DPP v Hamka [2022] VSC 609

2 In addition to the charge of assisting an offender ('assist offender') of which the jury found you guilty, on the first day of the hearing of the plea in mitigation, you were arraigned on, and pleaded guilty to, a single charge of being a prohibited person possessing a firearm ('prohibited person').[2] This charge concerned your possession of the weapon the subject to your conviction for assist offender.

3 The maximum penalty for assisting an offender following a murder is imprisonment for 20 years. The maximum penalty for being a prohibited person possessing a firearm is imprisonment for 10 years.

4 The murders in question were of two men who were shot dead out the front of the Love Machine, a night club in Prahran, at about 3.15 on the morning of 14 April 2019. The two men who were killed were two of five people in total who were shot by Elliott, who at the time was acting with Fares, the driver of the vehicle from which the shots were fired. The facts of the case against Elliott and Fares were canvassed in some detail in the reasons for the sentences I passed on each of them.[3]

5 You were a friend of Elliott and his father Nabil Maghnie ('Nabil'), who, the evidence indicated, was a significant criminal figure in Melbourne at the time. You were also, it seems, a friend of Fares.

6 The event which triggered the murderous attack upon Love Machine was the expulsion of Ali Maghnie ('Ali'), the son of Nabil and half-brother of Elliott, from the night club at 1.05am on 14 April 2019 . Shortly after Ali's ejection, he spoke with Nabil on his mobile phone, complaining about what had happened to him. Nabil told him to get in a taxi and come to Nabil's residence ('the Docklands apartment'). Before getting in a taxi, Ali received a call from Elliott which lasted for just over a minute. Ali arrived at the apartment at about 1.37am. Shortly before his arrival there, you had arrived at the Docklands apartment to visit Nabil. At 1.38am, you accompanied Nabil downstairs to collect Ali. The three of you proceeded up to Nabil's apartment and a conversation took place between Ali and Nabil about the events which had occurred outside Love Machine. I am satisfied that upon leaving the Docklands apartment, you had knowledge of the expulsion of Ali from Love Machine and the unhappiness of Ali and Nabil about that event.

7 I sentence you on the basis that you had no knowledge in advance of or involvement in the revenge attack which was carried out by Elliott and Fares upon Love Machine at about 3.15 that morning.

8 On 29 June 2019, police executed a search warrant at your residence in Epping. They found you asleep in your bedroom. Having arrested and cautioned you, the police informed you that they had a search warrant and were looking for firearms and other items. You were asked whether there were any firearms in the house. You motioned with your foot towards a bedside table, and said, 'Under here'. When asked what was there, you said, 'A gun'. You said you did not think it was loaded. The police duly located a .32 calibre Mauser semi-automatic pistol wrapped in a T-shirt under the bedside table. The gun contained an empty cartridge. Upon analysis it was determined that the firearm was the firearm used by Elliott to fire the four projectiles on the morning of 14 April 2019.

9 You were interviewed by police on the day of the search of your home. You described having visited an old friend in the Docklands on the night of 13 April 2019. When presented with CCTV footage of the meeting with Nabil in the early hours of 14 April 2019, you denied any relationship with Nabil and refused to say anything about the purpose of the meeting. You denied involvement in any conversation about Love Machine at the meeting.

10 You claimed that you came into possession of the pistol through a 'drop and grab' arrangement on Wickr.[4] You said that you answered a message from an unknown person on Wickr who requested that the firearm be collected and held in safekeeping in return for payment of $3000. You said that you had received the message two months before the interview, and two or three weeks after the Love Machine shootings. You said that you collected the item, which was wrapped up at the time, from a park in Fawkner. You did not know what the item was at the time of picking it up. Having waited some time for a message with directions about the dropping off of the item and payment, you unwrapped the item and found out, for the first time, that it was a firearm. This had occurred about a month before the interview.

11 In his evidence at the trial, Elliott said that upon the arrival of Fares at his, Elliott's, home later on the morning of the shootings, Fares had with him a backpack containing items including the gun. Fares told Elliott that he did not want to retain the gun. Fares left the backpack and items at Elliott's home. Elliott said that he and Fares went to visit Nabil at his house in Bundoora that night. Elliott claimed that Nabil told him that he would get someone else to pick up the backpack containing the gun in the next couple of days. In due course, sometime within a week of the shootings, the bag containing the gun and other items was indeed picked up by someone organised by Nabil. Further arrangements to facilitate the pick-up had been made by encrypted messages.

12 I note that your counsel Mr Cronin did not ask Elliott any questions in cross-examination. Furthermore, I note that you went to the jury on the basis of your account to the police in the interview as to how you came to be in possession of the firearm being a truthful one.

13 The verdict of the jury indicates that the jury rejected the explanation you gave to the police in your interview about how you came into possession of the firearm. That is hardly surprising. The explanation was exceedingly far-fetched.

14 The jury verdict against you on charge 9 shows that the jury were satisfied beyond reasonable doubt that in the knowledge that Elliott and Fares were guilty of the Love Machine murders, you concealed the murder weapon with the purpose of impeding their apprehension, prosecution, conviction or punishment.

Nature and gravity of your offences and your moral culpability

15 I now turn to the questions of the nature and gravity of your offences and the degree of your moral culpability. Dealing first with the charge of assist offender, it was submitted on your behalf by Mr Cronin that whilst any crime of assist offender following a murder is a serious offence, yours was a 'low-level example'[5] of the crime. He went on to submit that the level of criminality involved in your case is significantly less than is often present in cases of assist offender. He referred to a number of authorities in support of that contention, contrasting the steps carried out by you of receiving and storing the firearm used in the murders with the far more active and protracted steps carried out by many offenders charged with this crime.

16 The prosecution challenged the contention that your crime of assist offender was at the low level of seriousness. The Crown submitted that whilst your offending in the physical sense involved no more than your secreting the weapon, a combination of factors including the extreme seriousness of the principal offending, what you undoubtedly knew about those crimes in light of your connection with the principal offenders and the large amount of publicity the shootings attracted, and the great importance of the apprehension of the principal offenders whom your conduct sought to protect, would elevate the seriousness of your offending.

17 One matter which was raised which may have some input into the level of seriousness of both of your crimes would be the period of time during which you had the weapon hidden in your control. The charge of assist offender pleaded between dates of 14 April 2019 to 29 June 2019, that is, the period from the day of the shootings until the day the gun was found in your bedroom. The charge of prohibited person possess a firearm had between dates of 1 May 2019 and 29 June 2019, selected, so I was informed by the Crown, on the basis of the admission you had made to the police in your interview of having had the gun in your possession for two months at the time of your arrest.

18 In respect of the duration of your offending in connection with both charges, Mr Cronin submitted that I would be unable to conclude beyond reasonable doubt that you possessed the firearm for any particular period of time. Whilst you gave an account to the police of having come into possession of the weapon two months before your arrest in the context of an explanation for your possession which was rejected by the jury, it would be difficult for the Court to disentangle the matter of the duration of possession with the matter of how you came into possession.

19 When pressed on whether I might be entitled to a view that you must have had the gun in your possession for a significant period of time in light of your admission against interest of having possessed it for two months, Mr Cronin conceded that that 'might be right',[6] but such a conclusion would not necessarily entail that you had become aware that the item in your possession wrapped in a T-shirt was the gun. He persisted in the submission that I would not be able to be satisfied beyond reasonable doubt that for the period mentioned by you in the interview, you were knowingly in possession of the firearm used in the Love Machine shootings.

20 The Crown, on the other hand, urged me to have regard to the admissions you made in the police interview of the duration of the period during which you had the gun in your possession.

21 In respect of the duration of time for which you maintained possession of the firearm, I believe that what you said to the police on the matter - which was the way your case was put to the jury - was a telling indicator of the period in question. Had you only, in truth, had the gun in your possession for a short period of time, commencing long after the murders, you would hardly have admitted having gained possession two weeks after the shootings, or two months before your arrest, two descriptions of the time frame which were broadly consistent.

22 Furthermore, as a matter of logic, it would make perfect sense for this weapon, a highly incriminating item in a notorious double murder, to have been entrusted into your care at a time relatively close to the time at which it was used.

23 The jury verdict against you, of course, says nothing about any conclusion by the jury about how long you had the gun in your possession, as opposed to how you came to possess it, and what your knowledge was. Any conclusion I reach, of course, must be consistent with the jury verdict.

24 In all of the circumstances, I am satisfied beyond reasonable doubt that you had the murder weapon in your possession for a significant period of time leading up to your arrest, the period being of the order of the duration you admitted to the police. This means that for a significant period of time, you provided important assistance to the principal offenders by concealing and keeping safe this central item of evidence. I am also satisfied that from the time your possession of the firearm commenced, you were well aware what the item was, that it was a critical exhibit sought by the police, and that your retaining and hiding of it would assist your friends avoid apprehension.

25 Turning to the nature and gravity of your offence of assist offender, while I can readily accept the submission of your counsel that many instances of the offence of assist offender following a murder involve more active, protracted conduct than yours, I do not accept the contention that your crime was a low-level example of the offence. Whilst of course the nature of the steps taken by a person charged with such a crime is an important indicator of the seriousness of the particular instance, there is no doubt that the seriousness of the principal offences themselves will also be very important. Any instance of assist offender following a murder has, as its maximum penalty, imprisonment for 20 years.[7] This far exceeds the maximum penalty for assist offender following almost any other serious crime. But of course, not all murders are of equivalent degrees of seriousness, as the reasons for sentence for the principal offenders make clear. In this case, the crimes in the aftermath of which you provided valuable assistance to the principal offenders were of the highest order of seriousness. These were two murders carried out in heartless and outrageous circumstances in a public display of vengeance. This weapon which you saw fit to hide in your home was, to your knowledge, a highly important exhibit, keenly sought by the police, in connection with the notorious and heinous crimes committed by your friends at Love Machine. By your actions, you sought to assist your friends to avoid apprehension, and in doing so, to deliberately frustrate the substantial police investigation you knew to be going on.

26 In my view, notwithstanding the fact that your actions were neither as active nor as protracted as would often be the case, your crime was a serious one, and certainly not a low-level example of the offence.

27 As for the crime of being a prohibited person in possession of a firearm, you were a prohibited person by virtue of your having been subject to a family violence intervention order made some years before. In those circumstances, you retained possession of a firearm you knew to have been used in the commission of two murders and other shootings for a significant period of time. You did not intend to use it yourself in any future crime, but your retention of the firearm was associated with the ongoing crime of assisting an offender following a murder. This would place your offence in the more serious category of the crime as discussed in the authorities.[8]

28 In respect of each of the charges upon which you fall to be sentenced, I consider that your level of moral culpability is high.

Your plea of guilty and the question of remorse

29 You pleaded guilty to the charge of prohibited person after having been found guilty of the charge of assist offender at trial. Indeed, you offered to plead guilty to the prohibited person charge in mid-2020, in full satisfaction of the two indictments. That offer was understandably rejected by the Crown but I take into account your reasonably early expression of willingness to plead guilty to this charge. Your eventual plea of guilty, and the earlier indication of a willingness to plead guilty are matters in mitigation on the charge of prohibited person to which I attach full weight, including as being an indication of your remorse in respect of that charge. I note that the utilitarian value of a plea of guilty during these days of the COVID-19 pandemic is enhanced.[9] I take that matter into account.

30 On the charge of which you were found guilty by the jury, there is no evidence of any remorse. That represents, of course, the absence of a possible mitigating feature rather than a circumstance of aggravation.

31 You were born on 20 January 1994 and are now 28 years of age. You are the eldest of the three children born to your parents Jihad and Leila Hamka. You come from a loving and supportive family and still enjoy a close relationship with your family. You grew up in Preston and Lalor attending Lalor Secondary College. You did well academically and were accepted into a civil engineering degree at Swinburne University. You completed 2½ years of the course before deferring in 2014, having struggled to maintain motivation after being involved in a serious motor vehicle collision, following which you were hospitalised with a fractured neck and nose. From a young age you worked to support yourself, commencing when you were 15 years old stocking shelves at a supermarket. After leaving university, you drove furniture delivery and refrigerated trucks until starting work as a traffic controller in 2018.

32 Unfortunately, you commenced cocaine use as a 21 year old, which introduced you to a different social group. You became addicted to cocaine and were addicted to the drug at the time of your offending. You started to spend substantial time gambling at the casino.

33 You have had two significant relationships, the second of these with Jessica Tepelis whom you met when you were on bail for these charges. She is a kindergarten teacher who has been in no trouble with the law and has no drug issues. She continues to support you while you are in custody.

34 Your brother Khalil was born with sickle cell disorder and as a result requires frequent hospital visits and significant care when at home. You mother is his full-time carer and before your incarceration, you provided substantial assistance in support of your mother.

35 I was informed that your intention would be to reside with your family upon your release from prison until you are able to find independent accommodation. You have an offer of employment from an old friend of yours, Darien Abrahams.

36 The personal references from friends and family members tendered on your behalf speak in positive terms about your character and past behaviour, and the close and supportive family background from which you come.

37 You have a criminal history which commenced when you were aged 20 with a finding of guilt for recklessly causing injury ('RCI'). After further findings of guilt for possessing heroin and two charges of contravening a family violence intervention order ('FVIO') in 2016, you were dealt with again for recklessly causing injury, intentionally distributing an intimate image of another and failing to answer bail in 2017. All of the matters of which I have made mention attracted fines without conviction. I was informed that the charges of contravening a FVIO in 2016 and the charges of RCI and distributing an intimate image in 2017 all concerned your former partner.

38 You were arrested and interviewed by police on the charge of assist offender on 29 June 2019. You were granted bail on 8 October 2019 after having spent 101 days in custody. Unfortunately, on 7 June 2020, you committed further offences. In company with three others, you went into the apartment of a group of individuals with whom you had apparently arranged a drug deal. One of the other group was made to accompany one of your co-accused to an ATM and withdraw money from the machine. You were charged with robbery and common law assault on 24 June 2020 and remanded in custody. Bail was revoked on the current charges on 4 September 2020. You were sentenced by a judge of the County Court on 1 December 2021 to a total effective sentence ('TES') of 10 months' imprisonment. A declaration was made of 525 days of pre-sentence detention ('PSD').

39 Mr Cronin described your prospects of rehabilitation as 'reasonable'. He described your criminal history as limited with no periods of imprisonment imposed.[10] He relied heavily on your strong family support, the favourable descriptions of your character in the tendered material, and your history of stable employment and educational achievements. He acknowledged that your rehabilitative prospects will largely hinge on your ability to stay free of drugs and the negative peer associations you had at the relevant time.

40 On the matter of your rehabilitative prospects, the Crown submitted that it is relevant that you have had two prior findings of guilt for matters of violence, and then while on bail for the current matters, you committed further crimes of violence. It was submitted that the Court should be 'guarded' in its assessment of the prospects of your rehabilitation.

41 Whilst I acknowledge that your criminal history is not extensive, you accrued findings of guilt from four separate court hearings in the five years preceding your initial arrest on the current matters. Having spent some months in custody, you were released on bail. While subject to that grant of bail, eight months later you committed crimes of violence of sufficient seriousness to warrant terms of imprisonment. In addition, of course, at the time of the current crimes, you were closely connected to Nabil Maghnie, who, it can be concluded for present purposes, was a significant criminal figure. Furthermore, you were at the relevant time addicted to cocaine.

42 The combination of these facts is sufficient to raise concerns about your prospects of rehabilitation. However, I am prepared to act on the basis that your prospects of rehabilitation are, as submitted on your behalf, reasonable. How likely it will be that you are able to remain out of trouble upon your release will depend on a number of variables which it will be within your power to control should you be willing to do so.

Time in custody and declaration of pre-trial detention

43 You have spent a considerable period of time in custody on remand for these matters, to which period I will shortly turn in more detail. I accept that during much of that period, conditions of custody have been rendered substantially more onerous by steps taken by the authorities to limit the risk of the spread of the COVID-19 virus in the prison system. Access to courses and programs has been significantly impacted. Furthermore, access to in-person prison visits and exercise have been curtailed.

44 Notwithstanding the difficult conditions in which you have been held, and may continue to be held for some time, you have taken some good steps in custody. You have ceased your gambling and drug use, and have benefited from some insight into the negative social element in which you were involved at the time of your offending.

45 I note also to your credit a letter the Court received from Gavin Blair, the General Manager of Melbourne Assessment Prison, expressing his appreciation for painting work you carried out within the prison, and the positive attitude you displayed in the course of this.

46 In respect of the appropriate declaration as to pre-sentence detention ('PSD'), there is some complexity which was dealt with in detail during the plea hearing and upon which I do not need to dwell for too long. It is highlighted by the following brief chronology of events:

29 June 2019 Arrested and interviewed by police. Remanded in custody.

8 October 2019 Bail granted (101 days PSD from 29 June to 8 October 2019).

7 June 2020 Offences of robbery and common law assault committed.

24 June 2020 Arrested in relation to County Court charges. Remanded in custody.

4 September 2020 Bail revoked in Supreme Court on current charges.

1 December 2021 Sentenced to a total effective sentence ('TES') of 10 months' imprisonment by a judge of the County Court. Declaration of 525 days PSD for period from 24 June 2020 to 1 December 2021.

10 August 2022 Commencement of plea hearing in Supreme Court.

12 October 2022 Date of this sentence.

47 It can be seen that the declaration by the learned County Court judge of PSD at the time of the sentence on 1 December 2021 exceeded the TES he passed of 10 months, which equates to 304 days.[11] Despite the later concerns expressed to his Honour by your then counsel,[12] his Honour was not prepared to amend the declaration of PSD.

48 The question now arises whether I am permitted by law to make a declaration of PSD that includes the excess days declared by the learned County Court judge. Mr Cronin submitted that I can and should include that extra number of days in the declaration.

49 Ms Karamicov, on the other hand, submitted that the excess period declared by the County Court judge - 221 days as she calculated it - has already been the subject of a declaration under s 18(1) of the Sentencing Act 1991 ('the Act'), and that s 18(2)(d) would prevent the declaration by this Court from including a period of time already declared by the County Court judge.

50 Ms Karamicov accepted that something would need to be done by the Court to ensure that you would get the benefit of this period of time which would otherwise not be taken into account in your sentence. She urged the Court to make allowance for this additional period of 221 days under the principle considered in R v Renzella.[13] That principle whilst not permitting a mathematical deduction, would entitle and warrant my taking the period into consideration, and clearly articulating that fact.

51 Mr Cronin, for his part, agreed that if no declaration could be made in respect of the period, I should have regard to it as submitted by Ms Karamicov.

52 It does seem to me that Ms Karamicov is correct in submitting that s 18(2)(d) would prohibit me from including the period of 221 days already subject to a declaration in the County Court in any declaration of PSD I would make. On the other hand, it is clearly the case that you must receive the benefit of this period of time, sometimes described as 'dead time', which would otherwise be lost to you. The common law, from the time at least of Renzella, has recognised that there will be situations in which, although no declaration of PSD under s 18 of the Act may be made, consideration can still be given to a period spent in custody by a person to be sentenced. The principle considered in Renzella has been applied and expanded frequently over the years. Courts may take dead time into account by reducing the base sentence or moderating orders for cumulation to reduce the head sentence. This is not a mathematical exercise, and there is no requirement that the sentence be reduced by the precise amount of the dead time. The reduction should be that which the court considers to be appropriate in the circumstances.

53 In sentencing you, I make it clear that as well as making a declaration of pre-sentence detention, I have had regard to the period of 221[14] days of dead time in respect of which no formal declaration under s 18 can be made.

54 In addition to the above, I note that as you are to be sentenced for two separate and distinct offences, each of which will need to be met with a term of imprisonment, in determining the extent of cumulation of the sentence on the prohibited person charge upon the sentence for the assist offender charge, I have had regard to the substantial overlap between the charges which both concern the same firearm. I have not included the fact of your having been a prohibited person in my consideration of the assist offender charge. I have sought in that way to avoid any prospect of double punishment. I have also had regard to the principle of totality, which requires me to ensure that the overall sentence passed upon you is 'a just and appropriate measure of the total criminality involved'[15] in your crimes.

55 Furthermore, in arriving at the sentences, and in a further reflection of the totality principle, I have had regard to the fact that you have been in custody continuously since 24 June 2020, and have served a term of imprisonment on the unconnected offending for some of that time.

56 I am required to have regard to current sentencing practices in respect of the two crimes for which you fall to be sentenced.[16] There are no Sentencing Snapshots published by the Sentencing Advisory Council ('SAC') for either of the offences. I note the observations of Croucher J in The Queen v Dunn,[17] a sentence drawn to my attention by your counsel. His Honour considered the sentencing data available on the SAC website. I have considered that material. I have also considered the data for sentences in the higher courts on charges of prohibited person possessing a firearm. I note that those statistics show that in the period 1 July 2016 to 30 June 2021, 96 per cent of sentences passed for the offence were sentences of imprisonment.[18]

57 As well as considering the available statistics, I have had regard to individual cases, including Dunn and the other sentences considered by Croucher J in endeavouring to understand current sentencing practices for the two crimes. I note that in many of the cases considered by Croucher J, as well as in Dunn itself, there were pleas of guilty.

58 I make it clear that no individual sentence passed in any other case is in any way a precedent for the sentences I must pass.

59 In my view, all of the purposes for which a sentence may be imposed as set out in s 5 (1) of the Act have application in your case. You must be punished in a way which reflects the seriousness of your crimes. Providing valuable assistance to the principal offenders in this case after they had carried out these heinous crimes was itself a serious crime. Furthermore, independently of that, you were in a position where you were prohibited from being in possession of a firearm. The sentence must communicate in clear terms this Court's condemnation and disapproval on behalf of the community of your conduct. In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to provide assistance to others in the aftermath of their serious crimes that such conduct will be met with strong punishment. You must be deterred personally from any future criminality to which you may be disposed. As for the protection of the community, it, too, is a relevant consideration, as are the prospects of your rehabilitation.

60 Mr Cronin conceded on your behalf that imprisonment is the only sentence which is open. He urged me to impose what he called a 'longer parole period' to enable you to complete courses and undertake rehabilitation in the community. Insofar as Mr Cronin may have intended by this to seek the imposition of a non-parole period which may be somewhat shorter than might usually be imposed for the head sentence I impose, I make the observation that the law clearly requires that both the head sentence and non-parole period must represent an appropriate and adequate response to the purposes for which sentence must be passed upon you. In any event, I note that the sentence I pass will provide for a significant period during which you would be able to pursue your rehabilitation in the community under the supervision of parole should you be granted the opportunity.

61 MOUSSA HAMKA, on the charge of assisting an offender following a murder, you are sentenced to be imprisoned for 5½ years.

62 On the charge of being a prohibited person in possession of a firearm, you are sentenced to be imprisoned for 2½ years.

63 The sentence on the charge of assist offender is the base sentence.

64 I direct that six months of the sentence imposed on the prohibited person charge be served cumulatively upon the base sentence.

65 The total effective sentence is therefore imprisonment for a period of six years.

66 I fix a period of four years during which you will not be eligible to be released on parole.

67 I declare a period of 416 days up to and including yesterday, 11 October 2022, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

68 I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty on the charge of being a prohibited person in possession of a firearm, I would have sentenced you on that charge to be imprisoned for three years.

[1] Charge 9 on indictment number C1912748.3, filed 17 March 2022. Mr Hamka was acquitted by a jury of charge 10 on the same indictment.

[2] Indictment number K11693690.1, filed 4 November 2020.

[3] [2022] VSC 554.

[4] An application that enables the exchange of end-to-end encrypted messages.

[7] Crimes Act 1958, s 325(4).

[8] See, for example, R v Graham [2007] VSCA 252; (2007) 178 A Crim R 467; Armistead v The Queen [2011] VSCA 11; and Berichon v The Queen [2013] VSCA 319.

[9] Worboyes v The Queen [2021] VSCA 169.

[10] Mr Cronin was not including in this description the sentence of imprisonment imposed upon you in the County Court on 1 December 2021.

[11] During the plea hearing, Mr Cronin equated this sentence to 300 days. On my calculation, 304 days is a more accurate figure.

[12] In an email from Mr Sala of counsel dated 6 December 2021.

[13] [1997] 2 VR 88 ('Renzella').

[14] The length of this period was agreed to by the parties, as indicated in emails sent to the Court prior to sentence.

[15] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

[17] [2020] VSC 708 ('Dunn').

[18] Sentencing Advisory Council, SACStat Higher Courts - Firearms Act 1996 (Vic): s 5(1) - Prohibited person possess, carry or use a firearm , 1 July 2016 to 30 June 2021.