R v Semaan
[2016] VSC 667
•4 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0127
S CR 2016 0124
S CR 2016 0125
| THE QUEEN |
| v |
| ALEXANDER JOHN SEMAAN |
| HANNA SEMAAN |
| MEGAN BELJULJI |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18, 20-22, 25-29 July, 1-5, 10-12, 15-19, 22-25, 29, 31 August, 1, 2, 5-6 September, 24 and 28 October 2016 |
DATE OF SENTENCE: | 4 November 2016 |
CASE MAY BE CITED AS: | R v Semaan & Ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 667 |
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CRIMINAL LAW – SENTENCE – Murder – Offender (D1) shot and killed a family friend, in backyard of offender’s family home – D1 on parole at time – Summary offence of breach of parole – Impact of offending on victims –D1 affected by ‘ice’ at the time of offending – Evidence insufficient for a finding that D1 was psychotic at time of offence- Use of ice neither mitigating or aggravating –- Mid-range example of the offence of murder – History of mental health problems in context of drug abuse – Significant prior convictions – Poor prospects of rehabilitation – Need for just punishment, denunciation and specific and general deterrence – s 78A Corrections Act 1986 - s 242 Criminal Procedure Act2009 – Iddon & Crocker (1987) 32 A Crim R 315 – Redenbach (1991) 52 A Crim R 95 – Sebalj [2006] VSCA 106 – Pyke [2006] VSCA 265.
CRIMINAL LAW – SENTENCE – Attempt to pervert the course of justice – Offender (D2) pressured eyewitness to the murder by D1 to change his police statement – Mid-range example of offence –Imprisonment harder for offender because of separation from disabled daughter – Prior convictions for deception offences – Reasonable prospects of rehabilitation – Importance of general deterrence.
CRIMINAL LAW – SENTENCE – Attempt to pervert the course of justice – Two counts - Offender (D3) was a party to pressuring eyewitness to the murder by D1 to change his police statement – Mid-range example of offence – D3 also a party to putting police onto a false trail of evidence – Low-range example of offence – No prior convictions – History of drug use – Family support – Good prospects of rehabilitation – Importance of general deterrence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Michelle Williams QC Mr Neil Hutton | Office of Public Prosecutions |
| For the Accused Alexander John Semaan | Mr Michael Sharpley | Valos Black & Associates |
| For the Accused Hanna Semaan | Mr John Kelly | Matthew White & Associates |
| For the Accused Megan Beljulji | Mr David Cronin | Emma Turnbull Lawyers |
HIS HONOUR:
ALEX SEMAAN
Introduction
Alex Semaan, a jury found you guilty of murder. The maximum penalty for murder is life imprisonment.
You were on parole at the time of the murder. You were charged with breaching your parole by reason of the murder. After a summary trial,[1] I found you guilty of that offence. The maximum sentence for breaching parole is 3 months imprisonment.[2]
[1] Pursuant to s 242 of the Criminal Procedure Act 2009.
[2] Section 78A Corrections Act 1986.
The facts
At about 9pm on 1 December 2014, you were in your bungalow at the rear of 137 Donald Street East Brunswick, your mother’s home.
A relative of yours, Tony Kanaan, who was a frequent visitor at 137 Donald Street, came and stood in the open doorway of the bungalow. You were holding an ice pipe and you had a gun on your lap. You said to Kanaan “I want to kill everybody”. Kanaan said “Who do you want to kill?” You said “Everybody”.
You got up from your seat and walked out of the bungalow, gun in hand. Michael Bekhazi, a friend of yours, was sitting or squatting in the courtyard, looking through the contents of a bag. You put the gun to the back of his head as Kanaan looked on in disbelief. Kanaan tried to reason with you. You moved away from Bekhazi and over to the back gate, from where you could see a neighbour putting out her bins. You pointed the gun at her. Again, Kanaan tried to reason with you.
You turned around and walked back to Bekhazi, who by this time was standing up. You pointed the gun at his forehead. Bekhazi, perhaps not believing that you would do it, simply lowered his head, submissively. You fired and Bekhazi collapsed to the ground, fatally wounded.
Kanaan went into the house to get your elderly mother, hoping she might be able to pacify you. He then hurried to a nearby hotel to get your brother in law Yousef Semaan, to whom he thought you might listen. He and Yousef returned to 137 Donald Street together.
Later that night, Kanaan made a statement to police saying that he saw you shoot Bekhazi.
Backtracking a little, other members of your extended family, who lived at 137 Donald Street or nearby, heard the shot that killed Bekhazi and quickly went to his assistance. CPR was given under the instructions of a 000 operator but it was to no avail.
You retreated to your bungalow. You were joined there for a time by your mother. I find that your niece who lived nearby, Margaret Khoury, also entered the bungalow. I find that you continued to behave in a threatening manner. According to the account given by your niece to your sister Noelle later that night, you pointed the gun at everyone in the bungalow as Margaret Khoury tried to get your mother up and out of the bungalow.[3]
[3]I reject Margaret Khoury’s testimony that she did not enter the bungalow that night, let alone see you point a gun at everybody in the bungalow. Noelle Semaan told Detective Cunha on the night that she had spoken to Margaret Khoury who told her that you had pointed the gun at everyone whilst she was trying to get your mother out of the bungalow. Cuhna recorded that conversation with Noelle Semaan.
Word of the shooting spread quickly and soon your girlfriend, Megan Beljulji, and your sister, Hanna Semaan, arrived at 137 Donald Street. Megan joined you in the bungalow, where the two of you remained for several hours, despite pleas from family and police negotiators for you to surrender yourself. When speaking to police negotiator Christopher Jacques on the phone, you claimed to have been asleep and not to know anything about the shooting. Your girlfriend Megan told police the same thing over the phone. Eventually police entered the bungalow and arrested you. You were heavily substance affected, as was your girlfriend.
You were found to be unfit for interview. On 2 December 2014, the police charged you with the murder and you were remanded in custody. You have been in custody ever since.
In a series of recorded prison telephone calls commencing on 4 December 2014, most of which involved your girlfriend, Megan, and some your sister, Hanna, you maintained your innocence. You knew these calls were being recorded by the authorities and I find that you sought to take advantage of that fact. At your trial, you relied heavily on the mostly self-serving content of these calls. Initially in these calls, you persisted with the story that you had been asleep in the bungalow when Bekhazi was shot and knew nothing about the murder. But that morphed into the story that you ultimately relied on at trial – namely, that an unknown intruder entered your bungalow when you were drug affected and vulnerable, that during your struggle with the intruder he fired two shots, one in the bathroom and one in the lounge room of the bungalow, that you passed out during the struggle in the lounge room and that the intruder must have shot Bekhazi in the courtyard as he left the premises. You alleged in those calls that Kanaan must have been a party to the unsuccessful robbery and was covering up that involvement by falsely accusing you of the murder. You stated during the calls that there was bullet damage in the bungalow that would vindicate you. Your girlfriend Megan and your sister Hanna went along with this charade during the calls, and in the way they ran their defences at trial on charges of attempting to pervert the course of justice, of which I will say more later.
On the 18th December 2014, your solicitors, at your request, formally advised the Informant of your instructions that there had been an armed intruder on 1 December. Your solicitors requested that police re-examine the crime scene. Police ballistics experts, who had examined the crime scene on 2 December 2014 and found no bullet damage, re-examined the crime scene on 23 December 2014 pursuant to warrant. Just before they entered the bungalow to begin their search, your girlfriend Megan spoke to the officer in charge, telling him that you wanted the investigators to look for bullet damage in a painting (which on 1 December 2014 had been covering up the bathroom window) and in the roof of the bungalow. Sure enough, bullet damage was discovered by police on 23 December 2014, consistent with the instructions passed on by Megan.
On 31 March 2016, your solicitors, acting on your instructions, asked the police to again re-examine the crime scene, asserting that there was bullet damage in the shed which had been missed by the investigators. Photos of the bullet damage in the shed were provided. Police did not bother to re-attend but the prosecution relied on this conduct as further incriminating conduct on your part.
During the trial, your counsel adduced the photographs of the bullet damage to the shed, which it was claimed were consistent with an armed intruder having fired a shot in the bathroom on 1 December 2014, that shot having penetrated the painting that had been covering the window between the bathroom and the shed.
By its verdict, the jury clearly rejected your story about an armed intruder murdering Bekhazi. No doubt, your desperate attempts to bolster that story, by arguing that investigators had missed bullet damage, backfired.
Victim impact statements
You murdered Michael Bekhazi. He was not your only victim. I have received victim impact statements from Michael Bekhazi’s father Samir (on behalf of himself and his wife Salam) and by Michael’s brother Robert. They are devastated by what you did. Their suffering has been aggravated by the fact that you have shown no remorse.
Attached to the parents Victim Impact Statement is a report from psychologist Lara Sullivan. It confirms that not only do Samir and Salam Bekhazi each feel overwhelmed by grief at their son’s violent and senseless death, but their relationship has also been greatly and adversely affected.
Seriousness of offending
Murder
All murders are offences of the utmost seriousness. Having said that, I must make an assessment of where your offence falls on the spectrum of seriousness for murder.
Your counsel submitted that your offence was at the lower end of the spectrum. In support of that submission, he relied on the evidence that there was limited premeditation and that you were substance affected. Your counsel took me to the observation made by the Court of Criminal Appeal in Iddon & Crocker some 30 years ago that “a distinction is to be drawn between premeditated murder and murder committed in a momentary act of passion”.[4]
[4]Iddon & Crocker (1987) 32 A Crim R 315, 328.
I, of course, accept the distinction drawn by the Court of Criminal Appeal but reject your counsel’s submission that your offence falls into the latter category. As I said to your counsel during the plea hearing, that phrase “a murder committed in a momentary act of passion” conjures up scenarios very different to what occurred in this case. As you moved around the courtyard pointing the gun, first at the back of Bekhazi’s head, then at the neighbour putting out the bins, then at Bekhazi’s forehead, there was a degree of premeditation and an opportunity for you to desist, especially with Kanaan imploring you to stop. But I acknowledge that the premeditation was limited.
Your counsel submitted that you must have been suffering from a drug induced psychosis and that this reduces your moral culpability. For the submission that you were psychotic, reliance was placed on a number of matters; first, the evidence that you were drug affected; second, the senselessness of the killing; third, old psychiatric and psychological reports indicating that you have experienced psychotic episodes in the past in connection with drug abuse.
Whilst I am satisfied on the balance of probabilities that you were affected by ice at the time of the shooting, and that it was a senseless killing, I am not satisfied that you were psychotic. The fact that in the past you have experienced psychoses in the context of drug abuse does not mean that you were psychotic on this occasion. Further, there is no psychiatric report asserting that you were psychotic or likely to have been psychotic on 1 December 2014. There is no evidence that you said anything delusional: the comment “I want to kill everybody” does not, to my mind, fall into that category. Further, you testified that you were upset with yourself on that day for relapsing into ice use. Such a relapse of course increased the risk of your parole being cancelled, as had already occurred a number of times. You also testified that around 6.30pm, your sister and girlfriend “ripped” into you about getting back on drugs. You told them to “piss off” and they left. Thereafter, you said you tried to contact Megan but she didn’t respond. These circumstances could have triggered a downward emotional spiral, which may well have been exacerbated by further ice use. And I think it is likely that you did use more ice after giving your girlfriend and your sister their marching orders, especially since Kanaan saw you holding an ice pipe at about 9pm. Whilst your conduct in Kanaan’s presence was out of all proportion to objective stressors, those stressors in combination with the disinhibiting effects of ice provide an explanation for your conduct short of a psychosis.
The prosecution submitted that the fact that you were under the influence of ice was an aggravating factor. If there had been evidence that you knew that, when under the influence of drugs, you tended to act violently, that submission would have been viable. But ultimately no such evidence was forthcoming.
Your counsel submitted that the fact that you were ice affected was mitigatory. He relied on the case of Redenbach[5] for that submission. But in Redenbach, the Court of Criminal Appeal said this:
Nowadays it frequently occurs that those who attack and kill or seriously injure someone are affected to some extent by drink or drugs. Where this condition is self-induced, it is not generally to be regarded as mitigating the offence, for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence…Where on the other hand the court is satisfied that there is something which , whether wholly or partly which excuses the taking of drink or drugs, it will treat the circumstance as going in mitigation, as where a drunken man who had committed an armed robbery showed that his alcoholism was the result of the painful disease from which he suffered.[6]
[5]Redenbach (1991) 52 A Crim R 95.
[6] Ibid 99.
In my view, there was nothing about your relapse into ice use that could justify me treating it as a mitigating circumstance.
I regard your offence as a mid - range example of the offence of murder.
Breach of Parole
In relation to the summary offence of breaching parole, the fact that the breach was constituted by a murder places it, in my view, in the upper range of seriousness for that offence.
Personal History
You were born on 20 January 1975, so you are now 41 years of age. You come from a large Lebanese family. You are the youngest of 11 siblings. Your father, with whom it seems you had a positive but not a close relationship, died in 2007 whilst you were undergoing a lengthy prison sentence for drug trafficking. Your mother is still alive but in poor health.
You were about two when your family migrated to Australia. You were not a good student, often playing truant. You were only educated to Year Seven.
Your parents, who were not well off and also had various health problems, struggled to cope with such a large family. You lived with your sister Hanna for several years during your teens.
After leaving school, you worked for about four years in a fruit store operated by one of your brothers, and also in a fast food restaurant for about 18 months. You have also done floor sanding, panel beating, general labouring and run some sort of a painting business.
You began using cannabis when you were 12, and progressed to ecstasy, speed and heroin during your late teens. The use of illicit drugs, including ice, has been a longstanding problem.
You have had a number of intimate relationships over the years and you were married for a brief period. You were in a relationship with Megan Beljulji for a couple of years leading up to your current offence. The two of you were in fact living together in the bungalow at 137 Donald Street. Despite you being in custody since December 2014, the relationship appeared to be ongoing during your trial. However, I was informed by Ms Beljulji’s counsel during the plea hearing that, from Ms Beljulji’s perspective at least, the relationship is now over.
You have a history of significant mental health problems in the context of drug use. A number of old mental health reports were provided to me by the prosecution, without objection. These reports were apparently provided to the prosecution in relation to your plea to drug trafficking offences in 2002
Antecedents
Your prior convictions date back to the mid 90’s. Your priors include convictions for assaults, weapons offences, reckless conduct endangering persons and dishonesty offences. Most significant are your priors for drug related matters. In particular at Melbourne County Court on 22 November 2002, Judge Cullity sentenced you to a total effective sentence of 12 years imprisonment with a non- parole period of nine years imprisonment for two counts of trafficking a commercial quantity of a drug of dependence (ecstasy and speed) and one count of trafficking a drug of dependence (ketamine).
Prospects of rehabilitation
I regard your prospects of rehabilitation as poor for several reasons.
First, you have a significant criminal history. It also appears from your custody record, which was tendered by your counsel on the plea, that you were granted parole in relation to Judge Cullity’s sentence but it was cancelled several times. You were on parole when you committed the murder.
The second reason I regard your prospects of rehabilitation as poor is the fact that you have shown no remorse.
The third reason is the content of the psychological report that was tendered on your behalf. On page 5 of the report of clinical psychologist Robert Leardi, he writes:
It is my opinion that Mr Semaan’s longevity of mental health and substance use issues, combined with his lack of current motivation to address these issues, means that his prognosis for recovery is very poor.
Comparable cases
As regards the cases that your counsel put forward as comparable, there were some similarities but also many dissimilarities. The sentences imposed in those cases varied considerably. At the bottom end of the range was the sentence of 12 years imprisonment with a non-parole period of nine years’ imposed on Sebalj.[7] There are significant differences between your case and the case of Sebalj, including the fact that Sebalj had no prior criminal history and was found to be remorseful.
[7]Sebalj [2006] VSCA 106
At the top of the end of the range of sentences imposed in the cases relied on by your counsel was the sentence of 23 years’ imprisonment with a non-parole period of 18 years imposed on Pyke.[8] Pyke’s offending was certainly more premeditated than yours but, then, Pyke pleaded guilty and his drug and mental problems were at least in part due to injuries he suffered when he was seriously assaulted.
[8]Pyke [2006] VSCA 265
Sentence
Just punishment, denunciation, specific and general deterrence are all important sentencing considerations in your case.
Please stand.
On the murder, I sentence you to 22 years imprisonment
On the charge of breaching parole, I sentence you to 2 months imprisonment.
Pursuant to s 16 (3BA) of the Sentencing Act 1991, any sentence I impose on you for the breach of parole must be cumulative on the sentence for the murder, unless I direct otherwise by reason of exceptional circumstances. In my view, there are no exceptional circumstances.
Accordingly, the total effective sentence is imprisonment for 22 years and two months.
I fix a non-parole period of 18 years.
I declare that you have served 187 days by way of presentence detention.
I make a disposal order in the terms sought by the prosecution.
HANNA SEMAAN
Introduction
Hanna Semaan, the jury found you guilty of one count of attempting to pervert the course of justice. The maximum penalty for that offence is 25 years.
The facts
In relation to the circumstances of your offending, I will not repeat the narrative of events I set out my sentencing remarks regarding your brother, Alex, although they must be borne in mind. I will add the following matters.
A day or so after the shooting, Kanaan attended 137 Donald Street again, as was his habit. I largely accept his version of events as to what happened on this visit. You were present, along with other members of your family. You berated him for what he had told police, saying it could put Alex in jail for many years. You pressured Kanaan to change his police statement.
Kanaan was dismayed, and surprised, that you seemed to know the contents of his statement. When he left, and returned to his temporary home at 190 Stewart Street, East Brunswick, where he was living with some of your relatives, he discovered that his copy of his statement had gone missing from the bag that he had put it in in the early hours of 2 December 2014. Somehow, you had come into possession of that statement and, indeed, you advised the Informant a few days later that you had it.
I reject your account, and that of some of your relatives, that Kanaan brought the statement with him to 137 Donald Street and asked for someone to translate it for him, claiming he wasn’t sure what was in it and then disavowing much of it once it was translated. I consider that version of events implausible. Before Kanaan signed the statement at the police station on the 2 December 2014, it was read back to him with the aid of an interpreter; he was well aware as to what was in his statement and had no need to take it to 137 Donald Street to get it translated.
I said above that I largely accept Kanaan’s version of events about what happened on the day he first returned to 137 Donald Street. I am not however satisfied that on that first occasion you suggested to him that he should tell police there was an unknown intruder or intruders who must have shot Bekhazi, as he testified at trial.[9] I consider it more likely that you suggested this to him at a subsequent encounter, to which I now turn.
[9] Kanaan did not make this assertion in any of his police statements.
On the 15 December 2014, a man named Pierre Diab attended at Kanaan’s temporary home at 190 Stewart Street and, without warning, went up to Kanaan and punched him several times in the face. He then demanded that Kanaan go outside with him. Kanaan refused. Diab went outside and a few minutes later walked back in with you and Megan. In the presence of Megan and Diab, you again berated Kanaan for his police statement and pressured him to change it. Kanaan eventually told you and Megan what you wanted to hear – that he would change his police statement with the assistance of a solicitor to be organised by you. When Kanaan indicated he would cooperate, Diab left. You and Megan stayed for a little while longer and left together.
Kanaan did not do what you hoped. He fled Stewart Street the same night and the next day spoke to the Informant, telling him about the attempts to get him to change his story. The Informant observed injuries on Kanaan consistent with his account of being assaulted by Diab.
The prosecution did not seek a finding that you were a party to Diab’s assault of Kanaan, although they did assert, reasonably in my view, that Diab’s attendance was not coincidental. As conceded by the prosecution, it is reasonably possible that Diab may have acted unilaterally when he assaulted Kanaan before you and Megan arrived.
Kanaan testified that, at the confrontation on 15 December, you threatened to have him killed. As I indicated at the plea hearing, I cannot be satisfied beyond reasonable doubt that such a threat was made, having regard to the fact that I am satisfied that Kanaan did not mention it to the Informant the next day and did not mention it in the two police statements he made thereafter.
Seriousness of offending
The offence of attempting to pervert the course of justice is a serious offence. That is reflected by the fact that it carries a maximum term of imprisonment of 25 years.
Your counsel conceded that your offence is not a low range example of the offence. There are a number of reasons why that concession was correct. First, the criminal prosecution you were trying to pervert was a prosecution for murder, the most serious offence there is. Second, you weren’t interfering with a witness in the belief that he was wrongly accusing your brother of shooting Bekhazi. Given the way the prosecution ran its case, the jury’s verdict means you interfered with Kanaan in the belief that he was telling the truth when he said that your brother shot and killed Bekhazi. Third, as you well knew, Kanaan was the only eye witness to the shooting. You may have been unsuccessful in getting Kanaan to change his story, but that goes to his credit, not yours. Fourth, your attempt to get Kanaan to change his story was not limited to one occasion. Your criminality was not something that could be described as occurring on the “spur of the moment” or a brief lapse of judgement.
Despite these considerations, I do not say that your offence falls in the upper range for attempts to pervert. It is appropriately categorised as a mid-range example of the offence. But as such, it calls for stern punishment, especially in the interests of general deterrence.
Personal History
You have had a hard life. You were subjected to physical and sexual abuse in an arranged marriage. You have had two children, both afflicted with cerebral palsy. Your son died at 20. Your daughter who is 29 is wheel chair bound. Whilst she lives independently, she has carers who have to wash her and dress her each day. You oversee her care. I have no reason to doubt that you are devoted to your daughter who is isolated by her condition. Prior to being remanded in custody at the end of the trial, you would attend on your daughter for several hours every day.
In addition to the psychological report I received about you, I have received a psychological report on your daughter and a report from one of her support workers. Both reports speak of your daughter’s distress at you being in custody. I accept that your time in jail will be harder for you because of your separation from your daughter and anxiety regarding her situation. I will moderate the sentence I impose on you to take account of that fact .
I will also moderate your sentence because you have been subject to a bail condition for close to two years which prohibited you from communicating with family members other than your mother.
Antecedents
Whilst you have limited prior convictions, they are not insignificant. Your attempt to pervert was an attempt to deceive. You have priors for deception. At Melbourne Magistrates Court on 15 July 2010, you were convicted of seven counts of obtaining property by deception and two counts of obtaining financial advantage by deception. You received an aggregate sentence of four months imprisonment, suspended for 12 months. With Alex’s assistance, you withdrew approximately $67,000 from a bank account in his name, even though a court order had forfeited the moneys in that account to the Crown as a result of Alex being convicted of an automatic forfeiture offence.
Prospects of rehabilitation
Whilst you have shown no remorse, and continue to falsely assert your innocence, you have a limited criminal history and this will be your first sentence of immediate imprisonment. In my view, you are more than capable of appreciating that further offending will lead to further imprisonment and further periods of separation from your daughter. Accordingly, I assess your prospects of rehabilitation as reasonable and will moderate specific deterrence accordingly.
Sentence
Even so, you have committed a serious offence which strikes at the heart of the criminal justice system. General deterrence is a particularly important sentencing consideration in this case.
It was submitted by your counsel that I should combine any sentence of imprisonment that I impose on you with a CCO. If I were to impose such a combined sentence, the maximum period of imprisonment that I could impose would be two years. In my view that would be an inadequate head sentence given the circumstances of aggravation that I have referred to above and the importance of general deterrence.
As was your right, you ran your trial. You are not to be punished for that but it means you are not entitled to a discount for a plea of guilty.
Please stand.
I sentence you to three years’ imprisonment.
I fix a non-parole period of two years.
I declare that you have served 59 days by way of presentence detention
I make the order sought by the prosecution for a forensic sample.
MEGAN BELJULJI
Introduction
Megan Beljulji, a jury found you guilty of two counts of attempting to pervert the course of justice. As mentioned, the maximum penalty for such an offence is 25 years imprisonment.
The facts
I need not repeat the narrative of events which I have already given in my sentencing remarks for Alex and Hanna Semaan.
As regards attempts to get Kanaan to change his story to police, you were only involved in the confrontation at 190 Stewart Street on 15 December 2014. You played a silent but supporting role on that day: Hanna did all the talking. After the meeting on 15 December, you found out the details of solicitors who could help Kanaan with changing his statement and liaised with Hanna in that regard.
But that was not the end of your attempt to pervert the course of justice. Not only did you interfere with the principal witness for the prosecution, you were a party to putting police onto a false trail of evidence. It will be recalled that Alex eventually claimed that Bekhazi had been shot by an armed intruder who had fired off two shots in the bungalow during a struggle with Alex. Alex, through his solicitors, pressed the police to re-examine the crime scene, claiming they had overlooked bullet damage in the bungalow. The police re-attended at 137 Donald Street with a warrant on 23 December 2014 to re-examine the crime scene. When police were at the premises about to commence that re-examination, you called Hanna who was also there and asked to speak to the police. Hanna passed the phone to Detective Sgt Martin. You told him that you had spoken to Alex who said that he wanted police to search the roof of the bungalow and a painting for bullet damage. The police went ahead with their search and found the false evidence. As to who made the bullet holes to lend credence to Alex’s defence, that remains a mystery. But when you passed on the message from Alex to the police, you did so in the belief that the crime scene had been tampered with. In a number of documents I have read about you, you are described as an intelligent young woman. That intelligence was not on display when you were a party to putting police onto a false trail of evidence.
Seriousness of offending
In relation to the interference with Kanaan (Count 2), I regard it as a mid-range example of the offence of attempting to pervert the course of justice, for most of the reasons that I gave in my sentencing remarks regarding Hanna. I acknowledge, however, that you played a lesser role. You were involved in the one confrontation only and Hanna did all the talking on that occasion.
In relation to putting police onto a false trail of evidence, your participation was brief and inconsequential. I therefore regard it as a low range example of the offence.
Personal History
Turning to your personal history, you were born on 7 April 1988. You are 28 years of age now. It appears that you grew up in a loving environment with your parents and an older sister. Although your parents eventually separated, that did not happen until you were 19. Your parents sent you to a private Catholic school. After that, you went into hairdressing for several years. You also worked as a sales representative and more recently you worked in accounts at Monash IVF, a position which you held for 18 months.
But in the background, undoing all this good work, and placing a strain on your relationship with your family, were at least two significant problems. First, your use of illicit drugs and second, your relationship with Alex Semaan.
In the psychological report tendered by your counsel, the following summary of your drug history is given:
She acknowledged using a range of substances, in particular ice (and acknowledged having previously used Methadone; up to 40 ml). Ms Beljulji said she had used cannabis from the age of 16, ecstasy at 17, amphetamines and ice “on and off… but I always worked”.
In the testimonials from your parents and grandmother, I glean that your ice use was probably more of a problem than you revealed to the psychologist.
That you came into the orbit of Alex Semaan, an older man, an ice user and convicted drug trafficker, and maintained an intense relationship with him over several years as he went in and out of jail for breaching his parole, no doubt only exacerbated your pre-existing drug problem.
Since being remanded in custody towards the end of the trial, you claim to have ended your relationship with Alex and to have abstained from drugs. I hope you maintain that resolve. Although the strains in your familial relationships have been on display throughout these proceeding, your family is supportive.
Antecedents
Unlike Alex and Hanna Semaan, you have no prior convictions.
Prospects of rehabilitation
You are relatively young. Over the years you have demonstrated the ability to hold down work. Although you have a lengthy history of illicit drug use, you have no prior criminal convictions. You have a supportive family. In all the circumstances, I accept your counsel’s submission that you have good prospects of rehabilitation. Accordingly, specific deterrence does not assume the importance it might otherwise have in sentencing you.
Sentence
But general deterrence must figure prominently in the sentences I impose. You attempted to pervert the course of justice in relation to a murder trial. You did so knowing or believing that Alex shot Bekhazi. You tried to get the main prosecution witness to change his story. When that failed, you continued your attempt to pervert the course of justice by putting police onto a false trail of evidence.
Further, you ran your trial. You are not to be punished for that but there is no discount for a plea of guilty. Nor have you displayed any remorse.
As conceded by your counsel, there must also be a measure of cumulation in the sentences I impose, because the interference with the witness (Charge 2) and the putting of the police onto a false trail of evidence (Charge 3) were discrete pieces of conduct. But your sentence on Charge 2 will be less than Hanna’s because you have no prior convictions and you played a more limited role.
As I indicated with Hanna Semaan, I consider that a CCO combined with a sentence of imprisonment is out of the question because a total effective sentence of greater than 2 years imprisonment is required.
On Charge 2, I sentence you to imprisonment for two years and nine months
On Charge 3, I sentence you to six months’ imprisonment.
I order that three months of Charge 3 be cumulative on Charge 2, making a total effective sentence of three years.
I set a non-parole period of two years.
I declare that you have served 60 days by way of presentence detention
I make the order sought by the prosecution for a forensic sample.
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3