R v Helal [2007] VSC 135

2 On 2 September 2003, Robert D'Amico was shot dead at the house in Tullamarine where he was living. At that house, D'Amico had been illegally cultivating cannabis plants. Craig Galas had learned something of that crop. He enlisted Muhaidat, Mikhael and you to join him in carrying out a raid on D'Amico's house, portraying it as an easy way of getting some cannabis and some money. The plan that was agreed to was to do a run-through at the house. A run-through is a shorthand way of describing a combined aggravated burglary of the house and armed robbery of those inside at the time.

3 In the early hours of the morning on 2 September 2003, you set out for the D'Amico home. Several items were taken to assist in the joint enterprise. The items included weapons to be used to intimidate, balaclavas to be used to disguise yourselves, and bags in which to take away the cannabis. Galas took with him a handgun. It was the handgun that was used to fire the fatal shot. The gun was taken by Galas with the intention on his part to use it to intimidate D'Amico, and anyone else who was in the Tullamarine house. Muhaidat took as a weapon a large baseball-bat-sized piece of wood. Mikhael carried an extendable baton. Your role was to carry the backpack to be used to remove the cannabis. In the backpack there were scissors and some plastic bags in which to place the cannabis when it had been cut.

4 After the four of you arrived at the D'Amico house, one of you kicked in the front door. The four of you then quickly moved inside. D'Amico was in the lounge room. There was another man in a bedroom of the house. Mikhael went into that bedroom. Galas and Muhaidat went into the lounge room. Galas pointed at D'Amico the gun he had taken to the house. Galas demanded that D'Amico get down and put his hands behind his back so that Galas could tie him up. Galas then set about tying up the arms of D'Amico behind his back with silver duct tape. He was still holding the gun as he was engaged in stripping off the duct tape. That combination of actions, namely the keeping up of the intimidation with the gun, plus the stripping off and tying with the duct tape, led to a readily foreseeable although unintended consequence. Galas discharged the gun. Once the gun had been discharged, all four of you ran out of the house. Nothing was taken from it. But D'Amico was dying of the bullet discharged by Galas.

5 The links of the four of you to D'Amico were not so direct that the police were able to trace any of you quickly. On 17 September 2003, fifteen days after the killing of D'Amico, you left Australia to travel to the Middle East. You were to remain there for over three years. During those three years, you married. You voluntarily returned to Melbourne in October 2006.

6 I go back to the events of 2 September 2003. Even before the gun was discharged, you had agreed to engage in particularly serious criminal conduct. You had gone along with a plan to carry out a home invasion in the middle of the night. The planned run-through necessarily involved the use of intimation through the use of weapons. The fact that you were carrying a backpack, rather than a weapon, is but a minor mitigating factor. From the time of the forced entry, you knew that a gun was being used. You must have anticipated the risk of the need to use force unlawfully and therefore to injure. I accept that it was not intended by you or any of your companions that D'Amico was to be killed or really seriously injured. There was minimal violence shown other than in the use of the gun. You were, nevertheless, complicit in an unlawful and dangerous act that caused death. You were part of a joint enterprise. You were aware that some degree of violence was likely to be needed to achieve the object of that joint enterprise. You were, or ought to have been aware, that death from that violence was a possible incident of that enterprise.

7 I have again noted the victim impact statements which have been provided to the court by David and Michael D'Amico, two brothers of Robert D'Amico. Their statements refer to the adverse effects for them of their brother's death. The statements help to achieve balance in the sentencing process.

8 Monzir Helal, you were born on 8 June 1980, in Australia, to a mother born in Syria and a father born in Lebanon. You have four siblings, none of whom have been in trouble with the law. After leaving school in year 11, you have worked at a number of unskilled jobs, in a way demonstrating a good work ethic. You have shown some ability in football. You have eight prior convictions from five court appearances between 1995 and 2000. The penalties imposed suggest that all but one were for relatively minor matters. Your father and a sister gave evidence before me on the hearing of the plea including as to your expressions of remorse from a very early stage, as to your desire to return to Melbourne despite the prison sentence awaiting you, and as to the support they had provided and would continue to provide to you and your wife.

9 There are a number of mitigating factors that apply to you. You have pleaded guilty. Through your lawyer, you made it clear that you would co-operate with the police to the maximum possible extent. An allied factor is linked to the pending appeals of Galas and Mikhael. By your pleas of guilty, you have given up the appeal possibilities, including of a re-hearing. I accept that you are remorseful as to the death of Robert D'Amico and otherwise. That remorse is reflected in part in the pleas of guilty. It is emphasised heavily in what was said by you in the statement provided to the police when you returned to Melbourne. Further, as I have noted, you have an extremely supportive family.

10 Your departure from, and return to Melbourne, are matters of some significance. There is evidence that, before and after you left, you were emotionally adversely affected more than the other three by the unintended killing of D'Amico. You were not, as they were, engaged in cultivating cannabis. They kept at it. You left Australia for the Middle East at a time when the police were not breathing down your neck. You deserve no praise for leaving. You do deserve praise for returning when you knew that you would inevitably face prison for a period of years.

11 I have signed an order for the retention of the body sample earlier provided by you, there being no objection to my doing so. I declare that you have served 202 days in pre-sentence detention and direct that that be entered in the court records.

12 I am conscious of the need to take appropriate parity considerations into account, particularly relative to Muhaidat and Mikhael. The age difference is not great, all three being 22 or 23 at the critical time. All three have supportive and disappointed families. Moral culpability factors are relatively comparable, all three being recruited by Galas. There are some differences arising from a review of past convictions as between the three, with yours being the least concerning. Also in your favour is that, unlike the other two, you did not engage and continue to engage in cannabis cultivation. I differentiated between them primarily because of the extraordinary measures towards self-improvement taken by Muhaidat while on remand. I characterised his rehabilitation prospects as excellent, and that was reflected in the setting of the non-parole period. I would characterise your rehabilitation prospects as good. While you have pleaded guilty, it is important to note that the real focus of the contest at the trial of Galas, Muhaidat and Mikhael was on the murder charge. That was an obstacle you avoided by leaving Australia.

13 The sentences of imprisonment I impose are as follows. On the count of Manslaughter, I impose a sentence of 5 years. I impose sentences of imprisonment, with concurrency periods on the count of Manslaughter as follows: on the count of aggravated burglary, 3 years, 1 year and 6 months concurrent; on the count of attempted armed robbery, 3 years, all concurrent. With cumulation, the total

effective sentence is 6 years and 6 months. I set a non-parole period of 3 years and six months.