R v Hamad
[2021] VSC 58
•17 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0200
| THE QUEEN | |
| v | |
| MAYTHAM HAMAD | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 February 2021 |
DATE OF SENTENCE: | 17 February 2021 |
CASE MAY BE CITED AS: | R v Hamad |
MEDIUM NEUTRAL CITATION: | [2021] VSC 58 |
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CRIMINAL LAW – Sentence – Intentionally causing injury – Plea of guilty – Pre-meditated attack by multiple offenders upon victim in context of dispute – Accused one of two men armed with baseball bats who commenced attack upon victim – Victim fled scene of attack and pursued by offenders – Shot dead in doorway of nearby house by other offender – Accused held in custody for two years on more serious charges – Difficult conditions of custody – COVID-19 considerations – Entitled to receive benefit of early offer to plead guilty to current charge – General deterrence – Just punishment – Denunciation – Specific deterrence – Protection of the community - Rehabilitation – Parity – Sentence of imprisonment for 742 days with corresponding declaration as to pre-sentence detention – But for plea of guilty, sentence of 2 ½ years’ imprisonment with a non-parole period of 1 ½ years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill with Ms C Foot | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Desmond | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
Maytham Hamad, you have pleaded guilty to intentionally causing injury (‘ICI’) to Anwar Teriaki and have admitted prior convictions contained in a criminal record filed in this case.
Your crime arose from your involvement in a physical attack upon Mr Teriaki outside his home address in Coronet Avenue, Roxburgh Park early on 9 August 2017. Following the attack upon Mr Teriaki in which you were complicit, he was shot dead by one of your co-offenders, a crime for which you bear no responsibility.
The maximum penalty for ICI is 10 years’ imprisonment.
Your offending
A summary of your offending was placed before the Court by way of the oral opening of Ms Foot which mirrored the written plea opening of Ms Churchill and Ms Foot which was filed on 9 February 2021. There was a dispute between you and the Crown in respect of a number of surrounding circumstances of your offending, particularly concerning the identity of the person who drove the motor vehicle taking you to the scene of the attack, who it was who got out of the vehicle with you immediately preceding the attack, and who it was who shot Mr Teriaki. This lack of agreement between you and the prosecution was reflected in the language of the written and oral prosecution openings.
In the written opening and in submissions before me, the prosecution made it plain that on its case, the person who drove the motor vehicle to and from the crime scene was Haidar Odom[1] (‘Odom’), the person who got out of the vehicle with you immediately before the attack was Ahmed Al Hamza (‘Al Hamza’), and the person who shot Mr Teriaki was Al Hamza. That account was supported by the sworn evidence of Odom given before the Court in a hearing pursuant to s 198B of the Criminal Procedure Act 2009, in which he attested to the truthfulness of a detailed statement he made to the police on 28 November 2019. Under cross-examination by your counsel, Mr Desmond, Odom maintained his account. You, as I understand it, claim that Odom, and not Al Hamza, was the person who joined you in the attack and shot Mr Teriaki.
[1]A pseudonym.
For the purposes of sentencing you, there is no reason to depart from the facts as alleged on the prosecution case, which were supported by sworn evidence, and not the subject of any evidence to the contrary. For what it is worth, the precise roles of the other two people involved in the attack along with you would make no difference in an assessment of your criminality in any event.
You were 23 years old at the time of your offence. You met and became friends with Odom in early 2017. Through him, you met Al Hamza.
In conversations involving you which took place before 8 August 2017, Odom became aware that you and Al Hamza were in some sort of dispute with Mr Teriaki and wanted to assault him. It was indicated to Odom that you and Al Hamza had been trying to work out Mr Teriaki’s movements to ascertain when he might be alone.
On 8 August 2017, you were in company with Odom, driving around in his vehicle. Late in the evening, you told him that you were going to meet another man. You directed him to a park in Lalor where the two of you met Al Hamza. You told him that you and Al Hamza needed some baseball bats which he was carrying in his vehicle because you were going to bash Mr Teriaki that night.
Odom agreed to drive you and Al Hamza to the scene of the proposed attack, and to provide his baseball bats for use in the attack. He was directed first to another location in Lalor at which the three of you left his car and got into a stolen Toyota Camry vehicle which was parked there. Once the three of you were in the stolen vehicle, there were discussions about the plan to bash Mr Teriaki to the legs with the baseball bats.
Odom then drove the Camry to the vicinity of Coronet Avenue, Roxburgh Park, arriving there at about 11.52 pm. The vehicle was parked in a side street from which there was a clear view of traffic travelling north and south in Coronet Avenue. Each time a vehicle approached Mr Teriaki’s address, Odom drove the Camry forward to permit it to be observed whether or not the vehicle had stopped at the address.
At approximately 12.35 am on 9 August 2017, Mr Teriaki drove his vehicle north along Coronet Avenue and stopped out the front of his home. By this time, you and the others had been lying in wait for 43 minutes. Odom was directed to drive forward and did so, arriving at a position alongside Mr Teriaki’s vehicle.
You and Al Hamza alighted from the vehicle, both of you armed with baseball bats. You approached Mr Teriaki who was in the process of getting out of his vehicle. Al Hamza used his bat to strike Mr Teriaki to the arms, causing bruising. It is not alleged that you actually struck Mr Teriaki. During the attack, one of the baseball bats snapped in half, leaving the striking end sitting inside the front of Mr Teriaki’s vehicle.
Mr Teriaki fled his vehicle and ran along Coronet Avenue for a distance of 300 metres, being pursued by you and Al Hamza while Odom drove along in the Camry. During the course of the pursuit, Mr Teriaki pushed over a rubbish bin in order to try to create distance. He was pursued by you and Al Hamza into the front yard of a property at number 39. He banged on the front door seeking help. He was then shot dead by Al Hamza.
You returned to the Camry, followed by Al Hamza. At the instigation of Al Hamza, the vehicle was turned around and driven back to the scene of the initial attack. Al Hamza left the vehicle to look for the broken part of the bat. He was unable to find it. The three of you then fled the scene in the Camry, returning to Odom’s vehicle in Lalor. You provided your clothing to Al Hamza to be destroyed. You left that location with Odom in his vehicle. The stolen Camry was dumped and set alight in Reservoir. Some clothing including a jumper worn by you was recovered from the burnt-out vehicle.
Co-offenders
Odom pleaded guilty to ICI and assist offender following an offence of reckless conduct endangering serious injury in this Court on 4 December 2019. I sentenced him to a term of imprisonment on 10 December 2019. The sentence was the subject of a successful appeal to the Court of Appeal. In the end, on 18 December 2019, Odom was sentenced on both charges to an aggregate sentence of imprisonment for 315 days, which reflected the time he had already served to that date.
Al Hamza is facing charges of murder and attempting to pervert the course of justice. His trial is to be heard on a date yet to be fixed after a number of adjournments.
Procedural history
You were arrested and charged with murder on 6 February 2019. You were remanded in custody, where you have remained since then. The charge of murder was based on s 3A of the Crimes Act 1958 (‘s 3A murder’).
On 19 December 2019, in an email written by your legal representatives to the Crown, you offered to plead guilty to ICI and assisting an offender. The offer was rejected.
On 1 December 2020, the Court of Appeal delivered judgment in a case stated at your request in respect of the breadth of s 3A murder.
On 27 and 28 January 2021, Odom gave evidence in a hearing pursuant to s 198B of the Criminal Procedure Act 2009. He attested to the truthfulness of a statement upon which many of the facts set out in my earlier summary of your offending were based. He was cross-examined by Mr Desmond on your behalf. He maintained the truthfulness of his account.
On 5 February 2021, agreement was reached between you and the Crown as to the resolution of the charges you faced at that time. On 8 February 2021, a plea indictment containing the single charge of ICI was filed. You pleaded guilty. The plea hearing proceeded on 11 February 2021.
As already indicated, you have been in custody since 6 February 2019. There have therefore been 742 days of pre-sentence detention, up to and including yesterday, 16 February 2021.
Personal background and criminal history
You are 26 years old. You were born in Iraq and came to this country with your family when you were four. You remained in Melbourne until your family returned to Iraq in 2005. After 10 years there, you returned to Melbourne in late-2015 when you were 20. You have had regular employment since your return, and were working as a concrete finisher with Sharp Glass Installation at the time you were remanded in custody.
You have an offer of employment as a labourer upon your release as contained in a reference from Nafis Batal of Batal Electrical.[2] Mr Batal speaks highly of you in that reference.
[2]Exhibit 1.
You have a very limited criminal history constituted by convictions for two offences at Sunshine Magistrates’ Court on 4 May 2017. For present purposes, those convictions are of no relevance.
Your plea of guilty and previous offer to plead guilty
Although you did not plead guilty to ICI until 8 February 2021, as indicated earlier, you offered to plead guilty to this and another charge as long ago as 19 December 2019, that is, ten months after you were initially charged. In those circumstances, Mr Desmond described your plea of guilty as an early one. He submitted that you should get the full benefit of that early plea of guilty. It has considerable utilitarian benefit attaching to it, saving, as it did, the need for a lengthy trial and avoiding the need for trial cross-examination of significant witnesses, particularly Odom. In addition, Mr Desmond submitted that I should view your plea of guilty in the circumstances as an acknowledgment of your responsibility for serious offending and as an indication of your remorse.
Ms Foot did not take issue with these submissions, but made the point that whilst some remorse may be inferred from your early plea of guilty, there is no evidence of remorse from any other quarter.
I take into account in your favour your early plea of guilty, for the reasons advanced by Mr Desmond. I give you the full benefit of that plea of guilty and reduce your sentence accordingly.
Nature and gravity of offence and your culpability and degree of responsibility
Two of the matters to which I am required by s 5(2)(c) and (d) of the Sentencing Act 1991 (‘the Act’) to have regard are the nature and gravity of the offence and your culpability and degree and responsibility.
Mr Desmond realistically acknowledged that your offending was serious, constituting, as he put it, ‘really nasty criminal offending’.[3] He noted some of the aggravating features of your crime, as did Ms Foot.
[3]Plea transcript 15.
The attack upon Mr Teriaki in which you were a participant was a planned ambush of a defenceless victim, at night, in a public street, by a group of offenders, two of them armed with dangerous weapons, who lay in wait for the arrival of their intended victim. You were involved in the planning of the assault. The fact that you are not alleged to have actually inflicted blows upon Mr Teriaki is immaterial. You were part of the team of attackers, acting pursuant to a joint criminal enterprise with the others, including the single offender who inflicted blows. Whilst Mr Teriaki did not suffer significant injuries as a result of the attack, the potential for serious injury was there, and only his flight from the vicinity of his motor vehicle prevented a more significant attack at that location. In addition, the serious and concerted nature of the enterprise in which you involved yourself is well illustrated by your pursuit of Mr Teriaki, in company with Al Hamza, as Mr Teriaki desperately sought to evade his attackers.
Yours was a serious offence, for which your moral culpability is high.
Delay and COVID-19 considerations
I take into account in your favour the long period of time which has elapsed since the offence itself, and since you were arrested and charged with it. You were a fairly young man of 23 at the time of your crime. Mr Desmond characterised your offending as being the result of a ‘terrible decision to get involved in really nasty criminal offending’ by a person who was by no means fully-formed.
Your period in custody is the first you have ever experienced, and it has been difficult in many respects. You have been held in high security units and sometimes in solitary confinement. Those conditions have been oppressive and onerous, all the more so due to your lack of experience in custody. For most of your time in custody, you have been facing very serious charges which have not proceeded. That period of time during which those charges were hanging over your head was particularly difficult for you.
In addition to the high level of security in which you have been held, you have been forced to deal with the onerous and difficult nature of incarceration in the period of almost 12 months since the onset of the COVID-19 pandemic.
It was submitted on your behalf that you have used your time in custody as well as you have been able to. A number of certificates attest to your completion of vocational and educational courses in your time on remand. In addition, documents were tendered on your behalf indicating negative results of drug urine screens conducted upon you in 2019 and 2020.
Victim impact statement
A victim impact statement of Rayan Teriaki, the sister of Mr Teriaki, was filed and relied on at the time of the Odom plea. The Crown has again filed and tendered this victim impact statement in respect of your matter. It was tendered by the Crown on the understanding that it principally concerned the death of Mr Teriaki and that much of it would therefore be inadmissible, but that I should have regard to the relevant portions. Mr Desmond did not speak against my receipt and use of the victim impact statement in this way.
In this document, Ms Teriaki reveals, in very sad detail, the devastation that has been wrought on her family by the murder of her brother.
Of course, you are not responsible for the death of Mr Teriaki. You were involved in the attack upon Mr Teriaki up until he was shot, and then fled the scene along with the others, seeking to avoid apprehension.
I take the contents of the victim impact statement into account in the limited way permitted in the circumstances.
Prospects of rehabilitation
It was submitted on your behalf that you have ‘reasonable to good’[4] prospects of rehabilitation. Mr Desmond relied on a combination of matters in support of this contention. Your criminal history is negligible. You have strong family support. You have a stable home to go to where your parents and younger brother reside. You have an offer of employment in the context of an excellent work history. You are a more mature man than the one who made the very bad decision to involve yourself in this serious offending. You have no mental health or physical ailments.
[4]Plea transcript 23.
Ms Foot did not challenge the submission on your behalf as to your prospects of rehabilitation.
I accept the submission made by Mr Desmond as to your prospects of rehabilitation, and take into account, in sentencing you, the desirability of imposing a sentence that will, so far as possible, foster and support your rehabilitation in future.
Current sentencing practices
In arriving at the appropriate sentence I have taken account of current sentencing practices, one of the matters referred to in section 5(2) of the Act. In seeking to understand these practices, I have considered, amongst other things, the relevant Sentencing Snapshot from the Sentencing Advisory Council[5] and the latest statistics from the same organisation.
[5]Sentencing trends in the higher courts of Victoria, 2014-15 to 2018-19. April 2020, No. 240.
It is apparent that intentionally causing injury is a crime which spans a considerable breadth of offending.
Parity
Mr Desmond contrasted your position in a number of respects with that of Odom, who, as I have already noted, received an aggregate sentence of imprisonment of 315 days from the Court of Appeal for his offending, compared with the more than two years you have already spent on remand. Mr Desmond noted that Odom was younger than you but had worse prior convictions, and faced an additional charge which you do not face. Mr Desmond acknowledged that Odom was the beneficiary of a discount on account of his cooperation with the authorities.
Differences abound between your situation and that of Odom, the principal one being that he had taken the very substantial step of becoming a prosecution witness against you and Al Hamza which necessarily attracted a substantial discount in sentence. When the relative positions of you and Odom are considered, it is clear that he was deserving of a much lower sentence than that which would be appropriate for you. Having said that, I take into account in arriving at the appropriate sentence for you, the sentence passed by the Court of Appeal on Odom.
Imprisonment is the only appropriate sentence in this case
Mr Desmond conceded during the plea hearing that a term of imprisonment would be necessary and appropriate in your case, but that a sentence reflecting the time you had already spent on remand – then 736 days - would meet the needs of the case. He urged me to impose a sentence of that duration, and to make a corresponding declaration of pre-sentence detention, with the effect that you would be released immediately.
Insofar as such a sentence would exceed two years, bringing s 11(1)(b) of the Act into play and ostensibly requiring the fixing of a non-parole period, Mr Desmond urged me not to set a non-parole period as it would be inappropriate to do so.
Ms Foot submitted that a term of imprisonment was warranted by the seriousness of your offending. Albeit that she made it clear that she did not seek to address me as to the length of any sentence I should pass upon you, Ms Foot did not speak against the proposition that I would be entitled to pass a sentence equal to the time you have spent in custody, and decline to fix a non-parole period.
In the circumstances, I have decided to accede to the submission of Mr Desmond as to the appropriate sentence in your case.
Important sentencing considerations
For all of the reasons I have hopefully made clear thus far, yours was a serious example of the crime of intentionally causing injury. This was a premeditated and vicious attack upon a helpless and outnumbered man who did not deserve to be treated in that fashion, and must have been quite terrified at his plight as the attack proceeded. The attack was carried out in retribution for a cause not canvassed during the plea hearing. Undoubtedly, had he not been able to escape the immediate scene of the attack, more significant injury would have been sustained by Mr Teriaki as a result of being struck by baseball bats. As it was, in spite of the modest injury he sustained from the attack, the shattering of one of the bats gives some indication as to its ferocity. You played an integral part in the planning, execution and aftermath of this attack.
To my mind, just punishment, denunciation and general deterrence are important considerations in sentencing you. You must be punished in a way which reflects the seriousness of your offending. The sentence of the Court must make it perfectly clear that the Court deplores the sort of planned and violent conduct which took place on this occasion in a public street. In respect of general deterrence, the sentence I pass must be such as to bring it clearly home to others who might be minded to take part in violent confrontations, especially in the context of ill-will harboured against an intended victim, that such conduct will be met with strong punishment.
I accept that in your case, what you have gone through since your incarceration may have reduced somewhat the need for you to be specifically deterred, but that is a sentencing purpose which continues to play some role.
As for rehabilitation, that, too, is important. In view of the reasonable prospects that you present in that regard, and the desirability of fostering and supporting your rehabilitation, I intend to pass a sentence which should have you released from custody forthwith.
Sentence
Maytham Hamad, for intentionally causing injury to Anwar Teriaki, you are sentenced to be imprisoned for a period of 742 days.
I declare that you have served 742 days by way of pre-sentence detention, up to and including 16 February 2021, that is, yesterday. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.
I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have imposed a sentence of 2 ½ years’ imprisonment with a non-parole period of 1 year and 6 months’ imprisonment.
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