Director of Public Prosecutions v Hanna, Mike
[2013] VCC 646
•24 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00930
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MIKE HANNA (AKA MOHAMED KHEIR) AHMED MOHAMED MOHAMED MOHAMED |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2013 | |
DATE OF SENTENCE: | 24 May 2013 | |
CASE MAY BE CITED AS: | DPP v Hanna, Mike; Mohamed, Ahmed & Mohamed, Mohamed | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 646 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Hannan | OPP |
| For Accused Hanna For the Accused Ahmed | Mr J. Desmond (Trial) Ms Z. Garde-Wilson (Plea) Ms N. Tenaglia | Garde-Wilson Lawyers Emma Turnbull Lawyers |
HER HONOUR:
1 Mike Hanna, Ahmed Mohamed and Mohamed Mohamed, you each have been found guilty by a jury of one charge of kidnapping, one of false imprisonment, and one of intentionally cause injury.
2 Kidnapping is punishable by a maximum sentence of 25 years imprisonment, false imprisonment and intentionally cause injury by a maximum of 10 years imprisonment.
3 The offences occurred in the aftermath of a shooting incident at a home in Coolaroo. It was common ground at trial that on 28 November 2009 a man known as Ali was unlawfully detained and assaulted at a house in Coolaroo by a number of men. It would appear that a man called Bassam, the occupant of the house had a grievance against Ali, and had decided to take it on himself, with the assistance of a number of friends or associates, to punish him. A young man by the name of Omar Khattab was one of those who, when asked by Bassam, went to the house and participated in that. At one stage Omar Khattab went, on Bassam’s direction, to obtain some guns which were hidden nearby. Two carloads of men, apparently associates of Ali’s, came to the house. Some of them also had guns. Shots were fired by members of each group. By the time the police arrived, shortly after the shooting, the men who had arrived in the cars had dispersed. Omar Khattab had retrieved the guns he had brought to the house and returned them to their hiding place. It later became apparent that two men, brothers by the name of Kheir, who were part of the group who had driven to the house, had received gunshot wounds. They were eventually taken to hospital by their associates.
4 Mike Hanna, as he is now known, was previously known as Mohamed Kheir and he is the brother of the two men who were shot. The evidence at trial revealed that in the hours following the shooting, he, together with two associates, twins by the name of Ahmed and Mohamed Mohamed, were trying to find out who was involved in the shooting which had resulted in the Kheir brothers receiving their injuries. Omar Khattab was also trying to find out who was in the party that had come to Bassam’s house, and what had happened as a result of the shooting and the subsequent police involvement.
5 There was some contact between Omar Khattab, Mike Hanna and the Mohamed twins over the next few hours. Omar Khattab seemed to have links, or allegiances to both sides involved in the shootout. It would appear he was initially unaware the Kehir brothers had been shot. Mike Hanna and the Mohamed twins were at that stage unaware that Mr Khattab had been one of the group in the house involved in the assault on Ali and the subsequent shoot out. Once he was aware that his brothers had been shot, Hanna asked, or told, Omar Khattab to find out who was involved. Omar Khattab did not tell them he had been present, or that he had provided the guns.
6 By its guilty verdicts, the jury must have accepted the following evidence given by Omar Khattab. After meeting Hanna and the Mohamed twins, and meeting and speaking to some other people in the hours after the shooting, Omar Khattab eventually went home somewhere between 5 and 7 in the morning, and went to sleep for a short time. He was woken by his father and told one of the twins was downstairs waiting for him. He recognised him as Mohamed Mohamed. Mohamed Mohamed told Omar Khattab they were going for a drive. Omar Khattab went outside with him. There was no car directly outside, but Mohamed Mohamed walked him down the road and around the corner, where Mike Hanna and Ahmed Mohamed were waiting by a car. Omar Khattab said he had initially gone willingly out of the house with Mohamed Mohamed, but became concerned when there was no car outside, and more concerned when he saw Mike Hanna and Ahmed Mohamed waiting by the car, out of sight of the house.
7 When Omar Khattab got to the car, he was pulled into the back by Mike Hanna, and pushed onto the floor. Mohamed Mohamed got into the drivers seat, and Ahmed Mohamed into the front passenger seat. Mohamed Mohamed then drove away.
8 It is that which founds the charge of kidnap.
9 Omar Khattab could not see where he was being taken because he was pushed onto the floor, with the hood of his top pulled over his head. He said he was punched and assaulted by Mike Hanna during the drive. When they arrived at their destination he recognised it as a factory in Fawkner, owned by a man he knew, whose name was Sharif. Mike Hanna pulled Omar Khattab out of the car and hog tied him, that is tied his hands and legs together behind him. Ahmed Mohamed assisted Mike Hanna in tying Omar Khattab up. He was then repeatedly kicked, punched and slashed with a knife by Mike Hanna. Ahmed Mohamed and Mohamed Mohamed did not themselves kick punch or slash Omar Khattab, but they were present, either in the same part of the factory as Omar Khattab was where he was being assaulted, or in other parts of it, throughout. The assaults on Omar Khattab were interspersed with accusations by Mike Hanna that Omar Khattab had shot his brothers and demands by him to tell him who else was involved. Eventually Omar Khattab was untied, and told to clean himself up.
10 Mike Hanna, and the Mohamed brothers at some stage left the factory for some time, leaving Omar Khattab behind. They threatened to harm him and his family if he left. He remained at the factory, and later, after they had returned, accompanied them to the Northern Hospital, where many friends and supporters of the Kheir brothers had congregated in the car park outside the hospital. They stayed there for some time. Eventually, one of the brothers, Mahmoud Kheir, was discharged. Omar Khattab was driven to Mahmoud Kheir's house by Mike Hanna and Ahmed Mohamed. While Omar Khattab was seated in the car, Mahmoud Kheir, whose leg was bandaged, approached him if he had been in the house. Omar Khattab said he was, but had run away. Mahmoud Kheir and some other men then punched Omar Khattab to the head for a short time, before he was driven back to the factory. He was left alone again at the factory, and eventually left, and went to his girlfriend’s house.
11 He refused to seek medical attention for the injuries he had sustained. His injuries included deep cuts to his hand and his thigh, a number of lesser cuts or slashes to his hand, and bruising and abrasions on his face, torso and neck. X-rays taken some time later revealed fractures to his ribs. Apart from scarring from the stab wounds and some residual back pain, Omar Khattab has made a full physical recovery from his injuries.
12 He did not return to his family home, and on his evidence lived in hiding for two weeks in Melbourne before going to Perth, where he has lived ever since.
13 It is the tying up of Omar Khattab and keeping him in the factory which was the basis for the charge of false imprisonment, and the kicking, punching and slashing by Mike Hanna at the factory, in the presence of, and with the acquiescence of the Mohamed brothers which constitutes the charge and verdict of intentionally causing injury.
14 This last charge was an alternative to a charge of intentionally causing serious injury. At trial, whether the injuries were properly to be regarded as a serious injury, or were merely an injury, and whether the intent was to cause a serious injury, or merely an injury were both in issue. In my view, I should sentence you on the basis the evidence does not permit me to be satisfied that you intended to inflict serious injury, as opposed to injury. Nor does it permit me to be satisfied that the jury was satisfied the combination of injuries sustained by Omar Khattab was sufficient to constitute characterisation as a serious injury.
15 These are serious examples of offences of their type, not only because of the acts constituting each offence, but also the context in which they occurred. Subject to consideration of matters personal to each of you, it is clear that considerations of denunciation, punishment, and deterrence loom large. Whatever was the reason for the dispute between Ali and Bassam, it led to a continuing cycle of mindless and gratuitous violence, perpetrated by individuals or groups who took it on themselves to avenge what they saw to be a wrong done to them or to those they owed allegiance to, and to find and punish those they believed had done wrong to them or those they owed allegiance to. There is no place for such primitive and lawless notions of vengeance and punishment in a civil society such as this one that we are so privileged to live in. Those who think they can operate outside the laws that bind and protect us all must understand the consequences: when detected, as so often they are, they will be subjected to the full force of law. If, after a trial according to law, they are found guilty of offences they will be punished accordingly. Grievances are not resolved by taking matters into your own hands, by acting in mobs, packs or gangs, by using force of numbers to take and punish a person believed rightly or wrongly to have done wrong by you or those you owe allegiance to.
16 Mr Khattab has filed a victim impact statement. Consistently with his evidence at trial, he said that he had recovered physically, save for residual back pain, which causes some restrictions in weight-bearing activities. He said he continues to be concerned for his safety. As a result, he has not returned to Melbourne, and suffers from the effects of isolation from his family. These are understandable consequences of your behaviour, and breathe life into the reasons why denunciation and deterrence are important sentencing considerations for these offences. Given what I have heard of your conduct on this day, and of the events of the previous night, it is not surprising he feels as he does.
17 In some ways it could be said he has been lucky. It was clear that he was part of the world that you inhabited, of drug use, gangs, guns and dangerous, shifting allegiances, and of an all too ready resort to group violence to avenge real or perceived slights. It would appear he has, as a result of your conduct, and by moving away, broken free of that life.
18 You, Mike Hanna, continue to express resentment that he was not imprisoned for his role in the assault on Ali or the shooting of your brothers, and you express a sense of grievance at what you see as the disparity in the consequences he has suffered compared to what your brothers have suffered and you and the Mohamed twins faced, by standing trial for charges concerning Mr Khattab. That in itself demonstrates you are far from showing any appreciation of the wrongfulness of your behaviour, of taking matters into your own hands.
19 Each of you has significant criminal histories. You, Mike Hanna, have been sentenced on 8 separate occasions between 2002 and 2009. Your offending covers a wide range of criminal behaviour: offences of personal violence, affray, dishonesty offences, aggravated burglary involving the possession of an offensive weapon, drug trafficking, and driving offences. Leaving aside appearances in this court where you appealed from summary convictions or sentences, you have been sentenced by this court on three previous occasions. In June 2003 you were sentenced to a total effective sentence of 9 months imprisonment on two charges of intentionally cause injury and one of aggravated burglary. In 2004 you were sentenced for two charges of trafficking in a drug of dependence to be imprisoned for a period of 119 days, and placed on a community-based order for two years. In 2009 you were sentenced to be imprisoned period of three months, suspended for six months on a charge of affray.
20 Ahmed Mohamed you have been before courts on three occasions between 2007 and 2009. On the first occasion, in 2007, it was a minor matter. You were released on an adjourned undertaking for 12 months on a charge of possession of a prohibited weapon. In 2009 you were sentenced in the Supreme Court to an aggregate term of imprisonment of two years, which was partially suspended, and placed on a two-year community-based order on one charge of recklessly causing serious injury and one of recklessly causing injury. Two months later you were sentenced to nine months imprisonment in the County Court on a charge of attempting to pervert the course of justice.
21 Mohamed Mohamed you too have been before courts on three occasions between 2007 and 2009. On the first occasion in 2007 you too faced a minor summary charge of entering a scheduled public place without authority. That was found proven and dismissed. Your two more recent and more serious court appearances are the same as your brothers. That is, you too have been sentenced for an offence of serious personal violence, and for attempting to pervert the course of justice.
22 Thus in your previous convictions there are some common features which mean that significant weight must be given to specific deterrence. Each of you has convictions for violence. The circumstances of other of your convictions demonstrate a disturbing pattern of involving yourself in violent and thuggish ways in other people’s disputes.
23 So far as you Mike Hanna are concerned the circumstances of the conviction for affray were set out in the reasons for sentence of his honour Judge Allen which were provided to me in the course of the plea. They demonstrate that you became involved in somebody else’s dispute. You and another man joined in to support your brother who, it would appear, was the instigator of unprovoked and unjustified violence against some people he came across and to whom for some reason he took exception. When your companion injured one of the other group with a knife or cleaver he had obtained from your car you tried to dissuade the victim group from calling the police, saying you would take the victim to hospital. When you realised the police have been called you fled from the scene with your companions. The attack occurred in daylight at a service station where other members of public, including mothers with their children, were present, just going about their business.
24 On that occasion, Judge Allen said to you:
"Your parents went through a great deal of sacrifice and hardship in bringing you as a young child with your siblings to this country to make a fresh start. It does not make sense, does it, to come here and cause trouble. This is a country of peace and harmony and it is important that we all understand, all of us, that this sort of behaviour is not acceptable."
25 He took into account that at 26, you were still a relatively young man, with family support and therefore that he must give some weight to your prospects for rehabilitation, in the hope that you might change your ways, that you would learn your lesson, rid yourself of drugs, stop associating with bad people and stay out of trouble. His Honour made it clear that the sentence imposed on you was constrained by parity considerations, given that your brother, the initial instigator, had been sentenced to a Community-Based Order. He said that was a disposition he regarded as a very compassionate sentence in the circumstances.
26 It was 9 months after that that the events which gave rise to your convictions for the charges on which I must sentence you took place.
27 Ahmed and Mohamed Mohamed, your previous convictions show a disturbing history of lending yourself to other people’s causes, of instigating or joining in fights motivated by a desire to avenge a wrong perceived to have been done by somebody to people you are supporting. Your Supreme Court convictions resulted from a confrontation between two groups of young men. You, Mohamed Mohamed, produced a gun, pointed it at the person who seemed to be the target of your groups ire, and fired the gun, once into the air and once into that group of men. Two men received shot gun pellet injuries as a result. You, Ahmed Mohamed, were with your brother, and drove him away from the scene of the original confrontation as he was pointing his loaded shotgun out of the window of the car, and fired the shot that caused the injuries to the two victims.
28 In sentencing you, His Honour Justice Coghlan took into account your youth, at the time of sentencing for that you were 20 years old, and your absence of previous convictions. He warned you of the dangers of continuing on the path that had let you to be sentenced by him. In words that resonate for this offending as well he said:
"trouble such as this between groups of youths in our community across various divides, whether social, religious, political, familiar or even in circumstances which are virtually unexplained, is not acceptable in any circumstances."
He later said
"your behaviour on the night … Remains largely unexplained … I am satisfied that what you did arose out of a sense of loyalty to others in the group. No adequate explanation has emerged."
29 At the time Justice Coghlan sentenced you, your trial on the charge of attempting to pervert the course of justice was pending. Of that His Honour said:
"I have been told that the allegation, which you do not accept, is that you attempted to interfere with a witness or witnesses in the case of a friend of yours. Even if the bare facts short of criminal responsibility are made out, then you need to take great care about involving yourselves in the affairs of others. That seems to lead to strife. It is a matter which both of you will have to address in the future. There is some possibility that some members of the groups to which you belong will regard you more highly because of this, but any involvement in the future in this type of behaviour will lead inevitably to adult prison and long terms of imprisonment at that."
30 Eight months after being sentenced by Justice Coghlan, you both pleaded guilty to the charge of attempting to pervert the course of justice to which Justice Coghlan referred in his sentence. This too had its origins in a dispute which had led to a violent confrontation and which resulted in friends or associates of yours being charged with affray. Your pleas of guilty acknowledged that the two of you made five separate approaches, some direct, some indirect, to a witness, where you threatened him with harm in an attempt to dissuade him from giving evidence against your friends at the pending committal.
31 When she sentenced you for that, Her honour Judge Cotterell said of your offending:
“it seems to have no other explanation than your desire to intervene in matters which really did not concern you and could only be explained by your misguided loyalty and submission to the tenets of an unrestrained and violent peer group which exists in our northern suburbs. It can only be hoped that your experiences with the legal system over the last two years will be sufficient to tell you from ever falling into such behaviour again.”
32 It is clear Her Honour’s warning to you went unheeded.
33 It was only 2 months later that you took part in the kidnap abduction and causing injury to Mr Khattab which gave rise to the charges for which I now come to sentence you.
34 Going then to matters personal to each of you.
35 Mike Hanna, you are now 33. Your parents migrated to Australia from Lebanon in 1984, when you were 3.
36 You are married, and have a 16-year-old stepdaughter, an 8-year-old son and a 5-year-old daughter.
37 You did some of your schooling here and some in Lebanon, but I am told you are effectively illiterate, and have only a rudimentary command of English, which I am told is your predominant language, and a similarly rudimentary command of Arabic. Although your formal IQ has not been tested, the psychologists Mr Newton and Mr Cummins say you have poor levels of intellectual functioning and although unlikely to satisfy the criteria for certification as having an intellectual disability, are probably of borderline intellectual capacity.
38 On leaving school you worked for a period in the family smash repair business, but you injured your back in 1998 and you have not worked since.
39 You report a significant history of drug abuse since 2002, abusing variously cannabis, Xanax, methamphetamine and alcohol.
40 Since 2008 you have spent most of your time in custody. In September 2008 you were charged with trafficking, and spent 12 months in custody before being bailed in September 2009, two months before the commission of the offences for which I must sentence you. You remained on bail until January 2010. You have been bailed, charged with further offences and remanded, re-bailed and re-remanded on a number of occasions since then.
41 In November 2011 you were sentenced for the drug trafficking that you were charged with in September 2008. A sentence of two years and three months imprisonment, with a non-parole period of 16 months was fixed. You had then served 412 days of presentence detention referable to the trafficking charge. As a result you became eligible for parole on 29 January 2012. Parole was not granted because of the pending charges including those for which I must now sentence you. You served the whole of the sentence imposed for the drug trafficking and were released from custody on 30 December 2012.
42 You remained on bail in respect of these charges from then until verdict on 19 March 2013.
43 As a result there is a period of 15 days presentence detention for the period between 4 and 18 August 2010, when you were first charged with these offences and your release on bail in respect of them, 45 days of presentence detention for the period from remand on verdict until the hearing of the plea on 3 May, and the further days of presentence detention from plea until sentence give a total of 81 days.
44 So far as the charges laid either before or after these are concerned but in the same period, one set relates to offences connected with these, alleged to have been committed later the same day. You spent a considerable period, over 100 days in custody, on remand in respect of those outstanding charges. They are still pending.
45 The other charges were drug trafficking charges, which have since been the subject of a notice of discontinuance. It follows that, as Ms Garde-Wilson submitted, that you stand to be treated so far as this sentence is concerned as a person who has not committed further offences since these offences.
46 Ms Garde-Wilson submitted I should take into account in a general way when considering totality the presentence detention attributable to your remand in respect of the ultimately discontinued trafficking charges, that I understand to be 13 days, the roughly 120 days of pre-sentence detention in respect of the pending Eshlan matter that is connected with these charges, and the 10 months that you served for the earlier trafficking offences, where you were denied parole by reason of these and the other pending charges.
47 You were on bail for the 2008 trafficking charges at the time you committed the offences for which I must sentence you and you had only recently finished serving your most recent term of imprisonment when you committed these offences. In those circumstances I do not consider that I should make any allowance for the time you served after the expiration of your minimum sentence in respect of the trafficking or the time that you spent in custody in respect of those trafficking charges. So far as the time attributable to the Eshlan charges are concerned, as those charges are still pending I also am not taking those into account in a general sense.
48 Ms Garde-Wilson submitted your time in custody would be more burdensome for two reasons:
· First, that you suffer from a serious, and potentially life-threatening condition, having been diagnosed whilst you were in custody in 2012 with a brain aneurysm; and
· Second, because you suffer from depression and complex post-traumatic stress disorder which significantly compromised your perception judgement and capacity to engage in consequential thinking.
49 So far as the first of these matters is concerned I was told that you have been advised from the time of diagnosis last year that you should have surgery for the aneurysm. From the MRI report tendered on the plea it appears that a surgical procedure of stenting is recommended. Despite the medical advice you were given to have that surgery as soon as possible you chose not to have it performed whilst you were in custody in 2012. You were awaiting surgery at the time of conviction which did not take place because you were remanded in custody upon the jury's verdict. I am told you have again expressed a desire not to have the surgery whilst in custody. That is your choice, but on the material before me, it means it is your choice that is placing yourself at risk. There is no reason why you cannot have the surgery whilst a prisoner, and no reason to expect that you would receive any different or lesser standard of care then you would as a public patient and whilst at liberty.
50 So far as the second matter is concerned, I am not satisfied on the materials before me that any of the principles in Verdins have been enlivened. In his report, based on his assessment of you at MRC after conviction, Mr Cummins said that your comments and presentation in interview were consistent with you suffering from a dysthymic disorder. Mr Cummins said:
"I formed the opinion the dysthymic disorder developed in response to him being allegedly assaulted by the police around 1998. In my opinion his presentation and history could also be consistent with him suffering from a post traumatic stress disorder or, more particularly, a complex post-traumatic stress disorder.
His obviously elevated level of paranoia could be partly reflective of trauma type symptoms but could also be reflective of his history of drug use although as indicated above, he has been drug-free for an extended time. He appears to be functioning at a very low level intellectually. His comprehension skills are very poor. In my opinion he may have an ABI reflective of his chronic abuse of alcohol and drugs or perhaps reflective of having sustained a head injury.
Based on my assessment to date, it is my opinion he was suffering from a mental illness at the relevant time. Based on his presentation at interview, I formed the opinion his perception, judgement and consequential thinking is chronically compromised. Under these circumstances it is my opinion his moral culpability at the time of offending would have been reduced. In my opinion because of his current mental health and his compromised intellectual capacity, it would be more onerous for him to spend time in custody than for someone who did not have these ongoing issues."
51 In an addendum to his report Mr Cummins set out what he was told by your wife when he interviewed her after conducting his assessment of you. He said:
"As a result of interviewing his wife, this significantly firmed up my opinion he is suffering from symptoms of a complex post-traumatic stress disorder which was triggered because of his turbulent family life and in particular his father’s physically and verbally abusive behaviour. The post-traumatic stress disorder was then complicated and transitioned into a complex post-traumatic stress disorder as a result of the subsequent traumatic events including his son’s near drowning and a number of incidents, some of which were witnessed by his wife, where he was physically assaulted by the police. Speaking strictly as a clinician I am therefore of the opinion that the Verdins principles are relevant in terms of his mental health at the relevant time.
52 Mr Cummins also gave evidence. He said that the mental illness he referred to in his report that he considered you were suffering from at the relevant time was the dysthymic disorder. He said the primary symptom he relied on to make a diagnosis was on your report of sleeping difficulty. He acknowledged that was clouded by your chronic abuse of alcohol and drugs. By that I understand that your poor sleep could be attributable to your substance abuse rather than to dysthymic disorder. He also relied on your and your wife’s account of your appearance of being depressed, of having reduced motivation, moping around and complaining about your past and your home life.
53 There is no contemporaneous support for this from any independent source. Mr Newton, who assessed you earlier, also relied on self-report at his first consultation with you to diagnose dysthymic disorder.
54 In my view there was nothing in the symptoms that you reported that could not equally be attributable to your chronic substance abuse. Although Mr Cummins in his report referred to your having been drug free for an extended time, and it is clear that the urine analysis results provided to me show that whilst in custody you were drug free, you had been at liberty between December and March immediately before Mr Cummins assessed you this year and there is no evidence before me about whether you had lapsed again into substance abuse during that period. I am therefore not satisfied that you were suffering from dysthymic disorder at the time of the offending in November 2009.
55 Even if I had been satisfied the evidence supported a diagnosis of dysthymic disorder at the time of the offending, I am not satisfied that there is a causal connection between it and the offending.
56 As Mr Cummins said, paranoia and violent and aggressive behaviour are not symptoms of dysthymic disorder. There is nothing in the symptoms reported by you that would indicate that any compromise to your perception judgement or consequential thinking which may have contributed to your commission of these offences was linked to your dysthymic disorder.
57 Mr Cummins explained his diagnosis of post-traumatic stress disorder was based initially on the reported symptoms of traumatisation, ruminative thinking and obsessional behaviour due to the police assault that you reported occurred in 1998. He said it was when he interviewed your wife and she told him that your son had suffered brain damage as a result of a near drowning incident. Apparently you were supposed to be watching the child but he managed to get into a pool without you noticing and nearly drowned . She reported since the near drowning that you have become more depressed and morose and appear to have given up on yourself. It was based on that that he considered that by November 2009 your symptoms have developed into complex post-traumatic stress disorder. He also took into account also the history you gave your fathers assaultive behaviour during childhood. In his view he said that predisposed you to the development of post-traumatic stress symptoms once exposed to a triggering event such as the police assault you described.
58 The account that you and your wife gave Mr Cummins of the 1998 police assault which resulted in the injury to your back and which rendered you unable to work since is again not confirmed by any independent evidence. It is contradicted by the history you have recounted to Mr Newton. You told him that you injured your back whilst working in the family panel beating business. You did not report any police assaults to him or any injuries sustained as a result of police assaults to him. Despite his 21 consultations with you after his initial assessment of you when he prepared his original report, Mr Newton did not in his later report diagnose you as suffering or likely to be suffering from post-traumatic stress disorder.
59 In any event your conduct in committing these offences does not sit comfortably with a person suffering post-traumatic stress disorder. People suffering post-traumatic stress disorders, Mr Cummins said, may experience repressed anger, but it tends not to be acted out. That is particularly so if they also have a dysthymic disorder in parallel with the post-traumatic stress disorder.
60 Having regard to the nature of the offences committed by you, Mr Cummins acknowledged that there was at best a very limited causal connection between your mental functioning and the commission of the offences. That was his ultimate position in his evidence.
61 In my view there is nothing in the material before me which would justify reducing the sentence otherwise appropriate to impose upon you by reason of any mental disorder. The weight to be given to the effect on you of the risks associated with your aneurysm must be tempered significantly by your conscious choice to decline treatment whilst in custody.
62 The lucid description you gave to Ms Garde-Wilson and which she repeated to me of your understanding of the effects of the aneurism, and the bundle of certificates you produced, evidencing your engagement in courses whilst on remand or whilst serving your previous sentence demonstrate a capacity to communicate, engage, concentrate, and comprehend which conveys a more positive view about your capacity that the reports of Mr Cummins and Mr Newton would suggest. Similarly, the fact you have been entrusted with a position as a billet in the past shows a capacity to make decisions about what is in your interests, and to carry through on what is required, that is, to moderate your behaviour and to engage in consequential thinking is similarly more positive than the reports would suggest.
63 You will be sentenced therefore as a 33-year-old man with a significant criminal history, and a significant history of substance abuse. The warnings you have been given when you were previously sentenced about changing your drug habits, your associates, and your behaviours have had little effect on you. Your professed devotion to your wife and children, and the continued support of her and your mother have had no effect on inducing you to live a life free of crime. Whatever disadvantages you suffered in your childhood as a result of your father's behaviour, you are now a mature adult responsible for your own actions. You may have a low or borderline level of intellectual functioning, but your conduct on this day showed you were well aware of what you were doing and capable of making conscious and considered choices about your behaviour. I am satisfied that specific deterrence must play a significant role in sentencing you. In light of your history I consider that your prospects for rehabilitation are most likely poor, at best, guarded.
64 Mohamed and Ahmed Mohamed, you are now 25 years of age. You were 8 when your family came to Australia from war-torn Iraq. I am told that many members of your family were imprisoned and killed there. It is hard to know how much you were aware of that before you came to Australia, but it is no doubt a significant part of your family history that you have had to come to understand and live with as you have grown older. I accept that it has had a significant impact on your parents and that that must have played out in your family life.
65 That your family fled such a brutal and vicious environment for their own safety and to give you better lives, only to see you at the age of 25 being sentenced for the third time for serious offences must make them wonder whether the sacrifices they made for you were worthwhile.
66 You are both of average intelligence; you both successfully completed your secondary schooling. Your post secondary study and work has been severely disrupted by your criminal behaviour and periods of imprisonment. Each of you commenced, but did not complete Certificates IV in electrical and engineering. Each of you worked for a year as plasterers and for a short time as fruit pickers. That appears to be the extent of your vocational training and employment. You clearly have the potential to achieve more if you choose to apply yourselves.
67 You have family support and good role models in your family. Although your parents and some of your siblings have returned to Iraq, your other siblings have remained here, obtaining post secondary qualifications and good jobs.
68 As the reports prepared by Dr Aaron Cunningham in respect of each of you reveal, you do not suffer from any mental illness or psychological condition, and although each of you has reported substance abuse in the past, you are apparently drug-free now and report having been so for some time.
69 Your youth, intelligence, family support and absence of problems associated with mental illness or substance abuse mean that you have the capacity to change your lives and live meaningful offence free lives if you choose to do so. However this being your third serious offence by the age of 25, and your failure to heed the warnings made at your previous sentencing hearing means that your prospects for rehabilitation must be considered to be guarded. For you as for Mr Hanna it is clear that specific deterrence must play a significant role in sentencing you.
70 Ahmed Mohamed, you told Dr Cunningham you had, since being charged, ceased association with negative peers. You, Mohamed Mohamed, told Dr Cunningham the same. I have no way of knowing whether that is the case or not. I can only hope it is true.
71 Neither of you has been charged with any other offence since these. The weight to be given to specific deterrence is tempered therefore by the absence of subsequent charges. For you, Mr Hanna, the same applies although strictly speaking in your case it is the absence of subsequent charges that were proceeded with. The absence of subsequent charges therefore is a matter I have taken into account in your favour when considering the prospects of rehabilitation for all three of you, that is when considering the way and the manner in which I have characterised them.
72 Another matter I take into account in your favour is the delay in the matter being finalised. These offences occurred in late 2009. You were not charged until September 2010 and the delay between then and sentencing has been considerable. All of you have had this hanging on your heads unresolved for that time.
73 I see no reason for distinguishing between your roles. The prosecution case was put primarily on the basis of joint criminal enterprise. Although it was Mr Hanna who inflicted the injuries on Omar Katab, and asked Mr Khattab who was at the house and involved in the shooting of his brothers, each of the Mohameds took an active part in getting Omar Khattab into the car, detaining him at the factory, and acquiescing in the assault of Omar Khattab by Mike Hanna. It was you, Mohamed Mohamed who went to the house and told him he was “going for a walk”, you who drove the car away once Omar Khattab had been pulled inside. You, Ahmed Mohamed, stood by the car, making it clear you were there to help if needed. You helped tie Mr Khattab up when you arrived at the factory, and you told Mr Khattab, when he asked you for help in the car on the way to the hospital, that if you had your way you would shoot him yourself. If this was primarily Mr Hanna’s game, his vigilante attempts to find out who was responsible for the shooting which resulted in his brothers’ injuries, or his act of vengeance, each of you, Ahmed and Mohamed Mohamed acted as the thugs, or henchmen.
74 The offences constitute a course of conduct, although each act is a separate offence in that course of conduct. I am allowing for some cumulation between the different charges, but in the framework of a total effective sentence which reflects the overall criminality. I have allowed a sufficient gap between the head sentence and the non-parole period to allow you, if you can satisfy the parole authorities that you should be released on parole, the opportunity to benefit from parole supervision. I want to make it abundantly clear, though, that it is up to each of you to make your choices about your futures. You can continue to act as you have, and face a future where you will most likely continue to enjoy short periods at liberty, followed by long periods in prison. Or you can change your values, your friends and your allegiances, and look forward to a life at liberty.
Sentences
75 Each of you, Mike Hanna, Ahmed Mohamed and Mohamed Mohamed are convicted of all three charges of which the jury found you guilty.
76 On Charge 1, kidnap each of you is sentenced to be imprisoned for a period of 7 years.
77 On Charge 2, false imprisonment , each of you is sentenced to be imprisoned for a period of 3 years and I direct that 1 year of that be served cumulatively upon the sentence on Charge 1 and the partial cumulation on Charge 5.
78 On Charge 5, intentionally causing injury, each of you is sentenced to be imprisoned for 4 years and I direct that 1 year and 6 months of that be served cumulatively on Charge 1 and the partial cumulation order on Charge 2. That makes for each of you a total effective sentence of: 9 years and 6 months. I fix a period of 7 years as the time you must serve before being eligible for parole.
79 I declare, Mike Hanna, that you have spent 81 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. I declare in respect of each of you, Ahmed and Mohamed Mohamed, that you have spent 66 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
80 So far as you, Ahmed and Mohamed Mohamed are concerned, I make an order pursuant to s.464ZF of the Crimes Act for the taking of a forensic sample. I direct that that be taken by way of buccal sample, that is, a mouth swab. I must advise you that if you do not consent or cooperate in the taking of that sample then the police are authorised to use reasonable force in order to obtain that sample and are likely to use the more invasive method of obtaining it, namely the taking of a blood sample. Do you understand, Mr Mohamed and Mr Mohamed, what I have said about that?
81 PRISONER 1: Nup.
82 PRISONER 2: What was that, I don’t understand?
83 HER HONOUR: Very well, your lawyers will explain further to you. Do the orders reflect what I said I intended to do?
84 MR BOSSO: Yes, Your Honour.
85 HER HONOUR: Arithmetic correct?
86 MR BOSSO: As far as I can tell, yes.
87 HER HONOUR: Any further ancillary orders that are required to be made?
88 MR BOSSO: No, Your Honour.
89 HER HONOUR: Remove the prisoners please.
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