Director of Public Prosecutions v Amarah
[2012] VCC 1468
•28 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-00475
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANNY AMARAH |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August 2012 | |
DATE OF SENTENCE: | 28 August 2012 | |
CASE MAY BE CITED AS: | DPP v Amarah | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1468 | |
REASONS FOR SENTENCE
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SUBJECT – CRIMINAL LAW
CATCHWORDS – Sentence –
LEGISLATION CITED –
CASES CITED –
JUDGMENT –
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Solicitor for Office Public Prosecutions | |
| For the Accused |
HER HONOUR:
1 Danny Amarah, you have pleaded guilty before me to one charge of false imprisonment, one charge of recklessly causing injury, one charge of theft, one charge of intentionally causing serious injury and two charges of intentionally causing injury. The facts underlying this offending are as follows.
2 On the evening of 28 November 2009, one Aliel El Haje attended your home at 25 Pearson Crescent in Coolaroo as a result of a telephone request by you. On his arrival, he discovered there were about eight people sitting in the lounge room of your home. You were apparently aggrieved that Mr El Haje had some something sexually offensive to your wife and, further, you believed a friend of his, one Wasim El-Ashkar, owed money either to your or one of your friends who was present at the house. Mr El Haje was told to ring Mr El‑Ashkar and get him to come to your house, but he refused. You then punched him to the head behind the right ear, this action comprising Charge 2 on the indictment, recklessly causing injury.
3 Mr El Haje was then told he needed to get Mr El‑Ashkar to come over to save him and he was thereafter kept at the house against his will until such time as Mr El‑Ashkar arrived. That detention gives rise to Charge 1 on the indictment, false imprisonment.
4 During the evening, while hold Mr El Haje at your home, you took his watch, car keys and $400 in cash from his wallet. You gave the car keys to a co-offender, Omar Khattab, and told him to search Mr El Haje’s car. The taking of these items underlies Charge 3 on the indictment, theft.
5 While the car was being searched, three or four others from the group punched Mr El Haje and then soon after, Khattab and others came back into the house in possession of three rifles. Mr El Haje was shown the rifles which were loaded and two other group members brandished knives. You then used Mr El Haje’s mobile phone to call Mr El‑Ashkar and during that call got Mr El Haje to speak to Mr El‑Ashkar and tell him to come over to your house. At the end of the phone call, you put a knife against Mr El Haje’s throat and threatened to cut it if Mr El‑Ashkar did not come over. There then followed about seven more phone calls between the phones of Mr El Haje and Mr El‑Ashkar relating to Mr El‑Ashkar attending the house. The first call was at 8.11 and the last at 10.08 pm, meaning that the period of detention endured by Mr El Haje was about two hours. Ultimately, there was a knock at the door which you answered, opening the front door but not the security screen.
6 You were told to let Mr El Haje out of the house. You then slammed the front door and then gun shots were exchanged between you and others from inside the house and others who were outside. The exchange of fire involved at least seven shots being fired from outside into the house, together with a number of shots being fired form inside the house. One of the men inside the house, Bassam Sleiman, was shot in the buttocks and an ambulance attended. Apparently a number of people in three different cars turned up to your house to rescue Mr El Haje, arriving at about 10.00 pm. One of those cars was a black Hummer containing four men; Fadi Haddara, Nasser Kheir, Mahmoud Kheir and Mohammed Ouieda. Three of them received gunshot wounds and the Hummer was then driven to the Northern Hospital in Epping.
7 Mr Ouieda received a gunshot wound to his abdomen and left upper buttock. Mahmoud Kheir received a superficial gunshot wound to his left leg. Nasser Kheir received a serious gunshot would to his left knee, which required extensive medical treatment. The injury to Nasser Kheir underlies Charge 4, intentionally causing serious injury, and the injuries to Mahmoud Kheir and Mr Ouieda underlie Charges 5 and 6 on the indictment, charges of recklessly causing injury. These three charges are laid on the basis that you were acting in concert with others inside the house when the shots were fired that struck these three men.
8 The prosecution conceded it was not in a position to say who fired a weapon, nor whether it was those inside the house or those outside the house that first began firing. It is put that the parties inside the house, however, were acting in concert with those who caused the gunshot injuries.
9 I now turn to your personal circumstances. You are thirty-two years old and were aged twenty-nine at the time of this offending. You were one of two sons born to your parents who emigrated to Australia from Lebanon in the 1960s. Your father worked as a labourer. He died when you were six of a blood clot to the brain. Your mother remarried when you were eight. Her new partner, having drug problems, the family became itinerant, moving regularly around the northern suburbs. Your primary schooling consequently became fragmented and ultimately at the age of nine you were sent to live with your paternal grandmother in Reservoir because your mother could not care for you properly. You were unsettled there and ran away back to your mother on a number of occasions. Unsurprisingly, you had a lot of difficulty academically at school, attending a large number of primary schools and then attending Glenroy Technical School, Glenroy High School and Box Forrest High School. You had trouble concentrating, struggled academically and left at the age of fourteen, after completing Year 9.
10 You then began work as a kitchen hand with your paternal uncle at a restaurant in Richmond, where you were employed for about two years. You then moved with your uncle to a café at Jupps Motor Auctions, working there for a further twelve months. Eventually you commenced and then completed an apprenticeship as a chef. In your teens you developed a dependency on marijuana and engaged in some offending which brought you before the Children’s Court where you were dealt with for charges of handling stolen goods, unlawful possession, theft, obtaining property by deception, possessing a weapon, robbery and attempted obtaining property by deception between the ages of fifteen and seventeen, appearing before that Court on four occasions and receiving non-custodial dispositions.
11 In February 1998, you were placed on a community-based order on charges of trafficking and possessing cannabis, you were fined later that year for a charge of theft of motor vehicle, and in August that year were placed on a six month intensive corrections order on charges of recklessly causing injury, burglary and theft. You breached those orders by failing to comply with the conditions and you were ultimately sentenced to a gaol term of about four or five months. There is then a gap in your offending until 2004.
12 At the age of twenty, you met your first wife whom you married in 2001 and your daughter, Chloe, was born that year. You worked as a chef at the Azure Restaurant in Sydney Road, Coburg and then at a restaurant in Thomastown. You and your first wife separated after about two and a half years. You remarried soon after in 2003 and you and your second wife had two sons born in 2004 and 2006. During these years you had stable employment and accommodation, were involved in raising your children and stayed out of trouble.
13 In that time you moved to Gippsland where you worked at a restaurant in Morwell but while working there, slipped while carrying a box and injured your back. The pain did pain did not resolve and a further medical examination detected a previously undiagnosed spina bifida condition which had been aggravated by the accident. Ultimately, you were placed on a disability support pension in 2008.
14 In 2004, you were involved in a road rage incident whereby in a dispute between you and another driver, one of those travelling in your car broke the other car’s window and the two of you then assaulted the driver, resulting in charges of criminal damage and recklessly causing injury. Ultimately after an appeal to the Melbourne County Court, you were placed on a six month wholly suspended sentence.
15 You were placed on a bond in 2008 for driving while your authorisation was suspended. Then in October 2008, the Latrobe Valley Magistrates’ Court sentenced you to six months' imprisonment on charges of obtaining property by deception, obtaining financial advantage by deception, theft of motor vehicle and going equipped to steal/cheat. Your counsel informed me this related to you using dishonoured cheques to hire cars and purchase items in the wake of your loss of employment due to your back injury.
16 In 2009 you were also sentenced to seven days’ imprisonment for breaching the bond which had been imposed for the driving offence in 2008, which sentence was served concurrently.
17 While you in gaol, your wife relocated to the Pearson Street house in Broadmeadows, where you went to live after your release from gaol in about March or April 2009. Immediately following the offending which has brought you before this Court, your wife left you and you remain estranged. She took your sons and has allowed you to see them only on very rare occasions such as their birthdays. You have maintained a good relationship with your daughter from your first marriage.
18 You were held in custody for some time after being charged with these offences. On 1 March 2010, you were placed on a four month suspended sentence for charges of driving while authorisation suspended and obtaining property by deception, which your counsel informed were part of the offending you had engaged in Morwell in 2008.
19 You were released from gaol on 9 March 2010 on the condition that you reside with your mother. However, there were a number of fallings outs between you and your mother and at times you found yourself homeless. You subsequently reoffended on three occasions between 28 May and 10 September 2010, whereby you would rent a car paying for two days, then extending the period of rental by telephone but not paying the extra amount. Your counsel said this offending coincided with times when you were not welcome at your mother’s home and you used the cars to sleep in. Ultimately you were dealt with for three charges of obtaining financial advantage by deception on 24 March 2011.
20 You were arrested for this offending on 10 September 2010 and remained in custody until 24 March 2011, where a Magistrates’ Court, in dealing with you for breach of suspended sentence and further offending, sentenced you to a total sentence of 199 days, which amounted to the time you had already served. Since then, you have lived at your mother’s home and have not offended again. Your counsel informed me that because of your back injury, you have worked only intermittently since 2008.
21 Ultimately, you entered a plea of guilty to these charges on 23 April 2012. By that stage, the trial had been set down for 14 May 2012. The committal hearing in this matter was heard on 28 February 2011. You entered pleas of not guilty and the matter then proceeded on the basis that a trial would be run. Your counsel frankly conceded that in the intervening period it was difficult for your legal instructors to make contact with you and obtain instructions, that you missed a number of appointments. He also conceded that the Crown case against you was a strong one and that a number of witnesses who gave evidence at the committal, mainly neighbours from Pearson Street, found the exercise and the prospect of giving evidence against you at trial a fearful one. I note that no victim impact statements have been received in this matter.
22 Whilst there has been a delay in this matter, it is not in my view an inordinate one, given your determination to contest the charges and the delay, in any event, appears not to have been contributed to by the prosecution. Nevertheless, your plea of guilty, although made at a late stage, has been of considerable benefit, given the number of witnesses that would have to have been called and that plea has thereby saved the community the considerable time and expense that would have been attached to running a trial in this matter. This is a matter that I take into account and, notwithstanding its late delivery, is a plea which in the circumstances I am prepared to accept should attract a discount which reflects a value attached to it more than a mere utilitarian value.
23 I accept that you have some rehabilitation prospects. You were gainfully employed for a number of years, and you have not offended since September 2010. In sentencing you, I also accept your counsel’s submission that I should have regard to the principles of totality and not impose upon you a sentence that would be crushing in the circumstances. Nevertheless, this is most serious offending.
24 Your counsel informed me that what ultimately occurred was never intended by you and was essentially an unplanned escalation of events. Nevertheless, it is quite clear that you planned to have Mr El Haje attend your house for a particular purpose, both in terms of the perceived insult to your wife and in relation to a perceived debt by Mr El‑Ashkar to either you or one of your group. It seems to me perfectly clear that there was violence planned in relation to Mr El Haje, it swiftly occurred both in terms of physical assault upon him by yourself and other members of your group, the searching of his car, forcing him to make phone calls to Mr El‑Ashkar to get him to attend at your home, the use of loaded guns and knives to strike fear into Mr El Haje and achieve the objective of having Mr El‑Ashkar attend the house. It may not have been intended that there ultimately be a gun battle between opposing forces, but at the every least it seems likely Mr El‑Ashkar, had he been foolish enough to enter your home, would have been the subject of further violence. Further, it is most unsurprising that Mr El‑Ashkar would only choose to attend the premises in the company of other associates, so that violence of some sort was inevitably going to be the outcome of this enterprise.
25 In any event, what then occurred was an appalling incident involving a gun battle in a residential street, four people being carted off to hospital with gunshot wounds, and the lives of a large number of people placed at risk. Indeed, I was informed that bullets were discovered in your children’s beds. It was an extraordinarily violent and dangerous incident, where someone could easily have been killed and where the lives of innocent people were put at grave risk. I am satisfied that you were the instigator of this entire appallingly dangerous and violent incident.
26 It is quite clear, in my view, that the principles of general deterrence, punishment and condemnation of your actions are the overwhelming principles governing the sentencing exercise before me. In other words, Mr Amarah, the main factors I have to take into account in sentencing you are to send out a message to the community that this sort of violent behaviour will not be tolerated, that you be punished for placing so many people in danger and for causing such serious injury, and that the sentencing represents a statement of condemnation by this Court for what you have done. The safety of your immediate community, as I have said, was placed severely at risk and what you did eventually amounted to a small war on your doorstep. Further, it began with the unlawful and detention and assault by you of Mr El Haje.
27 In sentencing, I do take into account your plea of guilty, your relatively confined prior criminal history, your previous good work history, your reasonable prospects of rehabilitation. Ultimately, however, it was conceded by your counsel that the only way I can deal with you is by way of a sentence of imprisonment to be immediately served. In my view, the seriousness of this offending does need to be marked not only by such a disposition but a disposition of some years.
28 I therefore sentence you as follows. Could you stand up please.
29 On the charge of false imprisonment, you are sentenced to three years’ imprisonment. On Charge 2, Recklessly Cause Injury, you are sentenced to six months’ imprisonment. On the Charge 3, theft, one month’s imprisonment. On Charge 4 Intentionally Cause Serious Injury, three years’ imprisonment. On Charges 5, Intentionally Causing Injury, you are sentenced to 18 months’ imprisonment. On Charge 6, Intentionally Causing Injury, you are sentence to 18 months imprisonment.
30 The base sentence will be the charge imposed on Charge 1, three years. I order that two months on Charge 2, two years on Charge 4, 9 months of the sentence imposed on Charge 5, and 9 months of the sentence imposed on Charge 6 be served cumulatively to the sentence imposed on Charge 1 and to each other giving a total effective sentence of 6 years and 8 months. I direct you serve a minimum of 4 years and 6 months before becoming eligible for parole. I declare 118 days of this sentence has been served by way of presentencing detention. Pursuant to section 6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of eight years and ordered you serve a minimum of six years. Thank you.
31 MR O’SULLIVAN: If Your Honour pleases.
32 HER HONOUR: Thank you. You can take the prisoner down.
33 MR JAMES: Just those orders, which I understand were handed up Your Honour.
34 HER HONOUR: Pardon?
35 MR JAMES: I understand there was forensic sample order handed up at the time of the plea hearing.
36 MR O’SULLIVAN: I thought they already had the sample.
37 HER HONOUR: I am prepared to order the s.464ZF application.
38 MR JAMES: Thank you, Your Honour.
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