DPP v El-Haouli & Shomshe
[2006] VSC 165
•28 April 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1534 of 2004
| DIRECTOR OF PUBLIC PROSECTIONS |
| MOHMOUD EL-HAOULI |
| and |
| MURAT SHOMSHE |
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JUDGE: | BELL J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 -27 April 2006 | |
DATE OF SENTENCE: | 28 April 2006 | |
CASE MAY BE CITED AS: | DPP v El-Haouli & Shomshe | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 165 | |
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Criminal Law – Sentencing – affray – Pleas of guilty – young first offenders - 5 ½ years delay – undertakings to give evidence against co-accused – short affray – offenders suffered ongoing physical and psychological injuries - release on adjournment without conviction –Sentencing Act 1991, s. 75
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Pubic Prosecutions | Mr T Gyorffy QC with Mr P A D’Arcy | Mr S Carisbrooke, Acting Solicitor for Public Prosecutions |
| For Mohmoud El-Haouli For Murat Shomshe | Mr C Trail Mr A Lavery | C D Trail Lawyers Ann Valos Solicitors |
HIS HONOUR:
Mohmoud El-Haouli and Murat Shomshe, you have been both presented on a charge that at Broadmeadows on 18 November 2000 you unlawfully fought and made an affray. You have both pleaded guilty to this charge.
Affray is a serious offence. The maximum penalty prescribed for the commission of this offence is 5 years imprisonment.
The circumstances in which you both committed the offence are described in a summary provided by counsel for the Director of Public Prosecutions with the consent of your respective counsel.
At about 11.30pm on 18 November 2000 a fight occurred between two groups of youths on Pearcedale Road, Broadmeadows between the Safeway Supermarket and a building known as Youth Central. At the time there were many people in the area. A cultural festival was underway in the car park and streets around the supermarket. The two groups are referred to in the depositions as the “Turks”, which is the group to which you both belonged, and the “Islanders”. A third group of youths was involved in events that took place before the affray.
Shortly before 11.30pm members of that third group walked past the supermarket where they were confronted by some of the Turks. You, Mr Shomshe, were drunk and challenged a member of the third group to fight. That person pacified you and you said that things were cool and shook his hand.
Then a member of the Islanders, described as a Samoan, walked by. You, Mr Shomshe, threw a bottle at his feet and it smashed. The Samoan was grabbed by another member of the Turks but the Samoan said he did not want to fight. He said he had 30 friends down the road who would bash the Turks if they saw things being thrown at him.
The Samoan alleges he was called a “black cunt” by a member of the Turks. He had a brother aged only 6 with him and was concerned for his welfare. You, Mr Shomshe, stepped in and said “if you want to fight let’s go now”. You did not go further after a female member of your group asked you to stop. She pushed you away. The Samoan left.
This account was supported by another member of the Islander group who was with the Samoan. This person says one of the Turks said something smart to him. He says the Samoan said he did not want any trouble. He says you, Mr Shomshe, said not to worry about the smart thing said because the speaker was drunk. You also said the Turks would punch on if the Islanders wanted to.
Mr Shomshe, up to this point at least, your conduct was aggressive and ill-judged. You behaved in a drunken manner and were looking for a fight. You threw a bottle at a person’s feet. On the other hand, you were quickly pacified and tried to cool things down when something smart was said. Mr El-Haouli, you are not specifically named in the account of these early events and you were not drunk. But you were part of the group of Turks who behaved in this aggressive and ill-judged manner.
The Samoan and his friend went over to the Islander group. One of them was told to go back to the Turks and get smart with them, which he did. He said the Islanders wanted to speak to the Turks in the park. He said the Islanders did not want to fight the Turks. You, Mr Shomshe, said you had a “piece”, meaning a gun, in your car, but you had no gun and no car. The Islander returned to his friends.
It is very unclear why, but soon after this members of the Turks made their way across Pearcedale road towards Youth Central. One of them was Abdul, your elder brother by one year, Mr El-Haouli. He was observed swinging a tree stake around, trying to hit Samoans. This lasted only a few seconds. Mr El-Haouli, you were observed being handed a stake by your brother and swinging it. Within a short period of time there were three Turks on the ground. One of them was you, Mr Shomshe. The other two were very likely you and your brother, Mr El-Haouli.
However the fight started, the Turkish group, who were physically and numerically smaller, were quickly overwhelmed by the Islander group. The Turks attempted to flee but were pursued and caught. Mr El-Haouli, tragically your brother Abdul was beaten to death. You were beaten unconscious. You sustained serious injuries including severe bruises, grazes and lacerations and extensive cuts that required many stiches, including to the face and head. Your injuries are depicted in police photographs. You were hospitalised but left early because your brother was not expected to survive. You, too, Mr Shomshe were beaten unconscious. Your injuries were even more serious than Mr El-Haoulis’. You were struck a number of times to the body and head. One of these blows caused brain damage from which you still suffer significant medical consequences. You too were hospitalised. I will say more about your respective medical conditions later.
Mr El-Haouli, for a short period you had possession of and waved a stake but it is not established that you struck anybody with it or that you otherwise caused injury to anybody. Mr Shomshe, it is not established that you had possession of a stake or that you caused injury to anybody. However, it is established that, for a short period beginning with the fight in the vicinity of Pearcedale Road until you were overwhelmed and fled, you were both engaged in a fight that constituted an affray, during which some members of the Islander group suffered relatively minor injuries.
The police investigated the matter. For whatever reason, charges were not laid for about 3 ½ years. The two of you were charged with affray, as I have said. Six members of the Islander group have also been charged with affray (1 count), manslaughter (1 count), causing serious injury intentionally (2 counts) and causing serious injury recklessly (2 counts). The charge of manslaughter arises out of the death of your brother, Mr El-Haouli. The charges of causing serious injury intentionally and recklessly arise out of the injuries that were caused to both of you. For whatever reason, it took about 2 ½ years for the charges against you and the other accused to come on for trial.
As I have said, you have both pleaded guilty to the charge of affray. The other accused have pleaded not guilty to all of the charges and await trial before me after I have passed sentence upon you. You have both agreed to give evidence against those accused if called upon to do so.
Mr El-Haouli, your personal circumstances are that you are presently aged 23 and unemployed. You were nearly aged 17 ½ when you committed the offence. You were supported in Court by your sister Susan, your older brother Rob and his son, your nephew, Abdul, who was named after your late brother.
Your childhood was one of insecurity and alienation. You were born in Australia of Lebanese parents but they returned to Lebanon when you were aged 10. The family stayed in Lebanon for 2 years. Unfortunately your parents then separated. Your mother returned to Australia with three of your siblings. You stayed in Lebanon with Abdul and one other older brother. You had no parental support for 6 months and felt abandoned.
You eventually returned to Australia and resumed your education midway through year 7. You completed year 11 but not year 12. You were very unhappy at school in that year and joined Abdul working as a labourer at the Melbourne fruit and vegetable market. This was about one month before you committed the offence. At this time you felt optimistic about the future. You were working with Abdul to whom you were very close and you were comfortable in the market environment.
You came to be at Broadmeadows on the night concerned to attend a community festival with Abdul and his friends, who were older than you. You also intended to meet your then girlfriend and her friends. You were not previously familiar with Broadmeadows. You did no go there to create trouble.
The tragic events of that evening changed your life forever. You tried to return to your former employment but were not successful. You have received little support in the process of recovering from your physical and psychological injuries because you cannot be classified as a victim until these criminal proceedings are at an end. I hope this barrier will be removed when I pass this sentence upon you. Your life has been in limbo for over 5 years. You and your family have been devastated by the death of your brother. You live with your mother and other siblings, and she is prone even now to very emotional displays of grief. She has decorated the house as if it were a shrine to Abdul. She is overprotective of your welfare. Your income support has been precarious and you have had no such support for some periods.
Ian Joblin, your forensic psychologist, has assessed your mental condition. You have not coped with the death of your brother. You are fearful of travelling at night for fear of being further harmed. You have no history of aggressive or anti-social behaviour. You experience constant flashbacks. You live in a state of considerable depression and are suffering from post traumatic stress disorder. Your psychological issues remain unresolved, but you are not likely to engage in any anti-social behaviour.
Mr El-Haouli, you had not come to the notice of the courts prior to this incident. You had no prior convictions or charges and have had none since. There are no other outstanding matters concerning you before the courts. The only criminal blemish on your name is this offence.
I am satisfied you are extremely remorseful for your role in the offence. You have pleaded guilty and made full factual admissions. As I have already mentioned, you have offered to assist the prosecution in the trial of the remaining accused persons and have undertaken to the Court to give evidence at that trial if called upon to do so. This evidence is likely to be useful to the prosecution.
Mr Shomshe, let me now turn to your personal circumstances.
You are presently aged 24 and also unemployed. You were aged 18 ½ at the time of committing the offence. You were supported in Court by your wife, Wannini, and her sister Nicki. You have two sisters aged 26 and 18 who are very supportive of you. Your father is a pensioner and your mother is engaged in domestic duties. Your parents are recently separated.
You completed education to the end of year 10 and left school to take up positions as an apprentice. You then decided not to work in a trade and started working at the Melbourne fruit and vegetable market where you were employed at the time of the incident.
You were married some 2 ½ years ago. Your wife works. You and your wife have decided to defer the decision to have children until after these criminal proceedings are completed. Wannini is very supportive of you but you feel a strong sense of guilt at not being able adequately to support her.
You sustained serious head injuries as a result of the incident and have little recollection of what occurred. You accept responsibility for your part in the incident but this is based more on what you were told than on what you actually remember. You accept you were drunk and behaved in a most ill-judged and immature manner, particularly in the early stages of the incident.
Your medical condition is described in a report prepared in 2001 by Sunshine Hospital. After the fight you were hospitalised for 3 days. You have required rehabilitation since being discharged. You experience headaches and post traumatic stress disorder. You have impaired memory functioning and poor capacity to maintain attention. You are slow to perform complex tasks. Your executive (ie decision-making) functions are mildly to moderately impaired.
Your psychological condition was assessed by your forensic psychologist, Tim Watson-Munro, in April 2006. You continue to suffer from the impact of the injuries you sustained. The diagnosis of post traumatic stress disorder is still appropriate. You experience sleep disturbance, depression and anxiety. You are socially withdrawn and hypervigilent to danger. The cognitive deficits identified in the Sunshine Hospital report appear to be ongoing to some extent. You have very positive prospects of forensic rehabilitation but recovery from your medical conditions remains less certain.
Like Mr El-Haouli, you had not come to the notice of the courts prior to the events of the night concerned. You had previously been of good behaviour and have been so since. You have not been subsequently charged for offences other than the one I am now dealing with and you have no matters outstanding before the courts. Your only criminal blemish comes from this offence.
You too are extremely remorseful for your role in the offence. You have pleaded guilty and made full factual admissions, even though you have limited recollection of the events. You too have offered to assist the prosecution in the trial of the remaining accused persons and have undertaken to the Court to give evidence at that trial if called upon to do so. Because of your limited memory of the events, this evidence may not be very useful to the prosecution, but your preparedness to assist is still a matter that is of significance.
Mr El-Haouli and Mr Shomshe, you both committed the serious crime of affray. This crime is so serious that a sentence of imprisonment might ordinarily be called for. The manner in which you behaved deserves strong condemnation. Outside the Safeway supermarket you harassed some of the passers-by. A bottle was thrown and smashed at the feet of one of the Islanders for no apparent reason but to provoke him. Members of the Islander group were spoken to in an abusive manner, again for none but that same apparent reason. In the knowledge that, at the least, a confrontation with the Islanders might result, you both went across Pearcedale Road with some other members of your group. You then engaged in a fight and made an affray. Even though it was short in duration, it would have put innocent members of the public in fear when they were simply trying to enjoy the cultural festival. If it were not for the exceptional nature of your cases, you would both have faced certain prison sentences for your criminal conduct.
The following circumstances, taken together, make your cases so exceptional that, in my view, prison sentences are not called for:
· Your crimes of affray were serious ones but were not at the higher end of the scale of seriousness for this crime. It is not alleged that members of the public suffered any affect over and beyond the affect of observing the fight. That fight was short in duration because the small group to which you both belonged was quickly overwhelmed by the physically and numerically larger group of Islanders.
· You have both pleaded guilty and demonstrated that you suffer from extreme remorse.
· You have both undertaken to give evidence on behalf of the prosecution in the trials of the remaining accused if called upon to do so.
· You have both previously been of good character and had no previous findings of guilt or convictions and have none subsequent to the incident. Neither of you have any other matters outstanding.
· You both have excellent prospects of rehabilitation.
· You both come from supportive families.
· Both of you were of a young age at the time of the commission of the offence. Mr El-Haouli, you were only aged 17 ½, just 6 months outside the time for being dealt with as a minor, and Mr Shomshe, you were only aged 18 ½. You are now aged 23 and 24 respectively, which is still a relatively young age.
· There has been an unusually long delay, both in the investigation that led to the laying of the charges and the commencement of the trial. It took some 3 years for the charges to the laid and some 2 ½ years for trial to commence, a total delay of some 5 ½ years.
· There is evidence that you, Mr El-Haouli, had possession of a stake during the affray, but it is not established that you physically harmed anybody with it or otherwise. There is no evidence that you, Mr Shomshe, had possession of a stake; nor is it established that you physically harmed anybody. However, some members of the Islander group suffered relatively minor injuries during the affray.
· You both suffered serious and ongoing physical and psychological injuries as a result of the incident. In particular, Mr El-Haouli, you lost your brother, and Mr Shomshe, you suffered brain damage.
These circumstances all suggest I should give less weight to the sentencing considerations of general and specific deterrence, and denunciation, and greater weight to rehabilitation and remorse, than the Court normally would where the offence is one of affray.
I attach particular significance to the fact that you are both first offenders who have pleaded guilty to the charges and have undertaken to assist the prosecution in the trials of the remaining accused. Your youth is such that I should take appropriate notice of your excellent prospects of rehabilitation. A long period – 5 ½ years – has passed since the offences were committed during which you have had these matters hanging over your heads. You have suffered so much during this period, physically and emotionally, and will continue to do so in the future, that a sentence of imprisonment would be a wholly disproportionate response to your conduct.
I consider it to be appropriate to release you both without conviction. I do so by reason of the combination of the factors that I have mentioned. Having regard to the suffering you have experienced as a result of the incident, little would be achieved by convicting you, and convictions could harm your rehabilitation.
I have considered whether to fine you both or to release you on undertaking. I think little would be achieved by imposing fines. You are both impecunious. You would probably scrape up the money to pay the fines from your families, which would defeat their purpose. The fines would have to be modest, and they would be seen to be out of proportion to the gravity of your criminal conduct. I have condemned your criminal conduct and I am quite sure you both understand its gravity. I consider no fine I could impose is necessary to strengthen either my condemnation or your understanding.
I have considered whether to differentiate between you for the purpose of the sentence to be imposed. In my view the differences between you are insufficient to warrant differential treatment and such differences as there are balance out in any event.
Mr El-Haouli and Mr Shomshe I will now announce my sentence.
Mr El-Haouli, I am satisfied that you are guilty of the crime of affray in that at Broadmeadows on 18 November 2000 you unlawfully fought and made an affray. I release you without conviction and adjourn the proceedings for a period of 12 months on you giving an undertaking with the following conditions attached:
(1) You must appear before the Court if called upon to do so during the period of the adjournment.
(2) You must be of good behaviour during the period of the adjournment.
Mr Shomshe, I am satisfied that you are guilty of the crime of affray in that at Broadmeadows on 18 November 2000 you unlawfully fought and made an affray. I release you without conviction and adjourn the proceedings for a period of 12 months on you giving an undertaking with the same conditions attached, namely:
(1) You must appear before the Court if called upon to do so during the period of the adjournment.
(2) You must be of good behaviour during the period of the adjournment.
On you both giving the undertaking with those conditions, the proceedings will be adjourned until Monday 30 April 2007. If the Court is satisfied that you have observed the conditions of your undertakings, the charges of affray will then be dismissed without any further hearing of the proceedings. If the Court is not satisfied that either of you have observed the conditions of your undertaking, you will be brought back to this Court and may be punished on the charges of affray that have been adjourned. You may also be punished for failing to be of good behaviour.
Pursuant to s. 5(2AB) of the Sentencing Act 1991 I announce that I am imposing a less severe sentence than I would otherwise have imposed because of undertakings given by the offenders, being you Mr El-Haouli and you Mr Shomshe, to assist, after sentencing, law enforcement authorities in the prosecution of the offences allegedly committed by the remaining accused. I will cause to be noted in the records of the Court the fact that you gave these undertakings, which were that you would, if called upon to do so, give evidence in the trials of the remaining accused in the terms that you identified in the evidence that you both gave before me on 26 and 27 April 2006.
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