Director of Public Prosecutions v Jaha

[2016] VCC 483

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01509

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMIR JAHA

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial 22 January 2016.  Plea 18 February 2016
DATE OF SENTENCE:	22 April 2016
CASE MAY BE CITED AS:	DPP v Jaha
MEDIUM NEUTRAL CITATION:	[2016] VCC 483

REASONS FOR SENTENCE
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Subject:  Blackmail.  Recklessly causing injury.
Sentence:  22 months' imprisonment.
  18 month non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Piekusis
For the Accused	Mr P. Dunn QC

Pages 1 - 14

 

 

1Emir Jaha, you have been convicted by a jury after a trial of one charge of blackmail.  The prosecution case, which must be assumed to have been accepted by the jury, was that you, together with your long-time friend and associate, Bemir Saracevic and others, blackmailed Keith Tribe between the
27 August 2013 and 4 September 2013.  The maximum penalty for the offence of blackmail is 15 years' imprisonment.

2At the completion of the trial, you pleaded guilty to two separate and unrelated charges of recklessly causing injury.  The maximum penalty for each of these charges is five years' imprisonment.

3I deal firstly with the circumstances surrounding the commission of the blackmail offence.  Both you and Saracevic were, at all relevant times, members of the Comancheros Motorcycle Club.  On 27 August 2013 you, together with Saracevic and one, Tangianau Maratai, and another unknown male, attended unannounced and uninvited at the home of Keith Tribe.  Mr Tribe said that Saracevic told him that you were from the Comancheros. Consistent with this statement, Tribe described those present, which included you, as wearing clothing that identified the Comancheros Motorcycle Club.  Saracevic told Tribe that you were there to collect debts which Tribe allegedly owed to other persons, amounting to more than $850,000.

4Tribe was a businessman who had previously engaged in property development through various companies.  Some years earlier, a number of persons had loaned money unsecured to Tribe and/or those companies. The companies became insolvent and were liquidated.  Tribe and his partner were both bankrupted.  By 27 August 2013, the period of bankruptcy had expired and Saracevic and you were attempting to recover debts which had some years earlier either been proved in the liquidation of the companies, or had merged in the bankruptcy of both Tribe and his partner.  At law, those debts were unrecoverable, but you were seeking to recover them by threat of harm.

5The clear intent of Saracevic and you and others approaching Tribe on
27 August 2013, asking for the repayment of these debts, was to obtain money either for yourselves or creditors of Tribe, by fear and intimidation. You and Maratai are physically large men.  When the group went to the house, you asked to look around and indeed went to the garage area.  The whole purpose of this exercise was to install fear into Mr Tribe, that if he did not repay the money requested, he would come to harm.

6After this initial approach, there followed a number of phone calls between Saracevic and Tribe.  Maratai was used as a conduit for the making of those calls and to connect Saracevic with Tribe.

7As a result of those phone calls, a second meeting was arranged between Saracevic and Mr Tribe at The Pines Shopping Centre in Doncaster on
4 September 2013.  Video surveillance of that meeting recorded by police who, by this time had been informed of your demands, shows you seated at the end of a table where Saracevic and Tribe were having a discussion. You were listening to the discussion and appear to be keeping an eye out, lest you were being observed, which you were.  Again, your presence appears to have been to impress upon Mr Tribe that if he did not comply with the demands made of him, then he would come to harm.  At this meeting, Saracevic again requested Tribe to pay the debt.

8The prosecution case, which was accepted by the jury, was that at all times, you were engaged in a joint criminal enterprise with Saracevic and others to blackmail Tribe.  Whilst there is no evidence that you played a speaking role, you had full knowledge that Saracevic was blackmailing Tribe into paying the alleged debt and your role in the joint criminal enterprise was to be present with Saracevic and by your presence, to reinforce his implied threats by instilling fear into Tribe.  One of your defences at trial was that there was never a threat made.  The jury rejected this.  On the plea, your counsel Mr Dunn QC, conceded that the purpose of having you present when Mr Saracevic spoke with Mr Tribe, was your imposing presence.  You are physically a large man.

9This offending is thus a very serious example of what is a serious offence.
I accept that your involvement was limited to a period of about nine days.  Saracevic and others pursued Tribe for a longer period.

10Commercial dealings in this State must be resolved according to law and  cannot operate where so called “debt collectors” are permitted to function by instilling fear by standover tactics as a means of recovering debts.  A system where the physically strong prevail over lesser persons will not be tolerated.  Commerce must function within the law and not outside it.

11I was told and accept, you have known Saracevic since you were introduced at school.  You are close friends and associates and your role was to back him up.

12As I have said, there were other offenders also involved in the offending that resulted in your conviction on the blackmail charge.

13Maratai is a man of borderline intelligence, who at the time, was also a member of the Comancheros Motorcycle Club.  His role in this offending was limited to being present on one occasion on 27 August, and to act as a conduit thereafter.  Your role was simply to instil fear.  There is no clearer evidence of this than the surveillance film of your presence within hearing of the meeting between Saracevic and Tribe on 4 September 2013.  In my view, you played a more important role in the offending between 27 August and 4 September than did Maratai.

14Maratai pleaded guilty to one charge of extortion and one unrelated charge of possession of a drug of dependence.  The latter has nothing to do with this matter.  The maximum penalty upon conviction for extortion is the same as for blackmail, namely, 15 years' imprisonment. 

15In sentencing Maratai, I reduced his sentence in part because he had pleaded guilty.  He had only a limited criminal history and I was satisfied that he had disassociated himself from the Comancheros, was living in a stable relationship and had obtained employment.  Mr Maratai did have subsequent matters for extortion, for which he had served a term of imprisonment and at the time of sentence, he was part way through completion of the term and conditions of a community corrections order.  The sentence imposed upon Maratai reflected application of the totality principle.  The sentence also reflected application of Verdins principles, the prosecutor appropriately conceding that Mr Maratai’s limited intelligence justified a finding that his moral culpability in this offending was probably reduced.

16In sentencing Maratai, I made another community corrections order with conviction for a period of two years, with conditions including that he undertake 200 hours unpaid community work. I also made a declaration for the purposes of section.6AAA of the Sentencing Act, that had it not been for his plea of guilty to the charge of extortion, I would have imposed a term of imprisonment of
18 months.

17Another offender was Gemino Aloia, also a member of the Comancheros Motorcycle Club.  He pleaded guilty to a different offence, that of making a threat to inflict serious injury upon Keith Tribe on 24 September 2013. That offence carries a much lower maximum penalty, compared to the offence that you have committed.

18Mr Aloia’s offending was confined to making one visit to the home of Mr Tribe when he was not present, with Mr Balsillie, to affix a bullet to the front door of the premises.  That was the implied threat of serious injury. He was convicted and fined the sum of $5,000.

19Mark Balsillie also a member of the Comancheros Motorcycle Club, relevantly pleaded guilty to one charge of extortion between 7 and 27 September 2013, by making demands of Keith Tribe that he pay money with a threat to inflict injury.  His period of involvement in the offending was longer than was yours, but he had no direct contact with Mr Tribe.  His was an implied threat.  Yours was also implied, but reinforced by your imposing presence.  Balsillie acted as a foot soldier for Saracevic, obeying his commands to go to the home of Tribe on a number of occasions.

20In sentencing Balsillie, I took the view that he was more involved in the offending, in relation to the extortion of Keith Tribe, than was Maratai and Aloia.  Balsillie also pleaded guilty to other charges and had some relevant prior convictions.  On the charge of extortion, I sentenced Balsillie to a term of imprisonment of nine months.

21I regard your role in this offence of blackmail as second only to that of Saracevic, who was clearly the ringleader.  You were his main support act, imposing strong physical support to Saracevic when he made his demands face to face with Tribe.  Your role was more involved than was Maratai or Balsillie or Aloia and in my view, should be distinguished from the involvement of each of these men.

22Whilst you cannot be punished for pleading not guilty and placing yourself on trial by a jury, at the same time you cannot expect a reduction in sentence which would normally follow had you pleaded guilty to this offence at an early stage.  In my opinion, the prosecution case against you was strong and the jury’s verdict could well have been expected.

23I received into evidence as Exhibit B, a victim impact statement from Keith Tribe and his partner, Sandra Margaret Krause.  In those statements, they detail the effects which the offending involving the extortion and blackmail had upon them.  Both of them were scared by what happened and had to leave their home because of the threats of harm to them should they not pay debts alleged to be owed from business dealings many years earlier.  In passing sentence, I have taken into account the content of the victim impact statements.

24I turn to the charges of causing injury recklessly, to which you have pleaded guilty.

25A prosecution summary which outlined your offending, dated 16 February 2016, was tendered in evidence and marked as an exhibit on the plea.  The summary was read in open court by the prosecutor, Ms Piekusis, and it was accepted by your counsel on the plea, Mr Dunn QC, as being accurate and as forming a proper basis upon which I can proceed to sentence you for these matters.

26In these circumstances, it is not necessary that I here repeat in full that which is set out in the summary.

27This offending also involved business dealings and occurred in the context where two persons, Mackey and Ramsimi, were attempting to recover property from commercial premises which was being held as security for unpaid rent.  You and Saracevic went to the premises with them in order to intimidate David Fehily and Shaun Fehily, who are father and son, so that they would hand over the disputed property.  When they did not hand over the disputed property, you and Saracevic set upon David Fehily and his son came to his aid.  Both were injured by you and Saracevic.  Neither you nor Saracevic had any business even being present, other than to convey a threat to David Fehily and to act like thugs if necessary, which is what you  did. 

28Shaun Fehily received cuts to his eyebrow and head, and tenderness to his shoulder and ribs, and concussion.  David Fehily suffered tenderness to his left lower ribs and thoracic spine.

29On 9 December 2015, Mackey and Ramsimi each pleaded guilty to two charges of recklessly causing injury.  Judge Maidment dealt with them and fined each, without conviction, the sum of $8,000.  Mackey had no prior convictions.  Ramsimi had some prior convictions which His Honour described as being “of no consequence”.  I infer, they were not for acts of violence.  His Honour also said their actions were out of character. 

30The same cannot be said of you.  You have admitted a number of prior convictions for violence.

31On 15 February 2013, just over three months prior to the offending involving the Fehilys, you were sentenced in this court to three months' imprisonment on a charge of recklessly causing injury, and nine months' for possession of a firearm.  Judge Douglas, who sentenced you on that occasion, in her sentencing remarks, described your offending in the offence of recklessly causing injury as being “gratuitous”, a reference to the fact you had not been threatened or provoked in any way by your victim.

32On 6 July 2010, you were dealt with in the Moorabbin Magistrates’ Court for intentionally causing injury, for which you were imprisoned for two months.  You were also dealt with on that day for breach of a suspended sentence, where the primary offence was also intentionally causing injury.  That offence occurred on 17 August 2009. 

33I was provided with a copy of the summary of charges handed to the court at the time of your plea.  There is a degree of similarity in the offending.  There, the victim had worked for you in the past as a DJ, but had gone to work for a competitor, which caused you displeasure.  You arranged to meet him and you went to meet him with three other men, including Saracevic.  When the victim went to shake your hand, you responded by punching him in the face with your clenched fist, causing him to fall backwards to the ground.  This was thus an entirely unprovoked attack in company with others.

34On 28 April 2009, you were dealt with at the Dandenong Magistrates’ Court on a charge of intentionally causing injury, where the offence occurred on
25 January 2008.  A summary of that offending was also provided to me and shows that again you assaulted someone at a hotel who was unknown to you and who had not provoked you in any way. 

35All told, you have four prior convictions in the four years prior to these offences for acts of violence and you have also previously been dealt with by the courts for other matters, including criminal damage and driving offences.

36In regard to your offending against the Fehilys, you and Saracevic actually inflicted the acts of violence, and as I say, you have a number of prior convictions.  From the point of view of parity, you cannot expect to be dealt with as leniently as were Mackey and Ramsimi.  You can be distinguished from the role played by each of them.  You were present to inflict violence, which you did and, as I have noted, you have prior convictions for violence.  Mackey and Ramsimi did not.

37It is clear to me that in sentencing you for all of these charges for which you are now before the court, I must have proper regard to proper application of the principle of specific deterrence.  Something needs to be done to stop you behaving like a thug.  The sentence must also have regard to the need to protect the community from you.

38You indicated your intention to plead guilty to the charges of recklessly causing injury at an early time and I treat you as having done so at the earliest opportunity.  By your pleas of guilty to these charges, you have saved the time and costs of a trial and I accept your pleas of guilty as indicating remorse for your actions.  For your guilty pleas, you are entitled to a reduction in sentence on those charges and this will be reflected in the sentence I will shortly pass.

39I turn to matters related to your background.  You were born in Bosnia on
19 December 1985.  At the time of offending, you were aged 27 and you are now aged 30.  You have two younger sisters.  Your parents lived in a small village in Bosnia near the border with Croatia.  In 1993, after the commencement of the Bosnian war, your father fled Bosnia with your family to Germany, where you all lived in a refugee camp with 200 other Bosnian refugees.  Your father returned to Bosnia to fight in the Civil War.

40You and your family came to Australia as refugees in 1998 and settled in the Dandenong area.  At that time you spoke no English and you commenced schooling at Dandenong High School, studying English as a second language.  It was at this time that you met Saracevic, who was also a Bosnian refugee who did not speak English.  You have been close friends ever since.

41In 1999, your parents purchased a caravan from which takeaway food was sold at outdoor gatherings.  You left school in 2003 or 2004 whilst living at home with your family.  You began training as a boxer at the Dandenong Police Club whilst continuing to work in the family food caravan.

42In 2005 to 2006, you were a member of the Australian Commonwealth Games boxing squad, but prior to competing, a medical assessment showed that you were blind in the left eye as a result of a detached retina which had apparently not previously been observed and it could not be rectified by appropriate surgery.  This meant you were unable to compete and you suffered from some depression because of the loss of a promising boxing career.  You continued to live at home whilst working in the food caravan.

43Around this time, I was told and accept that you were introduced to a person named Michael Murray, who owned gymnasiums and tattoo parlours.  He had sponsored you as a boxer and you looked up to him. Unfortunately, Murray was the State commander of the Comancheros.

44In 2007, you were convicted of driving offences and gaoled for driving while suspended.  You appealed and were released on bail and you returned to your parents’ home, where you overdosed on drugs.

45You married in March 2008, having met your wife some years earlier.  She was pregnant with twins.  After your marriage, you continued to live with your parents and work at the takeaway food store and I am told and accept that you continue to be involved in activities in the Bosnian community.  In September 2008, your wife delivered of twins, a boy and a girl.

46In April 2009, you were dealt with in the Magistrates’ Court for criminal damage and intentionally causing injury.  I have referred to this offence above.  It was your first conviction for violence at age 23.

47In August 2009, your wife delivered of another child, a son, who is autistic with special needs.  You continued to live with your family at your parents’ house and you would drink regularly and work in the family business.

48In 2010, you and Saracevic commenced a painting business, doing residential and commercial painting.

49In July 2010, you were again before the Magistrates’ Court for possessing steroids, failure to answer bail, intentionally cause injury and breach of a suspended sentence.

50In January 2011, you entered a program known as “Refocus”, to deal with drug addiction.  When you completed this, you returned to the painting business and you continued living with your wife and family at your parents’ home.  During the course of the Refocus program, you were introduced to one, Joe Lamberti, a well-known drug counsellor and you continue to see him on a number of occasions.  You were doing weekly urine testing and working as a painter.

51In 2012, you were drug-free and you had recommenced training as a boxer at a gymnasium in Hallam, known as "Nitro Gym".  You were training young boxers as a volunteer.  The gym was owned by Michael Murray and it was at this time that you were identified as a likely prospect to join the Comancheros.

52In October 2012, you joined the Comancheros.

53In 2013, you and your family moved to live in Mount Martha.  You continued working in the painting business and you joined with Saracevic in acquiring a car wash business in St Kilda.  Between July and August 2013, you committed the offences that bring you before the court.

54You were arrested for the blackmail offences and you remained in custody without bail for a period of ten weeks.  You were eventually bailed with conditions that you not associate with Saracevic, which created problems because you were in businesses together.  You obtained employment and by this time you commenced living with your wife and children back in Dandenong.

55During 2014, you sold the Mount Martha property and you were unemployed, being unable to work with Saracevic in the painting and car wash businesses.  I was told and accept that you began drinking heavily and returned to drug use.

56In December 2015, you were charged with firearms offences and your bail was revoked.  You have been in custody in relation to the other matters ever sense.  At the time I heard your plea, you had served 115 days pre-sentence detention.  You have now served 178 days pre-sentence detention for these matters.

57I admitted into evidence a psychological report from Mr Tim Watson-Munro, dated 17 February 2016.  He saw you for assessment on that date. It was his opinion that you suffer from major depression with features of post-traumatic stress disorder and an anxiety disorder.  It is his opinion that this can be traced back to your childhood in Bosnia, where you were exposed to acts of war.  
Mr Watson-Munro is also of the opinion that you suffer from substance misuse disorder, which is in partial remission.  You expressed to Mr Watson-Munro that you were concerned for your family and the effects upon them caused by your criminal conduct.  His report says, inter alia, “This, in conjunction with his concerns regarding his family, has galvanised his resolve to do something about his problems.”

58I accept that you may suffer from some depression caused by your current predicament and you may suffer from some post-traumatic stress disorder. It was not put that either of these factors affect your moral culpability for your offending and it has not been suggested that either of these factors should influence the kind of sentence imposed.  

59I accept that in the past, you have yourself identified a drug problem and taken steps to do something about it by seeking counselling.  You will be able to continue to do something about it yourself, by seeking further counselling when released from prison and on the evidence before me, your incarceration has assisted with your withdrawal from drugs.  

60Whilst I accept that you are remorseful, that is because of the situation in which you now find yourself.  I do not accept your remorse extends any further than that.  You have not expressed any remorse because of the effects of your offending upon the victims.  In my opinion, your prospects for rehabilitation are only fair.

61I accept that you are blind in the left eye and you require treatment to cataracts in your right eye.  It was not suggested that either of these medical issues would make your time in prison more burdensome than for other prisoners.

62I received into evidence the report of a paediatrician concerning your autistic son and a further report from the same paediatrician concerning your other son, who suffers ADHD.  These are unfortunate circumstances facing you and your family, but I am satisfied that they are not extraordinary circumstances which would affect any sentence.  Your family was in court to support you and I am satisfied that your wife and children will have adequate family support whilst you are in prison.

63Mr Dunn submitted that I should impose a term of imprisonment, together with a community corrections order.  I have considered this submission, but I do not accept it, because the level of your offending is so serious and having regard to your prior convictions for acts of violence and the fact that you have now, on two occasions, re-offended whilst serving a suspended sentence, I am of the strong opinion that a community corrections order, even with imprisonment, is not an appropriate sentence in all the circumstances.

64In sentencing you for these offences, I must have proper regard to proper application of the principle of general deterrence, so that others who may seek to offend as you have, might be deterred by the sentence imposed by the court.  I must also have proper regard to the application of specific deterrence, as
I said earlier, because of your prior convictions for violence and because you have failed to take advantage of the opportunities given to you in the past by way of suspended sentences.  The sentence I impose must appropriately denounce your conduct and above all, it must be just and punish you appropriately.  Having regard to all of these matters, you must serve a term of imprisonment.

65Please stand Mr Jaha.

66On the charge of blackmail on Indictment C1309287A.1, you are convicted and sentenced to a term of imprisonment of 18 months.

67On the Charge 1 on Indictment D12953322 of recklessly causing injury to David Fehily, you are convicted and sentenced to a term of imprisonment of six months.

68On the Charge 2 on Indictment D12953322 of recklessly causing injury to Shaun Fehily, you are convicted and sentenced to a term of imprisonment of six months.

69I direct that four months of the sentence imposed on Charge 2 on Indictment D12953322, cumulate upon the sentence imposed by me on the charge in Indictment C1309287A.1, making a total term of imprisonment of 22 months.

70I direct that you serve a minimum term of 16 months' imprisonment before being eligible for release on parole.

71I declare there has been 178 days pre-sentence detention, not including this day, and that 178 days be reckoned as having been already served under the sentences past this day and be deducted administratively.

72For the purposes of s.6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges on Indictment D12953322, I would have imposed a total effective sentence of 18 months' imprisonment on those charges and I would have fixed a non-parole period of 12 months.

73Any questions arising out of that? 

74COUNSEL:  No, Your Honour. 

75HIS HONOUR:  Would you remove Mr Jaha please.  I will just leave the Bench. 

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