Director of Public Prosecutions v Khoshaba
[2022] VCC 697
•18 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-00896
CR-21-00898
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN KHOSHABA & MAHMOUD SABA |
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JUDGE: | Judge Moglia | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 April 2022 | |
DATE OF SENTENCE: | 18 May 2022 | |
CASE MAY BE CITED AS: | DPP v KHOSHABA & ANOR | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 697 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence upon plea of guilty
Catchwords: Sentencing – Arson – Worboyes – Extra-curial punishment – Over $350,000 damage to building alone – Expectation to derive significant benefit – Offending whilst on bail – Offending whilst on community correction order – History of community correction order breaches – Significant criminal history – Relevant criminal history – Guarded prospects of rehabilitation – Verdins – Post traumatic stress disorder – Hardship in custody due to Covid-19 – Sentence on subsequent offending – Totality – Concurrency – Non-parole period
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Altun v The Queen [2014] VSCA 46; R v Barci (1994) 76 A Crim R 103; Tannous v The Queen [2017] VSCA 91; Verdins v R (2007) 16 VR 269; Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169
Sentence:Mr Khoshaba: total effective sentence or term of imprisonment of 3 years 9 months. Mr Saba: total effective sentence or term of imprisonment of 2 years 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Zammit | OPP |
| For the Accused Khoshaba For the Accused Saba | Ms Freijah Mr Patton | Emma Turnbull Lawyers Theo Magazis Lawyers |
HIS HONOUR:
1 Steven Khoshaba and Mahmoud Saba, you have both pleaded guilty to one charge of arson relating to the intentional destruction by fire of a fruit and vegetable shop at 11, 1B Zoe Road, Wollert (the shop), on
11 July 2019. The maximum penalty for arson is 15 years' imprisonment.
2 Steven Khoshaba, you have also pleaded guilty to one summary charge of committing an indictable offence whilst on bail. The maximum penalty for this offence is 30 penalty units or three months' imprisonment.
3 The agreed basis for your guilty pleas is set out in the summary of prosecution opening dated 9 February 2022. You are to be sentenced based on those facts which I summarise and making findings about as follows.
4 At the time of your offending, you were friends and both living at
6 Tyson Street, Fawkner. The shop was being leased by a Mr Amar Al Subahi. In the months leading up to July 2019 Mr Subahi was in dispute with the owner and had not paid rent.
5 On 10 July 2019 Mr Sjahlim, who managed the premises for the owner, placed a notice of termination of lease on the shop window, giving Mr Subahi two days to arrange for the removal of his property from the premises. At the time of the fire he had not yet done so. The shop contained stock and the equipment required of a functioning fruit and vegetable business.
6 On 11 July 2019 at around 11.55 pm you both arrived at the shop with another as yet unidentified man driving in a 1995 Toyota RAV4. The unidentified man, having failed to jemmy open the shop doors, returned to the RAV4 and drove it into the doors, breaking them and permitting you access. You both immediately got out of the vehicle and entered the shop. The other man attempted to do the same but he had wedged his door shut against the shop door frame.
7 You, Mr Saba, carried a plastic petrol container and poured the petrol over the shelves and the shop floor. You, Mr Khoshaba, pushed over the cash register and a set of scales. I find that you were not attempting to locate money; your purpose in entering the shop was not to steal.
8 Having both returned to the vehicle you, Mr Saba, replaced the plastic container into the car's front footwell. You, Mr Khoshaba, fetched a cloth from the car, returned to just inside the shop, lit the cloth with a lighter and threw it onto a shelf covered in petrol. The shop quickly became engulfed in flames.
9 Perhaps as an indication of the recklessness of your actions and due to where you were standing, Mr Khoshaba, your own clothing caught alight as did the petrol vapours leading into the cabin of the vehicle. You ran to a grassed area in front of the shop and threw yourself onto the ground to douse the flames. Returning to the burning vehicle, you then tried, without success, to open the driver's door. The driver then climbed into the back and escaped through a rear door.
10 Mr Saba, you exited through the rear cargo door, falling to the ground as you did so, losing your balaclava. All three of you then fled the scene on foot towards Epping Road. You made no attempt to raise any alarm about the fire that you had just lit.
11 As it happened, two eyewitnesses were in a laundromat nearby when they heard a loud bang. They went outside and saw the RAV4 stuck in the shop entrance as it went up in flames. CCTV footage from two cameras at the shop revealed your offending and was played during the plea hearing. An external camera trained on the shop doors showed the vehicle ramming them and you both exiting the vehicle. An internal camera revealed your conduct inside as I have described.
12 Soon after the fire, Mr Khoshaba, you spoke on the phone with friends who knew you both, Mahmoud Ayad and his partner Nada Denaoui. You told them to come to your place urgently.
13 Mr Saba, when they arrived, Mr Ayad went into your bedroom and saw you to be shaking and in severe pain with burns to your hands and legs. He saw another man in the room who he did not know who later left hurriedly as police arrived. When asked about what happened, you told Mr Ayad something about a barbecue or gas bottle exploding in the back yard. Ms Denaoui called
000 requesting an ambulance at about 1.10 am on 12 July 2019, telling them your gas bottle story.
14 Police soon arrived and saw you in pain from your burns and gave you first aid. They asked you what happened. You appeared to go into shock and said, 'Barbecue, barbecue'. When the ambulance arrived they took over your care and conveyed you to the Alfred Hospital.
15 Mr Khoshaba, your friends then directed police to your room. You were on a mattress under a blanket smelling of fuel or accelerant. You repeated the barbecue gas bottle story. After seeing your burns they arranged a second ambulance and you were also taken to the Alfred Hospital for treatment. You were discharged from hospital later that morning.
16 Police then arrested you and took you to the Mill Park police station where they interviewed you. Amongst other things you told police that on the previous night you went for a drive in a green RAV4 with Mr Saba and a friend of his, Shinnu. You said that earlier in the evening you were also in another darker RAV4 with another unidentified man driving before you got into the green car.
17 You said you could not remember where you went or where you stopped. When police asked you how you got your injuries, you replied, 'I dunno, I was helping. No comment'. You were remanded in custody until being granted bail in this matter some nine months later on 17 April 2020. At the time of this offending you were on bail to appear at the Sunshine Magistrates' Court and were the subject of a community correction order.
18 Mr Saba, you were treated in hospital over about eight days, including a skin graft to one of your hands. On 13 August 2019, about a month after the fire, police arrested you and interviewed you at Mill Park. You made no comment to questions put to you and you were granted bail by police. On 6 October 2019 you then committed firearms offences in relation to what you effectively described as a debt collection gone wrong.
19 You were arrested on 14 January 2020 and sentenced in this court on
31 July 2020 to 28 months' imprisonment with a non-parole period of 18 months. You described that offending to psychologist Carla Lechner as collecting a debt “as a favour and maybe to make a bit of money out of it because you were out of work”.
20 You both conducted a joint contested committal ultimately heard on 12 February and 30 April 2021. You both indicated not guilty pleas to arson and lesser related charges. Mr Saba, you were refused bail on this matter at the conclusion of the committal hearing, no doubt partly as you were then undergoing the 28 month sentence.
21 Ultimately by October 2021 you settled your cases on the principal offence of arson. Mr Saba, you were arraigned on 29 October 2021 and you, Mr Khoshaba, offered to plead guilty that same week, although you were arraigned on 8 December 2021.
22 I accept that while your guilty pleas were not early, they still bring about significant utilitarian benefits for both the court and the community. I accept both of your counsels' submissions that your guilty pleas attract increased weight as they were entered during the COVID-19 pandemic.
Personal matters – Mr Khoshaba
23 Mr Khoshaba, you were born in Iraq in 1982. Your family fled Iraq in 1990 prior to the Gulf War, the first Gulf War. Your family relocated to Melbourne, Australia, in 1995. You describe a stable and loving home environment, despite the chaos of refugee camps and relocation to a foreign country. You are now an Australian citizen.
24 You started schooling at the Brunswick Learning Centre and then went to a secondary college from Year 8. You found school difficult due to language difficulties and the lack of foundation. Your family moved to Roxburgh Park and you completed Years 11 and 12 at another local high school. You then worked with your brother in his business where you washed cars until 2008.
25 You met your ex-partner, Eva, in 2007. You have five children together, however they were removed from your care in 2018 due to drug use and mental health issues on both your parts. Your relationship with Eva quickly deteriorated and ended in 2019. You have contact, including visits, with your two older children who live not far from Melbourne. The three younger children are in foster care some hours away and you have not had contact with them for two years.
26 Your counsel, Ms Freijah, submitted that you were not the orchestrator of the incident; rather, that you were recruited by another unnamed person. It is not alleged that you were the directing mind behind the offence, and I do not find that you were. This does not reduce the seriousness of what you actually did, but perhaps indicates an absence of an aggravating factor were you found to be the orchestrator.
27 Further your counsel submitted that neither were you the principal offender. This cannot be accepted. You were present, playing an active role in lighting the fire, and your liability does not arise due to some indirect operation of the rules of complicity. You were a principal offender in relation to the arson. However, I do accept that you had no higher or lesser role than Mr Saba. Your actions on this night, both of you, were outrageous, dangerous, brazen, and caused significant damage.
28 As your counsel sensibly accepted, Mr Khoshaba, you participated in this offending because you believed you would gain some significant benefit from doing so. Just what that benefit was, the prosecutor agreed, could not be proven beyond reasonable doubt. Your counsel submitted that your offending lacks sophistication and that there was no evidence of your involvement in the purchase of petrol or the theft of the RAV4.
29 I find, however, that you were a willing and knowing participant, having come to the shop in disguise, with petrol, prepared immediately to exit the vehicle and set fire to what was obviously a functioning fruit and vegetable business. You were not said to be experienced in setting fires, which might be reflected in the way you sustained the burns when the blaze quickly got out of control. Your injuries were no doubt very painful.
30 I acknowledge the significant discomfort you suffered when you caught fire. I note, however, that over the following weeks and months you recovered and have no ongoing or permanent injury. I accept Ms Freijah's submission that your suffering constitutes some extra curial punishment and I find that it warrants a mild degree of amelioration to punishment and specific deterrence.[1]
[1]Altun v The Queen [2014] VSCA 46 at [62]. R v Barci (1994) 76 A Crim R 103.
31 You have lived with your brother in Craigieburn since being granted bail on 17 April 2020. You currently work with him full time as a labourer and carpenter. You say you have abstained from drug use and have begun the process of gaining contact with your children.
32 The prosecutor concedes that you have not committed further offences whilst on bail over two years, and I give you credit for the positive efforts you have made during this time towards rehabilitation and reform. You seem to have ceased drug use, reconnected with your family, engaged in work and started planning for your future.
33 In those circumstances your counsel submits that a combination sentence is appropriate. Specific deterrence and community protection are less relevant considerations, given your current stability, that a combination sentence would adequately provide for general deterrence, denunciation and rehabilitation, and there is an interest in preserving the progress you have made in the community and ensuring the continuation of your rehabilitation.
34 The prosecutor submitted that given your age, prior criminal history, and the fact that you have breached community correction orders on three previous occasions, a combination sentence, even an extended combination sentence,[2] would not be appropriate. It was further submitted that even if a combination sentence was within range, the amount of time you have spent on remand is still significantly less than custodial sentences delivered in recent similar arson cases. The prosecutor submits that a term of imprisonment with a non-parole period is required.
Personal matters – Mr Saba
[2]Sentencing Act 1991 (Vic), Section 44; Tannous v The Queen [2017] VSCA 91.
35 Mr Saba, you were born and raised in Egypt. At the age of six you witnessed the death of your mother when she caught fire in the kitchen. You developed post traumatic symptoms such as flashbacks and nightmares. In addition, you were the victim of Complex Developmental Trauma as your father regularly physically and verbally abused you. You experienced prolonged periods of anger, disassociation, and depression at school. You harboured chronic feelings of inadequacy and low self-esteem throughout your formative years.
36 Despite all of this, you were a good student and studied arts at university. You met your previous partner, Kelly, an Australian citizen in Egypt. You married and lived there for about five years before coming to Australia in 2003 when your daughter was born. You reported a difficult transition and your marriage was over by 2004. Your daughter is now aged 18 but you have had no contact with her since she was 10 years old.
37 After arriving in Australia you were employed in food processing, construction, and metal fabrication. In 2010 you opened a kebab shop which you sold after about 18 months when you returned to construction work. This decision led to depression and the breakdown of another long term relationship. You are now an Australian citizen.
38 In 2015 you were injured as a pedestrian in a motor vehicle accident. Since then your life has been on a downward spiral mired in depression, chronic pain, and an inability to maintain employment. You commenced using illicit drugs following the accident as a means of escape and self-medication. The absence of pro social supports meant that you rapidly became trapped in a vicious cycle of drug use and associated criminal offending.
39 Prior to the offending you had been living with Mr Khoshaba at the Fawkner address and were using drugs heavily. Your counsel said that you received drugs for little or no cost from an unnamed associate who offered a modest quantity of drugs for participating in the arson.
40 You have a criminal history involving previous terms of imprisonment for causing serious injury and for dishonestly dealing with property belonging to others. You have also been sentenced on drug, weapon and ammunition offences.
41 Like Mr Khoshaba, based on the nature of the offence including its dangerousness, your counsel accepted that you agreed to participate in it because you expected some significant gain. The precise nature of that gain is not proven.
42 Your counsel, Mr Patton, submits that the offending was unsophisticated and involved little planning on your part beyond attempts at concealing your identity. I accept the submission that the offending was perhaps inexpertly executed, albeit effective. However, I find you to have been a willing and knowing participant in the offending based on your disguise, your attendance in company, your immediate participation in setting the fire upon your arrival and your role inside the shop.
43 It was further submitted that the severity of your offending is on the lower end of the scale, given that it was committed in the middle of the night and that adjacent premises were all unoccupied. The prosecutor submitted that it is a serious example of arson given that the damage to the building structure alone was valued at $366,279,82; that community protection should be at the forefront of the court's considerations; that whilst the offence occurred at night and on commercial premises, arson has the potential to cause serious unintended consequences and I accept the prosecution's submission as to the gravity of this offending.
44 It was suggested that the gravity of your offending is mitigated by the fact that the shop and its surroundings were in a deserted commercial retail area and therefore your actions were unlikely to put others in danger. I note, however, you were not charged with arson intending to endanger another, and in any case there was no evidence to suggest that any of you made efforts to check the surrounding premises to ensure that no one would be at risk.
45 If indeed there was no one in the vicinity, that also reduces the likelihood of the fire being detected quickly and of it being brought under control before it could spread. You certainly did not call the fire brigade at any stage. In all the circumstances I find your conduct to have been very dangerous. I do not find that the fortuitous absence of damage beyond the shop or to any person was due to your planning.
46 You sustained burns to your hands and thighs. You were hospitalised for eight days, requiring a skin graft to one of your hands. Except for some ongoing pain your injuries have largely resolved. I accept that your suffering in the full extent that was described in the materials constitutes some punishment for your criminality and it warrants a degree of amelioration to punishment and specific deterrence.
47 In June 2020 in relation to your offending in October 2019 clinical psychologist Ms Carla Lechner assessed you as having symptoms of unresolved post-traumatic stress disorder, along with clinical depression. You presented, however, as being capable of reflective and consequential thinking, although your judgment and decision making were severely affected by your drug use and depressed mood.
48 Ms Lechner commented that you tend to be on high alert for experiences of real or perceived danger and will often react instinctively without processing information relevant to the situation. Your counsel submitted, and I accept, that your mental condition at the time and since does not enliven the principles in Verdins.[3]
[3]Verdins v R (2007) 16 VR 269.
49 You have been in custody since 14 January 2020. The pandemic has rendered your time in custody more burdensome. You have been subjected to 23 hour lockdowns, restricted movements, reduced access to rehabilitative and vocational programs, and limited access to psychological treatment. You have had no in person contact with your family, your former partners, or your daughter.
50 I accept that you will continue to face difficulties in receiving adequate and targeted treatment for your PTSD symptoms whilst in such custodial conditions, and this may affect your mental health. I will moderate your sentence accordingly.[4]
[4]Brown (aka Davis) v The Queen [2020] VSCA 60, [48].
51 Your sentence in relation to the firearms was completed on 27 January this year. You have served the entirety of the 28 months. Since that day you have spent 84 days at the time of the plea hearing on remand and specifically for the arson. Your counsel concedes that the only disposition available in your case is imprisonment. He submits, and I agree, that the totality principle applies when considering the extended period you have spent in custody on both this and the subsequent offending.
52 Your counsel further submits that the contested committal proceeding in this matter was delayed by approximately 15 months, initially due to the late provision of DNA evidence and other statements, and then due to COVID-19. You were ultimately committed on 30 April 2021. He submitted that but for the delay this matter would have resolved in time to be heard together with the subsequent offending, and consequently you have been denied any opportunity for concurrency. Further, it was said that you were denied parole on
3 May 2021 because of your remand in this matter.
53 The prosecutor agrees that the totality principle applies, however submits that your case is to be distinguished from those in which a legal obstacle beyond your control prevented all matters being dealt with at once. It was submitted that the contested committal has not been shown to have resulted in any significant change to the allegations. Indeed, you have now pleaded guilty to the primary offence with which you were originally charged.
54 Whatever the merits of conducting a contested committal were, I accept that you lost the opportunity of seeking an appropriate degree of concurrency that you would have had if the matters had proceeded together. Of course any unfairness to you due to COVID related delay in proceedings is a relevant consideration on sentence.
55 Mr Khoshaba and Mr Saba, of all the relevant considerations I note the following matters that relate to you both.
a) Your setting of the fire in this case entailed very serious offending.
b) Arson carries with it considerable risk to nearby property, people, and emergency services workers whose job it is to bring a fire under control. It is trite to say that fire, by its very nature, has the potential to spread and cause serious, even if unintended, consequences. Your behaviour on this night was highly dangerous.
c) Your explanations for your involvement, that you lit the fire in return for drugs, were inadequate and while that does not aggravate the seriousness of the offence, it does not lead to mitigation of sentence.
d) Your guilty pleas, whilst not early, are still significant and have important utilitarian value, especially during the COVID-19 pandemic and the effects of it on the work of the courts.
e) I am satisfied that your guilty pleas represent remorse to some degree, and a similar willingness to facilitate justice.
f) Whilst it is not said that either of you orchestrated the offending for some undetermined ulterior purpose, you were both principal offenders in the arson. Whether you were involved in obtaining the stolen vehicle or accelerant does not attract much weight.
g) Due to your own conduct you both received burns for the offending and while those injuries did not result in serious or ongoing permanent consequences, your suffering does constitute a mild degree or extra curial punishment.
h) Your offending caused damage to the premises valued at $366,279.82, not including the value of the loss to the business of its stock and trade.
i) As your counsel conceded during the plea hearing, you both expected to derive a significant benefit for your actions.
56 Mr Khoshaba, I note the following matters relevant to you in particular.
a) At the time of this offence you were on bail as well as serving a community correction order.
b) Your criminal history demonstrates a significant history of dishonest dealings with property belonging to others. This suggests, and I find you have, guarded prospects of rehabilitation.
c) You have breached community corrections orders on three previous occasions.
d) Since being granted bail in this matter on 7 April 2020 you have committed no further offences and have seemingly made positive efforts towards rehabilitation, albeit this submission seems based solely on your instructions.
57 Mr Saba, I note the following matters relevant to you in particular.
a) You have a relevant criminal history, including dishonest dealing with property, violence, and weapons offences. This will be your fourth term of imprisonment.
b) Your prospects of rehabilitation are also guarded.
c) While your psychological condition does not enliven the principles in Verdins, I nevertheless have had some regard to your PTSD and depressive symptoms in assessing your personal circumstances and the desirability of being able to pursue your rehabilitation in the community at an appropriate stage.
d) I accept that your time in custody to date has been made more burdensome because of COVID related restrictions and that those will continue, making targeted psychological treatment whilst in custody more difficult.
e) Your sentence on 31 July 2020, namely the 28 months for subsequent offending was completed on 27 January this year. You have since remained on remand for this matter alone for 111 days. Had I sentenced you at the same time or close to the 2020 sentence I would have imposed the same sentence as that imposed on Mr Khoshaba and ordered a moderate degree of concurrency between the matters, both as to the total sentence and the non-parole period.
58 Mr Khoshaba, I sentence you as follows.
a) On Charge 1, arson, three years and nine months.
b) On the summary offence of offending whilst on bail, one month, concurrent.
c) I fix a non-parole period of two years.
d) I declare that you have served 276 days and direct that this be reckoned as a period already served under this sentence.
59 In accordance with s6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed five years with a non-parole period of three years and three months.
60 Mr Saba, I sentence you in the context of you having served the 28 months as of 27 January 2022 with which I am now unable to order any concurrency. Consequently whilst I intend that you should serve the same sentence as Mr Khoshaba for the arson, I will formally impose a lower sentence to reflect that some of that sentence would, had I sentenced you at an earlier date, have been served concurrently.
61 Mr Saba,
a) on Charge 1, arson, two years and nine months.
b) I fix a non-parole period of 11 months.
c) I declare you have served 111 days and direct that this be reckoned as a period already served under this sentence.
62 In accordance with section 6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed 4 years with a 2 years 6 month non-parole period.
63 I am satisfied that the available documents in this case provide a sufficient basis upon which to determine the application for compensation under section 86(1) of the Sentencing Act 1991. The prosecutor seeks such an order in relation to you both jointly and severally. They rely upon an invoice from Strata Community Insurance dated 27 October 2021, setting out the estimated costs of the damage caused to the building at $366,279.82. Both Mr Khoshaba and Mr Saba consent to the making of the order and in these circumstances, I will make the order as sought.
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