Mr G Brady SC
Mr M Ayache, One Group Legal
File Number(s): 2018/67196
[2]
Judgment
Hussein Al Saleh was born in Lebanon in 1982 and grew up against a background of the trauma involved in the civil war there, in which he and his family were subject to Israeli occupation and exposed to regular bombing and air strikes. He witnessed atrocities including the body of his aunt which he collected and put in a rubbish bag. He came to Australia and established a successful business. Apparently, as a result of him successfully tendering for a construction contract, he became involved in a dispute with a business competitor. This dispute led to him firing a number of shots from a moving vehicle on a busy suburban street at Mascot on Wednesday 31 January 2018.
He has pleaded guilty to one count under s 93G (1)(c) of the Crimes Act 1900 which carries a maximum penalty of ten years with no standard non-parole period and also to another count under s 65(3) of the Firearms Act 1996 which carries a maximum penalty of 50 units. That charge relates to the possession of the ammunition which was fired grounding the principal charge. I indicate now that I will deal with that offence pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999 by imposing a conviction with no further penalty.
The offender has been in custody since his arrest on 28 February 2018, with the exception of ten days. It is common ground that a term of imprisonment is required, and that it should commence on 10 March 2018 and there is no need for me to consider any alternatives under s 5 of the Crimes (Sentencing Procedure) Act 1999.
The sentencing process must take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and I must have regard to the maximum penalty as a yardstick in the sentencing process.
The agreed facts dovetail fairly readily with the history provided by the offender to the psychologist, Mr Borenstein, and summarised in his report dated 30 May 2019. Although the Crown quite properly points to the caution to be exercised in assessing unadopted histories for the reasons set out in cases such as R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144, here much of what the offender told Mr Borenstein is largely filling in details consistent with the agreed facts. The agreed facts of course appear to come from a number of sources including people who were present at the time of relevant events in the afternoon of 31 January 2018.
Mr Al Saleh and his wife had built up and managed a civil construction company known as Citywide Civil and the annual turnover was in the vicinity of $2 million. He had tendered for a substantial civil project and was successful in being awarded the project for a contract price of $940,000. The witness to the shooting, Mr Ali Ali, who was a partner in a rival construction company having missed out on the contract. Ali Ali contacted the offender to arrange a meeting because he was upset at having lost the tender. There was an arrangement for the two to meet at Pindari Place in Bardwell Valley and that meeting occurred about 20 minutes before the shooting at Jackson Drive in Mascot.
The agreed facts set out a great amount of detail about the text messages and the lead up to the meeting but, in short, when the offender drove into Pindari Place there were at least six men in a cul de sac. He describes them as Lebanese and Islanders, and the evidence including the criminal records of those witnesses which became Exhibit 2 in the proceedings supports the proposition that they were to the then knowledge of the offender what would colloquially be described as standover men or men to be feared. The agreed facts describe Ali Ali jumping in front of the offender's ute and with his hands down his pants like he was going for a gun. He manipulated his palm and fingers into the shape of a gun and Ali Ali himself described his actions as intending to show intimidation and to cause the offender to think that he was armed.
In the week or so before this day, the offender started receiving unusual phone calls which led him to develop concerns about his safety. In one call he was told that Ali Ali would spray his house with bullets. He heard a strange car revving up and down the street outside his home. He says that he agreed to meet Ali Ali so that he would not shoot the house and injure his family. He was preoccupied and traumatised in the week before the offence, since receiving the calls from Ali Ali and learning of his reputation. He says he could not sleep. He had security cameras put in. He was worried for his family. He could not eat and lost his appetite.
All of that led to a diagnosis by Mr Borenstein, which I accept, of the complex chronic post-traumatic stress disorder syndrome as a result of being exposed to trauma in childhood which was reactivated leading him to make poor choices and poor decisions to protect his family and those symptoms at that time would have impacted on his ability to control his behaviour so that he acted uncharacteristically in order to protect his family from imminent danger. He had also been abusing pain medications for the treatment of a chronic back condition in the week leading up to the offending. He says that he could not work. He was driving around, did not want to show up at the office. He took the view that the men he was dealing with were ruthless, so he elected to purchase a firearm for protection and he says without elaboration that, "I went and bought a gun, money can do that... I felt I had no choice. I felt he would harm my family".
After encountering this group of men in the cul de sac in Bardwell Valley he reversed his ute and took off. He saw cars chasing him and there was a pursuit over a distance of about 7 kilometres until he drove into Jackson Drive, Mascot, near the Meriton Apartments. He says he saw his whole life flash before his eyes and then he shot in the direction of the car and he drove onto the footpath and they stopped chasing him. CCTV footage shows that the offender's car came into Jackson Drive,did a U-turn and the car in which Ali Ali's associates had been travelling was following him. While still moving the offender had his hand out the window with a semi-automatic pistol and fired five rounds at the car. Two of them struck the car, the other three must have hit an unknown target as five spent cartridges were found in the street.
One camera shot shows a woman with a young child probably 30 or 40 metres away from the location of the shooting and behind the offender's car. They were clearly alarmed by the sound of gunshots and the woman can be seen lifting up and protecting the child behind a concrete flower bed and then talking to two gentlemen in suits who were close by and seemingly explaining to them what she had seen and heard. There were no other vehicles in Jackson Drive at the time of the shooting and the offender left Jackson Drive and drove south along the nature strip.
The offender was arrested on 28 February at his Maroubra residence and he participated in a recorded interview. The offender's criminal record contains an offence of robbery and possess prohibited drug in December 2008 dealt with by a section 12 bond for 18 months. There are minor possess prohibited drug charges in 2015 dealt with by a fine and a charge of obtain money by deception in 2009 dealt with by a fine. This is his first period of full time custody.
The Crown tendered a number of aerial photographs intended to depict the location and also to demonstrate it seems that Maroubra police station was only about 1.2 kilometres away from the scene of the shooting, presumably in support of a suggestion that the offender should have gone to the police station rather than to the location at which he fired the shots.
A significant quantity of written evidence was provided by Mr Brady, SC, for the offender. In addition to the report of Mr Borenstein dealing with the offender there is a further report dealing with the effect of these matters upon the offender's wife and family and I take that into account in the way submitted by Mr Brady, namely, not as justifying a finding of exceptional hardship but as a strong factor to be taken into account in the sentencing process.
The history given to Mr Borenstein by the offender's wife is supported by an affidavit in which she sets out the difficulties that she has been experiencing since his incarceration and the effect upon the children's school performance and family life. I take that into account along with a number of documents in relation to the business operations and speech pathology and occupational therapy reports in relation to the children.
The Crown's submission as to two aggravating factors was not challenged by Mr Brady, and I accept that his record of previous convictions and the fact that the offence was committed in the presence of a child under the age of 18, as clearly shown on the video, were aggravating factors. The Crown acknowledges a number of mitigating factors, namely, that it was not part of planned or organised criminal activity, the offender was provoked, he was acting under duress and he has pleaded guilty. I would add he also has good prospects of rehabilitation. I accept his expressions of remorse.
I do accept those concessions by the Crown, with the quite legitimate qualifications put by the Crown in written submissions, namely, that he was not compelled to carry a gun, he was aware obviously of the need for a firearm, he knew that it was loaded and he knew that he was going to meet the victims in circumstances where he might use the firearm in a public area. He fired the firearm in a very dangerous manner, in that he was driving in a residential neighbourhood and there was a high danger that any bullet would strike an unintended, innocent person.
He pleaded guilty during committal proceedings at which he was charged with the more serious offence of wounding with intent to murder. I accept that a 25% discount for the utilitarian value of that plea should be allowed.
The Crown has taken me, without challenge, to a number of cases in which sentences have been imposed for this offence and they were helpfully summarised in the Crown submissions being Sumrein v R [2019] NSWCCA 83, Prowse v R [2017] NSWCCA 68, Thalari v R [2009] NSWCCA 170, Stanford v R [2007] NSWCCA 73 and R v Cahill [2004] NSWCCA 77 and I have taken account of the summaries of those cases which support the trend demonstrated in the statistics, which have been provided by the Crown. Although the statistics are a blunt tool they are of some assistance in the sentencing exercise.
Although the Crown in submissions pointed out that whether one accepted Mr Borenstein's diagnosis of post-traumatic stress disorder, or not, he was nonetheless able to come to Australia, establish a highly competitive business and function effectively. He went into a meeting with Ali Ali aware that there could well be serious problems or threats involved, and took a loaded pistol knowing that he might have to use it. I accept the Crown's characterisation of the offending as in the mid-range of objective seriousness although, as the courts have said, particularly where cases do not involve a standard non-parole period and most recently affirmed in McDowall [2019] NSWCCA 29 it is unnecessary to place an offence in some notional range, it is often of assistance to do so.
Mr Brady pointed to two significant factors which affected the assessment of objective seriousness without seriously cavilling with the characterisation of the offending as mid-range. Firstly, the duress/provocation point to which I have referred, leading to a misguided notion of self-defence motivating the offender. I accept his submission that three of the matters raised by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 apply here, namely, that the reactivation of the PTSD symptoms contributed to the commission of the offence in a material way and that his moral culpability may be somewhat reduced with the consequent reduction in the importance of general and specific deterrence.
The maximum penalty provided by the legislature and the sentences imposed in cases such as those provided by the Crown, indicate that the Parliament and the community regards behaviour such as this as extremely serious and dangerous. To fire a loaded weapon in a residential neighbourhood with a high degree of danger that it will strike innocent people requires severe punishment and denunciation.
Having taken into account the finding of special circumstances on the basis of the fact that this is his first time in custody, that he will be affected by a continuing PTSD and that his prospects of rehabilitation are good under an extended period of supervision, the orders that I make are:
[3]
003 Fire firearm in manner likely to injure person/property
1. The offender is convicted of the offence.
2. I impose a sentence of imprisonment of 3 years, 3 months, to commence on 10 March 2018 and expiring on 9 June 2021.
3. I impose a non-parole period of 19 months, expiring on 9 October 2019.
[4]
005 Possess ammunition w/o holding licence/permit/authority
(4) Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted of the offence and no further penalty is imposed.
(5) I find special circumstances.
[5]
Note - These extempore remarks were revised without access to the court file.
[6]
Amendments
09 October 2019 - Correct witness name: "Waska" to "Ali Ali" at [6], [7], [8], [20];
Clarify individuals in car: "Waska" to "Ali Ali's associates" at [10].
09 October 2019 - Update representation details on coversheet.
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Decision last updated: 09 October 2019