Director of Public Prosecutions v Karam

[2024] VCC 127

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-01562

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOE KARAM

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2024
DATE OF SENTENCE:	19 February 2024
CASE MAY BE CITED AS:	DPP v Karam
MEDIUM NEUTRAL CITATION:	[2024] VCC 127

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentence

Catchwords:  Theft – Conduct Endangering Persons – Causing Injury Intentionally - Possession of a Drug of Dependence

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175; R v Martin (2007) VSCA 291.

Sentence:Total Effective Sentence of 6 years and 3 months imprisonment (Non -Parole Period 4 years and 9 months); Licence Cancelled and Disqualified for 6 years.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Oswald	Office of Public Prosecutions
For the Offender	Ms H. Anderson	Valos Black & Associates

HIS HONOUR:  

1Joe Karam, on 5 October 2023, you pleaded guilty on indictment M12470833A to the following charges: one charge of theft of motor vehicle, two charges of conduct endangering persons and one charge of intentionally causing injury.

2You have today pleaded guilty to a related summary offence of failing to render assistance after a motor vehicle accident. 

3You also pleaded guilty on indictment M12470833B to a single charge of possession of a drug of dependence.

4Your plea of guilty came after a sentence indication hearing, at which I indicated a total effective sentence of six years and eight months, with a new non-parole period fixed at five years. The total effective sentence would run concurrently with the sentence that you are currently undergoing.

5I gave detailed reasons for the sentence that I indicated.  I will refer to, and repeat, much of what I said.

6I will necessarily make adjustments upon the receipt of the helpful psychiatric report authored by Dr Clare McInerney, dated 12 December 2023.

7As to what you did on 29 November 2021, you stole a car after falsely engaging with the owner as if you were a legitimate purchaser of her car which she advertised for sale.  Your promises to make payments and your indications that you had transferred money from your bank account to the victim's were a rouse from the start.

8That offence is serious, but it is what you did with the car that are the most grave and outrageous crimes.

9On 30 November 2021, you were staying in a hotel in the central business district.  You were using drugs.  You sought out your usual drugs but they were not available, and for the first time you used GHB.

10For reasons best known to you, at around 8.30 you called Triple 0 falsely claiming that you had been accosted by a man of colour who pointed a gun at you.  You claimed falsely that, to use your words to Triple 0, 'Black cunts with guns threatening people.'

11When police arrived, you falsely denied making the Triple 0 call.  This will become clearer.  You were, at that time, in the throes of a drug-induced psychosis.

12Following your interaction with the police, you then got into the stolen car and were driving east on Lonsdale Street in the central business district.  It was busy with cars and pedestrian traffic, many on their way to commence their day at work.

13When you saw the first victim walking with a work colleague, who became the second victim, they were walking along to get a coffee before commencing a conference organised by their employer.  You saw the victim, and you saw that he was a man of colour.  You then screamed vile racist abuse to this first victim, before turning your car towards the two victims, mounting the kerb and driving at them.  Fortunately, the victims were able to get out of the way and take refuge behind a pillar.  Other members of the community on the footpath, and in cars in traffic, were in shock, using horns to alert others of your erratic and dangerous behaviour.

14This was an extraordinarily dangerous manoeuvre, but it did not end there. 

15You then drove east along Lonsdale Street and Albert Street to Hoddle Street.  There you drove north, ultimately coming to a stop in the Hoddle Street service lane at the intersection with Easey Street in Collingwood.

16At that time, a COVID-19 testing station or facility had been set up at that location.  There were up to 30 people waiting in line for the COVID tests.  The third victim was working as a security guard, assisting and monitoring members of the public.  The victim is of Indian appearance.  That was plain to see.

17You then, likely in your drug-induced psychosis, seemed motivated by racism or hatred of dark-skinned people, and upon seeing the victim, you stopped your car, reversed so you could get a clear run at the victim, and in that sense, you lined him up.  You then accelerated with your car, revving loudly, and you drove straight at the victim. 

18The victim was carried on the bonnet of your car for about ten metres before falling onto the road.  You then drove off in a chaotic and dangerous manner through the inner-city suburbs.  You were ultimately found and arrested in Carlton.

19The police that engaged with you found you were acting consistent with this drug-induced psychosis.

20The victim at the COVID testing station sustained significant injuries, including a spinal fracture, ligament damage, and multiple cuts and bruises to his leg, face and head.  He was concussed and has ongoing difficulty with dizziness, blackouts and trouble concentrating.  It is very fortunate for the victim, and indeed for you as well, that the injuries that he sustained were not more severe or permanent or fatal, as might be expected when a car is used as a weapon to drive at a pedestrian.

21On any analysis this offending was simply appalling.  To use a car as a weapon on public streets, to target members of our community who were dark-skinned, is grave offending.  Our community would be simply bewildered at your racism and hatred that came through or would reach this level and be expressed in such a dreadful and dangerous way.

22In recent times in custody, once you have been medicated, you have been shocked at your racist motivations, which are made clear in the prosecution documents.  You say it is not your normal way and only a product of your drug-induced psychosis.

23Dr McInerney, in her considered report, gives support to that, as do others who know you well from the letters that they wrote to the court.

24I point out, as I said in the sentence indication hearing, our parliament has included in the Sentencing Act 1991 (Vic), section 5(2)daaa, which compels the sentencing judge to have regard to 'whether the offence was motivated (wholly or in part) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated...'

25As an aggregating feature, the prosecution must establish this fact to a criminal standard.

26Initially, your counsel conceded your racist motivation to be an aggravating factor, and I had no doubt whatsoever that your offending with respect to Victim 1, and Victim 3, if I can call them that, was motivated wholly by your hatred for, or prejudice against, people with dark skin.

27I said that this matter considerably elevated your moral culpability and it diminished any basis for mercy or compassion to you.  However, the report of Dr McInerney alters matters.

28Your counsel puts forward that you were in a drug-induced psychosis at the time.

29As the Court of Appeal in the matter of Martin[1] makes clear, this is no excuse and does not reduce your moral culpability generally. However, it gives important context to your racist motivations. I consider there is a basis to moderate the findings with respect to s5(2)daaa to a considerable extent.

[1]R v Martin (2007) VSCA 291.

30Apart from this aspect, your offending was a brazen attack on pedestrians simply going about their working day in a busy street in the central business district, and separately, a worker assisting ordinary citizens dealing with the many difficulties of the COVID pandemic. 

31Thus, your conduct requires significant weight to be given to denunciation, protection of the community and deterrence to others, and in particular, deterrence to you.  Such sentencing purposes can only be properly satisfied by a sentence of imprisonment.  Your counsel conceded as much.

32As to your personal circumstances, more is known now than at the sentence indication hearing due to the receipt of the report from Dr McInerney. 

33You are 34 years of age.  Born in Lebanon, you migranted to Australia in or around 2000.  Your early childhood was surrounded by difficult circumstances in your country of birth.

34Your father died from suicide when you were young, as he himself was suffered from addiction and was severely depressed.

35Schooling was difficult, in particular when you came to Australia, due to language problems.  After school, your work has been in the painting and logistics area, including being self-employed.

36You were married in 2010 and moved to Victoria in 2012.  Your marriage ended in 2015, and you took to drugs, resulting in homelessness, addiction and crime.

37I have read the report of Ms Cidoni, as well as that of Dr McInerney.  You have an adjustment disorder, so she said, with depression and anxiety, making gaol harder. 

38It seems you stopped working around 2016 due to your drug use and relied on Centrelink. 

39You relocated temporarily to Lebanon in 2017 to try and manage your addiction and mental health issues, but ultimately you moved back to Australia and there were still significant problems.

40With respect to your drug problems, you attended Odyssey House residential rehabilitation in 2020.  You stayed for three months.  This was terminated after a relationship was commenced with a fellow resident.  You resumed substance abuse shortly after you were discharged.

41You have had seven psychiatric admissions from 2015 to 2019, some with involuntary treatment.  You had previously a diagnosis of psychosis and schizophrenia, as well as antisocial personality disorder, and you have suffered from mental health problems, as well as the effects of your substance abuse.

42Your first experience of the symptoms of severe mental health issues was in 2015.  This is at the time that your first marriage ended and when you took to drugs.  You were admitted to hospital and diagnosed with drug-induced psychosis.  You were prescribed Olanzapine, but ceased that as you thought it over sedated you.

43Following that, you had a three-month admission to the Sunshine Hospital after a suicide attempt in 2016.  At that point, you were diagnosed with depression and antisocial personality disorder.

44You had a trip to Lebanon, as I said, and you had a three-month psychiatric admission there where you were diagnosed with schizophrenia and depression in the context of trauma.

45Upon your return, you had a three week stint in the Epping Hospital due to depression and drug-induced psychosis.  You were referred for a mental health assessment in 2019 after you expressed paranoid beliefs about your sister and alluded to possible terrorist activities.  Mental health staff tried to make contact with you at that time but were unsuccessful.  You were then brought by the police in April 2019 to the hospital due to psychiatric symptoms but absconded after eight days.

46It seems you have had no or limited contact with community mental health since 2021.

47Dr McInerney said there was a nexus between your intoxication with certain substances and your offending, and there is a sense that the GHB that you took for the first time had a significant effect.  You presented with, and reported, very limited memory of this offending culmination.  What this indicated was there was a combination of intoxication and drug-induced psychosis. 

48Dr McInerney notes that while it was difficult to determine, or not possible to precisely determine, the relative contributions of your psychosis, there was a failure for you to be able to consider the consequences of your actions.

49Dr McInerney opined that you do not have schizophrenia.  The finding was made on the basis that your symptoms tend to emerge rapidly and similarly abate rapidly during periods of abstinence from drug use.  It was not thought by Dr McInerney that you found incarceration more burdensome than someone without mental health issues.

50It followed therefore that by operation of the principles set out in Martin, your behaviour while in a drug-induced psychosis does not lower your moral culpability, and there is a sense that it might increase it by reason of you knowing the consequences of taking drugs and becoming psychotic.  However, as your counsel pointed out, this was the first time that you had taken the drug GHB, so I do not elevate your moral culpability as a consequence.

51You have been in custody since 30 November 2019.  There is no pre-sentence detention because you have been sentenced twice by judges in these courts for serious crimes of armed robbery.  On 30 July 2022, the sentence imposed was of two years with a non-parole period of one year, and then a further sentence of 22 months with a non-parole period of 12 months, was imposed on 27 February 2023 for offences that occurred just before these crimes were committed.  You have not been able to be considered for parole.

52Thus, in accordance with the principles of totality, I will take into account the whole time you have been in custody since 30 November 2019.  The other sentences are circumstances that I cannot ignore, but I will consider the principles, and have considered the principles, of totality.

53You have many prior offences from 2015 to 2020. Many towards the end of that period resulted in gaol terms.

54While in custody, you have completed a range of programs to assist yourself both vocationally and with your addictions.  That also emphasises that once you are medicated and clear-headed and not suffering from a drug-induced psychosis, you can think as to what is best for you, and you made efforts to do all the courses.  There have been many courses. I cannot recall when I have seen so many certificates from an accused in custody.  So it is clear that you can apply yourself and all that is to your credit.  You have, as I said, done inpatient drug treatment, but you did fall back into drug use and criminality shortly thereafter.

55In the end, your rehabilitation is dependent on your commitment to rid yourself of drugs.  If that is the case, you might be able to resume the life that you had as a working man, and not be someone who has such significant difficulties with their mental health, and thus becomes a danger to the community when affected by drugs.

56Your plea of guilty after the sentence indication was a valuable plea and you are entitled to an augmented benefit, which is authorised by the Court of Appeal decisions by Worboyes[2] and Chenhall[3].  Although we are coming through the difficulties of the COVID pandemic, your plea was entered late last year and in a setting when it was thought Worboyes and Chenhall played some role.

[2]Worboyes v The Queen [2021] VSCA 169.

[3]Chenhall v The Queen [2021] VSCA 175.

57So, turning to the sentence that I impose.

58Given that I have adjusted the findings I made with respect to the motivation, I impose the following adjusted sentence:

59For Charge 1, the theft of the car, you are sentenced to 12 months.

60Charge 2, the conduct endangering person, 20 months.

61Charge 3, conduct endangering persons, 20 months.

62And Charge 4, intentionally cause injury, four years and eight months.

63For the summary offence that attaches to this, you are sentenced to four months.

64The orders for cumulation are as follows:

65One month of Charge 1; eight months of Charge 2; eight months of Charge 3 and two months of the summary offence are cumulative upon Charge 4, being four years and eight months.

66On indictment M12470833A, the adjusted total effective sentence is six years and three months, with a new non-parole period fixed at four years and nine months.

67With respect to the separate indictment (M12470833B), that is the possession of drugs of dependence, I impose a sentence of two months, and it will run concurrently with the sentence I have just imposed.

68As I explained, for reasons that relate to your sentences imposed by other judges of this court in recent times, there is no pre-sentence detention.

69With respect to the main indictment, M12470833A, had you pleaded not guilty, the total effective sentence would have been eight years and nine months with a non-parole period of six years and six months.

70Are there any other orders required?

71MR OSWALD:  Your Honour, there may be a driver's licence order required.

72HIS HONOUR:  As a consequence of this conduct involving a car in the dangerous way it was, I think that this is serious and I effect your licence such that you are disqualified from driving for a period of six years.  Is there any further order to be made?

73MR OSWALD:  Your Honour, just perhaps forfeiture of the drugs.

74HIS HONOUR:  Yes, that will be signed off, thank you.  Anything further?

75MS ANDERSON:  No, nothing further, Your Honour.

76HIS HONOUR:  You might be able to have some time quickly now – it will be quick, I'm afraid, I've got another case to do, to explain to Mr Karam the adjusted sentence and so on.  What comes back from sentence management, we'll see, but I've done my best to ensure that there is a new non-parole period fixed.

77MS ANDERSON:  Thank you, Your Honour. 

78MR OSWALD:  As Your Honour pleases.

79HIS HONOUR:  I will leave you to talk to your client, if need be.  Thank you.

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