Crown v Accused

1 George Marrogi, on 15 December 2021 after a trial lasting 16 days you were convicted of the murder of Kadir Ors on 26 September 2016.

2 Your case has been protracted. There were three other trials over which I presided. The jury in the first trial failed to agree upon a verdict. In the other two trials the jury was discharged without verdict because of difficulties with jurors. Those two trials were well underway. In relation to the trial and retrial process you have reasonably cooperated with the authorities and you must be given some credit for that.

3 You continue to assert your innocence which is your right. It follows that a good deal of what has been said on your behalf is in the abstract, dependant on what inference can be drawn from the established facts. I identify you as the perpetrator because that is what the jury found.

4 The maximum penalty for the charge of murder is life imprisonment.

5 At about 3:11pm on Monday 26 September 2016, Kadir Ors arrived at the Campbellfield Shopping Plaza ("the Plaza"). He had been driven there in a white Jeep. Most of the relevant events were captured on CCTV from various premises at the Plaza. A short time prior to Ors' arrival, Sam Abdulrahim arrived at the Plaza in a white Land Rover driven by his girlfriend. The Land Rover was parked outside Office Works. At about the time Kadir Ors arrived. Alex Harrouk arrived in his maroon coloured commodore and also parked outside Officeworks.

6 As Kadir Ors walked down towards Officeworks, Abdulrahim got out of his car and walked towards Ors. The two men embraced. It has been Abdulrahim's version of events that he went to the Plaza to meet Harrouk (for lunch). He says that the meeting with Kadir Ors was coincidental. Harrouk claims to have a drug induced "amnesia" for the events.

7 From what can be later observed it is reasonable to assume that the three men met for about five minutes out of camera range before going to a bus shelter at the side of the Officeworks building, at about 3:17pm. The three men remained at the bus shelter until 3.24pm. On the whole of the evidence I am satisfied beyond reasonable doubt that the meeting was pre-arranged.

8 Abdulrahim's evidence at the trial was entirely unsatisfactory and illogical. The fact that Kadir Ors was dropped off in the way he was, seems to me to be for the purpose of a meeting. No satisfactory evidence was ever obtained from the two men who had driven Kadir Ors to the Plaza. On the whole of the evidence it is not possible to say whether or not you were party to that arrangement but I do conclude that you knew that Kadir Ors would be at the Plaza.

9 You arrived at the Plaza at about 3.20pm and spent the next three or four minutes driving around the carpark area of the Plaza.

10 At 3.24pm you found the three men at the bus shelter. You were then driving a stolen red Holden Commodore. You were driving west near the bus shelter when you stopped and got out of the car armed with a .22 semi-automatic pistol. Ors had seen your approach and started to move away from the bus shelter, he then ran back towards Officeworks with you in pursuit and you fired a number of shots at him. The other two men ran away towards Sydney Road. You concentrated your attack on Kadir Ors. He went to the ground after being shot and you ran back to the car. You drove around into the carpark facing south. You then fired a number of shots from within the car. You were then four or five meters away from him. You then drove off.

11 You were pursued by those who had brought Mr Ors to the shopping plaza. When you got to the roundabout at the intersection of Blair and Riggall Streets Broadmeadows, you drove around the roundabout to enable your pursuers to get ahead of you. You stopped in the roundabout. Your pursuers stopped and you fired a number of shots at their vehicle. They drove off. Unbeknown to you, the near side rear tyre of the car was flat and after you had driven a short distance the tyre came off the rim and you were forced to abandon the car a short distance away. The car contained the lid of an ammunition box of the variety of ammunition used in the shooting. Traces of your DNA were found on the lid. There was evidence, if accepted by the jury capable of connecting you to the stolen car.

12 Mr Peter Morrissey SC, who appeared on your behalf, urged me to find that I could not be satisfied that your intent at the time of the shooting was to kill. If that be so I would be obliged to proceed on the basis that you had the lesser intent of intending to cause really serious injury. Mr Morrissey relied upon five factors which he set out in his submissions on sentence (Exhibit 3). He submitted:

i. The deceased had fallen at the mercy of the shooter, who was a metre away (Patel);

ii. The shooter fired several shots at very close range, but none which hit the head, chest or neck (shots which could of themselves prove an intent to kill);

iii. The shots which did hit the torso do not indicate an intent to kill;

iv. The multiplicity of shots at the legs and buttocks suggest intent to cause (really) serious injury; and

v. The second round of shots (from within the car) were fired when only the legs were visible to the shooter, the torso and head being shielded by the maroon (Harrouk) vehicle.

13 Mr Mark Gibson QC who with Mr John Dickie appeared on behalf of the prosecution submitted that this was a clear case of intention to kill. He submitted that you had gone to the Plaza and spent some minutes looking for your target, you fired a number of shots into Kadir Ors and you then returned to your car, drove around the corner and fired other shots.

14 On the ballistics evidence you fired 13 shots at the Plaza. Eight from outside the car and five from inside the car. Mr Ors suffered seven gunshot wounds to his buttocks, back, left upper arm, left thigh and lower leg.

15 Although it is true that after you stopped the car it was the lower body of Mr Ors which was visible, I regard the act of stopping and renewing the attacks as very significant. I am satisfied that firing thirteen shots at an unarmed man speaks only of an intention to kill. If there was some other intention such as to injure another person, albeit really seriously, the firing of thirteen shots would be unnecessary, as would renewing of the attack.

16 It is important to note that this was a sustained attack with a firearm at reasonably close range. In any event, the distinction in these circumstances between intent to kill and intent to cause really serious injury is almost illusory. Lack of intent to kill would lead only to the conclusion of satisfaction beyond reasonable doubt of intent at least, to cause really serious injury, both intents are murderous.

17 This is a very serious case of murder. The following features of it are important.

(a) It was premeditated. That is, you had a plan to kill Kadir Ors. Mr Gibson submitted that the plan was in place at the time you either got the car or arranged to get the car on Sunday night. Even if that cannot be made out it was a plan decided upon well before you reached the Plaza on Monday afternoon.

(b) The shooting was in a public place and involved the discharge of thirteen shots in an area where there were members of the public and where members of the public would be expected to be.

(c) Mr Ors was an innocent victim who had been lured into a trap wittingly or not by others, but you went to the Plaza because you knew he would be there.

(d) After shooting Mr Ors you fled the scene, you were pursued by those who had dropped off Mr Ors. When you got to the intersection of Blair and Riggall Streets, you fired shots at your pursuers. That is, you were prepared to use a firearm to make good your escape. It appeared to have had that effect because you were not pursued further. It is a matter in aggravation of your conduct relating to the murder but you do not fall to be dealt separately for it.

18 It seems to me that any clear thinking member of the community who saw the CCTV footage of the shooting of Mr Ors and the photographs of your conduct at the intersection of Blair and Riggall Streets, would be shocked by it. Yours was very serious offending.

19 Your offending occurred in 2016 so the latest provisions relating to murder sentences do not apply to you. You do have a prior conviction for manslaughter and causing serious injury intentionally for which you were sentenced to be imprisoned for nine and a half years with a non-parole period of six years. I will return to that offending.

20 The statutory consequences of that offending is that you fall to be sentenced as a serious violent offender, that means, I am obliged to regard the protection of the community from you as the principal purpose of sentencing. It would be open for me to impose a disproportionate sentence on you to achieve that. The maximum term open to me is life imprisonment. I have not been invited by the prosecution to impose a disproportionate sentence and I will not do so. I will sentence you as a serious violent offender and I direct that your status as a serious violent offender be entered in the records of the Court.

21 On the plea, Kadir Ors' aunt, Yildiz Stopford, read her Victim Impact Statement to the Court. It was a very moving document. Her statement dealt with the effect of your conduct on the whole of her family. That effect has been profound and all the more so because there is still no explanation of why her nephew was murdered. It is also heightened because of the way in which he was murdered.

22 I have mentioned that the delay of the case has been difficult for you but it has also been a matter of great difficulty for the extended family of Kadir Ors. Kadir Ors' family has behaved with great dignity throughout the proceedings. I have taken the Victim Impact Statement into account.

23 The actual sentence I impose will be of little consolation to them.

24 George Marrogi you are now 33 years of age. You have much of your life ahead of you.

25 You were born in Iraq in 1989. You, your parents, and your two siblings came to Australia as refugees in 1996. You had one year of school in Iraq. Your family had moved to Syria in 1995 but you did not attend school there. You were six or seven when you came to Australia and you first attended St Thomas Moore school until grade five (about age 10) and then moved to Glenroy North State School in grade 6 (about age 11).

26 You received your secondary schooling first at Box Forrest Secondary College and later at Broadmeadows Secondary College. When you first went to school you spoke little, if any, English, and you have reported that you were the object of bullying. You found school very difficult and it seems that you started getting into trouble. Your parents separated when you were in Grade 6. I accept that was a difficult time for you.

27 During 2004 and 2005 you were charged with a number of offences[1] arising out of 14 different incidents. In May 2005 you were charged with armed robbery and released on bail.

28 The next day, 19 May you were involved in an incident at the McDonald's car park in Roxburgh Park. You were in breach of your curfew conditions. Your group got into a fight with another group of young men. It appears that one of their number insulted your group as the other group drove into the car park. Your group approached the other group. You were armed with a knife and stabbed and killed one victim and stabbed and injured another. You stood trial for murder. You were convicted of manslaughter and intentionally cause serious injury to a separate victim. You were sentenced to be imprisoned for nine and a half years with a non-parole period of six years.

29 You had been 16 years and two months of age at the time of that offending, 17 years and four months at the time of verdict, and 17 years and nine months at the time of sentence. It seems you remained in custody from the time you were charged with murder. Your outstanding matters were disposed of before sentence and you appear to have served about 300 days for those matters, said by Mr Morrissey to have been served in a Youth Training Centre.

30 It appears that you were released on parole at close to the earliest available date, that almost certainly indicates that your behaviour in custody was at least satisfactory. It appears that your behaviour on parole, at least in the eyes of the Adult Parole Board, was unsatisfactory and you appeared to have served most, if not all, of the head sentence.

31 During your period on parole you committed further offences. On 17 January 2013 you were convicted of recklessly causing serious injury and sentenced to be imprisoned for 12 months, to be served concurrently, and three months of that sentence was suspended.

32 On 13 January 2014 you were convicted of arson and sentence to be imprisoned for two months to be served concurrently. That offending must have post-dated your earlier offending because it constituted a breach of your suspended sentence and one month of that sentence was restored to be served cumulatively.

33 The record shows that you were released from custody on 15 April 2016. It appears that from what was set out by Bongiorno J as he then was,[2] that it is likely that you spent all but a few months of the period from 19 May 2005 until 15 April 2016 in custody.

34 You were arrested for the murder of Kadir Ors on 27 September 2016, that is only five and half months after your release. You have been in custody since. It seems that you have spent about 15 of the last 16 years of your life in prison. That is almost the whole of your adult life.

35 You did also offend whilst at large and on 7 February 2017 at the Broadmeadows Magistrates' Court you were convicted of reckless conduct endangering serious injury and failing to render assistance after a collision and you were sentenced to be imprisoned on appeal in the County Court to 270 days' imprisonment. On 6 October 2017 you were sentenced to one months imprisonment for assaulting a police officer.

36 You have been in custody for 2040 days. Only 1770 days are to be reckoned as pre-sentence detention but all of the 2040 days are to be taken into account in accordance with the principle of totality.

37 You have been on remand for almost six years. You have had to face your trial on four occasions. None of that was due to any fault on your part. I have taken those matters into account.

38 Since March 2020 there have been significant restrictions in our prisons because of the COVID-19 pandemic. It has been accepted in this Court that conditions have been significantly more difficult for prisoners.[3] For much of your time on remand you have been a security prisoner and have been held in solitary confinement. I have taken both the pandemic restrictions and the conditions under which you have been held into account.

39 On the plea, reports from Consultant Psychologist Luke Armstrong dated 15 July 2021 and 16 March 2022 were tendered on your behalf (Exhibits 3A and 3B respectively). Mr Armstrong diagnosed you as suffering from a Post-Traumatic Stress Disorder (PTSD). It is common ground that you came to Australia from Iraq via Syria when you were six or seven years of age. You told Mr Armstrong that three of your siblings had been killed in a bombing in Iraq and Mr Armstrong gave much weight to that feature of your background. As I have already noted, you were convicted of manslaughter on 24 July 2006. Prior to that offending you had been charged with a number of other offences in the Children's Court. As a result, a number of reports were produced relating both to the manslaughter and the other matters. The prosecution was able to obtain copies of those reports which were subsequently made available to me (Exhibit 5 on the plea). It emerged that you had not previously reported the death of your siblings to any of the professional people who examined you at that time. Not surprisingly the prosecution put that fact in issue. You chose not to lead evidence about that and I proceed on the basis that that circumstance is not relied upon. The other matter which arose as a result of what was said in the earlier reports is that you have given different descriptions of the breakdown of your family and your relationship with your parents. I do not draw any conclusion adverse to you because of either of those matters. It does, however, reduce the impact of what can be said about your PTSD and its effect upon you.

40 The prosecution accept the relevance of it in that reduced way. I informed the parties during the plea that I would have regard to the material filed on the Bail Application made on your behalf at the time of the death of your sister. In particular I have had regard to the Supplementary Affidavit of Katrina Richter dated 7 October 2021 to which was exhibited the Affidavit of Jennifer Anne Hosking Assistant Commissioner Sentence Management Division Of Corrections Victoria of 7 October 2021. That affidavit sets out your history on remand. Three matters emerge from it. You have been a less than satisfactory prisoner. Your time in custody has been difficult and a number of the matters reported are consistent with you suffering from PTSD.

41 It is not suggested that your PTSD is relevant to reduce either your moral culpability or the need for general deterrence. It may to some degree effect the way in which you will serve your sentence in comparison to a prisoner without the disorder. I have taken it into account in that way and as part of your background for the purposes of sentencing. I have taken the matters personal to you into account.

42 On 30 September 2021 your 30 year old younger sister, Meshlin, died of complications from COVID-19. I accept that you were very close to her and she attended your earlier three trials on an almost daily basis. Mr Armstrong reported that you have been significantly affected by her death and regard it as a motive for reform. That proposition was supported by your spiritual advisor Father Mina George, a catholic priest from Our Lady of Perpetual Help Traditional Chaldean Catholic Mission of Pius X, in a letter I received on your plea. I refused your application to be released on bail to attend her funeral. I accept that you regarded it as important, both personally and culturally, to attend the funeral and that you were not able to do so. In one way it is simply a matter which follows from your involvement in a crime of this kind, I have nonetheless taken those matters into account.

43 The other which has arisen is that it has been reported that you have been charged with serious offences said to have been committed whilst in custody. If those matters are made out they might be capable of influencing the effect of your PTSD. It is not known whether those matters will be made out. If they are you will fall to be sentenced for them. I do not take them into account in any way in imposing this sentence on you. It is not realistic to think that this sentence might be deferred until those matters are resolved.

44 You continue to deny your involvement in this offence so there is no evidence of remorse. That of itself does not aggravate your sentence. It does follow that nothing can be said about any insight you might have. Your history of involvement in the criminal law is substantial and it is very difficult to assess your prospects of rehabilitation. When imposing a very long sentence, as I am obliged to do in this case, it is only to be hoped that as you mature you will take a more positive attitude about your place and role in the community. I do not regard you as hopeless.

45 I am obliged to take current sentencing practices into account. There are few cases which might be used as comparators for your case. The case of R v John Bedson[4] was drawn to my attention. Although there are similarities between that case and your case there are also significant distinguishing features. In any event, in the years between 2011 and 2016, sentences for murder increased significantly.

46 Your prior convictions for manslaughter and causing serious injury intentionally are particularly relevant when you come to be sentenced for murder.

47 I must take into account just punishment, denunciation, protection of the community and specific and general deterrence. In your case because, as I have already found, you are a serious violent offender I am to regard the protection of the community from you as the principal purpose of sentencing.

48 This is one of the most blatant examples of murder that I have seen. The chasing of another citizen in a suburban shopping centre in the middle of the afternoon while shooting with a handgun and then returning to fire further shots in an area where members of the public are, and, later stopping to fire shots to prevent apprehension, has about it a high degree of lawlessness. The fact that your motive for the conduct is unknown cannot aggravate your behaviour but even if some motive were known, it is unlikely that it could reduce the seriousness of it either.

49 George Marrogi you are sentenced to be imprisoned for 32 years you are to serve 27 years before you will be eligible for parole.

50 I declare that you have served 1770 days by way of presentence detention. I order that this declaration and its details be entered in the records of the Court.

[1] R v GM [2006] VSC 473, [7] - [11].

[2] George Marrogi v The Secretary of the Department of Justice [2015] VSC 429.

[3] Worboyes v DPP [2021] VSCA 169

[4] R v John Bedson [2011] VSC 101.