Director of Public Prosecutions v Almatrah

[2024] VCC 794

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02188

CR 22-02189

CR 22-02190

CR-24-00204

DIRECTOR OF PUBLIC PROSECUTIONS

V

BILAL ALMATRAH

ADEM ATES

OMAR KHODR

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2024
DATE OF SENTENCE:	30 May 2024
CASE MAY BE CITED AS:	DPP v Almatrah
MEDIUM NEUTRAL CITATION:	[2024] VCC 794

REASONS FOR SENTENCE

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Subject: Criminal law - sentence

Catchwords: Three offenders each pleaded guilty to two charges of common assault, two charges of false imprisonment and one charge of robbery  - complicity- - two offenders also pleaded guilty to summary offences – planned vigilante retribution - two teenage victims – pursued and assaulted in street – demands for money – minor injuries -    one offender relevant criminal history – other offenders no criminal history – parity -

Legislation Cited:      

Cases Cited: Brown v R [2017] VSCA 268; Boulton v R [2014] VSCA 342; Verdins v R [2007] VSCA 102

Sentence: Almatrah – 12 months imprisonment with 2 year CCO; Khodr and Ates – 3 year CCOs .  Ates CR-22-02189 – with conviction $500 fine

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Robins	Office of Public Prosecutions
For Accused Almatrah	Mr C. Farrington	Theo Magazis & Associates
For Accused Ates	Ms K. Rolfe	Chester Metcalfe & Co.
For Accused Khodr	Ms A. Liang	Giorgianni & Liang Lawyers

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HER HONOUR:

1Bilal Almatrah, Omar Khodr and Adem Ates have each pleaded guilty to two charges of common assault, two charges of false imprisonment and one charge of robbery.  The charges are put on the basis of complicity.  Almatrah has pleaded guilty to a summary charge of failing to comply with a direction to provide access to his mobile phone.  Ates has pleaded guilty to a summary charge of possessing a prohibited weapon, namely a taser.  Ates has also pleaded guilty on a separate indictment  C2215374.2 (CR-22-02189) to possessing a drug of dependence.  An overview of the case is provided in the prosecution opening at paragraph 1, stating as follows:

Offending

2On Saturday afternoon, 9 April 2022, two teenagers, Mr Riyazati aged
16 and Mr Seyed, aged 17, were assaulted and falsely imprisoned by the three accused.  Almatrah and Khodr robbed Riyazati of $1,200 and his mobile phone.  Ates is also charged with robbery of that cash. 

3The teenagers had met Khodr the day before, 8 April, and sold him a counterfeit Apple watch for $450.  Later that day, Ates and Khodr exchanged text messages indicating their intention to catch the culprits. A further text message between Ates and an unknown person referred to the address at Penhall Drive, Craigieburn which is the location of the incident giving rise to the charges.

4On 9 April, the teenagers were walking along Penhall Drive, Craigieburn when Riyazati saw a white Mercedes Benz sedan, registered BOK 173 parked in the street.  The three offenders got out of the car and approached the teenagers.  They then ran towards them, and the teenagers started running away.  Seyed was tackled into a bush by Ates and Riyazati was cornered by Almatrah and Khodr.  Khodr grabbed him by the collar of his jacket.  Almatrah punched Riyazati in the stomach and then Khodr punched him.  That is Charge 1.

5Khodr dragged Riyazati by his jacket towards Seyed.  Almatrah ran to Seyed who was being punched by Ates.  That is part of Charge 2, common assault of Seyed.  Both men asked Seyed repeatedly, 'Where's the money' referring to the sale of the i-watch the previous day. 

6Khodr and Almatrah grabbed Riyazati by his top and put him on the ground.  Khodr punched him on the right cheek and one man punched his left temple.  Riyazati tried to defend himself, holding his arms in front of his face as one offender punched and kicked him, while another kicked him in the stomach.

7A witness, Mr Moshi, saw the assault through the window of his house and filmed part of the incident on his phone.  Meanwhile, Ates was punching Seyed and Almatrah was stomping on him.  This is part of Charge 2, the common assault of Seyed.  As I said earlier, these assault charges are put on a complicity basis by the three accused. 

8Khodr grabbed Riyazati by the collar and stated: 'I want my money back.'  Riyazati offered to make a transfer of funds to which Khodr replied, 'Not transfer, just cash.'  He then walked Riyazati towards the Mercedes and forced him into the back seat.  Riyazati complied, believing he had no other option because there were three offenders.  Meanwhile, Almatrah pushed Seyed into the back of the car and got into the front passenger seat.  Khodr got into the back.  The teenagers were told they were going to get a beating and Almatrah said:

'You guys scammed my little brother.' 

9The Mercedes sped off driven by Ates.  Moshi heard a voice yell, 'Let me out' as the car pulled away.  Moshi then called Triple 0. 

10In the car, Khodr grabbed an i-Phone 13 from Riyazati and gave it to Almatrah who unlocked it using Riyazati's face ID.  After some time, driving, Almatrah found Riyazati's address and his father's phone number in the phone.  He called Riyazati's father and demanded he: 'Bring cash outside.' 

11Riyazati's father does not speak English well and Almatrah hung up.  He kept turning around from the front passenger seat, punching Seyed.  He told Riyazati that they were going to his house to get $1,500.  The forcing of the teenagers into the car gives rise to Charge 3 and 4, false imprisonment of Riyazati and Seyed, again on a complicity basis. 

12They parked near Riyazati's home and Almatrah got him to show him how to enter his, Almatrah's phone passcode and iCloud password.  Almatrah then reset the phone for his own use.  He told Riyazati not to tell the cops or anyone and to be back in five minutes. 

13Riyazati went to his house, collected $1,200 cash, and came back to the Mercedes.  He handed the cash to Almatrah who then told Seyed to get out of the car.  The Mercedes drove off.  This is Charge 5, robbery of money and the phone, again on a complicity basis as between Almatrah and Khodr.

14Charge 6 is the charge of robbery against Ates but limited to the money. 

15Later that day, Riyazati went to a police station and reported the incident.  He suffered a swollen right cheek and bruising to his face.  Seyed provided a statement of no complaint to police on 11 April 2020. 

Arrest

16Almatrah's house was searched on 13 May, and he was arrested.  An i-Phone belonging to Riyazati was seized and Almatrah failed to comply with the direction to provide access to the phone.  That is summary Charge 7. 

17Ates was arrested the same day and two phones, an Apple i-watch and a taser were seized.  That is summary Charge 6, possession of a prohibited weapon. 

18On one of the phones, police found text messages and photographs referring to the co-accused and the events of 9 April to which I referred earlier. 

19Khodr was also arrested on 13 May and an i-watch and iPhone were seized.  Each offender gave a no comment interview when arrested. 

20I turn now to the separate indictment against Adem Ates, charging him with one charge of possessing drugs of dependence to which he also pleaded guilty.  It is a rolled-up charge covering MDMA, cocaine, methylamphetamine and ketamine, found when the police searched his house on 13 May 2022, the day of his arrest.

21The quantities were 0.3 grams in each case, except MDMA, that quantity being 23.1 grams.  The prosecution does not allege that this offending was committed for any purpose relating to trafficking. 

Maximum penalties

22It is convenient at this point to set out the maximum penalties for the offences.  For common law assault, five years, for false imprisonment 10 years, for robbery 15 years.  For possession of a drug of dependence, 30 penalty units or one year imprisonment.  For summary Charge 6, a fine of 240 penalty units or two years' imprisonment, for summary Charge 7, two years' imprisonment. 

Gravity of the offending

23The charges of assault, false imprisonment and robbery are serious offences, in the context here of vigilante-style acts against teenagers.  The assaults were callous and frightening and together with a threat inherent in taking the boys away in the car, they amounted to serious examples of false imprisonment, even without the presence of weapons which would make it more serious. 

24The seriousness can be inferred, if only by the boys' appearance in the photograph of them in the back of the car and the photographs showing the size of the offenders indicating that they were older and physically mature adult men.

25The injuries inflicted were not serious, but considering the likely force inherent in kicking and stomping as described by the victims, this could have resulted in serious injuries. 

26As to the robbery, a large amount of money was demanded from the victims, about three times that which was considered owing.  This indicates an intention to punish in addition to recouping their money.  The money was never returned to the victims. 

27The offenders went further and involved the father of Riyazati.  One of the defence submissions was the fact that the boys were driven to Riyazati's home, and not some unknown location, lessened the fear the boys would have had, but it would have been equally as frightening, if not more so, given the violence already experienced. 

28There was clear evidence that the incident was planned and that the three men were going to confront the teenagers and knowing that only one of them Khodr, would have been recognised by them, the other two being strangers.  The initial significant violence in the street was followed by the threat of further violence in the car and then actual violence while driving by Almatrah against Seyed. 

29The police later found text messages between Ates and an unknown person after the incident confirming that the confrontation against the boys had been successfully carried out. That is further evidence of the planning of the incident.

The plea hearing

Bilal Almatrah

30I turn now to the plea hearing, and I will deal first with the offender, Almatrah.  Mr Almatrah, almost a year ago you sought a sentence indication from me which warrants mentioning at this stage because you were then facing charges of kidnapping, which is a Category 2 offence under the Sentencing Act, meaning in effect that the offender must serve an immediate prison sentence unless he falls within an exception under s52H of the Sentencing Act, and you did not meet that applicable test. 

31I indicated that your prospects for rehabilitation and other matters were likely to take you in the direction of a combined prison term and Community Correction Order.  You are 29 years old and at the time of the offending, you were 27.  You were born in Melbourne of Syrian and Lebanese descent.  You attended several schools and completed Year 12 but without an ATAR score.  You were an average student and skilled at sport.  You excelled in football and played for a top State Under 18 team occupying leadership roles, and you were consistently made captain of your team.  You were one of the best 22 players Under 18 in what is called Vic Metro.  You were later given a place in Essendon's VFL list.  You had wanted to play for the AFL but in your first VFL season, you suffered a very bad back injury which prevented you from ever playing football again.  At the same time, you completed a personal training certificate, but you never worked in that industry. 

32Instead, you worked for your father for four years, managing his restaurants.  You then drove trucks for eight months until COVID-19 restrictions prevented this, following which you worked part time for your father, and as a concreter.  More recently, you have been working in the construction industry where you see your future lying, and indeed you have set up a business in that field with a project to proceed when you are free to do so. 

33You are in a stable relationship with your partner, having delayed marriage because of this case, and you have the strong support of your family of origin and extended family.  You are well regarded by them and by friends and those who know you well according to the references provided.  In particular you work as a volunteer helping women who are escaping domestic violence.  They also speak of your remorse and regret and commitment to change. 

34Your criminal history dates back to 2014 when you were aged 19 and were placed on a CCO for drug trafficking and drug possession.  Later, in 2014, you were again before the Magistrates' Court for a charge of recklessly causing injury, but no conviction was recorded; 2015 saw you back in court and dealt with for breaching that CCO and some other charges which did not result in conviction.  You were given considerable leniency during those years, likely to have been in recognition of your youth. 

35On 16 October 2020, you were sentenced to prison for the first time for four months for a number of driving charges, the most serious of which was reckless conduct endangering serious injury.  It appears that this involved a low-speed police pursuit.  In 2021, you were fined for a number of driving charges including a third conviction for driving whilst disqualified.  You then committed the current offences in 2022. 

36I have set out some of those details of your offending history because it indicates a poor attitude to authority and a disregard for the safety of others with indications of anti-social behaviour as a younger man.  It throws doubt on your prospects for rehabilitation which I shall return to. 

37A report from a forensic psychologist, Catherine Stipis, dated 1 June 2023, describes your early offending as coinciding with your football injury and the resulting lack of direction in your life.  In your teens and early 20s, you abused drugs for some years but overcame it and now you use prescribed cannabis for back pain. 

38You told Ms Stipis that you have never had any mental health issues, and this was borne out by tests administered.  You told her that generally your life was stable.  She concluded that:

'There is no significant personality dysfunction or clinical symptoms which would affect your current behaviour and functioning.' [1]

[1][1] Report of Catherine Stipis dated 1 June 2023, at [106]

39As to risk assessment, Ms Stipis noted that you did not present with any entrenched violent attitudes, and you denied any anti-social or criminal affiliations or memberships.  On the other hand, she noted that the offending appears to be an escalation in violent behaviour, and that a finding of guilt would suggest the need for an exploration of the factors causing it by a forensic psychologist.  Nonetheless, she considered you are at low risk of future physically violent offending. 

40You wrote a letter to the court, dated last June, before you pleaded guilty.  You were not in a position then to express any remorse for the offending, but you stated that you knew how serious the charges were and you sought to explain your early offending in terms of the cessation of your football career and the use of drugs. 

Sentencing issues

41My broad comments about sentencing issues in this case related to each offender in the same way.  An appropriate sentence for each of you must take into account the principles of general and specific deterrence.  The starting point in respect of general deterrence is the serious nature of the charges in the context of vigilantism. 

42The higher courts have condemned behaviour which resorts to taking the law into one's own hands as all of you did.  You each set aside any scruples, and knowing it was wrong, you used your greater physical power and numbers to terrify and hurt the two boys and accordingly, your moral culpability is high.  Others who might feel justified in pursuing a grievance against someone need to know that they will be severely punished in the interests, not only of deterrence, but also protection of the community. 

43You have each pleaded guilty the day before the trial was listed to begin, and have thus avoided a trial and spared witnesses from having to give further evidence.  I note in that regard, that Mr Riyazati was cross-examined by defence counsel at the contested committal in November 2022. 

44It was submitted that although the plea was entered so late, it was in effect an early plea because the indications were, in October last year, that you would each plead guilty to false imprisonment instead of the kidnapping charges, which were on the original indictment.

45You are each entitled to a discount on your sentence because of the plea and its assistance to the criminal justice system in avoiding a trial, and I also accept it as demonstrating remorse to some extent.  I was referred by the learned prosecutor to three sentences bearing some similarities with this case, and I have given each consideration.

46In Brown v R[2], a two-year sentence was imposed for a charge of false imprisonment as part of a total effective sentence of five years and six months, with a non-parole period of three years and eight months.  The offender was on a four-year Community Correction Order at the time of the offending imposed for similar serious violent offending with similar previous convictions. 

[2] [2017] VSCA 268

47The overall circumstances were more serious than is the case here, even when the vulnerability of the victims is taken into account.  The manner in which I take specific deterrence into account, depends on your individual circumstances. 

48At this stage, Mr Almatrah, I will indicate that your co-offenders will each be placed on a community corrections order.  It has been accepted for some years now, since the guideline case of Boulton v R[3] that an appropriately structured Community Correction Order can amount to adequate punishment and deterrence in cases where there needs to be a strong focus on rehabilitation and where imprisonment can be avoided or limited.  It is punitive because of the mandatory conditions that are imposed in addition to those tailored to the case.  It is onerous because it intrudes into the life of the offender and places serious obligations on them.  It is a viable option to imprisonment where those more severe restrictions are not necessary. 

[3] 2014] VSCA 342;

49The principle of parity as between the three of you is to be taken in account but the most significant difference between you and the other two offenders is your criminal history, because that should be regarded as reducing your prospects for rehabilitation.  It is why I shall be imposing a combined prison sentence and Community Correction Order in your case. 

50Your counsel, Mr Farrington, submitted that your prospects were good, rather than guarded as advanced by the prosecution.  It is sometimes said that reasonable prospects fall somewhere between good and guarded, and that is probably the case here. 

51A common feature of submissions made by the prosecution, was that convictions should be recorded in view of the gravity of the offending and the nature of the charges, taking into account the need for denunciation and community protection against vigilantism.  Mr Portelli submitted on behalf of Mr Khodr that convictions not be recorded to avoid compromising his opportunities for advancement generally in future.  I agree with the need for recording of convictions, and I will make those orders. 

52A further common feature of each plea in mitigation is that of delay.  The offending occurred two years ago and each of you has had the case hanging over your heads for that time, regardless of the causes of that. I take that into account.

Sentence of Almatrah

53Mr Almatrah, I sentence you to 12 months' imprisonment for each of Charges 1 to 5 inclusive and three months for the summary charge numbered 7.  These sentences are to be served concurrently with each other resulting in a total effective sentence of 12 months.

54You have been assessed as suitable for a Community Correction Order.  It will begin after you have served that sentence, and it will last for two years.  Convictions will be recorded.  You will be under supervision and must perform 200 hours of unpaid community work. 

55You must be assessed for treatment for drug abuse and must take part in any programs to which you might be directed to reduce the likelihood of  re-offending.  The hours you spend in those programs may be credited against the work hours.  You must report to the Corrections office at Broadmeadows within two working days of your release from custody. 

56Pursuant to s6AAA, if you had pleaded not guilty to these charges, I would have imposed a prison term of two years with a non-parole period of 18 months.  

Omar Khodr

57I now come to Mr Khodr.  Mr Khodr, you are a 29-year-old man born in Lebanon who migrated to Australia with your parents when you were about 11 to escape the 2006 war.  As your father had previously lived in Australia and had dual citizenship, he was able to take the family to Australia at this time.  Your mother was his second wife, and you grew up with a brother as well as three half-siblings from the first marriage.  You completed school to Year 12 and began a university course in Civil Engineering but did not enjoy it, so you left, and after some transitional employment you commenced an electrical apprenticeship. 

58You have remained employed in that field and you have recently started your own air-conditioning business.  Last December, you married Maryam who is a recent law graduate.  You have never had any issues with drug or alcohol use, and you have no mental health problems.  You have no previous criminal convictions.

59I am told that you have accepted full responsibility of your actions in the offending and according to the material before me it would appear that the offending is out of character.  Your plea is evidence of your remorse and your two referees, people of standing in the community, state that they believe you are remorseful.  

60However, during the assessment as to your suitability for a Community Correction Order, you are reported to appear to be deflecting blame and responsibility upon the victims, no doubt because of their behaviour in the first instance.  You told the Corrections officer that you had not intended to commit a crime and that the situation got blown out of proportion.  When asked to reflect on this, you reportedly could not identify any pro-social alternatives to managing and responding to the initial conflict.

61During the two-year delay, you have not come to the attention of the police and have complied with your bail conditions.  You have a good work ethic and a commitment to your new business.  Your prospects of rehabilitation are good with employment, family support and community receiving recognition.  Those prospects will be even better if your engagement with Corrections leads you towards more mature reflection about the cause of your offending on this occasion. 

62The need for general deterrence is provided by a CCO with its punitive and rehabilitative aspects.  Specific deterrence is also covered by the order and with your engagement with Corrections, I can be satisfied that you will not offend again.

Sentence of Khodr

63You have been assessed as suitable for a Community Correction Order and it shall begin today and will last for three years.  You will be under supervision, and you must perform 200 hours of unpaid community work.  You must take part in any programs to which you might be directed by Corrections, designed to reduce the risk of reoffending.  Any time spent in these programs may be credited against the hours of work.  You must report to the Corrections office at Derrimut at 360 Foleys Road by 4 pm within two working days of today. 

64You must understand that if you breach this order by non-compliance or by further offending, you will have to return to court and you maybe resentenced less leniently. 

Adem Ates

65I now come to Mr Ates.  Mr Ates, you are aged 30 and you have worked as a cabinetmaker since leaving school and commencing an apprenticeship.  You ceased that work in June last year, as the stress of the approaching court case left you unable to continue.  You grew up as the eldest of three boys, with your parents separating when you were aged 10.  You witnessed violence and controlling behaviour by your father towards your mother, and you were the subject of some verbal and physical abuse as well.  As the eldest boy, you had to take on a degree of responsibility for your younger brothers in the context of family dysfunction.

66All your family are engaged in paid employment.  Your mother took time away from the workforce to look after her elderly parents when her mother was diagnosed with dementia, and you assisted in her care as well as your grandfather's before his death and that of your uncle.  You had been close to all of them and their deaths within a short space of time caused grief and depression. 

67Your GP, Dr Youssef, in a letter dated 14 March 2024, stated that you suffer from anxiety and depression with recurrent episodes of anxiety and panic attacks.  He said the loss of your grandparents and uncle within two years have had an impact on your mental health, particularly sleeping difficulties, and required treatment with valium. 

68You also attended a specialised medicinal cannabis clinic where you are prescribed cannabis to treat these conditions, as well as chronic pain from a haemorrhoid condition.  This had contributed to the need to cease work last year.  You have been seen recently by a psychologist, Mr Jeffrey Cummins, to whom you explained the offending in some detail, and told him you are remorseful and regret what you did, and you said:

'I know we shouldn't have tried to sort out the situation in this manner.' 

69Mr Cummins considered your risk of reoffending is low, but the risk is there because of your mental health impairment, and you would benefit from treatment.  He summarised your impairment as being Major Depressive Disorder with associated features of anxiety and traumatisation from your dysfunctional childhood, upon which you ruminate from time-to-time.  He considers you are vulnerable to negative peer group pressure and display a degree of psycho-social immaturity. 

70However, you have impressed those who have written letters supporting you as genuinely remorseful and as an otherwise honest and kind person.  You have become committed to prayer and attendance at the mosque, and you are involved with your local football club as a trainer and supporter.  The indications are that your behaviour was an aberration and your prospects for rehabilitation are probably excellent. 

71If you were at risk of imprisonment, it is likely that your mental health and physical problems would be more burdensome for you than for others who do not suffer in that way, which enlivens the principle in R v Verdins[4] as to limbs five and six of that decision, and the prosecution took no issue with that.

[4] [2007] VSCA 102

Sentence of Ates

72You have been assessed as suitable for a Community Correction Order which will apply to the charges on the joint indictment and the summary charge of possessing a weapon.  It will begin today and will last for three years.  You will be under supervision.  You must perform 200 hours of unpaid community work and you must be assessed for treatment and monitoring of your mental health. 

73As there is a history of some drug use before the offending, you must be assessed for any possible treatment for drug use.  You must take part in any programs to which you might be directed, that may reduce the risk of reoffending.  Any time spent in those programs, may be credited against the hours of work. 

74In relation to the second indictment, the charge of possessing a drug of dependence, you are fined the sum of $500.  You must report to the Corrections office at Reservoir, 909 High Street by 4 pm within two working days of today. 

75As I explained to Mr Khodr, you must also understand that if you breach this order by non-compliance or by further offending, you will have to return to court and you may be resentenced less leniently. 

76The prosecution seeks a disposal order in relation to items listed in the schedule.  Is there consent to that, or is it unopposed?  It relates largely to drugs and the weapon. 

77MS ROLFE:  Yes, Your Honour, no issue. 

78MS LIANG:  No, Your Honour. 

79HER HONOUR:  Thank you.  I make that order.  The Community Correction Orders are ready for signature. Would counsel like to accompany my associate to the dock with those?. 

80MR FARRINGTON:  If Your Honour pleases. 

81HER HONOUR:  Once those orders are signed, Mr Almatrah may be taken, and the other two offenders can step down from the dock. 

82Adjourn the court please. 

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