Director of Public Prosecutions v Khalil

[2022] VCC 203

IN THE COUNTY COURT OF VICTORIA

  Revised

  (Not) Restricted

          Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-02168

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZENON KHALIL

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2022
DATE OF SENTENCE:	24 February 2022
CASE MAY BE CITED AS:	DPP v Khalil
MEDIUM NEUTRAL CITATION:	[2022] VCC 203

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten	Office of Public Prosecutions
For the Accused	Mr R. Backwell	SLKQ Lawyers

HER HONOUR:

1Almost three years ago, on 25 March 2019, Ajith Gomes was at home, the home that he lived in and shared with his elderly parents.

2A number of phone calls were exchanged between him and telephones used by you, Zenon Khalil, and a woman called Kerry-Anne Stapley. You and
Ms Stapley had, a few weeks before that, met and embarked upon what appears to be an intense relationship. Mr Gomes was Ms Stapley's former partner. On the material before me, they had been in a relationship for some years, which had come to an end about two years earlier. As of March 2019 there was an active intervention order in favour of Mr Gomes against her.

3Shortly after 2 pm that day Mr Gomes was at home alone, his parents having left for a medical appointment.  According to Mr Gomes the glass panel in the front door was kicked in, the door forcibly opened and two men burst into the house.  One of them produced a hammer and, as Mr Gomes retreated, swung it at him.  He missed, hitting his co-offender in the head, which caused the
co-offender to start bleeding profusely from the head.  The man armed with the hammer then struck Mr Gomes repeatedly to the head and shoulders, punched him to the head and face, looped a length of cable around his neck a number of times and pulled it tight, choking Mr Gomes.  Mr Gomes also said that a knife was produced and he was cut on the side of his head.

4The main assailant, having wrapped the cable a number of times around
Mr Gomes' neck and pulled it tight, then dragged him through the house; continuing, at times, to pull tight on the cable and further choking Mr Gomes.  During that time he was demanding money and valuables.  At one stage the other man punched Mr Gomes a few times to the face and brought an item apparently taken from one of the bedrooms into another bedroom, where, by then, the main assailant had taken and was still choking Mr Gomes.

5Although terrifying it was a relatively short-lived incident. According to
Mr Gomes a phone was  heard ringing in the house and the men left. The main assailant taking Mr Gomes' phone, wallet and some prescription drugs as he left.

6Mr Gomes was badly injured as a result.  He was bleeding profusely from wounds to his head and face.  He called 000 and the terror was apparent in his voice as he called for help.  Police and emergency services arrived very quickly and he was taken to hospital with a badly lacerated scalp, a fractured nose and multiple bruises to his face, head, torso and neck.  Fortunately it would appear there was no significant head injury and scans ruled out any permanent brain injury. Mr Gomes was treated for lacerations and fractures and was ultimately released from hospital.

7His physical wounds have since healed but the physical and emotional scars remain, as was evident from his victim impact statement.

8The scene that met emergency services when they arrived was reflected in a vast number of photographs taken that showed shattered glass and blood spread throughout the house, including blood around the electricity cable that I have already referred to.

9It was some weeks later that you, Zenon Khalil,
Kerry-Anne Stapley and a third person; a man by the name of Salvatore Moreno, were arrested. Given the connection between Ms Stapley and
Mr Gomes and the phone calls that had passed between the two of them in the time leading up to the attack, and indeed in a phone call between Ms Stapley and Mr Gomes shortly after the attack, it was not surprising that police attention turned to Ms Stapley, and through her to you, and then through that to
Mr Moreno.

10When arrested and questioned you gave the police a version which was, in effect, that you had driven Ms Stapley, at her request, to the vicinity of
Mr Gomes' home but you had remained in the car while she had left briefly, then came back and the two of you had left.

11During the course of questioning you were placed in police cells and two men,  undercover officers, were placed in the cell with you.  You gave them a different version of events, acknowledging that you had gone into the house and that you had attacked the victim, Mr Gomes, with a hammer. You also expressed considerable ill-will towards Mr Gomes based on what your understanding was from Ms Stapley of the way Mr Gomes had treated her during their relationship.

12Although initially telling police that only you and Ms Stapley had driven towards Mr Gomes' home you later acknowledged that you had also called upon an acquaintance of yours, Salvatore Moreno,[1] and asked him to accompany you to the house, and he had indeed done that.

[1]Pseudonym used to protect the identity of the co-accused pursuant to a suppression order.

13Mr Moreno, when arrested, ultimately made full admissions to his role and what he said was your role and the involvement of Ms Stapley. He did not know
Mr Gomes at all.  He did not know Ms Stapley.  His involvement was completely, so he said, through you.  Ultimately Mr Moreno pleaded guilty to charges in respect of his role, and gave an undertaking to give evidence against you.  The account given by Mr Moreno by and large was consistent with the account given by Mr Gomes.

14Ms Stapley was also charged with some offences and ultimately pleaded guilty to very different offences; common assault by reason of her understanding of what she thought was going to happen in the house.

15You continued to deny involvement in the offending and faced trial.  At trial, the evidence of the prosecution witnesses was challenged and you gave evidence in your own defence.  The account put on your behalf to the witnesses and given by you was that you had driven both Ms Stapley and Mr Moreno to
Mr Gomes' house.  That you had done so because Mr Gomes owed Ms Stapley some money and you were going there to collect it and you had asked
Mr Moreno to accompany you simply to be a support.

16It was your account given to the jury that you left Ms Stapley in the car and you and Mr Moreno approached the house, but that you got a phone call just as you and Mr Moreno approached the door and you moved away to take that phone call, leaving Mr Moreno alone at the door.  You said by the time you finished your call you could hear noises coming from inside the house.  You ran in and saw Mr Moreno being threatened by Mr Gomes with a knife.  You went in to intervene, tried unsuccessfully to push Mr Gomes away and disarm him. You said you then used a power lead or cable to loop around him in order to pull him off Mr Moreno so as to protect him, then stopped Mr Moreno from further assaulting Mr Gomes before the two of you left.

17The jury found you guilty of home invasion, intentionally cause injury and theft.  It follows from the jury verdicts that they rejected your account.  They were not left with a reasonable doubt about the possibility of its truthfulness and they must have accepted, by and large, the account of Mr Gomes, as supported by that of Mr Moreno.  It was also supported, in part, by things that you had said to the undercover police officer, by CCTV footage which put you and Mr Moreno near the house, arriving and departing, and by the telephone call charge records which showed the calls passing between your phone,
Ms Stapley's phone and Mr Gomes' phone shortly before and shortly after the offending.

18So, I consider the account given by Mr Gomes, as I have recounted, to be the factual basis for sentencing you, save for this.  Mr Gomes did give evidence that he was at one stage threatened, attacked and indeed cut with a knife.  That was not supported by the evidence of Mr Moreno and I am not satisfied to the requisite standard that you produced a knife and used it to inflict any injury or, indeed, to make any threat to Mr Gomes. 

19So, in terms of the charge of intentionally cause injury, of which the jury has found you guilty, I proceed on the basis that you attacked him with the hammer and the electrical cable and punches, but not with a knife.

20The maximum penalty for home invasion is 25 years' imprisonment and it is a Schedule 2 offence, meaning a term of imprisonment must be imposed for that charge unless exceptional circumstances are established.  It has not been put that that is the case here.  Intentionally cause injury carries a maximum penalty of 10 years' imprisonment and theft also 10 years.  Those maximum penalties imposed by Parliament are one measure of the seriousness of such offending.

21More significantly for assessing the seriousness of the offending is what actually happened on that day.  The home invasion and the intentionally cause injury charges are, in my view, bad examples of their type.  This was a shocking attack.  The motive is unexplained.  You did not know Mr Gomes personally and whether your motivation for acting as you did was consistent with what you said in the cells - a belief that Mr Gomes had mistreated Ms Stapley; whether it was a drug deal gone wrong because Mr Gomes, having agreed to supply drugs, took the money and did not supply the drugs, as was put on your behalf to prosecution witnesses in the course of the trial and put in your final address, or something else unexplained, does not really matter because nothing in the materials before me, and upon which I can proceed for sentencing purposes, suggests there is anything mitigatory in the circumstances of the offending.

22This was an attack on a defenceless man in his own home. Its ferocity is shocking, it occurred in broad daylight and in a suburban home. There appears to be little planning apart from you asking Mr Moreno to accompany you as what I would call 'muscle', leaving Ms Stapley in the car, out of sight of the house, and waiting for her to pick you up, giving her the role of the getaway driver. Otherwise, there seems to be no real motive advanced and nothing to indicate any greater degree of planning than that. It is clear, based on this though, that for sentencing purposes, denunciation, general deterrence and just punishment are all significant factors and loom large in the sentencing mix.  Specific deterrence is also clearly, in these circumstances, of importance.

23You have a significant criminal history.  You first were before a court and served a term of imprisonment in 1999.  You have been sentenced to actual terms of imprisonment, according to your criminal history, on 17 occasions since then.  I have been told you were sentenced whilst on remand for these offences to a 28 day period of imprisonment, which you have since served.  That means you have been sentenced to actual imprisonment now on 18 occasions, 17 before the commission of this offending.

24There are, on my count, 20 separate appearances over the 17 years between 1999 and 2017.  There are three significant gaps in your criminal history. They are between 2002 and 2008, 2012 and 2015 and 2017 to 2019. Those three gaps are all explained by you being in custody on the first two occasions, charged or serving sentences. On the third, between 2017 and 2019, when you were remanded in custody in respect of these offences.  It would also appear from your criminal history that you had not been long released from your last term of imprisonment when you were charged and remanded on these offences.

25Most of the offences that you have been dealt with over that time are offences of burglary, theft and other dishonesty offences, drug possession (two of trafficking), property damage offences, driving offences, breaches of intervention orders and prison behaviour offences. The most serious and relevant to these charges are one conviction for armed robbery, another for aggravated burglary, one for being a prohibited person in possession of a firearm, others for possession of weapons, threat to inflict serious injury, recklessly causing injury (two charges), assault with a weapon (three charges), unlawful assault (three charges), and committing an indictable offence on bail.

26Your counsel, Mr Backwell, said that over the last 23 years, from the age of 23, when you were sentenced to your first term of imprisonment, and now you have spent approximately 20 years in prison. That is, in total, only three years out in the community. Some of your terms of imprisonment have been for considerable terms ranging from six years down to one and a half years .

27On the last occasion in 2017, you were sentenced to a term of imprisonment of 18 months with a non-parole period of nine months. The notation on the court record has this:

'Accused has a long history and returns to heroin scene if released without support and wishes to have parole support with obtaining accommodation and access to treatment and continued methadone program.  Recommend all reasonable assessment and supervision to ensure safe custody'.

28That sums up what was also put succinctly, eloquently and sadly by
Mr Backwell in the course of the plea. Your adult life has been blighted by substance abuse, and offending related to that, and as Mr Backwell said, unless and until you can address the substance use this looks to be the pattern of your life.

29The whole range of sentences has been imposed on you over the years; non-custodial, community correction orders, community correction orders in combination with a term of imprisonment, suspended sentences, straight sentences and sentences with parole periods attached to them. It would appear that on most occasions where parole was ordered you were granted parole.  Sadly, none of these dispositions to date has been of assistance in enabling you to remain free of substances and free of mingling with anyone other than the people you have really known in your adult life - other prisoners. So on release you return to drugs and offending and the cycle of then going back to gaol has continued, unremittingly, since you were 23.

30You are now aged 46. Poignantly, after verdict, when your particulars were taken you gave your occupation as 'prisoner' and your address as 'prison'.  I can only hope that the time that you have spent on remand since being charged with these offences, the increasing maturity that can come with age and the desire you continue to express to be able to build up the resources whilst in custody to enable you to better cope without returning to substance abuse, and associating with prison associates who are also substance abusers on your release, has a proper and better chance to crystallise on this occasion so as to give you better prospects of an offence free and substance abuse free life on release.

31The main thrust of the plea was to structure a sentence acknowledging there had to be a term of imprisonment so as to give you the opportunity, whilst continuing or completing that sentence, of availing yourself of what resources are available to you in prison to help you with that path upon your release and to give a significant possibility for supervised release on parole to assist you upon your release. I accept those submissions and structure the sentence accordingly.

32It has to be said that your prospects for rehabilitation are poor but, on the other hand, you are clearly an intelligent man.  That was apparent by the way you conducted yourself during the trial; the way you spoke, the way you expressed yourself, your extensive vocabulary, your clear command of very good spoken English and your capacity to follow and engage in what was happening in court.  I can only hope that intelligence will be marshalled by you to better resource you to deal with your substance abuse, to engage in programs before release and to remain connected with them after release. You have got a lot more that you could give yourself and your community if you are able to deal with that demon of substance abuse.

33Your last term of imprisonment should have been a consolidation of all outstanding matters but there was, it appears, one cluster of charges from 2015 which was not dealt with on the last occasion and which, for some reason, had not been found and brought to account by the time of the commission of these offences. So although you had been out in the community for some months before the commission of these offences, no one had caught up with you in relation to those outstanding 2015 charges, for which you were on bail. As a result you were also charged with one charge of commit an indictable offence on bail. You have now consented to having that matter dealt with by me and you have pleaded guilty to it.

34The real issue is your substance abuse. In 2002, when you were sentenced in this court by His Honour Judge Waldron, His Honour referred to, as supported a psychological report noting your intelligence.  A copy of that report has not been able to be located. I can only hope that with increasing maturity you are able to do something more with your time and yourself and have a better, mature adult life than your younger adult life has been.

35The other significant matter to take into account is the impact of COVID on imprisonment. For the whole of the pandemic you have been on remand and I accept and give full weight to the additional onerous circumstances of COVID imprisonment and COVID remand. For someone who has had as many terms of imprisonment as you the awareness of the difference and the greater restrictions would be acute, and I take that into account.It is clear that although at the moment there are promising signs of emergence from the worst of the pandemic that it is going to be with us for a long time, and therefore the impact on those in custody will continue to be significant.

36Prisoners are a vulnerable group and the efforts Corrections have gone to to try and keep that vulnerable cohort safe has meant a significant diminution in every aspect of life in custody. There are reduced opportunities for visits, and rehabilitation programs are significantly diminished. For someone with your history of substance abuse, and at a time when you have been substance free for the time you have whilst in custody, face to face programs would be of considerable benefit to you. You have not had them, and you are unlikely to have them for a while. The significant restrictions on movement, transfer between prisons, quarantine each time you are moved and extra time in cells; are added restrictions on the deprivation of liberty imprisonment imposes. They are not to be underestimated and I have significantly reduced the sentence that I would have thought otherwise appropriate, having regard to these post-verdict convictions because of the impact of COVID whilst on remand and the continuing impact of it for the balance of the sentence that you will have to serve.

37Those were the major matters that were relied upon by Mr Backwell. Sadly because 20 of your last 23 years have been in custody apart from saying when you get out you have the will to do better, you have not had ample opportunity to do so.  You have shown yourself capable of getting jobs on release, but not of being capable of sustain a drug-free life. Therefore unemployment and unstable housing have perpetuated the cycle. There is not much else that could reasonably or sensibly have been said, but I have taken into account those matters I think are of significance.

38I have left a significant gap between the head sentence and the non-parole period despite this history because in my mind the importance of giving you not only the incentive to work for parole whilst you are in custody, but also the longest period possible of support and supervision upon release into the community is the best way not only of encouraging your rehabilitation, but of protecting the community.  However, those factors of denunciation, general deterrence and just punishment clearly also must loom large.

39It did not really need a victim impact statement from Mr Gomes to identify what must have been the suffering for him but his victim impact statement was a powerful and not surprising statement of the lasting impact of the offending on him. That clearly must be taken into account in giving proper weight to deterrence, denunciation and just punishment.

40Balancing those matters as best I can I have fixed upon the following sentences:

41On the charge of home invasion you are sentenced to be imprisoned for a period of five years.

42On the charge of intentionally cause injury you are sentenced to be imprisoned  for a period of five years and two years of that is to be served cumulatively upon the sentence on Charge 1, which is the base sentence.

43On the charge of theft you are sentenced to be imprisoned for a period of three months.

44On the charge of commit an indictable offence on bail you are sentenced to be imprisoned for a period of one month.

45That makes a total effective sentence of seven years and I fix the period of four years and six months as the time that you must serve before being eligible for parole.

46I declare that you have spent 1,023 days in pre-sentence detention and I direct that be counted and reckoned as part of the sentence already served and I make the disposal orders sought.

47I've just seen that I missed two things I should have said.  First in fixing the term of imprisonment I have taken into account in a general sense, as I indicated in the hearing of the plea and again earlier this morning, the 28 days of sentence for the outstanding matter that you have served since being remanded for these offences.

48I also take into account not in strict parity, but in terms of trying to achieve an appropriate proportionality, the sentences that were imposed upon Mr Moreno and Ms Stapley, and so whilst strict parity does not apply I have sought to tailor these sentences to have some degree of rational proportionality between them.  Are there any further orders that are required to be made?

49COUNSEL:  No, Your Honour.

50HER HONOUR:  No?  And the form of the order that I've pronounced is correct?

51COUNSEL:  Yes.

52HER HONOUR: Mr Khalil, I really hope that this can be an opportunity for you to be able to put in place plans that are going to be better able to be achieved upon your release.  It would be really nice to think this was your last sentence and that your years from now on are going to be years at liberty, in the community, living a more peaceful life.  Can we please adjourn.

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