Director of Public Prosecutions v Preston
[2015] VSC 402
•11 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0204
S CR 2013 0230
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GAVIN PRESTON INDICTMENT D 10696692.4 & D 10696692.5 |
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JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 June 2015 |
DATE OF SENTENCE: | 11 August 2015 |
CASE MAY BE CITED AS: | DPP v Preston |
MEDIUM NEUTRAL CITATION: | [2015] VSC 402 |
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CRIMINAL LAW — Sentences — Defensive homicide contrary to s 9AD Crimes Act 1958 (Vic) and recklessly causing serious injury (RCSI) contrary to s 17 Crimes Act 1958 (Vic) — Accused initially tried for murder before pleading guilty to defensive homicide and separate charge of RCSI — Parity with sentence imposed on co-offender for RCSI — Nature and gravity of offending — Factual premise for guilty plea to defensive homicide markedly different from initial murder charge — Sentencing judge’s duty to form view of the facts — Status of agreed statement of facts — Some prospects for rehabilitation — Conditions of protective custody — Crimes committed whilst on bail — Totality and concurrency.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M J Rochford QC with Ms K Argiropoulos | Office of Public Prosecutions Victoria |
| For the Accused | Mr C Dane QC with Ms A J Beech | C D Traill Lawyers |
HIS HONOUR:
Introduction
Gavin Preston, on 29 May 2015 you pleaded guilty to two crimes. The first in time is for recklessly causing serious injury to To-Lam Duong at Sunshine North on 30 January 2012. The second is defensive homicide for the killing of Adam Khoury at North Melbourne on 11 February 2012.
You were first charged on the one indictment for the offence of intentionally causing serious injury to Duong, along with some other charges, and for the murder of Adam Khoury. On 6 February 2015 I ordered that the count of murder be tried separately from the counts relating to the injury to Duong.[1] After nine days of your trial for the murder of Adam Khoury the Crown filed over fresh indictments containing the counts to which you have now pleaded guilty.
[1]DPP v Preston (Ruling No 2) [2015] VSC 396.
Despite my order severing the trials of the counts relating to the injury of Duong from that relating to the death of Khoury, there is no dispute that the two incidents share certain links. The injury to Duong forms part of the contextual background to the killing of Khoury. Indeed, your counsel have relied upon that common contextual foundation to argue that the sentences that I impose for the two offences should have a substantial degree of concurrency to reflect the overlapping criminality between the two incidents. I will turn to that shortly.
The maximum penalty for the crime of recklessly causing serious injury[2] is 15 years’ imprisonment. Your co-offender, Goitione Hailu, entered an early guilty plea to the same charge and was sentenced in the County Court on 4 September 2012. Hailu was sentenced to a term of imprisonment of 3 years and 10 months with a non-parole period of 2 years and 4 months. In sentencing Hailu, Judge Gullaci declared[3] that, but for the plea of guilty, he would have sentenced Hailu to 5 years’ imprisonment with a non-parole period of 3½ years. It will be necessary for me to have regard to that sentence on the principles of parity when imposing a sentence on you in respect of the same crime.
[2]Contrary to s 17 of the Crimes Act 1958 (Vic) (‘Crimes Act’).
[3]Section 6AAA of the Sentencing Act 1991 (Vic) (‘Sentencing Act’).
The maximum penalty for defensive homicide[4] is 20 years’ imprisonment.
[4]Contrary to s 9AD of the Crimes Act.
I am obliged by law to take into account those maximum penalties. In addition, I must consider the nature and gravity of your offences (including your culpability and degree of responsibility); the impact upon your victims, including any injury that results; your plea, and the time any guilty plea was made; your previous character; and current sentencing practices.
The principal arguments that your counsel have urged in your favour are these:
(a) First, so far as the killing of Khoury is concerned, the gravity of that offence is to be viewed in the context that you attended his North Melbourne premises unarmed, the offence was spontaneous and provoked against a background of threats made against you;
(b) Secondly, you are not addicted to drugs nor do you suffer mental illness, and notwithstanding a significant history of relevant offending, you have sound prospects of rehabilitation in the light of progress you had made in the period of six years leading up to this offending;
(c) Thirdly, although your pleas of guilty were made late, nonetheless they were made at the first opportunity available to plead to the particular crimes you have now admitted, and should at least be accorded mitigatory value because of their utilitarian effect; and
(d) Fourthly, because you have been held and are likely to continue to be held in particularly onerous protective custody, your term should be discounted.
I will deal with each of these issues as I consider the other matters I have identified.
General background
Khoury, the deceased, was a heavy drug trafficker. Hailu had, until January 2012, worked closely with Khoury selling drugs and finding new customers. One new customer introduced by Hailu to Khoury was Duong, the victim of the first incident.
Hailu and Khoury had a falling out. Khoury began supplying drugs directly through Duong rather than Hailu. Hailu then complained that a particular batch of methamphetamine, purchased for approximately $2,500 through Duong but emanating from Khoury, was of low quality.
You had associations with both Hailu and Khoury. It seems that your associations with each of them lay within a context of a wider network of criminal alliances that I need not attempt to detail here. It is enough to say that the various interrelationships within that wider network were characterised by degrees of suspicion and shifting allegiances.
Duong shooting
In late January 2012 Hailu enlisted you to assist recovering the $2,500 he had paid for the methamphetamine. Apparently you were promised half of any money recovered. The two of you attempted unsuccessfully to contact Khoury. It appears that Khoury was evading you. Eventually you turned your attention to Duong. You and Hailu paid him a late night visit at his garage residence in Sunshine, each armed with hand guns. Duong was inside the garage with another male who was playing computer games. You directed Duong to sit on the couch while Hailu began menacing the other male with a gun saying to you, ‘let’s shoot this guy’. The other male said something indicating he thought the gun was a fake at which point Hailu responded by firing the gun at the floor next to the other male’s legs.
There was a large bag of methamphetamine on the floor. You took it and placed it in your pocket. You then produced a .32 calibre handgun and pointed it at Duong and demanded money. Duong said he did not have any money and invited you to search him. After performing a pat down search of Duong you aimed the gun at his right upper leg and fired into his thigh. Duong began to cry and again you demanded money. After Duong said again that he had none you aimed the gun again at his right leg and fired.
You and Hailu proceeded to search the garage. After failing to find money you left.
Duong was conveyed to Sunshine Hospital for treatment in the emergency department at 2.00 am on 30 January 2012. He was found to have entry and exit wounds over the lateral aspect of his right elbow, right heel and his left upper thigh, and a one and a half centimetre wound on the right thigh. The gunshot injury to Duong’s right elbow area was not explained—at the committal, Duong maintained that you had only shot him twice.
Two days after the shooting of Duong you again attempted to contact Khoury by telephone but the call went unanswered. The next day, 2 February 2012, Hailu sent a text message to Khoury saying, ‘I like to think I got my money and it’s from you, well I hope it’s from you, LOL’. It was the prosecution case that the shooting of Duong contributed to a growing sense of mistrust between yourself and Khoury. I will return to the broader context of that growing mistrust and your sense of paranoia shortly.
Khoury shooting
On the evening of Friday 10 February 2012 you packed a bag at your home in the suburb of Skye, in Melbourne’s south east, and left in your car to travel to the northern suburbs. There was evidence led in the trial to the effect that, before leaving, you told your former de facto partner, Ms Suzanne Preston, amongst other things, that you were worried Khoury knew too much, that he might be a ‘dog’ and might get you, and something along the lines of ‘I’ve got to get this cunt or he’s going to lag’. I understand that evidence was to be disputed but the trial concluded before Ms Preston was cross-examined.
Your movements that evening were under surveillance by the police. After travelling to several other locations, including Hailu’s residence, you parked your vehicle near Khoury’s apartment at 10.40 pm. Static surveillance cameras at the premises detected you entering the gate leading to the apartment complex at 10.41 pm. At that time, two other men were in the apartment with Khoury: Stephen O’Connor and Greg Hutchinson. Their evidence generally accords with the surveillance film which shows that initially you were not let into the apartment. You returned to the street and called out. Eventually Khoury left the apartment, came onto the street and had a short conversation with you alone, outside. You then returned into the apartment with Khoury.
After Hutchinson and O’Connor left soon before midnight, you were left alone in the apartment with Khoury for approximately an hour. You then left by yourself at 12:54am. It is now not in dispute that you shot and killed Khoury shortly before you left, probably around the time that a neighbour, Mr Popovic, heard a loud scream come from Khoury’s apartment.
Khoury was found dead in his apartment by O’Connor and Hutchinson the following day shortly after 5.30 pm in the afternoon. You were observed by police to drive past the crime scene during that evening, then speed away. You were eventually apprehended and arrested by police in the early hours of Sunday morning.
From pathology evidence it is clear that you shot Khoury three times; one bullet went through his right upper arm into his chest; a second, fired from close range, hit him in the head; and a third, again from close range, was fired into his head while he was on the floor with his head against the carpet. He died of a gunshot wound to the head.
Nature and gravity of the offending, culpability, degree of responsibility
By pleading guilty to the two offences you admit the elements of each charge. So, in relation to the injury to Duong, it is established that you caused serious injury to him, without lawful excuse, and you did so recklessly. That is, you did so foreseeing the probable results of your actions but not caring whether or not those results occurred.[5]
[5]R v Nuri [1990] VR 641, 643.
Similarly, in relation to the killing of Khoury it is established that you caused his death, intending to kill him or really seriously injure him. It is established that you did so believing that it was necessary to kill or really serious injure him to defend yourself against death or really serious injury, but without having reasonable grounds for that belief.
Those are the foundational facts upon which I sentence you. However, beyond those facts there are, of course, other circumstantial facts that may affect my assessment of the gravity of these particular instances of those crimes and of your level of culpability.
For sentencing purposes, the circumstances surrounding the injury caused to Duong are relatively straightforward and do not involve any degree of ambiguity or uncertainty. The circumstances surrounding the killing of Khoury are in a different category. I need to say a little more about them.
A sentencing judge is obliged to form his or her own view of the facts relevant to the sentencing task and is not bound by agreements made between the parties.[6] However, as a matter of practicality, a judge’s capacity to find facts will be affected by any understanding reached between the prosecution and the defence concerning admissions to be made and evidence to be led.[7] Where parties intend to use ‘agreed statements of fact’, the effect of those agreed statements need to be explained to the court with precision.[8] That is particularly the case where, as here, the facts as agreed may appear to depart from the thrust of evidence that has been led in the trial.
[6]GAS v The Queen [2004] 217 CLR 198, 211 [30].
[7]Ibid 211 [31].
[8]R v Bunning [2007] VSCA 205 [6].
Coming to a satisfactory view of the ‘circumstantial’ facts in relation to the killing of Khoury has been complicated by the somewhat unusual course your trial took. A sentencing judge may sentence an offender without any evidence having been given because the offender pleads guilty before any trial occurs. Here the judge forms a view of the facts from depositions, agreed facts and sometimes from evidence led on the plea. Alternatively, a sentencing judge may sentence an offender after a jury has found him or her guilty after a full trial of the facts. Here the judge has the benefit of fully tested evidence.
In your case, the situation is something of a hybrid. As mentioned, you were tried before a jury for nine days on the sole charge of the murder of Khoury before pleading guilty to the lesser charge of defensive homicide together with the charge relating to having injured Duong. The factual premise upon which the guilty plea to defensive homicide has been entered and accepted is markedly different from the factual premise that lay behind the Crown’s initial charge of murder. It is also markedly different from the way in which the Crown opened its case to the jury and at odds with some of the evidence that it led over the nine days.
On the charge of murder the Crown case was that you planned the lethal attack on Khoury: ie. you set up a false alibi; you told your then partner that you had to get Khoury before he lagged; you took gloves with you into the premises before shooting Khoury and, implicitly, you went to the premises armed with your own gun. Prosecution evidence supporting that case was nearly complete at the time the plea was entered.
The factual premise upon which your guilty plea has been entered is that you went, unarmed, to Khoury’s premises to try and arrange a meeting with another criminal who was posing a threat to you; that Khoury was drug affected and misconstrued something you said; that Khoury produced a gun, waving it at you, and you overpowered him, took the gun and shot and killed him believing that doing so was necessary to protect yourself from being killed or really seriously injured by him.
The source of the account upon which the plea has been entered is two-fold. The first is the ‘Summary of Prosecution Opening for Plea Hearing’.[9] The prosecution and defence informed me that the contents of that document constitute an ‘agreed statement of facts’ between the parties. That document draws attention to some sworn evidence given by Stephen O’Connor (in another context) explaining the basis for you to believe that one Christopher Binse was actively attempting to fix an explosive to your car during the weeks or months prior to Khoury’s death. It also suggests that Khoury was cooperating with Binse and, in some respects, assisting him.
[9]Exhibit C on the plea.
The Prosecution Opening says that the parties agreed that you were becoming increasingly concerned and paranoid about Khoury, especially because of the information concerning his association with Binse. It also suggested that, given your knowledge of Khoury’s association with Binse, Khoury may have taken steps to arm himself for self-defence. Corroboration of the likelihood that he had acquired a gun is derived from indications that he may have used a gun to injure Hailu in an earlier drug-related reprisal. Further, the Prosecution Opening drew attention to your former partner’s description of the handgun she had seen in your possession; it was a pistol whereas Khoury was shot with a revolver.
The second and more detailed source for this version of events was what was termed a ‘Can Say’ statement[10] made by you and attached to the Prosecution Opening. This document is said to be ‘not disputed’ by the Crown. It sets out your own description of the events leading up to and occurring at the time Khoury was killed. Apart from describing in a somewhat guarded manner your account of there being a ‘gangster’ who was behind a scheme to kill you, you state that your reason for visiting Khoury late at night on 10 February was, as you put it, to ‘talk to him again to try to get him to arrange a meeting for me with the gangster’.
[10]Exhibit D on the plea.
You describe how the others who were at the apartment that evening left, leaving you alone with Khoury. According to your account, you urged Khoury to set up a meeting with the ‘gangster’ for you, saying to him, ‘organise a meeting before people start dying’. Evidently, Khoury took fright at that comment, produced a revolver which he pointed at you, rambling and accusing you of planning to kill him. On your account, you and he had a scuffle, you got the gun off him and shot him: you said you did so, ‘frantically, as quickly as I could’.
The law is that a sentencing judge may only take into account facts that are adverse to an accused if those facts are established beyond reasonable doubt. On the other hand, if a judge is to take account of facts in favour of an accused, it is enough that they are established on the balance of probabilities.[11] But that does not mean that all disputed issues of fact related to sentencing must be resolved for or against the offender. There may be some issues where the material does not enable a judge to resolve the matter one way or the other.[12]
[11]R v Olbrich (1999) 199 CLR 270, 281 [27].
[12]Weininger v The Queen (2003) 212 CLR 629, 636 [19].
In this case, following the process of questioning and submission between bench and counsel on the plea, I have been persuaded that I should sentence you upon:
(a) the facts as set out in the Prosecution Opening; and
(b) the account given in your ‘Can Say’ statement in so far as it relates how the actual shooting took place in Khoury’s apartment, including the fact that you did not bring a gun to the premises but that it was Khoury who produced the gun.
Indeed, it is only that view of the facts that could provide a plausible factual basis for you being charged with and pleading guilty to defensive homicide.
Taking into account those facts, other details you describe in your ‘Can Say’ statement and evidence that was either lead at trial or foreshadowed in depositions and sworn statements served before trial, I am satisfied on the balance of probabilities that:
(a) in the weeks leading up to 10 February 2012 you were becoming increasingly anxious if not paranoid about the threat to you represented by Christopher Binse and, indirectly, Khoury;
(b) there was a plausible factual basis for you to think that you were at risk from Binse, and that Khoury was implicated in that threat;
(c) your shooting of Duong at the very least exacerbated tensions between yourself and Khoury;
(d) against that background, you attended at Khoury’s apartment on the night of 10 February to have some sort of discussion — whether to resolve the threat or to exacerbate it, I do not know;
(e) you did not take a gun with you;
(f) as a result of whatever it was that you discussed with Khoury, he produced a gun, you wrestled it off him and shot and killed him;
(g) you did so believing that it was necessary to protect yourself from being killed or being really seriously injured although you had no reasonable grounds for that belief.
Duong shooting — gravity
In my view your shooting of Duong, several times, represents a particularly serious example of the crime of recklessly causing serious injury. It must be said that there is little to separate this incident from the more serious crime of intentionally causing serious injury. I would place it at the upper end of the scale of recklessness. It was a callous attack. Duong was unarmed; there was no provocation or threat to you. He was in obvious distress and was completely at your mercy. You fired several times. After the first shot, while he was in agony and terror, you simply shot him again. He owed you nothing. You were doing this purely for money.
It was a disturbingly brutal crime.
Khoury shooting — gravity
Previous cases dealing with the crime of defensive homicide reveal that two prominent aspects of that crime are typically considered to be relevant to assessing its comparative gravity amongst the range of cases of its kind. One is the degree to which your belief in the need to defend yourself was unreasonable. The other is the degree of disproportionality between the perceived threat that you faced and your response to it.[13]
[13]Creamer v The Queen (2012) 221 A Crim R 284, 293 [49]-[50]; R v Copeland [2014] VSC 39 [51]-[54]; DPP v Williams [2014] VSC 304 [29]-[30]; R v Jewell [2011] VSC 483 [20].
It was argued in your favour that I should be satisfied that:
(a) while it was (as your plea of guilty admits) unreasonable for you to believe that it was necessary to defend yourself from Khoury, it was only marginally so — that is, the circumstances only ‘just crossed the line’ into unreasonableness; and
(b) secondly, due to the objective reality of threats to you around this time, and the production of a gun by Khoury just before you killed him, your response to the threat was not as disproportionate as in many other cases.
The prosecutor argued that your killing of Khoury was to be characterised as a serious example of the crime of defensive homicide. That characterisation, however, does not sit well with the factual context which the Crown has agreed I should accept to be an accurate account of what occurred.
In my opinion, the factual context that is presented places your case around the mid-range of seriousness. It did involve the use of a hand gun but not one that you brought to the apartment. Although you fired three shots — the final one when Khoury was probably lying prone on the floor — on the account presented, they were fired rapidly in response to Khoury first directing the gun at you. Further, I accept that you had a genuine foundation for perceiving at that time that you were generally under threat of death or serious injury from people associated with Khoury, although not so much from Khoury himself.
These considerations arguably place your crime toward the low end of the scale of seriousness based upon the principles I have referred to from earlier cases. But, against that, I am sceptical of your account that the incident occurred as ‘frantically’ as you describe. I am also sceptical of your account that you went there with only the intent to arrange a meeting with someone else. I make no specific findings adverse to you as to why you went there or precisely how you went about disarming Khoury and shooting him. But nor do I accept as a fact the more benign explanations that you have given. I bear in mind your capacity for calm and callous brutality demonstrated by the incident only twelve days beforehand.
Victim impact
No evidence was led on the plea of the effect of your crimes upon the families or associates of your victims. Nor was any evidence given of the impact of the injury to Duong other than the description of the injuries themselves. Duong clearly suffered multiple wounds but I am unaware of their long term effects. Sadly, and obviously, the life of Adam Khoury was ended prematurely. He was aged 41: close to your age now.
Previous character, prior convictions and prospects of rehabilitation
You were born on 7 October 1972 and are presently 42 years of age. You were raised in Sunshine, the eldest of two boys. Your brother Richard was two and a half years younger than you. He passed away in 2011 from a drug overdose.
Your father, Keith, was always employed in the railway industry and is presently a train driver. Your mother, Lenore, has mostly been engaged in home duties apart from some work as a swimming instructor during your childhood.
You attended primary and secondary school in Melbourne’s western suburbs to the end of Year 11. I was informed that throughout your high school years you associated with various characters who have become known in Melbourne criminal circles. It was also said on the plea that you have always been surrounded by drug use and abuse but have not yourself suffered from drug addiction. Nevertheless, there was some evidence from your former partner Ms Preston contained in a statement served before trial indicating that in the weeks, if not months, leading up to the killing of Khoury you had re-engaged in some drug use, causing you to act erratically and stay awake for days. I accept, however, that despite some past episodes of drug use you are not to be regarded as addicted.
Apparently, you became involved in criminal activity from a young age including acts of violence which developed further into more serious offending. Your adult criminal history bears this out. It commences in July 1991, when you were 18, with unlawful assault and wilfully damaging property. A year later you were convicted of several charges of intentionally or recklessly causing serious injury for which you were imprisoned for a total of 30 months with a minimum of 18 months. Two more court appearances for assaults in 1992 resulted in further terms of imprisonments of two months and three months respectively. In October 1996 you were convicted of armed robbery and theft of a motor vehicle and sentenced to a total of eight years and six months’ imprisonment with a non-parole period of six years. Another conviction for aggravated burglary in 1997 resulted in a 12 month sentence to be served concurrently with the sentence you were then serving. Likewise in 1998 and 1999 you were convicted of further charges of intentionally causing serious injury, then criminal damage, for which you also received prison terms of three months each time, some of which were concurrent and some of which were cumulative upon sentences you were serving. In 2000 and 2001 you were again convicted of charges of unlawful assault.
In 2004, at Port Macquarie, New South Wales, you were convicted of possessing a loaded firearm in a public place, receiving stolen property, supplying a prohibited drug and common assault for which you received a variety of prison terms, the longest of which was three years with a non-parole period of two years and three months. On my calculation, assuming you were paroled at the earliest date, you would have been released in New South Wales in the second half of 2005.
It seems that your being in New South Wales breached your parole in Victoria for the armed robbery sentence and, after extradition, you were obliged to serve the remainder of that parole period in prison from which you were ultimately released in approximately 2007.
Clearly, this history of offending, and the nature of your present offending against the background of that history, would appear to stand as a near impenetrable barrier to acceptance of the idea that you might be rehabilitated from violent crime. Likewise it would appear to suggest that community protection should be a key sentencing objective.
But, following your release from prison in 2007 you made a concerted effort to rebuild your life. By this stage you were living with Ms Preston and you attribute a significant degree of your rehabilitation to the support she gave you. You describe her effect upon you as ‘revolutionary’. You began working for a labour hire company and were later offered a full time job with Delta Constructions with whom you were employed for approximately five years. During that time you underwent training and obtained various qualifications required in that industry. You have no convictions of any relevance in that period.
Poignantly, you conveyed through your counsel how you viewed this period of your life. You said, openly, that the hardest thing for you was the ‘fear of being a fool, in the workplace’, but you enjoyed the responsibility of work. In your words, you ‘became like one of the people on the tram’ — an ordinary person. You described the feeling of being a provider as being ‘like a proper man’. You felt your confidence and self-worth expanding. You worked extremely hard, at times six days per week and for long hours each day.
Sadly, in 2011 your brother Richard died of an overdose of heroin. It was said that Richard’s death plunged you deep into despair and you re-associated with your old associates. You crumbled, quit your job and your previous source of stability was undermined. You returned to old habits, including, it would seem, consuming methamphetamine.
In early December 2011 you were arrested for possession of a firearm and remanded in prison until bailed on 27 December 2011. It was upon your release that you became increasingly aware of rumours and threats against your life of the kind I have already mentioned. You described that period as being ‘hectic’ which I take to be a euphemism for one of anxiety-fuelled paranoia. It was in that context that your relapse into re-offending occurred.
Against this background it was put on your behalf that the court could have some confidence in your capacity for rehabilitation, notwithstanding the otherwise bleak picture that is presented by your past history of offending. The principal reasons, so it was said, for that confidence are that:
(a) you were able to live a productive life for nearly six years before re-offending in late 2011 and early 2012;
(b) you strongly valued that period of stability such that you have good reason to pursue it again;
(c) you do not suffer any addiction to drug use or mental illness that so often drags repeat offenders back to their criminal behaviour;
(d) instead, you have a supportive family and, in Richard’s 8 year-old son Jake who has become important to you and whom you wish to help raise when eventually you are released, a reason to be a provider again; and, finally
(e) this recent offending should be seen more as an aberration, rather than characteristic behaviour, brought upon by a profound reaction to the death of your brother.
Some ingredients for that supposed confidence may be accepted; others may be viewed with some scepticism. Nevertheless, I was impressed by the signs of mature reflection, self-awareness and positive resolve conveyed by your counsel, clearly upon your instructions, in the course of the plea. Albeit with significant reservation, I accept that there are some prospects for your rehabilitation and I take them into account. For that reason too I place somewhat less weight on the sentencing objectives of specific deterrence and community protection than I might otherwise have done.
Plea of guilty
The value to be placed upon your guilty plea is difficult to assess. On one view, it should be accorded little value at all. You chose to put the Crown to its proofs in relation to both incidents until after nine days into the trial on the charge of murder. The Crown case was nearly concluded. The point at which you entered a plea to defensive homicide occurred during an adjournment pending a ruling by me on whether Ms Preston could be cross-examined by the Crown pursuant to s 38 of the Evidence Act 2008 (Vic). One of the reasons advanced for your ultimate agreement to plead guilty to defensive homicide was that you were affected by Ms Preston’s evident distress in the witness box and wished to protect her from further distress. Whilst I do not doubt your statement that you retain great affection for her, I am sceptical of the claim that her distress was a prominent explanation for the timing of your plea. You had known she would be a Crown witness — and a very important Crown witness — for some time. You observed her examined by your then counsel, Mr McMahon, on a Basha inquiry in December 2014. And, as I say, you were facing the possibility that she was about to be cross-examined on still more damaging evidence against you.
Having said that, I accept that the option of pleading guilty to the charge of defensive homicide was first made available to you during that adjournment and that you agreed to plead guilty to that charge at the earliest opportunity. For that you should be accorded some favour in the sentencing consideration.[14]
[14]R v Talatonu [2012] VSC 270 [15].
Conditions of protective custody
Your counsel have correctly submitted that sentencing judges are entitled to treat as a relevant consideration the circumstance that a prisoner will or is likely to serve the term of his or her imprisonment (so far as is known) in a protection unit. That is because serving imprisonment in protection rather than in the mainstream will be more burdensome because of isolation, lack of human interaction and deprivation from programs and services available to other prisoners.[15]
[15]R v Males [2007] VSCA 302 (Maxwell P, Kellam JA and Whelan AJA) [9], [26], [27], [36], [49].
Evidence was led on the plea that satisfies me that you are being held in protective custody, and are likely to continue to be held in protective custody for the foreseeable future. That is so because of your past violent prison history, current alleged offences, criminal allegiances, and the difficulties in assessing prisoner interaction dynamics in the system given your involvement in prison gangs previously.[16] Two attempts have been made to return you to mainstream custody each of which resulted in you being attacked and injured by other prisoners, on one occasion quite significantly.
[16]Affidavit of Brendan Francis Money sworn 15 June 2015, [8] (Exhibit B on the plea).
The daily circumstances of your custody were explained to me in detail. I also understand that usual prison programs are unavailable to you. There is no doubt that your conditions of incarceration are particularly onerous and burdensome compared to the mainstream prisoner system. Notwithstanding, as you say, you have brought much of this upon yourself, I consider it is appropriate that I reflect in your sentence some consideration of the more onerous conditions which you will face.
Current sentencing practices
I have been provided with assistance from your counsel with references to a number of cases said to bear closest resemblance to the facts of your particular case,[17] and those that survey current sentencing practices for defensive homicide.[18] I do not intend to repeat the summaries or circumstances of each of those cases and the particular sentences given, but I have had regard to all of them.
[17]DPP (Vic) v Sciascia [2014] VSC 305; R v Kassab & Moustafa [2013] VSC 379 (which was appealed in Moustafa v The Queen [2014] VSCA 270); and R v Giammona [2008] VSC 376.
[18]R v Creamer (2012) 221 A Crim R 284; R v Dambitis [2013] VSCA 329 and R v Middendorp [2012] VSCA 47.
Much less attention was paid in submissions to the offence of recklessly causing serious injury to Duong. I have had regard to numerous other instances of sentences for that crime and applicable published sentencing statistics. I have already mentioned the sentence Hailu received for his participation in the assault upon Duong. In my view, your sentence should reflect a higher degree of culpability than his given that you were the one who actually shot Duong. Further, you were older, had more significant criminal history and did not plead guilty as early as he did. I do not regard the fact that it was ‘his debt’ and not yours, or that you were merely assisting him, to be factors casting you in a more favourable light than him.
Totality and concurrency
Your counsel have submitted that there should be substantial concurrency between the terms imposed for the two crimes having regard to your criminality as a whole.[19]
[19]Postiglione v The Queen (1997) 189 CLR 295, 341.
I have already mentioned that the two incidents share certain links. Principally, it seems, the link lay in the fact that the Duong incident elevated tensions and suspicions between yourself and Khoury contributing to the mutual paranoia that you and he shared on that fateful night of 10 and morning of 11 February. Otherwise, the two incidents were quite disparate. The shooting of Duong occurred in the company of Hailu, whereas Hailu was absent when Khoury was killed. The two incidents were 12 days apart. The shooting of Duong occurred as a result of a planned, menacing visit for the discrete purpose of recovering a specific drug ‘debt’. The reason for the attendance on Khoury, as it now appears, was for a quite unrelated purpose; that is, to somehow settle a quite different feud involving Christopher Binse and some unnamed ‘gangster’.
Significantly, both crimes took place while you were on bail and, again, most significantly, on bail for a charge of possessing a firearm. The statutory presumption for concurrency is reversed in those circumstances and your sentences are to be served cumulatively unless I otherwise order.[20] Partly because of the onerous conditions in which you will serve your sentences, partly because of the broadly common context in which the two offences were committed, and also having regard to the principles of totality, I am persuaded that it is not appropriate that the two sentences should be entirely cumulative upon each other but there should be a degree concurrency. But I do not agree that the principle of totality warrants that such concurrency should be ‘substantial’ in all the circumstances of your case.
[20]Sentencing Act s 16(3C).
In sentencing you I consider that the principle objectives should be general deterrence, punishment and denunciation. For reasons already explained, I am prepared to trust that specific deterrence and community protection considerations require, on this occasion, a little less prominence.
I therefore sentence you as follows:
(a) On the count of recklessly causing serious injury to Duong, 5 years imprisonment.
(b) On the count of the defensive homicide of Khoury, 7 years and 6 months imprisonment.
I will order that 18 months of the term of imprisonment on the first count be served concurrently with the term of imprisonment on the second count resulting in a total effective sentence of 11 years imprisonment. I direct that you be not eligible for parole for a period of 9 years.
Pursuant to the requirements of s 6AAA of the Sentencing Act I state that had you not pleaded guilty to both charges I would have imposed a total effective sentence of 13 years imprisonment directing that you not be eligible for parole for a period of 10 years and 6 months. As required, I will direct that those details be recorded on the court file.
Finally, in accordance with s 18(4) of the Sentencing Act I declare that you have served 1155 days of pre-sentence detention up and including this day which are to be reckoned as having been served as part of the sentence I have just announced. I will cause that declaration to be entered in the records of the court.
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