Director of Public Prosecutions v Fahal
[2023] VSC 272
•2 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0064
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| AMMAIR FAHAL | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 May 2023 |
DATE OF SENTENCE: | 2 June 2023 |
DATE OF REVISED REASONS: | 5 June 2023 |
CASE MAY BE CITED AS: | DPP v Fahal |
MEDIUM NEUTRAL CITATION: | [2023] VSC 272 |
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CRIMINAL LAW – Sentence – Guilty plea – Aggravated burglary – Four co-accused - Victim sustained fatal head injury – Offender not present at the property – No pre-sentence detention – Prior criminal history – Primacy of general and specific deterrence, denunciation, just punishment and community protection – Sentenced to a combination sentence of 6 months’ imprisonment and a 12-month Community Correction Order – Sentencing Act 1991 (Vic) ss 6AAA and 8A.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Porceddu Mr P Pathmaraj | Office of Public Prosecutions |
| For the Accused | Mr P Tehan KC Mr J Barreiro | Slades & Parsons Criminal Law |
HIS HONOUR:
Introduction
Ammair Fahal, on 1 February 2023 in this Court, you pleaded guilty to one charge of aggravated burglary. That offence occurred on 18 July 2020 at Lalor. You were one of a number of people involved in the incident, though you were not physically present when entry into the premises was attempted. During the course of this incident, an occupant of the premises was fatally shot by one of the group you were part of. You were not complicit in any respect in that occurring and it may be that no-one will be accountable for that shooting.
On 4 May 2023, I heard a prosecution opening and submissions from Mr Porceddu, who appeared with Mr Pathmaraj, and I also heard from your counsel, Mr Tehan KC, who appeared with Mr Barreiro on your behalf, as to the sentence that should be imposed on you. I have also read and considered the following documents provided during your plea hearing:
(a) Report of Clayton Thomas, dated 24 December 2020;
(b) Report of Professor Stephen Davis, dated 17 August 2021;
(c) Report of Dr Brendan Hayman, dated 19 May 2021;
(d) Report of Dr Ahmad Al-Sharifi, dated 17 March 2023;
(e) Report of Dr Izabela Walters, dated 15 May 2021;
(f) Forensic Psychological Report of Patrick Newton, dated 22 April 2023;
(g) Letter from Mustapha Kamaleddine, dated 24 April 2023;
(h) Letter from Emir Saka, dated 27 April 2023;
(i) Letter from Ibrahim Fatrouni, undated;
(j) Letter from Ammair Fahal, dated 2 May 2023;
(k) CCO Assessment Outcome Report, dated 5 September 2022; and
(l) Correspondence received from Grace Lazzar, dated 1 May 2023.
The maximum penalty for this offence is 25 years’ imprisonment.[1]
[1]Crimes Act 1958 (Vic) s 77(2).
Status of the co-offenders
It is relevant to note the following in relation to your co-offenders.
Abdullah Hammoud was sentenced on 17 February 2023. On the charge of attempted armed robbery, he was sentenced to 2 years’ imprisonment. On the charge of aggravated burglary, he was sentenced to 2 years’ imprisonment. It was directed that one year of the sentence on charge 1 be served cumulatively with the sentence on charge 2. The total effective sentence was therefore, 3 years’ imprisonment and it was directed that he serve a period of 2 years and 2 months before he becomes eligible to apply for release on parole.[2]
[2]DPP v Hammoud [2023] VSC 58.
In relation to Tahmid Rahman, on 23 March 2023, he was sentenced as follows. On a charge of aggravated burglary, he was sentenced to be imprisoned for a period of 212 days. He had already served that period. I also ordered that he be placed on a Community Correction Order for a period of 12 months, commencing on that day and perform 150 hours of unpaid community work.[3]
[3]DPP v Rahman [2023] VSC 87.
Adam Tiba, who was charged with murder, attempted armed robbery and aggravated burglary has not yet been dealt with.
It is now my responsibility to sentence you for this offence.
Circumstances of the offending
Events on 23 June 2020
On Tuesday, 23 June 2020, Tiba and Hammoud met with two men named Dimitros Pramatias and Lorenzo Tigani in Roxburgh Park. Pramatias planned to purchase a significant amount of cannabis from Hammoud. However, that plan fell apart when Tiba and Hammoud attempted to rob Tigani at gunpoint. A physical struggle ensued between all four men, during which Tiba and Hammoud sustained stab wounds. It is not alleged that you were part of this event nor that you had any role in it. I refer to it only because it brings some context to how the offence you committed came to happen.
Events on 18 July 2020
Nearly a month later, on Saturday 18 July 2020, Tigani’s friend Christian Rubini organised a get-together with Tigani and their mutual friend, Adrian Pacione (‘the deceased’). Rubini wanted to provide support for Tigani, who was mourning the recent loss of his grandmother. They planned to eat pizza and watch the Clint Eastwood film, ‘Gran Torino’, at Rubini’s home at Unit 2, 2 Ella Court in Lalor (‘the Lalor premises’).
Shortly before 10.40pm, Tiba, Hammoud and Rahman pulled up in a car into the driveway of the Lalor premises. It is not alleged that you were with them at this time. Shortly after their arrival, four bullets were fired into the front window of Rubini’s home. One of those bullets struck Adrian Pacione’s head. He was taken to the Royal Melbourne Hospital with life-threatening injuries. He was later pronounced dead on 20 July 2020.
On the prosecution’s case, the four men – Tiba, Hammoud, Rahman and yourself, devised a plan to assault at least one of the occupants of the Lalor premises on 18 July 2020. The accused men were seeking retaliation for what had occurred on 23 June 2020, during which Tiba and Hammoud were stabbed. On the prosecution’s case, as it initially stood, the offender who fired the four bullets into the home was Tiba. Following the recent intervention of the Court of Appeal, the charge of murder was withdrawn by the Director of Public Prosecutions. His matter remains before this court.
The prosecution allege, and by your plea you accept, that you entered into an agreement with the other co-accused to commit an aggravated burglary at the Lalor premises. You engaged in numerous telephone conversations with Rahman before and after the aggravated burglary had taken place which demonstrate your role in the offending.[4] Importantly, a telephone conversation between yourself and Rahman at 7.05pm demonstrated your knowledge as to the purpose of the visit that was to be paid to the occupants at the Lalor premises. In the execution of this agreement, you picked up Rahman from an address in Craigieburn, dropped him off at a separate location to allow him to travel to the Lalor premises with Tiba and Hammoud. Whilst it is not alleged that you were with the other co-accused at the time of the aggravated burglary, you surveyed the premises in the time preceding the commission of the offending. You then collected Rahman once the aggravated burglary had been completed.
[4]At the time, Tahmid Rahman’s telephone calls were being recorded by law enforcement officials pursuant to a lawful warrant.
I do not take the view that your role was minor albeit that you were not actually at the scene when entry to the premises was later attempted.
Arrest and interview
You were arrested by police at your home in Roxburgh Park on 22 October 2020.
During a subsequent interview with police, you indicated that around dinner time on 18 July 2020, you had met up with some friends and were then dragged to ‘Tommo’ which I assume refers to Thomastown. You stated that you then drove around and went to McDonald’s with a friend. You indicated that you waited in the McDonald’s car park with a friend for about 15 to 20 minutes whilst you ate. You indicated that you then dropped off that friend to his friend’s house whilst you were on your way home. You indicated that you then called another friend and ‘hung out’ with him. You stated that on 18 July 2020, you drove a red Kia Cerato, which was from a rental company. When asked why you were at Ella Court on 18 July 2020, you answered ‘I was drugged up. I was confused about a lot of things. Xanax makes you forget’.
Following your interview, you were released on bail, and you have remained on bail since that time. Accordingly, unlike your accomplices, you have not served any pre-sentence detention. That, of course, emphasises the difficult issue in your case as to whether you should now be required to serve some period of immediate imprisonment. I will return to the competing submissions about that later in these reasons.
Personal circumstances
Age
You were born on 13 November 2000. You were 19 years of age at the time of the offending and you are now 22 years of age.
Family background and education
You were born in Sydney to a large Lebanese migrant family. You are the middle child, with two older and two younger brothers. Your family’s way of life was traditional. Your father was strict and worked as a butcher while your mother performed home duties.
Your family moved homes a number of times during your early years due to financial stressors and this disrupted your early schooling progress, as you were not able to settle in or form lasting friendships. You moved to Melbourne briefly when you were a young child, but your family returned to Sydney. You moved to Melbourne for a second time in 2017 to be closer to your mother’s extended family. Your two older brothers remained in Sydney. The move was initially positive but within a few months, your mother had a large falling out with her family which led to a decline in her mental health. You found yourself spending more time away from home. You studied at Roxburgh Park Secondary College but you ultimately left school during Year 12 and worked briefly as a butcher. Your alcohol and cannabis use escalated to the point where you were drinking and smoking every day. That developed into a serious drug habit but I am assured by the witness Mr Najib Hassan, who has been closely involved with you, that you have been drug-free for more than two years.
Your parents recently moved back to Sydney but they continue to support you, and were present in court on the day of the plea hearing, along with your two younger brothers. I note that members of your family are present in court today.
You live alone in a rental property in Roxburgh Park.
You have ambitions of opening a seafood restaurant.
Motor vehicle accident on 26 November 2019
On 26 November 2019, you were involved in a serious motor vehicle accident. You lost control of your vehicle, veered onto the wrong side of the road, and collided with a truck. You suffered a range of physical injuries, including:
(a) A fractured right elbow;
(b) Dislocation of the right acetabulum;
(c) Fractured right clavicle;
(d) Fractured right patella;
(e) Fractures in the right hand; and
(f) Deep lacerations to the right knee, dorsal lateral fingers and ring finger.
You underwent multiple orthopaedic operations at the Royal Melbourne Hospital, where you remained until 10 December 2019. You were discharged to Brunswick Private Hospital where you underwent follow-up orthopaedic and plastic surgery, and you remained in their care until 31 January 2021. You were prescribed with a high dosage of pain-relieving medications.
You are receiving Transport Accident Commission (TAC) payments for the injuries sustained as a result of the motor vehicle accident. I am told that you are not pain-free but that you are dealing with that pain appropriately by way of physical therapy at the gym.
Reports available also indicate that you also suffered a severe traumatic brain injury in the collision with some cognitive deficits. That has produced a psychiatric impairment which, at the time, was assessed at 30%. It was said that you would benefit from psychological and/or psychiatric treatment. This injury also resulted in significant limitation on your work and recreational activities. In more recent times, according to the report from Clinical and Forensic Psychologist Mr Patrick Newton, you have made significant progress in your recovery.
Criminal history
You have formally admitted your prior criminal history, which is relatively limited.
You were remanded on a bench warrant for failing to appear at court hearings at the Heidelberg Magistrates’ Court in August 2022. On 6 September 2022, you were released and placed on an 18-month Community Correction Order by the Heidelberg Magistrates’ Court. I am told that you are engaging well. That order will expire in March 2024. These orders were made for offences arising out of your driving in the accident that occurred on 26 November 2019. Apart from an offence of possession of drugs, these matters are virtually irrelevant.
Plea of guilty
You indicated your intention to plead guilty in the weeks prior to the commencement of preliminary argument that was to commence on Wednesday, 1 February 2023. You were arraigned and formally entered a guilty plea on that day.
It was submitted on your behalf that your guilty plea has high value in a complicity case, where knowledge, intent and the extent of your role was likely to be heavily contested, and that doing so, has simplified the process before this court and warrants a discount of your sentence.
Pre-sentence report
You engaged in a pre-sentence assessment for a Community Correction Order and a report was produced to the Court on 8 May 2023, pursuant to s 8A of the Sentencing Act 1991. The report found you suitable for a Community Correction Order.
Defence submissions
At the commencement of Mr Tehan’s submissions, he called two witnesses – Mr Emir Saka and Mr Najib Hassan to demonstrate your rehabilitation and the support you have in the community. I have already referred to Mr Hassan.
He then submitted on your behalf that whilst this offending was confrontational and serious in nature, your role was limited as you were not present at the premises at the time of the offending. It was submitted that, of all four of those charged in relation to this matter, you played the least significant role. You did not hold any grievance that motivated the offending, and you expressed misgivings about being involved. He then submitted that since July 2020, you have made efforts to turn your life around and that you have a significant body of support within the community. You are supported by your partner, family and friends. During the course of their evidence, Mr Saka and Mr Hassan both expressed their support for you and vouched for your efforts to improve your life.
As to remorse, the Court received a letter written by you in which you expressed your remorse for the irresponsible and dangerous conduct you had participated in. I am willing to accept that you have a degree of remorse for what occurred.
Mr Tehan also relied on the fact that of those involved in this incident, you were the first to plead guilty, indicating that you would take that course at the beginning of the pre-trial argument in February 2023. However, it could not be said that this was an early plea and the fact that you were first to plead guilty carries only modest weight.
It was submitted that you ought to receive a lesser sentence than that of your co-accused, Rahman. I have already set out the sentence he received. Mr Tehan KC further submitted that I should ‘seize the day’ and impose on you a further Community Correction Order without imposing a term of imprisonment, as any term of imprisonment would hinder your rehabilitation.
Prosecution’s submissions
On behalf of the prosecution, Mr Porceddu first accepted that your rehabilitation has made significant progress and that is a relevant matter to take into account. However, he submitted that although you were not present at the property at the time of the offence, you played an active role in the offending and it was apparent that your co-offenders depended on you to scout the address before they arrived at the property. It is further submitted that you were aware of the purpose of the visit and that such awareness increases your moral culpability.
Mr Porceddu relied on the judgement of the Court of Appeal in Hogarth which held that current sentencing practices for ‘confrontational’ aggravated burglaries were inadequate and needed to be increased.[5] Further reliance was placed upon the Court of Appeal’s judgement in Meyers, which subsequently expanded this call for an uplift in Hogarth to include all ‘more serious forms’ of aggravated burglary.[6]
[5]Hogarth v The Queen [2012] VSCA 302, [58]-[59] (‘Hogarth’).
[6]DPP v Meyers [2014] VSCA 314 [37] (‘Meyers’).
On the issue of parity, it was submitted that a combination sentence would be within range in your circumstances. Unlike your co-accused, Rahman, you did not accrue any pre-sentence detention and, therefore, a term of imprisonment was urged.
Consideration
As I have already noted, during the course of submissions reliance was placed by the prosecutor on authorities which emphasise the seriousness of aggravated burglary, particularly those that are confrontational and the need for sentences to be increased. With those principles and counsel’s competing submissions in mind, in my view the following are the significant aspects of your circumstances:
(a) The seriousness of this offending and the manner in which retribution was sought to be exacted on those inside the premises;
(b) The level of consideration and planning, of which you were part, that went into the commission of the offence;
(c) The fact that you were not part of the attempted entry into the premises and were not going to be involved in any acts of violence;
(d) The role you did play in observing and passing on information about the premises;
(e) You were very young at the time of the offending and remain of an age where your rehabilitation is important and clear progress has been made in that regard;
(f) Notwithstanding your counsel’s submission, parity is a relevant sentencing factor;
(g) You have expressed remorse and taken responsibility for your actions;
(h) Your plea of guilty and the utilitarian value of that plea;
(i) There has been a delay of significance between your arrest and the final disposition of the matter; and
(j) You are in need of continuing drug-related rehabilitation and your performance during the Community Correction Orders that you are subject to has been positive and encouraging.
Conclusion
As your counsel noted, the significant issue is whether you should be required to serve any form of immediate custodial sentence. In my opinion, you should, as occurred with your co-offenders. I agree with Mr Porceddu that despite your progress in a rehabilitation sense, the seriousness of this kind of offending and considerations of specific and general deterrence require a custodial sentence. As he pointed out, although you were recruited by Rahman, you took on the significant role of watching the premises, reporting that people were there by the fact that the lights were on inside. The intercepted phone calls demonstrate that you well knew why this attack on the premises was going to occur and what it was meant to achieve. You were willingly involved and likewise willingly ‘sussed out’ the address to see whether the individuals they wanted to attack were there. You later went there and then reported back that the lights were on. After the incident, you made arrangements to pick up Rahman.
Sentence
The sentence I impose on you is a sentence at the very low end of the range for offending of this kind, but a non-custodial sentence is, in my view, out of the question.
On the charge of aggravated burglary, you will be sentenced to be imprisoned for a period of 6 months. I also order that you be placed on a Community Correction Order for a period of 12 months, commencing on your release from prison. The mandatory terms of this Community Correction Order pursuant to s 45(1) of the Sentencing Act 1991 will be that:
(a) you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) you must comply with any obligation or requirement prescribed by the regulations;
(c) you must report to, and receive visits from the Secretary during the period of the order;
(d) you must report to the community corrections centre specified in the order within two clear working days after the order coming into force;
(e) you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f) you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary; and
(g) you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that the offender complies with the order.
The additional conditions that apply to this Community Correction Order for its duration under ss 48C, 48CA, 48D and 48E of the Sentencing Act 1991 are that:
(a) you must perform 150 hours of unpaid community work during the period of this Order. Pursuant to s 41(2) of the Sentencing Act 1991, I direct that these hours are cumulative upon any hours of unpaid community work required to be performed under any other Community Correction Order currently imposed upon you;
(b) you must undergo assessment in relation to your drug use and history as directed;
(c) you must submit to supervision, monitoring and management as directed by the Secretary; and
(d) the hours taken in relation to (b) above will be deducted from the community work hours outstanding.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to this offence, the sentence I would have imposed on you would have been a period of 2 years’ imprisonment with a minimum to be served before eligibility for parole of 1 year and 6 months.
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