Director of Public Prosecutions v El Kheir

[2019] VCC 654

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02008

DIRECTOR OF PUBLIC PROSECUTIONS

v

NASSER EL KHEIR

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March and 8 March 2019 respectively
DATE OF SENTENCE:	30 April 2019
CASE MAY BE CITED AS:	DPP v El Kheir
MEDIUM NEUTRAL CITATION:	[2019] VCC 654

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Conduct endangering life – Prohibited person possess firearm – Alcohol affected at the time of offending – Suffers from numerous chronic medical conditions – Not suffering from any mental health, personality or substance abuse disorders – Firearm used in offending yet to be recovered

Cases Cited:            DPP v Graoroski [2018] VSCA 332

Sentence:Convicted and sentenced to combination sentence of 12 months’ imprisonment and 2 year Community Corrections Order – 308 days declared as having already been served as part of sentence imposed – s.6AAA Sentencing Act 1991 declaration – Ancillary Forensic Sample Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. French (Plea/Further Plea) Mr D. Weavers (Sentence)	Solicitor for Public Prosecutions
For the Accused	Ms A. Hancock (Plea/Further Plea) Mr McNall (Sentence)	Michael Gleeson and Associates

HER HONOUR:

1Nasser El Kheir, you have pleaded guilty to one charge of conduct endangering life and one charge of being a prohibited person in possession of a firearm.  Each of these offences has a maximum penalty of 10 years’ imprisonment which is a matter I must take into account in sentencing you, as the maximum penalties reflect the seriousness with which Parliament regards each of the offences.

2At the time of offending, you were 55 years old.  You were renting a room in Olsen Place, Broadmeadows. 

3The offending took place at a coffee shop which you frequented and which was diagonally opposite your premises. 

Offending

4At about 10.15 pm on 19 June 2018, you were at the Babylon Coffee Shop.  An argument started between you and a number of patrons about marriage between Christians and Muslims. You became highly agitated, gesticulating and yelling. You were escorted out of the café by the owner, a Mr Rofael, and one of Mr Rofael’s brothers.

5About five minutes later, you returned to the coffee shop.  You forcefully opened the front door and walked in, speaking and motioning to the patrons to go outside.  You stepped outside briefly and then re-entered the café.  As you did so, you pulled out a black coloured handgun from the front of your jacket.  The gun contained 9mm ammunition.  You racked the slide of the firearm and then fired two consecutive shots.  The bullet from the first shot hit a beam supporting the ceiling, while the second bullet hit the ceiling in an area above a table at which five patrons were seated. This gives rise to Charge 1: Conduct endangering life.

6You continued walking further into the coffee shop.  You were yelling, “Where is he?”  You appeared to be heading towards patrons who were at the rear of the shop.  Mr Rofael approached you, preventing you from walking further into the shop.  You pushed Mr Rofael, then turned around and walked out of the shop.

7The incident, overall, lasted about 40 seconds and was captured on CCTV cameras located inside the coffee shop.  There had been at least 14 people inside at the time of the shooting.

8You walked along Olsen Place and went back into your room.

9You were prohibited from being in possession of firearms at the time as you had previously breached a suspended sentence of imprisonment.  Therefore, your possession of the firearm on the day in question gives rise to Charge 2: Prohibited person possessing firearm.

Investigation, arrest and interview

10A customer in the coffee shop rang 000 and police attended a short time later.  Two 9mm ammunition cartridges were seized.  The CCTV footage was viewed and police checks were conducted, leading to you being identified as a suspect. 

11At approximately 6.30 pm on 20 June 2018, search warrants were executed on your room.  You were not present at that time.  The firearm was not found. 

12Police made extensive enquiries as to your whereabouts.  On 25 June 2018, a third party made contact with the Hume Crime Investigation Unit and advised that you would turn yourself in at 10 am the following day.

13At about 9.57 am on 26 June last year, you attended the Broadmeadows Police Station and were placed under arrest.  You made a “no comment” interview, as is your right. 

14Mr El Kheir, your offending is most serious and deserving of a punishment which is just in all of the circumstances and your conduct must be denounced.  I viewed the CCTV footage of the incident and it made for terrifying viewing.  I was told that you were heavily intoxicated at the time, which makes your handling of a firearm even more concerning, but I do not treat this as an aggravating feature.  It is apparent from the footage that you were arguing with one other patron at the coffee shop, in particular. Your counsel told me that this person was not someone that you knew, and that in the course of your argument with him, he gestured to slit your throat which was something that you particularly reacted to.  I am not at all clear that this is what he did, Mr El Kheir, but even if he had, you were not in any imminent danger, which is apparent from the fact that you were able to then leave the premises - or rather, you were made to leave.  You reacted in a most frightening fashion by discharging the handgun in the way that you did.

15In sentencing you, I have factored in that you fired the gun at the ceiling rather than in the direction of any of the patrons, having asked that a number of them leave before you did so.  Nevertheless, as you admit by your plea, you accept that your actions would have probably caused an appreciable risk to people’s lives in behaving as you did.  Further, your actions that followed, when you went further into the shop holding the gun, apparently in search of the man you had previously argued with, were most concerning. Fortunately, you did not try to fire the gun again, and the café owner bravely confronted you, pushing you out of the café.

16Your offending is most serious and calls for a punishment which is just in all the circumstances- as I have said, and your conduct must be denounced.

17There are no victim impact statements but, having viewed the footage, it is clear that a number of patrons did their best to take cover as you fired the gun, and I have no difficulty in inferring that the impact to those in the café must have been significant in terms of them experiencing sheer terror at what you were doing.  I cannot and do not speculate as to whether there are any lasting effects upon those in the café who you terrified, but you should know that your actions may well have caused long lasting psychological harm to some or all of those who witnessed your actions.

18I take into account your criminal history, which is somewhat limited:  In August 2007, you were granted a good behaviour bond in the Magistrates’ Court in respect of possess cannabis and failing to correctly store long-arm ammunition.  In relation to the latter charge, your counsel told me that you previously held a gun licence, so this is the context in which this offence arises.  You received a good behaviour bond in relation to these offences, as I have said.

19Three days after the hearing for the offences to which I have just referred, you were dealt with in the same court for making a false document to the prejudice of another and were convicted and sentenced to six months’ imprisonment which was wholly suspended for 12 months.  You were also fined in relation to a charge of cultivating cannabis.

20In 2013, in the Magistrates’ Court you were sentenced to four months’ imprisonment for driving in a dangerous manner and failing to assist after an accident where serious injury had occurred.  You appealed the sentence to this court in January 2014 and were sentenced to the same gaol term as in the court below but the term was wholly suspended for 12 months.

21On 5 December 2014, you were fined in respect of three driving whilst disqualified offences and a drink driving offence, the commission dates being in April, May and August 2014, and you were fined in respect of these.

22On 15 September 2016 in this court, you were dealt with for breaching the suspended sentence previously imposed, by dent of the offences to which I have just referred, and you were sentenced to one day imprisonment for the contravention charge, being time served, and in respect of the original offences for which you were granted the suspended sentence, the operational period in respect of that sentence was extended by a further 12 months.

23I have also been provided with VicRoads certificates in relation to driving offences which I have taken into account.

24This is the extent of your criminal history, which has fairly limited relevance to the offending before me, albeit that there is an offence relating to ammunition storage, however that is somewhat dated; on the other hand, you do have some history of breaking the law, although, as I say, this is somewhat limited.  

25In relation to the firearm, which you had access to on the occasion for which I sentence you, your counsel told me that you had found it, together with ammunition, hidden in the front garden of a property where you had previously lived, and had decided to keep it.  I must say that I found your explanation about this rather hard to believe – that, apparently someone had hidden their weapon with ammunition in a place where you were apparently able to find it.  In any event, whether this is correct or not, you knew that you were not to be in possession of such a weapon, a weapon of such a lethal nature.

26Your counsel told me that you had consumed a good deal of whiskey on the day of the offending for which I now sentence you, and submitted that the actions of the other person with whom you argued were of a provocative nature.  She said that the other party to the argument was expressing intolerance in respect of Muslims and Christians marrying, which incensed you, as you were and are most tolerant in this regard, and have family members who have married Christians.  While I am unable to be satisfied on the balance of probabilities that this other person gesticulated so as to slit your throat, I do accept that in your drunken state, and as a result of the argument, you became very angry to the point of behaving in the outrageous manner that you did.  In the clear light of day, you accept that your reaction was completely disproportionate, and I understand that you have developed insight into the relationship between your alcohol abuse and violent reaction on the occasion in question.

27In your favour, I allow for a significant discount in the sentence that you would otherwise receive as you entered pleas of guilty at an early stage, saving the witnesses the time and trouble of giving evidence and saving the community the time and expense of contested proceedings.

28I take into account your background:

29I was told that you fled Lebanon a number of years ago with your young family as you were being pursued by the Syrian army in the context of the war that was raging in your country at the time.  In Mr Ball’s psychological report, he notes that you and your wife came to Australia with your first two children, and that you had another two children in Australia.  You and your wife separated some time ago and you raised your children single-handedly.  Your children are now all adults and are flourishing.

30You and your children have a very close relationship, and you are also very devoted to your five grandchildren.  I was told that you will not allow your grandchildren to visit you in prison, and have wept at the thought of the effects of your behaviour and incarceration upon them.  Your grandchildren are a large incentive for you to behave well in the future.

31I was told that you have not worked for a number of years as you have significant back pain because of four slipped discs and because of your other health issues.

32According to Mr Ball, psychologist, you are “asymptomatic for intermittent explosive disorder, sudden emotional dysregulation or explosive rage”, and that ordinarily, you have good anger management skills.  In Dr Ball’s view, the alcohol negatively impaired these on the night in question.  He found that you did not suffer from any mental illness or personality disorder or substance abuse disorder or any other “pervasive clinical syndromes”.

33Mr Ball said that your safe management in the community presented with some challenges related to your low self-esteem, social isolation and mood management.  Insofar as Mr Ball spoke about possible dispositions in your case, I put these to one side as this is not a matter for him.  However, I take into account that you might well benefit from some counselling.

34In sentencing you, I also factor in your various health conditions which were set out in a letter from your family doctor.  He said that you have multiple chronic and critical medical conditions that need regular medical attention.  Your health conditions include ischaemic heart disease, hypertension, diabetes, high cholesterol, chronic lung disease as well as spinal osteoarthritis.  You take numerous medications on a daily basis in order to deal with your ailments.

35I was told that, at first, because of your limited English, you did not receive your proper medication, as I understand it, whilst in custody, and I was also told that you suffered a heart attack, which led to your hospitalisation.  However, now you are receiving appropriate care, although I was told that your back pain is not properly addressed in custody, as you are only able to have Panadol.  In this regard, I note that my associate made contact with the prison authorities in order to maximise the care and attention you were in need of in relation to such ailments.  I was also told that you were suffering from some dental problems.  As I say, I arranged for my associate to contact the relevant person at the prison in order to have this issue addressed as well.

36In the circumstances, I allow for the fact that your time in custody was initially harsher than it might have otherwise been, and I also allow for the fact that you still experience back pain and that the ongoing stress of being in custody, which is negatively impacting on your health, albeit that your medical care is being appropriately administered as best it can be in a custodial setting.

37Your behaviour in gaol has been most impressive. You have attended AA meetings and you have a glowing report from Mr Brindle from that association.  He believes that you are genuine in your resolution to abstain from alcohol upon your release from gaol, and said that you intended to go to AA meetings in Melton upon your release.  He believes that you can remain sober in the community with the help of your family.

38Altaf Hussain, Senior Prison Chaplain, Islamic Council of Victoria, also speaks highly of you and said that you have taken part in services regularly, and that you are an excellent role model to other prisoners who are in search of religious faith.  I understand that you are a positive mentor for prisoners, regardless of their religion.

39I have also taken into account the other character references which were tendered on your behalf, and find that you have some very fine attributes, which are much admired by others.  I accept the offending before me is out of character, notwithstanding that you have previously broken the law on occasion.

40Having regard to the material before me, including your letter to me, I am satisfied that you have remorse for your actions and have some insight into the seriousness of your conduct and the link between this and your alcohol intake.  At the plea hearing, I expressed my concern that the firearm was yet to be recovered, and said that whilst I would not make an adverse finding against you if you did not arrange for its surrender, I would consider such a gesture as being a most significant expression of remorse.  It would also bear upon the weight that might attach to protection of the community.  At the further plea hearing, I was told that you were willing to co-operate with the surrender of the weapon but that relatives who might otherwise assist you to do this, were concerned with their own liability if they were to be the agents to help this to happen.  I viewed an email from police that set out their position in relation to the surrender of the gun, which is understandable in the circumstances.  In any event, I made it clear that in the period between the further plea hearing and the date for the subsequent hearing and sentence, being today, that if, somehow the gun and ammunition could be safely surrendered to police, I would still take this into account in your favour in the ways that I previously expressed.  I was told today that despite your best efforts which were restricted because of your incarceration, you have not been able to arrange for the surrender of the weapon but will do so when you are released from custody.  I have taken this into account, in sentencing you, in your favour so I would expect that you will follow through on this as soon as you are released from gaol.  Do you understand that, Mr El Kheir?

OFFENDER:  Yes, Your Honour.

41I accept that you are ashamed of what you have done and that you have done what you can to address your issues with alcohol.

42You have good family support and intend to live with one of your daughters when you are released.  I was told today that your former wife has been visiting you recently and that there is a prospect of you reuniting.

43In view of all the relevant matters, I find that your prospects of rehabilitation are rather good and I place less than moderate weight on specific deterrence and protection of the community.  However, I must place strong weight on general deterrence in a bid to deter others from behaving as you have.

44You have now been in custody for a substantial period, which will be factored in by way of pre-sentence detention.  I will also make some allowance in respect of the 44 days which you served in relation to another matter, which was ultimately discontinued, but factoring in that this was about 10 years ago and that you have been dealt with in the courts in the meantime such that, as the learned prosecutor said, it might be expected that you have had some allowance made for this in respect of sentences in the intervening period.

45I have had regard to current sentencing practice in respect of offending of this kind insofar as I can.  In this regard, I have borne in mind the Court of Appeal decision of DPP v Graoroski [2018] VSCA 332, which was referred to by your counsel this morning, and I have borne in mind her submissions in respect of this. I have also borne in mind that current sentencing practice is but one matter for me to consider in arriving at an appropriate sentence.

46Your counsel submitted that a gaol term in addition to a suitably crafted Community Corrections Order was appropriate in your case.  However, the prosecution submitted that a gaol term with a non-parole period was the only appropriate sentence.  Counsel for the prosecution previously submitted that, in any event, there was no work for a Community Corrections Order to do in circumstances where you were not fit for work and did not have any mental health issues or the like to be addressed.  I do not accept this.  A Community Corrections Order can afford you appropriate programs and treatment that you might well need, and I am of the view that your mental health is something which needs some attention.  In any event, I am obliged by the law to consider the sentencing option of a Community Corrections Order without or with a term of imprisonment before I consider a term of imprisonment involving a head sentence and a non-parole period.

47Mr El Kheir, your case is a most troubling one.  On the one hand, your offending is most serious and disturbing.  On the other hand, there are a number of matters that count in your favour.

48I decided to have a detailed assessment of your suitability for a Community Corrections Order conducted and you have been found suitable for such an order.

49The author of the report assessed you as being at low risk of general re-offending and did not recommend any conditions other than alcohol treatment including testing and mental health assessment and treatment.  In relation to the suggested condition of supervision, the assessing officer said that he did not recommend this in your case, as “research indicated that the best rehabilitation outcomes are achieved where interventions are targeted to factors directly related to a person’s offending behaviour and matched to their risk of re-offending,”(p.4).  The assessing officer did not recommend judicial monitoring or any offence-specific programs either, in view of your low risk of re-offending, indicating that issues in respect of your offending would be best addressed through the mental health condition. 

50At the end of the day, I am of the view that a gaol term in combination with a suitably crafted Community Corrections Order is appropriate in your case.  I am of the view that it is necessary for you to serve a little longer in order to appropriately address all relevant sentencing principles, but one which will see you released in the not too distant future.  I want you to start preparing for your transition back into the community in the meantime.  In sentencing you, I have been careful not to impose double punishment in respect of the offences, and am of the view that an aggregate term of imprisonment is appropriate.  

Would you please stand up?

51You are convicted of the offences.

52I make an order for a forensic sample to be taken from you by way of a buccal swab from the mouth.  I make the order because of the seriousness of the offences, because it is not opposed and it is in the public interest to make the order.  I must warn you that if you do not co-operate in the taking of the sample then the authorised officer or officers may use reasonable force to obtain the sample.

53In combination with a gaol term that I will tell you about in a moment, I intend to place you on a Community Corrections Order (CCO) for a period of two years from your release from gaol but I can only do this with your consent, so please listen carefully to the order that I propose:

54The CCO would run for a period of 2 years.

55The conditions of the CCO would be as follows:

56The mandatory terms that apply to all Community Correction Orders, but apply to you, which are:

57You must not commit another offence for which you could be imprisoned during the time that the order is in force;

58You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;

59You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);

60You must report to the appropriate Community Corrections Centre before 4 pm within two clear working days of your release from custody;

61You must let a community corrections officer know within two clear working days of you changing your address or job;

62You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his, or her delegate);

63You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his, or her delegate).

64The conditions that apply in addition to the mandatory terms listed are:

Treatment and Rehabilitation

65You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Regional Manager.

66You must undergo mental health assessment and treatment including, (but not limited to), mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager.

67And I have also imposed a restrictive condition on you, in my discretion, and that is, you must not enter or remain or be within 100 metres of the Babylon Coffee Shop, 14 Olsen Place, Broadmeadows for two years from the commencement of the Community Corrections Order.

68Do you consent to the terms and conditions of the order that I propose?

OFFENDER:  Yes.

69HER HONOUR:  I should tell you that if you do not comply with all of the requirements of this Community Corrections Order then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to gaol.  I would regard a breach of the Community Corrections Order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

70Do you understand this?  

OFFENDER:  Yes.

HER HONOUR:  Do you still consent to the order?

OFFENDER:  Yes.

71HER HONOUR:  All right.  At this stage, I will have your counsel help you to sign the Community Corrections Order.

72In addition to this Community Corrections Order, you are sentenced to an aggregate term of 12 months’ imprisonment.

73I declare that you have already served 308 days by way of pre-sentence detention, so you have about two months to go.

74If not for your pleas of guilty, I would have sentenced you to a total effective sentence four and a half years’ imprisonment with a non-parole period of three years.

75Just take a seat for a moment, please, sir.  

76Anything arising, counsel?

77COUNSEL:  No, Your Honour.

78HER HONOUR:  All right.  Now, Mr McNall, did you wish to have a word with your client before he’s removed?

79MR McNALL:  I’ll be seeing him downstairs anyway, so that’s not necessary.

80HER HONOUR:  It’s just he mightn’t have the benefit of the interpreter then, I’m not sure.

81MR McNALL:  I believe the interpreter’s booked until 1 o’clock.

82HER HONOUR:  All right.  Yes.  Very well.  Thank you.  You can remove Mr El Kheir.

83MR McNALL:  Thank you, Your Honour.

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