R v Mohamad & Anor
[2009] VSC 56
•24 February 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1418 of 2008
| THE QUEEN |
| v |
| MOHAMAD MOHAMAD AHMAD MOHAMAD |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 December 2008 | |
DATE OF SENTENCE: | 24 February 2009 | |
CASE MAY BE CITED AS: | R v Mohamad & Anor | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 56 | Revised 25 February 2009 |
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Criminal law – Plea to one count of recklessly causing serious injury and two counts of recklessly causing injury – Initially charged with attempted murder – Group of young men involved in a dispute – Prisoners produced shot guns – Car chase – Shots were fired and three people were injured – Youthful offenders who are identical twins – Migrated from Iraq when 6 years old – Not suitable for Youth Justice Centre sentence – Both prisoners received a suspended sentence and Community-Based Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kissane | Office of Public Prosecutions |
For both Accused | T. Magazis | Theo Magazis & Associates |
HIS HONOUR:
Mohamad Mohamad and Ahmad Mohamad, you have each pleaded guilty to recklessly causing serious injury to Setrak Dawood and recklessly causing injury to Billial and Omar Khaoula.
The events which bring you here occurred on 4 August 2007. They had their genesis about five days earlier when Noufa, the younger sister of the victims Billial and Omar Khaoula, was assaulted at her school, Roxburgh Park Secondary College, by Saleh Saleh. At the end of the school day, you were seen at the school. It was suggested you were there to confront Omar Khaoula. The police were called and you left before the police arrived. The following day, Omar Khaoula and Saleh were involved in a fight at the Broadmeadows Shopping Centre.
On 4 August 2007, Omar Khaoula was at work at a pizza shop in Campbellfield when, at about 8.18 p.m., he noticed that Saleh and his friends were outside the shop. Shortly afterwards, both of you, Saleh and Murtada Alabbudi and another male whose identity is unknown, went into the shop and ordered a pizza.
When you left the shop about half an hour later, you were confronted by Ahmed Sabra and Joe Alhoud. The group outside was anywhere between ten and forty young men. Omar Khaoula was nearby, having followed you out of the store. Sabra questioned members of your group about who had hit the young girl. He got a general positive response. You, Mohamad Mohamad, said “Why, do you wanna get shot?”. Sabra replied “No, I just wanna know why you hit the young girl for”.
Some of the group you were confronting were armed with sticks and other weapons. One of you, with the other nearby, opened the door of a blue Ford sedan and produced two shotguns cut down to about half a metre in length. The argument continued and after pointing the gun at Sabra, you, Mohamad Mohamad, fired a shot into the air. The group scattered. Both of you were chased around the corner before you returned to the car and drove off. In the meantime, you, Mohamad Mohamad, had reloaded the shotgun. You were seated in the passenger seat and you, Ahmad Mohamad, were driving. You drove the car slowly along Barry Road to the west. You, Mohamad Mohamad, hung out of the front passenger side window, pointing your gun at a group of males on the footpath. You said words to the effect of “bye bye, motherfuckers”, and fired at the group.
You proceeded further west but could not get past the railway crossing across Barry Road. When you had shot at the group, some of the pellets hit Setrak Dawood and he was operated on. Four pellets were removed from his body. Billial Khaoula was struck by two shotgun pellets which lodged in his thumb and Omar Khaoula received a laceration to his left forearm, with a pellet having been removed by ambulance officers at the scene.
Other males in the group chased after you and when the boom gates opened, you, Ahmad Mohamad, tried to move off quickly and crashed the car into a pole around the corner in Day Street. The two of you ran down Day Street towards Washington Street. You went to a house in Washington Street where you, Mohamad Mohamad, were seen bathing your forehead which had been injured in the crash. A third unknown male was there then. You left the area and were later picked up by a friend. You, Mohamad Mohamad, went to the Northern Hospital to get treatment, but left when you saw that police were present.
On Monday 5 August 2007, you went to the Broadmeadows Police Station where you were arrested. When interviewed by the police, both of you exercised your right to remain silent. You, Ahmad Mohamad remained in custody until you were granted bail on 24 October 2007. You, Mohamad Mohamad were bailed on 11 December 2007. You were both returned to custody on 3 October 2008 for an unrelated matter and have remained in custody ever since.
At the time of your arrest you had then been charged with attempted murder and other offences. The settlement of the case by the Crown was sensible and appropriate. However, it goes without saying that the consequences of discharging a firearm in this way could have been much more serious and with your accompanying words Mohamad Mohamad, the incident must have been very frightening for your victims.
You are identical twins born on 13 March 1988. You are now 20 years of age. Neither of you have any prior convictions; if this be the start of a criminal career, which I seriously hope it is not, you have started a rather long way up the range.
I have read the psychological reports provided on your behalf. You, Mohamad Mohamad, had a report provided by Ian H. Mackinnon, and you, Ahmad Mohamad, had a report provided by Carla Lechner.
You are both still young. The authorities are clear (with a few exceptions) that when dealing with young offenders, the principle purpose of sentencing is rehabilitation.[1] Batt JA (with whom Phillips CJ and Clark JA agreed) said:
“Although it is clear enough that the above principles are to be ‘usually’ applied and may be of less significance when dealing with violent offenders”.[2]
[1]See R v Mills 4 VR 235 at 241.
[2]R v Lawrence (2004) 10 VR 125, [22].
I have given careful consideration to your position. The matters of great concern in this case are that not only did the offending involve the use of firearms, you had gone armed with them. They had been reduced in size so that they were easy to both carry and conceal. It is only a matter of good fortune that others in the crowd were not badly injured. As it is, each of your victims appear to have suffered some residual injury.
I received Victim Impact Statements from Billal and Omar Khaoula which show how frightening the episode was to them.
Trouble such as this between groups of youths in our community across various divides, whether social, religious, political, familial or even in circumstances which are virtually unexplained, is not acceptable in any circumstances, but if it involves the use of firearms, it escalates to a scale which calls for severe punishment.
As I have pointed out, I received a psychological report prepared on behalf of each of you. Your common background has been difficult in that your Shiite Muslim family, as a result of persecution under Saddam Hussein, came to Australia from Iraq via Iran. You arrived in Australia in 1995 when you were about six or seven years of age. Much of your adolescence has been spent here. You have grown up in a strong family and you are very fortunate to have your family’s support. Your family has done well in Australia, notwithstanding the fact that both of your parents have suffered the major disadvantage which flows from dislocation of this kind in that they have not been able to make the most of their tertiary qualifications. Your strong family background and support in part explains the reason why you have no prior convictions.
You completed secondary schooling satisfactorily and you each have partially completed a mechanical engineering course at NMIT TAFE in Epping. I assume that course is on hold for both of you.
After being charged, you, Mohamad Mohamad, as I have already pointed out did not obtain bail until 11 December 2007, whilst you, Ahmad Mohamad, obtained bail on about 24 October 2007. You were subsequently charged with attempting to pervert the course of justice arising out of an unrelated matter and bail was therefore not extended after the committal. It is not entirely clear as to whether or not you are still on bail for the subsequent matter, but you are entitled to all the pre-sentence detention which has flowed either because you are “doubly warranted” or because you have been held only on these matters.
When you, Mohamad Mohamad, were released on bail, the two of you went to Cobram for three months to pick fruit. You returned to Melbourne for your committal, which had been listed in April 2008 but, for reasons to do with the attendance of witnesses, did not take place, or at least was not finalised, until October 2008. You both worked long hours doing plastering work in the meantime.
You both appear to have made the most of your time on remand and have worked and completed courses available to you.
Although it does not directly affect the sentence you are about to receive here, I have been told that the allegation of attempting to pervert the course of justice is not related to these events. Further, I have been told that the allegation, which you do not accept, is that you attempted to interfere with a witness or witnesses in the case of a friend of yours. Even if the bare facts short of criminal responsibility are made out, then you need to take great care about involving yourself in the affairs of others. That seems to lead to strife. It is a matter which both of you will have to address in the future. There is some possibility that some members of the groups to which you belong will regard you more highly because of this, but any involvement in the future in this type of behaviour will lead you inevitably to adult prison and long terms of imprisonment at that. All of us have a desire to belong. You need to ensure that it is not at too great a cost.
Your behaviour on the night of 4 August 2007 remains largely unexplained, particularly how it was you had such ready access to firearms and as to what happened to the firearms. As I have already observed, I am satisfied that what you did arose out of a sense of loyalty to others in the group. No adequate explanation has emerged, even in discussions with your respective psychologists.
I am satisfied that you both regret what you have done and regret the pain you caused your family, in particular your mother, who is suffering from cancer. It is safe to say that your parents, who have been active in the Iraqi community in the assistance of others, brought you to Australia to avoid situations such as this. I cannot emphasise to you both strongly enough that no matter how great the pressure you are subjected to in the future, the future is in your hands.
Ahmad Mohamad, you said to your psychologist when speaking of this incident:
“is the worst thing that’s happened in my life … my heart goes out to the injured people and their families … I don’t wish it on my worst enemy, sad that young teenagers put in a situation like this, anyone could have lost a life or been disabled over something really silly”.
That does show remorse and some insight into the offending. Although not expressed in the same terms, similar matters emerge from Mr Mackinnon’s report about you, Mohamad Mohamad.
As I have already observed, these matters are serious and will require a custodial sentence.
Although the injuries of your victims are not as severe as they might have been, they do appear to be ongoing in various respects. Although there is no Victim Impact Statement from him, Mr Dawood appears to have become very withdrawn after this incident. Your other victims continue to suffer pain and discomfort. Omar Khaoula still has a pellet in his thumb which restricts the use of his hand.
The firing of a gun in the street is serious. The firing of a gun at a group of people in the street is very serious. Such actions can only cause this sort of “gang” violence to escalate in the future. The principles of just punishment both personal and general deterrence apply in your case.
You pleaded guilty at an early stage. The Crown attitude to the case has been relatively merciful but appropriate. It is not of any surprise to me that you were going to conduct your trial while the counts of attempted murder were on the presentment. I accept that your plea was made at the earliest practicable opportunity.
This is another of those cases which s 6AAA of the Sentencing Act 1991 (“the Act”) requires me to say something about the sentence I would have imposed were it not for the plea of guilty. I am satisfied that if the accused had not agreed to plead guilty to this presentment, then a trial would have been conducted for more serious offences, e.g. intentionally causing serious injury. In those circumstances I regard it as impossible to say what sentence I would have imposed, except to say that if there was a conviction at the end of a trial for a more serious offence, it then follows that a much longer sentence would have been imposed.
As I have already observed, your youth is also very important. I regard your chances of rehabilitation as high and in this case your rehabilitation will be the most important feature of the sentence I am to impose. Although you, Mohamad Mohamad, fired the gun, I do not see any reason to distinguish between the two of you for the purposes of sentencing. You acted in concert in this enterprise.
At the time of the plea, I asked for reports as to your suitability for detention in a youth justice centre. The reports that I have received are not favourable. You have both been found unacceptable. To a large degree those unfavourable reports are a result of your attitude to youth training and placement in a Youth Justice Centre. I have some understanding of the matters that you expressed. In some ways I regret your attitude to a Youth Justice Centre sentence but I am mindful that you are both within a few weeks of your twenty first birthday.
I also sought reports as to the suitability of each of you for a Community-Based Order. I have received reports from the Department of Justice. Each of you has been found suitable for release on a Community-Based Order.
As I have already indicated your conduct requires a custodial disposition. I now must consider whether or not such a custodial disposition must be immediate. After careful consideration I have come to the conclusion that subject to your agreement to the sentence I would impose on Counts 2 and 3, I will suspend the balance of any sentence of imprisonment to which you will be sentenced on Count 1.
I propose that on Counts 2 and 3 each of you would be convicted and be released on a Community-Based Order for two years. The core conditions of the Order are that you will:
· Notify an officer of the Broadmeadows Community Correctional Service at Level 2, 1100 Pascoe Vale Road, Broadmeadows of any change of address or employment within two working days after such change;
· Not leave Victoria except with the permission of an officer at the above service;
· Obey all the lawful instructions and directions of the community corrections officer.
There are other standard conditions which apply including an obligation to not re-offend and an obligation to report within 48 hours of today.
The following Program Condition would apply:
(1)That you perform 200 hours unpaid community work as directed by the Regional Manager.
(2)That you be under the supervision of a Community Corrections Officer.
(3)That you undergo assessment and treatment for alcohol or drug addiction or submit to medical, psychological and psychiatric assessment and treatment as directed by the Regional Manager.
(4)To undergo assessment for programmes to reduce re‑offending and to participate in such programmes as directed by the Community Corrections Officer.
Before coming on the Bench this morning I asked your legal representative to ensure that you understand the nature of this Order and were prepared to accept it. I have been assured that the matter has been explained to you and you do consent.
Mohamad Mohamad, on Count 1, recklessly causing serious injury, I sentence you to be imprisoned for two years and in accordance with s 27(1) of the Act I suspend all but 272 days of that sentence for two years. I declare that 272 days be reckoned as served and I direct that there be noted in the records of the Court the fact that this declaration has been made and its details
On Counts 2 and 3, that of causing injury recklessly, I convict you and order that you be released on a Community Based Order on the conditions set out earlier in my reasons.
Ahmad Mohamad, on Count 1, recklessly causing serious injury, I sentence you to be imprisoned for two years and in accordance with s 27(1) of the Act I suspend all but 224 days of that sentence for two years. I declare that 224 days be reckoned as served and I direct that there be noted in the records of the Court the fact that this declaration has been made and its details
On Counts 2 and 3, that of causing injury recklessly, I convict you and order that you be released on a Community Based Order on the conditions set out earlier in my reasons.
In relation to the suspended sentence, I have had regard to all the matters in s 27(1A) of the Act. You must understand that if you re‑offend in the next two years you will be brought back before me and I will have almost no alternative but to sentence you to serve the balance of the sentence I have imposed upon you today.
You should also understand that breach of the Community Based Order might also cause you to be imprisoned.
I regard you both as reasonably intelligent young men. You have an opportunity for the future. I hope you make the most of it.
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