R v Keshtiar [2004] VSC 140

Supreme Court of Victoria|2004-04-26|Before: TEAGUE J

CRIMINAL LAW - Sentencing - 2 counts of Attempted Murder - Shooting of two victims with admitted intent to kill - Prisoner currently serving sentence of seven years and six months for another shooting - Concurrency and cumulation - New overall head sentence of fifteen years and six months - New non-parole period of twelve years.

Mohammad Keshtiar, you have been found guilty by a jury of the attempted murder of each of Rouba Issa and Christopher Tsagaris at Burwood on 18 January 2003. I will refer to the two victims after this as Rouba and Chris. In January 2003, you had known Chris for many years. You met him when both of you were doing security work. The two of you had become close friends. You met Rouba socially. In 2001, you and Rouba entered a relationship which continues to the present time. In January 2003, you resided officially with your parents. You were then paying the rent on a house at 345 Highbury Road, where Rouba lived. You stayed there regularly.

On Saturday 18 January 2003, shortly after 10 p.m., you telephoned Rouba to say that you were coming over later to stay the night with her. You then rang Chris. You said that you wanted to meet him to get some party drugs from him. The two of you arranged to meet at a service station near the Highbury Road house. The two of you met as arranged and then went to the house. You arrived there shortly before 11 p.m. The two of you entered the house through the rear door. Chris sat on a chair in the living room area. The television was on. Rouba was sitting on a couch nearby. Shortly after the three of you were together, you started yelling at Rouba. You accused her angrily of being unfaithful to you. She yelled back. The arguing between the two of you in the presence of Chris made him feel very uncomfortable. He phased out. He was not looking at you or Rouba. You had on you a revolver. From that revolver, you fired four or five rounds. You hit Rouba once and Chris three times. The injuries that Chris received in the left chest, and right shoulder were particularly serious. Indeed, they were life-threatening. They were to keep him in hospital for around one month.

After firing off the revolver, you moved around the inside and outside of the house in a very angry state. You kept saying to Rouba: "Look what you've made me do. I hope you are fucking happy." You also made other angry comments. They can be heard on the taped record made when calls were made by you and by Chris to triple O.

There was a period when your anger at your victims, was mixed with indications of concern for them, and a desire to help them and the police. You were quick to call in the police and ambulance services. You then co-operated fully with the police. From shortly after the time that the first police arrived, you told them that you had shot Rouba and Chris. You showed them the 357 Magnum revolver that you said that you had used.

Shortly after going into police custody, you were tested for gunshot residue. Findings of gunshot residues or two or more trace elements consistent with gunshot residue were made on your right hand, and on the jeans and shirt you were wearing.

During the police interview, you said that when you shot Rouba and Chris, you intended to kill them. You used your fingers on the desk to indicate the positions of Rouba and Chris at the time that you shot them.

You gave in evidence at your trial a very different story to that given to the police. That story was that Rouba and Chris had been shot not by you but by a Sam Zayat, a former boyfriend of Rouba, who died last year. The jury was not prepared to accept that story, even though it had considerable support from the evidence of Rouba. There were aspects of the story that were implausible. They included that the blame for the shooting was attributed to a person who is now dead. Further, that person's name had not previously been mentioned by you or Rouba to the police. Further, that person just happened to be at the Burwood house at the crucial time. Further, at a critical time, you were able to move on him outside the house and there take from him the firearm used to shoot Rouba and Chris. Further, you were still patently angry towards Rouba and Chris as the taped triple O calls revealed. Further, you were so ready to tell the police that you had shot them. Further, you claimed that you were prepared to go to prison for years to take the rap for Sam Zayat.

Perhaps more significantly, the evidence given by you and Rouba was not capable of being reconciled with one significant aspect of the evidence of Chris. The jury may have viewed him, as I viewed him, as a generally reliable witness. He was firm on one significant matter. That was that you were in the living room arguing with Rouba when he was shot. When the evidence of Chris is added to the implausible factors that I have partly listed and to your admissions to the police, it is understandable why the jury would not have been prepared to accept the account that you and Rouba gave to them.

I have studied three reports from psychologists, two from Ian Joblin, and one from Jeffrey Cummins. Two of those reports set out your background in detail. I will provide a short summary. You are 34 years of age. You were born in Afghanistan. You came to Australia with your family when you were 19. From your time in Afghanistan, you had become familiar with guns. Your young years were spent there at a time of war, when many people carried guns. You spent some years in Pakistan before coming to Australia. Once in Australia, you started work. You have continued to work hard. After some other jobs, you worked in the security industry. You remained there for ten to twelve years. You are part of a respectable law-abiding family.

As at January 2003, when these shootings occurred, you had only one minor conviction. However, you were on bail. The bail had been granted relative to a series of charges that were ultimately the subject of a trial before Judge King and a jury in the County Court in September 2003. On 22 September 2003, you were found guilty on one count of common assault, and one count of intentionally causing serious injury arising out of events that occurred in the early morning of 28 May 2000 at the Dome night club in Commercial Road Prahran. Before Her Honour, you also pleaded guilty to a charge of possession, on 29 May 2000, of a drug of dependence, namely anabolic steroids. On 18 December 2003, Judge King imposed an effective head sentence of seven years and six months with a non-parole period of five years. Judge King gave a direction as to pre-sentence detention of 91 days.

A short history is needed to put dates in order, so as to clarify the position as to pre-sentence detention. On 28 May 2000, the Prahran events occurred. You were in detention for three days until granted bail. When, on 18 January 2003, the Burwood events occurred, you were still on bail as to the Prahran charges. You were in detention for 53 days until, on 11 March 2003, bail was granted as to the Burwood charges. On 24 April 2003, after an appeal to this court, bail was revoked. You were then in detention for 151 days from 24 April 2003 until 21 September 2003on the Burwood charges. You were then in detention for 88 days from 22 September 2003 until 18 December 2003 awaiting sentence on the Prahran convictions. It is from 18 December 2003 that the sentence of Judge King has commenced, and that this sentence, with its concurrency, will run.

I turn briefly to the events that were the subject of the Prahran charges. You were in the night club near a back door with a another man. There was some jostling, in the course of which, you punched an employee of the club in the face. You and your friend left the club by the back door, but re-entered by the front. Your friend acted aggressively. You then pulled a handgun from your pocket. You pointed the gun at the face of another club employee. You then pointed it at his leg and shot him in the thigh. Judge King described your actions as calculated, cold, deliberate and terrifying.

I have read carefully the sentencing remarks of Judge King made on 18 December last. Judge King had before her, and I have noted, evidence of your being a kind and helpful person. She expressed concern, as do I, as to your prospects of rehabilitation. She found it difficult to explain your going berserk in the circumstances before her. Likewise do I in the circumstances before me. Mr Lovitt suggested to me, as did your then barrister, Mr Steward, to Judge King, that part of the explanation for your actions lay in your use, or rather your abuse, of drugs, of a combination of so-called party drugs and of steroids. That subject was comprehensively reviewed by Ian Joblin and Judge King, and to a lesser extent by Jeffrey Cummins. They noted your choices: first, to take ecstasy and other so-called party drugs in your line of work, secondly, to take steroids with troubling consequences at times, including as to your being more readily provoked into aggression; and thirdly to minimise what you said to others as to the use and the consequences. Although there is not the evidence before me to justify any specific finding, I have benefited from reading about the potential effects of your illegal drug-taking. I think that they make it somewhat easier to understand why you did what you did. There is always a two-sided aspect to the taking of drugs. You may have finished up doing something reprehensible that you would not otherwise have done. But you deliberately made the unwise choice to go down the illegal drug-taking path.

There is still a further element of irrationality attaching to the events at Burwood. That arises from the relatively extreme switch you made from berserk gunman intending to kill to co-operative care-seeker acting to preserve life. I cannot find a satisfying explanation for that. It may or may not be linked to a matter for which I must make allowance. That is, that neither of your victims has filed a victim impact statement, although given the opportunity to do so.

Since Judge King passed sentence, you have been serving the term in prison set by her. Separately from the pre-sentence detention of 91 days directed by her, I fix , and direct that it be recorded, pre-sentence detention of 204 days. The total is 295 days. I record that I am sentencing you as a serious violent offender, and that I am directing otherwise under Sections 6E and 16 (3C) of the Sentencing Act as to cumulation. In doing so, I note that I am sufficiently allowing for the seriousness of three shooting offences.

Respecting the principle of totality, I will allow periods of concurrency that are more than minor not only as between the two offences before me, but also as between them and those that were the subject of Judge King's sentence.

I impose a sentence of imprisonment of eight years on Count 1 of the attempted murder of Christopher Tsagaris. I impose a sentence of imprisonment of seven years on Count 2 of the attempted murder of Rouba Issa. On the second count, three years are concurrent and four years cumulative on the first count . With cumulation, the effective total is twelve years. I order concurrency as to four years with the sentence imposed by Judge King. The sentence imposed by me adds eight years to the head sentence of seven years and six months imposed by Judge King on 18 December 2003. The overall head sentence is fifteen years and six months. It operates as from 18 December 2003. I set a new non-parole period at an additional seven years on that set by Judge King. The new non-parole period is twelve years. Against that will be set off the periods of pre-sentence detention to 18 December 2003 as fixed by Judge King and by me, which total 295 days.

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