Director of Public Prosecutions v Moussa

[2023] VCC 1415

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-01947

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAJEE MOUSSA

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JUDGE:	HER HONOUR JUDGE SYME
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2023
DATE OF SENTENCE:	14 August 2023
CASE MAY BE CITED AS:	DPP v Moussa
MEDIUM NEUTRAL CITATION:	[2023] VCC 1415

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Attempted Home Invasion – Commit Indictable Offence – Contravene Interim Personal Safety Order -

Legislation Cited:     Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:            Hogarth v The Queen [2012] VSCA 302;

Sentence:                 3 years and 11 months imprisonment – 2 years and 1 month non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson	Office of Public Prosecutions
For the Accused	Mr M. Reardon	Balmer & Associates

HER HONOUR:

1Mr Najee Moussa, you have pleaded guilty to one count of attempted home invasion, namely that on 27 May 2022, you attempted to enter a home situated at Armstrong Street, Sunshine West, as a trespasser with intent to commit an offence involving an assault to a person therein and, at the time, you were in company with other people and one of those persons had a firearm. There are two related summary offences which I will sentence separately and refer to at the end.

2While a completed home invasion carries a maximum penalty of 25 years' imprisonment, an attempt for such an offence carries a 20-year-imprisonment maximum.

Primary Criminal History

3You have admitted a prior criminal record and your prior convictions are limited and do not include any matters of violence beyond disorderly behaviour.  You were, however, subjected to a supervised community corrections order at the time of your offending.  That breach will be dealt with elsewhere.  Your lack of prior record would allow you some consideration of leniency, however, the breach of the CCO is an aggravated circumstance of your role in this offending.

Background

4As summarised in related sentence proceedings, you and your co-offenders attended the address at Sunshine West, Victoria on 27 May 2022 in the early hours of the morning.  Your co-offenders were Nicholas Georgiou, Drew Neyland and Mathew Jurjevic.  Georgiou was aged 34 years, Neyland 35 and Jurjevic 30 years old at the time of the offending.  You were born on 17 August 1990 and at the time of the offending, you were 31 years of age.  You were residing in St Albans, Victoria.  You were on bail, having been bailed on an unrelated matter.

5At the time of offending, you were also the respondent in respect of a personal safety intervention order.  Among other conditions, you were not permitted to attend or remain within 200 metres of the address where you were apparently residing.  The victims of your offending are Mr Noel Carroll and Ms Jennifer Christov.  The victims were in a relationship with each other and were aged 52 and 53 years old respectively at the time of the offence.  Both resided at the Armstrong Street address.  At the time of offending, Mr Carroll knew Mr Georgiou, Jurjevic and yourself.  Ms Christov had no prior dealings with any of you.

6During the attempted home invasion, Mr Georgiou discharged a firearm in the general direction of Mr Carroll.  The Crown does not, however, allege that any of you were involved in the decision to discharge the firearm or even knew it was loaded although all of you were aware that he was carrying that firearm.

7By way of further explanation of the offending, I note that on 27 May 2022, just after midnight, Georgiou and Neyland arrived at the Jurjevic address.  You were already present inside.  The observations which form a part of the descriptions of the offending were captured on CCTV at this address and the Armstrong Street premises.

8On that day, at 1.01 am, Neyland was captured on CCTV in possession of a black jemmy bar which he wrapped in white tape whilst in the undercover area of the rear of the property.  At 2.07 am, Mr Jurjevic reversed his Audi which had been parked in the driveway.  At 2.47 am, you were in possession of the jemmy bar while talking to Neyland in the undercover area described earlier.  You were observed leaving the garage with the jemmy bar and returning a short time later.

9At 2.58 am, Georgiou is captured in possession of a sawn-off rifle which he wrapped in an orange, fluorescent shirt.  At 4.37 am, all four of you are observed inside the undercover garage area together.  By 5.10 am, Neyland exited the premises carrying a fire extinguisher and a jemmy bar.  Georgiou walked into the shed wearing a black face mask whilst holding a firearm and then walked out of the shed with you and other co-offenders. The firearm was still wrapped as above.  He and Jurjevic got into the Audi with Jurjevic driving.

10Mr Moussa, you were responsible for driving Mr Neyland's Volkswagen.  At 5.32 am, both vehicles were captured on CCTV traveling in convoy past the Armstrong Street address.  You drove west past the Armstrong Street address three times.

11At 5.39 am, Neyland and Georgiou approached the Armstrong Street address from the direction of the vehicle you were driving.  Neyland was equipped with a jemmy bar with a curved end.  Georgiou was armed with a dark coloured sawn-off rifle which was still wrapped.  Those two climbed over the front fence of the Armstrong Street address and walked towards the front door of the property.  Neyland attempted to jemmy open the security door with Georgiou close behind.  As these acts were occurring, you, Mr Moussa, remained inside the Volkswagen preparing for the others to return.

12The noise being made at the front door alerted Ms Christov, who was asleep in the front bedroom of the residence.  She looked at the CCTV screens in the bedroom and observed the two offenders attempting to enter the premises.  She screamed and woke up Mr Carroll.  Carroll picked up an axe and ran to the front of the house.  Neyland made a second attempt to jemmy the front security door but retreated when the front door light went on.  Carroll then opened the front wooden door of the premises which caused Neyland and Georgiou to back away and jump over the front fence.

13At 5.40 am, as those events occurred, the Volkswagen which you were in control of travelled from the west of Armstrong Street and waited in the street with its headlights turned off.  Carroll then opened the security door of the premises to confront Georgiou and Neyland.  Georgiou, at that point, was at the front of the Armstrong Street address with a fence in between himself and Carroll.  He pointed the sawn-off rifle and discharged one round in Carroll's direction.  The bullet impacted the ceiling above the front door where Carroll was standing.  Carroll immediately shut the security and the wooden doors. 

14Around nine seconds later, after the first shot was fired, Georgiou discharged a second round.  Georgiou ran with Neyland onto the road where they entered the Volkswagen that you were driving where it was idle and waiting.  The vehicle accelerated quickly away from the address followed by the Jurjevic Audi.

15Following that, Ms Christov contacted Triple 0 and reported the incident to police.  The investigation continued and investigators reviewed all the CCTV footage available which has informed much of the information that is contained in the prosecution opening.

16On 2 June, police executed a search warrant.  Amongst other things, the CCTV hard drive was recovered from the Jurjevic address together with certain telephone records.

17On 7 June 2022, investigators arrested Neyland.  Investigators also impounded the Volkswagen and a mobile phone in his possession.  The jemmy bar used in the offending was located in the driver's door pocket and your fingerprints were lifted from within the vehicle.  On 22 June 2022, police arrested Mr Jurjevic and Georgiou; further items were seized.

18On 1 August 2022, investigators arrested you at 70 Vincent Avenue, St Albans and seized further evidence.  At the time of the arrest, you were still subject of an active interim intervention order which prevented you from attending or residing within 200 metres of that address.  Investigators cautioned you and advised you of your rights before commencing a covert recording.  During that recording, you made certain admissions relevant to the charges.  Later, you were placed in a holding cell with a covert operative and while in the cell, you stated further relevant information.  However you were subsequently interviewed by police and made comments denying all of the offending.

Objective seriousness

19In assessing the objective seriousness of the offending, the level of preparation for the home invasion was significant.  All the parties were together at the Jurjevic address for approximately five hours prior to the attempt.  It is accepted that not all of this time was used on planning.  Considerable quantities of drugs were consumed by each of you within that time frame.

20The acquisition and use of weapons is acknowledged.  Georgiou used a firearm and Neyland, a crowbar.  Both weapons were wrapped up and concealed from time to time.  There is no dispute, however, that you were aware of them.

21The planning involved dividing you four offenders into to two-person teams with you acting as a driver to and from the target address.  As a driver, you were to remain in the car which was left running in order to promptly allow the escape of your co-offenders.  The plan was clearly thought out with consideration given to the number of people involved, and the tasks for each.  This observation makes you all equally culpable for the events that then occurred - they were within your knowledge and contemplation.  It is noted again that the charge is one of attempted home invasion.

22It is accepted that you knew Georgiou had possession of a firearm and that Neyland had armed himself with a crowbar.  It is accepted there is no proof to the requisite standard that you, or indeed, Neyland, knew that the firearm was loaded.

23It was submitted by counsel that the entire event was amateurish in nature.  It is observed that the event was abandoned just after a few seconds of confrontation at the front door.  However, incompetence or lack of resolve, whatever its cause, does not reduce the objective seriousness of the offending behaviour.  The attempt was complete when the confrontation at the front door occurred.  The attempt was a well-planned event with all four offenders each with different roles being required to carry it out effectively.  The fact that the invasion itself was unsuccessful has been acknowledged by the nature of the charge laid.  By your plea, you have accepted this.  Earlier submissions to the contrary had been withdrawn.

24You were also on bail, therefore, the commission of this offence is a breach of that and a breach of a separate IVO which related to the date of your arrest.  These matters will be sentenced separately.  However, it is a consideration for totality.  I am also told that you were on a supervised community corrections order at the time of your offending and that this offence has breached that order.  I note judicial monitoring was ordered and you were directed to undertake trauma counselling; however, I am unaware what this relates to and the current community corrections report does not enlighten me.  That breach, however, is an aggravating factor and will be taken into account in assessing the objective seriousness of your role.

25The contents of the current CCO report are useful.  You were involved in a substantial, planned attempt for a confrontational home invasion.  It cannot be disputed, successfully, that this was a serious offence and that your involvement in it was significant.  I note no Victim Impact Statement has been provided.  That does not diminish the objective seriousness of the offending.

Matters in mitigation

26I now turn to your plea.  You pleaded guilty to the charge before the court today.  It is accepted that the plea was indicated at the first available opportunity.  This has avoided any witnesses needing to be called at either a committal hearing or a trial.  It affords significant utilitarian value to the community and to the administration of justice.  Such matters must be reflected in a significant reduction of the sentence that would have otherwise been imposed had the matter proceeded to trial.

27In addition, an early plea is an acceptance of responsibility for the offending and can be evidence of remorse, although, it is noted that it was a very strong Crown case so perhaps the plea was an acceptance of the inevitable as well.  There is no illumination of the reasons for this offending other than you being significantly drug affected at the time of your decision to commit it.  This, of course, does not assist you.

28More recently, you have provided an explanation of sorts during your interview with the CCO report writers.  They seemingly acknowledge that your methamphetamine use and your association with co-offenders was ‘an error’ and that you have expressed some insight into the consequences of your offending.  This will be considered as ‘the beginnings’ of insight into your offending and some movement towards remorse.

29You are apparently now drug free and that is a good start.  It is accepted that you were significantly drug affected at the time of the offence.  This is not offered or considered as an excuse or even an explanation but gives some context and underlies the need for that issue to be addressed as part of your rehabilitation.  The contents of the CCO report will no doubt guide those who will supervise you on parole as to your needs, at least your needs, as they are indicated now.

30I now turn to your personal circumstances and background.  Initially, the only information tendered on your behalf were letters from your siblings and a medical report relating to your father's then medical condition.  As a result, I sought that some more information be provided and the practical way of achieving that was by requesting a CCO Assessment.  As I noted at the time, the request for such a report did not, and does not, signify that such a disposition is guaranteed.

31In submissions on your behalf some months ago, your counsel stressed the difficulty you were having in custody due to your father's ill health.  I note that sadly he has now died.  I observe that, to some extent, you were able to see him before his death and hopefully make some peace.

32I am told you are one of four children and that you are an auto electrician by trade having completed a four-year apprenticeship.  You worked in this industry for two years after full qualification.  You worked while completing your education and training up until the loss of your driver's licence, possibly, as a result of failing to provide an oral sample in 2021.

33You instruct your counsel that your drug use escalated from the age of about 28, which seems to coincide with the completion of your apprenticeship.  I am told that your career direction was a disappointment to your father and, in submissions indirectly, that you blame your substance abuse on your father's attitude. I do not accept this.  You also blame a broken relationship, but again, this is avoiding acceptance of your responsibility for your own actions as an adult.

34I accept that there was family tension which you now regret.  Your father was clearly very ill.  This does not appear to be particularly relevant either to your substance abuse nor to your offending.  Hopefully, you will now accept your responsibilities to your family.  You say you will.

35Submissions from counsel about your background are of a non-controversial nature.  The information is somewhat expanded on by the contents of the recent interview with you. The CCO report writers did not emphasise family disharmony and you now seem to be far more accepting of responsibility for your behaviour.  I do not know why counsel sought to blame your father's disapproval as a motivator for your life choices but this view does not seem to be supported by your own views and that is perhaps a note of some maturity on your part.

36It is submitted that you have family support.  Your family and their prosocial influence is a protective factor against your further substance abuse and offending.  They are still here for you today.  It is and will remain the most important feature of your rehabilitation going forward.

37In relation to your role in the offending, it was submitted again today that your role in the offending was limited.  Your role, I find, was as significant as the other offenders.  The home invasion was planned as above and it was only at the final hurdle that it failed to eventuate.  The charge is one again I point out of attempted home invasion.  The attempt was complete at the approach by your co-offenders to the front door.

38You are not charged with firearm offences but there is ample evidence by your plea and by other evidence that you knew Georgiou had the firearm with him.  The presence of weapons which you knew about underlines the objective seriousness of the offence itself and your role in it.  The prosecution concedes that there is insufficient evidence to show that the gun was loaded.  You are equally culpable with your co-offenders of the charge that you are facing.

39As to further considerations, I note that you have been in custody on remand during much of the COVID restrictions on visits and activities.  This is acknowledged as being more restrictive than usual.  It is a factor when considering the time served in that period and I will take it into account shortly.

Prospects of Rehabilitation

40It is reported via your siblings' letter that you regret your offending.  This expression is further explained and expanded on in your recent interview with the CCO report writers.  You are possibly, hopefully, currently, substance abuse free while you are in custody, and you report that you can see a way to remain so in the community.  You have a limited criminal record.  You are currently assessed as presenting a low risk of reoffending with risk factors including your leisure activities or lack of prosocial leisure activities, your companions or lack of prosocial companions, and your alcohol and drug use.  This will be taken into account when considering the non-parole to total term ratio.

41The Sentencing Act requires that the purposes of sentencing include consideration of the following features:

1to punish you, the offender, in a manner which is just in all the circumstances;

2to deter you in particular and others from committing the same or similar offences;

3to facilitate your rehabilitation;

4to denounce the offending conduct; and,

5to protect the community.

42Some of these purposes pull in opposite directions and from time to time, all considerations are relevant to a greater or lesser extent for each of you.  As I said before, the maximum penalty for attempted home invasion is 20 years' imprisonment.  It is neither a Category 1 nor Category 2 offence.

43In relation to the other offences that I must sentence, that is commit an indictable offence on bail; the maximum penalty is three months' imprisonment.  And for contravene a personal safety intervention order, the maximum penalty is two years' imprisonment.

44In relation to the ancillary orders sought, I note that forfeiture orders are sought in relation to clothing worn during the offence.  I do not propose to make these orders.

45I also note that you have accrued 378 days' pre-sentence detention as of today.

46I have stated in a related decision that I accept in relation to offences of home invasion or even attempted home invasion, a term of imprisonment rather than a combined sentence including a community corrections order will usually be the appropriate disposition.  I acknowledge the observations in Hogarth's case [2012] VSCA 302 supporting the concept that denunciation and punishment and deterrence are relevant and important considerations for such confrontational offences. Your counsel suggests otherwise. No authority was referred to.

47Neyland and Georgiou have both been sentenced to terms of imprisonment of three years and nine months for the home invasion.  Each of them had significant criminal records.  Mr Georgiou was also sentenced for firearms offending as part of his involvement in the attempted home invasion but that was a separate sentence imposed and he was also sentenced for other offending prior to the sentence that I imposed.  He was in a slightly different position with respect to pre-sentence detention, therefore.

48Neyland had a prior criminal record, not as extensive as Georgiou's, but he was not subject to supervision as you were at the time.  You and Neyland were both charged with the same offending and were integral parts of that offence.

49I am not convinced that it is in any way in the interests of justice, nor will it properly address the sentencing principles I am required to consider, to sentence you in an entirely different way to the way that Neyland was sentenced.  While the purposes of sentencing often pull in different directions, all purposes are, to a greater or lesser extent, relevant to you.  I repeat, however, that just punishment, deterrence and denunciation, are paramount considerations when sentencing for offending such as this and I accept that.

50The serious nature of this offending requires an imprisonment term to be specified.  The proposal by counsel that a combined sentence with a further year to serve is a suggestion I have already indicated I do not accept.  It seems that the motivation or, at least, part of the motivation for the supervision is to give you a definite release date to be supervised by corrective services rather than have you convince corrective services through the Parole Board, presumably, that you are a good risk to be released into the community.  Considering the nature of this offending and your significant drug use at the time, I do not think it is appropriate for me to try and predict the future to that extent.

51However, you are entitled to a real consideration of a generous non-parole period to total term ratio.  It is in the community's best interests that you resolve your substance abuse issues.  You have the potential to return to be a contributing member of the community and you have very useful qualifications for the motor industry.  I propose to allow you the opportunity of a relatively early release on parole.  Release will only be granted if you satisfy the Parole Board at the time your non-parole period expires that your risk to the community is now at an acceptable level.  I hope to give you some incentive to do as much as you can to address the issues as you must.

Sentence

52I sentence you as follows:

53Firstly, in relation to the offence of attempted home invasion, I sentence you to a term of imprisonment of three years and nine months and this will be the base sentence with a notional two-year non-parole period.

54In relation to the breach of bail, I sentence you to a term of imprisonment of one month and for the breach of the IVO, I sentence you to a term of imprisonment of three months.  Each of those sentences will be concurrent with each other and two months of the IVO sentence will accumulate on the base sentence.

55The total effective sentence is therefore a period of three years and 11 months.  I order a non-parole period for the total effective sentence of two years and one month.

56I notice and will order be included in the calculation pre-sentence custody of 378 days.  I do not have the exact date of potential release but it looks like it is going to be in about a year.  Someone is going to tell me that in a minute.  Can you calculate that?

57ASSOCIATE:  It would be approximately September next year, Your Honour.

58HER HONOUR:  September 2024 and that date, I am sure you know, sir, will be calculated with more specificity taking into account also any future emergency days that you might be entitled to or anything else.

59MR COOKSON:  As Your Honour pleases.

60HER HONOUR: Pursuant to section 6AAA of the Sentencing Act, had it not been for your plea of guilty, I would have sentenced you to a total term of five years and two months with a non-parole period of three years.

61MR COOKSON:  As Your Honour pleases.

62MR REARDON:  May it please the court.

63HER HONOUR:  Anything else?

64MR COOKSON:  Not from my end, Your Honour.

65HER HONOUR:  I think we have done it.  Anything else ‑ ‑ ‑

66MR REARDON:  No, Your Honour.

67HER HONOUR:  All right.

68MR REARDON:  May it please the court.

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