Director of Public Prosecutions v Ouieda
[2012] VCC 473
•28 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00484
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED OUIEDA |
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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. Ouieda | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 473 | |
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 | Mr R. van de Weil QC |
HER HONOUR:
1 Mohammed Ouieda, you have pleaded guilty before me to one charge of affray, you have also admitted prior convictions. The facts underlying your offending are as follows:
2 On the evening of 28 November 2009 your friend Ali El Hajje was contacted by one Danny Amarah asking him to come to Amarah's home at 25 Pearson Crescent Coolaroo, which according to the prosecution summary was a house in the densely populated residential area of suburban Coolaroo.
3
Mr El Hajje drove to Mr Amarah's home which is occupied by him, his wife and their three children. On his arrival Mr El Hajje was confronted by about eight people sitting around in Amarah's lounge room, including one Omar Khatab and other friends of Amarah. Amarah told El Hajje to contact his friend,
Wasim El Ashka and get him to come to the house during which time Amarah punched El Hajje to the head, took his watch, car keys and $400 in cash from his wallet. Khatab was given his keys with instructions to search El Hajje's car and whilst doing this some other members of the group started punching
El Hajje. El Hajje refused to El Ashka at this time.
4 In his statement to police El Hajje said he was told his friend, El Ashka, owed money to someone in the group but according to the statement of Mr Khatab who later co-operated with police and in particular according to answers he gave at the committal hearing, the kidnapping of El Hajje on this evening was also because El Hajje had apparently made some sort of sexual advances or comments to Amarah's wife which were considered offensive. Amarah was therefore seeking to extract money as some sort of honour payment in respect of this insult.
5
In any event after El Hajje's refusal to make the contact demanded by Amarah some of the inside group left the house and returned with three rifles which were shown to El Hajje together with the fact that they were loaded and two other group members brandished knives. Amarah then used El Hajje's mobile phone to call El Ashka, the phone being put on loud speaker at which time
El Hajje told El Ashka to come to Amarah's house.
6 After further threats to El Hajje the second call was made by him and he was told El Ashka was on his way over with two others. El Hajje was then further assaulted and additional calls were made to El Ashka to ascertain his whereabouts.
7 Sometime after there was a knock at the front door which was answered by Amarah who opened the door but not the security screen and someone outside told Amarah in English to let El Hajje out of the house. Amarah slammed the front door shut, shots were fired and from others inside the house at those outside.
8 An exchange of fire followed in which at least seven shots were fired from outside the house. Ballistic analysis confirmed at least seven shots were fired into the house from at least three different calibre handguns. At this time there were at least 11 people inside the house, including three children. A bullet penetrated the wooden frame of a cot in a child's bedroom and a man inside the house, Bazim Slieman suffered a bullet wound to his buttocks. Police and an ambulance ultimately attended.
9 It transpired that at about ten o'clock that evening three cars had arrived at the scene, one of those a black Hummer owned by you, Mr Ouieda containing four men, yourself and the three co-accused who appeared on this plea, that is Fadi Haddara, Nasir Kheir and his brother, Mahmoud Kheir. You, Nasir Kheir and Mahmoud Kheir were shot in the exchange of fire and the four of you then drove in the Hummer to the Northern Hospital in Epping. There you were arrested by police.
10 The occupants of the two other vehicles which attended the shooting have not been identified by police. You received your gunshot wound to your abdomen and left upper buttock. Nazir Kheir received a serious gunshot wound to his left knee which required extensive medical treatment and Mahmoud Kheir was treated for a superficial gunshot wound to his left leg. Fadi Haddara did not receive any injuries.
11 It is the prosecution case that you cannot be identified as one of the persons who arrived in the vehicles armed with firearms and who then fired the shots into the house, nor can it be said you were aware that the firearms were either taken or were used. It is said that you were part of a group that attended the premises knowing El Hajje was being held captive. The big group was intent on obtaining his release and you knew force maybe required to secure that release.
12 Obviously this is a serious incident involving a gun battle in a residential area, causing, what was termed in the prosecution opening as a significant interest and concern in the community, including neighbours, and amongst specific ethnic groups affiliated to the victims and yourself.
13 I now turn to your personal circumstances. You are 36 years old and came to Australia with your family from Lebanon when you were 11. You told forensic psychologist, David Ball, whose report dated 21 March 2012 was tended on the plea, that you are the youngest of four siblings, having two older brothers and an older sister. Your father was an accountant in Lebanon whose qualifications were not recognised in Australia and he then became a sales representative. Your mother had the occupation of home duties.
14
You told Mr Ball you came from a cohesive and supportive family and had a happy childhood, although you experienced poverty and exposure to violence during the Lebanese Civil War. Your counsel told the court that in instructions to him you described yourself in general terms as a very difficult child who did not fit into school and got into fights. Eventually you completed year 12 at Box Forest Secondary School but received poor marks, describing yourself to
Mr Ball as a poor student who struggled with English and mathematics.
15 By your late teens, despite your Muslim background, you were experimenting with alcohol which is forbidden by the Islamic religion and engaged in drug use with marijuana and cocaine. You left home when you were 18 and married for the first time.
16 According to Mr Ball you have been married four times, these marriages lasting three to four years. You met your current wife, Zena, in 2005 and have with her a four year-old daughter. You describe that marriage to Mr Ball as intact and mutually supportive.
17 You have what appears to be a productive work history beginning as a labourer on leaving school, then going into the butchery trade, ultimately owning a Halal butchery business. Over the years you have run a number of businesses including a Lebanese restaurant, a fresh chicken shop, a fruit and vegetable store and a car wash business. You told Mr Ball you have also worked as a sales person and as a personal assistant to a CEO.
18 Along the way, however, you have offended on a regular basis. You have a long prior criminal history commencing in 1995 when you received suspended sentences for theft of a motor car, theft and attempting to commit an indictable offence.
19 You were fined in 1995 for behaving in a riotous manner in a public place and in September 1995 received a suspended sentence in the Melbourne County Court on charges of armed robbery and intentionally or recklessly causing injury. In November 1995 you again received a suspended sentence for theft of a motor vehicle, attempting to obtain financial advantage by deception and criminal damage by fire.
20 In 1997 you were fined on a charge of theft of a motor vehicle, in 1998 you were sentenced to nine months imprisonment with three months of that sentence suspended for a charge of obtaining property by deception.
21 In 1998, you were sentenced to 9 months imprisonment with three months of that sentence suspended for a charge of obtaining property by deception. In 2000, you were fined for possessing Ecstasy and later that year received a suspended sentence for robbery. In 2001, you received one month's imprisonment for being unlawfully on premises and for criminal damage, and the suspended sentence you received for robbery was breached and that sentence restored. On Appeal, those sentences were all suspended.
22 In 2003, you received a two year gaol sentence on charges of obtaining property by deception and obtaining financial advantage by deception from the Melbourne County Court. In 2005, you received a one month suspended sentence for driving whilst authorisation was suspended and a 12 month suspended sentence from the County Court for handling stolen good. On December 1, 2005, the County Court imposed a two year suspended sentence for a charge of recklessly causing serious injury.
23 Whilst acknowledging the extensive and serious nature of your prior criminal history, your counsel submitted that that offending was mostly a less serious example of those types of offending. For example, he said the armed robbery and associated charge for which you were placed on a suspended sentence in 1995, comprised an incident where you received $800 allegedly "ripped off" from a friend by holding that person up, armed with a toy pistol and then assaulting him. The charges of obtaining property by deception and obtaining financial advantage by deception, which attracted the two year sentence in the County Court in 2003, involved you obtaining money from a bank via false particulars provided to the bank in a loan application. A charge of handling stolen goods in 2005 related to your purchase of a yacht, which had been stolen from Paynesville and the charge of recklessly causing serious injury for which you were dealt with by the County Court in 2005, arose from an incident where you apprehended a man stealing mail from a former girlfriend's house, giving to chase to him and ultimately seriously assaulting him. You told Mr Ball that you offended in the context of association with negative peers, saying to him:
"As a young adult I managed to get involved with older people of Lebanese descent and was easily manipulated into doing things which caused me to end up in gaol for stupid actions."
24 Your counsel described you as a person of flamboyant disposition, who sailed your dishonestly-obtained yacht into the harbour and drove around in a Hummer vehicle which was, in fact, used on the occasion of the affray before this court. Your counsel described in some detail, your involvement in the affray, as did you with your interview with Mr Ball. Returning briefly to the prosecution summary, an analysis of telephone records showed that on the evening in question, El Hajje contacted you and aother person, Bilal Radwan, who also attended at the scene.
25 You told Mr Ball you were contacted in order to assist in the release of El Hajje whom you understood to be held captive at the Coolaroo address following a sexual indiscretion between El Hajje and Amara's wife. You told Mr Ball that:
"It was said to us that Mr El Hajje was trying to pick up Mr Amara's wife and as a result, he was being held." Traditionally, a final release is negotiated between families and release of the captive is secured using elders of the community and dishonouring details of Mr El Hajje are kept private, so as not to bring shame to both victim and family, and offender and family. We were there to offer compensation and secure release and a non disclosure agreement. "
26 You told Mr Ball that you were viewed as an elder within the Lebanese community, and were called out quite often to address and diffuse situations within that community. Mr Ball said:
"He explained sexual improprieties against another man's wife can be punishable by death and that these 'offences' can be mitigated by the payment of compensation, typically referred to as 'blood money.'"
27 You told Mr Ball you did not call police once you became aware Mr El Hajje was in danger, because you anticipated you could negotiate a compensation payment for his release and this could be done on the basis you believed of a face-saving non-disclosure agreement.
28 Your counsel said you attended in your Hummer, which he described as a very ostentatious car, taking Mr Haddara and Nasir and Mahmoud Kheir with you. He said you were not aware of any firearms being taken to the scene and that it was your intention to negotiate with Mr Amarah for Mr El Hajje's release, and that you were prepared to pay money is that were demanded. He said you were directed to the house by Mr El Ashka, who was riding in one of the other two cars, which eventually attended on the house - they leading the way.
29 Your counsel told the court that on arrival at the house, you drove into the driveway and went to the front door with Mahmoud Kheir, there you knocked on the door, asked if El Hajje was here, and were told he was not, by Amara. At that time, you heard El Hajje calling from inside, the door was then slammed and a side glass door smashed and a firearm discharged from within the house. Nasir Kheir then exited the car and was shot. Mahmoud Kheir was shot, and you were then shot. You helped get Nasir Kheir get into the car and then all four of you went straight to the hospital.
30 Your counsel, Mr Van De Weil referred to the evidence given by Mr Khattab at committal, where he said he knew you, having worked for you at your car wash business, that he knew you helped to mediate between people who were fighting, had done this in the past and that he knew if that you were attending, you were someone he could try to talk to. Your counsel also said you were told at the front door to watch your back, that you turned around and saw that Nasir Kheir was injured, tried to pick him up with Fadi Haddara and in the course of that, was shot in the abdomen and buttock. Your counsel said that you attended the scene as a peace-maker with the intent for the conflict to be resolved, that those in the other vehicle clearly had different ideas and that you pleaded guilty on the basis that you attended this incident, accepting the possibility that violence might occur. It was your counsel's firm submission, however, that you did not go there to make trouble, but went with the intent to try to assist Mr El Hajje.
31 Ultimately, the prosecution conceded that notwithstanding the telephone records revealing a number of calls by you to other persons who ultimately attended the scene, it could not be said you were involved in either the taking of the firearms to the scene or the use of them. On balance I am satisfied that you did attend for the reasons submitted to me by your counsel and outlined by you to Mr Ball, that is, to negotiate Mr El Hajje's release, possibly involving the payment of monies in order to achieve this. Counsel informed me you have known Mr El Hajje for a number of years.
32 Your counsel also told me you were originally charged with a number of serious firearm offences in addition to the matter before this court, which were ultimately withdrawn and were committed on those charges on 23 March 2011, when you were released on bail. Within seven days, you were arrested on charges of trafficking in drugs. Bail was refused on these matters, partly because of the serious firearm offences you were then already charged with.
33 You were initially held at the Melbourne Assessment Prison and were awaiting transfer to the Metropolitan Remand Centre when you were informed by prison authorities that there were security issues relating to you, possibly in the form of death threats made against you, and you were placed for two months in the Melaleuca High Security Unit at Barwon Prison and then in the Acacia High Security Unit where you have remained ever since. This is essentially meant that you have been in custody for 11 months in isolation.
34 Both your counsel and Mr Ball in evidence on the plea, said that you have had no contact with any other prisoners. You are locked in a cell for 21 hours a day and have three hours of isolated exercise outside your cell each day.
35 In his report, Mr Ball told him that you got on well with prison staff, adding that they were "nice people" and he said that prison staff spoke well of you, stating that you were always well behaved. You told Mr Ball you spend your days watching television, using your computer and reading the Koran. You are regularly visited by your wife and four year old daughter, but are permitted only one contact visit a month, your daughter becoming distressed in a box visit.
36 Whilst you are not prescribed any medication and are apparently in good health, it was Mr Ball's view that you are suffering anxiety and depression, such that you satisfy the DSM diagnostic criteria for adjustment disorder with mixed anxiety and depression at a chronic, that is, continuous, level. He said this was directly due to your incarceration in High Security Units. He said that it was his view that your condition had deteriorated over the past 11 months. I note an earlier report from Mr Ball dated 17 June 2011, where you were interviewed by him in relation to an apprehended bail application, and he now believes that you are at risk of developing a more acute depressive disorder if these conditions continue in the longer term. In his report, Mr Ball stated:
"In my view, Mr Ouieda's current accommodation and circumstances are far more onerous than would be the case for the majority of other prisoners. Even as a remand prisoner, his visits are restrictive, he has no contact with other inmates and no access to employment or rehabilitation programmes. Prior to and after his eventual release Mr Ouieda will require extensive rehabilitation and reorientated back into life in the community to ameliorate the effects of many months of solitary confinement."
37 You are contesting the trafficking charges which are set down for hearing in August of this year. Mr Ball also said, both in his report and in his evidence on the plea, that you have spent much time reflecting on your previous actions. In his report, he said you told him:
"I have in the past as a young adult, did spend months in gaol, mainly in minimum and medium security. I had no responsibilities. Today I find myself in solitary confinement and I have a daughter, wife and aging parents who need me to grow up and start acting like a responsible father, husband and son. I have much to make up to them."
38 Your counsel submitted that your plea to the charge of affray is one that is truly indicative of remorse, given that the prosecution case was not a particularly strong one and could well have been resisted by you. He submitted I should take into account that your role in this affray was essentially a minor one, that you attended the premises in order to negotiate and resolve the situation peacefully, that you had no knowledge that firearms had been taken to the scene or were to be used. I note you also told Mr Ball that while you were at the front door and after Mr El Hajje screamed out that he was there, Mr El Ashka who had travelled to the house in another car, appeared, approached from behind, screamed "Let Ali out" and smashed the lounge room window with his hands. It was after this that the door was closed and shooting began from inside the house.
39 Your counsel submitted I should also take into account the injuries that you received as a result of being involved in this incident. They comprise both the gunshot wounds, which your counsel frankly admitted have fully resolved, as well as the emotional trauma amounting to what is termed extra curial punishment, as mitigating any sentence I might impose. I accept that this is an approach which has long been accepted by Superior courts in this State and has application in your case.
40 It was the prosecution's submission that I should deal with your by way of a sentence of imprisonment, at least some of which should comprise time to be actually served. That is, it was apparently conceded I could deal with you by way of a partially suspended sentence. This incident was described by the prosecution as a most serious neighbourhood affray, and that whilst the prosecution could not say you had a weapon or knowledge of any weapons, you went there knowing there may be some forced use and that further, you are a person with a significant criminal history.
41 This case poses a difficult sentencing exercise. On the one hand, of course, this is a most serious affray, involving essentially a gun battle in a residential suburb. On the other hand, I do accept you were called in as a negotiator and that you attended as a negotiator, that is, you hoped to achieve a peaceful end to the conflict. You were not charged in relation to the firearms, either as to the use or your knowledge of their being brought to the scene. You have a long and serious prior criminal history which has, however, in the main, even in relation to cases which have been heard by the County Court, been dealt with by suspended sentences, giving some weight to Mr Van de Weil's submission that in the main, that offending has comprised a less serious example of the charges you face.
42 It is of course, concerning for this court, notwithstanding your ultimate intentions, that you did involve yourself in a civilian endeavour to resolve a serious criminal matter which should have been dealt with by police. I do accept that had you chosen to contest the charges at trial, you had a fair prospect of success in all the circumstances and I do accept your plea as being more than utilitarian and indicative of genuine remorse.
43 I accept that the extra curial punishment you suffered should also have a mitigatory effect upon any sentence I impose. Finally, I accept that you are being held, and have been held for a considerable period in conditions in gaol which are extremely onerous and which are having a direct adverse effect upon your psychological well-being. I accept that those conditions are likely to continue.
44 In my view, these are not merely mitigatory but strong mitigatory factors that I must take into account in sentencing you. Your counsel submitted that indeed, these mitigatory factors are so compelling that I should not impose a sentence containing any immediate custodial servitude.
45 I am troubled by your involvement, as I have said, in so clearly a violent criminal situation, notwithstanding your intention for a peaceful resolution. Undertakings of this kind, which clearly should be dealt with by police, must always be vulnerable to the probability that violence will occur. Civilians taking such matters as this into their own hands, pose a very clear threat to the safety of other innocent persons in the community, and to that extent, it is my view that the principles of general deterrence have such application that I should, in all the circumstances, impose a disposition which requires you to undertake a term of actual imprisonment. On the other hand, the mitigatory factors advanced on your behalf are, in my view, compelling so that the sentence I impose will for the most part be suspended. I have also not mentioned the fact that your plea of guilty has saved the community what I apprehend would have been a long expensive trial involving many witnesses.
46 Stand up please, Mr Ouieda.
47 I therefore sentence you as follows: On the charge of affray, you are sentenced to 18 months imprisonment and I order that 16 months of that sentence be suspended for a period of two years. I declare that two days of that sentence have already been served by way of pre-sentence detention pursuant to s.18 and that a further 58 days have also been served by way of a Renzella pre-sentence detention.
48 MR van de WEIL: As Your Honour pleases.
49 HER HONOUR: Thank you. Pursuant to s. 6AAA had you not pleaded guilty, I would have sentenced you to a term of imprisonment of 10 months.
50 MR van de WEIL: As Your Honour pleases.
51 HER HONOUR: Thank you. Is that everything.
52 MR ROSE: Yes, Your Honour.
53 MR van de WEIL: Yes.
54 HER HONOUR: You are happy that I have phrased that correctly.
55 MR van de WEIL: I believe you have, Your Honour, yes.
56 MR ROSE: So do I.
57 HER HONOUR: Thank you very much.
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