DPP v Ajaj; DPP v Klink [2014] VCC 775

2 Charges 1 and 2 are contrary to s.22 of the Crimes Act 1958 and carry a maximum penalty of ten years' imprisonment. Charges 3 and 4, which are respectively, alternatives to Charges 1 and 2, are contrary to s.23 of the Crimes Act 1958 and carry a maximum penalty of five years' imprisonment.

3 You both stood your trial and on 16 May 2014, a jury found each of you guilty of Charges 1 and 2.

4 It was the case for the prosecution that at approximately 12.50am on 25 May 2008, 12 shots were fired at a house at 4 Picola Court, Meadow Heights, Victoria. At that time, Rose Graham and her partner, George Perhuvin, were seated in the front lounge room of the house.

5 It was also the case for the prosecution that Rose Graham's son, Daniel Cleghorn, also known as "Woody", lived at the house and owed drug debts to one Imran Allouche, who in turn owed money to Bassam Hamzy, who at all material times was incarcerated at the Lithgow Correctional Centre.

6 It was alleged that at least both of you and one Omar Ajaj were outside the house when the shots were fired, and two of such people shot at the house, after which they all sped off in a white utility vehicle.

7 It was the prosecution case that each of you was part of a joint criminal enterprise to use firearms to shoot at the house in an act of intimidation and persuasion for the collection of drug debts. In particular, the prosecution case was that you all acted at the direction of Hamzy, who was to be the ultimate recipient of monies paid for the drug debts.

8 I consider that the jury verdicts can be appropriately interpreted to mean that the jury accepted that both of you were at the premises situated at 4 Picola Court, Meadow Heights at the time of the offences. However, I also accept that given the evidence as to the nature of the cartridges found, only two guns were used in the shooting and it is impossible to say whether either of you were the actual shooters. Furthermore, I also accept that the jury verdict can be properly interpreted to mean that the jury accepted that there was damage to various parts of the house at Picola Court, Meadow Heights caused by impacting bullets.

The plea in mitigation in respect of Hamed Ajaj

9 Your counsel, in support of your plea in mitigation, tendered the following documents:

(a) Statistics from the Sentencing Advisory Council in respect to reckless conduct endangering life over the period from 1 January 2010 to 31 December 2012 and in particular, in relation to where sentences were partially suspended (see Exhibit W);

(b) Sentencing statistics from the Sentencing Advisory Council in respect to reckless conduct endangering life over the period from 1 January 2010 to 31 December 2012 and in particular, in relation to the various sentencing dispositions imposed over that period (see Exhibit X);

(c) References from a Ms Karen De Angelis and from a Mr Alan Zanette (see Exhibit Y); and

(d) A document headed "Background of Hamed Ajaj (Sentencing)".

10 Based on some of the materials tendered and the submissions made by your counsel, I set out the following details in respect to your personal circumstances, your educational and vocational background.

11 You are now 27 years of age and were aged 21 at the time of the offending.

12 You were born in Australia and were educated to Year 9 level, after which you left school during the first semester of Year 10. You then commenced a TAFE course in spray painting and car detailing, which you performed for about 18 months and thereafter left the TAFE course to take up full-time employment. You have training certificates in transport, logistics and forklift driving.

13 In particular, your family operate a fruit market and you have worked in this area supporting your family. You continue working in the business run by your father.

14 You met your wife in 2007 through a mutual friend and in February 2009, you were married. Apparently, such marriage initially was disapproved of by your parents on religious grounds but this has largely been corrected through the passage of time and the birth of your daughter in 2010. You also have a

15 I note the reference from your mother-in-law, Mrs Karen De Angelis, who describes you as "courteous and a helpful young man who is dedicated to his wife and two small children". Furthermore, I note the reference from Mr Alan Zanette, your brother-in-law, who describes you of possessing qualities such as "honesty, reliability and dedication in providing for his family".

16 You presently live with your wife and children in the family home at Lidcombe, New South Wales, together with your father and younger brother, Mohamed. Your mother also generally lives in the house but has returned to Lebanon to visit her sick mother and is not due to return until June 2014.

17 Mohamed was shot five times in 2010 by a person unknown. As a result of such shooting, Mohamed has suffered long-lasting injuries, causing him to be cared for by you and your mother.

18 On 30 September 2011, you were sentenced in the Sydney District Court after pleading guilty to the following offences:

(a) Recklessly dealing with proceeds of crime (collecting $31,000 from Melbourne on 8 June 2008 at the behest of Bassam Hamzy);

(b) Possessing a prohibitive firearm without licence or permit (an inoperative air pistol);

(c) Obtaining a benefit by deception on 29 May 2008 (using a credit charge transaction for a flight to Melbourne);

(d) Two counts of obtaining a benefit by deception (involving credit card transactions to purchase airline tickets).

19 All of the New South Wales offences occurred in or about May or June 2008 with proceedings not being commenced until 2010. You were sentenced to a period of imprisonment but otherwise placed on good behaviour bonds.

20 There is no record of you committing any crimes since the events in May and June 2008. Furthermore, you have no criminal record prior to these dates.

21 In particular, your counsel submits that the following matters should be taken into account by way of mitigation in the consideration of your sentence:

(a) The offences occurred in May 2008. Your counsel submits that for "whatever reason" the appropriate authorities chose to prosecute on a "piecemeal basis". By that, he submits that you were charged with the New South Wales matters in 2010 and the proceedings for the subject charges were not commenced until the expiry of your term of imprisonment in relation to the New South Wales offences. It is submitted that this delay has deprived you of the opportunity of having one trial and one sentence with the prospect that there would be some cumulation of sentence. Furthermore, a substantial period of time has elapsed since the offence to the present time and such a delay should be taken into account in mitigation of your sentence;

(b) It is submitted that you are a "youthful offender" and the prospects of rehabilitation are good, as has been borne out by your record since 2008. Furthermore, at the time of the offending in May and June 2008 when you were only 21 years old, it is submitted that you considered that you owed some sense of duty towards your cousin, Bassam Hamzy, and to a large extent did what you were told by him. With greater maturity and growing family commitments, you are far more sensible in your actions;

(c) It is submitted that the "objective seriousness of [your] offending" was not high given:

(i) the offences occurred late at night, with minimal bystander risk;

(ii) five shots only to be found striking the house;

(iii) no projectile entered the living quarters of the home and in particular, the front lounge room where the two people were situated;

(iv) no proof beyond reasonable doubt that all twelve shots were directed to the home;

(v) the occupants of the home were "hardly scared" given that George Perhuvin did not even get off the lounge and Rose Graham went to the kitchen to have a look;

(d) That the impact of the offending on the occupants of the house was slight, and when giving their evidence they did not appear overly perturbed by what occurred on that night.

22 Your counsel submits that it should be inferred that you have changed your life since these offences and although accepting that imprisonment was the only appropriate disposition, seeks that the head sentence of any term of imprisonment be no more than twelve months, after which the sentence should be suspended for a period to effectively cause an actual period of incarceration from the time you had been remanded until this date.

23 Your counsel also referred to various statistics in support of his submissions as to an appropriate sentence. In particular, he submitted that over the period 2010-2011, there were 107 cases involving reckless conduct endangering life, of which 63.6 per cent of the sentences involved a custodial sentence of less than 18 months. Furthermore, 94.3 per cent of offenders received a

non-parole period of less than 18 months. Seventy-seven per cent of such offenders received a non-parole period of less than 12 months.

24 Your counsel also made reference to the following cases:

(a) R v Warwick [2012] VSC 382, a decision of Hollingsworth J delivered on 13 September 2012;

(b) Director of Public Prosecutions v Hague [2011] VSC 371, a decision of Whelan J delivered on 10 August 2011;

(c) Director of Public Prosecutions v Andrew Hinton, Paul Joseph Petersen and Raymond Joseph Hamment [2008] VSCA 34, a decision of the Court of Appeal delivered on 28 February 2008.

The plea in mitigation in respect of Abdulgini Klink

25 Your counsel, in support of your plea in mitigation, advised the court of a variety of matters in relation to your personal circumstances, your educational and vocational background.

26 In particular, you were born on 7 June 1989 and are presently 24 years of age, one day shy of your 25th birthday. At the time of offending, you were 18 years old, 13 days shy of your 19th birthday. You were born in Sydney and are one of five children. You were educated to Year 11, after which you took a six-month course to become a boilermaker. After that, you had a variety of employments involving concreting work, carpentry work, concrete pumper, produce packer, factory cleaner and for the last two years or so, you have been employed as a painter. Your father is a painter and you hope to set up your own painting business.

27 You are not presently in a relationship and have no children. You presently live independently.

28 In particular, your counsel submitted that in mitigation of sentence, the following matters should be taken into account:

(a) You are a "youthful offender" and this was described by your counsel as a "significant factor". Prior to this offending you had no criminal record;

(b) Your counsel also submitted that delay is also a strong mitigating factor when considering an appropriate sentence. In this respect, your counsel highlights not only the period of delay in general terms but also, if this matter had proceeded in a timely way, you probably would have been sentenced at a time when you were under 21 years old and accordingly, could have received Youth Justice detention;

(c) Your counsel also highlighted that any joint criminal enterprise entered into by you would have occurred only shortly prior to the subject offending and there is no evidence that you were one of the physical shooters, nor evidence that you even held a gun. Furthermore, there was no particular motive or purpose why you were there, other than on the direction of ultimately Bassam Hamzy through telephone calls with Omar Ajaj;

(d) It was submitted by your counsel that the sentencing statistics are of "limited usefulness". There are no cases that "deal with someone" where they cannot be said to be the shooter.

29 Your counsel submits that the appropriate sentencing disposition would be a head sentence of no greater than three years' imprisonment which should be wholly suspended. He submits that such a sentencing disposition would be appropriate as it would take account of the following mitigating factors:

(b) your potential for rehabilitation which has been demonstrated to some degree over the period of time since the offending to date;

(c) the delay which may have also deprived you of a sentence to be served in the Youth Justice system;

(d) the immediate circumstances of the offending which was late at night and where it cannot be said that you were necessarily one of the shooters.

30 In response to the submissions made by the counsel for Ajaj and Klink, counsel for the prosecution submits that the statistics tendered are not that helpful as they involve cases both where pleas of guilty have been entered (which attracts a lesser sentence through the operation of the Sentencing Act) and which is not relevant here, and cases involving conduct endangering life arising out of other types of offences - for example, driving offences. Furthermore, although accepting such statistics may be of some assistance, he highlights that, of course, each sentence is peculiar to the facts surrounding the particular offending.

31 Counsel for the prosecution did accept that there has been some delay but did assert that police authorities were not aware of the telephone intercepts in relation to the circumstances of the offences on 25 May 2008 until December 2009. Counsel for the prosecution accepted that there was a possibility that the accused, Klink, may have been able to access the juvenile detention system if his trial had been very early and he had been sentenced prior to his 21st birthday.

32 Counsel for the prosecution referred to the following cases which involve offences of conduct endangering life and the use of guns:

(a) Director of Public Prosecutions v James Spiteri [2010] VCC 1411 (unrevised), a decision of his Honour Judge Gullaci delivered on 13 October 2010;

(b) R v Allan Rudd [2007] VCC 1580, a decision of his Honour Judge Nixon delivered on 23 August 2007;

(c) R v Matwali Chaouk [2013] VSC 362, a decision of Lasry J delivered on 17 July 2013.

33 Any crime which involves the use of guns in the community must be strongly denunciated. As I have said earlier, in particular, the community will not tolerate, and should be protected against so-called "drive-by shootings". The subject offence is a flagrant example of the illegal use of firearms to intimidate people who are otherwise no more than relaxing in the lounge room of their private residence.

34 I consider that the relevant sentencing considerations for this crime include a combination of just punishment, deterrence - that is, deterrence to you personally as well as to others who might be minded or tempted to act as you did on this night. In particular, the sentence should also reflect disapproval of this type of crime involving, as is it did, the indiscriminate use of firearms and the firing of shots at a house. I should add that there is little or no evidence of any remorse in relation to this offending. However, as I will detail later in these remarks, various mitigating factors should be taken into account.

35 I do take into account that on the evidence before the jury, it cannot be said whether either of you were involved in the actual shooting. However, be that as it may, it must be borne steadily in mind that the jury verdict reflects that you were part of the joint criminal enterprise to shoot at that house on that night. Furthermore, although I accept that the evidence of the two occupants of the house before this court was very "low key" and in particular, they asserted that they did not hear the shots and as the evidence established, no actual shots penetrated into the lounge room where they were seated, watching television.

36 However, some of the transcripts of telephone calls earlier that day would suggest that the two occupants were confronted by people during the day seeking to talk with "Woody" to pay the drug debt. Ultimately, I came to the view that on considering the evidence, that on balance, the occupants downplayed the events of the night for reasons best known to them, either being fearful of saying too much, or alternatively, as was suggested by one of the counsel, nothing much is said to those in authority.

37 I consider the following matters relevant as mitigating circumstances:

(a) Given the age of both of you, each of you should be viewed as a "youthful offender" for the purposes of sentencing, and that the principles expounded in R v Mills [1998] 4 VR 235 and Azzopardi v R [2011] VSCA 372 have application. In particular, I refer to the judgment of Redlich JA in Azzopardi, and in particular, to Paragraphs 34-36 where he states, in part:

"There are a number of considerations which underlie the general primacy of an offender's youth as a sentencing consideration. First, young offenders being immature are therefore 'more prone to ill-considered or rash decisions'. They 'may lack the degree of insight, judgment and self-control that is possessed by an adult'. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. ...

Secondly, courts 'recognise the potential for young offenders to be redeemed and rehabilitated'. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, 'is one of the great objectives of the criminal law'. The added emphasis for the purposes of sentencing on realisation of a young offender's potential to be rehabilitated is further justified because of the community's interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending. ...

Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, therefore defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised link that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community".

At the time of offending you, Klink, were 18 years of age and you, Ajaj, were 21 years of age. I accept that the offending did not involve any particular long-term planning and probably involved the agreement which constituted the joint criminal enterprise being made only a short time prior to the actual offending. It does seem reasonably clear that both of you were acting ultimately at the behest of the criminal, Bassam Hamzy. It is unclear whether familial ties, some misplaced respect or indeed fear, motivated you to act in the way you did. Seemingly there was little financial reward for your actions. I accept that with greater maturity you may well be far more circumspect in the actions you undertake. I consider your prospects of rehabilitation to be good, demonstrated by your lack of offending since 2008.

(b) I also consider that the period of delay from the commission of the offence to this date is lengthy. It would seem that charges were only laid against both of you on 27 February 2012. This may reflect that periods of imprisonment were being served in New South Wales for offences associated with coming to Melbourne in May or June 2008. I refer to Arthars v R; Plater v R [2013] VSCA 258, wherein the Court of Appeal set out the basis of the justification for taking "delay" into account as a mitigating factor. In essence, the two considerations are of rehabilitation and fairness.

The Court of Appeal referred to the comments of Chernov JA in R v Cockerell (2001) 126 Australian Criminal Reports 444, which was subsequently affirmed in R v Tiburcy (2006) Australian Criminal Reports 166. Chernov JA states:

"... First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of the process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, therefore keeping the offender in a state of suspense as to what will happen to him or her".

38 When considering whether delay requires the element of fairness to be taken into account as a mitigating factor, the court must have regard to the degree to which the accused had control of the length of that delay. In the present circumstances, I consider that delay is relevant as a mitigating factor, as both accused could have been facing one trial for all offences said to have occurred in May and June 2008 rather than having some matters dealt with in New South Wales and now matters dealt with in Victoria, commencing on 27 February 2012.

39 Furthermore, although the accused were not charged until 27 February 2012, they would have been aware that appropriate authorities had had access to various telephone intercepts and would have some degree of awareness that there was the potential to be charged with various offences notwithstanding that those charges were not laid until 27 February 2012. However, in regard to you, Klink, I consider that it is no more than speculative to assert that if you had been charged, tried and sentenced in a timely way, all that would have occurred before the age of 21, given that you were just short of the age of 19 at the time of the offences. Furthermore, on the material before me, I am not prepared to determine one way or the other when it would have been reasonable for appropriate authorities to assess the telephone intercepts pertaining to the subject offending.

40 I take all these matters into account and consider that although these offences must attract a period of imprisonment there are reasonably strong mitigating factors which in turn will be reflected in significant portions of your sentences being suspended, pursuant to s.27 of the Sentencing Act 1991. Although I have read both the materials setting out various statistics and the cases cited to me, I was not overly assisted by such material, largely for the reasons submitted by counsel for the prosecution.

41 In relation to you, Hamed Ajaj, I make the following orders:

(a) In relation to Charge 1, you are convicted and sentenced to a period of three years' imprisonment.

(b) In relation to Charge 2, you are convicted and sentenced to a period of three years' imprisonment. Such period of imprisonment is to be served concurrently with the sentence pertaining to Charge 1.

(c) I declare that you have served 21 days to date by way of pre-sentence custody in relation to these offences.

(d) Pursuant to s.27 of the Sentencing Act 1991, I order that of your effective sentence of three years' imprisonment, two years' imprisonment of such sentence be suspended for a supervision period of 12 months.

42 In relation to you, Abdulgini Klink, I make the following orders:

(a) In relation to Charge 1, you are convicted and sentenced to a period of three years' imprisonment.

(b) In relation to Charge 2, you are convicted and sentenced to a period of three years' imprisonment. Such period of imprisonment is to be served concurrently with the sentence pertaining to Charge 1.

(c) I declare that you have served 21 days by way of pre-sentence custody in relation to these offences.

(d) Pursuant to s.27 of the Sentencing Act 1991, I order that of your effective sentence of three years' imprisonment, two years' imprisonment of such sentence be suspended for a supervision period of 12 months.

43 It is necessary that I tell you that such a sentence requires you both to serve an immediate period of incarceration of 12 months, less the 21 days served to date, and thereafter, the balance of your sentence will be suspended, subject to a supervision period of 12 months. If over that period of 12 months you commit another offence punishable by imprisonment, your suspended sentence of two years will be restored and you will have to serve the balance of those two years of that sentence and indeed, any other penalty which you may incur as a result of any other offending. No doubt your counsel will give full details as to what this order involves.

46 HIS HONOUR: Yes. Anything counsel want to raise?

48 HIS HONOUR: Yes. I will adjourn until 11.30 for a further sentence.

49 I just wish to make plain, I think I still owe everybody a ruling in relation to the no case submission which is well down the track. But I will get that to you in the next week, I would say. All right?