Director of Public Prosecutions v Hamdache
[2014] VSC 158
•18 March 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0088 of 2013
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| KEDER HAMDACHE |
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JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 December 2013 and 18 March 2014 | |
DATE OF SENTENCE: | 18 March 2014 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Hamdache | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 158 | |
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CRIMINAL LAW – sentencing – causing serious injury intentionally – being a prohibited person in possession of a firearm – plea of guilty – mild to moderate intellectual disability - application of the first and fifth principles in R v Verdins (2007) 16 VR 269 − total effective sentence of 7½ years’ imprisonment with non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Rochford SC | Ms R. Papadopoulos, Office of Public Prosecutions |
| For the Accused | Mr D. Hallowes on 3 December 2013 Mr A. Zingler on 18 March 2014 | Robert Stary Lawyers |
HIS HONOUR:
Keder Hamdache you have pleaded guilty to two counts of intentionally causing serious injury contrary to s 16 of the Crimes Act and one count of being a prohibited person possessing a firearm contrary to s 5(1) of the Firearms Act. It is now my duty to sentence you in relation to these matters.
The maximum penalty for the offence of intentionally causing serious injury is 20 years’ imprisonment. For being a prohibited person possessing a firearm, the maximum penalty is 10 years’ imprisonment.
For reasons I am about to explain, I will be imposing a total effective prison sentence upon you of seven and a half years, and directing that you not be eligible for parole for a period of 5 years.
Details of the offences
According to the summary of plea opening, at about 9.00 pm on 11 September 2012 you attended at 8 Woodburn Crescent, Meadow Heights. Living at that address at the time were Jeff and Julie Smith (your victims), their daughter Ashleigh together with Alissah, approximately 15 months old, the child of Ashleigh and yourself. Ashleigh was also 5 months pregnant to you at that time with your second daughter, Janah.
Upon hearing that you were speaking to his daughter, Jeff Smith emerged from the front door of the house and told you to leave. A verbal argument ensued between the two of you with Mr Smith following you through the front yard to where you had left your car parked in the street. By that time Julie Smith, Mr Smith’s wife and Ashleigh’s mother, had also come out into the front yard of the house.
You were heard to say to Jeff Smith words along the lines of,
I’ll fix you but I’m not going to do it in your front yard ‘cause you’re the sort of dog who will lay charges … I’ll put you six feet under you dog.
You then produced a silver coloured handgun and said to Jeff Smith,
I’ll shoot you and your missus. I’ll blow your fucking heads off.
Then, standing approximately a metre away from Jeff Smith and pointing the gun at him, you continued,
I’ll fucking shoot you, you cunt. I’ll bury you. This aint no fucking game.
Mr Smith continued to ask you to leave the premises. While near the footpath area outside of the house you hit Mr Smith several times in the head region with the handgun. Mrs Smith attempted to restrain you as you were assaulting her husband. She saw you aim the gun at her husband. You fired it several times, shooting Mr Smith once in the left shoulder area from approximately a metre away from him. He staggered back into the front yard of the house.
While still on the footpath you then turned the firearm towards Mrs Smith and shot her in the left hip area.
Although only two shots actually hit your targets, and only three bullets were recovered, witnesses believed you fired something in the region of five or six shots from your gun. It is not necessary that I form a view about the exact number of shots fired.
Ashleigh Smith and your daughter Alissah had also come out from the house and witnessed these events. You then demanded they get into your car. They did so and you drove them away.
You took Alissah back to your parents’ home in Meadow Heights. Leaving her there you and Ashleigh then left. At about 9.40 am the next morning, Wednesday 12 September 2012, you were arrested by police while you were sitting in a motor vehicle with Ashleigh.
These events occurred in the context of your violent reaction to a relationship breakdown between you and Ashleigh Smith. You and Ashleigh had been involved in a relationship for some two or two and a half years before you committed these crimes. The picture presented by members of the Smith family, including Ashleigh’s brother Luke, is that following the birth of your daughter you became more erratic and aggravated towards Ashleigh and other members of her family. You made abusive phone calls to her parents to the point where they needed to disconnect the phone at the home. You were very controlling of Ashleigh, being possessive of her and not allowing her to see her friends. According to Mrs Smith, you had previously threatened Ashleigh and Alissah and had been violent and unpredictable towards them.
You had stayed at the Smiths’ house for the first few months of your relationship with Ashleigh but you were then banned from the house by Mrs Smith due to your erratic behaviour. Ashleigh had lived with you on and off for about eight months during the course of the relationship.
Whatever were the precise details of your past relationship to Ashleigh, it is clear it had become turbulent.
As a result of their gunshot wounds both Julie Smith and Jeff Smith were taken to hospitals for treatment. Julie Smith had a gunshot wound in her hip. The bullet passed through her hip entering near her abdomen at the top of her thigh and exiting at the rear of her thigh near her buttock. In relation to Jeff Smith, the bullet penetrated his left upper arm and lodged in the interscapular region of the upper back. He required surgery to have the bullet removed.
Victim impact
The impact of the events has been dramatic upon your victims. I have received victim impact statements from Jeff and Julie Smith and from their son Luke.
They made their statements about 15 months after the shootings occurred. Mr and Mrs Smith both told of the actions they felt they had had to take in order to try and deal with the emotional and psychological consequences of being shot. Perhaps understandably, they no longer wanted to remain in the neighbourhood where the shooting happened, believing that would perpetuate the memory of the event. Accordingly they wanted to move away from the area to a new community. That cost them a substantial amount of money.
As at last December, Mr Smith had not been able to work since, nor had Mrs Smith. They believe they are now financially ruined. Constant medical and legal appointments continue to remind them of the events they want to, but cannot, forget. Whereas he used to work, umpire football and interact with lots of people, Mr Smith says he is now physically, socially and emotionally isolated. Mrs Smith speaks of her day to day life being a struggle, having lost interest in many of the things she once enjoyed. She is constantly anxious, lacking in energy and frightened and wary of those around her. Mr and Mrs Smith’s marital relationship has also suffered significantly because of your actions. The effects have spilled over to their son Luke who has been deprived of the cohesion of his family home and the relationships with his parents.
Your personal background
I have received a report from Carla Lechner, a clinical and forensic psychologist who saw you on 26 November 2013. She reported that you said you were under the influence of methylamphetamine at the time of the events, possibly a cocktail of drugs. You have a history of drug abuse having begun smoking marijuana at the age of 14 or 15 years of age, Ice from the age of 19 years onwards and GHB on and off for four or five years.
Now 29 years of age, you are the third of four children. You have two older sisters aged 32 and 30 respectively and a younger brother aged 25. Your family is of Lebanese origin. As a result of your relationship with Ashleigh Smith you now have two daughters – Alissah 2 and Janah 12 months. They are currently in the care of your parents under the auspices of a DHS supervision order.
You were born in Australia and raised by your parents in Coburg. You attended primary school to Grade 6 and secondary school to Year 9, although you barely attended from Year 8 onwards. Ms Lechner reported that you have a range of symptoms and behaviours strongly suggestive of ADHD (attention deficit hyperactivity disorder) and that your psychometric testing revealed you are in the “moderately intellectually disabled” range of intelligence. As a result of your learning disabilities, and possibly some bullying at school, your education was ineffective. You are virtually illiterate and, since school, you have had only limited, spasmodic employment.
I will come in more detail to your prior convictions, but since your late teenage years you have been in and out of jail.
You reported to Ms Lechner that you were struck on the head five or six years ago with a pole and lost consciousness for an indeterminate period of time. That report raised the possibility that you may have an additional mild acquired brain injury for which she thought you should undergo neuropsychological assessment. A report has now been obtained. I will refer to it in a moment.
Ms Lechner also reported that you expressed regret for your action, stating that you had panicked under the influence of drugs and were reacting to the memory of having been shot, yourself, in a separate incident in 2012. Details of that 2012 event and its effects upon you are sketchy.
In summary, Ms Lechner said you were cognitively and emotionally immature with genuine problems in reflecting on the impact of your behaviour, both on yourself and on others. You tend to be impulsive in nature and have a low tolerance for frustration. You lack a range of adaptive coping skills and strategies. Ms Lechner believed you were evidencing a range of symptoms of major depression and that your history probably indicated you had persistent mild depressive symptoms for some years masked by your drug abuse.
On 14 January this year, you saw a neuropsychologist, Ms Laura Anderson. Ms Anderson broadly supported the findings of Ms Lechner. Testing revealed a Full Scale Intelligence Quotient of 48. She summarised her opinion concerning your cognitive functioning from the various tests which you had undertaken, in these terms …
It is my professional opinion that at this time Mr Hamdache’s true Intelligence Quotient falls within the Mild to Moderate Intellectual Disability range.
Ms Anderson did not believe there was any evidence of a specific brain injury or substance-related acquired brain injury. In terms of any relationship between your cognitive functioning and your offending behaviour she had this to say:
… [it] can be best understood from the standpoint that his reduced level of intellectual functioning, poor understanding and subsequent reasoning of complex information, increases his risk of maladaptive behaviours and offending. That is to say, once he learns a skill or routine, he is likely to find it difficult to stray from such a pattern of behaviour, and/or to reason and develop alternate responses, particularly if he is feeling stressed and anxious. In my opinion, perceived stress is likely to exacerbate Mr Hamdache’s problems by impeding his processing speed and potentially making it more difficult for him to process information quickly and reflect upon his choices before taking action. Furthermore, his significantly reduced learning skills, and subsequent memory capacity, are likely to impede his ability to retrieve more pro-social solutions from his memory store. All in all, Mr Hamdache’s current level of cognitive functioning appears relatively permanent and stable at this time (ie, it has not changed or improved over the past three months), leaving him at increased risk of reoffending compared to peers of average intelligence.
Ms Anderson continued her opinion by saying of you that,
…[his] reduced level of intellectual functioning extends to his ability to appropriately process and reason his own internal thoughts and emotional reactions, which, given his current self-reported melancholia, hallucinations, and suicidal ideation, raises significant concerns regarding his risk of mental deterioration in prison.
Having regard to your mental health, Ms Anderson says it is imperative that upon admission the Prison Psychiatrist conduct mood monitoring and a screening assessment. Ms Anderson also offered some recommendations for prison staff working with you in the future. The strategies she recommended are designed to alleviate the burden of your current cognitive deficits and improve your overall functioning. I will direct that a copy of Ms Anderson’s report be placed on your file with prison records so that the prison authorities may take those recommendations into account in your management and care.
Relevant to my task, Ms Anderson’s opinion was that if those recommendations are implemented “as a matter of urgency and adhered to” your rehabilitation prospects are “reasonable at this time”.
Past convictions
You have a relevant history of past offending, including offences which have placed you in jail on several previous occasions. Your counsel, Mr Hallowes, took me through the more relevant of those offences.
In April 2002 you were first sentenced for a violent offence, recklessly causing injury. That charge was dealt with in the Magistrates’ Court and you received a bond. More significantly, in the Melbourne County Court on 19 September 2002 you were sentenced to a total effective sentence of 2 years’ imprisonment with a non-parole period of 12 months on counts of intentionally causing serious injury, intentionally causing injury, armed robbery and aggravated burglary. Mr Hallowes said, on your instructions that, in effect, you acted with a co-offender who had an “axe to grind” against another person, rather than carrying out some retribution of your own. Whether or not that characterisation casts you in a better or worse light, the sentence itself suggests a reasonably serious degree of criminality.
It appears you were released from prison for that offending in the first half of 2003.
Until July 2007, the few occasions on which you came before courts were mostly in relation to driving offences, a resist and assault police for which you received a bond, and a charge for possessing amphetamine in 2006, consistent with your reported drug abuse history.
In July 2007 you were imprisoned for having breached a number of suspended sentence orders relating to driving offences. It appears that in total, with cumulations and concurrency, you were ordered to serve a total effective sentence of 4 months.
Relevantly, there were several offences for which you were convicted for possessing a weapon. Your counsel said that, on your instructions, those offences related to possession of things such as knives or screwdrivers. You have never been charged with actually using such a weapon. Again, in June 2008 you were convicted of possessing methylamphetamine for which you were imprisoned for 40 days.
So, for six years after being released from prison in 2003, you did not come before the courts for any significant violence-related offences. Then, in January 2009, at the Melbourne County Court, you were convicted of intentionally causing injury, attempted kidnap, affray and common assault. You were sentenced to a total of 24 months with a non-parole period of 16 months.
You instructed Mr Hallowes that those charges arose out of your separation from a relationship with an ex-girlfriend. Not only are they significant because of their violent character, but they also reveal some continuity with the circumstances that currently bring you before the court.
Quite correctly, Mr Hallowes conceded that those offences and the current offences somewhat substantiate Ms Lechner’s opinion that you lack impulse control, have a low tolerance for frustration and have poor problem solving skills. I will return to these matters, but for the moment I note that these behavioural features raise questions about your capacity for rehabilitation at the same time as raising legitimate concerns about the need for community protection.
Continuing with your criminal history, it seems that you would have been released from prison in about March 2010. Mr Hallowes informed me that it was after your release from that imprisonment that you formed your relationship with Ashleigh Smith.
About a year after your release from prison, in March 2011, various sentences of imprisonment that had been wholly suspended in July 2010 on convictions for driving and dishonesty offences, were wholly restored. They were restored upon your conviction for further driving offences and other offences including possession of a controlled weapon. You received a sentence of 2 months’ imprisonment which was wholly suspended because, according to the history report, you were expecting your first child, Alissah, to be born in June of that year – ie 2011.
But in June 2011 you were again convicted of driving offences and were sentenced to an aggregate term of imprisonment of three months.
Finally, in November 2011 you were convicted of further driving offences together with possession of amphetamine and unlawful assault for which you received 14 days and 7 days terms of imprisonment respectively.
In one sense the very long history of driving offences are of lesser relevance than the offences for violent behaviour. But the sheer number and repetition of them, resulting from time to time in prison terms, tends to highlight a resistance to change or behaviour modification. Such a tendency does not seem to bode well for rehabilitation prospects.
I mentioned your account that in 2012 you were, yourself, the victim of a shooting incident. There is little evidence of this event or its effects upon you at the time when you shot Mr and Mrs Smith. Without a more substantial basis than your assertion made to your psychologist about its relevance, I do not propose to give it significant weight as a mitigating factor.
Plea of guilty
It is, of course, significant that you have pleaded guilty to the charges that bring you before the court. Mr Hallowes conceded on your behalf that you did not plead at the earliest opportunity, but I accept that your delay may be partly explained by exploring reasonable opportunities to negotiate the charges you would ultimately face. In any event, your plea of guilty has, at the very least, utilitarian benefit to the community.
Moreover, Ms Lechner reports that you expressed regret for your actions, made no attempt to shirk responsibility for them or minimise the seriousness of them, and exhibited appropriate victim empathy. I take these matters into account in your favour.
Family support
Also in your favour is the fact that, despite your continued offending over the years, your family remains supportive of you. You are favoured with a mother, father, two sisters and brother, none of whom themselves have had trouble with the law (save minor traffic offences), who continue to offer you support. Your two young children live with your parents and they are brought to see you regularly.
One hopes that the responsibility of fatherhood and the continued support of your family will one day provide you with both the inspiration and the environment in which to step out of the pattern of offending which has characterised your past.
Relevant sentencing considerations and objectives
Mr Hallowes conceded, correctly, that the prominent sentencing considerations are punishment and denunciation, and community protection. Indeed, the second of the two counts of intentionally causing serious injury to which you have pleaded guilty places you into the category of a serious violent offender under s 6D of the Sentencing Act. I am required by that section to regard protection of the community from you as the principal purpose for which the sentence is imposed, a priority I would in any event have tended towards for the reasons I have already mentioned.
Your offences are very serious examples of the crimes with which you have been charged. You went armed with a loaded gun to deal with a relationship issue. You were prepared to and did use it. You seriously maimed two people and have adversely impacted the lives of others as well.
You have a lengthy history of offending, including for violence-related offences, and I now must sentence you as a serious offender for one of the two counts of intentionally causing serious injury.
All of these factors call for a sentence that gives weight to the objectives of punishment, denunciation and deterrence, as well as community protection.
However, it is not now in dispute, following Ms Anderson’s report, that the sentencing principles enunciated in R v Verdins[1] are engaged in two respects:
·First, applying the first Verdins principle, your mild to moderate intellectual disability should be regarded as reducing your moral culpability for these crimes. That is particularly because your disability is likely to have impaired your impulse control and your ability to exercise appropriate judgments and think clearly at the time of your offending.[2]
·Secondly, applying the fifth Verdins principle, your pre-existing reasoning and emotional deficits, and resulting risk of mental deterioration while in prison, mean that a given sentence will weigh more heavily on you that it would a person in normal health.
[1](2007) 16 VR 269, 276.
[2]Romero v The Queen [2011] VSCA 45, [13].
I have taken each of these considerations into account.
Against those influences in the sentencing considerations, of course, I must balance, in particular, the need to protect the community. The same cognitive deficiency that calls for the application of the Verdins principles also give rise to the danger to the community, when you are at large, that you will deal with stress by resorting to violence, and violence with a weapon. Ms Anderson recognised that risk in the last sentence of the longer passage I extracted earlier.
Ms Anderson’s opinion places some importance on various treatments and strategies that could address your cognitive deficits, as a means of improving your rehabilitation prospects. There is at least some prospect that these strategies, if pursued, offer some rational basis for the hope of rehabilitation.
Against that, it appears that you have been recommended anti-depressants in the past but have refused to take them. Your past track record in not complying with recommended medical treatment does not bode very well for rehabilitation to the extent it requires your cooperation.
Your rehabilitation prospects must be viewed with caution. Nonetheless you are not yet 30 and it seems that you are of an immature disposition. It appears your rehabilitation prospects lie in your willingness and ability to address your drug problems and to find meaning and motivation in your role as a father.
I have made allowance for your plea of guilty and remorse as I have already mentioned. Ultimately, however, community protection is the principal consideration.
There is one further thing I should mention before coming to pronounce sentence you. Recently the High Court has made it clear[3] that sentencing judges are not to receive or take into account submissions from prosecuting counsel about sentencing range. Last year at the sentencing hearing, before the High Court decision, Mr Rochford made a submission about range in accordance with the then prevailing legal authority.[4] I have ignored that submission in my consideration.
[3]Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2.
[4]R v MacNeil-Brown (2008) 20 VR 677.
Sentence
On count one, causing serious injury intentionally, I sentence you to a term of 6 years’ imprisonment.
On count two, causing serious injury intentionally, I sentence you to a term of 6 years’ imprisonment. I direct that 18 months of that term is to be served cumulatively upon the sentence for count one.
On count three, being a prohibited person possessing a firearm, I sentence you to a term of 2 years’ imprisonment to be served concurrently with the terms imposed on counts one and two.
The total effective sentence is seven and a half years’ imprisonment. I order that you not be eligible to be released on parole for a period 5 years.
Had you not pleaded guilty to the charges, I would have imposed a total effective sentence of 10 years’ imprisonment with a minimum term of seven and a half years to be served before being eligible parole.
I declare that you have served a total of 552 days of presentence detention such period to be reckoned as a period of imprisonment already served under the sentence I have just imposed.
I will cause an entry to be made in the court records that you have been sentenced on count two of the indictment as a serious offender.
Finally, I will arrange that a copy of my reasons for sentence and the report of Ms Laura Anderson dated 7 February 2014 be placed on your file with the prison authorities.
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