Hanna v The Queen
[2014] VSCA 187
•26 August 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0231
| MIKE HANNA | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2013 0233
S APCR 2013 0242
| MOHAMED MOHAMED | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2013 0235
S APCR 2013 0241
| AHMED MOHAMED | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, NEAVE and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 August 2014 |
| DATE OF JUDGMENT: | 26 August 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 187 |
| JUDGMENT APPEALED FROM: | DPP v Hanna & Ors (Unreported, County Court of Victoria, Judge Hampel, Conviction – 19 March 2013; Sentence – 24 May 2013) |
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CRIMINAL LAW – Appeal – Conviction – Kidnapping, false imprisonment and intentionally causing injury – Jury directions – Whether directions about ‘background’ or ‘context’ invited propensity or tendency reasoning by jurors – No substantial miscarriage of justice – Leave to appeal refused.
CRIMINAL LAW – Appeal – Conviction – Leave to appeal – Jury – Apprehended bias – Whether juror overheard accused at café – Whether judge investigated adequately – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Kidnapping, false imprisonment and intentionally causing injury –Total effective sentence nine years and six months’ imprisonment, non-parole period seven years – Whether manifestly excessive – Parity – Whether identical sentences adequately reflected youth and rehabilitation of younger applicants – Procedural fairness – Psychologist’s report – Judge’s assessment of applicant more favourable than report – Whether finding reasonably anticipated – Younger applicants re-sentenced – Eight years’ imprisonment, non-parole period five years and six months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Mike Hanna | Mr N Papas QC | Garde-Wilson Lawyers |
| For the Applicants Mohamed Mohamed and Ahmed Mohamed | Mr T Kassimatis | Theo Magazis & Associates |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Priest JA. I agree with the orders which his Honour proposes, for the reasons which he gives.
NEAVE JA:
I have had the advantage of reading the draft reasons of Priest JA. I agree with the orders he proposes for the reasons he gives.
PRIEST JA:
Introduction
Following a trial in the County Court, on 19 March 2013 a jury found the applicants, Mike Hanna (now aged 33), Mohamed Mohamed and Ahmed Mohamed (twin brothers, both now aged 26) guilty of kidnapping, false imprisonment and intentionally causing injury. They were acquitted of an alternative charge of intentionally causing serious injury.
On 24 May 2013, the trial judge sentenced all three applicants to be imprisoned for nine (9) years and six (6) months, with a non-parole period of seven (7) years, in accordance with the following table:
Charge
Offence
Verdict
Sentence
Cumulation
1
Kidnapping[1]
Guilty
7 years
Base
2
False imprisonment[2]
Guilty
3 years
1 year
3
Intentionally cause serious injury
Not Guilty
—
—
Alternative to charge 3
Intentionally cause injury[3]
Guilty
4 years
1 year and 6 months
Alternative to charge 3
Recklessly cause serious injury
Not Guilty (Directed)
—
—
Total effective sentence
9 years and six months’ imprisonment
Non-parole period
7 years
Other orders
Forensic sample
[1]Kidnapping is a common law offence which, by virtue of s 320 of the Crimes Act 1958, attracts a maximum penalty of 25 years’ imprisonment.
[2]False imprisonment is a common law offence which, by virtue of s 320 of the Crimes Act 1958, attracts a maximum penalty of 10 years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
Each applicant seeks leave to appeal against both conviction and sentence.
For the reasons that follow, in all cases I would refuse leave to appeal against conviction. I would also refuse the applicant Hanna’s application touching sentence; but grant the application for leave to appeal against sentence in the case of the applicants Mohamed, allow their appeals, and craft orders so as to sentence each to be imprisoned for eight (8) years, upon which I would fix a non-parole period of five (5) years and six (6) months’ imprisonment.
Grounds of Appeal — Conviction
All three applicants seek leave to appeal against conviction on the following ground:
1. A substantial miscarriage of justice was occasioned by the trial judge’s directions on the ‘background’ or ‘context’ evidence adduced in the applicant’s trial. In particular the judge erred by:
(a)directing the jury in terms prone to have invited on the jury’s part impermissible propensity or tendency reasoning; and
(b)failing to properly or at all direct in terms sufficient to guard against their engaging in impermissible propensity or tendency reasoning.
Mike Hanna also seeks to appeal against conviction on a second ground as follows:
2. The learned trial judge erred in failing to investigate sufficiently the juror who had sat close by the accused during previous lunch breaks on a number of occasions thereby leading to a substantial miscarriage of justice.
Before turning to consideration of the grounds of appeal it is necessary to canvass the factual background.
Overview of the prosecution case
The victim of the offences was Omar Khattab (‘Khattab’).
On 28 November 2009 an incident involving two groups of armed men occurred at a house in Coolaroo in which an individual, Ali, was being detained and assaulted by — among others — Khattab. Associates of Ali’s, in two carloads, went to the house to rescue him. They traded shots with the group inside the house. Two men, brothers by the name of Kheir, were shot. By the time police arrived, the two carloads of men had left.
The applicant Hanna — also known as Mohamed Kheir — is the brother of the wounded Kheirs. In the hours after the shooting, he and the two applicants Mohamed sought to discover the culprits. They had some contact with Khattab — who had familiarity with members of both groups — seeking information.
On the morning of 29 November 2009, Khattab was driven away from his home in a car by Hanna and the Mohameds (Charge 1, kidnapping). He was repeatedly struck by Hanna as they drove.
Khattab was driven to a factory belonging to a man, Sheriff, and was taken by the applicants to the lounge-room of adjoining living quarters. He was tied up (Charge 2, false imprisonment), and Hanna — in the presence of the Mohamed brothers — repeatedly kicked, punched and slashed him with a knife, accusing him of shooting his brothers (Charge 3, intentionally causing injury). Khattab suffered deep cuts to his hand and thigh, fractured ribs, lesser cuts or slashes to his hand, and bruising and abrasions to his face, torso and neck. Both the applicants Mohamed were present whilst Khattab was assaulted.
Overview of the defence cases
The defence cases were that the applicants did not kidnap, imprison or injure Khattab.
Having heard of the shooting, the applicants were concerned to find out who had been injured. Upon discovering it was two Kheir brothers, the applicants wanted to know their condition and who had shot them. It was contended that the applicants did not collect Khattab from his father’s home on 29 November 2009. They did not take him to the factory and did not assault him. Khattab’s injuries occurred at the time of the shooting in Coolaroo. He fell from the roof of the house where he had positioned himself.
Khattab’s evidence, it was suggested, was unreliable.[4] He had previously lied to police concerning his involvement in the Coolaroo shooting. Moreover, he derived significant benefit from his co-operation with authorities. Khattab had been smoking ice at the factory with another man before asking the Mohamed twins to pick him up and take him to the hospital. At the hospital he hugged the applicant Hanna out of feigned concern. These activities — rather than any assault in the course of a kidnapping or false imprisonment — accounted for the presence of his blood in or on the factory, car and Hanna’s shirt respectively.
[4]In her charge to the jury, the trial judge gave a detailed ‘unreliable witness’ direction with respect to Khattab.
Prosecution evidence
In order to better appreciate the grounds of appeal, it is necessary to set out the main evidence in the trial in a little more detail.
Khattab gave evidence of his involvement in the Coolaroo shooting on 28 November 2009. He participated in Ali being held, questioned and assaulted at the house in Coolaroo. Ali was alleged to have earlier asked the wife of one of the men if he could sleep with her. Khattab went to Abdul Khalaf’s (‘Khalaf’) house in Campbellfield to collect firearms, in case Ali had arranged for others to come to his defence.
Shortly after Khattab brought the weapons back to Coolaroo the other group arrived. They knocked on the front door of the Coolaroo house. The door was opened by one of the men inside and then slammed shut.
Shooting then began between the two groups, although Khattab said that he did not fire any bullets. He did not see any party from either group get shot. The incident lasted about five seconds before the group outside left. Khattab then collected the firearms and ammunition and returned them to Khalaf’s house in Campbellfield.
Following the shooting, Khattab was in contact with Ahmed Mohamed and Hanna at Nasser Kheir’s home in Meadow Heights. Ahmed Mohamed asked him to find out who from the house fired the shots. Khattab claimed that at this stage he did not know the victim or victims of the shooting. He did not admit to being at the house because he feared immediate reprisal by the applicants.
Later, Ahmed Mohamed again rang Khattab. He asked him to return to Meadow Heights, where both Ahmed Mohamed and his twin were waiting in a nearby car. The Mohameds got out of the car. They aggressively told Khattab to find out who inside the house fired shots, otherwise they would turn on him and everyone who had been there. Khattab returned to Coolaroo to find out who was there and if anyone was injured. The road had been blocked by police. He was then dropped off at the McDonalds in Roxborough Park. Khalaf spoke to him there about what had happened, before dropping him home between 4:00 and 6:00am.
Khattab was in bed for about 20 or 30 minutes before his father came and told him that one of the twins was at the front door. Mohamed Mohamed was waiting for him. He said, ‘let’s go for a drive’. They walked around the corner where Hanna was waiting next to the car. Hanna got into the backseat of the car and pulled Khattab into the car by the arm. The Mohamed twins were in the front of the car. Hanna forced Khattab to the floor in the back of the car. He hit Khattab about 20 times with the stub of a knife in his clenched fist.
About 15 or 20 minutes later the car stopped at a factory that Khattab later recognised as belonging to Sheriff. Khattab was led to a lounge-room. Mohamed Mohamed pushed Khattab to the floor so that he was lying on his stomach. Hanna punched and kicked him several times before using rope to tie his hands and legs together with the help of Ahmed. Mohamed Mohamed was in and out of the room.
The applicant Hanna asked Khattab whether he recognised the place and knew where he was. Khattab lied and said he did not. Hanna then hit Khattab several more times. He then brought out a knife and sliced Khattab’s hands while asking where the rest of the people inside the house were. Khattab replied that he did not know and Hanna accused him of lying. Hanna took Khattab’s mobile telephone and began looking through it. He continued to ask about the other people before he and the Mohamed brothers left. Khattab remained at the factory with a man called Bilal.
Khattab asked Bilal to untie him. Bilal did so. He told Khattab to say — if asked to explain why he had been untied — that he had needed to go to the toilet.
When the applicants returned to the factory, Hanna put a knife to Khattab’s eye and threatened to cut it out. A lot of blood was coming from Khattab’s hand. Ahmed Mohamed wrapped the hand, cut and ripped off the bloodied hooded top Khattab was wearing, and gave him a shirt to wear. Khattab was then led by the applicants out of the factory to a car. He was driven to the carpark of the Northern Hospital. As the applicants left, Hanna told him to wait in the car. Hanna added, ‘You can run but I know where to find you’.
While he waited, Khattab called his fiancée, Safiyyah Walton, and told her what had happened. She wanted to call the police but Khattab asked her not to. Instead he called her every five to 10 minutes to let her know he was alright.
There were about 30 men, including Hanna, gathered outside the hospital to visit the Kheirs. At one point Hanna returned to the car and gave Khattab money to get something to eat and drink. Hanna also permitted him to enter the hospital to go to the toilet.
Later a man from the group approached the car. Khattab asked the man to ask Hanna if he could seek treatment at the hospital, as he was having trouble breathing as a result of his injuries, and his condition was worsening. Hanna and Ahmed Mohamed returned to the car with another man and told Khattab they were going to see Mahmoud Kheir, who had been released from hospital.
Once at Mahmoud Kheir’s house, Kheir came to the car with a bandage over his leg and opened the passenger side door. He asked Khattab for his name, and asked whether Khattab had been inside the house at Coolaroo. Khattab said that he had been but had run off.
Kheir and several other men then punched Khattab to the left side and back of his head. He covered his face. The assault lasted several seconds. Khattab was then brought inside Kheir’s house where Hanna gave him a drink of water. Hanna then took Khattab back to the car and again drove him back to Sheriff’s factory in Fawkner. Khattab remained there for about 30 to 45 minutes before running to Ms Walton’s house.
During cross-examination, Khattab admitted to initially making false statements to the police regarding his involvement in the Coolaroo shooting because of his fear of being imprisoned and his fear of reprisals as a result of co-operating with police. It was after he had given the false statement, and he faced the prospect of being extradited back to Melbourne from Western Australia, that Khattab made the allegations of being kidnapped and assaulted by the applicants. Khattab agreed he told a doctor in Western Australia that he had sustained his injuries falling from the roof of a house. He also agreed that his allegation of the applicants threatening to cut out his eye with a knife had been made only a week before the trial.
Defence evidence
The applicants Mohamed neither gave, nor called, any evidence at trial.
Khaled Omar was the sole witness called in the case of the applicant Hanna. He gave evidence that he had been ‘involved’ in the ‘Coolaroo shooting incident’. Omar said that he did not see Khattab inside the house at Coolaroo during the incident, but saw him prior to it and later, when he drove Khattab to return the firearms to Khalaf’s house. He noticed that Khattab was limping and had a cut on his wrist. Khattab told Omar he had been ‘launching bullets’ from the top of the roof at Coolaroo, and that, when coming down, he had slipped and cut his hand.
Khattab later called Omar, and asked him to pick him up at Khattab’s home in Roxborough Park and drive him to the factory in Fawkner. Omar said he dropped Khattab there at approximately 8:00 or 9:00am.
Later, Khattab again called Omar. He asked him to collect him from Epping Plaza shopping centre and take him to his then fiancée’s home in Glenroy. Omar did so. He did not see Khattab again that day.
Ground 2 of the applicant Hanna’s application — Apprehended juror bias
Before turning to the grounds relating to conviction which are common to the three applicants, it is convenient to deal with the second ground argued by counsel for the applicant Hanna. It is conspicuously bereft of any merit.
The ground asserts that the trial judge ‘erred in failing to investigate sufficiently the juror who had sat close by the accused during previous lunch breaks on a number of occasions thereby leading to a substantial miscarriage of justice’. When pressed by the Court to articulate the gravamen of this ground, counsel was constrained to accept that the circumstances referred to in the ground necessarily raised an apprehension of bias with respect to the juror.
By way of background, the jury commenced deliberations shortly before midday on 18 March 2013. A little before 3:00pm the following day — the fifteenth day of the trial — the jury indicated that they had reached verdicts. The judge returned to the bench to take the verdicts, but was urged by counsel for Hanna not to do so. Counsel said that he had ‘overheard late yesterday … the briefest of comments from one of the co-accused’, which caused him to take instructions from his own client. He told the judge that his client and co-accused had been having lunch at a local café when a juror came and sat ‘immediately adjacent to the accused, about approximately a metre or so away’. The accused, so counsel said, were ‘admonishing Omar Khattab in terms of the allegations’, which I take to mean that the applicants were being openly critical of Khattab’s evidence. (Counsel later also outlined a somewhat crude and unflattering comment about the judge that the applicants were also said to have made.) In a submission that has an air of hyperbole about it, counsel put to the judge that ‘absent some enquiry being made as to what on earth was going on in the juror’s mind, this has all the hallmarks of investigations, independent of the admissible evidence, being embarked on by a juror’.
After a deal of discussion in order to determine when and where the utterances were made (and what allegedly was said), the judge brought the jury into court and asked whether any juror had been in the nominated café in the week Khattab gave his evidence and became aware of the presence of the applicants. One juror indicated that he had been present but had heard nothing. The jury then returned to their room.
Counsel then submitted that her Honour ‘should make an enquiry about the green council bench’. It was suggested that the applicants might have sat at a green council bench proximate to the café, and a juror might have sat nearby. The judge again brought the jury into court. Upon inquiry, a male juror indicated that he had sat there a ‘few times’. The judge asked that juror to remain in court, and sent the balance of the jury back to the jury room. The following exchange took place:
HER HONOUR: … Can I ask you whether, on any day during that week that Mr Khattab gave evidence — so that's including 4, 5 and 6 March — you became aware that the accused were at a table outside the Petty Session café whilst you were on that bench?
MALE JUROR: Yes, many times. I was there (indistinct).
HER HONOUR: Did you overhear any conversation between any of them at any stage?
MALE JUROR: Not really, no. Not that I can recall.
HER HONOUR: When you say, ‘Not really, no’ - - -
MALE JUROR: No.
HER HONOUR: All right, thank you. …
Having received an unequivocal assertion that the juror had not heard any conversation between the applicants, the trial judge brought the balance of the jury into court and the verdicts were taken. Significantly, counsel sought to make no further submissions. In particular, counsel did not suggest to the judge that she should ask any further questions or conduct any further inquiry.
When asked by a member of this Court to identify what more the judge should have done, counsel for the applicant was hard-pressed to identify with any precision what further course the judge should have adopted beyond submitting that she should have asked some further questions. That depthless submission must be rejected.
Faced with flimsy submissions concerning possible juror impropriety, the judge — with, it must be said, great patience and forbearance — conducted an inquiry to ensure that no spectre of jury misconduct continued to haunt the trial. When a juror was identified who might have sat close enough to the applicants to overhear them, the judge made a direct inquiry of the juror whether he had heard anything. His answer was an unambiguous ‘no’. There was nothing in the circumstances that should have prompted her Honour not to accept that denial at face value. Indeed, it would have been capricious not to have accepted the juror’s word.
No sensible person could conclude from the circumstances that the juror — contrary to what he had said — might have overheard something uttered by the applicants (which in turn might have been prejudicial to the applicants), let alone ever suspect from the outlined circumstances that they bore ‘all the hallmarks of investigations … being embarked on by a juror’.[5] In my opinion, there was nothing that might give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror (or jury) might not discharge its task impartially.[6]
[5]See R v Skaf & Anor (2004) 60 NSWLR 86. See also Juries Act 2000, s 78A.
[6]Webb & Hay v The Queen (1994) 181 CLR 41, 53 (Mason CJ and McHugh J), 57 (Brennan J), 75 (Deane J), 87–8 (Toohey J).
There is no substance whatsoever in Ground 2.
The impugned part of the Judge’s charge
All applicants claim that the trial miscarried as a result of certain remarks made by the trial judge in the course of her charge. In order to understand the complaints made, it is necessary to set out the impugned parts of the charge in full.
The trial judge said:[7]
There is a little bit of general background narrative, I just want to remind you of to contextualise this. Whilst what I have referred to in terms of the charges relates to the conduct specific to the kidnapping, the false imprisonment and the intentionally cause serious injury charges, there is of course a lot of other background or context evidence you have heard. Both as to events before the events giving rise to these charges of 29 November, and also to the events after. All of that has to be considered as providing context and relevant to your assessment of the reliability and credibility of the witnesses.
In particular, the background or context evidence focuses on the evidence of association between Mr Khattab, Mohamed Mohamed, and Ahmed Mohamed, Mohamed Kheir, and the Kheir brothers, Mahmoud and Nasser. There was of course considerable evidence about the Coolaroo shooting and the events surrounding that. And there is evidence of what happened afterwards, that includes the leaving of the factory, being at the Epping Hospital, the evidence relating to injuries that were seen on Mr Khattab later in the day of 29 November, evidence about what Mr Khattab did after that, the not going home, staying at a family member's house for two weeks, and then going to Perth where he has been ever since, and the evidence of the contact between Mr Khattab and the police in Perth after he left in December 2009.
[7]Emphasis added.
Later, the judge returned to ‘background narrative’:[8]
[8]Emphasis added.
That is the extent to which the evidence helps you to determine the relevant issues. There’s no special skill involved in that, it's a common sense exercise. In doing that, it’s important to bear in mind that you must ignore any feelings of sympathy or prejudice you have for anyone involved in the case.
The background or surrounding circumstances that you’ve heard of groups of men taking it on themselves to attack and punish someone for a perceived sleight [sic.], of drawing young people into such an environment, of having rival factions coming along and shooting at each other in a suburban home and what appears to be a cycle of vengeance and retribution you may think very disturbing. The background of abuse of drugs such as amphetamines or ice; of keeping, concealing and ferrying guns is also something you might think is very disturbing.
The fact that at least some of the people involved in these events appear to have a tendency to take the law into their own hands must not lead you to say these people deserve each other. The fact that, on his own admission, Mr Khattab participated in the assault of the man Ali, that he acceded apparently without surprise to a direction to go and get guns, that he knew where they were, that he knew how to load them and at the house handled them himself and then, after the shooting, disappeared quickly to conceal them again before the police arrived doesn't mean that he is not a person who is entitled to the protection of the criminal law if he has also been the victim of criminal activity against him.
Regardless of your feelings about the values of all or any of the people involved in the Coolaroo shooting or the events of 29 November, your task is to determine whether the charges laid against these three men in respect of events of 29 November have been proven.
Similarly, your sympathy for any party involved in the trial must not cloud your judgment on the real issues in the trial — namely, whether you accept
Mr Khattab as a witness of truth and whether, having done so, you are satisfied that the offences have been made out against the accused. So remember you are judges of the facts. This means that in relation to these issues in the trial you must act like judges. That is you must dispassionately weigh the evidence logically and with an open mind, not according to passion or feelings.
Application was made by counsel for Mr Hanna for the jury to be discharged on the basis that the trial judge’s direction — and in particular, her reference to ‘a tendency to take the law into their own hands’ — suggested a tendency to engage in the acts charged. It was argued that this aspect of the charge was highly prejudicial, and was incapable of being cured by further direction. Counsel for the other applicants supported the application for discharge of the jury.
Counsel for the prosecution resisted the application. He submitted that the direction was designed to guard against the jury engaging in impermissible tendency reasoning and was sufficient to do so. There was no need to discharge the jury or to give any redirection on the issue.
The trial judge did not accede to the application. In her Honour’s view the directions given were appropriate to address the risk of prejudice raised by the background circumstances and inferences of gang activity.
Resolution of the common ground of appeal with respect to conviction
As I have said, all three applicants raise similar complaints under the cover of Ground 1.
At the risk of some repetition, each of the applicants’ counsel submitted that the impugned directions in the judge’s charge caused the trial to miscarry. The trial judge’s directions to the jury that the background violence ‘ha[d] to be considered as providing context, relevant to [their] assessment of the reliability and credibility of the witnesses’; and that ‘at least some of the people involved in th[o]se events appear[ed] to have a tendency to take the law into their own hands’; were, it was submitted, tantamount to an invitation to the jury to engage in rank propensity reasoning.
Although it was acknowledged that the judge did warn the jury against concluding that ‘these people deserve each other’, and against allowing sympathy or prejudice to interfere with their task, it was said that those directions were not to the point. They did not address the principal vice of her earlier instructions; that is, that the background or context evidence disclosed that at least some of those to which it pertained (including the accused men) appeared to have a propensity for violence and for taking the law into their own hands. It was in fact incumbent upon the trial judge to have directed the jury to the contrary.
The applicants’ counsel submitted that, in particular, the jury ought to have been instructed that:
·the background evidence was adduced for a limited purpose, namely to place the alleged charged acts in their proper context and help the jury assess the credibility of the complainant and other witnesses;
·the jury needed to take care not to substitute that evidence for evidence of the offences charged; and
·most importantly, the jury were not to reason that, because the applicants might have engaged in uncharged misconduct, they were the kind of person likely to have committed the offences with which they were charged.
Part of the sensitivity to the judge’s directions may have arisen out of the judge’s use of the word ‘tendency’ which, for criminal lawyers, carries with it particular connotations. The notions, and nuances of meaning, that are excited in a criminal lawyer’s mind by the use of the word ‘tendency’, however, are not necessarily those that are likely to be provoked in a lay juror’s mind. To a lawyer, to speak of ‘tendency’ is to speak of evidence that is introduced in order that the jury might infer the existence of a fact in issue from a person’s tendency to act in a certain way or have a certain state of mind.[9] Tendency evidence covers some of the same ground that previously fell under the umbrella of similar fact evidence at common law and of other propensity evidence.[10] When tendency evidence is introduced into a trial, a criminal lawyer expects that a trial judge will identify the evidence proffered as tendency evidence; will give directions to the jury to scrutinise the evidence to see whether it does, for example, establish a pattern of conduct; will instruct the jury on the permissible uses of the evidence; and, importantly, will direct the jury on the impermissible uses of the evidence. Of particular significance, when tendency evidence is relied upon by the prosecution, it will be expected that the judge will give an ‘anti-substitution warning’ — that is, the judge will direct that evidence of other conduct does not itself prove the offences charged — and will warn against propensity reasoning — that is, the judge will warn the jury not to infer from that evidence that the accused is the kind of person who is likely to have committed the offence charged.
[9]Evidence Act 2008, s 97.
[10]Under the now repealed s 398A of the Crimes Act 1958.
There is some superficial attraction in the submissions that the judge should have directed the jury to use the background evidence for the limited purpose of providing context, and should have given both an ‘anti-substitution’ warning and a warning against propensity reasoning. Those submissions, however, do not survive scrutiny. In the present case the prosecution did not rely on tendency evidence. The jury were not asked to infer from a pattern of conduct that the applicants committed the offences with which they were charged. Evidence of what had occurred previously — including the Coolaroo shooting incident — was not introduced to prove any fact in issue. Indeed, none of the evidence suggested that the applicants were involved in any prior wrongdoing. Most importantly, a lay jury would not have attached any technical meaning to the word ‘tendency’.
When the judge’s charge is viewed as a whole, there is no substance in the complaints made under the cover of the common ground touching conviction. In the first impugned passage,[11] the judge was in effect instructing the jury that in their ‘assessment of the reliability and credibility of the witnesses’ (and, in particular, Khattab) the jury had to consider the ‘general background narrative’ so as to provide ‘context’. In other words — and quite unexceptionably — the judge was directing the jury that they needed to focus on the association between Khattab and the other protagonists, and on the critical surrounding events, when assessing the evidence. These directions were proper. The jury’s attention needed to be focused on factors which might have had a bearing on the reliability and credibility of crucial witnesses. Indeed, the directions in the first passage complement of the ‘unreliable witness’ warning that the judge delivered a little later in her charge.[12]
[11]Above [50].
[12]See [63] below.
The second impugned passage[13] contained detailed directions warning the jury against acting according to prejudice engendered by ‘feelings about the values of any of the people involved in the Coolaroo shooting or the events of 29 November’. Rather, the jury had to weigh the evidence ‘dispassionately’ and ‘logically’, ‘with an open mind’ and ‘not according to passion or feelings’. Any ‘sympathy for any party involved in the trial must not cloud [their] judgment on the real issues in the trial — namely, whether [they] accept Mr Khattab as a witness of truth and whether, having done so, [they] are satisfied that the offences have been made out’. It is in my view fanciful to suggest that the jury would have understood the directions as being other than an adjuration to approach the case free from extraneous influences.
[13]Above [51].
I am fortified in my view by the fact that immediately following the second impugned passage in her charge the judge turned to consider those factors that the jury might legitimately consider as bearing on Khattab’s reliability (or unreliability).
With the benefit of considerable hindsight, it might have been better if the judge had not used the word ‘tendency’. Properly analysed, however, it is clear that — taken as a whole — the directions in which it was immersed could not have provoked illegitimate propensity reasoning.
The first ground relating to conviction cannot be upheld.
Sentencing remarks
In order to comprehend the submissions made with respect to sentence, it is necessary to set out the judge’s sentencing remarks in moderate detail.
The judge observed that notwithstanding that it was largely the applicant Hanna who had kicked, punched and slashed Khattab, it had occurred ‘in the presence of, and with the acquiescence of the Mohamed brothers’. The verdict did not permit the court to sentence on the basis of an intention to inflict serious injury rather than injury, or that the combination of injuries constituted serious injury, although the offences were ‘serious examples of offences of their type’.
Apart from some scarring from stab wounds and residual back pain, Khattab had made a full recovery. Khattab’s victim impact statement reflected that he continued to have fears for his safety. He has resided in Western Australia since the incident and as a result suffers isolation from his family. These factors highlight the importance of denunciation and deterrence as sentencing considerations.
In the judge’s view, by expressing his resentment that Khattab had not been imprisoned for his role in the Coolaroo shooting, the applicant Hanna did not have any appreciation of the ‘wrongfulness of [his] behaviour’.
All three applicants had significant criminal histories. A common feature of those histories — which made specific deterrence important — was the applicants’ convictions for violence, with ‘a disturbing pattern of involving [themselves] in violent and thuggish ways in other people’s disputes’. The incident occurred nine months after the applicant Hanna had been sentenced for affray, and two months after the Mohamed brothers had been sentenced for perverting the course of justice.
With respect to Mr Hanna’s personal history, it was noted that he is now aged 33 years, and that his parents had migrated from Lebanon when he was three years old. He was now married with one stepson (16 years), one son (8 years) and one daughter (5 years). Mr Hanna is ‘effectively illiterate’, having only rudimentary English and Arabic language skills. Although his IQ was not formally tested, both assessing psychologists Patrick Newton and Jeffrey Cummins found poor levels of functioning with probable borderline intellectual capacity (albeit insufficient to be certified as an intellectual disability). Although he had previously worked in the family’s smash repair business, Mr Hanna has not worked since injuring his back in 1998. He has a history of drug abuse dating from 2002 — involving cannabis, Xanax, methamphetamine and alcohol — and since 2008 has spent most of his time in custody. Since Mr Hanna had been on bail at the time of the present offences, and had only recently finished a term of imprisonment, the judge held that the time Mr Hanna had spent in custody on remand and following the expiration of his minimum term for other offence preceding this trial would not be taken into account, (even in a ‘general sense’).
The sentencing judge did not accept that, in the context of his diagnosis of a brain aneurysm in 2012, custody would place an additional burden on Mr Hanna. He had declined to have the recommended surgery twice while in custody. It was this choice that placed an additional burden on him. Further, the provisional diagnosis of dysthymic disorder made by the assessing psychologists did not enliven Verdins[14] principles, since there was a lack of contemporaneous independent support for such a diagnosis, and the diagnosis relied primarily on self-reported symptoms which were equally attributable to chronic substance abuse. As to the diagnosis of complex post-traumatic stress disorder, the judge noted that this diagnosis was not confirmed by Mr Newton in a later report; and that it was acknowledged in Mr Cummins’ oral evidence that, at best, there was a ‘very limited causal connection between [Mr Hanna’s] mental functioning and the commission of the offences’. The sentencing judge thought that no reduction in sentence should result by reason of a ‘mental disorder’, and the weight to be given to the effect of the risks associated with the brain aneurysm had to be be ‘tempered significantly’ given Hanna’s refusal of treatment. She found that his intellectual functioning and capacity is more positive than the reports suggest, since he has demonstrated an ability to understand and explain the effects of the aneurysm; and the certificates he has achieved in custody, and his position as a billet, demonstrate his capacity to ‘communicate, engage, concentrate, and comprehend’ which conveys a more positive view about his capacity than the reports would suggest, and suggest a capacity to ‘moderate [his] behaviour and to engage in consequential thinking’.
[14]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
The applicant Hanna fell to be sentenced as a 33 year old man ‘with a significant criminal history’ and substance abuse issues. In view of his history specific deterrence should play a ‘significant role’ in sentence. His prospects of rehabilitation should be regarded as ‘most likely poor’, or at best, ‘guarded’.
Mohamed and Ahmed Mohamed, the judge noted, were 8 years old when their family came to Australia from Iraq, where members of their family had been imprisoned and killed. It was accepted that this trauma had an impact on their parents which played out in their family life. They had, however, had good role models and enjoyed good family support, notwithstanding that some family have returned to Iraq.
Both are of average intelligence. They finished secondary schooling, but their post-secondary training in electrical engineering was disrupted by terms of imprisonment and criminal behaviour. Both have worked in plastering and fruit picking for short periods respectively.
Neither twin suffered from any mental illness. Although they had both reported substance abuse in the past they are now drug free. Both had reported to Dr Cunningham that they had ceased negative peer associations.
Factors in favour of rehabilitation included their ‘youth, intelligence, family support and absence of problems associated with mental illness or substance abuse’. These considerations, the judge observed, should be balanced by the fact that this was the third serious offence that the two had committed by the age of 25 years. Prospects of rehabilitation should thus be considered ‘guarded’. As with their co-offender, Hanna, specific deterrence should play a ‘significant role’ in sentencing.
The absence of subsequent offending by the three applicants meant that the weight to be given specific deterrence would be ‘tempered’. It was also a matter to be taken into account when considering the applicants’ prospects of rehabilitation.
Delay between the offence, charge and sentence could be characterised as considerable and appropriate to take into account.
The judge observed that there was no reason to distinguish between the ‘roles’ of each applicant, and the prosecution case was put on the basis of a ‘joint criminal enterprise’. Finally, notwithstanding that the offences constituted a course of conduct, separate offences demanded some degree of cumulation but in the framework of a total effective sentence which reflected the overall criminality.
Sentence application — Mike Hanna
As to sentence, Mr Hanna seeks leave to appeal on the following two grounds:
1. The learned sentencing judge erred by imposing a sentence that was manifestly excessive in that Her Honour:
(i)categorised the offending as a serious example of such offending;
(ii)placed too much emphasis on the victim’s circumstances when considering denunciation and deterrence;
(iii) placed insufficient weight on the applicant’s borderline intellectual capacity;
(iv)gave insufficient or no weight to the evidence of the possible causal link to the offending behaviour;
(v)placed insufficient weight on and failed to properly take into account the onerous and more burdensome time the applicant will face in custody;
(vi)rejected or placed less weight on the psychological evidence without any basis to do so;
(vii)took insufficient or no account of the total amount of continuous incarceration of the applicant over recent years including substantial periods of custody on remand; and
(viii)failed to take into account sufficiently or at all the delay between the offending and the time of the sentence.
2. Failed to accord the applicant natural justice or procedural fairness [sic.] in finding:
(i)That there was no evidence that the applicant was drug free in the period before the assessment by Mr Cummins;
(ii)That the applicant demonstrated a capacity more positive than that reported by the psychologist by reference to his position as a billet, the courses undertaken whilst in custody, and the lucid description of his own circumstances given by his counsel.
It is convenient first to consider ground 2.
In the course of oral argument, counsel abandoned ground 2 (i). He was correct to do so. I need say no more about it.
With respect to ground 2 (ii), counsel complained of a failure to afford procedural fairness because the judge made findings about the applicant’s capacity more favourable than reported by the psychologist, Mr Cummins. The short answer to this contention is that the judge asked a number of questions of Mr Cummins which clearly raised issues as to the applicant’s capacity. From her questions, it should have been obvious to the applicant’s advisers that this was a matter exercising the judge’s mind, yet no further relevant evidence or submissions were forthcoming after Mr Cummins gave evidence.[15] In any event, I very much doubt whether her Honour’s finding could have had any more than a peripheral effect on her Honour’s synthesis of relevant factors for the purposes of sentencing. There is nothing in ground 2.
[15]Cf R v Fisher (2009) 22 VR 343, 357–8 [64]–[66].
Ground 1 complains that the sentence imposed was manifestly excessive. Several ‘particulars’ are subjoined. It is unnecessary to give attention to each particular, since, to make good the complaint embodied in ground 1, the applicant must show that, having regard to all factors relevant in the particular case to the exercise of the sentencing discretion, the sentence is outside the range of those open in the proper exercise of the sentencing discretion. Manifest excess is a conclusion. A sentence is, or is not, unreasonable or plainly unjust. Excess is, or is not, plainly apparent. The conclusion that a sentence is manifestly excessive does not depend upon attribution of identified specific error in the sentencing judge’s reasoning. Frequently it does not admit of elaboration save to state the respect in which the sentence is excessive. The sentence may be excessive because the wrong type of sentence has been imposed or because the sentence imposed is manifestly too long.[16] Weighing for myself all relevant features of the applicant and the offending — including those that are aggravating and those that are mitigating — and intuitively synthesising each factor bearing on the exercise of the sentencing discretion, I am not persuaded that it is reasonably arguable that the sentence is, in any aspect, manifestly excessive.
[16]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J). See also Clarkson v The Queen (2011) 32 VR 361, 384 [89].
The applicant Hanna is 33 years old. He has a significant prior history commencing with convictions for aggravated burglary involving the use of a weapon, and offences of intentionally causing injury, for which he was imprisoned in 2003. In 2009 he was convicted of affray. He also has several convictions for trafficking in a drug of dependence; possessing drugs; being a prohibited person in possession of a firearm; dishonesty offences; driving offences; and ‘street’ offences. Although, of course, he is not to be punished again for his prior offences, his convictions militate against the extension of the leniency that might be afforded to a first offender, and cast light on his moral culpability, his prospects of rehabilitation and his criminal propensities, and hence the need for the community to be protected from him.[17]
[17]R v O’Brien & Gloster [1997] 2 VR 714, 718.
I need not again rehearse his personal circumstances. They were fully considered by the judge. I agree that, at the very best, it is appropriate to assess the applicant’s prospects of rehabilitation as guarded. Specific deterrence had to play a pivotal role in determining the applicant’s sentence. Moreover, the need for general deterrence, just punishment and curial denunciation were all significant. Importantly, the present offences were committed whilst the applicant was on bail, which is to be regarded as an aggravating feature.[18]
[18]R v Gray [1977] VR 225; R v Treloar and Butler (1989) 43 A Crim R 75; R v Basso & Frazetto (1999) 108 A Crim R 392; DPP v Galea and Mosut (2000) 112 A Crim R 507; R v Pop (2000) 116 A Crim R 398. See also s 16(3C) of the Sentencing Act 1991, which requires that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences ‘must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term’.
Further, having regard to current sentencing practices, I cannot see that the individual sentences, total effective sentence or non-parole period are out of step with current practices. Kidnapping often culminates in an ensuing episode of false imprisonment with (or without) the infliction of injury. Offences of kidnapping for ransom — which, thankfully, are rare — often attract sentences of imprisonment in ‘double figures’;[19] as do those offences of kidnapping which are accompanied by rape or sexual offending.[20] Total effective sentences of eight years or nine years’ imprisonment are not unusual for ‘payback’ offences.[21] Indeed, sentences of imprisonment exceeding seven years, to a shade under 10 years, are not uncommon generally for kidnapping and associated offending.[22] The individual sentence of seven years’ imprisonment imposed for the charge of kidnapping is well within the range open in the proper exercise of discretion.
[19]DPP v Ramos & Ors [2003] VSCA 215; R v Vodopic [2003] VSCA 172
[20]R v Cunliffe [2000] VSCA 146; El-Waly v The Queen [2012] VSCA 184.
[21]R v Fox [2003] VSCA 138; Hills v The Queen [2011] VSCA 364.
[22]R v De Gruchy [2006] VSCA 10; R v McEachran (2006) 15 VR 615; Buchwald v The Queen [2011] VSCA 445.
I would also regard the individual sentence of three years’ imprisonment for false imprisonment as within range;[23] so too the sentence of four years’ imprisonment for intentionally causing injury.
[23]Tomkinson v The Queen [2010] VSCA 282.
With respect to the orders for cumulation, each of the false imprisonment and injury offences were part of a course of conduct commencing with the kidnapping, albeit that they were distinct offences requiring separate recognition in the sentencing process. The total effective sentence arrived at by the orders for partial cumulation was required to reflect the overall criminality of the episode, without infringing the principle of totality. It did so. The non-parole period needed to reflect the minimum term that justice required the applicant to serve before the prospect of conditional release from confinement. It, too, did so.
Hanna’s application for leave to appeal against sentence must be refused.
Sentence applications — Mohamed Mohamed and Ahmed Mohamed
Both Mohamed Mohamed and Ahmed Mohamed seek leave to appeal against sentence on three common grounds:
1. The sentencing judge erred in sentencing the applicant to terms of imprisonment which are:
(a)identical to the sentences imposed upon Mike Hanna (aka Mohamed Kheir); and
(b)such as to engender in the applicant a justifiable sense of grievance.
2. The sentencing discretion miscarried as a result of the judge’s failure to reflect, properly or at all, in the sentences she imposed the substantial delay that lapsed between the applicant’s being charged and his sentence.
3. In all the circumstances:
(a)the individual sentences imposed upon charges 1 and 3;
(b)the orders for cumulation; and
(c)the non-parole fixed
are manifestly excessive.
In my opinion, grounds 1 and 2 are made out. The judge passed the same sentences on the applicants Mohamed as on Hanna, observing that she could ‘see no reason for distinguishing between [their] roles’. With respect, it seems clear that Hanna’s role in the offending was the more significant, not only because he was the active participant in inflicting injury to Khattab, but, more importantly, was the leader in the criminal enterprise. Moreover, at the time of the offending, the Mohamed brothers were both 21 years of age, and might thus be considered relatively youthful offenders (albeit that they had prior convictions for recklessly causing serious injury imposed in February 2009, and perverting the course of justice imposed in September 2009).
Significantly, during the period of three and a half years between the commission of the present offences and the date of sentence, there had been no subsequent offending. This was important. Although the judge took into account that the applicants had ‘had this hanging on [their] heads unresolved’ — a matter to which, of course, it was proper to have regard — it does not appear that her Honour anywhere paid attention to the absence of offending during the period of delay before the case was resolved as bearing on prospects of rehabilitation.[24] She should have given this factor some weight.
[24]R v Merrett, Piggott & Ferrari (2007) 14 VR 392, 400–1 [34]–[38].
In my opinion, the applicants’ different roles in the offending, their relative youth, and their better prospects of rehabilitation, should have resulted in sentences being imposed on them which deviated to a limited extent from that imposed on Hanna. I would reflect those considerations by the imposition of lesser sentences on the kidnapping and injury charges, and in the orders for cumulation.
I would thus grant their applications for leave to appeal against sentence and allow their appeals. I would resentence them each to be imprisoned for six (6) years on charge 1 (kidnapping); three years on charge 2 (false imprisonment); and three years on charge 3 (intentionally causing injury). I would order one (1) year of the sentences on charges 2 and 3 to be served cumulatively with each other and with the sentence on charge 1. The total effective sentence is thus eight (8) years’ imprisonment, upon which I would fix a non-parole period of five (5) years and six (6) months’ imprisonment. All other ancillary orders made in the County Court should be confirmed.
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