R v El Kholed

[2009] QSC 335

SUPREME COURT OF QUEENSLAND

CITATION:

R v El Kholed [2009] QSC 335

PARTIES:

R
v
MAHIR EL KHOLED
(Defendant)

FILE NO/S:

Indictment No 711 of 2009

DIVISION:

Trial Division

PROCEEDING:

Sentence

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2009

JUDGE:

Wilson J

ORDER:

The defendant is sentenced to 14 months imprisonment with the parole release date fixed at 18 December 2009.

CATCHWORDS:

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – SUPREME COURT – IN RESPECT OF CRIMINAL MATTERS – where defendant pleaded guilty to a charge of contempt of Court in failing to attend at the Supreme Court at Brisbane on 22 April 2009 to give evidence at the trial of R v Dionne Matthew Lacey and Jade Michael Lacey in accordance with a subpoena served on him on 30 March 2009 – appropriate sentence in circumstances

AG v Leveller Magazine Ltd [1979] AC 440, cited

Freeman [1998] QCA 462, considered
Garland (1997) 95 A Crim R 264, considered

WLP [2005] 158 A Crim R 151, considered

COUNSEL:

M R Byrne for the Crown

C Eberhardt for the Defendant

SOLICITORS:

Director of Public Prosecutions (Qld) for the Crown

Robertson O’Gorman Solicitors for the Defendant

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

WILSON J

THE QUEEN

v.

MAHIR EL KHOLED

BRISBANE

..DATE 20/10/2009

SENTENCE

HER HONOUR:  Mahir El Kholed has pleaded guilty to a charge of

contempt of Court in failing to attend at the Supreme Court at

Brisbane on 22 April 2009 to give evidence at the trial of

R. v. Dionne Matthew Lacey and Jade Michael Lacey in

accordance with a subpoena served on him on 30 March 2009.

Mr El Kholed was arrested in New South Wales on 20 June 2009.

He was extradited to Queensland on 24 June 2009 and has been

remanded in custody since then.  He is also on remand for

other unrelated matters.

The gravamen of contempt of Court is interference with the due

administration of justice.  (See AG v. Leveller Magazine Ltd

[1979] AC 440 at 449 per Lord Diplock.)

A subpoena is an order of the Court requiring the person to

whom it is addressed to attend before the Court and give

evidence.  Deliberate non-compliance with a subpoena flouts

the authority of the Court.

Mr El Kholed's failure to attend Court to give evidence as

required by the subpoena not only affected the conduct, and

potentially the outcome, of a murder trial; it also had the

effect, or the potential effect, of eroding public confidence

in the criminal justice system.

These are very serious matters.

On 6 May 2007 Kevin Palmer died as a result of a gunshot wound

to the chest.

The brothers Jade and Dionne Lacey were charged with wounding

with intent to maim and murder.  Their trial began on 16 April

2009 and lasted 14 days.  On 6 May 2009 Jade Lacey was found

guilty of wounding with intent to maim, and Dionne Lacey was

found guilty of manslaughter.  Their convictions were

subsequently upheld by the Court of Appeal.  There are

applications before the High Court for special leave to appeal

- by Jade Lacey against conviction and sentence and by Dionne

Lacey against sentence.

The incident in which Palmer was killed occurred in a unit in

a townhouse complex at Nerang.  A group of people, including

El Kholed and Kusdemir, had gathered in the unit, intending to

go to Brisbane to attend a party.  The Lacey brothers arrived,

each armed with a handgun.  Kusdemir and Jade Lacey went

outside.  There was a verbal argument between El Kholed and

Dionne Lacey, apparently over the way El Kholed was looking at

Dionne Lacey.

Dionne Lacey went to the front door, where Jade Lacey was

speaking with Kusdemir.  Jade Lacey went back into the unit

and spoke to those present.  He was verbally challenged by

Palmer, who was unarmed.  In the course of the ensuing

altercation, Jade Lacey deliberately shot Palmer once in the

legs.  Very shortly after that, Dionne Lacey shot Palmer in

the chest.

The issues at the trial included -

(a) whether Palmer was armed with a shotgun at or shortly

before the time the first shot was fired;

(b) the respective positions of Jade Lacey, Dionne Lacey and

Palmer when each shot was fired;

(c) whether there was a gun fired at or towards any of the

occupants of the unit (other than the Laceys) in the course of

the later altercation;

(d) whether El Kholed was carrying a handgun shortly after the

shots were fired by the Laceys, and

(e) whether the firing of the second shot was accidental.

At the trial the Laceys made formal admissions -

(a) that the first shot was fired by Jade Lacey deliberately

into Palmer's leg or legs, and

(b) that the second shot occurred whilst Dionne Lacey was

holding the relevant firearm, and that it was that shot which

caused the fatal injuries.

Jade Lacey gave evidence, but Dionne Lacey did not.

Jade Lacey's evidence raised the issue of accident in relation

to the second shot.  Because of where El Kholed was standing

when the shots were fired, it was expected that he could give

evidence of where the Laceys were standing.  This was relevant

to the issue of accident.

Whether there was a third shot was tied into an issue of

self-defence.  During the trial witnesses were cross-examined

to the effect that someone wearing clothing similar to that

worn by El Kholed was seen outside the unit holding a gun.  El

Kholed was expected to deny this.

The prosecutor opened El Kholed's evidence to the jury.

When he did not attend in answer to the subpoena, the jury was

informed that he had absconded.

In the present sentence proceeding, the prosecutor fairly

acknowledged that the Laceys' making these formal admissions

at their trial had made much, but not all, of the evidence

expected to be given by El Kholed less important than it

otherwise might have been.

This bears on the adverse consequences of El Kholed's

non-attendance on the conduct of the Lacey trial - which is a

factor to be considered in determining what is a proper

penalty for his contempt.

Mr El Kholed was born in Brisbane on 15 August 1984.  He is

one of eight children of a Lebanese Australian family.  They

are practising Muslims.  His parents separated early this year

(before the Lacey trial) after long-standing marital conflict.

Mr El Kholed completed year 12 at school, undertaking a

non-academic program.  Then he started a TAFE course in

international business, but he dropped out of it and instead

did two years of a carpentry apprenticeship.  Then he worked

in a number of fruit shops with his father and other

relatives.

At the age of 18 he entered an arranged marriage, which did

not last long.  His wife became pregnant before they

separated, and subsequently gave birth to a child with whom he

has had little contact.  He has been in a stable relationship

with a young woman for the last five years, and they plan to

marry.

Mr El Kholed used ecstasy for about a month after his marriage

ended.  He used anabolic steroids at some stage, but there is

no evidence that he did so for a protracted period.  He smoked

about two joints of cannabis a week.

Mr El Kholed has a criminal history of offences which have

been dealt with in Magistrates Courts.  They include

possessing dangerous drugs, possession of tainted property and

assault occasioning bodily harm whilst armed.  He has not

previously been imprisoned.  At the time of his contempt he

had not long completed the 12 month operational period of the

suspended sentence imposed for the assault occasioning bodily

harm.  His criminal history includes six bail offences, the

most recent committed on 9 August 2007.

In February 2007 (before the killing of Kevin Palmer)

Mr El Kholed was referred to a personal support program at

Centacare, Southport by a Centrelink psychologist.

Mr El Kholed appeared as a witness at investigative hearings

conducted by the CMC on 23 May 2007 and 18 September 2007.  On

18 February 2008 he gave evidence at the Lacey brothers'

committal.

Following the killing of Kevin Palmer he developed problems

with post-traumatic stress and anxiety.  He became dependent

on Valium (for which he obtained prescriptions from more than

one medical practice) and cannabis.

From May 2007 Mr El Kholed sought counselling and other

assistance for post-traumatic stress disorder and anxiety. 

His symptoms escalated when he was required to give evidence, and they seemed to settle down in the second half of 2008.  He commenced a TAFE course in youth counselling.

On 30 March 2009 police met him at IKEA at Springwood.  They

served him with the subpoena to give evidence at the Lacey

trial.  He was told he would need to attend a pre-trial

conference with the Crown prosecutor.  He made various demands

for the payment of money and other action to be taken before

he would testify - including the payment of at least $50,000

in cash for himself and another witness, the payment of at

least $5,000 cash or alternatively a new car and the release

of an associate who had recently been arrested and re faced

bail.  Because he said he would have to "look over his

shoulder" if he testified, offers were made for his

protection, but he refused them.

On 8 April 2009 Mr El Kholed obtained another prescription for

Valium.  A day or two later he telephoned Princess Alexandra

Hospital seeking assistance, and then he presented at the

emergency department of the hospital where he was assessed and

stayed overnight.  According to the hospital notes, he had a

full range of symptoms of PTSD.  He was highly anxious and

fearful he would be killed if he gave evidence.  He expressed

suicidal ideation.  He referred to his heavy reliance on

cannabis and continually requested Valium, which was

prescribed.  He was mistrustful of police and the DPP.

The hospital contacted the prosecutor and expressed concerns

for his mental health.  The hospital's concern was quite

properly relayed to the Laceys' legal representatives.

On 14 April 2009 Mr El Kholed met Ken Lacey, the father of

Dionne and Jade Lacey.  Mr Lacey lived on the Gold Coast, but

he was rumoured to be a prominent figure in the Melbourne

underworld.  There had been media reports that he had links to

motorcycle gangs and that he had arranged for his sons to have

"protection" in gaol.  He had two tattoos on his neck -

"revenge" and "respect".  In the course of that meeting

Mr El Kholed learnt that the Laceys were aware of his mental

health problems, which seemed to upset him greatly.

The next day police officers met Mr El Kholed at Yatala Pies,

at his request.  They took him to the offices of the DPP.  On

the way there, he said he had no money and again asked police

to buy him a car or make some kind of payment.  When told this

was not going to happen, he asked for a paid holiday where he

could lie on the beach and forget all about it.  At that point

he almost broke down in tears.  According to one of the police

officers, his moods appeared to fluctuate between contrition

and anger.

A pre-trial conference with officers of the DPP followed.

After the conference, police arranged for protective measures

for the security of Mr El Kholed.  Accommodation was arranged

at a motel, but considering this inadequate, he absented

himself from it the next day.

On the evening of 17 April 2009 Mr El Kholed met with police.

Again, he said he had no money.  In the course of general

conversation he asked several times how important he was to

the prosecution case, and said words to the effect, "Yeah, but

I'm the one that will sink them; I'm the most important

witness against them because of where I was sitting and what I

saw; I'm the one that will do them the most damage."  He was

told he would be required to testify on Wednesday, 22 April

2009, and replied with words to the effect, "Youse can stop

panicking; I'm going to show up; I always was."  Arrangements

were made for his transportation to the Court.

On the morning of Saturday, 18 April 2009, two men attended

the Flight Centre outlet at Cannon Hill and inquired on behalf

of a friend (Mr El Kholed) about the first available flight to

Beirut.  They made a tentative booking on a flight scheduled

to leave Brisbane at 2.45 a.m. on Monday, 20 April 2009 bound

for Beirut via Dubai, and a return flight scheduled to arrive

in Sydney at 7.45 a.m. on 22 June 2009.  Later that morning

Mr El Kholed confirmed the booking and paid the $1,567 fare in

cash he had borrowed from his father.  At the time he inquired

what would happen if he failed to catch the flight, and was

informed he would forfeit the fare.  He inquired about an

earlier flight, but could not afford the extra cost.  He

inquired whether he could change the return flight.

Mr El Kholed left Brisbane as planned on 20 April 2009.  He

returned to Sydney two days earlier than originally planned,

arriving on 20 June 2009.  He was arrested at Sydney

International Airport.

Mr El Kholed was assessed by Mr Peter Jordan, a clinical

psychologist, on 7 October 2009 at the Arthur Gorrie

Correctional Centre.  In Mr Jordan's opinion, he was still

suffering the full range of symptoms of PTSD.  He said:

"He is in need of psychological/psychiatric treatment.  In my
view, he has been inappropriately treated in the past.  He
should not have been treated through the use of sedatives.  He
should have been in receipt of ongoing psychological treatment
in conjunction with appropriate antidepressant medication.  He
was clearly abusing sedative medication and this is always a

risk when this type of medication is prescribed for
post-traumatic stress disorder.  Substance abuse/dependency is
a common morbid condition with PTSD, particularly when it is
inappropriately treated.  To be fair to the staff at the
hospital, I note that he was offered antidepressant medication
but he declined it.

It is my opinion that Mr El Kholed's judgment would have been
very clouded by his heightened levels of anxiety,
post-traumatic stress symptomatology and
substance/prescription medication abuse.  His decision not to
appear at the trial is very likely to have been based on a
genuine fear that he would be harmed if he gave evidence.  He
was not assisted in overcoming his fear by associates who
appear to have reinforced it."

Counsel for Mr El Kholed submitted that his client's conduct

in not giving evidence at the Lacey trial was the product of

his irrational fear of the Laceys, in particular Ken Lacey,

and his inability to cope.  His client was only 23 years old

when he witnessed the fatal shooting of Kevin Palmer.  He had

been traumatised by this horrific experience, and then he had

been forced to relive it on several occasions in giving

evidence.  He perceived that he would expose himself to

retribution if he gave evidence at the trial.  He submitted

that the demands for money and other benefits were the

irrational ramblings of a person suffering from post-traumatic

stress and possibly affected by Valium and/or cannabis.  He

sought to downplay the significance of the history of bail

offences by pointing out that two of them involved not signing

in as required as opposed to non-appearance and that he had

appeared at the CMC and the committal since the last of them.

While acknowledging Mr El Kholed's mental health problems, the

prosecutor submitted that his conduct nevertheless reflected

disrespect for the processes of the law.  He discriminated

between extravagant demands for $50,000 and a paid beach

holiday (which he "put in the extravagant and silly basket")

on the one hand and the demand this his friend be released on

bail (which he submitted showed the deliberateness of his

conduct) on the other.  He pointed to the six convictions for

bail offences as indicative of his disrespect for the

processes of the law.  And he submitted that Mr El Kholed's

conduct in himself approaching Ken Lacey was inconsistent with

his professed fears.

I am satisfied on the balance of probabilities that Mr El

Kholed left the country on 20 April 2009 deliberately to avoid

giving evidence at the Lacey trial.  He did so conscious that

the law required him to comply with the subpoena.  His fear of

the Laceys and his feeling of inability to cope afford some

explanation for his conduct, but are no excuse for it.  He

acted in blatant and calculated disregard for his legal

obligations.

The prosecutor submitted that a head sentence in the range of

two to two and a half years with a non-parole period of nine

months would be appropriate.  He submitted that because the

time spent on remand cannot be declared time already served

under the sentence, a period of four months should be deducted

from both the head sentence and the non-parole period.

Defence counsel submitted that in all the circumstances the

penalty should be nine months' imprisonment with immediate

release on parole.  That would be equivalent to a head

sentence of 13 months with a non-parole period of four months,

and have the advantage of placing him immediately on nine

months' parole, during which he would presumably receive the

treatment recommended by Mr Jordan.

No truly comparable decision has been placed before the Court.

There is no defined maximum penalty for contempt of Court.

Garland (1997) 95 A Crim R 264 (Supreme Court of Queensland, White J) was a case of someone who was expected to be a key witness at a murder trial refusing to be sworn and give evidence. An inmate of a prison was killed by four other prisoners. Garland, who was also an inmate, gave a statement to police the next day. He was subsequently granted parole, but rearrested and returned to custody before the trial. The new charges against him were very serious, and he could expect to receive a long sentence if he were convicted. Concerned at

threats to Garland's safety, prison authorities placed him in

protective custody.  Garland said he refused to take the oath

and give evidence because he feared for his own life and that

of his family.  White J found that the threats to Garland fell

short of duress within section 31(1)(d) of the Criminal Code.

Her Honour observed that Garland's refusal to take the oath

and to give evidence constituted a grave undermining of the

administration of justice.  She was mindful of the potential

serious adverse consequences to Garland and his family if he

did give evidence.  She imposed a sentence of nine months'

imprisonment cumulative on the sentence being served.

(Presumably his parole had been cancelled when he was

rearrested, and he was then required to serve the balance of

the term he had been serving at the time of the murder.)

Freeman [1998] QCA 462 was an application for leave to appeal

against the sentence imposed for contempt of Court in refusing

to take the oath and testify at an arson trial.  Freeman, a 22

year old with "an imposing criminal history", had already been

sentenced for his participation in the offence.  He was called

by the Crown to give evidence against a co-accused whom he had

implicated.  He refused to be sworn and testify for two

apparently inconsistent reasons - that he did not wish to

participate in the conviction of an innocent person and,

"Because I don't work for police or prosecution.  I'm not a

maggot."  He was sentenced to nine months cumulative upon

previous sentences, and the parole eligibility date was

delayed by nine months.  The Court of Appeal dismissed the

application for leave to appeal against sentence.  Pincus JA

said:

"It seems to me that the principal reason for imposing a
substantial sentence, as was done in the present case, is to
discourage other persons similarly minded; that is, if it
becomes known that a refusal to cooperate in prosecution to
the extent of giving truthful evidence against co-offenders
can be dangerous, this may encourage people to decline to take
refuge in either of the suggestions which the applicant made,
that is that he was unwilling to participate in the
prosecution of an innocent person, or that he was not, as he
put it, a 'maggot'.

The element of deterrence looms fairly large in a case of this
sort.  There was a plain case of refusal to give evidence at a
trial where the evidence was critical and the trial was in
relation to a serious matter.  Nine months' imprisonment for
that does not seem to me to be an excessive punishment."

I respectfully adopt what his Honour said about the importance

of general deterrence in sentencing for contempt of Court.

WLP [2005] 158 A Crim R 151 was an application for leave to appeal against a sentence for perjury - two years' imprisonment suspended after six months with an operational period of two years. The maximum penalty that might have been imposed was seven years' imprisonment. At the time of the perjury the applicant was aged 17. He pleaded guilty. The Court of Appeal dismissed the application, observing that perjury attacks the very heart of the criminal justice system.

The gravity of Mr El Kholed's contempt is broadly comparable

to that of Garland.  It is in his favour that he consented to

extradition from New South Wales and pleaded guilty to the

contempt.  Further, through his counsel, he apologised to the

Court for his conduct.  His criminal history is not long; nor

is it as serious as that of Garland, who seems to have been an

older man.  And Garland does not seem to have suffered mental

health problems.  Of course, the nine months' imprisonment

imposed on Garland was cumulative on the sentence being

served.

In all the circumstances of the present case, I think that the

starting point should be a head sentence of 18 months'

imprisonment with a non-parole period of one-third of that.

Having regard to the 118 days spent on remand (which cannot be

declared time already served under the sentence), the head

sentence should be reduced to 14 months, and there should be

release on parole after about two months from today.

Mahir El Kholed, I sentence you to 14 months' imprisonment.  I

fix your parole release date as 18 December 2009.

-----