Director of Public Prosecutions v Hammoud
[2023] VSC 58
•17 February 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0062
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ABDULLAH HAMMOUD | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 1 February, 3 February & 10 February 2023 |
DATE OF SENTENCE: | 17 February 2023 |
CASE MAY BE CITED AS: | DPP v Hammoud |
MEDIUM NEUTRAL CITATION: | [2023] VSC 58 |
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CRIMINAL LAW – Sentence – Sentence indication – Four co-accused – Guilty plea – Youthful offender - Attempted armed robbery – Aggravated burglary – Victim sustained fatal head injury – Prior criminal history – Primacy of general and specific deterrence, denunciation, just punishment and community protection – Pre-sentence detention – Good prospects of rehabilitation – Sentenced to three years’ imprisonment with a non-parole period of two years and two months – Sentencing Act 1991 (Vic) s 6AAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Porceddu with Mr P. Pathmaraj | Office of Public Prosecutions |
| For the Accused | Mr J. McMahon with Ms K. Ljubicic | Theo Magazis & Associates |
HIS HONOUR:
Introduction
Abdullah Hammoud, on 3 February 2023 in this Court, you pleaded guilty to one charge of attempted armed robbery on 23 June 2020, contrary to ss 321M and s 75A of the Crimes Act 1958, and one charge of aggravated burglary on 18 July 2020, contrary to s 77 of the Crimes Act 1958.
The maximum penalty for attempted armed robbery is 20 years’ imprisonment[1] and the maximum penalty for aggravated burglary is 25 years’ imprisonment.[2]
[1]Crimes Act 1958 (Vic) ss 75A, 321M.
[2]Ibid s 77(2).
Your pleas of guilty followed an application on your behalf for a sentence indication. That application was filed on 6 December 2022 pursuant s 208 of the Criminal Procedure Act 2009.
On 3 February 2023, I agreed to give such an indication, which I did after hearing submissions from your counsel and from the prosecutor, Mr Porceddu. I indicated that the maximum total effective sentence that I would impose on you, if you pleaded guilty to these two charges, would be a total effective head sentence of three (3) years’ imprisonment. Later that day, you were arraigned on the two charges and pleaded guilty to them.
During the hearing on 1 February 2023, I heard detailed submissions from Mr McMahon SC who, with Ms Ljubicic, appeared on your behalf. I had also heard a prosecution opening and submissions from Mr Porceddu, who appeared with Mr Pathmaraj for the prosecution. On 10 February 2023, I heard further brief submissions from both counsel by way of a formal plea.
It is now my responsibility to sentence you for these offences.
Circumstances of the offending
Incident on 23 June 2020
On 23 June 2020, you and Adam Tiba met with two other men named Dimitrios Pramatias and Lorenzo Tigani in Roxborough Park.
You and Tiba went there in a Toyota Hilux motor vehicle registered to your family business. The purpose of the meeting was that Pramatias would purchase a significant amount of cannabis from you, but that did not occur.
Once at the agreed location, Pramatias and Tigani got into your vehicle. Pramatias had $5,500.00. You said that you would get the cannabis that they wanted to buy and you got out of the vehicle. Tiba also got out and then he opened the rear door, and with a shot gun in his possession, said to Tigani ‘give me everything’. Tigani got out and grabbed the firearm, punching Tiba. There was a struggle. Tigani retained the firearm and later hid it in his garage.
When that was over, you and Tiba got back into the Toyota Hilux and drove away. During the course of that struggle, you and Tiba both sustained stab wounds. In your case, your wounds were to your legs. As a result, both you and Tiba underwent hospital treatment at the Northern Hospital.
Incident on 18 July 2020
Almost a month later, on 18 July 2020, an incident occurred at Unit 2, 2 Ella Court in Lalor. That incident occurred because you and three other men devised a plan to assault one of the occupants of those premises in retaliation for the incident which had occurred on 23 June 2020, during which you and Tiba were stabbed. During that incident, one of the occupants of the premises, Adrian Pacione, was shot and died of his injuries. The prosecution alleges that the person who fired the shots which caused that death was Adam Tiba. He has been charged with murder on that basis. It is not alleged that you are in any way complicit in that killing.
The incident was organised in phone calls from about 7.00pm between Tahmid Rahman, Adam Tiba and Ammair Fahal. At about 8.58pm, you were alleged to be in a motor vehicle with Tiba and Rahman. Later, those in your vehicle were surveilling the premises at Unit 2, 2 Ella Court.
One of your number knocked on the door of the premises. The Crown say that was Adam Tiba and that he was armed with a firearm. There was a struggle and eventually the occupants of the premises got the front door shut without anyone gaining complete entry to the property.
After that, gunshots were fired through the window near the front door, fatally wounding Adrian Pacione. The Crown allege that those shots were fired by Adam Tiba. As a result, he is charged with murder and his trial will be heard in May 2023. You were not complicit in that shooting.
Further, in your case, the prosecution cannot say whether you were actually at the door when the struggle was occurring but the allegation made against you, which by your plea you accept, was that you entered into an agreement with the others to commit an aggravated burglary at the premises.
After the fatal shooting of Adrian Pacione, you all fled the scene.
Arrest
Some months later, you were arrested on 21 October 2020 at a premises at Meadow Heights. Your phone was seized and two vehicles at the premises were photographed, including the Toyota Hilux.
You declined to answer the questions that you were asked by the police in a record of interview. You were initially charged with common law murder and murder pursuant to s 3A of the Crimes Act 1958.
The charges that were pleaded guilty to
As to the charges you have now pleaded guilty to, in relation to the attempted armed robbery, your counsel noted that although the offending took place in a public place and involved the use of a firearm, it is not alleged that you were in possession of the firearm at any point, and you sustained injuries during the offending.
As to the nature and gravity of the aggravated burglary, your counsel noted that it was not alleged that you were physically present at the front door with the other co-accused or that a co-accused was in possession of, or would produce, a firearm or other weapon.
Release on bail and revocation
On 5 August 2021, you were released on bail, having spent 289 days in custody.
On 6 October 2022, that bail was revoked in this Court and you have remained in custody since that date, resulting in you having served total pre-sentence detention of 423 days, including this day.
Personal circumstances
Age and family background
You were born in Melbourne on 27 January 1999 and you are now 24 years of age. At the time of the offences, you were 21 years of age.
You are one of seven children, and your family is from Lebanon.
Education, sporting career and employment
Historically, during your primary education, which was at Bellevue Primary School, you relocated to Lebanon with your mother and completed grade 6 and year 7. Whilst studying in Lebanon, you attended an English school and also learnt Arabic and French. You returned to Melbourne after spending two years in Lebanon and completed years 8 to 10 of secondary schooling at Hume Central Secondary College.
After completing year 10, you studied at SEDA College which is a sports college, completing year 11 and 12 equivalent and went on to complete a Diploma of Sports Development. Whilst studying at SEDA, you played soccer for the Fawkner Soccer Club. In year 11, you accompanied a coach and some other players on an overseas soccer training program, spending five weeks in the United Kingdom, Scotland, Holland and Germany. You also travelled to Thailand to play soccer.
You suffered ongoing pain in your left leg following a break. Because of the pain, you were eventually forced to cease playing soccer and forego a promising career. You have undergone two bouts of surgery to your left leg. During the time at SEDA, you worked seven hours per week with your brother, who operates Hammoud Steel Services in Campbellfield. Since completing your studies and ceasing your soccer career, you have worked for Hammoud Steel Services on a full-time basis.
You have spent 423 days of pre-sentence detention attributable to this matter and this is your first time in custody. In custody, you are currently employed and are working in steel fabrication including welding which, as Mr McMahon SC has pointed out, would be rare.
Criminal history
You have formally admitted your prior criminal history.
On 19 October 2019, you were sentenced for possessing a controlled weapon without excuse, possessing alprazolam and committing an indictable offence whilst on bail. That resulted in an adjourned undertaking for six (6) months.
On 14 January 2020, you were sentenced for obtaining property by deception and were again sentenced to an adjourned undertaking for twelve (12) months.
There were two other matters which occurred before being sentenced, but subsequent to the offending in this case, which resulted in fines, payment of compensation and conviction.
You do not have prior convictions for a violent criminal offence. You have not previously been charged with a violent criminal offence.
Prospects of rehabilitation
Your counsel argued that your prospects of rehabilitation were good based on a number of factors. Those included your youth, limited prior criminal history and strong family support. You also have employment in the community in skilled work as a metal fabricator and you have been using that skill whilst you have been in custody. Your former career as a soccer player and your commitment to that sport is also relied upon as what Mr McMahon SC described as a ‘strong indicator of potential.’
I accept, as does the prosecutor, that you have good prospects of rehabilitation. Apart from your youth and limited criminal history, you have strong family support and good employment prospects given your skills.
Youth
In the course of his submissions, Mr McMahon SC relied on your relative youth as a relevant sentencing factor. At 24 years of age, you are still very young and, of course, have your life ahead of you. In addition, when combined with your prospects for rehabilitation, make the case for a lower sentence a strong one. I proceed on the basis that your youth, your prospects for rehabilitation and your family support are the relatively pre-eminent factors in the sentence to be imposed on you.
Mr McMahon SC appropriately placed reliance on the judgment of the Court of Appeal in Mills, where the Court endorsed propositions relevant to the sentencing of youthful offenders and emphasising the significance of rehabilitation as a factor more important than general deterrence in such cases.[3]
[3]R v Mills [1998] 4 VR 235, [241].
There is, I also accept, a utilitarian value to your pleas of guilty in avoiding a trial occurring in the context of the COVID-19 backlog. COVID-19 has made, and will continue to make, prison harder for all, or at least the overwhelming majority of, prisoners, and that is also taken into account.
Conclusion
This matter has involved two serious offences and your conduct, in being involved in both incidents, is to be condemned. The first incident was one that simply descended into mutual lawlessness. The second incident was an aggravated burglary which by any definition is serious offending. It was planned and carried out in the company of others. The tragic consequences that followed were not of your doing and I sentence you accordingly.
As the prosecutor has submitted, you were clearly aware that the attack on the premises was in retaliation for the incident on 23 June 2020 and is properly characterised as a ‘confrontational aggravated burglary’.
General deterrence, denunciation and just punishment are significant but the emphasis on those factors can be moderated given your particular circumstances and the limited role you played.
Your moral culpability is lower than might often be anticipated in such matters given the lesser role you played in both incidents.
Sentence
On the charge of attempted armed robbery, you will be sentenced to 2 years’ imprisonment. On the charge of aggravated burglary, you will also be sentenced to 2 years’ imprisonment.
I direct that one year of the sentence on charge 1 be served cumulatively with the sentence on charge 2. The total effective sentence will be a period of 3 years’ imprisonment.
I direct that you serve a period of 2 years and 2 months before you become eligible to apply for release on parole.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that if you had not pleaded guilty as you have, your total effective sentence would have been a period of 4 years’ imprisonment with a period 3 years to be served before becoming eligible for parole.
I declare that your pre-sentence detention is 423 days and I direct that be entered into the records of the Court, and reckoned as time already served.
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