Director of Public Prosecutions v Saba
[2020] VCC 1141
•31 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00602
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAHMOUD SABA |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 31 July 2020 | |
CASE MAY BE CITED AS: | DPP v Saba | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1141 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: theft of firearm – prohibited person possess firearm – early plea of guilty – admissions - COVID-19 – guarded prospects of rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: 28 months’ imprisonment, and non-parole period of 18 months’ imprisonment - s 6AAA: years and six months’ imprisonment with a non-parole period of three years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Raimondo | Office of Public Prosecutions |
| For the Accused | Mr J. Miller Ms A. Frossynos | Giorgianni & Liang Lawyers Giorgianni & Liang Lawyers |
HIS HONOUR:
1 Mahmoud Saba, on 22 July 2020, you pleaded guilty to an indictment containing two charges being theft of a firearm (Charge 1) and prohibited person possess firearm (Charge 2). In addition, you pleaded guilty to the related summary offence of entering a private place without express or implied authority from the owner.
2 The maximum penalty for theft of a firearm is 15 years’ imprisonment. The maximum penalty for being a prohibited person in possession of a firearm is 10 years’ imprisonment. The maximum penalty for the related summary offence is six months’ imprisonment.
3 You admitted your prior convictions, which include 55 convictions from six court appearances between 14 March 2006 and 30 August 2018. Your prior convictions include handling stolen goods, recklessly causing injury, proceeds of crime offences, firearm offences in respect of an air rifle, possessing cartridge ammunition without a permit and bail offences.
4 Tendered as Exhibit A and read aloud in court was the Summary of Prosecution Opening on Plea. In summary, on 6 October 2019, you attended your victim, Zoran Djukic’s, premises with two other males, Jafar Ahmed and Ahmed El Refei and two females, Roimala Smith and Ashleigh Harris to recover a debt. Your counsel, Mr Jonathan Miller, conceded that it was open to find that the debt was a drug debt.
5
You had arranged with your co-offenders that the two females would gain entrance to Mr Djukic’s home using the ruse that they were there to buy drugs from him. As soon as Mr Djukic opened his door, you, together with your
co-offenders, entered the premises. Once in the unit, your two male
co-offenders confronted Mr Djukic over the drug debt that was owed to a third party.
6 Whilst in your record of interview you did not identify the third party, the Crown, in their opening, identified him as Dusko Jovic. Further, the Crown, in their opening, asserted that at the time that you were in your victim’s home, Mr Jovic was on the phone to your two male co-offenders, directing them during their offending. No issue was taken on your behalf with this asserted fact.
7 Your two female co-offenders ransacked the property looking for items of value to steal to offset the debt owed by Mr Djukic. Ms Smith located a black case on the coffee table in the lounge room and she handed it to you. You inspected the case and saw that it contained a firearm. You described it in a statement you made to police as, “like a police gun”.
8 You left the premises in possession of the handgun and returned to the car to wait for your co-offenders. (Charge 1)
9
While seated in the car, you saw that the handgun was loaded. Your
co-offenders came out of Mr Djukic’s home and either approached or got into the car that you had driven to his house. Mr Djukic came out of his house and started shooting at you. You returned fire and shot Mr Djukic in the stomach. As you drove away the handgun fell out of your car and onto the road. (Charge 2)
10 Mr Djukic was taken to hospital and later underwent surgery for the wound to his stomach.
11 On 6 October 2019, police commenced an investigation into the home invasion and shooting. Mr Djukic refused to provide a signed statement to police.
12 You were arrested on 14 January 2020 and interviewed under caution. You made a confession during the record of interview, providing investigators with evidence that they otherwise could not have obtained.
13 In summary, you told the police that you came up with the idea that you and your co-offenders should use a girl to trick Mr Djukic into opening the door to them because you and your co-offenders knew he was avoiding you. You stated that your intention was to recover a debt of $5,000. You told investigators that you shot Mr Djukic in self-defence after he had shot at you. You said that you shot Mr Djukic with the gun that you had found in his house, and that you stole the gun as you were planning to sell it on the black market.
14 The matter was opened against you on the basis that there is no evidence to rebut the version of events that you told to police. After the record of interview, you made a statement to police summarising the contents of your record of interview and consistent with the matters that I have outlined.
15 The firearm that you stole was not recovered.
16 In respect to your co-offenders, Ms Smith was arrested on 12 December 2019 and appeared at the Heidelberg Magistrates’ Court on 18 June 2020 and pleaded guilty to aggravated burglary and commit an indictable offence whilst on bail and other charges. She was sentenced to an aggregate sentence of 189 days’ imprisonment, being time served and a Community Correction Order for two years. Jaffar Ahmed was arrested on 19 December 2019 and he appeared at the Melbourne Magistrates’ Court on 24 April 2020 and pleaded guilty to trespass. He was sentenced to 21 days’ imprisonment, being time served. Ahmed El Refei was arrested on 20 December 2019 and he appeared at the Melbourne Magistrates’ Court on 23 April 2020 and pleaded guilty to trespass and possess a drug of dependence. He was sentenced to 127 days’ imprisonment, being time served. Finally, Ms Harris was arrested on 15 January 2020 and appeared at the Melbourne Magistrates Court on 27 April 2020 and pleaded guilty to trespass. She received an adjourned bond to be of good behaviour until 29 August 2020.
17 Mr Miller of counsel, who appeared on your behalf, tendered as Exhibit 1 his outline of plea submissions and, as Exhibit 2, a report from Ms Carla Lechner, psychologist, dated 29 June 2020.
18
You are 45 years of age and were born in Egypt. Your father is now in his mid-seventies and, like the balance of your family, still resides in Egypt. You are one of four siblings, and you instructed your counsel that your father regularly beat you as a child. You told Ms Lechner that you saw your mother die by fire when her clothing caught alight while cooking. You told
Ms Lechner that you were about six years of age when you witnessed this tragedy. Your father re-partnered a few years after your mother’s death, and he has two children as a result of that second relationship. You instructed
Mr Miller that you never really got along with your stepmother.
19 You were a good scholar and commenced an Arts degree but withdrew from this course after two years of study, and thereafter you worked in the tourist industry. Later, you worked in a restaurant where you met your wife-to-be, Kelly. You were married in around 2000 and you moved with her to her home country of Australia in 2003. There is a daughter of your relationship who is now aged 16. I was informed that you have had very little contact with Kelly or your daughter over the last five years or so.
20 You have had one further long-term relationship which lasted approximately five years.
21 After arriving in Australia, you worked at a chicken processing plant, in construction, painting, and metal fabrication for a period of five years or so. In 2010, you opened a kebab shop that you operated for about 18 months. You sold the business and subsequently regretted that decision. You became depressed about the sale, and this brought about the break-up of your second relationship.
22 In 2015, whilst working in civil construction, you were involved as a pedestrian in a motor vehicle collision.
23 As a result of the motor vehicle collision you received serious injuries to your back and have been prescribed various painkillers, including opiate derivatives. Mr Miller was unable to inform me whether you had undergone any surgery as a result of your injuries or the specific nature of them.
24
It was put on your behalf that you were introduced to methylamphetamine by an acquaintance and that you used it to assist in pain relief and reduce your depression. You have also used GHB. It was put on your behalf that it was as a result of your use of drugs that you were exposed to people like your
co-offenders. Further, it was put on your behalf that the only drug counselling that you received prior to the instant offending was that which was ordered as part of a Community Correction Order made in October 2017.
25 Mr Miller did not rely upon any of the principles enunciated in The Queen v Verdins,[1] but relied upon the report of Ms Lechner as background material as to the person you are. Ms Lechner considers that you suffer from long-term and untreated Post-Traumatic Stress Disorder. Further, that you suffer symptoms of depression, and that you have a stimulant use disorder.
[1][2007] 16 VR 269
26 At the time of your plea, you had spent 190 days on remand, and you have spent your time in custody at the Melbourne Assessment Prison, Marngoneet Prison, and the Metropolitan Remand Centre. You have worked as a unit billet as well as a yard billet. Despite the limitation in respect of courses available to prisoners on remand as a result of the COVID-19 pandemic, you have been able to undertake a six hour “Ice program” and you have been tested for drugs three times while in custody and each test returned a negative result for drugs.
27 I was informed that your current regime in prison is half a day in your cell and half a day out of it. However, with the recent developments within the prison community of prisoners testing positive for the COVID-19 virus, it is likely that the regime that you will experience as a sentenced prisoner will be a strict one. I must take this into account in arriving at an appropriate sentence in your case. Further you have no family in Australia, you are estranged from your former wife and another former partner. You will be isolated in prison
28 I regard your offending as serious examples of offending of their kind. You went to your victim’s home in order to recover a drug debt. Whilst there, you stole a handgun described as “like a police gun”. You returned to your vehicle and observed that the handgun was loaded. Your intention in respect to the firearm was to sell it on the black market in order to obtain funds to expunge your victim’s debt. You were prohibited by law from possessing any firearm.
29
Theft of a firearm is a serious offence. The offence was introduced and came into operation on 1 December 2015 and carries a maximum penalty of
15 years’ imprisonment. It was introduced “in recognition that the theft of firearms can increase the illegitimate flow of firearms in the community and lead to very serious criminal activity”.
30 While you had possession of the firearm for only a short period, general deterrence, denunciation, just punishment and specific deterrence are all relevant sentencing factors when arriving at an appropriate sentence in your case.
31 As against that, whilst the police were well-aware of the shooting that took place at Mr Djukic’s residence, it is only after your confession in your record of interview and your subsequent statement, that the factual circumstances upon which your prosecution is based were known to police authorities. Accordingly, you are entitled to a discount of the sentence that might otherwise have been imposed on you. Further, you entered your pleas at the earliest possible opportunity, and are entitled to the benefits that flow to you from those pleas, being that they have utilitarian benefit and are some evidence of your remorse. However, the circumstances of your offending when combined with your antecedents causes me to assess your prospects for rehabilitation as guarded.
32 Doing the best I can, taking into account your offending and its effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and to your offending, I sentence you as follows:
· on Charge 1, 18 months’ imprisonment;
· on Charge 2, 18 months’ imprisonment.
33 I order that nine months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.
34 In respect to the related summary offence, I sentence you to three months’ imprisonment, and I order that one month of that sentence be served cumulatively upon the sentence imposed upon the indictment.
35 This results in a total effective sentence of 28 months’ imprisonment, and I fix the period of 18 months’ imprisonment as being the period that you must serve before you will become eligible for parole.
36 I declare that you have spent 199 days by way of pre-sentence detention not including today.
37 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to four years and six months’ imprisonment with a non-parole period of three years’ imprisonment.
38 Are there any matters arising out of sentence, Mr Raimondo?
39 COUNSEL: No, Your Honour.
40 HIS HONOUR: Thank you very much. We will stand down now until 10.30 for the next matter. I would like to thank you, Mr Raimondo, and you, Madam, for your assistance.
41 MR RAIMONDO: Your Honour pleases.
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