DPP v Zaim
[2008] VSC 543
•3 December 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No 1546 of 2007
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EYYUB BAYRAM ZAIM |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25-29 AUGUST, 1 & 2 SEPTEMBER 2008; 25 NOVEMER 2008 (Plea) | |
DATE OF SENTENCE: | 3 DECEMBER 2008 | |
CASE MAY BE CITED AS: | DPP v ZAIM | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 543 | |
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CRIMINAL LAW – Sentence – Murder – Crimes Act1958, s.3A - Taxi driver crushed between taxi door and tree – Theft – Attempted robbery – Attempted theft - Prior convictions – Remorse – Influence of drugs at time of offence - Prospects of rehabilitation – Willingness to plead to theft and attempted robbery - Sentenced to a total effective term 17 years and 6 months’ imprisonment – Non parole period of 14 years and 6 months - Effect of s.6AAA of Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Gibson | Stuart Ward, Acting Solicitor for Public Prosecutions |
| For the Defendant | Mr M. Rochford | Robert Stary & Associates |
HIS HONOUR:
Eyyub Zaim, you have pleaded guilty to the theft on 8 August 2006 of petrol belonging to Lakhwinder Smagh. The maximum penalty for that offence is 10 years’ imprisonment. You have also pleaded guilty to the attempted theft on the same day of a truck belonging to Robert Orsillo. The maximum penalty for attempted theft is 5 years’ imprisonment. A jury has found you guilty of the theft, again on 8 August 2006, of a sedan motor vehicle belonging to Peter Kondogonis, and of an attempt, made on that day, to rob Christopher Blain. The property the subject of that charge was a different sedan motor vehicle. Attempted robbery attracts a maximum penalty of 10 years’ imprisonment. Finally, the same jury has found you guilty of the murder of Rajneesh Joga, who died on 9 August from injuries suffered by him at your hands the day before. For this, you are liable to a maximum penalty of imprisonment for life.
I should pause here to make three general observations about my approach to assessing the penalties which are appropriate in this case. It is important that you, the media, the public, and those very valuable members of our community who drive taxis, receive accurate information about the considerations that guide the sentencing process and about the principles of law by which I as the sentencing judge am bound.
First, the only purposes for which sentences may be imposed are punishment, deterrence, rehabilitation, denunciation and the protection of the community – or a combination of these. Revenge is not a permitted purpose. Secondly, the Director of Public Prosecutions charged you with, and the jury convicted you of, a special class of murder. It may be referred to as an unintentional killing in the course of a crime of violence. In this case, the violence was the act of pushing the taxi driver out of his taxi. No weapon was used, and the Director did not allege that you intended the death of your victim. The law, therefore, does not permit me to sentence you as if you intended to kill. Finally, all the offences for which you must now be sentenced were committed in the course of about six and a half hours, and must be seen not as entirely isolated acts but as part of a spate of criminal behaviour during which your judgment was affected by your consumption of illegal drugs. In this context it is to be remembered that the law requires that, unless the court otherwise directs, every term of imprisonment is to be served concurrently with all other uncompleted sentences of imprisonment. I add that, although none of your behaviour was excusable, and none is to be taken lightly, some of the crimes you committed were among the least serious examples of their class.
But then, above all else, is the tragic death of a young student seeking to earn some additional income by driving a taxi.
By any measure, yours was an extraordinary catalogue of criminal activity, all of which occurred between about 4.00 p.m. and about 10.30 p.m. on Tuesday 8 August 2006. I must now sentence you for each of the offences you committed on that day.
I do so against a background of a life, your own, which even before the commission of these offences, had been badly lived. You were born on 27 August 1985, and are therefore now only 23 years of age. On 8 August 2006, you were not quite 21. Yet you already had a record of seriously criminal behaviour which began well over five years before that, with an armed robbery committed when you were only 15 years old. The Children’s Court released you on 12 months’ probation. Less than seven months later, however, you were back before the Children’s Court both for breach of that probation and for the theft of a motor vehicle and the use and possession of cannabis. You were released on a 12 months’ Youth Supervision Order with a direction that you attend drug and alcohol counselling.
None of this acted as an effective deterrent to further criminal misbehaviour. On 12 December 2001, less than five months after your previous conviction, you were convicted again. As with your first encounter with the courts, the offence was armed robbery. You were sentenced to six months’ detention in a youth training centre, reduced on appeal to three months’ detention.
There followed a period during which you did not come under the notice of the authorities. This ended, unfortunately, in 2004. On 13 July, following an argument with your girlfriend during which you became violent, you appeared in the Magistrates’ Court at Broadmeadows charged with causing injury recklessly and destroying property. The Court was merciful, adjourning the proceeding for 6 months on your entering into an undertaking to be of good behaviour in the meantime. You breached that undertaking. Even so, no further order was made.
It was only six months later before you were again in court. On 25 February 2005 you were convicted in the County Court of attempted armed robbery, and sentenced to 18 months’ imprisonment. The following month, this time in the Magistrates’ Court at Melbourne, you were convicted of a total of ten offences arising out of your misbehaviour at a block of flats in Pascoe Vale Road in which you were a resident. The sentence was nine months’ imprisonment, of which three months were to be served concurrently with the sentence imposed the month before. The result was an additional six months in gaol, making a total of two years, with ten months to be served before you became eligible for parole.
It is difficult to discern, in this catalogue of crime and punishment, any element of harshness on the part of the courts. On the contrary, you have been given many chances, and have not taken them. Rather, as the psychiatrist Dr Ruth Vine recorded in a report dated 14 August 2006, you complained (when interviewed by her two days before that) that you had been over-prescribed certain medications, inappropriately cut off from others, and unfairly treated by the police who charged you with armed robbery when all you had done was argue over payment for or supply of drugs.
It is time you took responsibility for your actions. Perhaps you realise this. Despite your past record, Dr Vine is now of the opinion, as expressed in her report dated 17 September 2008, that you “show considerable remorse and regret regarding [your] behaviour” and that you have “made a significant shift in attitude towards [yourself] and [your] family, and one that is likely to be sustained, whether [you] be in prison or in the community”. I will return to these views later.
It is clear that no remorse or regret was at work on 8 August 2006. Nor was there any shift in your attitude. When, at about 4.00 p.m. that day, you met up with an acquaintance, Peter Kondogonis, and became a passenger in his Holden Commodore, your behaviour put him in fear to such an extent that he fled from his car leaving you, and its ignition key, still inside it. You were nevertheless acquitted of a charge of robbery of the vehicle. It follows that the prosecution failed to satisfy the jury beyond reasonable doubt that your putting Mr Kondogonis in fear was directed to your obtaining possession of his car. Your action in subsequently driving it away gave rise to your conviction for its theft.
Dr Vine is of the opinion that you were at this time “significantly intoxicated” with illicit drugs, including methamphetamine. You would for this reason, she thought, “have had difficulty making an informed judgment regarding [your] behaviour or being aware of the consequences of that behaviour”. If so, you nevertheless managed successfully to put fuel in the car, leave the nozzle and part of the hose from the petrol pump on the forecourt of the service station, and drive off without having paid. The inference I draw is that you were capable of at least some reasoning. As I have noted, you entered a plea of guilty to the charge of theft of the petrol.
For reasons which have not been explained, you travelled towards Donvale. Your erratic driving resulted in your being noticed by the police. A 3.87 kilometre chase followed, during which the police car reached a speed of more than 130 km per hour without gaining on you, and you drove through two sets of red traffic lights. The danger this presented to members of the public is obvious, and was the reason why the police called off the pursuit. Your driving, however, is not the subject of any charges that are before this Court.
During the course of the chase, the two left-side tyres on Mr Kondogonis’ car blew out. You were forced to stop, which you did in the southbound carriageway of Springvale Road, causing another traffic hazard. You abandoned the car, and proceeded to move towards the southbound traffic, which had slowed to avoid the obstacle constituted by the Commodore. Among the vehicles you approached was one owned and driven by Christopher Blain. You punched the window nearest him, and attempted to open the door. Your attempt having failed because Mr Blain had had the forethought to lock the door before you reached it, you moved on. This was the foundation for your conviction of attempted robbery.
There followed an equally extraordinary series of events. You crossed from the southbound to the northbound carriageway of Springvale Road, where you ran down the embankment between the two and were run over by a startled northbound motorist who could not avoid you. By some miracle, you were not hurt, or at least not seriously. You got to your feet, and continued your maniacal progress along Springvale Road. At some point you must have hailed the taxi driven by your ultimate victim, Rajneesh Joga. You became his passenger.
Mr Joga then drove the taxi to a point the exact location of which was the subject of some dispute during the trial. I am satisfied beyond reasonable doubt that it was the intersection of Astelot Drive and Springvale Road. Here the taxi came to a halt. Accepting as I do the accuracy of the times in minutes and seconds recorded on the images created by the taxi’s security camera (which was undoubtedly inaccurate in its recording of the time of day), it remained stationary for at least 33 seconds. Of this I have no reasonable doubt. The images establish, again beyond reasonable doubt, that during that time a struggle for control of the taxi took place. You attempted to push Mr Joga out. He resisted, but failed to prevent you from manoeuvring him into a position between the half-open driver’s door and the inside of the vehicle.
Your counsel, Mr Rochford, very properly pointed out during his submissions on your plea that you used no weapons during the struggle. He also correctly pointed out that the taxi was stationary throughout the period during which the images of the struggle were created by the security camera. I have taken these circumstances into account in your favour. On the other hand, I am satisfied beyond reasonable doubt that the engine of the taxi continued to run, and that what happened thereafter was entirely foreseeable. At a time when Mr Joga remained half in and half out of his taxi, unable to regain full possession either of his seat or the taxi itself because you were preventing him doing so, the vehicle moved forward without being under any control. It continued for a short distance along Astelot Drive, veered off the roadway, and side-swiped a tree growing in the nature strip. The collision forced the half-open driver’s door against Mr Joga’s half-protruding body, crushing him to death. He fell to the ground as the taxi continued to move forward until it collided with a fence. You then managed to reverse it into the same tree against which Mr Joga had been crushed. There it came to rest. Of all this I have no reasonable doubt; and the facts as I have recounted them are consistent with the verdict of the jury.
After the taxi finally came to a halt against the tree, you got out, and attempted to drive away from the scene in a truck parked nearby. That attempt failed, but gave rise to the charge of attempted theft.
The prosecution accept that you did not intend to kill Mr Joga. You were nevertheless charged with murder, a crime for which the jury has found you guilty. The jury must, in reaching that verdict, have been satisfied beyond reasonable doubt that an act of violence committed by you against the dead man was a cause of his unintentional death, and that that death occurred in the course or furtherance of a crime of violence. In this case that crime was the attempted robbery of the taxi.
There is no presumption that murder resulting from reckless indifference to human life is necessarily less culpable than murder involving one of the other categories of malice. Nevertheless your counsel, Mr Rochford, argued that the lack of an intention to kill reduces your criminality from that which it would have been had that intention constituted the foundation of your actions.
It seems to me that in this case I should accept Mr Rochford’s submission. Even so, yours was a very serious crime indeed. You were entirely reckless for Mr Joga’s safety. To the extent that Mr Rochford’s submission has force, its strength lies in the fact that the risk to which you exposed Mr Joga was not as great as it might in other circumstances have been. But I cannot avoid the reality that you totally ignored that risk, with consequences which in the result were fatal. What is more, Mr Joga endured the terror of the attack made by you upon him as you attempted to gain control of the taxi. Your violence towards him was a conscious, voluntary and deliberate act.
I accept that you have not enjoyed an easy childhood, and that your relations with your father were blighted by his lack of empathy for you and by his strict application to you of his religious precepts. I also accept that, when not adversely affected by your addiction to drugs, you have been a capable worker. In addition, I accept, though with some hesitation, Dr Vine’s opinion that you now show considerable remorse. This opinion is shared by Huseyin Duzgun, who submitted a reference on your behalf.
My hesitation arises because your record indicates that remorse has not been a motivating factor in what you have done with your life following previous criminal activity. You satisfied the psychologist, Ms Carla Lechner, that you were remorseful when in February 2005 you were facing charges of attempted armed robbery. She then thought that you had insight into the seriousness of your offending, and expressed regret for it. She also thought that you were well motivated to maintain your drug-free status. That remorse - that insight - that regret - and that motivation - did nothing to save Rajneesh Joga.
Your record is such as to indicate that remorse, if you have ever been remorseful at all, has not in the past prevented a continuation of your criminal activity. On the other hand, Dr Vine is a respected and very senior psychiatrist who has interviewed you twice, and who is aware not only of your criminal record but also of the conclusions, now shown to be false, to which Ms Lechner came in 2005. I have already noted that, when you were interviewed by Dr Vine on 14 August 2006, within a week of the offences with which we are now concerned, you sought to shift blame on to others. Dr Vine does not make the same observation in her report of 17 September this year. In these circumstances, I must I think assume that, despite the earlier contra-indications, Dr Vine’s conclusion that you are now remorseful was correct. I have, accordingly, taken that remorse into account.
I must also take into account considerations of general deterrence. You murdered a taxi driver. His life was of course every bit as valuable as the life of any other member of the community. It goes without saying that the same is true of the life of every taxi driver. They, however, are more exposed to danger than most. They are entitled to commensurate protection. This includes the courts taking into account the particular necessity to deter those who might otherwise be tempted to harm them. In this context, I refer to the victim impact statements that were tendered during the course of the hearing of your plea. They speak eloquently of the effect the murder of Mr Joga has had on those involved in the industry. One such effect was the formation of the Victorian Taxi Drivers’ Association.
Mr Joga was not the first taxi driver to be murdered. In sentencing the murderer of a driver shot in November 2000, the judge said, and I agree, that general deterrence must play a significant part in determining the appropriate sentence. Taxi drivers, the judge correctly observed, serve the community at all hours of the day and night, and are vulnerable. They deserve to know, and the community would expect, that the random killing of any one of them would not be dealt with leniently, although this does not mean that the Court can ignore the other factors which the law requires be taken into account. In that case, unlike yours, the taxi driver was shot by someone who intended to kill him.
Specific deterrence is also an important consideration. Your remorse indicates that it is not as important as it otherwise might have been. It also points to some prospect of rehabilitation. On the other hand, your past history indicates the need forcefully to make the point that the conduct in which you engaged on Tuesday 8 August 2006 is totally unacceptable.
I have already taken into account the fact that this killing was not intended. I also take into account the fact that you were prepared to plead guilty to manslaughter, and did plead guilty to the theft of the Commodore, the theft of the petrol, and the attempted theft of the truck. I accept that, as Dr Vine concluded, you were significantly intoxicated at the time of the offences, and that this would have made it difficult to come to an informed judgment about your behaviour and its consequences. This reduces, but only to a minor degree, your moral culpability
Weighing as best I can the many factors relevant to the sentencing decisions which I am required to reach, I am of the opinion that on the count of murder the appropriate sentence is one of 17 years’ imprisonment. On the count of theft of the Holden Commodore owned by Peter Kondogonis, the appropriate sentence is 12 months’ imprisonment. Had you not pleaded guilty to that charge, I would have sentenced you to 18 months’ imprisonment on that count. On the count of the theft of the petrol belonging to Lakhwinder Smagh, I sentence you to 14 days’ imprisonment. Had you not pleaded guilty to that charge, I would have sentenced you to 28 days’ imprisonment. On the count of attempted robbery of the car owned by Christopher Blain, I sentence you to 6 months’ imprisonment. Finally, on the count of attempted theft of the truck owned by Robert Orsillo, I sentence you to 2 months’ imprisonment. Had you not pleaded guilty to that charge, I would have imposed a sentence of 3 months’ imprisonment.
I have considered whether any of the sentences I have pronounced should be made cumulative upon the term of imprisonment I have imposed on you for Mr Joga’s murder. In my opinion, six months of the sentence for the theft of the Commodore should be made cumulative with the sentence for murder. The other sentences should be served concurrently with that sentence. The result is a total effective sentence of 17 years and 6 months’ imprisonment.
Because of your age and prospects of rehabilitation, I think that a relatively short period should be fixed before you become eligible for parole. I fix that period at 14 years and 6 months. I declare that the period of 848 days be reckoned as already having been served under this sentence. I further direct that this declaration and its details be entered in the records of the Court.
If you hold a driver’s licence, that licence is cancelled. Whether you do or not, you are disqualified from obtaining such a licence for 14 years and 6 months from 8 August 2006.
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