Director of Public Prosecutions v Kheir
[2012] VCC 372
•28 March 2012
I
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00482
CR-11-00483
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAHMOUD KHEIR |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 28 March 2012 | |
CASE MAY BE CITED AS: | DPP v Kheir | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 372 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose, SC | |
| For the Accused Mahmoud For the Accused Nasser | Mr S. Tyrell Mr L. Hartnett |
HER HONOUR:
1 Nasser Kheir and Mahmoud Kheir, you have pleaded guilty before me to one charge of affray. The facts underlying this offending are as follows. On the evening of 28 November 2009, you accompanied Mohammed Ouieda and Fadi Haddara to the home of Danny Amarah at 25 Pearson Crescent, Coolaroo., where one Ali El Hajje, a cousin of yours, was being held. Demands had been made for persons to attend. Your understanding was that Mr El Hajje was being held by a number of people inside the house as a result of sexual advances he had made upon Amarah’s wife.
2 In my sentencing remarks in relation to your co-accused, Mohammed Ouieda, I found on balance that I was satisfied that you, with Mr Ouieda, were attending on the premises essentially to negotiate an agreement, which was traditional within the Lebanese community, whereby Mr Amarah’s honour would be assuaged by the payment of money and a negotiation of non disclosure which would mean that no parties to the alleged sexual insult were further insulted by the revelation of what had occurred. In any event, the three of you attended, as I understand it, on the invitation of Mr Ouieda, who was the chief negotiator and recognised as an elder within the Lebanese community, as you and your brother were cousins, and travelled to the house, which was in a residential area of Coolaroo in Mr Ouieda’s Hummer.
3 On arrival at the premises, Mr Ouieda and you, Mahmoud Kheir exited the car and went to the front door. I should add that two other car loads of interested persons also travelled in convoy with Mr Ouieda’s car, one of those being a Mr El Ashkah, whose presence was initially demanded by Danny Amarah, together with other unknown persons. In any event, it is seen that the situation was that Mr Ouieda knocked on the door, it was answered by Mr Amarah, who did not open the security door and who denied that Mr El Hajje was present inside. Those outside the front door, however, heard Mr El Hajje calling out and apparently Mr El Ashkah then exited his vehicle and smashed a lounge window. Immediately afterwards, shooting came from inside the house. Mr El Hajje, to this point, had been held for some hours, had been assaulted and threatened, loaded firearms had been brought to the house and he was also threatened with knives.
4 Once the gunfire started from inside the house, it was answered by gunfire from outside the house, although it is not the prosecution case that either of you two gentlemen, or Mr Ouieda or Mr Haddara had travelled to the premised with guns or knew that they were to be used by the occupants of the two other vehicles. Mr Ouieda was shot in the stomach and buttock. You Mahmoud Kheir received a relatively minor flesh wound to the left leg. However, you Nasser Kheir, exited the car after Mr Ouieda and Mr Kheir and were gravely injured, receiving a serious bullet wound to the back of your left knee. Mr Haddara was uninjured. He, Mr Ouieda and you, Mahmoud Kheir, got Mr Nasser Kheir back into the car and the four of you then attended the Northern Hospital in Epping, where you were arrested by police. You were both subsequently charged with a number of serious firearm offences which have subsequently been withdrawn and I was informed by both your counsel that you had pleaded guilty to the charge of affray on the basis that although you attended the premises with Mr Ouieda, it was essentially with the intention of assisting in a peaceful and traditional negotiation, possibly resulting in the handing over of some money in the terms that I have already outlined, but at the same time being aware that violence could erupt, as it certainly did. This was an extremely serious incident, involving a shootout in a densely populated residential area of Melbourne and caused, understandably, great consternation amongst those in the immediate neighbourhood.
5 I now turn to the personal circumstances of each of you. You, Mahmoud Kheir, are 33 and you, Nasser Kheir, are aged 26. You are each a part of a sibship of six. You have an older brother who is currently on remand in prison awaiting a hearing for some criminal matter and your father is currently serving a term of imprisonment for drug matters. Your family came here from Lebanon and returned to Lebanon for some years when you, Mahmoud Kheir, were aged about 11 and obviously you, Nasser Kheir, somewhat younger. I will refer to the person circumstances of each of you separately, notwithstanding that you are brothers.
6 Your situation, Mahmoud Kheir, appears to be a very difficult one education wise. You completed some years of primary school in Australia, but on the return to Lebanon were subjected to about two years of education, essentially in order to teach you Arabic. But your counsel informed me that resultantly you have received virtually no secondary education and are illiterate both in Arabic and in English. Additionally, and very significantly, it would appear that you have suffered since a child from an intellectual disability which has never been the subject of any treatment or assistance for you and I am satisfied on the receipt of three psychological reports dating back, the first by psychologist Bernard Healey in 2000 and the last from psychologist Aaron Cunningham in March of this year, all of them involving psychological testing and all of them indicating a consistent result of an overall IQ of about 68, which is two points lower than the cut-off point for acceptance as a client of Intellectual Disability Services. You, of course, have never been a client of Intellectual Disability Services and I am satisfied that your day to day operations are rendered very difficult and that you are, as your counsel informed the court, heavily reliant on the assistance of your family and your wife.
7 On your return to Australia, you have, over the years, undertaken a certain amount of employment, although that has always been difficult for you because of your intellectual disability. You are married with three children. You have two younger daughters, aged six and nine and you have an 11 year old intellectually disabled son who is cared for by your wife, who is in receipt of a CentreLink payment in her capacity in that regard.
8 Your marriage has been a difficult one. There have been frequent separations and I note in previous reports that you have often found yourself in a situation of some depression and despair and considered suicide at times of that separation. Your family currently resides in a house rented from your sister in law. You, over the years, have had problems with drug use, both cannabis and, most concerning, ice or methylamphetamine, and along the way have, unsurprisingly, given it is the environment you clearly grew up in, compiled a reasonably serious and extensive prior criminal history, which began in 1999, when you were charged with possessing a regulated weapon, which your counsel inform me arose during one of your periods of employment, which was for a brother who was running a panel shop, and a knife that you used in the course of your work was located in your car by police.
9 You have gone on to be placed on various dispositions for charges such as attempting to commit an indictable offence and associated charges relating to attempted use by you to fraudulently obtain a credit card. You have been convicted for aggravated burglary and intentionally causing injury, which involved you and a brother attending on premises to confront a man who had apparently insulted your father and becoming involved in an assault upon him. On that occasion you were sentenced to a term of imprisonment. Again in 2003, you were sentenced to 200 days for a charge of trafficking amphetamine. That sentence was reduced to 14 days on appeal to the Court of Appeal. You were sentenced again in the County Court for handling stolen goods, which your counsel informed me related to the handling of car shells, and for this sentence you received a partially suspended sentence. Then, in 2007, you were dealt with for drug charges, possession of cannabis, for using insulting words in a public place, for behaving in an offensive manner in a public place and for driving while your authorisation was suspended and for using indecent language in a public place.
10 In 2008, you were placed on a suspended sentence again, for driving whilst your authorisation was suspended and for possessing a controlled weapon without excuse and careless driving. You appeared yet again before the County Court in 2008 on a charge of affray which counsel informed me arose when you were at a petrol station with your brother and a friend. Another carload of people arrived with whom there was some enmity. The friend from your car got a machete out and attacked the other car, but it appeared from the CCTV footage that you were not necessarily involved in the use of that machete, but were involved in that affray.
11 Subsequently to your arrest for these matters and then release on bail, you were dealt with for trafficking in amphetamines for which you received a suspended sentence from His Honour Judge Howie in November.
12 I'm sorry, Mr Tyrrell, I made a mistake there.
13 MR TYRELL: It went to the Court of Appeal, Your Honour, and the Court of Appeal declared 64 days that had been served.
14 HER HONOUR: So you were dealt with for trafficking in amphetamine – sorry I am just looking for the case you handed up, Mr Rose.
15 MR ROSE: I will give you another copy - - -
16 HER HONOUR: I have got it, that is all right, thank you.
17 MR ROSE: You will see that Judge Howie gave 12 months in total and then that was overturned on appeal.
18 HER HONOUR: Yes. You were sentenced to 12 months in prison by His Honour Judge Howe in November 2011. This related to offending in August and September of 2008.
19 Following your arrest on this particular matter, that is the charge of affray, you remained in custody for a period of 315 days and it is frankly conceded by the prosecution that this amounts to a straight s.18 period of detention which has already been served. I accept that your attendance at the premises was in order to assist and accompany Mr Ouieda in his role as an elder, who attended to negotiate a peaceful resolution of the abduction of Mr El Hajje. I made the comment in my sentencing remarks in relation to Mr Ouieda, that there must always be concern when people attempt to take steps in a criminal matter that should be dealt with by police. In such situations the surrounding community has always got to be vulnerable to the possibility of violence occurring and indeed that was precisely what occurred on this occasion.
20 I have concerns about your future prospect of rehabilitation. You are currently living with your wife. You appear not to have got into any further trouble, which is heartening, but at the same time, your intellectual disability problems are not being attended to and your counsel frankly informed me you still sporadically use drugs. There was some discussion between myself and learned prosecutor as to the efficacy of placing you on a suspended sentence, given the psychological deterrent effect it is hoped such suspended sentences have upon their recipients, and the prospect that this would have little effect on your for reasons I have already outlined. In all the circumstances, it does seem to me that the best way to deal with you is by way of a straight sentence of imprisonment, with an order that it has already been served by way of presentence detention. It was certainly the prosecution submission, I suspect largely based on your more serious prior criminal history, that you should be dealt with by way of a sentence of imprisonment, at least part of which should be served.
21 I therefore sentence you as follows. Would you stand up, please, Mr Kheir. On the charge of affray, I sentence you to three months imprisonment I direct that three months of that sentence has already been served by way of presentence detention. You can have a seat, Mr Kheir. Mr Kheir can come out of the dock.
22 PRISONER M KHEIR: Thank you.
23 HER HONOUR: I now turn to you, Nasser Kheir. A psychological assessment of you from Dr Aaron Cunningham, dated 6 September 2011, indicated that you are of reasonable intelligence, Mr Kheir. Mr Kheir, you can come down and sit in a seat, you don’t have to stand down the back there.
24 It appears at the age of 16, both your brothers and your father went to gaol and you were obliged therefore to leave school while part way through Year 11 in order to assume responsibilities towards your mother and your younger sisters. They, all them were at that time in school. Your youngest sister has now left school and is studying at TAFE and your other two sisters work as childcare workers in crèches.
25 You have had a reasonable employment history. You have undertaken lawn mowing, you worked in a timber factory. I note in the history from Dr Cunningham that you worked for a short time at a recycling company after leaving school. You sought work through friends and you worked at VPA timber Supplies for two and a half years, which job you were holding at the time you were shot. Again, like your brother, you were co-opted into the enterprise by Mr Ouieda to assist him in his negotiating role and certainly you have suffered gravely as a result. I received a wealth of medical material indicating that the damage to your knee, as a result of the bullet wound, resulted in a large number of operations at the time, but that the condition of your knee has failed to resolve, such that a couple of medical reports refer to your uncertain future, the uncertainty of your injury ever resolving. Options such as amputation being put up, other options such as knee fusion, which is a very radical step to take in a man as young as you, being undertaken. Your counsel informed me that what you particularly want to do is return to Lebanon, where apparently some sort of stem cell procedure can be undertaken and where you hope to have a knee joint prosthesis carried out.
26 In the sentencing remarks relating to Mr Ouieda, reference was made to what is known as post curial punishment, that is, where a person who is engaged I criminal activity receives a particular injury for it. It has long been recognised by superior courts in this state that this acts as a mitigating factor in sentence. In your case, given the role that you played in this incident, that being as I have said, in accompanying Mr Ouieda and a plea based on the fact that you were aware that violence might erupt, although that was not your intent, the post curial punishment must have a very strong mitigating effect in my view, when it is contrasted with the role that you played and the injury that you have subsequently received.
27 You are currently residing in rented premises with your wife, who you married last November, the two of you having known each other since childhood. She supports you by conducting a hairdressing business from her home. Again, it is my view, given the seriousness of the violence that did erupt, that your role, notwithstanding it essentially involving a peaceful intent, in involving yourself in what could be said to be a civilian response to a criminal matter that should have been attended to by police, is a worrying one. Actions by persons such as yourself inevitably as I have already remarked twice, lead to a position where things can escalate can get worse and other persons placed in danger and where people, such as yourself, act in this way, it is my view that the courts need to act fairly sternly. However, it is conceded by the prosecution that whilst a term of imprisonment should be imposed, the manner of its service is a matter that could be left to my discretion and it is my view that for the reasons I have outlined you should be dealt with by way of a sentence of imprisonment to be wholly suspended.
28 I neglected to mention that both you and your brother apparently indicated pleas of guilty to a charge of affray at a reasonably early stage in the proceedings and this is a matter that I also take into account in sentencing you as I do.
29 I therefore propose to sentence you as follows. On a charge of affray, you are sentenced to three months imprisonment, which sentence will be wholly suspended for a period 12 months.
30 MR ROSE: There is some PSD, Your Honour.
31 HER HONOUR: Yes. In relation to you, there is presentence detention of?
32 MR ROSE: Ten days and two days of Renzella.
33 HER HONOUR: I direct that a total of 12 days of that sentence have already been served by way of presentence detention, 10 days of that pursuant to s.18, two days of it pursuant to a Renzella presentence situation.
34 Pursuant to s.6AAA in relation to you, Mahmoud Kheir, had you not pleaded guilty to the charge, I would have sentenced you to a term of seven months imprisonment, and in relation to you, Nasser Kheir, had you not pleaded guilty, I would have sentenced you to a term of five months imprisonment.
35 COUNSEL: As Your Honour pleases.
36 HER HONOUR: I also note that your pleas of guilty have saved a considerable amount of time and expense to the community. Is that everything I need to do?
37 MR ROSE: That’s it, Your Honour.
38 HER HONOUR: Done.
39 MR ROSE: The period you wholly suspended it for, Your Honour?
40 HER HONOUR: I beg your pardon, I thought I – 12 months.
41 MR ROSE: I think you said 12 months.
42 HER HONOUR: I did say 12 months, sorry, I thought I'd forgotten to put that in. The photographs can go back. We apparently need to hang on to – and apparently need to make copies of these for the file.
43 Thank you. We will stand down until 2.15. Thank you.
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