Director of Public Prosecutions v Chaouk (Sentence)
[2019] VSC 381
•13 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0011
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI CHAOUK |
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JUDGE: | BELL J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 and 23 May 2019 |
DATE OF SENTENCE: | 13 June 2019 |
CASE MAY BE CITED AS: | DPP v Chaouk (Sentence) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 381 |
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CRIMINAL LAW — sentencing — murder — unarmed man shot five times in public place — history of animosity between offender and victim — offender concealed his involvement and intimidated another into taking blame for killing — serious example of crime of murder — significant mitigating considerations — offender aged 39 years has spent most of adult life in prison — serious risk that imprisonment would significantly and adversely affect mental health of offender — minimising danger of offender becoming so institutionalised by further imprisonment that he could not function in society upon ultimate release — by reason of the protective nature of management regime applying to conditions of offender’s imprisonment, he would find the burden of imprisonment more onerous — offender sentenced as violent offender for relevant offence — community protection therefore the principle purpose of sentencing — Sentencing Act 1991 (Vic) ss 5(1), 6D(a).
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APPEARANCES: | Counsel | Solicitors |
| For the prosecution | Mr P Bourke with Ms D Karamicov | Office of Public Prosecutions Victoria |
| For the defence | Mr P Tehan QC with Mr A J Patton | Valos Black & Associates |
HIS HONOUR:
Ali Chaouk, after a trial lasting 22 days in which you pleaded not guilty to the charge of murdering Mohammed Haddara at Altona North on 20 June 2009, the jury returned a verdict of guilty. Next week will be the tenth anniversary of the day that Mr Haddara died, which will make it a difficult time for his family and others directly affected by his violent death, as it will for the local community.
Mr Haddara was born in Lebanon on 14 April 1981 and he was aged only 28 years when he died. He was one of six children of the late Ahmed Haddara and Zalfa Haddara, who migrated to Australia in 1984. Mohammed Haddara was a spray painter who worked with his cousin in Williamstown. He was married to Mirna Hussein in 2005 and the couple had two young children, both girls. The family lived in Hoppers Crossing and Ms Hussein was pregnant with a third child, a boy. He was born shortly after Mr Haddara’s death.
Thus, as movingly explained by Ms Hussein in her victim impact statement, which was read to the court, Mr Haddara was a young husband and father when he died. The family were about to start life in a new home. In consequence of your crime of murder, that did not happen. Ms Hussein experienced her husband’s violent death and the birth of their son in rapid succession. Mr Haddara and his son never met. The three children have lost their father and Ms Hussein has lost her husband. She has been left with lifelong grief and the heavy responsibility of explaining the cause of Mr Haddara’s death to his three children as they gradually become old enough to understand. Further details of the heavy emotional and financial impact of the crime are contained in Ms Hussein’s victim impact statement.
It is easy for us to understand that the murder of Mohammed Haddara had dreadful consequences for his immediate family, as explained by his widow, and including his brother Fadi Haddara and cousin Ghazi Haddara, who found his body in an undignified position face-down and bleeding on the road where the killing occurred. But it is necessary to appreciate that the impact of the crime has been much wider than that. This killing was carried out with a firearm in a suburban street next to a park where ordinary members of the community lived decent lives and went about their lawful business. That such public violence should have occurred was terrifying and traumatic for the local community, especially for those living nearby. That community was represented by one brave resident who came out of her home at the sound of gunfire and protected Mr Haddara’s body until the ambulance arrived, and again bravely relived that difficult experience when giving evidence at the trial. The court commends this woman for the compassion, strength and dignity that she exhibited on both of these occasions. It brought credit to the community to which she belongs.
Another person, Ahmed Hablas, was previously charged, tried and acquitted by a jury in respect of Mr Haddara’s murder. It was after that trial that you were charged with and tried for that murder. Mr Hablas gave evidence for the prosecution, the substance of which was accepted by the jury. This course of events is unprecedented in the history of the court. The severe impact of the crime upon Mr Hablas is explained in the victim impact statement that he has provided.
The circumstances of the offending were that great animosity existed between you and Mr Haddara. That animosity was apparent in telephone exchanges occurring between you and him shortly before the murder. In the last conversation, it was agreed that you and Mr Haddara would meet ‘one on one’. While there was no suggestion in that conversation that weapons would be involved, you could not have sensibly excluded the possibility that he might bring one. You could not even have been confident that Mr Haddara would be alone. You brought a firearm to the place where you met. I cannot be satisfied beyond reasonable doubt that, when you did so, it was because you had already formed the intention to kill Mr Haddara. You could well have brought it for your own protection.
You arrived at the scene in a motor vehicle at about 7.30pm. Mr Haddara was already standing there alone, unarmed. You alighted from the vehicle and shot him five times. The pathology evidence established that the shots were fired twice to his side and three times to his back, one of those five when he was lying on the road. There were no other people present. The terrible scene was soon attended by the nearby resident and Mr Haddara’s cousin and brother, and police and ambulance services who arrived soon after that. Sadly, Mr Haddara could not be saved, and he died where he lay.
Given this manner of death, the main question for the jury was whether it was satisfied beyond reasonable doubt by the evidence led for the prosecution that the shooter was you. You did not place self-defence in issue. While you still now maintain your innocence, as is your right, the jury found that the shooter was you. It is obvious that you intended actually to kill Mr Haddara, and not just to inflict really serious injury upon him, and I think the jury so found. As a person found guilty of murdering an unarmed man with a firearm in a suburban street, you will be sentenced to a substantial period of imprisonment, as your counsel correctly acknowledged.
However, it would not be right for that period of imprisonment to be reckoned upon the basis that the crime was premeditated. As such a finding would represent an aggravating consideration, I would have to be satisfied of it beyond reasonable doubt, and I am not. On the evidence before the jury, you did not — as it were — wake up that day with a murderous intent. The arrangement to meet Mr Haddara at the place of his death was made when the two of you spoke on the telephone just prior to the meeting. Before then, you could not have known that you would be talking with him. You could not have known that, in the conversation, it would be agreed that the two of you would agree to meet ‘one on one’. You were not far away at the time and did not take long to get there. I find on the balance of probabilities that you formed the intention to use the firearm to kill Mr Haddara when you confronted him, not before. Using the firearm in that way was morally culpable and utterly reprehensible, but it was the product of great animosity and uncontrolled anger and impulse, not premeditation. You will be so sentenced.
Certain features of your subsequent conduct are so directly connected with the physical act of the crime as to constitute aggravating circumstances. I refer to evidence that the jury must have accepted in the following categories:
· steps taken by you immediately after your offending to conceal your involvement, including steps taken with others;
· intimidating Mr Hablas to ‘take the rap’ (as the saying goes) by making a false statement and giving a false account of what happened to Mr Haddara in an interview with police; and
· making a false statement to police in the days following the murder.
These considerations make an already serious example of the crime of murder all the more serious. A related consideration is that at no stage have you demonstrated remorse or any sense of personal responsibility for the loss of Mr Haddara’s life and its consequences.
Turning to your background and personal circumstances, I obtained the following information from your prison history, the comprehensive sentencing remarks of two judges of the County Court of Victoria on previous occasions, several medical reports (including a recent neuropsychological report) and an agreed statement of the prosecution and the defence about the conditions of your imprisonment. Much of the medical information is personal to you and I will not refer to it in detail.
You were born in Australia on 23 November 1979 and are aged 39 years. Your wife is Rana Hoblos and you were married in 2008. You have one child, a son, who is aged nine years.
A feature of your family is intergenerational violence towards others which I hope you can see must stop. I hope you play a role in your family in making it stop. You are the fourth of six children born to parents who migrated to Australia from Lebanon over 40 years ago. Your grandfather was killed in a war between villages. When aged 19 years, your father married your mother, his first cousin, whose father was killed in the same war. Your father thus became the head of two families. After migrating to Australia, the family was productive and industrious. Regrettably, some of its members drifted into drug-dealing and crime. When aged about 10 years, you witnessed your father shoot another man. That must have been a shocking thing for a young person to behold. Your brother, Mohammed, was shot dead by police during a raid in April 2005. You were aged only 25 years. Your father has served a sentence of imprisonment. He was killed in August 2010 in a highly publicised shooting. You were aged only 30 years.
You yourself have a long criminal history, including for crimes of violence, of which the court has the official record. I will not set out the details. You have spent 13 of the past 14 years in prison, a substantial part of your adult life, of which, to your credit, you are only too aware. You murdered Mr Haddara in 2009 during the one year of the past 14 years that you were not in prison. You engaged in other acts of violence after that. This is a bad record and it stands against you in this case.
Three psychiatric and neuropsychological reports give a consistent account of your several physical and mental health conditions, which the prosecution and the defence agree I should not publicly discuss in detail, lest this be used against you in prison. Suffice to say that, due to learning and behavioural difficulties, you struggled and were bullied and bashed at school and are poorly educated. Your schooling was changeable and incomplete. You left school early and tried several kinds of work without success. You did thrive in the fruit shop business that the family established, especially because this meant that you could work with your father, but it was sold when you were aged 17 years. You went socially downhill when your father was imprisoned when you were aged 18 years. You became disengaged from your family and started abusing drugs and alcohol. Your long criminal record, mostly for drug-related offences, began in 1999 when you were aged about 20 years.
As set out in the most recent neuropsychological report, which is very thorough and was most helpful to the court, you have a history of psychiatric illness and suffer from certain mental disabilities and impairments which have never been properly treated. For those reasons, you have a relatively poor capacity to reason and are inclined to act impulsively whatever the consequences. This goes some way towards explaining why you murdered Mr Haddara in the circumstances that I have explained, although it does not absolve you of moral responsibility for the crime. Far from it.
It is a sentencing principle that, where imprisonment presents a serious risk of significantly and adversely affecting the mental health of the offender, this is a factor tending to mitigate punishment.[1] This principle is based on the fundamental principle of equality before the law. A sentence of imprisonment that so risks affecting the mental health of an offender in a way that is significantly adverse increases the burden of the sentence for that offender relative to other offenders. Therefore, it can be taken into account in the offender’s favour. The medical evidence clearly establishes that this is so in your case, as was accepted by the prosecution. However, this is only one consideration and, as we will see, community protection is the principle consideration.
[1]R v Verdins (2007) 16 VR 269, 276 [32(6)] (Maxwell P, Buchanan and Vincent JJA).
A related sentencing principle, indeed a statutory purpose of sentencing, is that, consistently with other purposes of sentencing, the sentence should establish conditions which facilitate the rehabilitation of the offender.[2] In this connexion, it has been held that the court should ‘take into account in sentencing the purpose of preventing recidivism and institutionalisation and facilitating a prisoner’s reintegration into the community’.[3] Because you have spent so much of your adult life in prison, there is a danger that you will become so institutionalised by further imprisonment that you will be unable to function in society upon your ultimate release. It is appropriate that I take this into account as a mitigating consideration. While you have already spent the most of your adult life in prison and may even now institutionalised to some extent, I think this principle always has work to do. The law should never give up on the prospects of someone avoiding institutionalisation, especially someone like you who, out of self-respect, wants to do so. However, again, this is only consideration, and community protection is the most important one.
[2]Sentencing Act 1991 (Vic) s 5(1)(c).
[3]DPP(Vic) v Stone [2003] VSCA 208 (20 November 2003) [20] (Charles JA, Winneke ACJ and Eames JA agreeing).
There is finally the question of the conditions of your imprisonment. In sentencing an offender to a term of imprisonment, the court may, in reckoning the length of that term, take into account that the offender may find the burden of imprisonment more onerous because there is some necessity to protect the offender, by segregation, from other prisoners.[4] This too is based on the fundamental principle of equality before the law. A sentence of imprisonment that will (in that way) be served more harshly increases the burden of the sentence for the offender relative to other offenders. Therefore, it can be taken into account in the offender’s favour. The agreed statement reveals that you are a maximum-security prisoner. You are classified as a major offender due to your high profile. You have been separated from other prisoners for extensive periods since 2009 and that continues to be the case. You occupy a cell alone for 18 hours per day, but may physically interact with two other prisoners, and verbally interact with five other prisoners, during the other six hours that you are allowed out. In view of your positive behaviour and favourable management rating, you enjoy access to most prisoner privileges and some additional privileges, including contact visits. You have regular contact visits with your family, including your son. You wish to transfer out of this long-term restrictive management regime, but this cannot be done until you are reclassified, which is in the hands of the prison authorities. The agreed statement gives further details of these arrangements.
[4]See, eg, R v Rostom [1996] 2 VR 97, 102 (Charles JA, Calloway JA and Vincent AJA agreeing).
By reason of the protective nature of this management regime, you will find the burden of imprisonment more onerous than would otherwise be the case. The regime has been followed for significant periods during your remand on the present charge and will be followed into the foreseeable future in respect of the sentence that I will here impose in accordance with the verdict of the jury. It is appropriate that I take this into account as one mitigating consideration.
On the prospects for your rehabilitation, there is reason to think, and certainly to hope, that you wish to lead a decent and lawful life after your eventual release. You have engaged very fully with your forensic neuropsychologists and given the court insight into your medical issues which, beside the mental ill-health I have mentioned, include chronic back pain and severe migraines. Despite your imprisonment, you have maintained a positive relationship with your wife and son. The restrictive nature of your custody is for your protection, not the protection of others. You are a well-behaved prisoner with a favourable management rating. You have undertaken certain educational and self-improvement courses in prison, as these have been made available. Despite the gravity of the crime that you have committed and the absence of any expressed remorse, I do not consider you to be completely beyond redemption, although I must be guarded about the prospects for your ultimate rehabilitation.
Under s 5(1)(a)–(e) of the Sentencing Act 1991 (Vic), the only purposes for which a sentence may be imposed are to punish the offender to an extent and in a manner which is just in all the circumstances, to deter the offender or other persons from committing offences of the same or a similar character, to establish conditions facilitating the rehabilitation of the offender, to manifest the denunciation of the court for the type of conduct in which the offender engaged and to protect the community from the offender.
For the reasons I have given, the murder of Mr Haddara was a serious example of this crime which must be reflected in the punishment to be imposed. That punishment must be a substantial period of imprisonment. It must be one that reflects the grave nature of the offending (taking the aggravating circumstances into account). It must also be one that manifests the court’s strong and unequivocal condemnation of crimes of violence, especially where the unarmed deceased person was callously gunned down in a public place, causing children to lose their father and a wife her husband, and causing suffering to others as well.
General and specific deterrence are important sentencing considerations in this case. Those who would commit such crimes, and you, must be made to understand that the offender will face the full force of the law when they are brought to justice, even where this requires two successive trials of two different accused persons, one acquitted and then the other convicted, as has occurred in this case.
There is a need to protect the community from you as the offender. The community is entitled to feel safe and protected as a matter of fundamental human rights. Your criminal conduct undermined that feeling of safety and protection and traumatised the community. Because you are being sentenced as a serious offender for a relevant offence, s 6D(a)[5] of the Sentencing Act requires the court, in determining the period of a sentence of imprisonment to be imposed, to have regard to protection of the community from the offender as the principle purpose of the sentence. I apply this statutory directive having regard to your long criminal record and the nature of the murder that you committed, that is, the murder of an unarmed man in a public place. In few cases is community protection more called for. This consideration is mainly reflected in the length of the term of imprisonment, which is necessarily substantial.
[5]Paragraph (b) was not relied upon by the prosecution.
Balanced against these considerations, I will be giving due weight to several important mitigating factors which I have discussed. These include the serious risk that imprisonment will significantly and adversely affect your mental health; minimising so far as possible consistently with other sentencing principles the danger of you becoming so institutionalised by further imprisonment that you will be unable to function in society upon your ultimate release; and, by reason of the protective nature of the management regime that applies to the conditions of your imprisonment, you will find the burden of imprisonment more onerous than would otherwise be the case. I also consider, in a guarded way, that you have some prospects for rehabilitation. These mitigating considerations are reflected somewhat in the period of the head sentence but most especially in the non-parole period. The length of that non-parole period will ensure that, if you are granted parole, the parole authorities can provide you with support and monitoring, which will both benefit your rehabilitation and enhance protection of the community.
Ali Chaouk, for the murder of Mohammed Haddara at Altona North in Victoria on 20 June 2009, you will be sentenced to imprisonment for a period of 24 years. I fix the period during which you will not be eligible for parole as 18 years. The number of days of pre-sentence detention is 843 (not including the day of sentence). Pursuant to s 6F(1) of the Sentencing Act, an entry is to be made in the records of the court that you were sentenced in respect of the offence as a serious offender.
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