Director of Public Prosecutions v Omar Ajaj
[2015] VCC 307
•18 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-02016
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OMAR AJAJ |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2015 | |
DATE OF SENTENCE: | 18 March 2015 | |
CASE MAY BE CITED AS: | DPP v Omar Ajaj | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 307 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – conduct endangering serious injury
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited: R v Mills [1998] 4 VR 235; Azzopardi v R [2011] VSCA 372;
Arthars v R; Plater v R [2013] VSCA 258; R v Cockerell (2001) 126 A
Crim R 444; R v Tiburcy (2006) 166 A Crim R 291;
R v Smith (1987) 27 A Crim R 315; R v Verdins (2007) 16 VR 269.
Sentence: Convicted and sentenced to 18 months’ imprisonment, wholly suspended for an operational period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Hannan | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr G Scragg | Jeffreys Lawyers |
HIS HONOUR:
1 Omar Ajaj, you have pleaded guilty to the following offences:
(a)Charge 1, that you, at Meadow Heights in the state of Victoria, on 25 May 2008, without lawful excuse, recklessly engaged in conduct, namely discharging a firearm at a residential dwelling, that placed, or may have placed, Rose Graham in danger of serious injury;
(b)Charge 2, that you, at Meadow Heights in the said State, on 25 May 2008, without lawful excuse, recklessly engaged in conduct, namely, discharging a firearm at a residential dwelling that placed George Perhuvin in danger of serious injury.
2 Both charges are contrary to s.23 of the Crimes Act 1958 and carry a maximum sentence of five years’ imprisonment.
Circumstances of the offending
3 The prosecution has prepared a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit (Exhibit 1) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
(a)At approximately 12.50 am on 25 May 2008, 12 shots were fired at a house at 4 Picola Court, Meadow Heights, Victoria. At the time, the complainant, Rose Graham, and her partner, George Perhuvin, were in the lounge room and, although having heard the shots, were uninjured.
(b)Rose Graham’s son, Daniel Cleghorn, lived at the house and owed drug debts directly to a man named Imran Allouche (“Allouche”) and indirectly to Bassam Hamzy, who at all times was incarcerated at the Lithgow Correctional Centre in New South Wales.
(c)It is alleged by the prosecution that at least you, Hamed Ajaj (“H. Ajaj”), Abdulgini Klink (“Klink”) and Khaled Chkhaidem (“Chkhaidem”) were outside the house when the shots were fired. It is alleged that you and one of either Klink or H. Ajaj actually fired the shots at the house. You then all sped off in a white ute driven by Chkhaidem.
(d)The prosecution allege that you and each of the other offenders were part of a joint criminal enterprise to use firearms as an act of intimidation and persuasion for the collection of drug debts. Each of you acted at the direction of Hamzy, who was to be the ultimate recipient of moneys collected.
4
The document tendered by the prosecution also makes reference to a number of intercepted telephone calls over the period from 22 May 2008 to
27 May 2008. I will not refer in detail to such telephone intercepts, save to make reference to the following:
(a)On 22 May 2008 Hamzy telephoned you, advising that he was having “Some problems" in Melbourne and needed you to travel there with some of your “boys”, the following day. You confirmed that you and two “mates” would make the trip, and Hamzy provided you with instructions in relation to the collection of money owed to Hamzy by Allouche.
(b)On 23 May 2008, Hamzy gave you Allouche’s phone number and advised you that Allouche would pick you up at the airport together with Klink and H. Ajaj.
(c)Various phone calls took place between Hamzy and Chkhaidem where it was arranged that the “toys” (firearms) be obtained, together with ammunition.
(d)At 8.07pm on 24 May 2008 Hamzy called you and told you to put on the other two “boys” – that is, Klink and H. Ajaj, one by one, so he can make sure they are 100 per cent solid.
(e)At 9.20pm on 24 May 2008, you told Hamzy that you are on the way to Allouche’s house. Later, at 9.35, you were advised by Hamzy:
“All right, all right, go to this, go to this fuckin’ Aussie cocksucker’s house.”
(f)At 9.58pm on 24 May 2008 you told Hamzy:
“We’re going to the Australian’s now.”
(g)Half an hour later you spoke to Hamzy again, and described going to a house and asking for money owed to Allouche, after which there was a confrontation with people you described as the Mum and Dad of Woody, during which time it was denied that money was owed to Allouche.
Hamzy then advises you:
“He’s a liar, hey? Go and bang the house, go and clean up the house.”
You ask:
“Spray the house?”
And Hamzy responds:
“Yeah go and empty everything on the house. Stay inside the car and fucking do it and then burn the car.”
(h)At 7.45 pm on 25 May 2008, Hamzy rang you. He was upset because he had been trying to call you all day. You said that you had lost your phone and gave Hamzy the number of Klink if he could not get through to you. At that time, you told Hamzy:
“I fucked up their mother for you yesterday. Not all of us because just mine was full. But they all let off a bit. I fucked up their mother.”
5 Your plea of guilty to both offences occurred shortly prior to the commencement of your trial.
6 Your counsel accepted that on 25 January 2008 (prior to the subject offending) you had been placed on a 12 month bond at the Parramatta Local Court, New South Wales, for possessing implements to enter and drive a conveyance.
7 Your counsel, in support of your plea in mitigation, tendered the following documents:
(a)Reports of occupational and musculo-skeletal medicine consultant Dr Jim Kafiris, dated 29 January 2015 and 18 February 2015 (Exhibit A);
(b)Report of consultant in occupational medicine Dr John F Davis, dated 30 January 2015 (Exhibit B);
(c)Report of radiologist Dr Brian Lam, in respect of a CT scan undertaken of the thoracic, lumbar and sacrococcygeal, on 12 January 2015 (Exhibit C);
(d)Report of radiologist Dr Tej Dugal, in respect of an x‑ray of the right femur and right hip undertaken on 16 February 2015 (Exhibit D);
(e)X‑ray report of the right femur and right hip undertaken on 16 February 2015 (Exhibit D);
(f)CT scan undertaken on 12 January 2015 (Exhibit E);
(g)Discharge report from the Liverpool Hospital dated 5 November 2013 (Exhibit F);
(h)Report of psychologist Mr A D Diment, dated 12 January 2015 (Exhibit G);
(i)Admission notes of the Westmead Hospital in respect of an admission on 6 April 2012 (Exhibit H);
(j)Report of consultant psychiatrist Dr Olav Nielssen, dated 18 February 2015, together with CV (Exhibit I).
8 Based on some of the materials tendered and the submissions made by your counsel, I set out the following details in respect to your personal circumstances, your educational and vocational background.
9 You were born in Australia and were the youngest of five children. Your father owned a fruit shop and your mother helped in the family business. One of your brothers runs a family restaurant in Auburn, New South Wales.
10 You were brought up in the Auburn area of New South Wales and attended secondary school to the end of Year 10 and considered yourself a reasonable student.
11 When attending school, you worked in the family shop, and on leaving school you took a more active role and accompanied your father to the produce markets. You have also worked as an electrician, doing some coursework at TAFE but mostly learning on the job, have also assisted a friend who was a builder and also worked in the family restaurant business. Save for various injuries that you have suffered, you have always worked.
12
You have been in one long-term relationship with a woman of Italian heritage, but have never been married and have no children. You have always had an interest in sport, especially running and cycling, and were involved with
dirt-bike riding and jet-skiing prior to you suffering injuries described below.
13 You told the psychiatrist Dr Nielssen that you commenced smoking cannabis around the age of seventeen and reported daily use of the drug at the age of twenty-two or twenty-three. You have not had any cannabis for several years. You also informed Dr Nielssen that you had been using methamphetamine for a period of several months around the time of the offending, but this has long since ceased. I should also add that you informed Mr Diment that in your early twenties you also used cocaine for a period of time. You assert that from about 2012, you have stopped using any type of drugs and have been drug-free for a “long time”.
14 In particular, you had enjoyed good health until the occurrence of the following events:
(a)On 6 April 2012, you sustained three shotgun wounds to your right calf, causing you to be admitted to the Westmead Hospital where you remained until 10 April 2012. You described to Mr Diment that there is still a bullet lodged in the upper calf below your knee and two shots went through the back of your thigh. You also described that there is not much damage there, but sometimes the muscles cramp up and you cannot walk as quickly as before the shooting.
(b)In late October 2013, you were in a garage with your cousin and three others when “two men wearing balaclavas came in and shot [your cousin] in the head a few times”, and you were shot in the legs and stomach. You were admitted to the Liverpool Hospital and underwent surgery on 29 October 2013. You suffered a fracture of your right femur as a result of this incident, and there is now a rod inserted, causing your right leg to be more painful at night. Your cousin was killed as a result of the attack and since then you have experienced “bad dreams where I’m being chased or shot at”. Furthermore, you have often woken up screaming and reported instances of chest tightening, palpitations and needing “to get fresh air”.
(c)On 25 October 2014, you were a pillion passenger on a motorbike involved in an accident, causing you to be admitted to the Westmead Hospital, where you have undergone surgery on three occasions for fractures to your left hand, right hip and your spine.
I refer to the report of your treating GP Dr Jim Kafiris, wherein he states:
“Omar presented with paraparesis post motorbike MBA due to a traumatic T12 vertebral body burst fracture with spinal cord injury in October 2014. He underwent surgery undergoing debridement of the fractured bone and insertion of extensive hardware consisting of stabilising screws and plates as well as stabilising pedicle rods extending two levels above and below the fracture. He was partially paralysed in both legs, was unable to walk, had little feeling from the waist down and was unable to pass urine. He was catheterised. Once he was able to pass urine, he was sent home. He was seen in the neurosurgeon clinic in December by the neurosurgical registrar. He was told to start mobilising with a single crutch.
Since then, he has deteriorated with worsening urinary and faecal incontinence, saddle anaesthesia, impotence, intermittent paraparesis and worsening numbness from the waist down. CT scan revealed 7 mm bony retropulsion with moderate spinal canal stenosis. No bony union and likely ABN of the vertebral body.
This is a 60 per cent collapse. Translated, this means that there was again, bony fragment in the spinal canal. There was moderate narrowing of the spinal canal and there has been absolutely no union or healing of the original spinal fracture with further collapse in the vertebral body.
All these are very serious. The risks are further deterioration, becoming wheelchair-bound long-term and requiring to
self-catheterise. Essentially becoming highly dependent and disabled, relying on support systems long-term.”In a later report, Dr Kafiris notes that a recent CT scan revealed there had been no healing or union of the multiple fracture fragments in the vertebral fracture. He notes there appears to be new bone that has been forced into the spinal canal again with cord compression. In particular, he notes that your paraparesis has again deteriorated and you are incontinent of faeces and urine up to twenty times per day. At that time you required around-the-clock care by your carers and were able to step out of your wheelchair and walk around for short periods.
Importantly, Dr Kafiris notes the factors which may aggravate your spine, cause further vertebral collapse and convert your legs from a paraparesis into a paraplegia, potentially requiring full-time wheelchair, bladder catheterisation and bowel hygiene include prolonged sitting, bending forward, being pushed over and suffering a fall, being tripped, being punched in the back, being thrown up against a wall, needing to undertake stairs on a frequent basis, carrying five kilograms or more and sudden movements such as standing up too quickly and standing from a lying position too quickly.
In his report, Dr John Davis stated:
“As a result of involvement in a motor traffic accident whilst a pillion passenger on a motorbike on 25 October 2014 Mr Ajaj suffers significant multiple trauma including a burst fracture of the body of T12. There were also fractures on the basis of his second and third left metacarpals and multiple contusions and abrasions.
The injury, per se, is certainly consistent with the mechanism of being thrown from a motorbike and treatment of the burst fracture with pedicle rods and screws is medically indicated due to the unstable nature of the fracture.
His recent CT scan also raised the possibility of an avascular necrosis at the fracture site which would likely result in an increasing degree of pain, impairment and disability, when he already suffers a significant level as a result of the fracture.
The intra-articular nature of the second and third left metacarpal base fragments will result in an onset of traumatic arthritic degenerative change and increasing difficulties and functional impairment relating to his left hand.
There is also a minor fracture of his greater trochanter and proximal phalanx of the great toe although these have not resulted in any significant ongoing difficulties.
As a result of the accident Mr Ajaj requires a quite significant number of restrictions to avoid aggravation of his symptoms. He will never be suitable to undertake work involving heavy lifting and carrying repeatedly greater than seven kilograms, repetitive or sustained flexion or semi-flexion, forceful activities with his left hand, working in confined or awkward spaces, undertaking extended periods of travel, performing activities which dictate a static load in his back.
It is also essential that he avoid trauma to the back and in this regard he must be eternally vigilant and avoid situations where potential for such exists.
He has a documented history of suffering with bladder and bowel dysfunction and reports continuing difficulties in these areas, albeit there has been some improvement. Further investigations and assessment by an appropriately qualified specialist should be sought in that regard, as to his progress.”
15 Your counsel advised the court that your current medications is Endone (an opioid analgesic), 200 milligrams of Tramal (analgesic), 40 milligrams of OxyContin (a narcotic pain relief) and 600 milligrams daily of gabapentin (for neuropathic pain relief).
16 After performing various testing, Mr Diment came to the view that you are in the borderline to low average range for intelligence, and with what was assessed to be your IQ it was likely that you had been influenced by other associates when you were young. Mr Diment was of the view that you had a full post-traumatic stress disorder (as a result of the two shootings) and were also suffering from major depression (as a result of the motorbike accident). Both these conditions need clinical psychological monitoring and treatment and also you need monitoring for pain management. Mr Diment was of the opinion that you are at a high risk for self-harm, due to being impotent, incontinent and the effects of your recent injuries, combined with damage from your earlier gunshot wounds.
17 When seen by the psychiatrist Dr Olav Nielssen on 13 February 2015, you were also diagnosed to be suffering from post-traumatic stress disorder (which he attributed to the circumstances when you were shot and where occurred the fatal shooting of your cousin in late 2013) and a depressive illness (which he attributes largely to the consequences of your motorbike accident). In relation to the subject offending, you informed Dr Nielssen that you had “Changed in heaps of ways” since that time. In particular, you informed Dr Nielssen that the offending was committed at the behest of your cousin, Bassam Hamzy, in order to recover moneys owed to Hamzy. In particular, you told Dr Nielssen:
“We went down there. It didn’t work out like we planned. When we went there it was a whole different thing. My cousin is just a scary bloke man. If you don’t do what he says he can send anyone to you. He sent someone to shoot his own brother. I thought what could he do to me".
18 Dr Nielssen states in particular:
“Notwithstanding the seriousness of Mr Ajaj’s 2008 offence, I believe he is now medically unfit for imprisonment because of his dire physical condition. He has limitation on his movements, reports severe chronic pain that was consistent with the extent of his neurological injuries, is incontinent of both faeces and urine, and requires assistance in basic care, including washing and dressing. His condition requires a standard of personal care that cannot be provided in prison, even in Victorian prisons, which are generally regarded as being among the best in Australia. From my experience working in prison medical services, he is unlikely to have access to adequate or ‘as required’ pain relief or any sedative medication apart from anti-psychotics. I do not agree with the finding of Dr Davies that Mr Ajaj had achieved maximal medical improvement, as he is likely to improve in his mobility and pain management over several years. However, I do concur with his recommendation that Mr Ajaj avoid excessive movement, confined spaces and further injury. There is a real risk of further injury to a physically vulnerable person. He is so publically linked to such a
high-profile offender as Bassam Hamzy, that even a relatively minor assault resulting in a fall could cause further serious neurological injury, including paraplegia.The experience of imprisonment is also likely to result in an exacerbation of symptoms of both depression and post-traumatic stress disorder, because of an increase in pain that is likely to follow from the confinement and reduced access to medical treatment, and the understandable anxiety associated with the treatment of further assault and further spinal injury.
In my opinion, Mr Ajaj has a low risk of further offences, mainly because of the extent of his physical limitations, but also because he has relatively little in the way of criminal history, and he did not report an especially severe history of substance abuse, which are the other main predictors of further offending. His experience of being shot and seeing his cousin killed appears to have left him with an aversion to violence. His personal circumstances have changed since the offence, which took place when he was twenty years old and he enjoys the close support of his industrious immediate family.”
19 Your counsel submitted that the following matters should be taken into account by way of mitigation in the consideration of your sentence:
(a)You were nineteen years of age at the time of offending (born 17 November 1988) and are now twenty-six years old. In such circumstances, it is submitted that you were a “youthful offender” and that there has been substantial delay between the occurrence of the offences and this date.
(b)Your previous criminal history was not significant, and certainly did not involve any violence.
(c)You pleaded guilty to the offences and are remorseful in relation to such offences.
(d)In relation to the objective seriousness of the offending, it was submitted:
· The offences occurred late at night, with minimal bystanders.
· Five shots only, of the twelve shots fired, were found to have struck the house.
· No projectile entered the front lounge of the house where the two people were situated.
· No proof beyond reasonable doubt that all twelve shots were directed at the house.
· The occupants, George Perhuvin and Rose Graham, were “hardly scared”, and George Perhuvin did not get off the lounge, and Rose Graham went to the kitchen to have a look.
· No one suffered any actual injury.
(e)Based on the report from Dr Nielssen you have a low risk of reoffending because of your now physical limitations, little in the way of criminal history, and no severe history of drug use, and the experience of being shot and your cousin killed has left you with an aversion to violence.
(f)Any sentence of imprisonment would weigh more heavily upon you than someone without the physical injuries that you suffer (in particular the injuries as a result of the motorbike accident) or the psychiatric illnesses of depression and post-traumatic stress disorder. In particular, it is submitted that your spinal injuries suffered as a result of the motorbike accident could not be appropriately treated in prison, and would place you at far greater risk of further spinal injury, which has the potential to result in paraplegia. In this respect, general deterrence and punishment should be given less weight because of such mental and physical condition.
20 Your counsel submitted that the sentences in relation to each offence should be served concurrently and any period of imprisonment should be wholly suspended pursuant to the then s.27 of the Sentencing Act 1991. Further, it was submitted that, consistent with the principles of parity, the sentences given to H. Ajaj and Klink (each received a sentence of 3 years imprisonment of which 2 years was suspended) have no relevance, because:
(a)Both H. Ajaj and Klink were convicted of two charges of the more serious offence of recklessly engaging in conduct, namely discharging a firearm at a residential dwelling that placed Rose Graham (Charge 1) and George Perhuvin (Charge 2) in danger of death. Such offences are contrary to s.22 of the Crimes Act and carry a maximum penalty of ten years’ imprisonment.
(b)H. Ajaj and Klink pleaded not guilty and stood their trial, after which a jury found each of them guilty of the respective charges.
As the presiding Judge in that trial, I should also note that the sentencing of H. Ajaj and Klink proceeded on the basis that it was unable to be said that either one of them actually shot at the premises, as there were only two guns used and several people at the site. In the circumstances of this matter, it is agreed that you were one of the shooters on the night in question.
21 Your counsel also referred to the sentence imposed on Allouche, who did plead guilty to similar offences to you. Allouche was convicted and sentenced to 12 months’ imprisonment, wholly suspended for a supervision period of 12 months. Again, as the sentencing Judge of Allouche, I note that he was sentenced on the basis that he was part of the joint criminal enterprise to use firearms and shoot at the house as an act of intimidation and persuasion for the collecting of drug debts which were owed to Allouche and in turn to Hamzy. Allouche had obtained firearms for the use of you, H. Ajaj, and Klink. He also provided the address of 4 Picola Court, Meadow Heights, and other details, to allow the other parties to the agreement to attend that property. Furthermore, Allouche had a history of drug use, although, as I found at the time of sentencing, had put such drug use well behind him.
22 It was submitted by your counsel that you were “below” Allouche. In such circumstances, it was submitted, any sentence should be no more than the sentence imposed upon Allouche.
23 In response, counsel for the prosecution submitted that:
(a)There has been a substantial delay in the prosecution of the case.
(b)Although you have pleaded guilty, such plea was very late, and there is no evidence of remorse.
(c)In the scheme of things, you played a greater role than H. Ajaj and Klink, and more on the level of Allouche. In this respect, it was highlighted that Hamzy contacted you in Sydney and you arranged the gathering of H. Ajaj and Klink, and arranged for transport to Melbourne and hotel accommodation. Furthermore, you were the point of contact with Allouche in Melbourne and were directly involved in the shooting.
(d)Although there is sufficient material before the court to prove that you suffer injuries to your spine, the extent of disability is challenged, and in this respect reference was made to a statement of Detective Senior Constable Adam Hunt made on 18 February 2015 (Exhibit K). In that document it is noted that you have been charged with “discharge firearm with intent causing grievous bodily harm” in relation to a shooting on 8 October 2012. That matter is still before the court in New South Wales, and you have been placed on bail conditions. Detective Senior Constable Hunt being aware of your motorcycle accident on 25 October 2014, had cause to check on your state of health and in particular your ability to drive and attend various places. Such observations are described as “potentially in conflict with information” that you have provided to the New South Wales court about the extent of your injury. Most of these observations involve you driving a motor vehicle, and on occasion coming from your brother’s restaurant where you had performed some work. In response, your counsel submitted that it has never been asserted that you could not drive a car at all (as obviously you had to get to a police station and report daily), and that you were not always in a wheelchair or bedridden.
24 On the basis of all the material, it was the submission of the prosecution that you should be sentenced to an immediate term of imprisonment.
Conclusion
25 Any crime which involves the use of guns in the community must be strongly denunciated. In particular, the community will not tolerate and should be protected against, so-called “drive-by shootings”. The subject offence is a flagrant example of the illegal use of firearms to intimidate people who are otherwise doing no more than relaxing in the lounge room of their private residence. In this respect, it is agreed that you were one of the “shooters” at the premises at the time of the offending.
26 I consider that the relevant sentencing considerations for this crime include a combination of just punishment, deterrence – that is, deterrence to you personally as well as to others who might be minded or tempted to act as you did on this night, denunciation by the court of this type of conduct, and the protection of the community from such offending.
27 I have also come to the view that your role in the joint criminal enterprise was a greater one than that played by H. Ajaj and Klink. As has been pointed out by counsel for the prosecution, you were the person contacted by Hamzy to arrange for people to attend Melbourne to help collect the drugs debts. Furthermore, you made arrangements for the travel to Melbourne and accommodation, and communicated with Allouche, from whom you obtained guns and ammunition.
28 I consider the following matters relevant as mitigating circumstances:
(a)Given your age at the time of this offending, you should be viewed as a “youthful offender” for the purposes of sentencing, and the principles expanded in R v Mills [1998] 4 VR 235 and Azzopardi v R [2011] VSCA 372 have application. In particular, I refer to the judgment of Redlich JA in Azzopardi, and in particular paragraph [34] where he states:
“There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.”
Seemingly there was little financial reward for your actions. Clearly enough, you were acting at the behest of the criminal Bassam Hamzy, and I do accept that both fear to a large extent and familial ties to a lesser extent, motivated you to act in the way you did. I consider that with greater maturity you may well be more circumspect in future actions you undertake. Prior to the offending you had been placed on a bond in relation to relatively minor matters. Since the offending you have never served any periods of imprisonment.
(b)You pleaded guilty to these offences – albeit such pleas of guilty were very late in the piece and shortly prior to the commencement of your trial. Notwithstanding the late plea of guilty, such plea has had a utilitarian value to the community by saving the time and expense of a trial. Although your counsel submitted the plea is some evidence of remorse (consistent with authority), I have come to the view that there are few other signs of such remorse and I give little weight to remorse demonstrated by you.
(c)I also consider the period of delay from the commission of the offences to this date is lengthy. It is unclear why this has occurred, save to say I accept that such delay was not brought about by any action on your part. I refer to Arthars v R; Plater v R [2013] VSCA 258, where the Court of Appeal set out the basis of the justification for taking delay into account as a mitigating factor. In essence, the two considerations are of rehabilitation and fairness.
The Court of Appeal referred to the comments of Chernov JA in
R v Cockerell[2001] 126 ACR 444, which was subsequently affirmed in R v Tiburcy [2006] 166 ACR 291. Chernov JA states:
“First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her.”
I consider that there are some signs of rehabilitation, in that it would appear reasonably clear that you have not taken drugs for a number of years now and have had lengthy periods of work when not injured. I do note the outstanding matter in New South Wales, but of course that matter has still to be dealt with. I do consider it relevant as a matter of fairness that this offence has been hanging over your head for some time, leaving you in a state of suspense as to what will happen to you.
(d)I consider that you have suffered significant spinal injuries (with other injuries) as a result of the motorbike accident in October 2014. After consideration of all the medical material and indeed, the report of Detective Senior Constable Hunt, I accept that the spinal injuries have affected many of the activities of your daily living. In particular, such injuries cause pain which requires a large amount of medication, gives rise to frequent incontinence, and in particular, give rise to a dramatically increased vulnerability of your spinal condition becoming dramatically worse (paraplegia) through a whole range of activity.
I refer to the well-known decision of R v Smith [1987] 27 ACR 315 where Chief Justice King, when referring to the risk of imprisonment gravely affecting an offender’s existing state of health, noted:
“Generally speaking, ill health will be a factor tending to mitigate punishment only when it appears that imprisonment would be a greater burden on the offender by reason of his state of health or where there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.”
In the circumstances of this matter, I consider that imprisonment will be a greater burden on you by reason of your spinal injury, and more particularly there is a serious risk of imprisonment having a gravely adverse effect on your health as a result of your back being aggravated by an assault or being pushed or struck on the back.
(e)In a similar but lesser way, I consider that imprisonment will be a greater burden for you by reason of your psychiatric illnesses; depression and post-traumatic stress disorder. In this respect I refer to the so-called Principle 5 set out in R v Verdins [2007] 16 VR 269 in that such conditions may mean that a prison sentence will weigh more heavily on you than it would on a person in normal health. Furthermore, consistent with Principle 4 of the same case, I consider that the issue of specific deterrence should be moderated as a sentencing condition, given the existence of such conditions at the date of this sentence.
(f)I am also conscious that in the circumstances of the offending, no one was actually injured and the occupants of the house did not appear to be overly concerned, although this may represent some degree of fear on their part.
29 Obviously enough, the parity principle demands that a sentence imposed reflects differences in the culpability and personal circumstances of co‑offenders and avoids unjustifiable differences in co‑offenders’ sentences. In the circumstances of this proceeding, I make the following comments. Although Klink and H. Ajaj were lower than you in the scheme of things, they both saw fit to plead not guilty and were ultimately found guilty by a jury of the more serious offences of recklessly causing placing the occupants in danger of death, such charge carrying a maximum penalty of ten years’ imprisonment. In distinction, you have pleaded guilty to the lesser charge of reckless conduct placing the occupants in danger of serious injury, which carries a maximum penalty of five years’ imprisonment. However as I have stated, whereas there could not be a finding that either H. Ajaj or Klink were an actual shooter, it is common ground that you were a shooter at the time of the offending.
30 Furthermore, although I consider your role similar to the one played by Allouche, the circumstances of Allouche were that he had demonstrated a dramatic effect to rehabilitate himself from the time of the alleged offences. Notwithstanding the outstanding matter that you have in New South Wales, I do consider that you have shown signs of maturing and have moderate prospects of full rehabilitation in time. Furthermore, I am conscious of the comments of Dr Nielssen, who considers that you have a low risk of further offending, mainly because of your now physical limitations, but also because of a development of what he describes as an aversion to violence following seeing your cousin killed. Furthermore, Dr Nielssen notes that you enjoy the close support of an industrious immediate family.
31 Given the nature of your offending, your significant physical limitations and the fact that you are domiciled in New South Wales, I do not consider it appropriate for any consideration to be given to a community correction order.
32 Accordingly, taking all these matters into account, I sentence you as follows:
(a)In relation to Charge 1, you are convicted and sentenced to a period of imprisonment of 18 months;
(b)In relation to Charge 2, you are convicted and sentenced to a period of imprisonment of 18 months to be served concurrently with the sentence relating to Charge 1;
(c)The effective sentence of 18 months’ imprisonment is to be wholly suspended, pursuant to the then s27(1) of the Sentencing Act 1991 with an operational period of three years;
(d)Save for your plea of guilty, I declare pursuant to s.6AAA of the Sentencing Act 1991, I would have sentenced you to 24 months’ imprisonment of which 18 months would have been suspended for an operational period of three years.
33 It is necessary that I stress to you that the sentence of 18 months has been wholly suspended. What that means is that over the next 3 years, if you commit any other offence punishable by imprisonment, your suspended sentence of 18 months will be restored and you will have to serve that sentence and indeed any other sentence which you may incur as a result of any other offending.
34 You have set yourself, so you told the doctors and the court, on the road to rehabilitation and seemingly have overcome your drug habit. Hopefully things are reasonably positive for the future, and it is a matter for you to continue on that course. No doubt your solicitor and counsel will give full details of what this order involves.
35 Yes? Anything to add?
36 MS HARRIS: No, Your Honour.
37 MS COATH: No, Your Honour.
38 HIS HONOUR: Yes, Mr Ajaj. It will be explained to you. Well, I think I have explained it already but no doubt, your solicitor and counsel will. Your sentence has been suspended but if you get into trouble in the next three years and that trouble can give rise to you going to prison, it will have the effect that almost certainly you will have to come back and serve the sentence of three years imprisonment for this offence and any imprisonment for the offence which you commit over the next three years. So really you have got a big sword hanging over your head. If you make the wrong move, it will come down and you will be in prison before you can say "Jack Robinson". Do you understand?
39 OFFENDER: Yes, Your Honour.
40 HIS HONOUR: Yes, well it is up to you. Yes, very well. We will adjourn.
41 OFFENDER: Thank you.
42 HIS HONOUR: Yes, adjourn temporarily.
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