R v Hussein

Facts

1. I turn to the current sentencing matter. On 17 December 2015 the offender was 27 years old. The victim in the current matter is Jacob Aboeid. The victim owned a silver Mercedes Benz motor car registered number CTZ 70C. At the relevant time the vehicle was uninsured and Aboeid owed $81,000 to his financer. The victim met Rosalene Keshishian in March or April 2015. They exchanged telephone numbers and began a causal relationship. In July 2015 the victim and Keshishian were in his car at La Perouse. Following a conversation about money Keshishian decided to obtain a loan so that she could go shopping. It was agreed that part of the money granted by the loan would be lent to the victim as he did not have a clean credit rating which would enable him to obtain a loan for himself. The loan was granted by the Commonwealth Bank. $22,000 was deposited into Keshishian's account on 29 July 2015. Keshishian and the victim then visited various automatic teller machines and withdrew $20,000 in cash on the afternoon of 29 July and that cash was given to the victim. The victim agreed to repay Keshishian $500 per month in repayment of the debt. Over the next few months the victim met Keshishian and repaid her part of the loan, including at least two payments made directly into her bank account of $450 and $200. After her relationship with the victim, Keshishian commenced a relationship with a male who is now known to be Mohamed Saddick. Saddick was arrested on 6 November this year and is due to appear before the Local Court at Burwood on 16 January 2019. The current offender knew Mohamed Saddick, to whom I shall refer hereafter as Moh, and through Moh the offender came to know Keshishian and her close lady friend, Jade Konaraki.
2. On or about 3 December 2015 the victim received calls from Keshishian suggesting that they meet on 11 December 2015. They agreed to meet on the evening of Thursday 17 December 2015. Keshishian made it clear to the victim in one of her messages sent to him that she was "always free to get all my money off you." Text messages sent or received by Keshishian in the days leading up the meeting on 17 December demonstrate that she was upset with the victim for his not having paid the instalments due under the agreement she had made with him. On 14 December 2014 Keshishian sent a text message to Konaraki saying: "I'm going to see some boys tomorrow to fix this…", and, "I have a plan that involves you but not [too] deep and to help [them] catch the guy." On the following day, 15 December, Keshishian met with the offender, Konaraki, Moh and another unidentified male. A plan was agreed that Keshishian would organise a meeting with the victim during which his money and his car would be taken from him. During that meeting Keshishian sent a text message to the victim which said this:" "Hey babe/how are you/I'm about to leave dinner/I was wondering if you wanna go for coffee or just chill/I'm in the mood." I have inserted slashes to indicate where full stops ought to be found in the text. Phone exchanges on 16 December indicate that Keshishian was attempting to obtain a photograph of the victim which, no doubt, would be passed on to Moh who would probably, if one were obtained, share it with the other two men.
3. During the day of 17 December 2015 a number of text messages were exchanged. The agreed facts state a large number of text messages passing between Konaraki and Keshishian and Moh and Keshishian and vice versa. In one of those Moh said that he wanted to kill the victim. None of the text messages sent during that day directly affect the current offender. At about 6.30pm Keshishian picked up Konaraki from her house. Later that evening the two met with Moh, the current offender and the unidentified male at a house in Guildford, they waited there two hours. Keshishian then drove her car to Hill Road, Wentworth Point and parked. The rest of the group followed her in another car but parked elsewhere. Closed circuit television shows that the victim picked up Keshishian in his Mercedes Benz motor car from a bus stop in Hill Road, Wentworth Point at 9.46pm. In the lead up to that occurring Keshishian had been in contact with Konaraki, the two exchanging text messages. It is clear that Keshishian anticipated some attempted sexual conduct between herself and her victim. After she had been picked up by the victim, Keshishian suggested that they go for a walk in a nearby park. The victim felt uneasy about that but agreed to do so. He drove to the Avenue of Oceania in Newington and parked his car on the footpath. The two then walked through the Louise Sauvage Walkway until they found a bench seat which they occupied and where they began kissing. Konaraki knew where her friend was by use of an app on her mobile phone. Whilst on the bench the victim noticed that Keshishian's phone which was hidden under her shirt was ringing and receiving text messages. Keshishian told the victim that she was receiving text messages from her girlfriend who was having "boyfriend problems". That was a lie. The phone calls were coming from Konaraki, and Keshishian was telling Konaraki to hurry up because she believed that the victim would soon initiate sexual activity.
4. The vehicle containing Moh, Konaraki, the offender and the unidentified male had been parked next to a bus stop on the corner of Newington Boulevard and the Avenue of Oceania. The three males got out of the vehicle and ran through the park behind the bus stop towards the bench seat where the victim and Keshishian were. Konaraki walked behind the three men. In the meantime the victim had decided not to engage in some sexual activity but to return to his car and to go to get something to eat. The victim and Keshishian commenced walking towards the victim's car. The victim then saw the three men running towards him. Mr Hussein yelled out the victim's name as they came closer to him. The victim let go of Keshishian's hand and ran away in the opposite direction towards his car. He was pusued by the three males who chased him down, grabbed him and punched him a number of times. They kicked him in his left knee and the back of his neck. The victim was struck a number of times until he fell to the ground. As he was lying on the ground he was being held down by two of the men who put pressure on his shoulders and hands. The victim then felt something pushed into the back of his neck which he described as a cold piece of metal. However, he did not see what it was. It may well have increased his fear, he may have feared that a firearm was being used. One of the men said, "I should kill you, you dog. You owe my sister money."
5. When the victim asked what he had done, Keshishian replied, "Fuck you, you cop it and I'm taking your car too." One of the men asked the victim as to where his wallet and money were and the victim said that his wallet was in the car. The victim was then, "walked back to his car, with one of the males on either side of him, holding the victim with two hands, one on the victim's bicep and one on the victim's triceps." This may well be a form of frogmarch.
6. While that was happening Keshishian was walking ahead of the victim and the men with Moh, who had his arm around her. Moh and Keshishian were laughing. When they approached the victim's car one of the men opened it, found the victim's wallet and took from it a sum of money which is sometimes described as $4,500 and sometimes described as $3,000. One of the men who had hold of the victim told him to get into the car. He got into the front passenger's seat of the car, Konaraki got into the rear passenger's seat and the current offender got into the driver's seat. The victim was told to keep his head down. Keshishian, Moh and the third male, the unidentified male, left in the other vehicle. The offender drove south on Hill Road, then west along Parramatta Road before turning into Woodville Road heading towards Guildford. Whilst they were travelling the victim saw Konaraki using her mobile phone. The victim overhead the offender say to Konaraki, "Tell them to meet us at the spot", which indicates that there had been a prior agreement to meet at a certain place. A large number of text messages were exchanged between Konaraki from the victim's vehicle and Keshishian who was travelling in the other vehicle. One message sent by Konaraki was, "Ace is roasting him hard." Ace is the nickname of the offender. However the offender could not have been offering physical violence because he was driving: no doubt, the offender was merely giving him a "dressing down." In one of the text messages Konaraki threatened to use violence on the victim but she was advised by Keshishian to "let the guys do it."
7. The offender eventually parked the victim's car in Warnock Park on the corner of O'Neill and Stimson Streets, Guildford. The three occupants of the victim's vehicle alighted from it and the victim was told to sit down on a nearby park bench. The offender was standing near the victim talking to him. Shortly thereafter Keshishian, Moh and the unidentified male arrived. One of the men then said to the victim, "You're safe. We're not going to hurt you. Next time watch who you borrow money off, consider yourself lucky." The two males then walked away a short distance and the victim was left on the bench seat with Keshishian. Keshishian then stood up in front of the victim and said to him, "You got what you deserved." The victim replied, "Sorry if I hurt your feelings in some way or said something wrong to you. I just don't understand." Keshishian then left the victim's presence.
8. Konaraki, the offender and the unknown man then walked back towards the offender, in essence, told him to keep quiet and to learn from his mistakes. One of the offenders said, "I can't wait to thrash your car." A little while later a police vehicle drove past, causing all those present, aside from the victim, to run and hide. The offender and Konaraki entered the driver and passenger sides respectively of the victim's car and drove off. The victim then walked to his home from Warnock Park. At about 23:22 police observed the victim's vehicle being driven West on Hawkesview Street, Guildford approximately 500 metres from the park where the victim had been left. The vehicle was pulled over by the police on Celia Street, Guildford. The driver, the current offender, was asked to identify himself and he produced his driver's licence. It was a provisional licence and the Mercedes Benz did not have any P plates on it. The offender was given a traffic infringement notice for that driving offence. The car had not yet been reported as stolen so the offender was able to drive off.
9. Konaraki and Keshishian then exchanged a number of text messages in which Konaraki told Keshishian that they had been "pulled over." The last text message contained in the agreed facts is one that Konaraki sent to Keshishian. It is "We are fucked." Whilst that exchange may have been thought to be prescient the only person who could be discovered by the police when the car was reported as stolen was the current offender rather than Konaraki. The offender and Konaraki then drove the victim's car to the offender's unit at Guildford where they met up with Keshishian and Moh.
10. At 1.30am on 18 December 2015 the victim received a telephone call from Keshishian. She enquired as to his health. The exchange continued thus: "VICTIM: Are you serious, what did you do to me? KESHISHIAN: I told you not to fuck with me, you deserve what you got. VICTIM: I thought we were actually mates. Let me ask you one question, you think you're going to see a dollar from all that money taken from me tonight. Those guys are going to take it all and spend it. They are not there to help you. KESHISHIAN: It's okay, I've got your car, it's mine." Later that day there was an exchange of text messages between Keshishian and Moh but they do not implicate the offender before me at the current time at all.
11. The victim attended the Auburn Police Station at 1am on Saturday 19 December 2015 and made a formal complaint to police outlining what had happened. Police attended Keshishian's home at 2am on the same morning but Keshishian declined to make any comment. There were then text messages sent between an unknown male and the victim. There was then a conversation between an unknown male and the victim but it does not appear to me to be likely that it was of the current offender. On Thursday 24 December 2015 the victim's brother unexpectedly located the victim's vehicle parked at Railway Street, Yennora. At 11am on Christmas Day the victim received a phone call from a male who asked the victim about the car. The victim said, untruthfully, that he did not know where his car was. The male asked the victim to call the police and tell them that the keys had been handed over freely. The victim terminated the call and disconnected the mobile number having concerns for himself and his family. Who made that call I do not know but clearly an attempt was being made to try to persuade the victim to tell the police that his car had not, in fact, been stolen when it had been.
12. On 15 July 2016 police attended the residence of the offender. He was cautioned and arrested for the offence now before this Court. The offender agreed to participate in an interview. He provided a false version of events to the police. He told the police that he met the victim at the Vauxhall Inn at Granville a couple of months before the night he was caught driving the vehicle. The victim spoke to him about "doing an insurance job" because he was not able to pay for the vehicle due to gambling debts. He stated that between 9 and 9.30pm on the night of the offence he met the victim at the Vauxhall Inn. The offender, the victim and Konaraki, who was also present, left the Inn. He stated that he then dropped the victim near Blaxcell Street, Granville before being stopped by the police on Celia Street. After being issued with the infringement notice he then drove the vehicle to a friend's house where he parked the car. Despite having the key in his possession, which was later lost, he said that he did not see or use the car again.
13. The offender was committed for trial on 15 February 2017. The trial was listed for hearing for ten days commencing on 16 or 17 October 2017. It was adjourned on this offender's application and relisted for hearing for ten days on 20 August 2018. On 20 August 2018 it was adjourned to the following day and on 21 August 2018 the offender entered his plea of guilty.

Offender's background

1. It must be obvious from what I have already said that the offender has a criminal history. I have already mentioned the offences for which he stood for sentence in the Local Court at Parramatta on 5 September 2014. I have mentioned the driving offence on 5 August 2016 and mentioned the drug offences, one of supplying a prohibited drug between 26 September 2016 and 8 January 2017, which led to his being sentenced by this Court sitting at Parramatta on 15 August this year to imprisonment for 28 months commencing on 2 March 2017 with a non-parole period of 18 months, concluding on 1 September 2018.
2. From that I infer that, but for the current offences, the offender would have been admitted to parole on 1 September 2018. Although I have directed that no further action be taken for breach of the s 9 bonds, the fact that the offender was bound by those bonds at the time of that offending is an aggravating factor. It is a principle of the Common Law and has been included in the list of aggravating factors to be taken into account pursuant to s 21A(2)(j) of the Crime (Sentencing Procedure) Act 1999. In R v Jones (unreported), NSWCCA, 30 June 1994) Finlay J said this: "Here the applicant committed this offence whilst on conditional liberty following his conviction for an identical offence. That is, undoubtedly, a matter of major aggravation. When offenders are given conditional liberty - be it on parole or when they are subject to periodic detention orders, community service orders, or on recognisance to be of good behaviour or, indeed, on bail for alleged offences - the commission of additional offences is a serious matter. It would, in my view, accord with the moral indignation of the community these days that severe sentences be imposed by the courts upon those offenders that abuse their conditional liberty to which they have been allowed for prior offences (or alleged prior offences in the case of a person allowed to bail)." Mr Kimbell who wrote the Crown's written submissions was only, aware of the offender's being bound by three s 9 bonds to be of good behaviour at the time of his offending. However, the offender was in fact bound by 11 bonds to be of good behaviour. Mr Kimbell cited a large number of other authorities which make the point that the commission of an offence of this nature was bound to be of good behaviour pursuant to a bond is a substantial aggravating factor.

Seriousness

1. Turning to consider the seriousness of the offender's conduct, there clearly was a degree of planning involved. I accept that the offender was recruited into this scheme by Mohamed Saddick. The offender went along with it. There is however, no evidence to suggest that the offender was the actual planner or brains behind the operation. The plan appears to have been conceived by Keshishian herself. The offender clearly agreed to participate in a joint criminal enterprise with persons who knew Keshishian and Konaraki. Whether he knew the unidentified male is a separate question. The offender was one of those who confronted the victim and committed acts of violence on his body. He was grabbed and punched and kicked a number of times and forced to the ground.
2. Fortunately for both the current offender and perhaps for the victim, there is no evidence that he suffered any injury. There is no evidence he even suffered actual bodily harm, a scratch, abrasion or bruise or the like. The offender was a major actor in one stage of this joint criminal enterprise: the taking and driving of the offender's vehicle from Newington to Guildford and then from Guilford to where it was found by the offender's brother. It is clear that threats were made to the offender when he was initially confronted in the park at Newington and even when he was in the park at Guildford. The detention was for a relatively short period, about half an hour. However, during that detention the victim was subject to a significant degree or physical violence and his life was threatened. His expectation must have been that a metal weapon was present and might be used.
3. The ultimate purpose of the detention was financial advantage of Keshishian, taking from the offender his money, whether it was $4,500 or $3,000 it is impossible to know from the state of the evidence. The victim's car was also taken from him and the offender played a role in that as well as in the offering of corporal violence to the victim.
4. Clearly this is not at the bottom of the range of offences of this nature. It is clearly well above the bottom of the range, but in my view below mid-range. As offences of this nature can often involve detention for hours, days and sometimes weeks. The detention can often involve a victim being bound and gagged or otherwise confined. The victim was confined in his vehicle, but that was only for a relatively brief period of time.

Personal circumstances

1. As I said earlier, the offender was 27 years old at the time of this offence. He is now 30. The offender was born on the West Bank of the Jordan River in territory currently occupied by Israel, previously occupied by Jordan and before that occupied as a mandated territory by the British Empire. The offender as I said has five siblings. The letter that I quoted from Mr Hourani said that the offender was the eldest of six siblings, but a psychologist's report before me made by Mr Allan Anderson tells me that the offender is the second eldest of six children. It may be that the offender is the eldest son of the six children. The offender and his family lived on a small farm on the West Bank. He described his childhood being a happy one, but that they grew up in distressing, frightening and dangerous environment because of conflict. The offender attended school to the age of 18 and completed the equivalent of Year 12 under our educational system. He described himself as an average student. Sport and social activities were limited, but he was able to play the universal game of football. The offender spent a lot of his time assisting his father working on their small farm. Some of the words used by the offender to describe his childhood were "worried, scared and not safe".
2. The offender came to Australia in 2007 at the age of 18. It is unclear on what visa the offender came to Australia. However, he was granted Australian citizenship in 2009. At the time that he came to Australia he had two uncles living here. They were his father's brothers. In Australia he lived with an uncle for a short time, then moved to live with the other uncle for a period of two years. When his second uncle married, the offender moved out of his home to live with others.
3. The offender's early employment history in Australia was stable. He had three different employers in the aluminium and glass industry. He worked for his first employer for four and a half years. When that employer died, the offender worked for his son for a further two years, but he then left after disagreeing with the employer. The offender then worked for another company for a year, but lost his job in 2015.
4. According to the history that the offender gave to Mr Anderson, he then started to use cocaine and developed a growing gambling addiction. From what I have said earlier about the s 10 bonds, it may be that the employment problem and the gambling problem and therefore the drug problem arose not in 2015, but 2014. The offender told Mr Anderson that at the time of the current offending, he did not have a history of addiction to cocaine and that may well be the case. However, he clearly had a gambling problem established in the middle of 2014. According to the history obtained by Mr Anderson, the offender was dealing in cocaine and using the money from that dealing to gamble. The cocaine dealing led to his incarceration.
5. Mr Anderson said this: "In my professional opinion, Aws Hussein lived a steady and peaceful existence up until 2015 when he took to gambling and drug use. I have been asked to comment on Mr Hussein's health issues. From questioning I can state there appears to be no physical health issue in Mr Aws Hussein's history. However, he did claim that Anxiety and Depression were very troublesome to him. He has spent two short blocks of time in hospitals, namely Westmead and Auburn Hospitals. From what I can gather, he was about five days in Westmead and about two days another time in Auburn Hospital. According to Mr Hussein, he was admitted for investigations into possible heart problems. However it was soon realised the problem was Anxiety (which can have very similar symptoms to heart problems, including racing heart and chest pains etc)." Testing made by Mr Anderson indicated to him that the offender has a problem with anxiety and that his drug use had been a strong indicator of "behaviour disturbance". I can accept that the offender became anxious and that probably precipitated his gambling and drug use. Prior to his gambling addiction the offender told Mr Anderson that he was remitting up to $2,000 per month to his parents in Palestine.
6. The offender has used his time in custody well. He completed a remand addiction program on 22 August 2017. A letter from the remand addiction facilitator of 8 August 2017 said this: "Mr Hussein has attended the above groups. His participation in the groups has been positive. He has contributed to the group process by his personal self-reflection inspiring and challenging his peers, he has demonstrated a level of remorse and insight that appears to have facilitated a constructive shift in his behaviour, self-reflection and personal accountability." The Court finds it heartening to be told that the offender is remorseful and insightful and realises that he has to change his behaviour as well as accepting his own responsibility for his own criminal activity. The records from the Department of Corrective Services do not indicate that the offender has committed any breaches of correctional discipline. He is currently housed at Long Bay Hospital, not because he is sick, but because that is the only facility that is available for him at the current time.
7. Unlike the two ladies that I have sentenced earlier today, the offender has a criminal history. That means that I cannot exercise any leniency. Unlike the two ladies sentenced earlier today, this offender has the aggravating factor of committing this crime whilst out on conditional liberty. However he has now been in custody since 2 March 2017, that is for about 21 or 22 months. The sentence which I impose must commence on 1 September 2018, that is the amount of back dating will not be particularly great. The offender is a still relatively young man who, I accept, has learnt by his mistakes, is remorseful and insightful and who has a fairly good chance of not reoffending, provided he remains away from gambling and drugs, provided he finds employment and follows the right path through life.
8. On the limited information available to me, I accept that the offender's prospect of rehabilitation are good. This is a man who did not commence committing crimes as a very young man. When he committed his first set of crimes he was 25 years old and I accept that it was gambling problem which caused him to offend and by which he was very embarrassed. His criminal activity in the current matter may have been prompted by a false sense of loyalty to Mohamed Saddick and his girlfriend Rosalene Keshishian, but I am sure he realises that he would not want done to him or any of his siblings what he and the others did to Jacob Aboeid.

Sentence

1. The offender's plea of guilty was late and the most that I can allow him for his late plea of guilty is a discount of 10%. I start this sentencing exercise with a period of imprisonment of two years and six months. I reduce that by 10% so that the head sentence becomes two years and three months. The question which then arises is what should be the non-parole period. In my view there are special circumstances. This young man has already spent a considerable amount of time in gaol. He must spend a further period of time in gaol. The period of time in gaol must not be too long because it may serve to crush his spirit, to cause him to lose hope, to cause him to despair, which is counterproductive to rehabilitation and returning to the community with a determination to do the right thing. It is also the offender's first time in custody.
2. Furthermore, when he is released on parole he must have assistance from the Department of Community Corrections to ensure that he has the resources to survive back in the community, for example, being provided with adequate accommodation and help in finding employment. I have come to the view that the appropriate non-parole period is a period of one year and three months. That sentence will commence on 1 September 2018. It means that the offender will become eligible for release to parole on 30 November 2019 and the head sentence will expire on 30 November 2020.
3. Aws Hussein, on the charge that on 17 December 2015 at Newington in this State, you whilst in the company of Rosalene Keshishian, Jade Konaraki and two unknown men did detain Jacob Aboeid without his consent with the intention of obtaining a financial advantage you are convicted. I sentence you to imprisonment. I set a non-parole period of one year and three months commencing on 1 September 2018 and expiring on 30 November 2019. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 30 November 2020. The total sentence is therefore two years and three months, comprising of the non-parole and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. In passing that sentence I take into account the matter on the Form 1.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2019