Director of Public Prosecutions v Assaad & Assaad
[2022] VCC 2099
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02239
CR-21-02240
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI ASSAAD and MEZAN ASSAAD |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2022 | |
DATE OF SENTENCE: | 2 December 2022 | |
CASE MAY BE CITED AS: | DPP v Assaad & Assaad | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2099 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Blackmail – Common Assault – Committing an indictable offence whilst on bail – Offenders 57 and 31 years old – Offending committed in company – Confronted the victim at his workplace – Demanded victim pay money ostensibly owed to one of the offenders – Offenders have a limited criminal record – No real pre-meditation involved – Favourable prospects of rehabilitation
Legislation Cited: Crimes Act 1958 (Vic); Bail Act 1977 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen (2021) 96 MVR 344
Sentence: Both offenders sentenced to a Community Correction Order for a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Cookson | Office of Public Prosecutions |
| For the Accused | Mr L Howson (Plea) Mr M Sehler (Sentence) | Burn City Legal |
HIS HONOUR:
Introduction
1On 16 November 2022, following a sentence indication, you were both arraigned on an indictment containing two charges. Ali Assaad and Mezan Assaad, you both pleaded guilty to a charge of blackmail contrary to s 87(1) of the Crimes Act 1958. This offence carries a maximum penalty of 15 years’ imprisonment. Mezan Assaad, you also pleaded guilty to a charge of common assault contrary to common law. This offence carries a maximum penalty of 5 years’ imprisonment.
2In addition, you, Mezan Assaad, consented to this Court hearing and pleaded guilty to a related summary charge of committing an indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977. This offence carries a maximum penalty of 30 penalty units or three months’ imprisonment.
3An agreed prosecution summary of your offending dated 29 June 2022, was tendered in Court.[1]
[1]Exhibit A.
Circumstances of the offending
4The victim, Abdulwahab Sabry, was aged 49 at the time of this incident. He is a computer engineer who owns a business called System Technology Services IT & Security.
5You, Ali Assaad, knew Mr Sabry and were a former business supplier for System Technology Services. In 2019, you assisted Mr Sabry in obtaining a government grant of approximately $350,000 for his business. Mezan Assad is your son.
6At the time of this offending, you believed that Mr Sabry owed you money for your role in obtaining the grant.
7On the afternoon of 11 May 2021, the two of you, along with Rami Chahoud, attended the business premises of Mr Sabry.
8An initial exchange of pleasantries between Mr Sabry and Ali Assaad turned into a demand for money. The three of you made demands of Mr Sabry. You, Ali Assaad, indicated that Mr Sabry had told you that if you helped secure the grant, you would be given 10 percent. Mr Sabry denied any such agreement.
9At this stage, you, Mezan Assaad slapped a phone from Mr Sabry’s hand and pushed him. As Mr Sabry backed away, you, Mezan Assaad struck him to the face twice, pushed him against the wall, and uttered ‘I’ll fucking rip you’. All three of you crowded around Mr Sabry and continued to make demands for money.
10You, Ali Assaad retrieved Mr Sabry’s phone from the floor and Rami Chahoud demanded that $17,000 be transferred to you. Mr Sabry stated he did not have the money. Rami Chahoud struck him forcefully to the head with his elbow or forearm. This caused Mr Sabry to fall to the floor. He remained on the floor for approximately two minutes while all three of you stood over or around him, continuing to demand money.
11While on the floor, Mr Sabry asked ‘How much do I owe you’. You, Ali Assaad, replied, ‘(inaudible) and $50,000. Listen you son of a bitch, you took the money and you are trying to con me. And you tell me to go away’.
12Rami Chahoud stated, ‘I am coming here tomorrow morning, if the money was not (inaudible)’.
13You, Mezan Assaad stated, ‘Every day, every day, I am going to fucking come down here’.
14Further demands were made to make Mr Sabry transfer the money. He agreed to transfer the money the next day. Rami Chahoud stated, ‘Don’t you dare not to pay if we leave now. I am just kidding with you now. Tomorrow we will have a different talk with you. It will be a different talk and then you will know who I am, you fucking dickhead. Do you understand?’
15Both of you dared Mr Sabry not to pay the money. You, Ali Assaad, told him ‘Animal. Do not pay them’. You, Mezan Assaad, stated ‘Do not pay them’.
16Rami Chahoud then told Mr Sabry, ‘I want him not to pay them. Tomorrow, you will see if they were not in his account. You will be dealing with me and not Ali…’.
17The three of you then left the premises.
18Shortly after, you, Ali Assaad, sent Mr Sabry WhatsApp messages setting out banking details and the amount of $17,500.
19Mr Sabry reported the offending to the police that same afternoon and identified you, Ali Assaad, as one of the offenders.
20The entire incident, including audio, was captured on CCTV. The majority of the conversation was in Arabic, which was later translated into English.
21Police executed a search warrant at your home address, Mezan Assaad, on 19 May 2021. They located your clothing, which matched the clothing depicted on the CCTV. You were not present when the warrant was executed.
22Later that day, you attended Broadmeadows Police Station and were interviewed. In accordance with your right, you remained silent in respect of all pertinent questions.
23You, Ali Assaad, attended Broadmeadows Police Station on 22 May 2021. In your interview you acknowledged that you knew the victim but otherwise maintained silence.
24As a result of the assault, Mr Sabry experienced pain to his face, back, buttocks, wrist, and shoulder. He had a superficial laceration to the back of his left shoulder and lower forearm. His nasal area was swollen and he experienced blurred vision in his left eye for some 24 hours after the incident.
Victim impact
25A victim impact statement declared by Mr Sabry dated 10 April 2022 was tendered on the plea.[2] It will be apparent to you, your offending has had a profound impact upon Mr Sabry. As a result of the offending, he has lost interest in his work and struggles to focus. His confidence level has dramatically decreased. He has experienced nightmares and continues to fear for his safety. He is irritable and becomes angry easily. Once a sociable person, he now prefers to maintain contact with only a few people and prefers to play chess online, rather than in person, as was the case prior to the offending.
[2]Exhibit B.
Personal circumstances of Ali Assaad
26Ali Assaad, you are now aged 57. You were born in Lebanon in December 1964 and migrated to Australia in 1977 with your parents.
27Having completed Year 12, you studied Optometry at RMIT for four years. You then worked as an optical practitioner making lenses between 1982 and 1987.
28You were married in 1988, and began working at your brother’s bakery. Between 1993 and 2013, you have run your own businesses which have included three milk bars, a food business and an IGA supermarket.
29You separated from your wife in 1998. Your son, Mezan Assaad was aged 10 at the time. In 2001, you remarried. You reside with your wife and your four youngest children, the youngest being nine. Also living with you is your eldest sister, aged 71.
30In 2014, you commenced delivery driving. In 2018, you obtained a truck licence and purchased a truck. You worked on contract as a truck driver delivering for a construction company.
31Currently you work part time as a driver for a coach company that is contracted with transporting school children to and from school and excursions.
Criminal record of Ali Assaad
32You have a limited but relevant prior history. You have two appearances before the Magistrates’ Court. Your first appearance in September 1988, for offences of conspiracy to defraud, obtain property by deception and forgery resulted in a wholly suspended term of imprisonment. On 18 April 2018, you were sentenced to a 12 month Community Correction Order (‘CCO’) for an offence of theft.
Personal circumstances of Mezan Assaad
33Mezan Assaad, you are now aged 31. You are married and have a baby daughter who was born in May of this year. You run a successful concreting business.
34You grew up in the northern suburbs of Melbourne living with your parents and your older brother. You recall your first few years as being pleasant but things changed when your parents separated. Your parents separated when you were aged 10. You and your brother went to live with your mother. You endured both financial and emotional instability. As a result of your mother being unable to pay rent, you had to move frequently. Consequently, you attended some nine different primary schools and two secondary schools.
35You left school having completed Year 10. At the age of 15, you moved alone to Sydney where you began working full time as a general labourer and concreter. Your employment helped support your mother and older brother.
36Since the age of 21, you have worked for yourself as a concreter. In 2016, you started your own company specialising in commercial concreting and construction. The company is successful and supports the employment of some 25 contract tradesmen.
Criminal record of Mezan Assaad
37You have two prior court appearances in 2012 and 2013. In 2012, you were fined for an offence of failing to answer bail. At the age of 21, you were convicted and sentenced to a 12 month CCO for an offence of recklessly cause serious injury.[3]
[3]The order was varied on appeal to this Court on 9 April 2014.
Gravity of the offending
38The offence of blackmail that you both engaged in along with Rami Chahoud was serious. It was committed in company which would have heightened the fear your victim felt. Repeated demands for money were made. The demands were re-enforced by threats. The demands continued in the context of actual violence being used upon the victim by Rami Chahoud and you, Mezan Assaad. That would have no doubt also increased the fear the victim felt. The impact upon the victim has been significant.
39In respect of you, Mezan Assaad, the assault upon the victim carried out in company with Rami Chahoud would have been frightening. Thankfully, the injuries sustained by the victim were relatively minor. A pre-existing injury to his right shoulder appears to have been aggravated, causing ongoing issues.
40Mezan Assaad, you committed this offending whilst on bail. That is an aggravating factor.
41Mezan Assaad, I accept that you were not involved in any previous dealings with the victim and had no issue with him. You happened to be present with your father and Rami Chahoud in the car on the day in question, returning from a funeral. The assault may have been prompted because you believed the victim was being disrespectful to your father, but that provides no excuse whatsoever for your unlawful conduct. I was told that loyalty towards your loved ones is the reason you became embroiled in this offending, as you did with your prior appearance for the offence of recklessly causing serious injury. You must understand, and are no doubt capable of understanding, that loyalty doesn’t mean handling grievances by resorting to criminal offending.
42Ali Assaad, you are old and mature enough to well understand how to deal with a grievance in a calm and rational manner. Any genuine grievance that you had with the victim should have been addressed by legitimate means, for example, by engaging lawyers or sending a letter of demand. There is absolutely no excuse for your despicable conduct. The reality is that your grievance with the victim, as you now accept, was ill-founded.
43As the prosecution concede, there was no real pre-meditation involved. In respect of the blackmail, it was short-lived and didn’t involve any breach of trust. Offences of blackmail are insidious and difficult to detect, particularly where they prey upon the fear and vulnerabilities of the victim. Here, the victim complained to the police immediately. The absence of these matters, however, does not mitigate the seriousness of the offending engaged in by you.
Matters in mitigation
44I have had regard to the plea submissions filed on behalf of you Ali and Mezan Assaad.[4]
[4]Exhibits MA1 and AA1.
45In relation to you, Ali Assaad, I have considered all the references tendered on your plea.[5]
[5]Exhibit AA2.
46In respect of you, Mezan Assaad, I have considered the references tendered on your behalf[6] as well as the psychological report prepared by Mr Mackinnon dated 14 April 2022[7] and the letter from Dr Phan dated 20 May 2021.[8]
[6]Exhibit MA2.
[7]Exhibit MA4.
[8]Exhibit MA 5.
47While both of you have some limited relevant prior history, you have both demonstrated the capacity to lead hardworking and family orientated lives.
48Since the offending some 18 months ago, both of you have enjoyed bail. During this period neither of you have re-offended and have maintained employment supporting your families.
49In respect of you, Mezan Assaad, immediately after the offending you recognised you had issues with anger management. You sought a mental health plan and underwent counselling with Dr Paul Grech in respect of anger issues. You have maintained running your successful business. I note your referees speak of you in glowing terms. You recently have become a father and now have added and important duties.
50Whilst both of you did not plead guilty at the earliest stage, you pleaded guilty without challenging or cross-examining any prosecution witness, including the victim. The history of this matter and the stage at which it ultimately resolved detracts from accepting that both of you are truly remorseful. Nevertheless, I accept that both of you have shown a degree of remorse by your pleas of guilty.
51You are entitled to the utilitarian benefit of pleading guilty. As I said, no witness was cross-examined and the matters resolved without a trial being listed. Your pleas have saved the time and expense of a trial. Further, your pleas of guilty have assisted in reducing the backlog of trials that this Court faces. The Court must encourage those who are guilty to so plead by providing an actual and palpable discount on sentence.[9]
[9]Worboyes v The Queen (2021) 96 MVR 344.
Sentencing purposes
52In passing sentence, I must pay particular regard to general deterrence and denouncing your conduct. Your prior histories also require me to pay some regard to specifically deterring you. Despite the fact that both of you have a relevant criminal record, for the reasons already alluded to, I regard your prospects of rehabilitation as favourable.
Sentencing
53Recognising the seriousness of your offending conduct, Mr Howson submitted that in all the circumstances of this case, including matters concerning the objective gravity of the offending and matters personal to you, a disposition not involving incarceration could rightly be considered.
54On behalf of the prosecution, Mr Cookson, in conspicuously fair submissions, conceded that a suitably punitive CCO would meet all the relevant sentencing purposes.
55Imprisonment is a sentence of last resort. I am satisfied that in all the circumstances of this matter, I can adequately punish you both for your offending, denounce your conduct and deal with general and specific deterrence, and at the same time allow you to further your rehabilitation by imposing a CCO.
56On 6 September 2022, I sentenced Rami Chahoud to a two year CCO. I must bear in mind the question of parity.
57Rami Chahoud pleaded guilty at the earliest opportunity and demonstrated significant remorse. He also had no prior history.
58Mezan Assaad, your role in the offending was similar to that of Rami Chahoud. However, you committed this offending while subject to bail. You have a relevant prior for violent offending and concede that you have anger issues.
59In respect of you, Ali Assaad, you are being sentenced only in respect of the blackmail. While you were the driving force in respect of the confrontation that ensued, you were not the driving force in the blackmail. As the prosecution stated, the blackmail came about organically.
60I have had regard to the pre-sentence assessment reports from the Department of Justice dated 18 November 2022.
61Ali Assaad, on charge 1, you will be convicted and sentenced to a CCO for a period of 2 years commencing today.
62Mezan Assaad, on charges 1 and 2, you will be convicted and sentenced to a CCO for a period of 2 years commencing today.
63In respect of the related summary charge, you are convicted and fined $400.
64Every CCO has core conditions that you both must comply with. They are as follows:
· You must not commit any offence punishable by imprisonment.
· You must comply with any obligation or requirement prescribed by the regulations.
· You must report to and receive visits from the Secretary.
· You must report to the community corrections centre within two clear working days.
· You must notify the Secretary of any change of address or employment within two clear working days of the change.
· You must not leave Victoria except with the permission of the Secretary.
· And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.
65In addition to the mandatory core conditions, the CCO will also include special conditions.
66In respect of you, Ali Assaad, the special condition is that you must complete 220 hours of unpaid community work as directed.
67In respect of you, Mezan Assaad, the special conditions are:
· First, you will have to perform 250 hours of unpaid community work as directed.
· Second, you must engage in programs that address factors relating to your offending behaviour.
· Third, you will be subject to supervision as directed for the duration of the CCO.
68Both of you must report to Community Correctional Services within two working days.
69Both of you need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the core or special conditions, then you could be charged with the offence of breaching the order.
70The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to Court and face sentencing for that breach offence. In those circumstances, you could also be re-sentenced for the offences for which you have been placed on the order. You would then face the very real possibility of being sent to prison.
71So, there are serious consequences attached to any breach. Do you understand Ali Assaad?
72ALI ASSAAD: Yes.
73Do you also understand Mezan Assaad?
74MEZAN ASSAAD: Yes, your Honour.
75HIS HONOUR: Do you also understand all the conditions of the proposed CCO Ali Assaad?
76ALI ASSAAD: Yes.
77HIS HONOUR: Do you also understand all the conditions of the proposed CCO Mezan Assaad?
78MEZAN ASSAAD: Yes, your Honour.
79HIS HONOUR: Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?
80ALI ASSAAD: Yes.
81MEZAN ASSAAD: Yes, your Honour.
Section 6AAA declaration
82Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you, Ali Assaad pleaded not guilty and been found guilty, I would have been sentenced to a term of 30 months’ imprisonment with a non-parole period of 18 months.
83If you, Mezan Assaad, pleaded not guilty and been found guilty, I would have sentenced you to a term of 42 months’ imprisonment with a non-parole period of 27 months.
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