Director of Public Prosecutions v Haddara
[2012] VCC 370
•28 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00480
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FADI HADDARA |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 28 March 2012 | |
CASE MAY BE CITED AS: | DPP v Haddara | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 370 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose SC | |
| For the Accused | Mr P. Casey |
HER HONOUR:
1 Fadi Haddara, you have pleaded guilty before me to one count of affray. The facts underlying your offending are as follows:
2 You accompanied three co-accused, Nasser Kheir, Mahmoud Kheir and Mohammed Ouieda, to a house at 23 Pearson Crescent, Coolaroo, on a mission to liberate as it were, one Mr El Hajje who had been lured to that house and kept there by Danny Amarah and his friends. The issue which led to Mr El Hajje's confinement at that house was apparently sexual advances he made to Mr Amarah's wife and subsequently phone calls were made by Mr El Hajje after he was threatened and assaulted by those present in Mr Amarah's house to call persons to the house to settle the matter according to Lebanese culture, if you like, which may well have involved the handing over of moneys to assuage Mr Amarah's honour.
3 You were co-opted into this scheme by Mr Ouieda, together with Mr Ouieda and Nasser and Mahmoud Kheir. Two other carloads of persons also attended at this house in Coolaroo.
4
On arrival there, Mr Ouieda accompanied by Mr Mahmoud Kheir, went to the front door. There was an exchange of words once the door was answered by Mr Amarah. There was a denial that Mr El Hajje was kept there. Mr El Hajje then called out from the back room and another person who had travelled
to the house, Mr El Ashkah, screamed to those inside the house to let
Mr El Hajje go and smashed a window. Thereafter shots were fired from inside the house and there was return fire from other persons who had travelled to the house in the convoy of cars.
5 It is the prosecution case that you attended with the awareness that violence might result, but it is not alleged that you were aware of any firearms being brought to the scene or participated in those firearms being discharged. In any event, ultimately you were involved in a serious gun battle, if you like, in a residential area.
6 Mr Ouieda, Mr Mahmoud Kheir and especially Mr Nasser Kheir, received gunshot wounds. Mr Nasser Kheir in particular received a very substantial wound to his knee, and you assisted in getting those three gentlemen back into the car and then all four of you attended the Northern Hospital in Epping where you were arrested by police.
7 I now turn to your personal history. You are 34 years of age. You are the eldest of seven children born to your parents who are Lebanese muslims. Two of your siblings died, one of them as a child and a brother who was the victim of a drive by shooting in November 2009. This was apparently an extremely traumatic incident for you in that your brother apparently died in your arms.
8 You were born in Lebanon and your family emigrated here in 1984 when you about six. Your family settled in Essendon, then North Altona, and you attended a local primary school from Grades 2 to 6. You told psychologist, Carla Lechner, in an old report dated 25 February 2010 that you were an average student, and that you had a close family with no history of domestic violence or substance abuse. Your father worked in a factory and your mother that the occupation of home duties.
9 You completed Year 11 at the Bayside Secondary College and you left school to study mechanics at Newport TAFE, but did not complete that course but instead got your security licence and worked in that industry over about the next three to four years. You had always been interested in sport and played football, but as you grew older became interested in kick boxing, were trained and worked as a professional kick box fighter for a number of years.
10
You were trained by one, Tareq Solak, who moved overseas and you told
Ms Lechner you then developed your own promotional business and put on a number of shows at the Metro Nightclub and La Mirage, but ceased competing yourself. It was during these years and because of your involvement in this sport you told Ms Lechner that you were introduced to drug use and it appears that this remained a problem for you over the years, in particular following the death of your brother. According to Ms Lechner you developed post traumatic stress disorder symptoms as well as depression and began using Ice and alcohol as a means of self-medication. This she said, inadvertently aggravating your mood disorder.
11 You are married. You met your wife in Lebanon whilst on holidays there in 2001 and you have three children aged eight, six and a half, and four years of age.
12
You were originally charged with serious firearms offences in relation to
the matter for which you appear before the court today, and were remanded in custody. You were ultimately released on bail but this bail was revoked on
13 December 2010. You were then re-bailed until 24 March 2011 when you were arrested in relation to a number of serious charges involving false imprisonment, assault and other charges which are to be heard at trial in August of this year.
13 Whilst you were out on bail you attended upon drug and alcohol counselling. Mr Dieni, of the St Paul's Drug Prevention Rehabilitation Centre appeared in support of you during the plea and he apparently conducted counselling in relation to your drug problem. It appears you have managed to remain drug free. Urine analysis certificates of testing conducted on you in gaol up to January of this year were tendered on the plea and the results of those tests were clear.
14 It appears that your time in custody since March of last year has been extremely difficult. You have spent the majority of it in management, that is, in a security setting, and that is a difficult way to remain in gaol given that programs, the normal privileges available to prisoners were not available to you.
15 Your main concern is to return to your family, in particular your concern is that your father, who is only aged 56, has been diagnosed with terminal cancer and I received a report from your father's treating doctors at the Peter McCallum Hospital to that effect.
16
Your role in this offending has been correctly described by your counsel as
less than that of your co-accused, Mr Ouieda. He, Mr Ouieda, was a man who was brought in to conduct negotiations to enable the ultimate release of
Mr El Hajje and you went along at his invitation and in order to support him. Again your plea has been entered, as were the pleas of your co-accused, on the basis that whilst your intention was to effect peaceful release of Mr El Hajje you were aware that violence could nevertheless result.
17 The prosecution's submission was that a sentence of imprisonment should be imposed in relation to your offending but that it was a matter of my discretion as to how you should serve it. In the sentencing remarks relating to your co-accused I commented that of particular concern to this court is a situation where civilians attend to criminal situations which should be handled by police. In such a situation persons in the community remain vulnerable to violence which can escalate so that in situations such as this, courts have to be concerned about sending out a message to the community that people such as yourself should not take matters, criminal matters into their own hands.
18 In any event, I am satisfied that you are remorseful for your offending. I am satisfied because of a fairly early plea that was made in April of last year to plead guilty to a charge of affray and also I am satisfied that you have considerably enhanced your rehabilitation prospects by undertaking the drug and alcohol counselling that you did and by continuing to remain drug free whilst in the prison as evidenced by urine analysis certificates.
19 You have served a considerable number of days of pre-sentence detention, they comprising 34 days of the s.18 pre-sentence detention period and 377 days of what could be termed a Renzella term of pre-sentence.
20
In all the circumstances it is my view that the appropriate way to deal with you taking into account the mitigatory circumstances that I have outlined, is to impose a sentence of imprisonment upon you but this will be wholly suspended. The prosecution have agreed that your role is below that of
Mr Ouieda. You do not have the difficulties experienced by either of the Kheir brothers, that is, Mahmoud Kheir has an intellectual disability, and Nasser Kheir was gravely injured, and had a mitigatory factor of what is termed extra curial punishment and neither of these situations relate to you.
21 However, it appears that your main role in this offending was simply to accompany Mr Ouieda, to get briefly out of the car and help everyone get back in again once they were injured. In the circumstances I do not find that your role has been an enormously active one and therefore I am prepared to sentence you in the way that I have indicated.
22 Could you stand up please?
23
On the charge of affray you are sentenced to four months' imprisonment
and that sentence is to be wholly suspended for a period of 12 months. You understand that if you commit any offence punishable by imprisonment in the next 12 months you will be back before me on breach of suspended sentence and I will make you serve that four months. Do you understand that
Mr Haddara?
24 PRISONER: Yes, Your Honour.
25 HER HONOUR: I declare that four months of that sentence has already been served by way of pre-sentence detention, 34 days being pursuant to s.18, and the remainder via a Renzella pre-sentence detention period.
26
Pursuant to s.6AAA I declare that had you not pleaded guilty to this charge
I would have sentenced you to eight months' imprisonment.
27 Anything else that I need to deal with?
28 COUNSEL: No, Your Honour.
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