DPP v Sahari
[2006] VSC 439
•29 November 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1450 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENNY SAHARI |
---
JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 November 2006 | |
DATE OF SENTENCE: | 29 November 2006 | |
CASE MAY BE CITED AS: | DPP v Sahari | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 439 | |
---
Criminal Law – Sentencing – Recklessly endangering life – Being a prohibited person possessed of an unregistered firearm – Twice firing a firearm into a private home – Head sentence of 8 years– Non-parole period of 5 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Elston S.C. | Office of Public Prosecutions |
| For the Accused | Mr P. Dunn Q.C. | Galbally Rolfe |
HIS HONOUR:
Benny Sahari, you have pleaded guilty to seven offences that arise out of events that occurred in early July last year. At the time of the offences, you were associating with two women. Those two women are due to stand trial early next year. To minimize the risk of prejudicial pre-trial publicity, I do not propose to name them. I will refer to them as the two women. A different woman was the victim of the offences. I will refer to her as the victim.
The first offence is of threatening to kill the victim between 4 and 6 July 2005. The second offence is of aggravated burglary at the home of the victim on 5 July 2005. The third offence is of an assault of the victim on 5 July 2005. The fourth offence is of reckless conduct endangering the life of the victim on 6 July 2005. The fifth offence is of unlawful damage to her property on 6 July 2005. The sixth offence is of attempted aggravated burglary on 6 July 2005. The seventh offence is of being a prohibited person possessed of an unregistered firearm on 6 July 2005. The statutory maximum penalties for the seven offences are respectively, in years of imprisonment: 10, 25, 5, 10, 15, 20 and 15.
In about May 2004, you met the victim. The two of you were in a relationship and living together for about four months from August 2004. Late in 2004, that relationship deteriorated. You helped the victim to obtain a flat of her own in Caulfield. It is that flat that I will call the home of the victim.
Over the next eight months, there was continuing contact between you and the victim. There were attempts to reconcile the differences between you. In the good times, you shared a bed and exchanged endearing messages. In the bad times, your conduct towards each other led to complaints to the police. Interim intervention orders were obtained against each other. Both of you routinely showed a disregard of the requirements of those orders.
Mutual nastiness in the use of telephones contributed to the worst parts of the bad times. You and she chose to communicate with each other by visits, and direct telephone calls and more. Both of you also chose to send or leave many text and recorded voice messages for each other. You both chose to frame what you said in those messages in a calculated way. Often the words reflected the anger of the one sending or leaving the message. Often the words seemed calculated to enflame as much as possible the anger of the one to whom the message was sent or left.
In early July 2005, the victim sent text messages that enlivened your anger with her. Over the three days between 4 July and 6 July, you had contact with, or left recorded voice messages for, the victim on several occasions. In your calls and messages, you made threats to her that you would kill her. That was the first offence. It is to be treated more seriously in part because there were several threats over three days, and even more so, because in the course of the threats, namely on the second day, action was taken to back up the threats, in that you instigated the assaulting of the victim in her home.
That brings me to the second and third offences. On 4 July, you met up with the two women. They were sex workers. You met them in St Kilda. Like you, they chose to use heroin. With them that day, you used heroin. They then stayed the night at your home. The two women soon learned of the frequent messages passing between you and the victim. You chose to tell the two women a number of things about the victim. You told them that the victim had been doing crude things in front of your daughter, then aged 3. You told them that the victim owed you money. You told them that there was money and dope at the home of the victim. You told them that it would be worth their while to go there and both scare her and rob her of the money and the dope.
Those kinds of stories could only have been calculated to stir up the two women emotionally against the victim, and they did. On 5 July, there was a direct contact telephone call between you and the victim. The two women were then with you. The victim was further threatened. Later that day, you took steps to frighten the victim more directly. Around 11 p.m. that night, you drove with the two women to the home of the victim. You remained in the car while one of the women left your car to go to the flat. You had made known your wishes as to the victim. The unwelcome visitors were acting at your instigation. Unwisely, the victim opened the door when the knock came on it. Abruptly, the door was forced open wide to permit entry. By that forceful opening of the door, the victim was assaulted and she fell. Fortunately for her, she had a male friend in her home. His presence precluded any further step being taken as to the victim. Those actions made up the second and third offences. They were to prove to be but a prelude to more serious and frightening action instigated by you.
After the doorway assault, you and the two women returned to your home. There you showed them a handgun. It was a .25 calibre handgun. It was small but it was of course still potentially lethal. The next day, you drove the two women to a number of places. One place that you visited was a gun shop in St Albans. You made there an attempt to buy more ammunition. The attempt was unsuccessful. The visit confirmed that you had both a gun and some ammunition for it.
Around 11 p.m. that night, you drove the two women to the home of the victim. You parked the car. You and the two women got out. You had with you your gun. One of the two women had a tyre lever or like object from your car. The three of you went to the door of the home of the victim. One of the women knocked on the door. Asked by the victim who was there, the woman said that it was the police. Wisely, the victim chose not to open the door. At times, she was engaged in telephoning the police. She did that in a position away from the door. At times, as the knocking on the door increased, she came close to the door to give excuses for not opening it. You chose to take your gun and to fire two shots with it. You could not see where the victim was inside. You might have had some idea where she was from her voice. One shot was directed at the door at a position close to the lock. The other was directed at the window adjacent to the door. The first bullet went through the door and into the wall opposite the door. The second broke a window and struck a lamp on the far side of the room. Fortunately for you and the victim, she was not in the path of either bullet. It seems that she was within a foot or so of the path of the first bullet. The woman with the tyre lever used it to smash more glass from the window broken by your bullet. A pulling down of the Venetian blinds by one of the women revealed the victim on the telephone. That caused you and the two women to make a prompt departure.
You acted irrationally in so many ways over those three days. That point was strongly made by Mr. Dunn, who appeared for you at the hearing of the plea. Your irrationality had its causes and its consequences. It was further evidenced during the time when you were being interviewed by the police. You tried to deflect many questions. You gave rambling discursive non-responsive answers to many other questions. And many times you brazenly lied, as your later statement made manifest. The irrational lies are a factor which has to be taken into account when assessing the value of your undertaking to give evidence against the two women, a matter to which I will return.
I make some short comments about the relative seriousness of the offences. That means relative to each other and to maximum statutory sentences. I view the firing of the gun twice as you did to be the most serious offence. You and your victim were fortunate that you did not kill or seriously injure her. Given the timing of all offences I will make orders as to cumulation as to the other six. Obviously, you could not have fired the gun if you had not been carrying it around. I view the choice to possess it very seriously indeed. You have remained coy as to how you got it. The maximum sentences for carrying a firearm have understandably been increased in recent years. That includes for the more serious situation like yours where you are a prohibited person, and the firearm was not registered. Given your convictions, to which I will return, you are potentially a candidate for a penalty at the upper end of the range. I regard the threats to kill as being towards the middle of the spectrum of relative seriousness. The other four offences include an aggravated burglary and an attempted aggravated burglary. They carry higher maximum sentences. However, as to seriousness relative to the shooting and carrying of a firearm and relative to the maximum sentences, I view them as being towards the lower end. It is still not to be lost sight of, that the victim was in her own home and was being besieged by threats.
I have read the victim impact statement of the victim. It was clearly a terrifying experience for her to undergo during those three days in July 2005. She appreciates how lucky she was that she was not killed or injured by you. However, the major psychological and financial consequences to her and her son are manifest from what she says in her statement.
I turn to your background. The many reports and letters tendered on the plea have provided a rich source of information as to that background. The letters were especially well expressed, and showed considerable reflection. You are 33 years of age, having been born in March 1973 in Tel Aviv. From an early age, you have lived in Melbourne with a caring mother and a younger sister. Your father was an alcoholic. Your mother left him when you were very young. You have subsequently had minimal contact with him. Your maternal grandfather has been a significant figure in your life. For many years during your childhood, you had a de facto stepfather, who was not supportive. You mother has now married a man who is most supportive. Your dysfunctional childhood led to a troubled time in school. Transferred from Mt Scopus College to the Currajong School, you suffered sexual abuse from a teacher at the new school. You resorted to marihuana in your early teens. Later in your teens, you took up an apprenticeship in panel-beating, and took up motor cycle riding. Regrettably, you were involved in a collision and suffered serious injuries. To seek relief from the pain, you resorted to heroin. That led to your becoming addicted to heroin. That addiction has plagued you since. Your first and many later convictions bear the signs of the link with heroin. During the late 1990s, your maternal grandfather assisted you into businesses, in car detailing and otherwise. For various reasons, none succeeded. The failures contributed with other factors to periods of depression, necessitating medication.
One psychiatrist, Dr Sullivan, was called to give oral evidence to support his report. There were many other psychiatric and psychological reports which pointed to past and present problems, and gave some insight as to the future. Depression and substance abuse have long been contributing factors to your making inappropriate choices. There are the clearest indications that you will have to continue to take methadone and other medication for a long time to come. The depression is not such as to necessitate my significantly modifying my consideration of general deterrence. I do accept what Mr Dunn said as to there being a “perfect storm” aspect to the bringing together, to breed irrationality, of matters including troubling telephone use, depression, heroin use, and the two women. But there was a degree of purposefulness in your choosing to enlist the two women and to blacken the victim in their minds. If overall, I had assessed there to be a high level of purposefulness in what you did over the three days, your total prison sentence would have been quite a deal higher.
I turn to your previous convictions. The picture is very troubling. You have admitted to 8 appearances before the court on well over 40 charges. Of particular concern are three convictions, one for armed robbery in 1994, and two for being a prohibited person in possession of a firearm in 2001. As to the details of the latter, there was also a coyness. Another feature of the convictions is that, several times, the sentences imposed show a willingness to give you another chance. Your subsequent relapses are scarcely an encouraging sign. I perceived a similar difficulty attaching to some matters which some of your family members and others held out in their letters and evidence as indicators of special remorse and greater maturity this time. I refer to your promises to your maternal grandfather on his deathbed and to your renewed interest in your Jewish faith. Your actions in the future must match your words in a continuing way. That has not happened in the past.
I must allow in your favour for a significant number of mitigating factors. The foremost is your plea of guilty to all seven offences. That warrants a significant discount. Further your head sentence will be one year shorter because of your co-operation in both providing a statement to the police and undertaking to give evidence against the two women. I accept that providing the statement has potential adverse consequences in the prison environment. I accept that you have expressed to a number of people a high level of remorse for your offences, and for the adverse impact that they have had on your family. You have excellent support from your family and from the Jewish community. I repeat that I have been impressed by the letters tendered to the court. Your concern as to your daughter is good and appropriate. It still did not stop you doing what you did last year to a mother caring for a young son. My reservations as to assessing as any better than moderate your prospects of rehabilitation stem from my concern that predicting the future is most appropriately done by looking at the past, and your past is both troubling, and marked by unfulfilled aspirations for a better future. It is a further factor in your favour that you have engaged in prison courses, and have had no positive urine tests.
I have signed the order for body sample retention as sought and not opposed. I declare 511 days of pre-sentence detention. I direct that that be entered in the records. In fixing the terms of imprisonment to be imposed as to the seven offences, I must allow for sentencing principles, including as to totality and cumulation. On Count 4, which I treat as the most serious, I impose a term of 5 years imprisonment. In what follows, I intend that, when stated to be cumulative, other periods will be cumulative on that period of 5 years imposed on Count 4. On Count 7, I impose a term of 3 years, cumulative as to 1 year and 6 months. On Count 6, I impose a term of 3 years, cumulative as to 9 months. On Count 1, I impose a term of 2 years, cumulative as to 4 months. On Count 2, I impose a term of 2 years, cumulative as to 3 months. On Count 5, I impose a term of 1 year, cumulative as to 2 months. On Count 3, I impose a term of 3 months, all concurrent with the period of 5 years imposed on Count 4. The head sentence is 8 years. I set a non-parole period of 5 years.
0
0
0