R v Khouri

[2020] NSWDC 255

District Court

New South Wales

Medium Neutral Citation:	R v Khouri [2020] NSWDC 255
Hearing dates:	3 March and 19 May 2020
Decision date:	19 June 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 9 years and 6 months with a non parole period of 5 years and 8 months.
Catchwords:	CRIME - SENTENCE - firing a firearm in a manner likely to injure persons or property; common assault; possessing an unauthorised pistol; police pursuit - not stop - drive dangerously; negligent driving; not giving particulars to another driver; driving motor vehicle whilst licence suspended.
Legislation Cited:	Crimes Act 1900 (NSW), ss 93G(1)(c), 61 and 51B(1); Firearms Act 1996 (NSW), s7(1); Road Transport Act 2013 (NSW), ss117(1)(c), 287(1) and 54(3)(a); Crimes (Sentence Procedure) Act 1999 (NSW), s10A
Category:	Sentence
Parties:	Regina (Crown) Ellias Khouri (Offender)
Representation:	Mr Diggins (ODPP Campbelltown) Mr Conwell (Counsel for the Offender)
File Number(s):	2018/00268556; 2018/00302302
Publication restriction:	Nil

Judgment

1. Ellias Khouri, you appear for sentence today in relation to five principal offences.

2. First, two offences of firing a firearm in a manner likely to injure persons or property. These offences each involve contraventions of s93G(1)(c) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment. There is no standard non-parole period.

3. Secondly, one offence of common assault. This involves a contravention of s61 of the Crimes Act. The maximum penalty for that offence is 2 years imprisonment. There is no standard non-parole period.

4. Thirdly, one offence of possessing an unauthorised pistol. This involves a contravention of s7(1) of the Firearms Act. The maximum penalty for this offence is 14 years imprisonment. There is a standard non-parole period of 4 years imprisonment.

5. Finally, one offence of police pursuit – not stop – drive dangerously. This involves a contravention of s51B(1) of the Crimes Act. The maximum penalty for that offence is 3 years imprisonment. There is no standard non-parole period.

6. In addition to these principal offences, you have consented to this Court dealing with three offences appearing on a s166 certificate. Absent that consent, these matters would have been dealt with in the Local Court.

7. One of those summary offences is negligent driving (not causing death or grievous bodily injury). This involves a contravention of s117(1)(c) of the Road Transport Act. The maximum penalty for that offence is 10 penalty units.

8. The second summary offence is not giving particulars to another driver. This involves a contravention of s287(1) of the Road Rules 2014. The maximum penalty for that offence is 20 penalty units.

9. The third summary offence is driving a motor vehicle whilst licence suspended (first offence). This involves a contravention of s54(3)(a) of the Road Transport Act. The maximum penalty for that offence is 6 months imprisonment and / or 30 penalty units.

10. I note that, on the s166 certificate, there was a fourth matter of driving recklessly, or furiously, or in a manner, or at a speed, dangerous. This is H585231991/12. It is withdrawn by the prosecution and it is dismissed.

11. The facts surrounding your offending behaviour are contained in an agreed statement of facts on sentence.

12. Recast by me as to style, but not substance, they are as follows.

13. I do pause to observe, however, that, yet again, the agreed statement is littered with very many irrelevant and distracting details. The impression I have is that, all too frequently, what is handed up as an agreed statement of facts is nothing more than a slavish reproduction of a police fact sheet, a Crown case statement prepared for trial, or a hybrid of both. More than that is required by the parties to assist the Court in sentence proceedings. Only material facts should be contained in an agreed statement of facts. The fact that these documents are usually filed in the Local Court is not a satisfactory excuse.

14. As at August 2018, you were almost 30 years old – and you were on parole.

15. You were also in an intimate domestic relationship with Ms Nedanovski.

16. Before she was in that relationship with you, Ms Nedanovski had been in a relationship with Mr Maaz.

17. At the time their relationship ended, Ms Nedanovski owed Mr Maaz approximately $3,500.00.

18. Unsurprisingly, Mr Maaz was keen to get his money back. He had arranged a number of meetings with Ms Nedanovski for that purpose. But, for one reason or another, those meetings had not proceeded.

19. In the early hours of the morning of 19 August 2018, Mr Maaz received a number of missed calls from a phone registered to Ms Nedanovski. But the calls had not been sent by her – they were sent by you, pretending to be her.

20. During the course of that day, and on 30 August 2018, there were a number of calls and / or text messages passing between you on your phone, and Ms Nedanovski and /or you on her phone.

21. In summary, you wrongly – and delusionally – thought Mr Maaz and Ms Nedanovski were continuing their previous relationship – whereas, in fact, Mr Maaz’s communications with Ms Nedanovski were limited to him trying to get his money back.

22. The messages sent by you were becoming increasingly irrational and agitated.

23. Eventually, as a result of continuous pressure from you, Mr Maaz agreed to meet you, face to face: a coffee shop in Beverly Hills was chosen as the meeting place.

24. You drove to the coffee shop in Ms Nedanovski’s motor vehicle. When you arrived, Mr Maaz was already there.

25. After a brief conversation, Mr Maaz agreed to get into the vehicle you were driving; and you then drove to the underground carpark of a nearby apartment block.

26. Once the vehicle was parked, you and Mr Maaz got out of the vehicle.

27. You demanded to know why Mr Maaz was communicating with Ms Nedanovski, when he (Mr Maaz) knew she was in a relationship with you. Mr Maaz stated that he only wanted his money returned. During what is described as a tense conversation, you removed a loaded .357 Smith and Wesson revolver from your pants and placed it on a nearby table.

28. This is the principal offence of possessing an unauthorised pistol (sequence 9).

29. You and he continued to argue, and Mr Maaz unsurprisingly was becoming increasingly concerned about his safety. He started to walk backwards towards the driveway and the fire stairs.

30. You then picked up the revolver from the table and put it back in your pants as you walked towards Mr Maaz.

31. There was then further argument between the two of you, and you were becoming more agitated.

32. Eventually, Mr Maaz pushed you away using both hands as hard as he could. He ran up the fire stairs and closed the door behind him.

33. When Mr Maaz reached the top of the stairs, he opened the fire door to leave the building. As he turned to go through the door, you were at the bottom of the staircase. You pulled the revolver out and fired one shot at Mr Maaz.

34. This is the offence of firing a firearm in a manner likely to injure persons or property (H68528105 / sequence 2).

35. The bullet struck Mr Maaz on the left side of his hip.

36. Mr Maaz then ran for some distance until some maintenance workers came to his assistance and called for an ambulance.

37. After you shot Mr Maaz, you got back into Ms Nedanovski’s motor vehicle and drove taway.

38. Mr Maaz, in the meantime, had been taken to St George public hospital where he underwent surgery to treat his injuries. The bullet was removed from his abdominal wall and part of a bullet fragment was also removed from his bowel.

39. The left side of Mr Maaz’s pelvis had been shattered, and part of both his small and large bowel had to be surgically removed.

40. Mr Maaz lost about 1200ml of blood.

41. The next day, on 31 August 2018, at about 7:30am, you were driving a motor vehicle in the Sydney suburb of Leppington. Ms Nedanovski was a passenger.

42. This is the summary offence of driving a motor vehicle while licence suspended (sequence 6).

43. At some point, you brought the vehicle to a halt and you and Ms Nedanovski got out of the vehicle and had an argument on the roadway.

44. In circumstances not revealed by the agreed statement of facts, during the course of this argument, Ms Nedanovski “fell to the ground”.

45. You then walked over to Ms Nedanovski and “started to stomp on her while she was on the ground.” The agreed statement of facts do not state on how many occasions you stomped on Ms Nedanovski, or to what parts of her body. All that the Court has been told is that the police later saw “a small red mark on her neck area” – but it is not clear to me that that was a consequence of the assault. It is, however, noteworthy that you were not charged with assault occasioning actual bodily harm.

46. This is the principal offence of common assault (sequence 1).

47. A member of the public saw your disgraceful and cowardly attack on this vulnerable woman and confronted you, telling you to leave her alone.

48. You responded by running back to your car and getting a loaded .357 Smith and Wesson revolver out of it.

49. You walked back towards the member of the public who had started to run towards his home.

50. You pointed that loaded revolver into the direction of that gentleman and you discharged a single shot.

51. It is the firing of that revolver in those circumstances which constitutes the principal offence of firing a firearm in a manner likely to injure persons or property (H585231991 / sequence 2).

52. The wife and children of this gentleman saw you shoot the revolver at him.

53. You then got back into your vehicle with Ms Nedanovski and you left the area together.

54. At about 7:38am, your vehicle came under the attention of a marked highway patrol vehicle. Police directed you stop, but you did not. You then proceeded to drive in a very dangerous way. It is helpful to set out this aspect of the agreed facts verbatim:

“61. The offender then proceeded directly through a red traffic control light and travelled at speed into a bus lane before swerving between vehicles and cutting lanes in an attempt to evade police. The traffic at this time was heavy and a number of vehicles had to move off the road to avoid a collision with the offender [this is the summary offence of negligent driving (sequence 4)].

“62. The offender continued to drive erratically, cutting between two vehicles in the middle of lanes and colliding with the side mirror of a vehicle [this is the summary offence of not give particulars to other driver (sequence 5)]….

“63. The offender’s vehicle then left the roadway and travelled at speed through a… service station on Camden Valley Way. The vehicle is captured on CCTV travelling along a footpath and becoming airborne after hitting a speedhump.

“64. The vehicle then returned to the roadway for a short time before again leaving the roadway and travelling through a shopping centre carpark. At the time, members of the public were standing within this shopping centre carpark.

“65. After returning to Camden Valley Way, the offender’s vehicle then travelled in the centre grass strip of the roadway and onto the incorrect side of the road towards oncoming traffic. The pursuit was then terminated by police for safety reasons [this is the principal offence of police pursuit, not stop, drive dangerously (sequence 11)].”

55. You were ultimately arrested later that day at 8:10am. At the time you were arrested, the police found a loaded Swiss and Wesson revolver on you. It contained three live cartridges and one fired cartridge. You were not authorised to possess any form of firearm. This is the principal offence of possessing an unauthorised pistol (sequence 9).

56. It is necessary for me to make a finding of the objective seriousness of each offence for an offence of its kind. In relation to H68528105/2, the offence is above the mid-range; H585231991, sequence 1, that offence is equidistant between the middle and the bottom of the range; sequence 2 is mid-range; sequence 9 is above the mid-range; and sequence 11 is above the mid-range.

57. In relation to the three summary offences: sequence 4 is above the mid-range; sequence 5 is somewhere equidistant between the middle and the bottom of the range; and sequence 6 is a mid-range offence.

58. All offences are additionally aggravated by the fact that, at the time they were committed, you were on parole.

59. Furthermore, the first firearm offence is additionally aggravated because the physical injury to the victim was substantial – notwithstanding there is no specific evidence as to the long-term consequences of those injuries.

60. Furthermore, in relation to the second firearm offence, it is additionally aggravated because it was committed in the presence of a child under 18 (the primary victim’s son, who was aged 15 – there is no evidence as to the age of that victim’s daughter who also saw the incident and who provided a victim impact statement).

61. No victim impact statement has been provided to the Court by the victim of the first shooting.

62. Neither has a victim impact statement been provided to the Court by the primary victim in the second shooting. However, victim impact statements from his wife and two children have been provided, and it is clear that each of those people have been substantially psychologically damaged by what they saw. That being said, their reaction is one which might be ordinarily expected from that type of offence.

63. You did not give direct evidence in the sentencing proceedings. Rather, your subjective circumstances were provided through the report of Dr Pulley, a consultant forensic psychiatrist.

64. You are now 31 years old.

65. You were born in Australia. Your parents came from Lebanon.

66. Although your parents separated when you were quite young, you were brought up in a loving household by your mother and you have a good relationship with your father.

67. You attended school until Year 10 and then you went to work as a builder’s labourer.

68. You first started to abuse drugs when you were 13 years old. You started smoking tobacco at age 13, and that was the same age you started drinking alcohol. You commenced smoking cannabis when you were 14 years old, using ice when you were 16 years old, and using heroin from the age of 18.

69. You have never sought any form of treatment, whether by way of residential rehabilitation or otherwise, for your long-term illicit drug problems.

70. Not only that, you have long term serious mental health issues. For many years, you have been diagnosed with paranoid schizophrenia and you have not been compliant with taking your medications whilst in the community.

71. Self-evidently, the combination of long-term illicit drug abuse and that form of mental illness is quite disturbing.

72. Unsurprisingly, with this background, you have a significant criminal history and you have served previous terms of imprisonment. Your prior offending includes: numerous offences of dishonesty; stealing motor vehicles; possessing an unauthorised pistol; drug offences; and aggravated break and enter. Curiously, you also have an offence of failing to take an oath, that resulted in a reconnaissance release order which included conditions that you refrain from associating with persons whom you know to be members, or former members, of outlaw motorcycle gangs.

73. However, your criminal history is not one which is an additional aggravating factor; but it does mean that you are not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender.

74. In his report, Dr Pulley noted, in connection with your paranoid schizophrenia, that you required “intensive psychiatric treatment in a contained environment”. He also noted “social isolation is known to worsen mental illness” – and in this context, I note, that you are presently being held in segregation - although, for how long, and why, have not been revealed to me.

75. Because of your mental health issues, considerations of general and specific deterrence are somewhat reduced. However, the need to protect the community is correspondingly increased – the idea that a person suffering from paranoid schizophrenia was in possession of a loaded pistol is a matter of very great concern.

76. You have little insight into your offending, and there is no genuine expression of remorse.

77. In the circumstances, I regard your prospects for rehabilitation to be extremely guarded.

78. You entered pleas of guilty at the first available opportunities, and you are entitled to an effective discount of 25 per cent for the utilitarian value of those pleas. As I intend imposing an aggregate sentence, the discount will be taken into account in relation to the indicative sentences underpinning that ultimate aggregate sentence.

79. It follows from what I have said that, in my view, no sentence other than one of full-time imprisonment is appropriate for any of the principal offences or the summary offence of driving whilst licence suspended.

80. Your parole was revoked by reason of these offences; however, I propose that the start date for the aggregate sentence will be backdated to the date of your arrest on 31 August 2018.

81. Because of your mental health issues, and notwithstanding that this is not your first time in custody, I shall make a slight adjustment for special circumstances.

82. As I have just said, because I intend imposing an aggregate sentence, it is necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence.

83. In relation to the first offence of firing a firearm in a manner likely to injure persons (H68528105 – sequence 2), the indicative sentence is 7 years minus 25 per cent, that is, 5 years 3 months.

84. In relation to the offence of common assault (H5852931991 – sequence 1), the indicative sentence is 6 months minus 25 per cent, that is, 4 months.

85. In relation to the second offence of firing a firearm in a manner likely to injure persons (sequence 2), the indicative sentence is 5 years minus 25 per cent, that is, 3 years 9 months.

86. In relation to the offence of possessing an unauthorised pistol (sequence 9), the indicative sentence is 7 years minus 25 per cent, that is, 5 years 3 months – and the indicative non-parole period is 3 years 2 months.

87. In relation to the offence of police pursuit, not stop, drive dangerously (sequence 11), the indicative sentence is 2 years 6 months minus 25 percent, that is, 1 year 10 months.

88. In relation to the summary offence of driving whilst licence suspended (sequence 6), the indicative sentence is 4 months minus 25 per cent, that is 3 months.

89. In relation to the remaining summary offences of negligent driving and not giving particulars, you are convicted but pursuant to s10A of the Crimes (Sentence Procedure) Act 1999 (NSW), I impose no other penalty. 

90. Ellias Khouri, of the various offences to which I have made earlier reference, I sentence you to an aggregate term of imprisonment of 9 years 6 months.

91. I fix a non-parole period of 5 years 8 months to date from 31 August 2018 and which will expire on 30 April 2024.

92. I fix a balance of 3 years 10 months to date from 1 May 2024 and which will expire on 29 February 2028.

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Decision last updated: 19 June 2020