Director of Public Prosecutions v Almatrah
[2023] VSC 361
•7 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0382
| Director of Public Prosecutions | Crown |
| v | |
| Athar Almatrah | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 June 2023 |
DATE OF SENTENCE: | 7 June 2023 |
CASE MAY BE CITED AS: | DPP v Almatrah |
MEDIUM NEUTRAL CITATION: | [2023] VSC 361 |
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CRIMINAL LAW — Sentencing — Recklessly causing serious injury — Late plea of guilty following sentence indication — Factual basis for plea changed by agreement between sentence indication and plea – Changes minor and of no relevance to sentence — Outlaw motorcycle gang seeking revenge on a random member of a rival gang — Offender agreed to set up the victim in return for $5,000 — Offender used a fake Instagram account to lure the victim to the scene — Victim shot four times to the head and torso — Victim seriously injured but not killed — Offender aware that victim would probably be seriously injured but unaware firearms would be used — Prior good character — Very good prospects of rehabilitation — High moral culpability — Convicted and sentenced to 20 months’ imprisonment with a non‑parole period of 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E Ramsay, with Mr E Dober | Office of Public Prosecutions |
| For the Accused | Mr R Nathwani, with Ms B Kelly | Emma Turnbull Lawyers |
HER HONOUR:
Introduction
Athar Almatrah, you have pleaded guilty to one charge of recklessly causing serious injury. The maximum penalty for this offence is 15 years’ imprisonment.
Circumstances of the offending
At the time of your offending, you were in a relationship with HA,[1] a member of the Finks outlaw motorcycle gang (‘Finks’). On 10 July 2019, a member of the Finks was shot in the foot by an associate of the Mongols outlaw motorcycle gang (‘Mongols’), leading the Finks to seek revenge on a random member of the Mongols.
[1]Certain names have been anonymised and minor redactions made so as to comply with existing suppression orders.
You knew a member of the Mongols, Rocco, the victim in this matter. You were friends on Instagram and had seen him wearing his club vest. You were asked whether you could set the victim up for the Finks and you agreed to do so for $5,000. It was agreed that you would create a fake Instagram account in order to connect with the victim and achieve the set up.
The date of the agreement is unknown, but it is accepted it occurred very shortly prior to its implementation, likely around 29 July 2019. On 30 July, you amended an existing Instagram account into the fake name of ‘Sarah Ricardo’, changed the profile information and uploaded photographs. During the afternoon, ‘Sarah Ricardo’ sent a request to follow the victim on Instagram. The victim sent a screen shot of the Ricardo Instagram account to your real Instagram account, seeking confirmation that you knew Ricardo, as the victim suspected the account was fake. You confirmed that Sarah Ricardo was a real person and a ‘good girl’. The victim then accepted the follow request.
At some point, you were provided with the address of 61 Bourke Street, Bulleen, where you were to lure the victim. Over the next couple of days, ‘Ricardo’ continued to chat with the victim and send flirty messages. At approximately 9:00pm on 31 July, ‘Ricardo’ accepted an offer from the victim to meet for coffee.
From around 5:50am on 1 August, you continued to chat with the victim, using the fake ‘Ricardo’ account. At 1:44pm, the victim told ‘Ricardo’ that he could not meet for coffee and suggested meeting on the weekend instead. The chatting continued. At 5:16pm, ‘Ricardo’ invited the victim for dinner at her house. He declined the offer, commenting that she was keen to meet. You, as ‘Ricardo’, continued to send flirty and flattering messages to the victim, and at 8:59pm ‘Ricardo’ told him that he should come and see her and say a quick hello before she goes to bed. ‘Ricardo’ then sent the victim the Bulleen address and told the victim to let her know when he was on his way. He replied ‘Done xx’ and ‘Leaving now x’.
You then sent a message to HA stating that the victim was on his way.
HA was with another Finks member, Opapo, when he received your message. They travelled together in a black BMW and met with three other members — Sua, Hokafonu and Sita — who were travelling in a silver BMW. The two vehicles formed a convoy and travelled to the Bulleen address. At 10:07pm, the victim arrived at Bourke Street, Bulleen, believing it to be ‘Ricardo’s’ address. He remained in his vehicle and at 10:08pm, he messaged ‘Ricardo’ saying he had arrived. You responded at 10:09pm and said, ‘I’m coming out’. You then immediately conveyed the message that the victim was there.
The victim parked in Bourke Street, and almost immediately, the silver BMW stopped abruptly at an angle in front of his vehicle. Hokafonu and Sua exited the BMW and opened fire. Twelve shots were fired from two 9 mm handguns, with six shots hitting the windscreen and four shots hitting the victim in the torso and head. The members left immediately in the silver BMW, which was later doused with petrol and set alight. All five members then regrouped in the black BMW and drove away, with HA in the passenger seat. The five men believed the victim had been killed.
At 10:12pm, the ‘Sarah Ricardo’ Instagram account was logged out of and deleted from your IP address. These actions were performed from your home address in Werribee. You spoke with HA by telephone at 11:13pm, wanting to know what had happened. HA hinted that something had happened, but did not tell you the victim had been shot and killed. You asked HA if he had your money and when you would be paid. He told you that it was the Finks, not him, who had promised you payment.
The victim, in fact, had not been killed. After being shot, he managed to drive a short distance, get out of his car, collapse briefly in the front yard of a nearby house, and then attend at the front door and request assistance. An ambulance was called and he was taken to the Royal Melbourne Hospital. He remained an in‑patient for 24 days. He required multiple surgeries and other medical interventions as a result of a bullet wound to his head, and bullet entry wounds to his neck and upper back.
You continued your relationship with HA, including going away together to Gippsland for a weekend in early August 2019. While there, HA told you that the victim had been shot and they believed they had killed him. After learning this, you continued to ask HA when you would be paid the $5,000. He told you to take it up with ‘the Club’.
On 13 August 2019, police attended at your home address, seeking to ascertain if Sarah Ricardo was a real person or a fake Instagram account. You told police that she was real, and that she was your cousin who had recently moved from Sydney to Melbourne. After this visit from police, you became more insistent about the fact you had not been paid.
By December 2019, you had still not been paid by the Finks. On 23 December, your mother told you police wanted to speak to you about an incident concerning HA, where someone had been smashed or shot, but they did not die. You contacted your sister and explained police had been at your house asking questions. Your sister was also dating a member of the Finks, and you said you needed her boyfriend’s help to get in contact with HA. You told your sister that HA was ‘a low cunt, he asked me to do something, so I did something’.
On 3 January 2020, search warrants were executed at your residential address, together with the residential addresses of HA and Hokafonu. You were interviewed, made a statement and released pending further inquiries. On 10 November 2020, you were again arrested and interviewed. You told police that you had created the fake Sarah Ricardo account at the request of HA, and had pretended to be Ricardo while interacting with the victim, luring him to 61 Bourke Street. You said you had acted on behalf of HA and updated him with the victim’s location on 1 August. You said you did not know why you were luring the victim to the address, and you did not know that he was going to be shot. You said you had neither asked for, nor been promised, payment by the Finks for your role. Following this interview, you were charged and remanded. You remained in custody for 43 days before being granted bail.
By your plea of guilty to recklessly causing serious injury, you admit that you knew the victim would probably be seriously injured. You knew there was to be some sort of revenge attack on the chosen Mongols member, but the prosecution concede that you did not have knowledge of the use of firearms or the shooting.
Co-accused
HA pleaded guilty to one charge of recklessly causing serious injury. [Redacted]. Hokafonu, Sita and Opapo were acquitted and the proceeding against Sua (who had been granted a separate trial) was discontinued.
Victim impact
The victim did not give evidence at the trial of the co‑accused and has declined to provide a victim impact statement.
Sentence indication
Your trial was due to commence in this Court on 20 February 2023. Shortly before this, you sought a sentence indication on the single charge of recklessly causing serious injury, and on 16 February I indicated that if you pleaded guilty to that charge, the sentence I would impose would be a head sentence of 20 months’ imprisonment with a non‑parole period of 10 months. You were then arraigned and pleaded guilty. The facts were agreed for the purpose of the hearing. I did not expect they would alter, but by agreement, they did. Your counsel submitted the revised factual basis was more favourable to you than the factual basis presented at the sentence indication hearing; therefore, it is necessary to address the differences and whether they are of substance.
Originally, it was said you were on a conference call between HA and another Finks member, Newey, and became aware that the Finks were attempting to find a Mongols member to seek revenge. You told them that you had a Mongols member in your Instagram feed, and offered to lure him to a location where the ‘revenge act’ could occur in return for $5,000. In my view, whether you overheard and volunteered, or were asked by HA and agreed, makes little difference to the objective gravity of your offending or your moral culpability. Either way, you were a willing participant; you knew you would be setting up the Mongols member for the Finks’ revenge act, and you agreed to do that for $5,000.
In the summary prepared for the sentence indication hearing, it was said that on the night of 31 July 2019, a group chat was set up on the encrypted platform Signal, made up of Sua, Sita, Opapo, HA and Newey. HA added you to the group so you could keep them updated on the victim’s location. At the sentence indication hearing, the prosecution conceded that they could not say who exactly was communicating with you from that group, and it may have just been one person that was sending you the messages about time and place. This is really no different from the current agreed facts, in which it is said you were communicating only with HA as to where to lure the victim, and the victim’s whereabouts.
Your counsel submitted the significant difference is that you were only communicating with your then‑boyfriend HA, a person with whom you were wholly besotted, making you vulnerable and willing to engage in this conduct without considering the consequences. However, in my view, your decision was mostly a transactional one. I deal with this further below when addressing the psychological report of Mr Newton.
Personal circumstances
You are now 32 years old and have no criminal history, save one very minor matter which is of no relevance when sentencing you today. Your parents immigrated from Lebanon, and you were born in Melbourne. You have one older sister and two younger brothers. Your father was mostly absent from your life and often away from home. Your parents separated when you were a teenager, and you and your three siblings remained living with your mother. Your father remarried and has other children, and you have been effectively estranged from him since he left. According to your counsel, you have had a distant relationship with your sister for 10 years, although I note that you called your sister in December 2019 when you were trying to contact HA.
You grew up in the western suburbs of Melbourne and attended both primary and high school. You enjoyed school and had no particular difficulties or issues. However, from about Year 10, you gravitated towards the more disaffected students, and began to drink alcohol and smoke cannabis in their company. Your attendance and academic performance declined, and you elected to transfer to the VCAL program for Years 11 and 12. You successfully completed VCAL.
You have a history of abusing both alcohol and drugs, particularly cocaine, which continued until you were aged around 30. Your alcohol and drug use centred around weekend social events. I am told that you now rarely drink alcohol and do not use any illegal drugs.
After leaving school, you initially worked in retail, followed by time in a call centre and as an accounts manager. You have a strong work ethic and have always been employed. You are currently employed as a traffic controller and have been in this role for approximately three years. Your employer is aware of this offending and the sentence indication I gave. She remains supportive and, if you are gaoled, your employment will still be available upon your release. You are in a long‑term stable relationship with Mr Biondino, with whom you live. Mr Biondino is a positive influence in your life. You are close to your mother and brothers, and if you have spare money after your expenses are paid, you give it to your mother who is the registered carer of your ill grandmother.
Six character references were tendered on your behalf, including from your Manager, Team Leader and two work colleagues. They were all shocked to learn of this charge. Collectively, they describe you as kind, caring, generous, hard‑working and thoughtful. Clearly, you are a valued member of your work team and they all remain supportive of you. A reference provided by an old friend says the charge is out‑of‑character for the person he knows you to be, and describes you as caring and generous. He says you are concerned by the impact your conduct has had on your family and close friends.
After this incident, you found yourself in an unfamiliar and intimidating world. You were anxious about the police investigation, and the Finks were watching you to ensure you could be controlled. You were initially taken to their lawyer, and they took the DVD of your first police interview to check you said ‘no comment’. A reference was provided by your current partner, Mr Biondino. You have been together since about February 2020. He says he has witnessed you develop anxiety and mental health struggles due to your legal situation, but you have remained hard‑working and motivated to work on your physical and mental health. He remains very supportive, and you and he are looking forward to getting married and building a family together.
A psychological report of Mr Patrick Newton dated 16 May 2023 was tendered on your behalf. You told Mr Newton that you met HA through a mutual friend. HA did not initially tell you that he was affiliated with the Finks and married — two matters you learned about after the relationship had commenced. You described HA as controlling and prone to jealousy, and alleged he was physically and verbally aggressive toward you on occasion. Your counsel noted that in some of the telephone intercept material, he referred to you in very derogatory terms. You told Mr Newton that you generally ‘just did what he wanted’. You said that you have a history of being involved in toxic and controlling relationships. Contrastingly, you described your current relationship as loving; Mr Biondino has your best interests at heart and keeps you ‘grounded’.
You told Mr Newton that you have a significant family history of depression which has required medical treatment, but such treatment has been of equivocal assistance, leaving you reluctant to access help when faced with emotional upheaval. Mr Newton found you are currently experiencing anxiety; the key cause is your concern about being returned to custody. When on remand, you struggled with the prison environment and found it difficult to adjust. You are fearful of being returned to prison, and worried you may be targeted by elements within the prison due to your cooperation with authorities. You expect to be held in protection, which will make your time in prison particularly restrictive. You also worry about your family’s safety and the impact of custody on your relationship, despite Mr Biondino’s reassurances that the relationship is secure. In Mr Newton’s opinion, your level of anxiety is ‘somewhat in excess’ of that normally evident in individuals assessed in such situations, and your symptoms are sufficiently severe to meet the diagnostic criteria for adjustment disorder with anxiety. There is ‘some risk’ that your condition could deteriorate in prison, and he considers it prudent that you access professional assistance. I note that while on remand, you consulted a prison psychologist and found that helpful.
Mr Newton found your personality is characterised by a sensitive and rather dependent approach to relationships. You form connections very quickly, and seek to avoid conflict. At your best, you are a loyal and caring friend who is adept at keeping the peace. However, the same traits can be maladaptive, meaning you are likely to be vulnerable to exploitation in some contexts. This risk has been increased by your engagement with problematic social groups.
Mr Newton said you provided him with a version of events that ‘stressed the role played by HA in directing [you] to undertake the various actions in connection with the incident’. You wrote that you take full responsibility, although say you were ‘easily manipulated by [your] then partner’. You described yourself as ‘very naïve’ and angry that you let yourself be persuaded to do what you did. You wrote that you are extremely remorseful, deeply embarrassed and ashamed by your involvement, and will never understand the suffering you caused the victim and his family. There is nothing you regret more in your life, and you think about it every day.
You provided a letter to the Court expressing similar sentiments. You wrote that you wish you had not been so naïve; you are truly sorry for your dangerous and irresponsible actions; you reflect daily on your ‘poor behaviour’ and ‘poor choices’; you understand your actions have had serious consequences and have caused great harm; and you wish you could apologise to the victim, but recognise that would not be appropriate.
The issue of remorse was raised at the sentence indication hearing, as I observed that none of the character references evidenced remorse. Your counsel indicated that your solicitor had advised the referees that they should not include matters that could be used adversely against you, should the matter not resolve and the trial proceed. I doubt that could occur,[2] but I accept what your counsel said. No additional or amended references were tendered on the plea.
[2]Pursuant to s 209(5) of the Criminal Procedure Act 2009, an application for a sentence indication and the determination of the application are not admissible in evidence against the accused in any proceeding. I consider, without deciding, that an ‘application’ would include all material tendered on behalf of an accused in support of the application.
Expressions of remorse that appear late, and a long time after the offending, are rightly viewed by the courts with circumspection.[3] I accept that you have some regret and remorse, but it has appeared very late. It is somewhat tempered by your account of being persuaded and manipulated by HA. Whilst I accept the opinion of Mr Newton that you are vulnerable to exploitation and making poor interpersonal decisions, there is no evidence that suggests you were manipulated or pressured into making this agreement. Rather, it was transactional — you identified that you knew a Mongol, and agreed to set him up for $5,000, which would be paid by the Finks. Mr Newton did not address the fact that you were to be paid for your role in this offending. Further, you wrote that you were in ‘complete shock’ when you learned the victim had been shot, and prayed every day for his recovery. That may be, but you also continued to demand payment for your role in the incident. Your remorse is relevant, but it does not displace the need for the gravity of your offending to be reflected in the sentence.[4]
[3]Remorse is generally given less weight the later it appears, see R v CJK (2009) 22 VR 104, 107 [23] (Warren CJ).
[4]Lane v The Queen [2017] VSCA 289, [42].
Other matters
You have pleaded guilty and this entitles you to a meaningful sentencing discount. Whilst your plea was entered at a very late stage, you were indicted on more serious charges.[5] Your guilty plea is evidence of some remorse, and reflects an acceptance of responsibility by you for the part you played in this crime. It has facilitated the course of justice and avoided the need for a criminal trial. Additionally, given the overall backlog in the criminal justice system caused by the COVID‑19 pandemic, a guilty plea continues to attract an additional utilitarian benefit which must be adequately reflected in sentencing.[6]
[5]The charge of attempted murder was abandoned after committal, but charges of intentionally and recklessly causing serious injury in circumstances of gross violence remained. The charge to which you pleaded would have been an available statutory alternative, had your trial proceeded.
[6]Worboyes v The Queen [2021] VSCA 169, [35], reaffirmed in Papagelou v The Queen [2022] VSCA 53, [28].
Your counsel submitted your plea should be considered in light of the fact that you had ‘positive prospects of an acquittal’. [Redacted]. On the material I have, there is objective evidence that you set up, controlled and then deleted the fake Instagram account.[7] You also made certain admissions in your record of interview. In my view, there is nothing here that attracts an additional discount over and above that which a plea of guilty usually attracts when an accused might well have a viable defence.[8]
[7]The Instagram account which you changed to create the ‘Sarah Ricardo’ profile was linked to an email address in your name. The changes were made from an IP address linked to your Foxtel account and registered to your home address. The account was logged out of and deleted from your IP address.
[8]See DPP v O’Bryan [2014] VSCA 54, [28]; cf R v Doran [2005] VSCA 271, [14], wherein Buchanan JA referred to the need for a ‘demonstrable discount’ where the appellant, quite voluntarily and without any pressure from authorities, provided the prosecution with all the evidence necessary to convict him of crimes that most likely would otherwise have gone undiscovered.
You were remanded into custody during the COVID‑19 pandemic at a point when conditions were much more difficult and isolating, due to the resulting restrictions and quarantine periods, and I take that into account by way of mitigation. I also accept that you will likely be held in protection when in prison, as your involvement in this matter places you at risk of retribution. The conditions will be more restrictive and onerous than if you were a mainstream prisoner, and that factor mitigates the sentence I would otherwise impose. It is clear you did not find prison easy when you were remanded, and each day you are there represents real punishment.
Your counsel submitted you have been subject to onerous bail conditions since December 2020, which is an additional matter in mitigation. He relied on the decision of R v Webb.[9] In that case, the appellant’s bail conditions prohibited him from leaving home except to attend his father’s work premises with his father; report to police; or attend court or medical appointments. The Court stated that it is undoubtedly open to a sentencing judge to take into account onerous conditions of bail when determining sentence, but the judge is not obliged to do so.[10] Here, your bail conditions were of the type routinely imposed when a person has been charged with a serious offence, including a 9:00pm to 5:00am curfew that was in place for the first seven months. In my view, your bail conditions were not particularly onerous and are not a mitigating factor.
[9](2004) 149 A Crim R 167.
[10]Ibid 170 [18].
The offending occurred in mid-2019, and in November 2020 you were charged with charges including attempted murder. A contested committal was held between July and December 2021. The Crown communicated that they would accept a plea to a charge of recklessly causing serious injury as the ‘bottom line’ on 3 December 2021, but there was no resolution and the matter was listed for trial in February 2023. While overall this is not a lengthy or unusual delay, as a matter of fairness, the sentence should reflect that you have experienced real anxiety and uncertainty as a result of having this matter hanging over your head. Further, since being released on bail, you have demonstrated that you have very good prospects of rehabilitation. You have remained offence‑free; enjoyed a stable relationship; worked hard; and complied with your bail conditions. This is all to your credit, as is your otherwise good character; specific deterrence has little work to do when sentencing you.
I turn now to the seriousness of your offending. You were complicit, at least with HA, in setting up the victim for a revenge attack by a rival outlaw motorcycle gang. You played an essential role over two‑and‑a‑half days. Whilst that is not a lengthy period, this was not spontaneous or short‑lived offending. You did not know there would be firearms involved or that the victim would be shot, which reduces the seriousness of what is nonetheless serious offending. Your moral culpability is high. You knew when you set the victim up that he would probably be seriously injured, but you agreed nonetheless to do it for the sum of $5,000.
In sentencing you, it is necessary to publicly denounce your conduct and punish you for your offending. General deterrence — that is, the need to send a message to other would‑be offenders — is also relevant here. If you engage in conduct such as this, you should expect to go to gaol. I accept there are substantial matters in mitigation, including that you have a proven period of successful rehabilitation, and returning you to custody at this time will interrupt your progress. Nonetheless, giving full weight to parsimony and all matters favourable to you, it remains my view that the sentence I indicated in February is the appropriate sentence in all the circumstances.
On the charge of recklessly causing serious injury, you are convicted and sentenced to 20 months’ imprisonment. I fix a non‑parole period of 10 months’ imprisonment.
I declare you have served 43 days by way of pre‑sentence detention, and such period is reckoned as time already served under this sentence.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that, but for your plea of guilty, the sentence I would have imposed is three years’ imprisonment and I would have fixed a non‑parole period of two years’ imprisonment.
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