Director of Public Prosecutions v Assi

[2022] VCC 2086

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. 22-01000

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAAFAR ASSI

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JUDGE:	Her Honour Judge Todd
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2022
DATE OF SENTENCE:	28 November 2022
CASE MAY BE CITED AS:	DPP v Assi
MEDIUM NEUTRAL CITATION:	[2022] VCC 2086

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Assisting an Offender who Committed a Serious Indictable Offence – Principal Offence of Intentionally Causing Injury – Obstructing Police Investigation – Related Summary Offences – Firearms Offences – Plea of Guilty – Factors in Mitigation – Personal Circumstances – Effect of Covid-19 Pandemic

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic);

Cases Cited:R v Kitchin [2001] VSCA 66; Director of Public Prosecutions v Hornjak & Anor [2013] VSC 114.

Sentence:                  Imprisonment for 12 months, followed by a community corrections order for a duration of 12 months, fine of $400, orders for forfeiture. Conditions include supervision, drug treatment and rehabilitation, judicial monitoring.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr F. Cameron	Office of Public Prosecutions
For the Accused	Ms H. Anderson	Valos Black Lawyers

HER HONOUR:

Plea and Maximum Penalties

1Jafaar Assi, you have pleaded guilty to one charge of assisting an offender who had committed a serious indictable offence, with the purpose of impeding the prosecution of the principal offender; the principal offence being intentionally causing injury.

2You have also pleaded guilty to the charge of being a prohibited person in possession of a firearm.

3You have also agreed to have uplifted, and pleaded guilty to, two summary offences: one charge of committing an indictable offence while on bail, and one charge of possessing cartridge ammunition as a prohibited person.

4The maximum penalty for this version of the charge of ‘assist offender’ is 5 years, the maximum penalty for being a prohibited person in possession of a firearm, 10 years; the maximum penalties for the summary charges of committing an indictable offence while on bail and possessing cartridge ammunition is a prohibited person are 3 months' imprisonment and 40 penalty units.

Factual Background

5I will briefly set out the factual background giving rise to your offending, commencing with the circumstances of the principal offence before referring to the circumstances of your particular offending. The prosecution tendered a plea opening dated 25 November 2022. This became Exhibit A on the plea and is attached to and forms part of these reasons. I will not repeat every detail here, but refer to your offending in summary form.

Principal Offence

6Turning first to the principal offence. In the early hours of 8 November 2021, you were with Jordan Young; you were riding your motorcycle south on Bamfield Road, Heidelberg. As you travelled, Ian Gauci, a man completely unknown to you, crossed the road. You and Mr Young, on your motorcycles, narrowly missed him.

7You went on your way and parked your motorcycles at Mr Young’s address under the carport. Mr Gauci, having completed his crossing, then sought you out, and arrived at Mr Young’s address. He was carrying a vodka cruiser bottle in one hand. He yelled at you:

'Why the fuck did you try to run me over, what’s your problem?'.

8It is fair to say that at this point, nobody tried to defuse the situation. Instead, Mr Young walked out to the middle of the driveway, and then produced from inside his jacket a sawn-off rifle. He then proceeded to load it with ammunition held in his left pocket, and pointed the gun at Mr Gauci. Mr Gauci then stopped his advance and stood approximately 10 metres away from you. Mr Young fired at him and missed.

9Again, this exchange might have ended there, but did not.

10

Mr Gauci then stepped backwards, but first threw his vodka cruiser bottle at

Mr Young who dodged it and then moved further towards Mr Gauci. At this point, Mr Young fired a second shot, this time striking his target and piercing the left side of Mr Gauci’s abdomen, causing him to fall to the ground. Mr Gauci was then able to get up; he ran to his friend’s house, at which point the authorities were notified.

11For the purposes of this plea, that is, Mr Young’s firing the weapon for the second time and striking Mr Gauci, is characterised as intentionally causing injury. This is the principal offence underpinning Charge 1 on the indictment.

12

While Mr Gauci went back to his friend’s house to raise the alarm, Mr Young called Triple Zero and reported being assaulted by Mr Gauci. He told authorities that

Mr Gauci had thrown the glass bottle at him and threatened him. Mr Young did not mention his shooting of Mr Gauci.

13I note here that the victim Mr Gauci was taken for treatment at the Royal Melbourne Hospital and underwent surgery. The bullet entered the left side of his abdomen, lacerating his liver, before exiting the right side of his abdomen.

14An investigation commenced. Search warrants were executed at Mr Young’s house, and later at your house. At Mr Young’s house, although there had been some efforts to hide the material, police ultimately found a hard drive containing the CCTV footage from the driveway of the house.

Circumstances of Charges 1 and 2

15In that footage you are depicted holding the firearm after the shooting, and searching the driveway and collecting spent ammunition and cartridges. These acts, of collecting the cartridges and putting the firearm in a backpack and taking it from the scene are the acts that give rise to your plea to Charge 1 on the indictment.

16On 17 November 2021, police executed a warrant at your house and found the following items:

·        One 12-gauge shotgun cartridge, one .410 shotgun cartridge, and one .32 ammunition (this is said to be the weapon used by Mr Young);

·        one strip of ammunition;

·        various firearm components;

·        one homemade handgun (Charge 2, possession of a firearm as a prohibited person – I note that this weapon is unrelated to the events giving rise to Charge 1);

·        four ammunition rounds;

·        one firearm cleaning kit;

·        one black bag containing ammunition.

17A motorcycle, said to be the one driven by you on the morning of the shooting, and having been painted black since, was also found.

Arrest and Interview

18The next day, on 18 November 2021, you were arrested and taken to the police station at Preston for interview. You denied being aware of the shooting, admitted to owning the motorcycle, and to painting it black. You denied having any knowledge of the firearm and ammunition seized at the address, saying that you have not lived at the address for some time.

Procedural History

19

You were refused bail on 10 August 2022. You subsequently applied for a sentence indication which was heard and determined on 24 November 2022; on the same day you indicated an intention to plead guilty. You were arraigned on

25 November 2022 and referred for a community corrections order assessment.

Prior Criminal History

20Turning now to your prior criminal history. You have some relevant prior criminal history: it spans driving, criminal damage, drug possession, but more relevantly for this sentence, charges of possessing controlled weapons, or prohibited weapons, or ammunition without a licence. I note that you do not have prior convictions for offences of violence. You have previously served one term of imprisonment for 88 days imposed in December 2019.

Nature and Gravity of the Offending

21I must assess the nature and gravity of your offending. I am careful to limit your sentence to the assessment of the assistance you gave Mr Young, after he had taken the quite extraordinary decision to fire a gun, not once, but twice at a stranger after some minor offence arose between them. I do not sentence you for that. I sentence you for assisting Mr Young to cover up what he did, by picking up the ammunition cartridges and taking the gun away. I note the gun was never found, which is an alarming fact.

22The gravity of this offence resides in the effect of obstruction of the criminal law and its enforcement. Your offending was ‘designed to undermine the due enforcement of our criminal law, and to impede the criminal justice system'.[1] The nature of the principal offence, intentionally causing injury, is a relevant consideration, especially where that offence was witnessed by you, but I must not sentence you for conduct other than that which is properly encompassed by the charge before me.

[1] Director of Public Prosecutions v Hornjak & Anor [2013] VSC 114 at [12].

23Your counsel submitted that you had no knowledge of the firearm's presence before it was produced. It was put that once it had been used, you panicked. You feared Mr Young may use it against you. You did not realise the second shot had struck Mr Gauci as you had seen him run away. That said, your offending, in attempting to cover up an extremely serious and aggressive event, is serious. You carried away a weapon used twice against a person, causing them injury on the second occasion. Mr Young’s acts were outrageous and arose in the most meaningless of circumstances. You did what you did in order to help Mr Young try and get away with what he had done. You ought to have walked away from the situation, but instead engaged in the business of trying to help Mr Young avoid detection. That said, your involvement was short – serious, but short lived. I regarded it as being medium to high in the range of offending in this category.

24The moral culpability of your assistance is referable to the particular circumstances of the principal offence; the more serious the offence of intentionally causing injury, the more harmful the assistance that you provide.[2] I consider this to be a grave example of intentionally causing injury: the use of a firearm, aimed and fired the body of another person, for almost no reason at all, which had the effect of causing some internal injuries and hospitalisation.

[2] R v Kitchin [2001] VSCA 66 at [36].

25The offence of being a prohibited person in possession of a firearm carries a higher maximum penalty and is concerning, given your history of weapons and ammunition offences. It was submitted, and I accept, that this offence belongs in the lower range of seriousness for offences of its type, by reference to the form of the firearm and the other circumstances.

Victim Impact

26Turning now to the victim impact. Mr Gauci did not file a victim impact statement, but I take into account, generally, that he was hospitalised and suffered an internal injury in my overall assessment of the principal offence, that your efforts were directed to covering up.

Personal Circumstances

27Turning now to your personal circumstances. You are now 32. You left Lebanon and arrived in Australia at 19 with your partner some thirteen years ago. Your early life was unhappy. Your father was an alcoholic and abusive of your mother. You were bullied at school, and at nine you were helping your father who worked as a painter, to help pay for school books and uniforms. You managed to stay at school until Grade 9.

28You were previously in a relationship and had two children, but in 2019 your relationship failed and your drug issues escalated. You have children aged seven and five years. You have worked as a painter and decorator, and plan to reconnect with your former employer after your release.

29Since the failure of your relationship, you have had periods of being unemployed and living in your car and increasing drug use. These were the circumstances just before this offending arose. You told the community corrections assessor that you are using 2 grams a day of ice and 50 ml of ‘juice’, which I understand to be a reference to the use of GHB.

30In 2020, you were in a motorcycle accident, fracturing your skull and eye socket, which required surgery. You experience ongoing headache pain, blurred vision and problems with your memory, speech and motor skills.

31In custody, you have been abstinent from drug use, completed an ‘Ice and Me’ program and are waitlisted for a ‘Men’s Behaviour Change’ program.

32You have been sentenced and served a term of imprisonment previously; however, this has been by far your longest time in custody.

Matters in Mitigation

Triable Issues

33Turning now to the matters in mitigation of your sentence. It was submitted that I should have regard to the value of your plea, in that there was a triable issue in relation to the prosecution’s proof of your identity, as being the person depicted in the CCTV footage on the morning of the shooting. The prosecution would also have advanced evidence of the motorbike, its presence in the driveway of the shooting, and its subsequent repainting after these events. I did not view the CCTV, but I note there was no forensic evidence in any form, and the submission that the CCTV depiction of you was unclear, was not contradicted.

34While I do not regard the evidence placing you at the shooting as necessarily weak, it is a matter I take into account in your favour, that you have offered a plea in circumstances where the prosecution case against you on your identity is neither perfect nor overwhelming.

Plea of Guilty and Covid-19 Pandemic

35Turning to your plea of guilty. Against the background of the pandemic and the measures taken to address its impact on the prison system, you have entered a plea of guilty which at any time bestows a significant discount on your sentence, but at this time, when disruption caused by the COVID-19 pandemic has caused significant delays in the court system, your plea will be rewarded with an additional and significant benefit.

36Your plea also delivers a utilitarian benefit: you have prevented witnesses from coming to court for a trial; you conducted your committal in relation to the informant only, and the costs of a trial, both human and financial are saved. These features of your pleas will be recognised on your sentence.

Onerous conditions in custody

37You have been in gaol now for over a year, since your arrest on 18 November 2021. During that year, your imprisonment has included periods in quarantine, limited access to visitors, limited access to rehabilitation services, and being subjected to extended periods of lockdown and isolation. I take into account that your period of imprisonment has been throughout some of the most difficult periods of the COVID-19 response.

Risk of deportation

38You are not an Australian citizen, but currently on a permanent partner visa; you are otherwise a citizen of Lebanon. You have lived here in Australia for 13 years.

39You fear the application of the Migration Act’s character test to your circumstances. All I can say about that is the application of this test may make your future in Australia less certain than it otherwise was. I make no assessment of the likelihood of your deportation. However, your anxiety about this potential event has no doubt weighed upon you and will continue to weigh upon you, and I take that into account.

Rehabilitation Prospects

40Turning now to my assessment of your prospects for rehabilitation. Before your committal to custody on these offences, you were labouring under a very significant addiction, in particular heavy ice use. Your capacity to rehabilitate depends on your capacity to address that issue. You have completed a program about the use of ice while in custody and returned negative random urine screens.

41You have long term plans, realistic ones it would seem, to recover your relationship with your children, but also you understand you need to have housing and work in place before you can achieve that. You have a plan to re-enter the workforce, you are on a Buprenorphine Program to assist with cravings. The more difficult scenario will arise upon your release from custody, when normal life resumes. You will need to take advantage of the therapeutic structures of the community corrections order. It is possible for you to shift this problem and live a prosperous and good life. However, my current assessment of your prospects for rehabilitations are good, I find, but with some reservations.

Remorse

42In your corrections assessment, you expressed empathy for the victim in this case, and expressed your shock at what had happened. I am prepared to find these insights, with your plea of guilty, establish the presence of some remorse, and take that into account.

Current Sentencing Practices

43I have had regard to other sentences imposed for the charges on this indictment. No case is particularly like yours, but I have had regard to the general sentencing landscape. The range of principle offences underpinning the charge of assisting offender is diverse in the sentencing landscape.

Sentencing Principles

44In fixing your sentence, I must apply s5(1) of the Sentencing Act, which provides that the only purposes for which sentences may be imposed are: just punishment, specific and general deterrence, rehabilitation, denunciation, and protection of the community.

45There is a role in this sentence for specific deterrence in the context of your previous history for convictions in relation to weapons and weapons-related offences. I also regard there as being a very significant role for general deterrence in relation to both charges on the indictment, but perhaps especially in relation to Charge 1, an offence against criminal justice. Standing in the way of a proper investigation of an offence should be understood to attract significant punishment. The ultimate aim of this sentence, and for all sentences, will be to protect the community, and it is for this reason that I would attach some rehabilitative conditions to your community corrections order. I will not add punitive aspects to the order, other than its natural restrictions on you, by reference to the amount of time you have already served in custody.

Disposition

46Mr Assi, this is the part where I tell you what you are actually getting.

47On Charge 1, assisting an offender knowing or believing he was guilty of a serious indictable offence, you are convicted and sentenced to a period of imprisonment of 10 months, in combination with the community corrections order of 12 months.

48On Charge 2, being a prohibited person in possession of a firearm, you convicted and sentenced to 4 months’ imprisonment, in combination with the community corrections order of 12 months.

49I direct that 2 months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1, creating a total effective sentence of 12 months in addition with the community corrections order. I make the same community corrections order in relation to Charges 1 and 2.

50On the related summary offences of committing an indictable offence while on bail and possessing a cartridge ammunition, you are convicted and fined $200 in each matter.

51This results in a total effective sentence across all charges of 12 months imprisonment with the community corrections order of 12 months duration and a fine of $400.

Section 6AAA

52Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty, but been found guilty after trial, I would have imposed a period of imprisonment of three years with a non-parole period of two years.

Section 18

53Pursuant to s18 of the Sentencing Act, I declare that you have already served 375 days imprisonment, 365 days of which are reckoned as already served pursuant to this sentence, and I note, but do not declare, the balance of presentence detention.

CCO Conditions

54Mr Assi, I am going to read you now the conditions of the community corrections order. Once I have read them to you, I am going to ask you whether you understand, whether you need to speak to your barrister first. You can do that if you want, and then I am going to ask you whether you agree to undertake that community corrections order. It is really important that you understand the order before you agree to doing it, because I take that moment when you agree to do the order quite seriously, alright?

Standard Conditions

55You will first be subject to the ‘standard conditions’ of a community corrections order. That means importantly, that you must not commit any other offences that are punishable by imprisonment during the 12 month period. If you do, you will be brought back to court before me and be resentenced.

56You must report within 2 days to the South Morang Community Corrections Services.

57You are required to advise your supervisor in the Corrections Office of any change of address where you are living or working, and you must do so within two clear working days. It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections order. You are not able to leave the State of Victoria without prior permission.

Special Conditions:

58The special conditions that I will impose are these: You must submit to supervision by your Community Corrections order case manager as required.

59You will be required to complete programs to continue to address your treatment and rehabilitation for your drug use.

60Finally, I require you to attend before me for judicial monitoring in six months' time so I can hear from Corrections how you are progressing, and the date of that attendance will be 29 May 2023 at 9:30am.

61I make the orders for forfeiture as sought.

62Ms Anderson what I am going to do now is briefly rise and allow you a moment to confer with your client. Because your client is appearing by video link, I am going to get his undertaking in oral form.

63MS ANDERSON: Yes.

64HER HONOUR:  But I need to make sure that he understands his commitment to the order before I do so.

65MS ANDERSON:  Thank you, Your Honour.

66HER HONOUR:  All right. Mr Cameron, have I missed anything formal?

67MR CAMERON:  No, Your Honour.

68HER HONOUR:  All right, thank you I will be back in a moment.

(Short adjournment.)

69HER HONOUR:  Yes Ms Anderson, did you have a moment to confer with your client?

70MS ANDERSON:  Yes I did, thank you Your Honour. He understands the conditions and he's given consent to me, but Your Honour may wish to ask him directly.

71HER HONOUR:  Mr Assi, do you understand what you are required to do under the order?

72OFFENDER:  Yes, Your Honour.

73HER HONOUR: Alright and do you undertake, that is, do you promise to do the conditions of the order?

74OFFENDER:  Surely, Your Honour, I will do.

75HER HONOUR:  All right. So, I'll get a progress report just before your judicial monitoring on 29 May, but I'll see you on that day at 9:30am. Alright, is there anything else counsel?

76MR CAMERON:  No, Your Honour.

77MS ANDERSON:  No, Your Honour.

78HER HONOUR:  Alright, thank you both for your assistance and for keeping the wheels turning these last few days. I appreciate it.

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