R v Kassab - [2013] VSC 379

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

Nos. 0079 and 0080 of 2013

THE QUEEN

ALI KASSAB
KHALED MOUSTAFA

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2013
DATE OF SENTENCE:	3 July 2013
CASE MAY BE CITED AS:	R v Kassab & Anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 379	Revised 26 July 2013

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CRIMINAL LAW – Sentence following jury trial – Each accused charged with murder of two victims – Deaths during exchange of gunfire - Each accused guilty of defensive homicide of one victim and acquitted in relation to second victim - Sentenced to 8 years 6 months’ imprisonment with a non-parole period of 5 years 6 months’ imprisonment.

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APPEARANCES:	Counsel
For the Crown	Mr M J Gibson	Office of Public Prosecutions
For Accused Kassab	Mr PA Dunn QC
For Accused Moustafa	Mr G Meredith

HIS HONOUR:

Omar Taha and Ahmed Mohamad were shot at about 2.30 pm on 18 August 2011. Both men died shortly after this time. The shootings occurred in the office and adjoining corridor of a panel shop, CBD panels, situated at 5 Florence St, Brunswick. Both you, Khaled Moustafa, and you, Ali Kassab, were indicted on two counts of murder each.

After a trial you were both convicted of the offence of defensive homicide of Omar Taha. Both of you were acquitted of the murder of Ahmed Mohamad and its alternatives.

Background

Mr Moustafa, you had been a close friend of the deceased, Ahmed Mohamad. He was your cousin. Mr Mohamad had also become friendly with Omar Taha who was, with Ahmed Abou-Eid, the joint proprietor of CBD Panels.

Your friendship with Mr Mohamad had become strained in the months leading up to August 2011. You believed him to be responsible for the theft from you of two large sums of money that had been secreted by you in the house that you had rented from the Mohamad family.

You had sold him a BMW X5 motor car, effectively owned by Mr Kassab's brother. Mr Mohamad had been slow in paying for this car which in turn placed you under pressure from the owner. There was some evidence in the trial that you had become jealous of Mr Mohamad's burgeoning friendship with Mr Taha.

The evidence suggests that you attempted to run a small business, buying damaged prestige motor cars, repairing them and selling them on. This business was clandestine in nature and you owned various vehicles registered in the names of others so as to avoid the scrutiny of the Licensed Motor Cars Traders authority.

Two of your cars, an Audi and a Porsche, had been with CBD Panels for months, ostensively to be repaired. It appears little work was done on them and this added to the strain on your relationship with your cousin and his friend Mr Taha.

It is impossible to say with any certainty whether all of these factors were operating upon you when you…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kassab

Details

AGLC: R v Kassab [2013] VSC 379
Case: [2013] VSC 379
Decision Date: 3 July 2013

CaseChat Overview and Summary

The case of R v Kassab involved two defendants who were each charged with the murder of two victims following an exchange of gunfire. The matter was heard in a court of criminal jurisdiction, where a jury trial was conducted to determine the guilt or innocence of each accused in relation to each of the two victims. The outcome of the trial resulted in each defendant being found guilty of the defensive homicide of one victim and acquitted in relation to the second victim. Following the trial, the court proceeded to sentence each accused to a term of imprisonment.

The central legal issues before the court were the appropriate sentence to be imposed on each defendant, given the findings of guilt in relation to the defensive homicide of one victim and acquittal in relation to the second. The court had to balance the principles of justice and deterrence in determining an appropriate sentence that reflected the seriousness of the crime while also taking into account any mitigating factors. Additionally, the court was required to set a non-parole period that would ensure the safety of the community while also providing an opportunity for rehabilitation and reintegration of the offenders.

In determining the sentence, the court considered various factors, including the nature and circumstances of the offence, the degree of involvement of each accused, and any mitigating circumstances. The court acknowledged the serious nature of the crime and the loss of life, but also recognised the circumstances under which the accused acted in self-defence. The court imposed a sentence of 8 years and 6 months’ imprisonment on each defendant, with a non-parole period of 5 years and 6 months. This sentence reflected the court's consideration of the principles of justice, deterrence, and rehabilitation.

Following the sentencing, the final orders of the court were that each defendant be imprisoned for a term of 8 years and 6 months, with a non-parole period of 5 years and 6 months. This decision provided clarity on the appropriate sentence for each defendant, taking into account the unique circumstances of the case and the findings of the jury trial. The court's reasoning and outcome ensured that justice was served and that the safety of the community was protected.

Orders