be sophisticated offending with a high degree of planning and you were again each prepared to act on instructions given.
49Not only did you attend Surrey Street and Heather Avenue with high powered weapons, the events which unfolded indicated a willingness to use them.
50I could not form the view that that was part of your original mission but more a response to the circumstance at being shot at yourselves. However, the decision each of you made to use the weapons with which you were armed was an inherently dangerous act. Crime scene examination revealed 25 cartridge cases of which 23 were for the assault rifle and two from the pistol.
51A bungalow at the rear of 14 Heather Avenue had bullet holes, as did the vehicle behind which each of you had taken cover. Bullet holes were identified in five locations in fences in and around 14 Heather Avenue. Two vehicles had ricochet damage.
52One bullet fired travelled over 950 metres, passed through two walls of a house on another street and lodged in a solar panel on the roof of a house next door.
53Whilst again there is no Victim Impact Statements, the Crown summary reveals that a number of residents of surrounding houses were placed in fear, having been woken to the sounds of shooting in a suburban street. The risk to others given the calibre and power of the weapons was enormous, elevating the seriousness of this offending. The principle of general deterrence must take some priority in circumstances where public safety is put at such risk.
54I am mindful that the charge of armed with a firearm with criminal intent, possessing an unregistered general category handgun, possessing an unregistered category, a longarm - E, I think it is, and discharging a firearm at premises with reckless disregard for safety, have commonality in their circumstance and care must be shown to avoid double punishment. Indeed, the Crown contend that there should be substantial, if not complete concurrency of the sentences imposed for these charges.
55Charge 5, discharging a firearm at premises with reckless disregard for safety is submitted to be the most serious on this indictment, a submission with which
I agree.
56Again, you have each chosen to provide no background or information to set the context for this offending, but clearly it must have been motivated by something.
I remain ignorant. At one stage during your plea hearing on 4 August 2023 your counsel, Mr Snowball, responded to a query from me that “I am not going to hear anything from either of you as to the circumstance or background of this?” with the response of, “I can assure you are not, Your Honour.” This position was maintained by your counsel, Mr Alessawi.
57As I said at your initial plea hearing on 4 August 2023, it is very disturbing that this kind of military weapon or semi-automatic weapons are being used in a suburban street when the risk to others is perhaps obvious. It is even more disturbing when such weapons are in the hands of 18 year olds commissioned, it would appear, to perform these acts.
Indictment N12142664
58I now turn to Indictment N12142664, which relates to Mr Alessawi only.
59You, Murtada Alessawi, were released onto bail on 24 June 2022 and returned to live with your family.
60Between 18 and 24 September 2022 you began blackmailing Dennis Nuredini, whom you had met at school. This was suggested as payback for threats allegedly made to your younger brother by Dennis Nuredini about a year earlier.
61You made demands for Dennis Nuredini to hand over a car or a motorcycle owned by him, saying that you would come around to his home if he did not comply and would put him in a ditch and a ditch for his family if he went to police.
62These demands morphed into wanting $5,000 when Dennis Nuredini explained the car belonged to his father and that the motorcycle had a broken engine. You gave Mr Nuredini a week to come up with the money before the quantum changed to $1,500.
63Ultimately, Dennis Nuredini offered to do you a favour as an alternative to actual payment.
64On 9 September 2022, police observed a 2022 white Mercedes-Benz G63 drive from the address of a known associate of yours, Mr Alessawi, and at a fast rate of speed. Police activated flashing lights but the Mercedes got away after using a slip lane and running a red light. Police called off the pursuit.
65On 13 September 2022, police served a notice under s60 of the Road Safety Act on the owner of the Mercedes, which turned out to be car hire firm. You had been the hirer of the vehicle. A second s60 notice was then served on you.
66On 24 September 2022, you contacted Dennis Nuredini and demanded that he falsely state that he was the driver of the Mercedes on 9 September 2022. You gave him the time, date and place of the event. The Crown say this was the favour that Dennis Nuredini had told you that he would owe you and that you were seeking to provide a false alibi for 9 September 2022 to defeat the police investigation and avoid prosecution.
67Police searched your home address on 4 October 2022 and located the s60 notice with details completed, which nominated Dennis Nuredini as the driver of the Mercedes on 9 September 2022.
68On this occasion the charge of attempting to pervert the course of justice is particularised as follows:
(a) telling Dennis Nuredini to falsely to admit to police he was the driver of the vehicle during an incident on 9 September 2022 which the police were investigating;
(b) providing Dennis Nuredini with essential details relating to the said incident of 9 September 2022 including the time, date and location of it;
(c) telling Dennis Nuredini about what to say if interviewed by police about the incident; and
(d) completing and signing a nomination statement falsely nominating Dennis Nuredini as the driver of the vehicle on 9 September 2022
69The offences of blackmail and attempting to pervert the course of justice each occurred when you were subject to a grant of bail made on 24 June 2022, the subject of summary charge. When interviewed by police you gave ‘no comment ‘answers, as is your right. You were again remanded into custody.
Offence gravity
70As has already been referred to, the offences of blackmail and attempting to pervert the course of justice occurred while you were subject to a bail order, which is the subject of summary charge. Your actions show a disregard for court orders.
71Section 16(3C) requires that every term of imprisonment imposed on a person for an offence committed whilst released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
72The principle of totality remains an important consideration in this context, as it does in relation to all charges on each indictment and between each indictment.
73It is concerning that you spent a period in custody for serious offending, that is the subject of the previous two indictments, and were again prepared to involve yourself in serious criminal activity. This raises obvious concern about your prospects for rehabilitation and again, how to best protect the community.
74You, Mr Alessawi, showed a disregard for your victim. The offence of blackmail, whilst not a crime of physical violence, still represents a direct attack on a victim in the fear and anxiety it creates and is designed to create. Your offence was somewhat protracted and again in the context in which your primary motivation was your own needs and protecting yourself from criminal investigation.
75For each of you, your respective offending overall requires considerable weight to be given to the principles of general deterrence, specific deterrence, denunciation and just punishment. This is not to lose sight of an assessment as to your prospects for rehabilitation, a topic to which I will return at a later stage.
Plea of guilty
76The Sentencing Act obliges me to take into account the stage at which you each entered your pleas of guilty.
77I do accept that each of you pleaded guilty at an early stage.
78Whilst there was some discussion about adjournments and slow resolution, this does appear to relate to the provision of disclosable material. In these circumstances you will not be criticised about the stage at which you entered your pleas.
79In addition, your pleas have saved the court considerable time and expense necessarily involved in contested proceedings, as well as the need for witnesses to attend and relive distressing or traumatising events.
80Your pleas have additional utilitarian value at this time and the court is still responding to the backlog created by the COVID-19 pandemic.
81These factors will all be taken into account in your respective favour.
82You have each made broad expressions of remorse and this will also be afforded some weight in your sentencing.
Personal Circumstances – Murtada Alessawi
83I turn now to your personal circumstances, Murtada Alessawi.
84My recount of your personal circumstances is derived from materials tendered on your behalf.
85Whilst 18 years of age at the time of your offending you are now aged 19 years.
86You understand that your parents, Fadel and Suheila, each fled Iraq to come to Australia, your mother arriving in 1990 and your father in 2003.
87You were born in December 2003 and raised in Melbourne. You are the middle child of a sibship of three boys. You have an older brother, Ahmed, and a younger brother, Hassan. Your mother is the primary caregiver, and your father was employed as a taxi driver and has more recently worked as a store attendant in a milk bar. Your parents presently do not reside together.
88When approximately 10 years of age, your family returned to Iraq for a period of some three months before returning to Australia due to the instability and lack of safety in that country. You report exposure to active combat during this time as well as being witness to particularly traumatic events, including seeing dead bodies in the streets, gunfire, and a friend dying in your arms after being caught in crossfire. Somewhat understandably, you have had considerable difficulty processing these events, events which no child should have to witness.
89Upon your return to Australia, you experienced nightmares, flashbacks, problems sleeping, fear and startled responses. You began gravitating towards negative peer influences and using cannabis as a means to cope with your trauma. You came to use other drugs as a means to alleviate your psychological distress.
90Your school years were understandably affected. In addition, you report a longstanding history of learning difficulties and required a teaching aide whilst in primary and secondary school. You would also truant.
91At 14 years and nine months of age you were referred for psychological assessment. A “Confidential Program for Students with Disabilities Psychological Assessment Report for Parents and Schools” dated 12 September 2018, has been tendered on your behalf and I have had recourse to its content. It would appear that you were referred for assessment as to your eligibility for programs for children with intellectual disability.
92That report. authored by Lisa Palmisano, psychologist, found that your overall
IQ score, at 73, was in the very low range, where you were performing as well as, or better than, 4 per cent of your peers. You did not qualify for the program for students with intellectual disability.
93Whilst it may not have been part of the assessment, there is no reference in Ms Palmisano's report to any drug use, negative peer relationships or problem behaviour at that time. You were described as a friendly young man who happily answered questions. Recommendations were made as to how best to deliver your education.
94According to one report tendered on your behalf, you did complete a Year 12 education.
95In terms of drug use, cannabis has been part of your life since you were around
13 years of age and the prescription drug, Lyrica, since you were around
16 years of age.
96Apart from three days as a water proofer, you have not been in paid employment.
97A report dated 28 July 2023 and an addendum report dated
31 July 2023, authored by Dr Mathew Staios, Clinical Neurologist, has been tendered on your behalf.
98In his first report in time, Dr Staios found your intellect to fall within the borderline range, consistent with your earlier assessment by Lisa Palmisano. He found you are vulnerable to the influence of negative peers in this context and your limited education. This leads to poor decision making which is amplified by drug use.
99Dr Staios also refers to the instability in your psychosocial history during your time in Iraq, which subsequently impacted on your childhood development, formation of maladaptive coping mechanisms and vulnerability to negative peers. Whilst not diagnosed with post-traumatic stress disorder, he does opine that you do display residual symptoms.
100Dr Staios recommended psychological treatment.
101In his addendum report, Dr Staios confirms that his opinion in his report dated
28 July 2023 is unchanged in the context of confirming that he did have access to the Crown openings and indictments for your offending in May and June 2022.
102Neither report refers to any explanation for your offending or remorse for it.
103I did find some deficiencies in the reports of Dr Staios. He was not aware of the offences third in time, blackmail and attempt to pervert the course of justice, and had not accessed any sources of information other than those provided to him by your instructing solicitors and an interview with you over the Zoom platform. These concerns do not impact on his findings as to your level of intellectual function, particularly given a consistency with the findings of Lisa Palmisano. I take this finding into account and accept the role it plays in your decision making, particularly when you are also under the influence of drugs.
Prospects for rehabilitation – Murtada Alessawi
104In terms of your prospects for rehabilitation, Mr Alessawi, you have no prior criminal history.
105Until your remand, you continued to reside at the family home and describe your parents as continuing to provide you with practical and emotional support. Whilst your relationship between your parents is described as strained, they have continued to visit you in prison and your mother and two brothers were present at your plea hearing.
106I do accept you are well supported by family who are understandably shocked by your offending behaviour.
107It is obviously a concern that, when granted bail by the Magistrates' Court on 24 June 2022 for serious offending, that you relatively quickly resorted to serious offending by way of blackmail and, for the second time, attempting to pervert the course of justice.
108However, since you were returned to custody on 4 October 2022, you appear to have used your time wisely.
109I received certificates of courses completed by you which included; a “24 hour Youth Substance Awareness” program, “Use Whole Numbers and Halves for Work”, “Participate in Workplace Safety Arrangements”, “Develop and Use Personal Budgets”, “Investigate Driving and Using a Car”, “Clean High Touch Surfaces and Comply with Infection Prevention” and “Control Policies and Procedures”. These appear useful and practical to your eventual return to the community.
110Three clean urine screens dated 5 May 2023, 10 June 2023 and 20 June 2023 have been tendered on your behalf.
111In addition, since July of this year you have begun working with the Australian Forensic Therapy Rehabilitation (AFTR), Melbourne. A report authored by Alexander Crouch, Counsellor, and Sophie Russell, Registered Psychologist, dated 1 August 2023, was also tendered on your behalf, confirming your participation in six counselling sessions over the Zoom platform by the time of your plea hearing on 4 August 2023. It does not appear they were provided with the facts relating to your offending in September 2022.
112In the opinions of Ms Russell and Mr Croucher, your history and described symptoms meet the criteria for chronic substance use disorder, mild anxiety and acute stress disorder. You told the assessors that your offending was directly linked to your substance misuse and dependency. You accepted that you had a substance use disorder. As you were advised by Mr Croucher and Ms Russell, you have been doing your best to establish a healthy routine whilst in custody, which has included sleep patterns and exercise. You have also been developing positive goals.
113You are described as having shown commitment and willingness to get counselling and to seek help. You told the assessors that you are remorseful for what you have done in the past.
114These efforts are to be commended but are very much in their infancy and are yet to be transitioned into the community. Mr Croucher and Ms Russell opine that your profile augers well in terms of your prognosis if you can remain abstinent from drugs. Continued counselling and psychology sessions were encouraged.
Personal Circumstances – Jaidyn Snowball
115I turn now to your personal circumstances, Jaidyn Snowball.
116As referred to earlier, you were 18 years of age at the time of the offending. You are now aged 19 years.
117Considerable material has been tendered on your behalf from which I am also able to derive much of your personal circumstances.
118You had a difficult background. You were born in Australia and raised by your biological mother. You are the second eldest of 13 siblings of which 11 are half siblings. You have met your father on a couple of occasions but have never developed a bond. Eight of your siblings are part of the immediate family group with four others residing with their respective fathers. On any view of it, your mother had considerable responsibilities.
119I am told you do not have a particularly close relationship with any of your siblings but maintain contact with your mother, who now resides in Melbourne’s northern suburbs.
120During your childhood you grew up in Sydney and your family moved house on multiple occasions, never staying longer than three months in one place. You recall sleeping on floors, in hotels full of criminals, and to being exposed to people using drugs.
121You recall attending five primary schools, three secondary schools and one behavioural school, being Lynall Hall in Richmond. Your mother had moved to Victoria when you were aged approximately 13 years. You say that you dropped out of your secondary education in Year 11, describing yourself as both distracted and angry.
122When aged three years you almost drowned in a backyard pool but were saved by your maternal grandmother. In the past you have had a close relationship with her but lost contact when she returned to New Zealand a number of years ago.
123You also suffered both physical and emotional abuse at the hands of other family members, uncles and older cousins. You started smoking cannabis at age
12 years and began using benzodiazepines and Lyrica. From the age of 16 years, you started smoking methylamphetamine and on occasions have used cocaine, amphetamine and MDMA. You were asked to leave home around the age of 16 years.
124You were largely transient from that time. At the time of your offending in 2022, you were habitually using methylamphetamine, prescription pills and marijuana.
125You have a limited history of employment but have spent 18 months as a truck jockey and also worked checking vaccination statuses during the COVID-19 pandemic.
126On your behalf a report authored by Mr Ian Mackinnon, Consultant Psychologist, dated 19 July 2023, was tendered.
127At the time of your offending, Mr Mackinnon was of the opinion that you were suffering from complex post-traumatic stress disorder and substance use disorder, which had made significant contributions to your offending by impacting your ability to apply sound judgment, increasing your impulsivity and propensity for engaging in reckless behaviour, reducing your ability to apply consequential thinking, and degrading your ability to maintain awareness of your personal and community responsibilities.
128Mr Mackinnon found at the time of his assessment of you, conducted on
17 July 2023, that you were suffering from chronic complex post-traumatic stress disorder at a mild level related to a near death drowning incident, which he understood occurred when you were six years of age, and multiple incidents of emotional and physical abuse by male relatives suffered through your formative years. Substance use disorder had resiled by the time of his attendance on you.
129Whilst not explaining the circumstances, you expressed remorse and regret to
Mr Mackinnon and told him that your offending was stupid. He was of the
opinion that you could complete a community corrections order and that you
would probably cope well enough with the prison environment. He recommended a neuropsychological assessment of you. I do not understand that this recommendation has been pursued.
130The prosecution required that Mr Mackinnon be made available to give evidence and he did so at your initial plea hearing on 4 August 2023.
131In his evidence, Mr Mackinnon confirmed that he had assessed you over a video link for a period of nearly 60 minutes. He made no enquiries over and above the information provided to him in advance of his assessment. He gave evidence that he had ‘perused’ that material in a broad sense but looked at it in more detail after he had seen you. This, in my view, limited his ability to discuss those materials with you in any great detail.
132Whilst referring to your offending as ‘stupid’, you declined to provide any more information about it to Mr Mackinnon. This, in my view, makes it more difficult for him to assess the contribution that any complex post-traumatic stress disorder or a substance use disorder made to your offending behaviour in May and June 2022.
133In evidence, Mr Mackinnon did agree, under cross-examination by the learned prosecutor, that the absence of explanation for the offending makes it more difficult to clarify how the diagnosed conditions contributed to your offending.
On questioning from me, Mr Mackinnon agreed that in terms of complex
post-traumatic stress disorder and substance use disorder, there would be no way really to unscramble the eggs, so to speak, in terms of what was operating on your decision making at the time. Submissions made in relation to Verdins considerations were not pursued.
134Mr Mackinnon did express an understandable concern for you coming under the influence of serious older adult criminals whilst being housed in adult custody.
135Regardless of Mr Mackinnon's findings and the impact of the weight which are attached given the deficiencies in his assessment, I do accept yours was a disrupted childhood in which you were without a father figure, you were exposed to and subjected to violence, as well as to less than desirable living arrangements. This did impact on your ability to gain any stability, affected your education and saw a resort to drug use from an early age.
136Your counsel sought to rely on what is referred to as the Bugmy principles. That is, your moral culpability for your offending should be reduced by virtue of childhood deprivation.
137As was stated by the Court of Appeal in Sabbatucci v The Queen [2021] VSCA 340:
'Whether and to what extent social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and the severity of the disadvantage suffered and whether the effects of the disadvantage can be seen in any way explanatory for the offending'.
138The offending before me was not unsophisticated, it occurred on two separate occasions and was conducted in a deliberate fashion. I do accept you were operating under direction and in circumstances where, according to
Mr Mackinnon, your functional intelligence is at the lower end of the normal adult range.
139I also accept that these early childhood experiences were traumatic and have played a role in shaping the person that you are today. This is part of your personal circumstances, bearing in mind you are still very young, and does remain relevant to the sentencing task.
140I take it into account in this way with some limited reduction of your moral culpability.
Prospects of rehabilitation - Snowball
141I turn now to your prospects of rehabilitation, Mr Snowball.
142You also have no prior criminal history.
143You are also young and are supported by your mother, who attended your plea hearings, as did a sister and a brother. You have spent some 479 days in custody which, given the material before me, has already had some role to play as both a sanction and a deterrent.
144You also appear to be using your time wisely.
145A prisoner education summary report tells me that you have completed courses in “Investigate Driving and Owning a Car”, “Participating in Workplace Safety Arrangements”, “Learning Plan Vocational Assessment”, and you have enrolled in “Create Texts of Limited Complexity for Personal Purposes”.
146A report from Karly Doyle, Forensic, Alcohol and Other Drugs Specialist from Ontrack Counselling & Consulting, dated 11 July 2023, has been tendered on your behalf. At the time of that letter, you had attended four counselling sessions.
147You are described as engaging well and as being open and honest in your communication. You showed insight and linked your substance misuse to what you experienced in your childhood and to drugs being a source of escape for you. With Ms Doyle you were able to set goals in relation to remaining drug free and finding employment. Three urine screens, all negative for drug use, were tendered in support.
148You are currently in daily contact with your mother, Alice Bartlett, who has provided a reference. She believes that some of the choices that she made in her life have been disastrous and have impacted on both her and her children.
149When you were a child, your mother speaks of suffering domestic abuse, drug problems, mental health issues, and living in some of the rougher suburbs in south-west Sydney. She speaks of living in domestic violence shelters and hotels with drug addicts and sex workers. She recalls living on friends' floors and on the back seats of cars.
150Your mother speaks of your behaviour becoming too much for her by the time she had returned to Victoria to escape a relationship and you had turned
14 years. She sent you to live with your father in Queensland, which you did for a period of eight months, before you requested to return. When you did return, your mother took you to a local doctor and you started talking to a counsellor. There was some concern that you might have attention deficit hyperactivity disorder but she could not afford the testing process. You were kicked out of home by her more than once.
151Since you have been in custody your mother and your siblings have been affected. Your mother says you have changed and she feels closer to you than previously. You have spoken to her of your remorse for what you have put her and your brothers through and you have expressed how sorry you are for your offending behaviour. Alice Bartlett writes that your remand has been the wakeup call that you have needed. You now have a greater understanding of how your actions have consequences. She believes you have changed for the better. I do accept that you have a close and supportive relationship with your mother.
152You have written a letter of apology to the court. This was a well thought out document in which you set out circumstances in your upbringing and acknowledge your resort to drug use to help you to cope. You show insight into the negative role drugs have played in your life. You express disappointment in yourself for your offending and a desire to work towards a better future.
Youth
153With each of you being only 18 years of age at the time of the offending, your youthfulness clearly has relevance to the sentencing exercise.
154Section 3 of the Sentencing Act 1991 defines a “young offender” as an offender who, at the time of being sentenced, is under the age of 21 years. I accept that, for each of you, there should be some reduction of your moral culpability directly linked to your very young age at the time of your offending.
155In the long highly regarded decision of The Queen v Mills [1998] 4 VR 235 the Court of Appeal held that youth of an offender, particularly a first offender, as you each are, should be a primary consideration for a sentencing court and that in the case of a young offender, rehabilitation is usually far more important than general deterrence. The court also stated that a youthful offender should not be sent to adult prison if that can be avoided.
156In Azzopardi; Baltatzis; Gabriel (2011) 35 VR 43; at [34]-[36] Redlich JA made clear the reasons to prioritise youth as a sentencing consideration. These include that:
·Young offenders are immature, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;
·It is recognised by the Courts the increased potential for young offenders to be rehabilitated, which is in the public interest; and
·Incarceration can impair, rather than enhance, a young offender’s prospects of rehabilitation.
157You have each now spent a lengthy period of remand in an adult facility.
158In a general sense, the decisions to which I have referred, and other like decisions show that courts recognise that a young offender may not fully appreciate the nature, seriousness and consequences of their criminal conduct, and that there are obvious risks to the young offender and community at large if a young person is taught the ways of a criminal through adult incarceration.
159However, the courts have also recognised that there are circumstances in which the seriousness of the offending is such as to reduce or possibly even extinguish the relevance of youth.
160As Redlich JA also said in the decision of Azzopardi:
'Where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be corresponding reduction in the mitigating effects of the offender's youth'.
161The seriousness of your offending overall, particularly the events of June 2022, is such that for each of you, there should be some moderate corresponding reduction in the weight to be attached to youth in the sentencing exercise. Whilst your offending, particularly that of Indictment C2215453.1, referred to as the ‘shooting incident’, can properly be described as grave and serious offending such that deterrence, denunciation, and protection of the community loom large as relevant sentencing principles, it could not be said that, for either of you, there is no realistic prospect of rehabilitation, such that the mitigatory considerations of youth should either be ignored or extinguished.
162Whilst each of you have shown an allegiance to the background of your offending and chosen not to provide instructions as to those circumstances, your youth and mutual efforts on remand, combined with the continuing support of family, would indicate that your prospects for rehabilitation are good.
Parity
163The parity principle demands that any sentences imposed reflect differences in the culpability and personal circumstances of co-offenders and avoids unjustifiable differences in co-offender sentences.
164I accept the submission that, where you have pleaded guilty to the same offences, your roles are relatively equal. You, Murtada Alessawi, described yourself as Mr Al Harbiah's right-hand man and fired more bullets at the shooting incident, but this was in circumstances where it was said you were providing cover for Mr Snowball to return to your vehicle.
165You were each of similar age and have each had difficult events in your background. You each would appear to have the support of family and have made efforts to make positive change whilst in custody.
166Where there are like offences, I do not see any reason to impose different penalties, nor is it contended that I should do so.
Sentencing submissions
167Turning now to sentencing submissions.
168The prosecution submission on sentence is that the court should impose a head sentence with a non-parole period in relation to each of you.
169Each of your counsel contends that all applicable sentencing purposes could be achieved by the imposition of a Youth Justice Centre order. It is argued that such an order would punish whilst also better facilitating rehabilitation, which in itself allows for better community protection.
170In your case, Mr Alessawi, it is argued that a Youth Justice Centre order would reflect
(a)Your youth
(b)Childhood trauma and the impact of that trauma;
(c)Your cognitive profile;
(d)The value of your guilty plea;
(e)The hardship of adult custody given your psychological presentation;
(f)Vulnerability to the influence of negative peers;
(g)Your steps towards rehabilitation; and
(h)Totality
171I do accept that these matters are all relevant to the sentencing task.
172In your case, Mr Snowball, similar arguments are raised in support of the submission that you should be placed in a Youth Justice Centre and also specifically include:
(a)Your youth;
(b)Your personal background;
(c)Your mental health and low intellect;
(d)Your early plea;
(e)Your rehabilitative efforts;
(f)Parity; and
(g)Totality and the avoidance of a crushing sentence
173I accept that each of these matters are relevant to the sentencing task.
Assessments
174I have had you each assessed as to your suitability for a Youth Justice Centre order.
175Section 32(1) of the Sentencing Act 1991 requires that, if a sentence involving confinement of a young offender is justified, the court may make a Youth Justice Centre order if it has received a pre-sentence report and either believes that there are reasonable prospects for rehabilitation of a young offender or it believes the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in adult prison.
176A pre-sentence report has been provided in relation to you, Jaidyn Snowball. The assessor has had access to a range of relevant material. You told the assessor that you were not asked to complete the offending by anyone else, which is inconsistent with the accepted facts and a concession made by your counsel. You maintained your disinclination to discuss the circumstances of the offending, on this occasion saying you did not want to talk about it in adult prison and you had concerns for your own and your family's safety. This is, of course, a matter which cannot have any real weight in this sentencing exercise.
177You are described as having a surface level of insight in terms of the impact on your victims. Your responses were described by the assessor as scripted. Otherwise, you are described as engaging well with the assessment. You have no prior involvement with Youth Justice. You have completed a number of courses in custody, as I referred to earlier. In addition, you have been referred for assessment for eligibility to commence a buprenorphine program. You appear to have been drug free whilst in custody and you have been in regular contact with your mother, who remains supportive of you.
178You were assessed as being suitable for a Youth Justice Centre order, having regard to the requirements of s32, and I take the contents of that assessment into account.
179A suitability for Youth Justice Centre order pre-sentence report has also been prepared in relation to you, Murtada Alessawi. It is also dated 27 September 2023.
180At the time of your first and second set of offending you were apparently residing with your family, but not engaged in education or employment and were associating with negative peers and engaging in substance use. However, at the time of the third incident you were subject to supports from the Youth Justice adult supervised bail program. Apart from reoffending, you appear to have done reasonably well in attending supervision appointments and drug treatment while subject to this supervision. Your level of compliance declined in the lead-up to your offending in September 2022.
181You told the assessor that you had known Mr Snowball for several years and considered him to be a peer. You referred to your offending as being dumb, happening out of nowhere, being random and to not being premeditated. This also seems inconsistent with the agreed summaries. You said that you had limited recollection of the offending due to your drug use at the relevant time and expressed some remorse.
182You have completed a number of programs in custody and have the continued support of family. As referred to earlier, your mother and two brothers attended your plea hearing.
183You were also assessed as being suitable for a Youth Justice Centre order and I take the contents of the assessment into account.
184In determining whether to make a Youth Justice Centre order a court must also consider the nature of the offence and the age, character and past history of the offender. Your respective ages and your character and past history auger in your favour. However, I must also consider the nature of the offending which overall is grave indeed.
185Section 32(3) directs that the maximum period for which a young offender can be detained in a Youth Justice Centre is four years. A Youth Justice Centre order is not precluded by the fact that the charge of home invasion on Indictment C2215455.1 is a Category 2 offence and is an order included in Division 2 of
Part 3 of the Sentencing Act.
186You each, undoubtedly for your own reasons, will not discuss the circumstances which led to your offending. In making this comment and observation, I am not referring to the third indictment faced by Mr Alessawi. However, the decision means I have some difficulty assessing the contributing circumstances to your offending, how to address those unknown circumstances and whether this does impact on your prospects for rehabilitation. It does also have some limited impact on the assessment of the level of your remorse.
187I am firmly of the view that the major sentencing considerations, amongst others, for each of you should be focussed on the gravity of the offending, the relevance of your youth and the important principle of totality. I am of the view that the offending each of you face, particularly that on the second indictment, is so serious that the gravity of the offending and the four year restriction imposed by s32(3) results in a Youth Justice Centre order being unable to cater to the competing sentencing considerations. However, I am of the view that there remains considerable merit in an extended period of supported transition in your return to the community in order to foster and support your rehabilitation.
188Section 47(1) of the Children, Youth and Families Act refers to the power of the Adult Parole Board to transfer a person under the age of 21 years to a Youth Justice Centre if it is in the interests of that person, and after considering a report from the Secretary as to that person's suitability. For each of you, I do recommend to the Adult Parole Board that consideration be given to this power.
189I am about to turn to the sentencing exercise. Are there any matters you wish to raise, Mr Ellwood?
190MR ELLWOOD: No, Your Honour.
191HER HONOUR: Mr Smallwood?
192MR SMALLWOOD: No, Your Honour.
193HER HONOUR: Or Mr Bazzi?
194MR BAZZI: No, Your Honour.
195HER HONOUR: Thank you, all right.
196Turning firstly to Mr Snowball, Indictment C2215455.1:
Charge 1, home invasion, you are convicted and sentenced to three years imprisonment.
Charge 2, criminal damage, you are convicted and fined the amount of $1,000.
197On Indictment C2215453.1:
Charge 6, possess banned radio communication system for use, you are convicted and fined the amount of $750.
198For the remaining five charges, I propose to impose an aggregate sentence as
I am satisfied that these offences are founded on the same facts or form, or part of a series of offences of same or similar character. They certainly all relate to the same incident. For those five charges, you are convicted and sentenced to six years imprisonment.
199The total effective sentence on this indictment is accordingly six years and forms the base sentence between the indictments.
200Twelve months of the sentence imposed on Indictment C2215455.1 is cumulative on the sentence imposed on Indictment C2215453.1.
201Therefore, Mr Snowball, your total effective sentence is one of seven years imprisonment.
202I fix a period of four years and two months before you are eligible for parole and reckon 479 days as having already been served on this sentence.
203Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty I would have sentenced you to a total effective sentence of nine years with a minimum of five years and 10 months before being eligible for parole.
204I now turn to the sentence of Murtada Alessawi.
205On Indictment C2215455.1:
On the charge of home invasion, Mr Alessawi is convicted and sentenced to three years imprisonment.
On charge 2, criminal damage, you are convicted and fined the amount of $1,000.
206On this indictment, the total effective sentence is therefore one of three years and six months imprisonment.
On charge 3, attempt to pervert the course of justice, Mr Alessawi is convicted and sentenced to 12 months imprisonment, of which six months is cumulative on charge 1.
207Turning now to Indictment C2215453.1:
Charge 6, possess banned radio communication system for use,
Mr Alessawi is convicted and fined the amount of $750.
208For the remaining five charges, I again propose to impose an aggregate sentence as I am satisfied that these offences are also founded on the same facts or form, or are part of a series of offences of same or similar character, and indeed are all part of the one incident.
209For those remaining five charges you are convicted and sentenced to six years imprisonment.
210The total effective sentence on this indictment is accordingly six years, and this forms the base sentence between the indictments.
211Turning now to Indictment N12142664:
For the summary offence of commit an indictable offence whilst on bail, despite the provisions of s16(3C), given totality and a lack of relevant history, you are convicted and discharged.
In relation to charge 1, that of blackmail, you are convicted and sentenced to 12 months imprisonment.
In relation to charge 2, attempt to pervert the course of justice, the second in time, you are convicted and sentenced to 18 months imprisonment, which is the base sentence on this indictment.
212Six months of charge 1 is cumulative on charge 2.
213The total effective sentence on this indictment is one of two years imprisonment.
214Sixteen months of the sentence imposed on Indictment C2215455.1 and eight months of the sentence imposed on N12142664 is cumulative on the sentence imposed on Indictment C2215453.1.
215The total effective sentence is therefore one of eight years imprisonment.
216I fix a period of four years and 10 months before you are eligible for parole.
I reckon 378 days as having already been served.
217Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of nine years and 10 months imprisonment with a minimum of six years and four months before being eligible for parole.
218Are there any matters arising?
219MR SMALLWOOD: Sorry, Your Honour, we're just having a brief look.
220MR ELLWOOD: Your Honour, my learned friend's instructor understood
Your Honour to say 478. I heard Your Honour to say 378 days of pre-sentence detention for Mr Alessawi.
221HER HONOUR: I will just double check that, and it is quite possible. I said 378 for Mr Alessawi. Is that wrong?
222MS ELLWOOD: Yes, that - no, that is the correct figure, yes. We misheard I think, Your Honour.
223HER HONOUR: That is all right. Are there any other matters then?
224MR ELLWOOD: No, Your Honour.
225HER HONOUR: All right. I do thank everybody for their enormous assistance in this matter. I will leave you to speak with your client, you can use the link.
226MR SMALLWOOD: As the court pleases.
227HER HONOUR: And I will close the court sine die, thank you.
228MR SMALLWOOD: Thank you.
- - -
2
2
0