DPP v Haddara

Supreme Court of Victoria|2012-11-01|Before: KAYE J

CRIMINAL LAW - Sentence - Intentionally causing serious injury - Reckless conduct endangering the person - Accused pursuing vehicle - Firing six shots at close range at vehicle - Serious intellectual impairment of accused - Methamphetamine addiction.

1 Waleed Haddara. You have been found guilty, by the jury empanelled on your trial, of one charge of intentionally causing serious injury to Sabet Haddara, and one charge of reckless conduct placing Antonio Sawan in danger of serious injury.

2 The offences, in respect of which you were convicted, arose out of an incident, which occurred at about 10.30 pm on 6 June 2010 in Chambers Road, Altona North. In that incident, six shots were fired from a Lancer motor vehicle at a Holden Vectra vehicle, in which Sabet Haddara and Antonio Sawan were the occupants. The Lancer vehicle was driven by XY, who gave evidence for the prosecution. At your trial, you denied that you were the person who fired the shots from XY's vehicle at the Vectra vehicle. By its verdicts, the jury was satisfied, beyond reasonable doubt, that it was you who was responsible for firing those shots.

3 For the purposes of sentencing you, it is, first, necessary for me to make some findings of fact in relation to the circumstances of the offences. The findings, which I make, are consistent with the verdicts of the jury, and with the evidence adduced at your trial.

4 The evidence demonstrates that, for some months before June 2010, you had been involved in trafficking methylamphetamine through XY. A few days before 6 June 2010, you discussed, with XY, the exchange of a 9 millimetre Beretta hand gun, which you owned, with a .22 millimetre machine gun, which was owned by an associate of XY. For the purpose of undertaking that weapon exchange, you met with XY, at about 9.40 pm, on 6 June 2010, near your home in Altona North. There XY picked you up in his Lancer vehicle. Because he was apprehensive of you, shortly after you met, XY activated the recording function on his mobile phone, which he secreted in a drawer under the dashboard of his vehicle.

5 XY then commenced to drive you to the place of a friend, where he was to leave you, so that he could then proceed to undertake the weapon exchange. However, before you arrived at your friend's home, you received a call on your mobile telephone, informing you that your wife was having a difficulty with someone at or near the McDonald's restaurant in Altona North. Upon receiving that call, you directed XY to drive you to the McDonald's restaurant.

6 As you reached that restaurant, you noticed a green Vectra vehicle driving out of it. You directed XY to follow it, which he did. That vehicle was, in fact, being driven by your cousin, Sabet Haddara, and his passenger was Antonio Sawan. Sabet Haddara quickly realised that he was being followed, so he diverted his vehicle through some side streets in Altona North. At your behest, XY followed him in the Lancer vehicle. In Chambers Road, Sabet Haddara pulled his vehicle into the driveway of a house. At your direction, XY stopped the Lancer behind that vehicle, but to the right hand side of it. Thereupon, you fired six shots at the driver's side of the Vectra from the front passenger's window of the Lancer. The second shot struck Sabet Haddara in the face.

7 After you had emptied the magazine of the Beretta, you directed XY to drive away. XY and you left the scene, and XY dropped you off at your friend's place. He then proceeded, with another person, to South Melbourne, where he carried out, on your behalf, the exchange of the 9 millimetre Beretta for a .22 machine gun. Later that evening, you met XY again, and he gave you the .22 machine gun. Subsequently, in May 2011, when your business premises were searched in Old Geelong Road, Hoppers Crossing, a .22 automatic weapon was found hidden under a shipping container.

8 As I have stated, at your trial, you disputed that you were inside XY's vehicle at the time of that shooting, and that you were the person who discharged the shots at the Vectra. By their verdicts, the jury was satisfied, beyond reasonable doubt, that it was you who fired the shots at the Vectra vehicle. The jury acquitted you of the charge of the attempted murder of Sabet Haddara, and convicted you of the alternative charge of intentionally causing serious injury to Sabet Haddara. The jury acquitted you of the charge of reckless conduct endangering the life of Antonio Sawan. It convicted you of the alternative charge of reckless conduct by which you placed, or may have placed, Antonio Sawan in danger of serious injury.

9 As a result of the gun shot wound which he received, Sabet Haddara sustained particularly serious injuries to his face. The second shot, fired by you, penetrated his right cheek, close to his gum. It entered the left pharynx/carotid sheath area. As a result, Sabet sustained a grossly shattered right jaw cavity, including the right side hard palate, and the middle soft palate. He has suffered significant damage to the teeth of the upper jaw.

10 The prosecution case at your trial was that you were unaware that it was your cousin, Sabet, who was the driver of the vehicle. The prosecution case, which the jury accepted, was that you intended to shoot the person, who was the driver of the vehicle, notwithstanding that you were mistaken about his identity. Thus, by its verdict, the jury was satisfied, beyond reasonable doubt, that, at the time at which you discharged the six shots at the vehicle, you intended thereby to seriously wound the person who was the driver. Further, at your trial, the jury was specifically instructed that, in order to convict you of either of the charges, involving placing Antonio Sawan in danger, the jury must be satisfied, beyond reasonable doubt, that you actually knew that there was a passenger in the vehicle. Accordingly, by its verdict, the jury was satisfied, beyond reasonable doubt, that you knew that there was a passenger in the vehicle, and that, in discharging the Beretta at the Vectra, you knew that your actions would probably create an appreciable risk of serious injury to that passenger.

11 I am satisfied that you formed the intention, to shoot the driver of the vehicle, shortly after you received the call, while you were in the Lancer, informing you that your wife was in some form of trouble at the McDonald's restaurant. It is clear, from your reaction to that call, that you formed the belief that the person, who was causing that difficulty to your wife, was a member of a family, which has been involved in a long-standing conflict with members of your family. Having received the telephone call, you stated that you were going to "kill him". As you approached the McDonald's complex, you donned a balaclava and a mask, in order to conceal your identity. At your direction, XY followed the Vectra while it made a number of different turns in side streets, trying to evade your attention.

12 The offences, for which you have been convicted, are serious. The maximum sentence for the offence of intentionally causing serious injury is twenty years' imprisonment. The maximum sentence for reckless conduct endangering the person is five years' imprisonment. Your offending in this case had a number of serious features about it. First, it involved the use of a firearm to discharge six shots at your victim. Secondly, the offence was committed in a public place. Thirdly, obviously, by discharging six shots at close range at the driver of the Vectra, you intended to cause that person particularly serious injury. Fourthly, you had no proper reason or excuse for your actions. There is no suggestion that you were acting in self-defence, or even that there was any appropriate degree of provocation which might explain or mitigate your actions. Rather, you seemed to have reacted to some undescribed difficulty, which you understood your wife was having with a member, or members, of the family, which has been in long-standing conflict with the members of your family. Fifthly, your actions were cowardly. Your intended victim was entirely defenceless, and he was not in a position where he could take appropriate evasive action. Sixthly, your actions were not a spontaneous outburst of violence; rather, as I have found, you formed the intention to act violently towards the person, who you understood had been giving your wife trouble, at about the time you directed XY to drive to the McDonald's restaurant. Thus, you had time to abandon your violent intentions. Seventhly, as a result of your actions, Sabet Haddara, who is a young man, has suffered severe injuries which, in all probability, will have a lasting effect on him.

13 Your criminal history record discloses that you have a substantial number of previous convictions, the first of which was at Sunshine Magistrates' Court in January 2003. The vast majority of those convictions relate to motor vehicle and traffic offences, and for breach of community based orders which were imposed on you. Most of those community based orders, which you breached, had been imposed in respect of your motor vehicle and traffic offences. You have also been convicted on seven separate occasions for offences involving dishonesty. Those offences demonstrate that you do not come for sentence as a person of good character. In particular, it would appear that, while you are in the community, you have little respect for other people's property, and indeed you have little regard for the law.

14 Two of your previous convictions are of greater concern. On 21 December 2007, you pleaded guilty in the Melbourne County Court to charges involving aggravated burglary (using a firearm), blackmail, false imprisonment and assault. For those offences you were sentenced to a total of two years and three months' imprisonment, with a non-parole period of twelve months. I have read the sentencing judge's reasons for sentence. It would appear that those offences were committed when you, together with two other persons, violently gained entry to the premises of your victim, who you intended to assault. In the course of that offence, you demanded that that person hand over his motor bike, and, in doing so, you showed your victim what appeared to be a hand gun, which protruded from the front of your trouser belt.

15 The second matter, which is of concern, is that on 3 February 2010 you were sentenced by the Melbourne County Court to a term of imprisonment of one year, which was wholly suspended for two years, on charges of theft and burglary. Thus, the offences, which you committed in the present case, occurred only four months after the commencement of your suspended sentence. By offending in the present case, you demonstrated, again, that you have a disregard for the law. It is also relevant to the question whether you have reasonable prospects of rehabilitation.

16 In those circumstances, and in the absence of any mitigating factors, I would be obliged to sentence you to a particularly lengthy term of imprisonment. I agree with the submission made by the prosecutor, Mr Rochford SC, that your offending, in the present case, is very much at the upper end of the scale of cases involving crimes of intentionally causing serious injury. In the absence of other factors, it would be necessary for me to impose a sentence which adequately expressed the court's and the community's condemnation of your outrageous conduct, and which, as a general deterrent, served as a lesson to the community that the courts will not, at all, tolerate the type of violent dangerous conduct which characterised your offending in this case. In addition, in the absence of mitigating circumstances, your previous convictions, and your offending in this case, would require the imposition of a long term of imprisonment in order to act as a specific deterrent, in other words, to teach you a harsh lesson as to the consequences of your offending.

17 However, there are significant mitigating circumstances in your case. In particular, the most important factor, which I must take into account in determining your sentence, derives from the fact that, through no fault of your own, you are a person who suffers from a substantial intellectual impairment, which I shall discuss shortly.

18 You were born in April 1984, and you are therefore 28 years of age. You have five siblings. Your parents, and other members of your family, migrated to Australia from Lebanon. You attended Newport Primary School. However, because of your intellectual impairment, you have never learnt to read or write, and your mathematical abilities are very limited. At the age of 9 years, you were assessed as being mildly to moderately intellectually impaired. In 1996 (when you were 12 years of age) you were assessed by Mr Pat Lowe, an educational and developmental psychologist. His assessment found that you were continuing to function at the same level of impairment, and he noted significant problems which you were experiencing with independent living skills and general adaptation.

19 You attended a special school for most of your secondary education, although you would spend one or two days each week in mainstream programs at Bayside Secondary College. You completed Year 10 of your studies with that assistance. However, it would seem that you are, to all intents and purposes, illiterate.

20 After leaving school, you have had a patchy employment history. Your main occupation has been as a professional boxer and as a "kick boxer". You have fought a number of professional bouts in each of those sports. Apparently, you progressed to quite elite levels of both sports, and you told Mr Newton, the psychologist, that you hold the Victorian and Australian titles in kick boxing.

21 In 2006 you married your wife, "Nish". There is one child of your marriage, a son, who is now four years of age. You separated from your wife in 2010.

22 In the meantime, in June 2009, your brother, Mohammed, was murdered. As I understand it, a member of the rival family, to which I have referred, is a suspect in that crime. You suffered a significant grief reaction in response to the death of your brother. As a result, you embarked on a period of intense use of methamphetamine ("Ice") from your brother's death until your remand on these charges in mid-2011. Indeed, you told the psychologist, Mr Newton, that you were consuming up to two grams of Ice each day, which would be an extraordinarily high level of intake, even for a seasoned user.

23 It is in that background that your offending in the present case took place. You were arrested and remanded in custody on 18 March 2011, and since then you have remained in custody in respect of the current offence. While you were in prison, your father died as a result of illness. Your grief over your father's death was quite intense, and was compounded by your inability to attend his funeral and participate in his funeral rites.

24 That, then, is your background history. As I stated, the most important aspect of it is that you have, on a number of occasions, been consistently assessed as a person who has a severe intellectual impairment. Mr Patrick Newton, a forensic and clinical psychologist, gave evidence at a voir dire before the trial, and at your trial, concerning your impairment. On your plea, a report of Mr Newton was tendered.

25 Mr Newton had conducted an assessment of your intellectual impairment in December 2007, which was placed in evidence before the County Court judge who sentenced you at that time. That assessment measured that you have a full scale intellectual quotient of 53. That result would only be achieved by one person in 1000 of your age peers. Mr Newton states that that intellectual quotient indicates that you suffer from a severe intellectual impairment. The results obtained, on that occasion, were consistent with the two previous assessments, which had been undertaken during your childhood and adolescence, and to which I have referred. Mr Newton states that your impairment qualifies you as falling within the "moderate mentally retarded" range.

26 Mr Newton's report states that the testing, which he undertook, indicated that you are capable only of the simplest reasoning, with only a limited ability to solve problems. Your understanding of appropriate social conduct is quite basic. Mr Newton considers that you would be expected to have difficulty anticipating the consequences of your actions, and that it would be likely that you would consider only very obvious courses of action.

27 Mr Newton in his report stated that, nevertheless, you are able to understand the difference between right and wrong. Your moral reasoning - while quite simplistic - remains intact. However, Mr Newton considers that you are poorly equipped to evaluate any suggestions offered to you, and it is likely that you would readily follow the bad examples of others, without pausing to examine them.

28 In addition, Mr Newton has noted that you have suffered from an intense addiction to amphetamines. Mr Newton considers that the level of use, which you described to him, was extreme, and that it would have had a catastrophic effect on your already limited capacity to function in an appropriate and reasoned manner.

29 The findings by Mr Newton, and the fact that you have an established history of functioning at an impaired level, are particularly relevant for the purposes of your sentence. It has been a long, and well established, principle of sentencing, that an offender's intellectual or psychological impairment is an important factor to be taken into account in determining the appropriate sentence. In particular, it is relevant to a proper assessment of your moral culpability. It is clear that your intellectual impairment limited your ability to exercise sound and rational judgment when you learnt that your wife was having some difficulty, with a member of a rival family. Your impulsive behaviour, and your lack of sensible judgment, were, I accept, substantially the product of the limitations of your intellectual capabilities.

30 Your intellectual impairment is also of particular relevance in determining the weight to be given to general deterrence. As I have already stated, ordinarily, in cases such as this, the principle of general deterrence is given substantial weight. However, it is a long and well established principle that, in cases involving persons with limitations such as yours, general deterrence is given significantly less weight. That is because, as a matter of common justice and humanity, persons who suffer from intellectual or psychological impairment are not considered to be an appropriate medium for making an example to others.

31 Further, while I consider that, in your case, there is a need to impose a sentence of imprisonment which will be sufficient to serve as a lesson to you, and thus to act as a specific deterrent, I also take into account the view of Mr Newton that, if you were to remain in prison for too long, there is a risk that you could become institutionalised, and, thus, that your rehabilitation would be compromised.

32 In that connection, I note that you have made some successful steps to your rehabilitation since you have been remanded in custody. In particular, you have not been in any trouble, and all of the random drug tests administered to you have proven negative. You are a sports billet in the Attwood Unit at the Metropolitan Remand Centre. Mr Dunn QC, who appeared for you on your plea, told me that, on your release, you would like to be involved in the sports industry, perhaps working in a gymnasium.

33 In addition, you have completed a number of courses while you have been on remand. In particular, I note that you have completed the Introduction to Anger Management program. You have also completed the Release Related Harm Reduction program and the "Breaking the Cycle" program, each of which are designed to address your severe methamphetamine addiction. You have also obtained a certificate of working safely in the construction industry. The completion by you of those courses, your role as a billet, and the fact that you have remained out of trouble and drug free, indicate that, notwithstanding your troubled past, your intellectual impairment, and your severe drug addiction, there are at least some hopeful signs that you may, ultimately, be able to be rehabilitated successfully into the community.

34 On the other hand, it is important to bear in mind Mr Newton's realistic assessment that you have a challenging road ahead of you if you wish to make good on your express desire to turn your life around. Mr Newton has recommended that you participate in rehabilitative programs, consisting of personal counselling, substance rehabilitation, and training and adaptive living skills. It is to be hoped that you will be able to undertake appropriate courses and programs, which address those issues, during your term of imprisonment.

35 In conclusion, you have been convicted of two serious offences. As I stated, the circumstances, in which you committed those offences, are particularly serious. If it were not for your intellectual impairment, I would be required to impose upon you a very lengthy term of imprisonment. However, as the prosecution has properly acknowledged, the sentencing principles, which relate to intellectually and psychologically impaired offenders, apply in your case. I am satisfied that they operate to reduce your moral culpability for your offending. Further, your intellectual impairment has the effect that the principles of general deterrence, which would otherwise loom large in a case such as this, must be substantially moderated. In addition, as I stated, while I consider that a term of imprisonment will serve as a lesson to you, it is equally important, in the interests of society, that the length of your term of imprisonment is not such that you become so institutionalised that you will not be able to be safely rehabilitated in the community. On the other hand, I also accept the submission by the prosecutor, Mr Rochford SC, that the term of imprisonment must be sufficient to provide the community protection from you, until you have had the opportunity to undertake appropriate rehabilitative programs in custody.

36 Taking those matters into account, I sentence you as follows:

(1) On the charge of intentionally causing serious injury to Sabet Haddara, I sentence you to eight years imprisonment.

(2) On the charge of reckless conduct placing Antonio Sawan in danger of serious injury, I sentence you to two years imprisonment.

37 I direct that six months of the sentence on the charge of reckless conduct placing Antonio Sawan in danger of serious injury be served cumulatively upon your sentence on the first charge, of intentionally causing serious injury to Sabet Haddara. Thus your total effective sentence is eight years and six months. I direct that you serve a minimum five years and four months imprisonment before you become eligible for parole.

38 Pursuant to s 18(4) of the Sentencing Act I declare that the period of 595 days be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the Court that that declaration was made.

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Judgment (42 paragraphs)

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