Director of Public Prosecutions v Kaddour

[2018] VCC 377

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01015

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMED KADDOUR

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 March 2018
CASE MAY BE CITED AS:	DPP v Kaddour
MEDIUM NEUTRAL CITATION:	[2018] VCC 377

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Stefanovic
For the Accused	Mr A. Lewin

HER HONOUR:

1Mohamed Kaddour, you have pleaded guilty to three charges of being a prohibited person in possession of a firearm. 

2Charges 1 and 2 are alleged to have occurred on 11th and 12 September 2016 and Charge 3 on 27 September that year.

3The circumstances of your offending are set out in the prosecution opening which I direct be annexed to this sentence as the agreed factual basis upon which you have pleaded.

4In essence, you are a prohibited person, due to being a person who within the previous five years has served a term of imprisonment for an indictable offence.

5You, at the relevant time, resided in Camp Road, Broadmeadows, with your wife, children and step-daughter.

6On 11 September 2016 at about 10.30 pm you were taken to hospital by ambulance after being shot while in your front yard by unknown persons from a vehicle which was driving past your premises.

7It is common ground that you fired back towards the vehicle but no charges were laid as a result of your discharge of that firearm, it being accepted by the prosecution that you were acting in self-defence in circumstances where some 16 rounds had been fired into your house. 

8The following day at 5.45 am your wife called police and asked them to attend at your home as she had located a firearm.  The police attended and a firearm in the kitchen was pointed out to them.  The house was secured and police re-attended later that afternoon and executed a search warrant.

9During the course of the search police located a .22-250 Remington calibre Ruger M77 Mark II rifle on top of the kitchen cabinets.  The gun was loaded with three rounds of ammunition.  The barrel had been shortened and the buttstock modified.  The overall length of the rifle met the definition of a hand gun.  Your possession of this firearm founds Charge 1.

10Police further located a .177 calibre Gamo Cadet Delta air rifle in the laundry.  Ballistics experts determined it was operable, albeit, not loaded.  Your possession of this gun founds Charge 2.

11Subsequent testing revealed your DNA on both firearms. 

12Some 15 days later, on 27 September 2016, police attended premises in Southbank where a further search warrant was executed.  You were the only person present at the apartment and you informed police, upon their arrival, that there was a revolver under your bed.  Police located a Webley and Son .44 revolver which was loaded with six rounds of ammunition.  I was informed upon your plea that the ammunition was damaged and would not have discharged.  It was your conduct regarding this firearm which founds Charge 3, prohibited person in possession of a firearm.  Your DNA was also located on this revolver.

13You were interviewed in relation to these matters on 27 September and your exercised your rights. 

14Any charge of illegal possession of a firearm is a matter of concern in our community and general deterrence is properly given significant weight in offending of this type.  It is not, however, asserted in your case that your possession of the firearms was associated with any ongoing criminal activity.  Your possession was not related to protection of an illegal enterprise or to any other kind of ongoing criminal activity which might be facilitated by the possession or production of a firearm.

15I accept, for the purposes of sentencing you, that you were in genuine fear for your life in circumstances where you had been the subject of a prior shooting in October 2015, which is of course relevant to the offending on the 11th and 12 September and those events were to be combined with the shooting on that date as regards the later offending.

16I wish to make clear that there are no circumstances in which such possession can be tolerated especially in circumstances where firearms are possessed by persons who are prohibited.  The message must be clear and consistent that in the usual course condign punishment will flow, balanced of course, with other relevant sentencing considerations. 

17In your case, the context of your possession is unusual and conceded by the prosecution to be unusual.  It is not, of course, justified.  Whatever your fears may have been, possession of a firearm was an inappropriate and an illegal means of seeking to facilitate the safety of yourself and your family. 

18The community, rightly, demands to be free of the scourge of firearms.  There is simply never justification for possession in the circumstances of this matter. 

19You have admitted the contents of a criminal record that commences in 1984 when you appeared before the Magistrates' Court in relation to charges of dishonesty and possessing an explosive substance without excuse.  You were placed on probation for 52 weeks.

20On 13 May 1987 you were convicted of unlawful assault and discharging a missile and you were placed on a bond to be of good behaviour. 

21On 15 December 2005 at this court you were convicted of trafficking a drug of dependence.  You were sentenced to be imprisoned for 12 months.  That sentence was wholly suspended for 24 months.  In addition, you were fined.

22On 27 August 2007 at this court you were convicted of handling stolen goods.  You were sentenced to be imprisoned for two years and nine months.  Twelve months of that sentence was suspended for three years.

23Relevantly, for my purposes in sentencing today, on 19 June 2008 you were convicted of being a non-prohibited person in possession of a general category handgun together with driving and drug charges.  In relation to the firearms charges, you were convicted and fined. 

24On 27 September 2013 you were convicted of intentionally causing injury and sentenced to be imprisoned for four months.  That sentence was wholly suspended.  You contravened that suspension order and it was wholly restored in August 2014. 

25On 7 August 2014, that same date, you were further convicted of other offending: reckless conduct endangering serious injury, being a prohibited person in possession of a firearm, possessing ammunition, possessing a prohibited weapon and driving charges.

26You were convicted and sentenced to be in prison for an aggregate of 14 months.  That sentence was partially suspended with seven months to be served and an operational period of 18 months in relation to the suspended portion.  You were fined in relation to the driving matters.

27I turn to your personal circumstances.  You were born on 7 July 1969 and grew up in Melbourne completing Year 9 at Glenroy North High School.

28After leaving school you worked in a variety of industries; initially in hospitality at a family-owned restaurant.  You then opened your own restaurant at age 21 followed by a Tattslotto agency in Richmond.  After selling that business you commenced a café in South Melbourne, which you sold after two years, before you bought into another in Pascoe Vale.

29By 1996 or 97 you were having problems with gambling and illicit substances.  This was, in turn, causing problems with the businesses.  You starting importing cars from Japan; doing this for a few years in the late 1990s.  In addition, you worked on cars from home, fixing and selling them.

30In 2009 you obtained a heavy rigger's licence and for the past two years you have been in business with a friend doing bi-fold window manufacturing and installation. 

31I was told, upon your plea, that your relationship with your wife has now improved and that you would both like to remove yourselves from your current circumstances and start a new life somewhere else. 

32You have been on remand in relation to this matter for 436 days.  Your circumstances in custody have been onerous as is evidenced by the contents of the affidavit of Jennifer Hosking sworn on 19 March 2018 and exhibited upon your plea. 

33You were placed in Charlotte Unit, which is a management regime, because of the nature of the charges, media attention around your arrest and concerns authorities had in relation to both your personal safety, security risk and association with other prisoners, which they wished time to more fully assess.

34While you were in the Charlotte Management Unit you received one hour out of cell per day.  You had limited library, no access to prison work and no access to programs.  Prisoners in this unit are limited to non-contact visits.

35As is evidenced by the affidavit, there were numerous reviews of your placement.  On 3 November 2016 you were told you had been classified as a ‘long-term management prisoner’.  Your placement was not due to any poor conduct by you whilst in a custodial setting.  Indeed, it seems that you had been, in many respects, a model prisoner.

36You were ultimately bailed on 9 November 2016 and returned to custody on 19 January 2017.  You were again assessed and transferred back to Charlotte Management Unit.  It was not until February 2017 that you were transferred to a mainstream unit on an intermediate regime of two hours out of cell per day.  You still had limited associations, and limited access to amenities, including library.

37On 6 April 2017 you were transferred to the Matilda East mainstream unit and you have resided there since that time.  In that unit you received standard Port Phillip out-of-cell time for mainstream prisoners of 11.5 hours out of cell each day. 

38On  28 January 2018 it was noted that your behaviour had been good.  You were working well as a billet and receiving good work reports. 

39There was a further incident which was subsequently investigated and your placement was maintained.

40Until the electrical fire on 29 November 2017 you continued on 11.5 hours out-of-cell per day.  After the fire and until 20 December 2017 those hours were significantly reduced and as a result you have notionally been granted 38 days which will be applied in relation to any sentence. 

41I have said, for the purposes of sentencing you, I accept that you have experienced prison more harshly than a person who was not placed on the restricted regimes to which you were subject.  There is certainly no criticism of Corrections in this regard.  They discharged their obligations as they must do, but the reality for you was that you were on a regime which is generally applied to those with significant behavioural issues in a custodial setting, in circumstances where that was not the case. 

42A number of references and testimonials were tendered upon your plea.  The weight properly afforded to a number of those testimonials is reduced as a result of there being no indication that the authors were aware of your prior criminal history.  Nevertheless, the authors expressed the view that you are a leader within your community, a family man and someone who strives for success. 

43Correspondence from your wife confirms the anxiety and fear that the family have lived with and the stress that it placed upon you as a result of the various shooting incidents.  Your wife says that when you return home the two of you have plans to start your lives again, away from the area, in circumstances where you can all be safe.  She expresses her ongoing affection and support of you.

44In correspondence from A and K Steel, Automotive Recyclers, this court is informed that you have an existing part-time position which will always be available to you. 

45I note that you have contributed to your community continuing to volunteer at Living Legends, an international home for the rest of horses after the expiration of the community service hours. 

46Your counsel's submission upon this plea is that 436 days served is an appropriate disposition in relation to the matter.  The prosecution did not directly address that submission. 

47Your counsel pointed to a number of matters you are entitled to have taken into account in mitigation. 

48Your plea of guilty.  I accept that you entered your plea of guilty at an early stage.  You have saved the community the time and expense of a trial.  You are entitled to the full benefit of that plea. 

49I accept for the purposes of sentencing you that you were a person who had a genuine belief that you needed to defend yourself and that you had reported the shootings to police seeking to protect yourself and your family.  I accept that your belief as regard for the need to defend yourself was heightened as a result of the assailants remaining at large and police being unable to identify those responsible. 

50It appears that your offending was situationally motivated and that threat has now subsided, meaning, that that increases your prospects of rehabilitation. 

51As I have already noted, the circumstances in which you have served your time in remand is also relevant.  As the severe custodial regime was necessarily and properly imposed by Corrections as a result of concerns as to the totality of circumstances but none of those matters included your misbehaviour in a custodial setting. 

52The prosecution remind this court that the maximum penalty for each offence is ten years' imprisonment and reiterating the concession that the Crown do not assert that the guns were possessed for any ancillary criminal purpose.  The Crown note that, while it is not asserted that your possession was associated with any ongoing criminal activity, you are a person who has prior convictions, including a prior conviction for being a prohibited person in possession of a firearm, possessing cartridge ammunition, possessing a weapon without approval and being a non-prohibited person possessing a general category handgun.

53As well as matters personal to you, I must have regard to other relevant sentencing considerations.  General deterrence must be given significant weight in matters of this type as this sort of offending has real implications for the protection and safety of our community.  In your case, specific deterrence must also be given weight in light of your history.

54Your sentence must manifest the community's denunciation of your conduct and impose just punishment.

55I have had regard to the principles of totality in coming to a view as to the appropriate orders in relation to concurrency and cumulation and have determined that there should be some moderation and some cumulation so the total effective sentence reflects the totality of your criminality. 

56You are convicted and sentenced as follows.  On Charge 1, you are convicted and sentenced to be imprisoned for eight months.

57On Charge 2, you are convicted and sentenced to be imprisoned for six months.

58On Charge 3, you are convicted and sentenced to be imprisoned for ten months.

59I direct that three months of the sentence upon Charge 1 and two months of the sentence upon Charge 2 be served cumulatively with the sentence upon Charge 3, making a total sentence of 15 months. 

60I direct that 436 days be reckoned as served. 

61I direct to be noted in the records of the court that, were it not for your plea of guilty, I would have sentenced you to be imprisoned for 22 months.

62Finally, I make the forfeiture order in the terms of the draft to which you have consented.  Thank you.

63Counsel, is there anything further?

64COUNSEL:  No, Your Honour, if Your Honour pleases.

65HER HONOUR:  Thank you, remove the prisoner please.  Thank you, counsel, you are excused.

66COUNSEL:  Thank you.

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