DPP v Khoder

[2023] VCC 1899

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00814

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMED KHODER

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JUDGE:	HIS HONOUR JUDGE D. SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2023
DATE OF SENTENCE:	19 October 2023
CASE MAY BE CITED AS:	DPP v Khoder
MEDIUM NEUTRAL CITATION:	[2033] VCC 1899

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Using a Firearm Contrary to a Prohibition order; Intentionally Cause Injury; Possession of a Drug of Dependence

Legislation Cited:      Sentencing Act 1991

Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Bugmy v R (2013) 249 CLR 571; Worboyes v The Queen [2021] VSCA 169.

Sentence:                  4 Years and 5 Months Imprisonment with a Non-Parole Period of 3 Years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Ms Upton	Slades & Parsons

HIS HONOUR:

Introduction

1Mohamed Khoder, you have pleaded guilty to an indictment containing three charges – using a firearm contrary to a firearm prohibition order, which carries a maximum penalty of 10 years' imprisonment, intentionally causing injury, which also carries a maximum penalty of 10 years' imprisonment, and possession of a drug of dependence, which in the circumstances of your case carries a maximum penalty of 12 months' imprisonment.

2You have also admitted your criminal history.

Circumstances of offending

3The circumstances of your offending were set out in the summary of prosecution opening for plea dated 18 September 2023.  That document contains an agreed factual basis for the offending for which you now fall to be sentenced.  Your offending can now be briefly summarised.

4Your victim in this matter, Mr El-Achkar, is your brother-in-law, the husband of your sister who passed away in February 2021.  At the time of the offending he resided in Dallas.  As at 16 July 2021, for reasons that have never been explained, you had some sort of grievance with Mr El-Achkar.  At 7.52 pm on that day, you telephoned him, asking his whereabouts.  When Mr El-Achkar said that he was at home, you said you were coming to see him.

5About half an hour later, you arrived outside Mr El-Achkar's premises on a motorbike.  You knocked on the front door, and Mr El-Achkar let you into the house.  Mr El-Achkar did not realise that at this time you were carrying a firearm.  You followed Mr El-Achkar into the lounge room and then pushed him to the chest, saying 'why did you go see Khalid?'  You were angry and pushed Mr El-Achkar to the couch.  At this point Mr El-Achkar turned and saw that you were holding a firearm.  You are subject to a firearm prohibition order dated 2 June 2020, and your conduct in relation to this firearm therefore forms the basis of Charge 1 on the indictment.

6You pointed the firearm at Mr El-Achkar, who observed that you were shaking.  Mr El-Achkar believed that you were going to shoot him through the heart.  He said to you 'what are you doing', and 'don't, don't, don't!'

7You then fired the firearm in the direction of Mr El-Achkar.  He heard the bang and felt pain in his left arm.  The bullet from the firearm went through the skin on Mr El‑Achkar's left arm.  Your conduct in this regard forms the basis of Charge 2 on the indictment.  You said to Mr El-Achkar 'if you go to my mums, I'll shoot you!'  You then left the premises.

8Soon after your departure, Mr El-Achkar's son took him to the Northern Hospital where he was found to have two wounds to the dorsal forearm 1 centimetre and 1.5 centimetres long.  Three days later, at the hospital, further treatment was required with regard to the wound.  The wound was found to be superficial and did not involve deeper structures of the arm.

9You were arrested at 7.30 am on the day after your offending, where police located a small amount of methylamphetamine, this substance relevant to Charge 3 on the indictment.  Despite searches of your vehicles and home, the firearm used in your offending has never been located.

10You were interviewed at Melbourne West police station on 17 July 2021, where you admitted possession of methylamphetamine, however, denied shooting Mr El‑Achkar.  In that police interview, you referred to Mr El-Achkar as 'my fucken dog brother-in-law.' You were remanded in custody, where you have remained for the past 824 days.

Victim impact

11Your victim Mr El-Achkar completed a Victim Impact Statement on 27 August 2023, and that statement was tendered at your plea hearing and marked Exhibit 2.  At the request of your victim, that statement was not read aloud in court, and I will not now detail its contents, save to say that after two years since your offending, Mr El-Achkar, who was at the time of your offending grieving the unexpected death of his wife, remains significantly adversely affected by your conduct.

12Victim Impact Statements are a meaningful way in which victims of crime can participate in the sentencing process, by informing the court of the often long lasting and catastrophic effects of crimes upon them.  In formulating an appropriate sentence in your case, I have taken into consideration the Victim Impact Statement of Mr El-Achkar.

Procedural background

13

As indicated in the chronology attached to the summary of prosecution opening for plea, this matter proceeded to a contested committal hearing on 16 May 2022, before being listed for trial in this court on 22 August 2023.  Having initially being charged with the crime of aggravated burglary, an indictment filed in June 2023 did not include that charge, and the matter ultimately proceeded before me on

3 August 2023 for a sentence indication hearing.  The sentence indication given was ultimately accepted by you and you entered pleas to the charges on the indictment on 8 August 2023, with your substantive plea hearing taking place on 28 September 2023.

Nature and gravity of your offending and your level of culpability

14With regards to Charges 1 and 2 in the indictment, I agree with the prosecution that your conduct represents serious examples of the relevant offences.  The maximum penalties applicable to both of these offences, 10 years' imprisonment, reflects in a general sense the seriousness of this type of offending.  In relation to the offence of causing injury intentionally, while it is correct to say that the injury or injuries inflicted on Mr El-Achkar were not at the highest level, the circumstances in which this offence occurred were very serious and potentially catastrophic for Mr El-Achkar.  I am satisfied beyond reasonable doubt that you arrived at Mr El‑Achkar's property, a place where he was entitled to feel safe, in an angry and agitated state and in possession of a firearm.  Fairly quickly after your arrival you pushed Mr El-Achkar in the chest and pointed an apparently lethal weapon at him, in circumstances where you must have been very close to Mr El-Achkar at the time of the weapons discharge.  Mr El-Achkar believed that he was going to be shot through the heart.  You were shaking at the time.  In those circumstances, notwithstanding the relatively low-level injuries sustained by Mr El-Achkar, your firing of a lethal weapon at close range to a victim whom for some reason you harboured a grievance, must be seen as extremely serious and concerning.

15Turning to your use of a firearm in contravention of a firearm prohibition order, I also regard this conduct as extremely serious on your part.  Firearm prohibition orders are designed to keep the community safe from firearm related violence.  The order can be made in the public interest by the Chief Commissioner of Police where they are satisfied that a firearm may be used to endanger the peace and safety of the public.  Essentially therefore, these orders are designed to keep guns out of the hands of people that should not have guns, in the interest of community safety.  The gravamen of your conduct relates to your breach therefore of a public safety order in connection with firearms.  Whilst your criminal history does not include prior convictions for this precise offence, concerningly you have prior convictions for breaching court orders, for possession of a controlled weapon without excuse, and for being a prohibited person possessing an unregistered firearm.  In the context of your extensive criminal history which includes matters of serious violence, including recklessly causing serious injury and armed robbery, your conduct in this case of using a firearm contrary to a firearm prohibition order is particularly serious.

16In relation to the possession of methylamphetamine charge, I am satisfied that the amount of drugs in your possession was a small quantity, and was likely for your own use.

17In terms of your moral culpability for the offending, I regard your extensive criminal history as elevating your culpability for the current offending.  It seems that significant criminal sanctions in the past have not in any way deterred you from engaging in serious criminality.  I note that you were released from prison some 81 days prior to the current offending.  That you would offend in this serious manner so soon after your release from prison, and in the knowledge that criminal offending will inevitably result in significant sanctions, elevates your culpability for your offending in my view.  Your counsel did not submit that your moral culpability was in any way diminished by virtue of the Verdins mental impairment principles, nor the Bugmy principles.  Accordingly, I have concluded that your level of responsibility and culpability for your offending is significant.

Personal circumstances

18You are now 36 years of age.  You are the youngest of five siblings.  As I have previously indicated, one of your siblings, a sister, passed away in February 2021 due to heart failure.  Your childhood was disrupted by your father's involvement in crime, with him serving an 11 year gaol sentence when you were aged between five and 16 years.  You remained in sporadic contact with your father following his release from prison, until he passed away in 2008 during heart surgery.  One of your siblings, your older brother, has also been involved in crime and would impart serious physical assaults upon you during your childhood, when your father was in jail.

19You were raised by your mother and have remained close with her.  You attended a number of primary schools before ultimately being expelled at Year 9.  You have had some periods of employment in the area of concreting.  Sadly, you have spent much of the past 12 years in prison.  You have a long-standing issue with regards to drug abuse.  You commenced using cannabis at the age of 14.  You also have a problematic history with regards to methylamphetamine and have described yourself as a heavy user.

20Your criminal history is extremely concerning.  You have multiple prior matters in the Children's Court jurisdiction for matters of violence and dishonesty.  In 2007 you received an intensive Corrections Order with regard to charges of robbery and intentionally causing injury.  In 2012 you received a sentence of five years' imprisonment with a non-parole period of three years for the offence of armed robbery.  According to the reasons for sentence of His Honour Judge Howie from 30 March 2012, you were essentially in company with others, including a cousin, and you waited in the getaway car whilst the offending took place.  In those sentencing remarks, His Honour referred to your problematic use of various drugs including amphetamine, methylamphetamine, MDMA, cocaine, heroin and benzodiazepine.  On 18 April 2012 you received a sentence of eight months' imprisonment with regards to offences which included recklessly causing injury.  On 28 August 2012 you received a new global total effective sentence of seven years and six months' imprisonment, with a non-parole period of four years, for offences which included false imprisonment, recklessly causing serious injury, and prohibited person possessing an unregistered firearm.  That sentence incorporated previous sentences that I have outlined in your criminal history.  The details of your offending and the complex criminal chronology was outlined in the reasons for sentence of Her Honour Judge Hogan dated 28 August 2012.  On 10 May 2013 you received a new global total effective sentence of seven years' imprisonment, with four years and six months of that sentence being concurrent with the sentence imposed on 28 August 2012, with a new non-parole period of four years and nine months, for offences which included armed robbery and attempted armed robbery.  The details of that offending were set out in the reasons of sentence of His Honour Judge Bourke on 10 May 2013.  As highlighted by your counsel in submissions, you appear not to have been given the benefit of release on parole in any meaningful way, and as a result and notwithstanding your relative youth, you have spent a considerable period of time in custody.

21According to your counsel, some months before the current offending, in February 2021, your sister, and the wife of your victim, died suddenly of a ruptured aorta.  You were apparently present when she died, and understandably this was an extremely traumatic event for you and your family.  According to your counsel your sister's death sparked a significant relapse into drug use on your part and your drug use apparently contributed to your decision making with regard to the current offences.  Your relationship with Mr El-Achkar for unknown reasons deteriorated after the death of your sister, and you had a grievance with him at the time of your offending.

22You have been in custody now for 824 days, since July 2021.  I accept that throughout this time, you have maintained the love and support of your wife, Christie, your niece Sajah Ali, both of whom wrote supportive character references for the purposes of your plea hearing, and your broader family.  Given your extremely troubled history, the ongoing support of your family is a positive matter with regards to your rehabilitative prospects.  In your letter to the court dated 7 August 2023, Exhibit F at your plea hearing, you indicated that since being in custody you have had a lot of time to think about your past and your future, and learning from your mistakes.  In that letter you expressed considerable remorse to your victim with regards to your offending.  A letter from psychologist Jessica Kent from Caraniche, dated 4 May 2022, tendered at your plea hearing and marked Exhibit C, documents your successful involvement in and completion of relevant drug and alcohol programs whilst in custody.  According to Ms Kent you completed individual counselling with Caraniche between 21 October 2021 and 4 May 2022, engaging in some 16 individual counselling sessions, and engaging positively, focussing primarily on the association between interpersonal relationships, substance use and offending behaviour.  Your rehabilitative progress whilst in prison is further evidenced through the certificate of completion from Caraniche dated 28 October 2021, and a urine analysis confirmation with regards to urine screens between 24 November 2021 and 24 November 2022, Exhibits D and E respectively.

Sentencing factors

23The Sentencing Act 1991 (Vic) requires me to take into consideration various factors and purposes when formulating an appropriate sentence in your case. I have already referred to the relevant maximum penalties, the nature and gravity of your offending and its impact upon your victim, and your level of culpability.

24I have also referred to your previous character, including your extensive criminal history.

25I turn now to a consideration of your plea of guilty.  When initially interviewed by police you denied your involvement in the shooting.  You indicated an intention for the majority of the criminal process to contest the allegations, proceeding to a contested committal, and your matter resolved only a matter of weeks prior to trial.  In that regard your plea cannot be considered an early one.   However, you were initially charged with the crime of aggravated burglary, and the subsequent indictment, which does not contain that charge, must be seen as a significant shift in the parameters of the Crown case against you, at a fairly advanced stage in the proceedings.  Furthermore, the fact remains that through your plea of guilty a trial which would have taken some days and necessitated your victim Mr El-Achkar being cross-examined, has been avoided, a matter of considerable utilitarian benefit.  Furthermore, your matter resolved through the sentence indication hearing process in August of this year, in circumstances where an announcement by this court with regards to the successful resolution of unprecedented backlogs, had not yet been made.  In those circumstances, it is appropriate to recognise the enhanced utilitarian benefit of your plea of guilty in these circumstances, pursuant to what is often referred to as a Worboyes discount.

26As conceded by the prosecution, your plea of guilty does provide a basis for the recognition of your remorse.  Your letter to the court, Exhibit F, also reflects your remorse for your actions, albeit you have never completely explained why you engaged in this appalling behaviour, and you have declined to further facilitate the administration of justice by informing police with regards to the whereabouts of the weapon.  In all the circumstances, a modest mitigatory allowance with regards to remorse is warranted.

27Your offending occurred in July 2021.  There has been a delay between the offending date and the date of sentence, exceeding two years.  That delay has occurred in the context of the COVID 19 pandemic and its impacts upon the disposition of matters in this court.  In that period, you have been in custody, an environment that has been significantly impacted by the COVID 19 pandemic.  As is now well known, whilst the situation has significantly abated, prisoners have had to endure restrictions with regards to freedom of movement, access to visits, and access to employment and other therapeutic activities, in addition to the fears attendant upon the incursion of COVID 19 into the prison environment, with the compromised demographic.  A further mitigatory allowance is warranted due to the delays in the context of the COVID 19 pandemic.

28In all the circumstances, I regard your prospects for rehabilitation as being extremely guarded.  For a man of your age, your criminal history is appalling.  Time and time again, you have demonstrated an inability to avoid the commission of extremely serious, and indeed, violent offending.  You are at risk of institutionalisation in the prison setting.  You have been unable to remain in the community for any extended periods of time.  Your current offending is extremely concerning.  To a certain degree, it remains unexplained.  However, you do have a support network around you, including your wife and family who clearly regard you highly.  You have it seems used your time in custody productively, and to a degree have demonstrated your sincere intentions with regards to drug rehabilitation.  Clearly you will need significant assistance to reintegrate into the community upon your release from prison.

29Your serious conduct must be denounced.  Given the proliferation of firearms in the community and the self-evident dangers associated with this phenomenon, there is a significant need for any penalty I impose to reflect the important sentencing purpose of general deterrence.  Notwithstanding your pleas of guilty, your significant criminal history means that any penalty I impose must seek to specifically deter you from engaging in such serious behaviour again.  Given the nature of your offending coupled with your criminal history, the community must be protected from you, though I acknowledge that such protection can be advanced through meaningful rehabilitation following your release from prison.

30There is in my view a need for a degree of cumulation between Charges 1 and 2 on the indictment.  There is, however, also a need to take care to avoid double punishment, given that your use of the weapon elevates the gravity of the intentionally cause injury charge.  However, as I have indicated, the gravamen of your criminality with regards to Charge 1 relates to your breach of a public safety order, and given the nature of the offence and your criminal history, a measure of cumulation to reflect this separate criminality is warranted in my view.

Sentence to be imposed

31On 3 August 2023, when I gave a sentence indication in this matter, I then indicated that there was no evidentiary basis for any mitigatory allowance with regards to the issue of remorse.  Given the subsequent entering of a plea of guilty, coupled with the letter tendered on behalf of you, I am satisfied that the modest mitigatory allowance to which I have referred appropriately justifies a modest reduction from the sentence indication given on 3 August 2023.  The modest reduction will impact to some degree on the head sentence imposed, and more significantly with regards to a parole eligibility allowance.

32Mr Khoder, I now turn to the portion of my remarks where I announce the sentence to be imposed.

33On Charge 1, using a firearm contrary to a firearm prohibition order, you are convicted and sentenced to two years and six months' imprisonment. On Charge 2, intentionally causing injury, you are convicted and sentenced to three years and six months' imprisonment. This is the base sentence. I order that 11 months on Charge 1 be served cumulatively upon the sentence imposed on Charge 2, making a total effective sentence of four years and five months' imprisonment. I order that you serve a period of three years before becoming eligible for parole. Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 824 days has been served by way of presentence detention, and I order that this period be administratively be deducted from your sentence.

34Pursuant s6AAA of the Sentencing Act 1991, with regards to Charges 1 and 2 on the indictment, I declare that had you pleaded not guilty but been found guilty, I would have imposed a total effective sentence of six years' imprisonment with a non‑parole period of four years and six months.

35On Charge 3 on the indictment, possession of a drug of dependence, you are convicted and fined $350.00.

36Finally, I make the disposal order sought with regards to the methylamphetamine, that order not being opposed by the accused.  That completes my sentencing, Mr Pickering, any issues, ambiguities.

37MR PICKERING:  No, Your Honour.

38HIS HONOUR:  Thank you.  Ms Upton, any issues?

39MS UPTON:  No, Your Honour, thank you.

40HIS HONOUR:  Thank you, adjourn the court.

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