Director of Public Prosecutions v Shomshe
[2016] VCC 797
•10 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-00237
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MURAT SHOMSHE |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 February, 11 April and 27 May 2016 | |
DATE OF SENTENCE: | 10 June 2016 | |
CASE MAY BE CITED AS: | DPP v Shomshe | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 797 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Hinkley | Office of Public Prosecutions |
| For the Accused | Ms Gaunt | Valos Black & Associates |
HER HONOUR:
1 MURAT SHOMSHE, you are to be sentenced in respect of one charge preferred in Indictment C1409853.1 of reckless conduct endangering life, contrary to s.22 of the Crimes Act 1958. The maximum applicable penalty is ten years’ imprisonment.
2 You pleaded guilty and admitted your prior convictions and court appearances when arraigned before me on 11 April 2016.
Circumstances of offending
3 The facts are not in dispute. They are well summarised in Exhibit A, Summary of Prosecution Opening. Rather than repeat all of the facts now, I shall attach a copy of Exhibit A as Annexure A to these reasons for sentence.
4 You will be sentenced on the agreed facts as contained in Exhibit A, as well as on the depositional material filed. The depositions include a transcript of your record of interview with the police and a number of statements made by the complainant.
5 By way of a brief, non-exhaustive summary, you ran a car restoration business at a factory. You did work on the complainant’s car, but she was unable to pay you. You refused to let her have her car until she settled her account. Over a protracted period, the two of you negotiated, directly and through your friend, about the debt. One night, the complainant was required to remain at your premises while she tried to raise the money to pay the debt. You told her that she would not be able to leave until she paid. However, next morning you permitted her to leave and lent her a car so that she could attend a court hearing over an unrelated matter. You imposed certain conditions on the use of the car.
6 Unfortunately, while she was at court, the car you had lent to the complainant was towed away. The complainant returned to the factory to explain what had happened, and you said you would be keeping her car, as she had lost yours.
7 Two days later, and accompanied by a friend Charlie, the complainant returned to your factory to collect her car. When she saw her car parked on the street, she felt uneasy and decided to leave. She drove to a nearby location where Charlie sought the assistance of a neighbour to call the police.
8 The complainant noticed that a car was driving back and forth. Then she saw you approach the car. You came right to the front of the car window and stared at the complainant. Fearing for her safety, the complainant reversed the car, in an attempt to escape. As she did so, you raised your hand. You held a gun, which you now pointed directly at the complainant. She was reversing away from you. You fired the gun in her direction. You struck the front of her car. As she continued to flee, you took another one or two shots.
9 I note that despite these being the agreed facts, you gave Dr Hughes, neuropsychologist, an account that vastly differs from these facts.
Gravity of offending
The offence of reckless conduct endangering life can be committed in a wide variety of circumstances. Among the matters affecting the objective gravity of the offence are, the degree of recklessness involved, whether a weapon was used and the amount of time the offender has had to assess the risks inherent in his conduct.
Aggravating factors
10 The fact that you shot at the complainant’s car shows a high degree of recklessness. Not only could you have actually struck her, but you could also have caused such damage to the car or fright to the complainant that she might have lost control of the car and crashed, potentially causing harm to herself and/or to others.
11 At the time of committing this offence you were undergoing a community correction order that was imposed only seven months beforehand in the Magistrates’ Court at Heidelberg on 30 January 2014 on charges of recklessly cause injury, intentionally cause injury and unlicensed driving. The conditions of the order included a number of conditions addressing rehabilitation, such as a requirement that you undergo anger management and/or other programs to reduce the risk of your reoffending. Two weeks before that, on 15 January 2014, in the Sunshine Magistrates’ Court, you were convicted of various charges, including possess a prohibited weapon without exemption or approval and possess ammunition without a license. In respect of those charges, you were imprisoned to an aggregate term of six months’ imprisonment, wholly suspended for a period of 18 months.
12 The commission of this offence constitutes a breach of the terms of your community correction order and the terms of the suspended sentence. Also, at the relevant time, you were prohibited from possessing firearms.
13 Ordinarily, in cases such as these, principles of deterrence, both specific and general, are important. I must also consider the need to protect the community from you.
Impact of your offending on the victim
14 The complainant was offered the opportunity to make a victim impact statement, but declined to do so. Even so, as a matter of common sense, it must have been a terrifying ordeal.
15 In her first statement, the complainant described the incident in the following terms:
“… I decided to go around [to the factory] with Charlie. I drove to Pau Street and saw my car….right at the end of the street…… I drove down Pau Street about three quarters of the way down and then reversed all the way back out because I felt like something was wrong.
I turned towards Baker Street and turned into the driveway of the third house on the right.
Charlie got out and went to the front door to ask to use their phone to call police because both our phone batteries were dead. ….
When [Charlie and the occupant of the house] went inside I noticed a black hatchback driving up and down the street and so I drove out of that driveway and went one driveway north and stopped in that driveway to wait for Charlie.
I saw a shadow pass my driver side window and looked up to see Murat standing at the front driver side of my bonnet. I knew it was Murat because I saw his face, and he was staring straight at me. He looked at me straight in the face… He .. was not covering his face in any way.
He raised his right hand at me and I started reversing out of the driveway when I saw that he had a black handgun in his hand. He was pointing the gun right at me. It was a dark, small, totally black I think, handgun. I could [see] the shape of the gun and I knew it was a handgun. It was probably any (sic) bigger than the guns the Police have.
He shot at me once, he was aiming straight at my head through the windscreen. It was so loud, but I didn’t see a flash.
I got out of the driveway and started driving off. I saw him walk out to the street and heard one or two more gunshots and saw him aiming at the back of my car. I was ducking down in my seat as I drove off, I was horrified. I have never screamed so loudly in my life, I thought I was in a movie. I find it all too hard to believe.
I drove without thinking of where I was going and I was checking in my rear view mirror to see if anyone was following me.”[1]
[1] Statement of Lisa Maugeri made 28 August 2014, depositions pages 146 – 151 at pages 150 – 151. Paragraph 12 of exhibit A is consistent with the passage referred to.
Plea in mitigation
16 Your counsel, Mr McQuillan made a comprehensive plea in mitigation on your behalf, during which he tendered a number of exhibits and called viva voce evidence from a neuropsychologist, Dr Hughes. I shall refer to the evidence in a moment. In short, Mr McQuillan conceded the gravity of your offending and that the imposition of a term of imprisonment is the only appropriate response. However, he argued that there are extenuating circumstances in your case justifying that any such term not exceed two years less one day if it is accompanied by a lengthy community correction order focusing on your rehabilitation. Turning to the proposed conditions, Mr McQuillan submitted that these should address mental health assessment and treatment, anger management, and drug and alcohol assessment and treatment. I note that these are similar conditions to those contained in the community correction order imposed on 30 January 2014, none of which seem to have deterred you from committing this offence.
17 On behalf of the prosecution, Ms Guesdon did not disagree with the course proposed by your counsel. I shall now turn to the matters advanced by your counsel on your behalf in mitigation of penalty.
Events leading up to the offence
18 Mr McQuillan referred me to the report of Dr Hughes who is of the opinion that you suffer cognitive deficits as a result of your involvement in an affray. You were dealt with in the Supreme Court of that charge on 28 April 2006 where, without conviction, you were released on a 12 month good behaviour bond.
19 I asked Mr McQuillan where in Dr Hughes’ report reference is made to the circumstances of the offending, since I could not find them in the report tendered as Exhibit 2. The transcript reveals the significance of this absence relative to your claim that there is a nexus between your cognitive impairment and the offending.[2]
[2] T15 – 17 of 11/4/16
20 An adjournment was granted to enable this omission to be addressed.
21 Dr Hughes wrote a second report, tendered as Exhibit 7, and despite the above discussion, no reference was made in it to the circumstances of offending. It was not until Dr Hughes gave sworn evidence before me that he told me of the account you gave him.
22 According to Dr Hughes, your version had you at work when you received threats. Someone was banging on the roller door and you thought you heard shots. You saw a car, and I infer, you thought it was the person threatening you, and shot at the car, to the front and back of it, not intending to harm the driver. Dr Hughes testified:
“He told me he was getting some calls from some heavy guys and he'd done a job for somebody, referring to a mechanical repair. He'd fixed a car and was owed $1100. He wasn't paid. He'd received some threats. He got upset, he was at the factory. Some people came to the factory. He heard the shots in the air, then kicked a roller door. He found an old gun in the factory. He took off. People came. He had no intention to shoot anyone and he shot at the front and back of the car.
… he told me he found [the gun] in the factory. It was left behind in the factory.
Did he say when he found it?---No.”[3]
[3] Transcript (T) 16 plea hearing 27/5/16
23 The version that you gave to Dr Hughes predates your acceptance of the facts as outlined in exhibit A. And it is at odds with your account to police in the record of interview. In that interview, you made no mention of responding to a misinterpreted threat. And, you told police that you heard no shots, conveying the impression that neither you nor anyone else fired any shots. You falsely denied shooting at the complainant’s car:
“Q 149:… We are investigating.. the shooting of a vehicle, that occurred at about 830, … the corner of Williams and Powell Street, in Coburg.
A: Last night?
Q 150: … Is there anything you can tell me about this incident?
A: Nup. I’m surprised I didn’t hear it. Surprised I didn’t hear it.
Q 151: So did you leave your factory at any stage, during the evening?
A: Like I said…. and that, yeah.
Q 152: For just that whole time - - -
A: Yeah.
Q 153: - - -you were outside the factory?
A: Yeah.
Q 154:… Have you ever – or do you know a vehicle, a 94 model Mazda sedan, with the registration UPQ 561? Do you know anything about this car?
A: 94?
Q 155: Yeah.
A: Mazda?
Q 156: Yeah, red
A: ….
Q 157: ….
A: A red Mazda?
Q 158: Yeah
A: No.
Q 159: So this is the car that’s been involved in the shooting, or has been shot at.
A: Okay, yep
Q 160: so you’ve been - - -
A: So – so …. is the car, the red car was … or - - -
Q: 161: Was shot at.
A: Okay, yeah.
Q 162: Okay ….
A: Okay
Q 163 We have information that suggests that was you.
A: Okay. Well, it – it was not.”[4]
[4] Depositions 240 - 242
24 As for the version given to your counsel, at the plea hearing he told me:
“I am not going to say anything about the offending itself, other than in my client’s life at the time leading up to the date of this offence before he went into custody,…He instructs me that he was using, a drug user, he was using about half a gram of ice a day, he was smoking cannabis daily and he was drinking alcohol to excess on a nightly basis.”[5]
[5] T12, 11/4/16
25 On the other hand, you made no mention to Dr Hughes about your drug use, or the effect it had upon you. Accordingly, it is a factor he has not taken account of when assessing the contribution made to your offending by your cognitive impairment, or indeed whether it is responsible for part of such impairment. In cross-examination of Dr Hughes, this exchange occurred:
“[Ms Guesdon]: Finally, did he say to you, or mention to you, if he had taken any drugs or anything like that at the time?---No, he didn't mention it to me.
Was it asked or just not brought up?---I did ask him about drug use, but I don't think I - I don't recall if I did on that specific day.
Depending on the drug, for example, ice or methyl amphetamine, would that also have the effect of making someone act in a disinhibitive and/or impulsive manner?---It would. It could change their behaviour, yes.
But without knowing whether or not he had taken drugs on this occasion, you can't offer an opinion over what, if any, effect that may have? Because you don't know if it was in play or not?---That's right.”[6]
[6] T14,
26 I am satisfied beyond reasonable doubt that the accounts you gave to the police and to Dr Hughes are false.
27 The false version you gave to Dr Hughes bears a striking resemblance to the facts of a case determined by the Court of Appeal, and to which counsel referred in sentencing submissions: In Zogheib v R[7] the offender gave chase to a car and shot at it believing its occupants had made extreme threats of harm against him and members of his family three days beforehand. He believed the occupants were members of a violent family group. He was wrong. The occupants were innocent victims, unconnected with any threats to the offender or to the violent family.
[7] [2015] VSCA 334
28 The Court of Appeal accepted that the offender had made a grave error of judgment about the identity of the victims, and that this was a mitigating factor. Nevertheless, the Court observed that the offender’s action was to be condemned as highly reckless and stood as a stark example of why members of the public should not take the law into their own hands. As Kaye JA, observed:
“[97] For the reasons that have already, largely, been stated, I do not consider that the five year sentence, imposed on the charge of reckless conduct endangering life, was manifestly excessive. The fact that the appellant acted in the manner in which he did, because he was frightened of the B family, was sufficient to exclude an alternative hypothesis that the appellant acted in an unexplained outburst of gratuitous violence. Further, to some extent, it mitigated the offending, since the appellant was reacting to genuine fear that he felt, notwithstanding that he was badly in error in doing so.
[98] However, as already stated, the appellant, in acting in that way, decided to take the law into his own hands in a manner that was patently dangerous, frightening, and unacceptable. The judge was well justified in concluding that the appellant’s offending came within the ‘upper end of the spectrum of seriousness’ for the offence of reckless conduct endangering life. The appellant’s conduct, and such conduct by any like-minded individuals, simply cannot be countenanced in a civilised society. In such a case, considerations of denunciation and general deterrence must be given substantial weight. The community, and the courts, cannot tolerate the type of violent conduct in which the appellant indulged on the evening of 19 August.
[99] Further, notwithstanding the appellant’s remorse, considerations of specific deterrence were nevertheless significant. It was important that the judge impose a sentence of sufficient severity to impress on the appellant, in no uncertain terms, that he must not resort to the same type of violence if confronted with a similar set of circumstances in the future. The relevance of specific deterrence was, in this case, accentuated by the fact that, at the time that the appellant committed the offences, he was then subject to two community corrections orders, both of which were designed to assist him to rehabilitate by addressing his problems with drug abuse. He was also subject to three separate bail orders. The fact that, notwithstanding those court dispositions that were then applicable to him, the appellant engaged in such serious offending, gave added weight to the requirement of specific deterrence in determination of the sentence.”
29 I draw attention to this case because even if I were to accept your version as given to Dr Hughes, which I do not, it would not alter significantly the sentence I intend to impose upon you today.
Pleaded guilty
30 You have pleaded guilty and you are entitled to have that fact taken into account in your favour. The matter was contested at the committal stage, where the complainant and other witnesses were cross-examined. The case was to proceed as a trial before me and a jury of 12, and at the last moment, following negotiations on the first day of the trial, the matter resolved.
31 Although your plea was not entered at the earliest opportunity, a guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount. In assessing the weight to be given to your plea I take account of:
§ The timing of your plea;
§ You are entitled to a statutory discount because of your plea;
§ I accept that your plea evidences some level of remorse;
§ You have avoided the cost of a trial and, more significantly, spared the complainant and the other witnesses the inconvenience, embarrassment and ordeal of giving evidence at trial; and
§ There is social utility involved in your plea of guilty.
Exhibits tendered on your behalf
32 The following exhibits were tendered on your behalf, all of which I have read and taken into account:
| One | Outline of Plea Submissions | 11/4/16 |
| 2 | Report of Dr Matthew Hughes dated 8 April 2016 | 11/4/16 |
| 3 | Report of Tim Watson-Munro 24 April 2006 | 11/4/16 |
| 4 | Reasons for Sentence of the Offender by Bell J [2006] VSC 165 | 11/4/16 |
| 5 | Further Outline of Plea Submissions on behalf of the Offender dated 26 May 2016 | 27/5/16 |
| 6 | Certificates referrable to courses the Offender has undertaken whilst on remand | 27/5/16 |
| 7 | Dr Hughes’ second report 13 May 2016 | 27/5/16 |
| 8 | Reference from Semra Paragallo, the Offender’s sister, dated 27 May 2016 | 27/5/16 |
| 9 | Reference from Belinda Shomshe, the Offender’s wife, dated 26 May 2016 | 27/5/16 |
| 10 | Reference of Alex Kiratzoglou dated 27 May 2016 | 27/5/16 |
Factors personal to you
33 These are well summarised in Mr Watson-Munro’s report[8] a document prepared for the purposes of your plea some ten years ago in 2006 before Bell J in the Supreme Court where you were dealt with on a charge of affray. Further details emerge from Dr Hughes’ first report.[9]
[8] Exhibit 3
[9] Exhibit 2
34 You are now aged thirty-four years. You have two sisters.
35 You were educated in Melton where you attended the local primary and secondary schools. You left school at the end of year 10. You described yourself to Mr Watson-Munro as an “average student”. You then pursued various employment options including apprenticeships as a mechanic and then a plumber, both of which you gave up, opting to work at the Melbourne Fruit and Vegetable Market where you were working at the time of the affray.
36 In November 2000, in the affray, the subject of the charge before Bell J, you sustained significant injuries including a traumatic brain injury causing a left subdural haematoma. Your injuries are documented in the records of the Royal Melbourne Hospital where you were hospitalised for two days following which there was a period of approximately three or four weeks’ rehabilitation.
37 In April 2006, Mr Watson-Munro considered you were still suffering ongoing consequences as a result of the affray. Your friend was murdered in that incident and not only did you suffer sequelae as a direct result of the physical injuries you sustained, but you also developed intense Post Traumatic Stress Disorder.
38 Despite this, you married in 2003, although the marriage did not last beyond late 2006.
39 You started smoking marijuana and drinking alcohol. You also commenced using methyl amphetamine daily for three or four years between approximately 2008 and 2010.
40 You remarried in 2011 and your wife fell pregnant. You started using methyl amphetamine again which led to feelings of paranoia, in turn, negatively impacting upon your marriage. You assaulted your wife, for which you received a term of imprisonment together with a community correction order. That order required you to participate in treatment directed at your rehabilitation.
41 You participated in behaviour counselling, which as I understand it, was a condition of the community correction order. You told Dr Hughes you found group therapy confronting, so decided to stop attending.
42 You have a three-year-old son.
43 Your wife wrote a reference on your behalf tendered as Exhibit 9.
44 According to your counsel, it would appear that despite entering a stable relationship, you continued to use half a gram of “ice” per day, smoked cannabis and drank alcohol to excess on a nightly basis in the period of offending.
45 Despite the effects of your injury, you have had periods of employment, and at the time of offending had established your own business of customising cars and car engines.
Prior criminal history
46 I have already referred to the fact that you have a number of prior court appearances and convictions. I have mentioned the affray in respect of which you were sentenced in the Supreme Court.
47 You have a number of driving convictions and they are of little relevance to my task in sentencing you today. However, more significantly, you have, as I mentioned, prior convictions for weapons offences, drug matters, dishonesty offences, failing to answer bail and, most troubling, convictions for recklessly causing injury and intentionally causing injury.
48 Your counsel has also noted that on 3 December 2014, at the Heidelberg Magistrates’ Court the community correction order that had been imposed on 30 January 2014 was breached by your non-compliance. The suspended sentence imposed on 15 January 2014 was breached by further offending on 30 January 2014.
49 On 5 June 2015, at the Broadmeadows Magistrates’ Court, you faced a number of charges arising from your being found in possession of a flick knife and three different types of antidepressant pills. I note these are subsequent matters.
50 Although it is no part of my task in sentencing you today, to resentence you for past crimes, your criminal record is a matter of great relevance to the question of your prospects for rehabilitation and of the need to protect the community from you. Your record is also relevant to the question of deterrence, for in sentencing you I must not only deter others from committing such an offence, but I must bring home to you that any further offending by you in like manner will not be tolerated.
Character evidence
51 A number of character references were tendered on your behalf.
52 Your sister acknowledges your imperfections including your stubbornness. She states that you are “too proud to admit when [you need] help.” She considers that you are in urgent need of engaging with appropriate allied health professionals such as “rehabilitation, anger management counselling and psychological interventions to enable [you] to develop a stronger foundation towards [your] much-needed recovery journey.”[10]
[10] Reference from Semra Paragallo, 27 May 2016, Exhibit 8
53 In her reference, your wife has great faith in you and believes you are capable of rehabilitation if given the opportunity[11] a view shared by your friend Alex Kiratzogou.[12]
[11] Reference from Belinda Shomshe, 26 May 2016, Exhibit 9
[12] Reference dated 27 May 2016, Exhibit 10
Remorse
54 The references tendered before me indicate that you are remorseful. It is difficult to say when it was that your remorse emerged in view of your denial of the charge to the police, the contested committal and the fact that you decided to accept responsibility for your actions on the first day of the trial. Nevertheless, I am prepared to accept that at least now you are remorseful.
Application of the principles in Verdins[13] and O’Neill[14]
[13] Verdins; Buckley; Vo (2007) 16 VR 269
[14] [2015] VSCA 325
55 Your counsel submitted that the principles in Verdins and O’Neill are engaged to the extent that your moral culpability is somewhat reduced as is the value of using you as a vehicle for general deterrence. He also submits that because of your impairment, gaol is more onerous for you and it could worsen your condition.
56 In this regard, he relied on the reports of Dr Hughes[15] and Mr Watson-Munro.[16]
[15] Exhibits 2 and 7
[16] Exhibit 3
57 I have already mentioned that there was insufficient information in Dr Hughes’ first report to enable me to make a finding that there is any nexus between your condition and the offending. For this reason, an adjournment was granted to enable a further report to be obtained. However, as I mentioned the further report failed to explain the circumstances of offending, the details of which did not emerge until Dr Hughes was asked directly about them.
58 Before returning to any nexus between your condition and the offending, it is necessary to say something more about your impairments.
59 I have already mentioned that some five years after your involvement in the affray, in which you sustained a head injury requiring two days’ hospitalisation and rehabilitation upon your discharge, you were still suffering the consequences of your injury and of witnessing the murder of your friend during the affray. Ten years ago, Mr Watson-Munro diagnosed you as suffering intense Post Traumatic Stress Disorder. You reported to Mr Watson-Munro ongoing cognitive disturbance including impaired concentration and significant memory loss. He considered the symptoms to be confirmed through appropriate psychometric testing by a neuropsychologist.
60 At the end of his report, Mr Watson-Munro expressed pessimism about your potential to recover from your clinical condition. He stated:
“I believe that even with expert care, given the protracted and intense nature of his symptomology, his prognosis in this regard is at best guarded.”[17]
[17] Exhibit 3, page 5.
61 No diagnostic imaging investigations have been conducted in at least the last decade as I understand it. It is impossible to say with any degree of certainty whether the organic physical brain injury has healed. As I mentioned, in the affray you sustained a left sided subdural haematoma which was treated conservatively.
62 However, Dr Hughes administered various tests to make a neuropsychological assessment of you.[18]
[18] They are listed on page 3 of Exhibit 2
63 In summary, Dr Hughes was of the opinion that you present with some deficits in cognition. You have reduced abstract verbal reasoning abilities and also demonstrate some inconsistency with respect to attention. Your memory performances were poor because of your compromised ability to acquire and retain material. Your memory and learning abilities appear to be predominantly affected by poor acquisition of information. It appears you become “overloaded” and have difficulty effectively attending to and recalling a typical volume of material.
64 Dr Hughes considered that you demonstrated impairments in high level executive abilities. He thought you had difficulty inhibiting responses and that your mental flexibility was reduced. Your performance on assessment tasks indicated difficulty developing strategies, characterised by poor error utilisation.
65 Dr Hughes considered your current cognitive abilities to be referrable in part to an acquired brain injury sustained in the affray. He considered that there is a pattern of poor higher-level attention and executive impairment suggestive of frontal lobe damage. However, he considered that reviewing primary source information may assist to clarify this judgment. Nevertheless, he considered you have a neurocognitive disorder due to traumatic brain injury.
66 Dr Hughes did not diagnose post-traumatic stress disorder in his first report, although he noted your report of ongoing symptoms. He considered further investigation by a clinical psychologist or psychiatrist is warranted in this regard.
67 Dr Hughes stated:
“The principles in Verdins would be considered relevant and apply in respect of Mr Shomshe’s current charge. Specifically, his cognitive impairments would reduce his judgment and be likely to make him impulsive and disinhibited. His labile mood would also be likely to impact on his emotional state when making decisions, hence making his choices less likely to be rational and calm. Overall his judgment and reasoning would be reduced. Mr Shomshe’s impairments are likely to be static, and not fluctuate since his immediate recovery in the two years after the assault. That is to say they would have been present at the time of the alleged offence and moreover they will continue, and will not show any significant improvement in the future.”[19]
[19] Exhibit 2, page 9
68 In his second report, Dr Hughes confirmed his earlier opinion, noting that the neuropsychological assessment revealed deficits across tasks assessing higher-level and executive functions. You demonstrated reduced ability to shift mental set and had difficulty effectively inhibiting responses. He considered you demonstrated mild inefficiency planning your approach to tasks and you were hasty when completing them. He thought you appeared to have reduced insight into your cognitive difficulties. Dr Hughes reported:
“Mr Shomshe’s cognitive weaknesses would be demonstrated in his general day-to-day functioning. Whilst he can participate in everyday activities, and has a general level of function, it is likely there is a pathological overlay to his behaviour as well. That is to say it would be expected that his behaviour at times is poorly planned and somewhat impulsive. The executive impairments he has demonstrated on testing would impair his judgment and would also make his behaviour potentially disinhibited. Therefore his impairments would partly contribute to his behaviour and his offending. [Emphasis added][20]
[20] Exhibit 7, page 2
69 As to the degree of contribution, Dr Hughes reported:
“The severity of Mr Shomshe’s brain injury is classified as mild and the impairment in day-to-day functioning would be moderate. The assessment data indicates the contribution of his deficits would be best described as moderate, and neither mild or severe. Therefore his impairments would not entirely account for his behaviour, nor would they have no contribution to his offending.”[21]
[21] Exhibit 7, page 2
70 In his sworn evidence before me, Dr Hughes conceded that he based his assessment of nexus between your impairment and the offending on your version of events, although he maintained that your deficits were ever-present.
71 He was unaware that there had been a protracted history of negotiations between you and the complainant about the debt, he was ignorant of the steps you took to enforce it, and he was not informed of the totality of your conduct or intentions at the relevant time.
72 On your version to him, you had little time to consider your response to a perceived threat and you acted spontaneously in the heat of the moment.
73 However there was no threat, you had a gun at the ready, you gave chase to the complainant whom you recognised, and you shot at her as she attempted to escape from you.
74 The prosecutor read the agreed facts to Dr Hughes, as he followed along with Exhibit A in his hand. The transcript then records:
“MS GUESDON: In the interview, he told police he didn't hear any shooting, obviously denied to police any involvement, said he didn't hear any shooting at all, that's obviously contrary to what he told you?---Yes.
He does seem to say, in the interview, that he was some kind of middle-man between the victim, who allegedly owed a debt and whoever the ultimate beneficiary of that debt was, that's not something that he told you - either he told you the debt was owed to him, is that right?---Yes, that's right.
Having read this document [exhibit A, agreed facts] and what he told police, change your opinion in any way in terms of the connections between his impairment and the facts of the offending?---Well, it's a different account, obviously, of what he told me. My opinion is based on the assessment and in my identifying that he's definitely got cognitive deficits. Um, it's difficult to say the exact contribution they made at the time of the offence.
Is it fair to say that based on the events, as described in [t]his document, you can't point to any specific contributions impairment would make to his ultimate behaviour on this occasion?---No.”[22]
[22] T22 – 23, 27/5/16
75 I should add here, that I wondered whether you had lured the complainant to the garage for the purpose of committing an offence against her in an attempt to recover the debt. However, the prosecutor has frankly pointed out that there is no evidence upon which to base such an inference, and I agree with her. It is an inference I shall not draw.
76 Having rejected your version as given to Dr Hughes, there is simply a gap in the evidence to explain what you were doing or thinking immediately prior to committing the offence, why you responded the way you did, other than to say you were able to access a gun, which you determined to use in the manner described.
77 Although I am satisfied on the balance of probabilities that at the time of offending you suffered on-going cognitive impairments as a result of your acquired brain injury sustained in the affray, I am not satisfied on the balance of probabilities that there is any, or any significant nexus between your deficits and the offending. I do not consider your moral culpability to be reduced to any significant degree, nor do I consider it inappropriate to use you as a vehicle for general deterrence. Also, in my judgment, the need to specifically deter you from re-offending in like manner is not reduced by reason of your cognitive deficits.
78 Your deficits are not severe, and it is to your credit that you have capacity to run your own business. However, I am prepared to accept that your condition may make your imprisonment more onerous on you. But, I am not satisfied that imprisonment would aggravate your condition. According to the expert reports, it would appear your deficits are consistent and stable. Moreover, I note Dr Hughes testified that you may benefit from the structure of prison life.
Prospects for rehabilitation
79 You have had opportunities in the past to learn from your mistakes. You have been offered treatment designed to reduce your risk of re-offending. You chose to cease involvement in group therapy sessions. You breached the terms of your suspended sentence as well as the conditions of a community correction order when you committed the offence.
80 It is difficult to be optimistic about your prospects for rehabilitation.
81 That said, in view of your cognitive deficits, the prosecutor is prepared to support your counsel’s request for a community correction order, following a term of imprisonment.
82 I also note that you have undertaken a number of courses and personal development programs whilst on remand.[23]
[23] Exhibit 6
Sentence to be Imposed
83 Counsel referred to a number of authorities, including the one to which I have earlier referred, all of which I have considered when arriving at what I consider to be an appropriate sentence in your case. Those cases fortify my view that a head sentence of two years’ imprisonment in your case, even if combined with a community correction order, would fail to constitute just punishment.
84 I take into account all of the matters personal to you to which I have referred, including your prospects of rehabilitation. I must also take into account such matters as deterrence, especially general deterrence, which, as I said before, is of importance in a case such as this.
85 I do not find that your moral culpability is much reduced, if at all, or that you are not an appropriate vehicle for general deterrence by reason of any cognitive impairment. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
86 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. I also take into account your efforts at rehabilitation whilst on remand.
87 I have mentioned that both your counsel and the prosecutor agree that it would be appropriate to impose a term of imprisonment of up to two years and a community correction order to commence upon your release, or at the end of your period of parole. Having stated that I do not accept such a sentence constitutes just punishment, I can, by virtue of section 44 of the Sentencing Act 1991 combine a term of imprisonment of greater than two years with a community correction order:
“if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of detention already served) is 2 years or less.”[24]
[24] Sec. 44(1) Sentencing Act 1991
88 Under section 18 of the Sentencing Act, you have now served in excess of one year by way of presentence detention, and this period will be deducted in accordance with that section. Because of this, it is open to me to impose a term of imprisonment greater than two years and combine it with a community correction order, and that is what I propose to do.
89 As you know, you were assessed for your suitability for a community correction order. The assessment is favourable. However, I can only make such an order if you agree to it. So that you may make an informed decision about whether or not you will give your consent, let me tell you about the terms and conditions that I propose to include in the order:
90 The length of the order will be two years.
91 The order will commence on the day your parole period expires.
92 Every community correction order, including the one that I propose, contains seven mandatory conditions. They are:
1. you must not commit, whether inside or outside Victoria, during the period of the order, an offence punishable by imprisonment;
2. you must comply with any obligation or requirement prescribed by the Regulations;
3. you must report to, and receive visits from the Secretary during the period of the order;
4. you must report to the Community Corrections Centre specified in the order, in this case Reservoir within two clear working days after the order comes into force, namely within two days of completion of your parole period;
5. you must notify the Secretary of any change of address or employment within two clear working days after the change;
6. you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary; and
7. you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order. Any such directions may be given to you either orally or in writing.
93 I am also required to attach at least one condition in accordance with s.47 of the Sentencing Act 1991. In attaching these conditions I bear in mind –
A) the principle of proportionality;
B) the purpose for a sentence may be imposed as set out in s.5 of the Sentencing Act 1991; and
C) the purpose of a community correction order as set out in s.36 of the Act – namely: to provide a community-based sentence for a wide range of offending behaviours while having regard to and addressing your personal circumstances.
94 These are the proposed additional conditions:
1. The court requires you to undergo treatment and rehabilitation, which I shall soon specify, and as directed by the Secretary unless otherwise directed by the court. In attaching these treatment and rehabilitation conditions I have regard to
a. the need to address the underlying causes of your offending; and
b. the recommendations, information and matters identified in the presentence report concerning your treatment and rehabilitation
The treatment and rehabilitation specified by the court is as follows:
o assessment and treatment (including testing) for drug abuse or dependency;
o assessment and treatment (including testing) and, if considered appropriate to do so, in a residential facility for –
§ withdrawal from or rehabilitation for drug abuse or dependency;
o medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility;
o mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility;
o any program that addresses factors related to your offending behaviour;
o any other treatment and rehabilitation that the Secretary considers necessary and that may include employment, educational and personal development programs that are consistent with the purpose of the treatment and rehabilitation condition.
2. You will be required to be under the supervision of, and be monitored and managed as directed by the Secretary for the period of two years. I propose to attach this supervision condition for the purpose of ensuring your compliance with the order.
3. In addition, I propose to order that you serve an immediate term of imprisonment of three years. The community correction order will not commence until the day your parole period is completed.
95 I will explain the non-parole period in more detail in a moment, but I would direct that you serve a minimum period of two years before becoming eligible for parole.
96 My proposal then is to record a conviction and make a community correction order containing all of the conditions that I have just mentioned, but I shall just pause there.
97 Counsel, the terms and conditions I have just proposed, are they lawful and appropriate?
98 MS HINKLEY: Yes, Your Honour.
99 HER HONOUR: You both agree?
100 MS GAUNT: Yes, Your Honour.
101 MS HINKLEY: Yes, Your Honour.
102 HER HONOUR: Mr Shomshe, you must understand that if you breach any of the conditions of this order you may be charged with the offence of contravening a community correction order. That offence carries a maximum penalty of three months’ imprisonment. There may be other consequences. If you are found guilty of the breach, in addition to the penalty imposed for that offence, the court might vary or cancel the order or re-sentence you in respect of the offence before me today. That might mean you will be sent to prison as a result. Do you understand this?
103 OFFENDER: Yes, Your Honour.
104 HER HONOUR: I will ask that counsel be given a draft copy of the order. Ms Gaunt, would you mind going through the conditions one more time with your client.
105 MS GAUNT: Certainly, Your Honour. Thank you.
106 HER HONOUR: And double-checking the draft order.
107 MS GAUNT: Yes, Your Honour.
108 HER HONOUR: So you have it there? So it is a two year order, treatment and rehabilitation, assessment and treatment including testing if considered appropriate to do so in a residential facility, withdrawal from or rehabilitation for drug abuse or dependency, medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility, mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, programs addressing factors related to offending behaviour, any other treatment and rehabilitation considered necessary by the Secretary including employment, educational, personal development consistent with the purpose of the treatment and rehabilitation condition, supervision and monitoring for a period of two years, and an immediate term of imprisonment of three years.
109 Does the draft order conform to the order I propose?
110 MS GAUNT: Yes, it does, Your Honour.
111 MS HINKLEY: Yes, Your Honour.
112 HER HONOUR: Ms Gaunt, have you been through the conditions?
113 MS GAUNT: I have, and they're acceptable. Did you want me to have Mr Shomshe sign?
114 HER HONOUR: In one moment.
115 MS GAUNT: Yes.
116 HER HONOUR: Ms Shomshe, do you consent to the order in the terms that I have just outlined, in the full knowledge of the consequences of breaching such and order?
117 OFFENDER: Yes, Your Honour.
118 HER HONOUR: You have signed the order and I shall now sign it too. Very well. The order may be prepared in the terms I have indicated.
Sentences to be imposed
119 MURAT SHOMSHE, on the charge of conduct endangering life, you are convicted and sentenced to three years’ imprisonment. In addition, you will be bound by a community correction order commencing upon the expiration of your parole in the terms I have just outlined. After deduction of presentence detention, such a course is open by virtue of section 44 of the Sentencing Act.
Minimum Non-Parole Period
120 In determining the non-parole period in your case I am required to take into account the purpose of fixing a non-parole period which is “to provide for mitigation of punishment in favour of [your] rehabilitation through conditional freedom”.[25] The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release. The factors I am required to take into account are:
“(a) that a non-parole period has a penal element;
(b)that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c)that the prisoner’s prospects of rehabilitation are almost always a significant consideration.”[26]
[25] See DPP v Josefski (2005) 13 VR 85 paragraph 43
[26]Josefski, paragraph 43
121 Taking all these matters into account, including your prospects of rehabilitation, I direct that you serve a minimum period of two years’ imprisonment before becoming eligible for parole.
Presentence Declaration
122 Under s.18(4) Sentencing Act 1991, I declare that the period of 429 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
Statement under s.6AAA of the Sentencing Act
123 I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offence but for the plea of guilty. That is an artificial exercise in this case, because a combined term of imprisonment and a community correction order would not be available since, after deduction of your presentence detention, that term of imprisonment would inevitably exceed two years.[27] The term of imprisonment that I impose upon you today was adjusted to take account of the fact that the conditions contained in the community correction order extend for two years after you complete your period on parole. Therefore, I can only state that but for your guilty plea on Charge 1, conduct endangering life, you would have been convicted and sentenced to a term of imprisonment of not less than 40 months. I would have directed that you serve a minimum term of imprisonment equal to two thirds of the head sentence before becoming eligible for parole.
[27] See section 44(1) Sentencing Act
124 I direct, pursuant to s.6AAA, that the sentence that would have been imposed but for the plea of guilty be noted in the Court’s records.
Ancillary Orders
125 MS HINKLEY: An order is sought for disposal of certain items. There is only four items listed on there. I will hand those up now, and an order for the taking of a forensic sample .
126 HER HONOUR: Thank you. Any of those applications contested?
127 MS GAUNT: No, they're consented to, Your Honour.
128 HER HONOUR: Thank you very much. I shall first deal with the application under s.464ZF(2) of the Crimes Act. Pursuant to s.464ZF of the Crimes Act, I order that you, MURAT SHOMSHE, undergo a forensic procedure for the taking of a scraping from the mouth, and/or a blood sample in accordance with subdivision 30(A) of Part III of the Crimes Act until a sample of sufficient standard is obtained for placement on the data base.
129 The charge to which this order relates is the charge contained in Indictment No.C1409853.1.
130 Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied in all the circumstances that the making of the order is justified for the following reasons. The seriousness of the circumstances of the offending warrant the order; the prior convictions of Mr Shomshe are such as to warrant the making of the order; the order is by consent and the granting of the order is in the public interest.
131 I must inform you, MURAT SHOMSHE, that if, at the time of request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then a sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand?
132 OFFENDER: Yes, Your Honour.
133 HER HONOUR: I now turn to the disposal order. It is an order by consent. Do either of you wish me to read the order into the transcript? I propose to make the order in the terms of a draft order submitted for my signature.
134 MS HINKLEY: Yes, I believe that's sufficient, Your Honour.
135 MS GAUNT: Thank you, Your Honour.
136 HER HONOUR: The order on the 464ZF notes the appearances of counsel who appeared at the plea hearing, not counsel who attended today.
137 MS HINKLEY: Is it possible to amend that by hand, Your Honour? If not - - -
138 HER HONOUR: Yes. Please give the three copies back to counsel. If you have a red pen, just make the change and I will initial it. Thank you for that.
139 MS HINKLEY: Apologies, Your Honour.
140 HER HONOUR: That's all right. That's why we have the red pen here.
141 MS HINKLEY: Thank you, Your Honour.
142 HER HONOUR: Anything else?
143 MS GAUNT: No ,Your Honour.
144 MS HINKLEY: No, Your Honour.
145 HER HONOUR: Thank you, please remove the prisoner. I will just leave the Bench while we change tapes for the VCAT matter.
- - -
Indictment no. C1409853.1
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION
Court Reference: CR-15-0237
THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
MURAT SHOMSHE
SUMMARY OF PROSECUTION OPENING
| Date of document: | 4 April 2016 |
| Filed on behalf of: | The Director of Public Prosecutions |
| Prepared by: Craig Hyland Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | Solicitor’s code: 7539 146 Reference: A. Hickling |
Background
- In August 2014 the accused Murat SHOMSHE was using factory type premises at 2 Pau Street, Coburg North VIC 3058 for the purpose of small vehicle maintenance jobs, as well as for storage of assorted items.
- Early on the 25th of August 2014 the victim in this matter, Lisa MAUGERI, attended the factory at 2 Pau Street, Coburg North, in company with a friend, Catherine YOUNG. Present at the time were SHOMSHE and two other men, one of whom was known as “Yodi”. (MAUGERI p.146)
- After arriving at the factory a verbal dispute took place between SHOMSHE, the victim and YOUNG regarding a debt allegedly owed to SHOMSHE. SHOMSHE kept telling the victim that they weren’t leaving till they got the money. She made calls but was unable to obtain the money. She remained at the factory for a number of hours. (MAUGERI p.146)
- The next morning SHOMSHE agreed to let the victim leave in another car to attend a court appointment. SHOMSHE withheld the victim’s vehicle, a blue VT Clubsport (HSV 080) including her car keys, pending payment of the alleged debt. (MAUGERI p,146)
- Sometime around 8 am the victim left the factory by herself in the black Volkswagon. The victim travelled to the city in the Volkswagon, and left the vehicle parked on the street for about three hours. On returning to the vehicle at this time, the victim found that it was no longer there. It had been towed away by police. (MAUGERI p.147)
- The victim eventually made her way back to 2 Pau St on public transport, arriving there about 5.30 pm. The accused continued to ask for money from the victim and refused to return her car, claiming that she had lost his car so he was going to take her car instead. The associate called Yodi took the keys and drove off in the Clubsport. The victim left the factory on foot. (MAUGERI p.147)
- Over the ensuing days the victim has continued to negotiate directly and indirectly with SHOMSHE in an effort to sort matters out. An associate of the accused, co-accused Adriana FOTI, became involved in the negotiations during this period. (MAUGERI p.148,153)
Offending
- On Thursday, 28th of August 2014, FOTI told the victim that she was alone at the factory at 2 Pau Street, that she had the keys to the victim’s car, and the victim could come and get her car. (MAUGERI p.149)
- At approximately 8.30 pm the victim reattended at 2 Pau Street with a friend, Charlie KURANGHI, in a red Mazda sedan (UPQ 561). The victim saw her VT Clubsport was parked at the end of the street. The victim started to drive towards her car before reversing back out of the street because she felt like something was wrong. (MAUGERI p.148, KURANGHI p.188)
- The victim then headed towards Bakers Road before turning into a driveway of a house opposite Pau Street. KURANGHI got out of the car and headed to the front door of the house they had just pulled into, to ask to use the phone to call the police. (MAUGERI p.148, KURANGHI p.188)
- As the victim remained seated in the car she noticed a black hatchback driving up and down the street. The victim drove out of the driveway where she had parked and into an adjacent driveway, where she remained in the car and continued to wait for KURANGHI. (MAUGERI p.148)
- At this point the victim looked up and saw the accused SHOMSHE approach her car. SHOMSHE stood at the front of the car on the driver’s side, staring straight at the victim. He raised his right hand in which he held a firearm that looked to the victim like a black handgun, and pointed this gun at the victim. The victim reacted by reversing the car as quickly as she could out of the driveway. As the victim was reversing, the accused discharged the firearm in the direction of the victim. She heard a loud bang and then as she kept driving the accused walked to the driveway and she heard another two loud shots. (MAUGERI p.150, KURANGHI p.188) (Charge 1 – reckless conduct endangering life)
- The victim drove away from from the scene until she ended up in Pearcey Grove, a dead-end street. At this point the victim has contacted police with the assistance from a resident in that street. (MAUGERI p.151)
- Later examination of the red Mazda sedan by a Firearm Examiner from Victoria Police Forensic Services Centre found a lead fragment from a fired bullet lodged in the rear driver’s side tyre. There was damage caused by passage of another fired bullet in the front bonnet of the car. This also caused damage to the radiator. (HOWARD p.342)
Arrest and Interview
- On Friday, 29th of August 2014 at about 1 pm, SHOMSHE was observed leaving 2 Pau Street on a motorcycle and was apprehended by Police at the corner of the street. (HORVAT p.317-8)
- A search of the Pau Street factory and SHOMSHE’s home address failed to locate the firearm.
SHOMSHE was taken to Fawkner Police Station. He was subsequently interviewed by Police. When interviewed, he stated:
o“I sort of kept (the car) there, so no-one takes the car, yeah. And when she pays the money, she gets the car, yeah. So I’m sort of like … middleman” (A66,94)
oHe didn’t want to get involved at the end of the day but she sort of got me involved in it (Q67)
oHe said to her it had nothing to do with him, he was stuck in the middle and she was turning on him (Q85.92)
oEventually she got the car back and paid the guy the money (Q68)
oIn relation to the alleged shooting at 8.30 pm, “I’m surprised I didn’t hear it.” (A150)
Subsequent events
- On Monday, 1st of September 2014, while the accused was in custody, FOTI contacted the victim to discuss the return of her Clubsport. Ultimately the victim was able to regain possession of the Clubsport, albeit with some damage. (MAUGERI p.157-8)
Ancillary matters
- The maximum penalty is 10 years imprisonment.
- The matter resolved to a plea to the current charge on the first day of the second listing of the trial on 22 February 2016. Witnesses including the victim had been cross-examined at a committal hearing.
- FOTI pleaded guilty to a charge of harass witness in the Magistrates Court. (16 February 2016, 36 days imprisonment (equivalent to pre-sentence detention))
- Presentence detention pursuant to s18 Sentencing Act is 369 days exclusive of the plea date. The accused remained in custody from date of arrest on 29 August 2014 until he was bailed on 24 July 2015. However between 3 December 2014 and 2 July 2015 inclusive he served a 7 month Magistrates Court sentence for unrelated matters. He was arrested and re-remanded on 4 August 2015 and remained in custody until the plea date of 11 April 2016.
- The prosecution seeks a forensic sample.
- The prosecution seeks disposal and forfeiture of items seized from the factory at 2 Pau Street and from the accused.
Prosecutor
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