R v Zogheib
[2015] VSC 17
•27 January 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL JURISDICTION
S CR 2014 0028
S CR 2014 0029
S CR 2014 0098
| THE QUEEN |
| v |
| MUSTAFA ZOGHEIB |
| and |
| IHSAN EL-CHAKIK |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 December 2014 |
DATE OF SENTENCE: | 27 January 2015 |
CASE MAY BE CITED AS: | R v Zogheib & Anor |
MEDIUM NEUTRAL CITATION: | [2015] VSC 17 |
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CRIMINAL LAW – Sentence – Reckless conduct endangering life – Discharge of firearm in course of high speed car chase – Prohibited person possessing firearm – Possession of counterfeit money – Reasonable prospects of rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Chadwick QC | Office of Public Prosecutions |
| For Accused Zogheib | Mr Toohey | Melasecca Kelly Zayler |
| For Accused El-Chakik | Mr Hallowes | Emma Turnbull Lawyers |
HIS HONOUR:
Mustafa Zogheib, you have pleaded guilty to four charges on two indictments.
The charges are, in chronological order, being a prohibited person in possession of a firearm on 10 August 2013 contrary to s 5(1) of the Firearms Act 1996 (Vic) (‘Firearms Act’);[1] being a prohibited person in possession of a firearm on 19 August 2013 contrary to the same section; reckless conduct endangering life on 19 August 2013 contrary to s 22 of the Crimes Act 1958 (Vic) (‘Crimes Act’); and knowingly possessing counterfeit money on 20 August 2013[2] contrary to s 9(1)(a) of the Crimes (Currency Act) 1981 (Cth).
[1]Indictment C1309390.6.
[2]Indictment C1309390.1.
The maximum penalty for each of these offences is 10 years’ imprisonment.
Summary of Offending
On 10 August 2013, you were residing at 1 John Paul Drive, Hillside. That was your parents’ home. The garage had been converted into a bedroom which you occupied. Your partner, a young woman named Ngarla King, with whom you had been in a relationship for several months and with whom you now have a son, was staying with you on the night in question.
I mention Ms King because it appears that the incident on 10 August 2013 was over her. Ms King had previously been in a relationship with a man named Zain Tiba, a member of a well-known crime family in the western suburbs, who came to your house that night, uninvited, with three other men.
Prohibited person possessing firearm
At about 4.40am on 10 August 2013, you came out the front door of the converted garage and got into a Honda sedan parked in the driveway of your home. You were in possession of a .32 calibre semi-automatic handgun. You should not have been in possession of that gun because you were a prohibited person under the Firearms Act by reason of being on two community corrections orders at the time for indictable offences. Those orders had been imposed in February and July of 2013.
What happened next on 10 August 2013 is not the subject of any charges for which you fall to be sentenced today but it is relevant to your reason for possession of the handgun and for your conduct on 19 August 2013, which also resulted in a charge for which you are to be sentenced today. In other words, it is necessary to refer in some detail to the full incident on 10 August 2013 because it works in your favour.
As I said, you got into the Honda at about 4.40am, but before you could reverse out, a Holden Station wagon, which had sat off your premises a short time before, drove up and stopped very close behind your car.
On seeing the station wagon arrive, you got out of your Honda. Four men hurriedly got out of the station wagon. They were Zain Tiba, his brother Omar Tiba, a nephew Mohamed Tiba and a fourth unidentified male. As CCTV footage later confirmed, at least one of the men, Omar Tiba, was armed with a handgun. That may have been apparent to you from the outset. There is evidence which indicates that Omar Tiba racked his handgun, possibly on getting out of the station wagon: an unspent 9mm cartridge was later discovered a few metres away on the crossover of the neighbouring property.
You also took out your handgun and racked it, making it ready to fire.
Immediately after racking your gun, you retreated around the corner of the garage to the front door of your garage. Mohamed Tiba chased you. As he came around the corner, you pointed your gun at him but did not fire. Seeing your gun, Mohamed Tiba did an about face and ran back to the station wagon.
Whilst you were still near your front door, you fired a shot in the direction of the driver’s side of the station wagon, to which the fourth unidentified male had run. You then moved up to the corner of the garage. Zain Tiba was crouching behind the open driver’s side door of your Honda. You fired a second shot, which struck the mid line of the roof of your Honda, just above the windscreen.[3] You then again retreated to the front door of the garage. The four men got back into their station wagon and drove off past your house. As they did so, you fired two more shots in the direction of their vehicle. You returned to your garage for a short time and then left in the Honda.
[3]At your trial in relation to this incident, the prosecution eventually conceded that it was a reasonable possibility that these first two shots were fired by you in lawful self-defence.
You stood trial over these events, the prosecution alleging that you were guilty of five[4] counts of reckless conduct endangering life, based on the last two shots fired by you as the station wagon drove away. You gave evidence on your trial, maintaining that all four shots were fired in self-defence. Unsurprisingly, the jury acquitted you on all counts.
[4]Four counts in respect of the occupants of the station wagon and one count in respect of members of the public who might have been endangered by the shots.
In giving evidence at your trial, you said that on 7 August 2013, that is, just three days before the incident at your home, you received the first of a series of threatening telephone calls from Zain Tiba. He told you that Ms King was the love of his life and that you had stolen her from him. He threatened to kill you, rape your mother and rape Ms King.[5] You said that Zain Tiba made multiple calls to you of a similar kind over the next couple of days. You said that as a result of these calls you decided to obtain a gun for protection. On the balance of probabilities, I accept your evidence as to why you acquired the gun, but you should not have taken the law into your own hands. You should have contacted the police, which you acknowledged by your plea of guilty.
[5]Trial transcript 480.
On 13 August 2013, the informant Sergeant Andrew Eyries formally interviewed you over the events of 10 August 2013. That was largely a no comment record of interview, but off tape you told him that the incident was over Ms King and that members of the Tiba family were involved. You did not name any specific Tiba. At your trial, you testified that you did not name specific Tibas because you feared reprisals if any of them were charged based on you having identified them. You mentioned the Tibas generally to Sergeant Eyries in the hope that police would speak to them and warn them off.
Further charge of prohibited person possess firearm and reckless conduct endangering life
I turn now to the events on the night of 18 and 19 August 2013, which resulted in a further firearms charge and the rolled up charge of reckless conduct endangering life. You were again at your residence at 1 John Paul Drive, Hillside. You saw, on the CCTV monitor in the converted garage, a Jeep Patriot driving back and forth past your house. I accept that you thought it might have been members of the Tiba family again, or persons associated with them, intent on doing you or your loved ones harm. Regrettably, you did not contact police. Instead, you went outside to investigate, accompanied by two male associates who were visiting you. Another associate, your co-offender Ihsan El-Chakik, subsequently arrived in a Holden Ute.
Soon after Mr El-Chakik arrived, the Jeep Patriot entered John Paul Drive again and went around you and your associates. You and Mr El-Chakik quickly got into the Ute and followed, Mr El-Chakik driving. The Jeep stopped some distance up the road outside a house. Mr El-Chakik brought the Ute to a stop, angled across the front of the Jeep, blocking it. From the passenger seat of the Ute, you pointed a gun at the occupants of the Jeep. Your counsel told me that this was the same gun you had in your possession on 10 August 2013.
The Jeep quickly reversed and then took off east along John Paul Drive, with you and Mr El-Chakik in the Ute in fast pursuit. The Jeep turned right into Panorama Drive, left into the Melton Highway, and left into Gourlay Road. At Gourlay Road, as the Jeep raced through several roundabouts, reaching speeds in excess of 140 kph, trying to get away from the pursuing Ute, you fired at least three times. One of the bullets shattered the rear windscreen of the Jeep. The Ute caught up with the Jeep and, as it drew alongside, you pointed your gun at the driver of the Jeep who slammed on his brakes. The Jeep did a U turn over the median strip, and escaped. You and Mr El-Chakik returned to John Paul Drive.
The occupants of the Jeep were not members of the Tiba family, or even associates of the Tibas. The driver was a young man named Taylor Horley who had earlier been driving back and forth in John Paul Drive simply because he was unsure where his friend Antonia Kourkourlis lived on John Paul Drive. He eventually found her house. The two of them went to a nearby McDonalds briefly and it was when he re-entered John Paul Drive to drop Ms Kourkourlis home that he drove past you and your associates standing in the street, and you and Mr El-Chakik jumped in the Ute and set off in pursuit of them. So began their terrifying ordeal.
Impact on Victims
Mr Horley and Ms Kourkoulis could so easily have been killed, either through being struck by a bullet or by their Jeep crashing.
Mr Horley, a P plate driver at the time, is to be commended for his quick thinking and skilled driving under extreme pressure. But his composure in a crisis did not spare him great mental anguish then and subsequently, as indicated in his victim impact statement. According to the psychological report dated 24 November 2014 from Peter Tait, annexed to Mr Horley’s victim impact statement, Mr Horley suffers from chronic post-traumatic stress. He experiences flashbacks of the event. In October 2014, on hearing a car back fire as he walked along Chapel St, Prahran with his girlfriend, he ‘flipped out’ and ended up in the Alfred Hospital psychiatric ward overnight. He has to use a hand hammer rather than a nail gun at work because of the effect that the sound of the nail gun has on him. He has difficulty sleeping and frequent nightmares. He is undergoing intensive counselling.
Ms Kourkoulis has also undergone counselling and a report dated 21 October 2013 from Dr Jon Kettle, a psychologist, was annexed to her victim impact statement. It speaks of her experiencing symptoms of post-traumatic stress disorder. She too has had difficulty sleeping and has nightmares. She describes how she has turned into an introvert and struggles with doing her studies and her part time work. She and her family understandably felt the need to move to another home after the incident, rather than continue living on John Paul Drive, Hillside.
Your counsel supplied me with a letter recently written by you which, amongst other things, expresses your remorse over what happened on 19 August 2013. I accept that you are remorseful and your plea of guilty is also evidence of that.
Possess counterfeit money
Turning to the last charge, the police investigation into the Jeep incident led to the police searching your premises on 20 August 2013, at which time they found counterfeit money, namely seven fake $50 notes. Those notes were produced on paper, not polymer substrate as is the case with genuine notes, but having viewed and handled the fakes, I have no difficulty accepting the comment in the agreed prosecution summary that, both to the eye and to the touch, they are of ‘very high quality.’
Antecedents
I turn now to your criminal history. From four court appearances between 1999 and 2013, you have accumulated 25 convictions or findings of guilt. These include convictions for possession of drugs, dishonesty offences and, most significantly, weapons offences. The penalties previously imposed on you have been an adjourned undertaking, a fine, and community corrections orders. You were on these two community correction orders at the time of the offending, which is an aggravating factor.
Your counsel submitted that your violent behaviour on 19 August 2013 was completely out of character.[6] He relied heavily on the fact that you had no prior convictions for violent offences.
[6]Plea transcript 29.
You do however have prior and subsequent convictions for weapons offences.
On 12 February 2013 at Sunshine Magistrates’ Court, you were convicted of, amongst other things, two charges of possessing a prohibited weapon without exemption or approval and one charge of possessing cartridge ammunition without a licence or permit.
On 4 July 2013 at Sunshine Magistrates’ Court, you were convicted of, amongst other things, possessing a controlled weapon without excuse. Your counsel told me you were intercepted by police and found to have an axe in your car.[7]
[7]Plea transcript 28.
On 10 September 2013 at Sunshine Magistrates’ Court, you were convicted and fined for possessing a controlled weapon without excuse.[8] The prosecutor could not tell me the type of weapon involved and defence counsel did not refer to it.
[8]Plea transcript 57.
Whilst the fact that you have no priors for offences involving violence is a matter in your favour, I find that you have demonstrated a tendency to acquire weapons which always carries with it the risk of violence, a risk that eventuated on 19 August 2013, so I consider that deterring you from acquiring weapons and resorting to violence in the future is a significant sentencing consideration.
Finally, in relation to your antecedents, it must be noted that on 12 February 2013, you were fined without conviction for knowingly possessing counterfeit money. Your counsel told me[9] that you were in possession of a large sheet of paper which had about eight fake $100 notes on it, white in colour. The fact that you have this prior matter makes specific deterrence a significant consideration too in sentencing you for the possession of the counterfeit money charge.
[9]Plea transcript 75.
Personal History
As for your personal history, you were born on 26 March 1982 and are now aged 32.
Your mother and father, who were born in Lebanon, are both pensioners and still reside at 1 John Paul Drive, Hillside. Your father was formerly a taxi driver, working very long hours. Growing up, you did not have a close relationship with him, whereas you were close to your mother, who is now in poor health. You have two older brothers and two older sisters.
Your sister Sue was often present during your recent five-week trial and she and your father were present at the plea hearing.
Unfortunately, from the age of about 15, you began abusing alcohol and drugs. I will say more about your substance abuse later.
You passed Year 11 and began an apprenticeship as an electrician.
To your credit, when you were 18 you took on the care of your nephew Ali, who was 3 months old at the time. You did this for two years because Ali’s father, your brother Mohammed, was in jail and Ali’s mother was, I am told, not a suitable carer. Nonetheless, when Mohammed got out of jail, he placed Ali back into her care, which caused a rift between you and Mohammed. You are still close to your nephew Ali.
During the time you looked after Ali, you were unable to continue in your apprenticeship but you got work in department stores where the hours were more compatible with your parental responsibilities and I am told you reigned in your alcohol and drug problems.
Eventually, you worked in the construction industry and did so for about 10 years. You have advanced rigger tickets. I accept that your experience and qualifications in the construction industry bear favourably upon your prospects of rehabilitation, though I am also informed that your last full time employment was in 2012.
At the age of 18, you commenced a relationship that lasted some 13 years. You were married and there are two children from that relationship, Sammy (now around eight years of age) and Mia (now around three years of age). The relationship broke down in 2011 and, having regard to a psychological report by Dr Michelle Wauchope dated 3 June 2014 which was tendered on your behalf, it appears that alcohol and drug abuse on your part contributed to that breakdown. Your alcohol and drug abuse escalated after that relationship came apart.
Dr Wauchope’s report states that from the end of 2012 you were consuming ice daily until you were remanded in August 2013.
In early 2013, you struck up a relationship with Ms King, Zain Tiba’s former girlfriend. You are still a couple, even though you have been in custody since August 2013, and the two of you have a child, Mohammed, born on 1 May 2014.
According to Dr Wauchope, you have suffered from severe, long term depression and anxiety and those conditions persist. As is your right, you choose not to take medication for those conditions.
Your counsel did not submit that the principles which apply to the sentencing of offenders suffering mental illnesses or disorders apply to you but I take into account the fact that jail is likely to be more burdensome for you than for other prisoners not afflicted by severe depression and anxiety.
One of the things that you are anxious about in custody is that you might encounter members of the Tiba family or their supporters. I also take that into account in your favour as making prison more burdensome on you.
I was provided with a number of certificates regarding your behaviour whilst in jail. Urine screens indicate that you have stopped using illicit substances. You are working as a billet and have done some TAFE courses in jail, which may assist you in obtaining work when eventually released from jail.
Current Sentencing Practices
Section 5(2)(b) of the Sentencing Act 1991 (Vic) (‘Sentencing Act 1991’) requires sentencers to have regard to current sentencing practices and I have done so. With regard to the charge of reckless conduct endangering life, the prosecutor referred me to the relatively recent case of R v Chaouk,[10] in which, after a trial, Lasry J sentenced Mr Chaouk to a total effective sentence of five years’ imprisonment with a minimum of three years’ imprisonment for three charges of reckless conduct endangering life. Those charges arose from an incident where the offender fired several shots at a car containing three occupants. One of the shots hit the windscreen of the car, which was fired upon when it was stopped at an intersection near some shops. Members of the public were also placed in danger.
[10][2013] VSC 362.
Your counsel submitted that your sentence for reckless conduct endangering life should be less than that imposed on Chaouk for several reasons. You pleaded guilty; Chaouk ran his trial. You are to be sentenced for only one count of reckless conduct endangering life, albeit a rolled up count; Chaouk was convicted of three counts. You have no prior convictions for violent offences; Chaouk had a prior conviction for reckless conduct endangering persons and a worse criminal record overall. Your conduct on 19 August 2013 was due in large part to fear of the Tibas; Chaouk appears to have been motivated by hostility.
Although I take into account the sentence in Chaouk, as I do other sentences imposed for conduct endangering life involving the discharge of firearms,[11] I need to make the following points clear. ‘[W]ithin the permitted range of sentencing discretion, views may reasonably differ’[12] as to what is the appropriate sentence. Further as the Court of Appeal said in Hudson v R:
A detailed examination of ‘like’ cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band is not permissible. Sentences imposed in other cases are not precedents which must be applied unless they can be distinguished.[13]
[11]Sentencing cases on reckless conduct endangering life, particularly ones involving the discharge of a firearm, are conveniently summarised in the Judicial College Sentencing Manual at Chapter 30.9.6.1. Assistance is also to be gained there in relation to the sentencing range for the firearms charge for which Mr Zogheib is to be sentenced.
[12]Tasevski v R [2014] VSCA 135 [6] per Nettle JA.
[13](2010) 30 VR 610, 617; [2010] VSCA 332 [31].
I was not referred by counsel to any comparable cases in respect of sentences for knowingly possessing counterfeit money.
R v Phillis[14] was a case where the offender pleaded guilty to, amongst other things, knowingly possessing one hundred $100 counterfeit notes. The youthful offender had one prior driving offence on his record. The trial judge sentenced him to six months' imprisonment but on appeal, a sentence of one month's imprisonment was substituted.
[14] [2001] NSWCCA 91.
R v Gittani[15] was a case where the offender was convicted after a trial of knowingly possessing ninety one $50 counterfeit notes. The offender had a criminal record but apparently only for some relatively minor matters. The trial judge imposed a sentence of two years’ imprisonment with an order for release on recognisance after serving six months. The New South Wales Court of Appeal dismissed his appeal against sentence.
[15][2002] NSWCCA 139 (‘R v Gittani’).
Obviously, you were in possession of a much smaller number of counterfeit notes but they were very high quality and you have a prior for the same offence.
Plea of guilty
You have pleaded guilty to all the offences. In relation to the firearms offence on 10 August 2013, I sentence you on the basis that you pleaded guilty at the first reasonable opportunity, even though the plea was not entered until the early stages of your trial for the events on that day.[16]
[16]Originally you were charged with use, not just possession of the firearm, the prosecution relying on the shots you fired at the intruders on 10 August 2013: you maintained that you fired all four shots in self-defence and so refused to plead. As soon as the prosecution substituted the possession charge, to cover the period you were in possession prior to the arrival of the intruders, you pleaded guilty.
In relation to the incident on 19 August 2013, you were originally charged with, amongst other things, attempted murder, which explains how the matter ended up in this court. There was a contested committal on 26 February 2014 at which Mr Horley and Ms Kourkoulis were both cross examined. Given the charges you faced in the Magistrates’ Court, you pleaded not guilty at the conclusion of the committal.
There were negotiations with the prosecution post-committal.
On 18 July 2014 at a directions hearing, a plea indictment was filed in relation to the events on 19 and 20 August 2013. Because you were not present at the directions hearing, you were not formally arraigned and a plea of guilty was not entered until 12 September 2014 but, in all the circumstances, I consider that your plea of guilty in respect of the charges for those dates was entered at the first reasonable opportunity.
Your plea of guilty will attract a significant discount because it is evidence of remorse on your part and it spared the victims a separate trial and the community has been saved the time and expense of a trial. But I do not overlook the fact that the prosecution had a very strong case against you on these charges.
Prospects of rehabilitation
I take the view that you have reasonable prospects of rehabilitation. You have the support of members of your immediate family and you have a partner who continues to support you and with whom you recently had a child. You appear to be making genuine efforts in jail to put your life in order. If I remain a little guarded about your prospects, it is because of your longstanding abuse of alcohol and drugs, your criminal history, your response to previous court orders and your extreme conduct on 19 August 2013. I also note that you were on two sets of bail as at 10 August 2013 and three sets of bail as at 19 August 2013.[17]
[17]Section 16(3C) of the Sentencing Act 1991 provides: ‘Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on an incomplete sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.’
Gravity of offending
Your conduct on 19 August 2013 calls for strong denunciation, even though it was prompted by your fear of the Tibas. Whilst that fear somewhat reduces your moral culpability, I consider that the charge of reckless conduct endangering life falls at the upper end of the spectrum of seriousness for such an offence. It involved the deliberate discharge of a firearm three times in the course of a high speed chase. Two lives were put at risk. I find that you must have appreciated, in the circumstances in which you fired those shots, that there was a grave risk that the occupants of the Jeep might be killed, either by being struck with a bullet or crashing their car. You and others must be deterred from resorting to such violence.
As for the other charges, they fall at the lower end of the spectrum of seriousness for such offences, but I should not be misunderstood. Arming yourself with a firearm, rather than contacting police, is a significant offence.
So too is knowing possession of counterfeit money, which carries a maximum sentence of 10 years’ imprisonment. It was only a small sum of fake money but they were high quality fakes. I do not accept, on the balance of probabilities, your explanation advanced only from the Bar table, that the notes were put into the pot by another player during a card game at your home and that, recognizing they were fakes from their paper feel, you just put them aside. One is entitled to be highly skeptical about that explanation, given your prior for possession of counterfeit money.
I consider that a sentence of imprisonment is the only appropriate sentence in all the circumstances on the Commonwealth charge.[18] I also note what Sully J, with whom the others agreed, said at [17] of R v Gittani:
The knowing possession, without lawful excuse, of counterfeit bank notes is in any circumstances a serious offence. A worst case of the particular kind attracts a statutory maximum penalty of, relevantly, imprisonment for ten years. The clear legislative purpose in having established the offence at all is, in my opinion, the resolute protection of the integrity of the national currency. In connection with a matter of such importance, it does not seem to me to be in any way erroneous in principle to hold that knowing possession without lawful excuse of counterfeit bank notes should attract, in the absence of cogent and compelling circumstances, some form of full-time custodial penalty.
[18]Section 17B of the Crimes Act 1914 (Cth). I have also had regard to ss 16A and 16B of that act.
Sentence
I come now to the actual sentences.
I will deal firstly with the State offences.
For being a prohibited person in possession of a firearm on 10 August 2013, I sentence you to imprisonment for one year.
For being a prohibited person in possession of a firearm on 19 August 2013, I sentence you to imprisonment for one year. I specifically order that that sentence be wholly concurrent with all other sentences.
For engaging in reckless conduct endangering life on 19 August 2013, a rolled up count, I sentence you to five years' imprisonment. This is the base sentence.
I order that the sentence on the first firearms charge be wholly cumulative on the reckless conduct charge, making a total effective sentence on the State charges of six years.
Your counsel submitted that I should impose a longer parole period than usual. I can see no justification for doing so, although there will be a significant gap between the head sentence and the non-parole period. The minimum period you must serve before being eligible for parole in respect of the State offences is four years.
Section 6AAA of the Sentencing Act 1991 requires me to indicate the sentence I would have imposed but for your plea of guilty. I would have imposed a total effective sentence of seven years’ imprisonment and a non-parole period of five years in respect of the State charges.
I now turn to the Commonwealth offence, knowingly possessing counterfeit money. On that charge, I sentence you to three months’ imprisonment.
I order that your sentence for the Commonwealth offence commence immediately upon the expiration of the non-parole period for the State offences.
The nett result is that you must serve four years and three months before you are eligible to be released on parole.
Presentence Detention
You have been on remand for these matters since 28 August 2013. I make a declaration of pre-sentence detention of 517 days.
Ancillary Orders
Compensation Order
In respect of the damage to Mr Horley’s car, I make a compensation order against you in the sum of $1,398.51. You did not oppose such an order.
I will make an identical order against Mr El-Chakik because each of you are jointly and severally liable for the damage.
Confiscation Order
I make the confiscation order that was sought and was unopposed.
Forensic Sample Order
I make a forensic sample order. You did not oppose such an order being made. With regards to that forensic sample order, I understand that a saliva sample will be taken from you. That involves a swab being taken from the inside of your mouth. If you refuse to allow that sample to be taken, reasonable force can be used to take the sample.
You may be seated.
IHSAN EL-CHAKIK
After a trial, you were convicted of four charges of reckless conduct endangering life, all relating to the pursuit of the Jeep Patriot in the early hours of 19 August 2013.
The first two charges focused on the discharge of the firearm by your co-offender Mustafa Zogheib which placed the lives of Taylor Horley (Charge 1) and Antonia Kourkoulis (Charge 2) at risk. The prosecution’s case, which the jury obviously accepted, was that you were complicit in the discharge of that gun.
The last two charges focused on your driving of the Ute in the course of the chase which of itself placed the lives of Mr Horley (Charge 3) and Ms Kourkoulis (Charge 4) in danger. Each of these charges described the relevant conduct as ‘the driving of a motor vehicle at high speed, erratically and in close proximity to another motor vehicle.’
Summary of Offending
I will not repeat the summary of the car chase on the 19 August 2013 that I have set out above. I will however add that as you drove the Ute along Gourlay Road, I find that you twice swerved towards the Jeep’s driver side rear tyre, trying to hit it. I make that finding based on the evidence of Mr Horley who impressed me as a careful, truthful witness. Your own conduct constituted a serious example of reckless conduct endangering life.
I find that Mr Zogheib instigated the chase not you. You arrived at John Paul Drive and within a short time Mr Zogheib enlisted your assistance to pursue the Jeep.
Your counsel said that you were aware at the time of the chase of what had happened to Mr Zogheib on 10 August 2013, namely, that armed members of the Tiba family had come to his home uninvited, as I have described above. That knowledge may have contributed to your decision to assist Mr Zogheib in the way you did. In other words, it is quite possible that you looked at things from Mr Zogheib’s point of view – that the persons in the Jeep meant Mr Zogheib harm – and in that mistaken belief, gave chase.
Personal History
You were born on 1 September 1968 in Lebanon and are now aged 46.
You were brought up in Lebanon. Your parents died when you were in your teens. An elder sister took over the parenting role. You also have two brothers.
Your schooling was limited, finishing in your early teens. A cousin taught you to be a mechanic.
You came to Australia in 1990 when you were in your early twenties. You had met an Australian woman of Lebanese descent in Lebanon and when she came back to Australia, you came with her to marry her. There are three children from that marriage, two boys and a girl, now grown up. The oldest is about 20 and the youngest about 18. The oldest Abdula, aged 20, visits you in custody.
Your first marriage broke down and you separated in the late 90’s. The children remained with your first wife but you had regular contact.
You met your current wife, Nayla Chaker, in 2006. She was present at the plea hearing. You married in 2008. She has two children from a previous relationship, who are finishing or have just finished secondary school.
You have worked as a mechanic and as a handyman. Your wife works in childcare. Your wife and stepchildren are residing in rented accommodation. You regret the fact that, by reason of your incarceration, you are not in a position to contribute financially to your family.
Some medical reports were tendered by you regarding your wife’s health problems – especially her back problems – but there is nothing in that material which could impact on the length of the sentence that I must impose on you.
Although no drug screens were produced, I was told that you do not use illicit drugs in custody. I can only hope that that is so. Your counsel said that prior to being remanded on this matter, you were smoking ice every day and had been doing so fairly soon after you started using ice in 2012. Why you started using ice in 2012 was not explained.
Antecedents
You have a limited prior criminal history. In your mid to late thirties, there were two court appearances but I attach no significance to them.
On 4 March 2013, when you were 44, you appeared at Sunshine Magistrates’ Court for possessing methylamphetamine, possessing a controlled weapon (according to your counsel, that was a screwdriver), theft and dealing property suspected of being the proceeds of crime. In relation to the drug charge, you were sentenced to 20 days’ imprisonment with a declaration of 20 days’ pre-sentence detention. On the other charges, you were convicted and released on a community corrections order for 12 months. Hence, you were on a community corrections order when you committed the current offences, which is an aggravating factor.
There are two subsequent matters. You appeared at Sunshine Magistrates’ Court on 11 March 2014 where there was a consolidation of dishonesty matters, driving offences and, more significantly, two charges of threatening to inflict serious injury. On these matters you received a total effective sentence of one year’s imprisonment, approximately half of which was suspended for 18 months.
You also appeared at Sunshine Magistrates’ Court on 20 March 2014 when you were placed on a wholly suspended sentence of three months for possessing methylamphetamine and possessing a controlled weapon.
Prospects of Rehabilitation
Your performance in the witness box – where you advanced a ludicrous account of events – did not show you in a favourable light, but I accept your counsel’s submissions that your prospects of rehabilitation are reasonable. I do so because you have a limited criminal history and your first relevant court appearance was not until you were in your mid-forties, which suggests you have the capacity to conduct your life in a law abiding fashion. I also note that the letter tendered on your behalf today shows that you now accept responsibility for your offences on 19 August 2013.
Cumulation
You were on several lots of bail at the time of this offending for matters which were apparently dealt with at the Sunshine Magistrates’ Court in March 2014. Hence, s 16(3C) of the Sentencing Act1991 applies but I must also have regard to the principle of totality in the orders I make for cumulation, and I do so.
Sentence
I turn now to the actual sentences.
On Charge 1, I sentence you to imprisonment for four years and six months.
On Charge 2, I sentence you to imprisonment for four years and six months.
On Charge 3, I sentence you to imprisonment for five years.
On Charge 4, I sentence you to imprisonment for five years.
I declare Charge 3 is the base offence. Three months of each of the sentences of imprisonment imposed on Charges 1, 2 and 4 are to be cumulative on Charge 3, and on each other, making a total effective sentence of five years and nine months.
I order that you serve a minimum of three years and nine months before being eligible for parole.
Presentence Detention
I take into account that you have been in custody since 12 September 2013. However, between that date and 11 March 2014, you were in custody on other matters. Hence, the formal declaration I make for presentence detention on the current matter is 321 days, but in calculating your sentence I have taken into account the total time you have been in custody.
Ancillary Orders
Compensation Order
In respect of the damage to Mr Horley’s car, I make a compensation order against you in the sum of $1,398.51. You did not oppose such an order being made.
I made an identical order against Mr Zogheib because each of you are jointly and severally liable for the damage.
Forensic Sample Order
I make a forensic sample order. You did not oppose such an order being made. As I understand that will involve a sample of saliva being taken from the inside of your mouth using a swab and, if you do not cooperate in the taking of that sample, reasonable force may be used to obtain that sample.
Parity
I wish to conclude by saying something about considerations of parity.
The end result is that Mr Zogheib receives a longer effective sentence of imprisonment than Mr El-Chakik. He has no reason to feel aggrieved by this, even though he pleaded guilty to one charge of reckless conduct endangering life whereas Mr El-Chakik ran his trial and was convicted of four charges of reckless conduct endangering life in respect of both the shots fired and the dangerous driving. Mr Zogheib was the instigator of the chase and he fired the gun. Mr Zogheib also falls to be sentenced for two additional matters.
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