R v Zeidan & Anor [2009] VSC 137

Supreme Court of Victoria|2009-04-08|Before: KING J

PLEA OF GUILTY - assisting an offender - s 325(1) Crimes Act 1958 - low level assistance - not for gain - health and age of offenders - cooperation and remorse - sentence of imprisonment - wholly suspended.

1 Youssef Zeidan and Evette Zeidan, you have each pleaded guilty to one count of assisting an offender, being Antonios Sajih Mokbel, at Elphinstone between 10 October 2006 and 18 November 2006, pursuant to of the . The maximum penalty for the offence is five years. You have each pleaded guilty at the earlier possible stage and neither of you have any prior convictions.

2 Youssef Zeidan, you are currently aged 63, having been born on 4 April 1946. You Evette Zeidan are currently aged 55, having been born on 25 October 1953. You were respectively 60 and 52 years of age at the time of the commission of the offence.

3 The offence to which you have pleaded guilty relates to Antonios Sajih Mokbel and his absconding from the Supreme Court on 20 March 2006. You had no actual involvement in relation to his initial absconding but you assisted him at later stage prior to him leaving the country. A number of other persons also assisted Mr Mokbel in terms of his absconding from the court and his escape from the jurisdiction, including his ultimate flight to Greece. You have no connection with any of those persons who are Byron Pantazis, Foula Pantazis, Yvonne Warfe, Angela Nissirios, George Elias, Chafic Issa and Spiros Katopodis. Your involvement is quite separate and distinct from the involvement of those other persons apart from meeting some of them on the morning that Mokbel was collected from your premises.

4 The background to the circumstances relating to this offending is that Mokbel was on trial in the Supreme Court before His Honour Justice Gillard for importation of cocaine. On 20 March 2006 he failed to appear. The trial continued, he was convicted and on 31 March 2006 a sentence of imprisonment was imposed on him in his absence. Shortly after his failure to appear it would seem that Mokbel began hiding out in a rural property near Bonnie Doon which was owned by George Elias. He was able to live as a fugitive from the law as a result of assistance provided to him by Elias, Issa, Pantazis, Joseph Mansour, Bartholomew Rizzo, Christopher Ferraro and others, in terms of the provision of accommodation, food and money.

5 During that time Mokbel was able to continue to maintain and operate a large drug trafficking enterprise which involved a number of the persons to whom I have just referred and that enterprise funded his life on the run and his ability to flee the jurisdiction. A vessel, the Edwena, was purchased in New South Wales. It was then transported to Fremantle, Western Australia. This was done with the assistance of Byron Pantazis, Angela Nissirios, Katopodis, Mansour and Rizzo.

6 Mokbel left the farm at Bonnie Doon at some point and then spent between two to three nights at your property at Elphinstone and subsequent to that left your property in the company of Pantazis, Warfe and Nissirios. They met up with Issa and Elias and all travelled in convoy in two vehicles by road from the property at Elphinstone to Fremantle, Western Australia.

7 The vessel, Edwena, was modified for long distance international sea travel by some of those persons together with others hired by Mokbel and this was done in Western Australia. It was used to transport Mokbel to Greece where he lived until his arrest by police on 5 June 2007.

8 In relation to the history of your relationship with Mokbel it is that you were originally migrants to Australia from Lebanon and also members of the Maronite church. You were long time friends with the uncle of Mokbel and you had, in fact, known Mokbel since he was a young boy. There is no doubt that at that stage that Mokbel came to your Elphinstone home that he was a fugitive who had absconded from his trial and subsequent sentencing and that you were both aware of those facts.

9 The circumstances of Mokbel being at your home at Elphinstone were that on or about 16 or 17 October 2006, some seven months after his failure to appear in the Supreme Court, Mokbel arrived at your property. You both initially indicated that he was not welcome to stay there, but you did not inform the authorities of his arrival. Ultimately Mokbel appealed to your sense of family and your loyalty to his uncle, Kabalan, with whom you had been friends for a period of approximately 40 years since your arrival in this country.

10 You, Evette Zeidan, continued to press your husband to not allow him to stay but ultimately your husband was persuaded by the calls of family and years of friendship with the Mokbel family. You both provided him with accommodation and food. It was initially to be one night but he failed to leave the premises and ended up staying at least two nights. He then left your premises being collected by the persons to whom I have referred earlier.

11 In November 2008 you were both arrested at your Elphinstone property. You co-operated with police. Both of you made taped recorded interviews in which you admitted your involvement. You both then on the same day made statements to the police as to your involvement and your knowledge of these events. Those statements contain full admissions of your responsibility.

12 There is no doubt that anything that was done to assist Mr Mokbel To flee the jurisdiction is a serious matter. Whilst your role in terms of assisting him is the least of any of the offenders who were charged with assisting Mokbel to flee this jurisdiction, your behaviour in permitting this to happen must still be the subject of significant criminal sanctions. Persons cannot be permitted to justify their criminal behaviour by references to feelings of loyalty to family or long-term friendship. The loyalty of law-abiding citizens of this community must be to the community at large, that is that they will do what they can to ensure that criminals are brought to justice. Whilst I accept that your rationale for your behaviour was as you say, it does not in any way justify that behaviour in assisting him and then by compounding that by failing to alert the authorities to the information that you possessed.

13 I need to take into account as well as those circumstances to which I have referred the personal circumstances of each of you. As indicated, Youssef Zeidan, you were born in 1946 in Lebanon. Your father was a farmer and he died at the age of 94. Your mother assisted on the farm and she died at the age of 92. Both of your parents remained living in Lebanon. Neither of them have ever been in trouble with the law. You were the third of four children. One of those children still lives in Lebanon. Your sister migrated to Australia earlier than you and she sponsored you and your brother. Your brother with whom you migrated to Australia, Michael, died in 2006 of cancer. None of your siblings have been in any trouble with the law. You are described as being raised in a loving and caring family, although poor. You left school at the age of 15 and worked on a production line manufacturing aluminium in Beirut for five years until you came to Australia in 1966 at the age of 20. You initially lived with your sister, Lucy, and worked for 11 years at the ABC Machine Company in Richmond. They were involved in the manufacture of juke boxes and you left this employer only when the business closed.

14 You married your wife Evette after dating for approximately six months. You have been married for almost 40 years.

15 Your wife also came from Lebanon as a migrant at the age of 13.

16 After you and your wife married at some later stage you both relocated to Shepparton where you operated your first coffee lounge and pizza shop. You did that for four years living above the premises and with the family all assisting in the running of the business. From there you operated a number of other businesses in Lygon Street and Elgin Street in Carlton.

17 You and your wife had three children: Norman who is now aged 37 and operates a café in Malvern; a daughter Gloria aged 35 who also operates her own coffee lounge and a son Danny who lives in Kinglake who has operated cafés and restaurants but in the past until recently was working in a winery. None of the children have been involved in any breaches of the law and you and your wife are extremely ashamed about what has occurred in terms of your offending at this point in your lives.

18 There is no doubt that prior to this offence occurring you could be described as hardworking, law-abiding citizens who contributed to this country.

19 In 1997 in July you were rushed to the Royal Melbourne Hospital having suffered a collapse. You had a subarachnoid haemorrhage which was caused by a bleeding cerebral aneurism. You underwent urgent neurosurgery and the aneurism was clipped. However, you suffered the complication of hydrocephalus which required the insertion of a special shunt to your brain. Although you survived the operation there were long-term problems associated with it. You were cognitively impaired and, in fact, you even absconded from the hospital during your treatment. You were not considered certifiable and thus you were not forced to return to the hospital and you subsequently attended your rehabilitation as an out-patient. You suffered significant physical consequences at that time with relatively dramatic injuries occurring to your right side. You were unable to cope with returning to work and had to, accordingly, sell your coffee lounge.

20 You and your wife went to live on the farm in Elphinstone which had been a business which you and your wife had invested in as a weekender. You had bought five acres at Elphinstone to set up an emu farm. Like many others convinced of the long-term benefits of such a business and like most others, that business failed. It had on the property a small weatherboard house which is where you and your wife now reside.

21 I have a report from Dr Lipson dated 25 March 2009. He has been your treating practitioner since 1998. He described you post the operation as becoming clearly anxious, depressed, withdrawn, lacking motivation, said you were often teary, slept poorly, you had a low appetite and you had physical symptoms consistent with depression including diarrhoea, headaches, as well as dizziness. You were treated with medication and supportive therapy such as attending psychiatrists and psychologists.

22 On 28 October 1998 you presented in severe depression with suicidal ideation which required urgent psychiatric referral. You remained under the care of psychiatrists for many years but despite might that there were mixed results. You have often expressed feelings of despair and thinking constantly about your lost ability to work and function as you used to. Ultimately you were described as now spending most of your days sitting on the couch at home drinking coffee and smoking cigarettes.

23 Investigation of your ongoing headaches via CT scans of the brain in 2002 and 2005 demonstrated scarring on the right frontal lobe which was indicative and supportive of the brain jury having occurred. You currently remain on antidepressants and symptomatic treatment for headaches and diarrhoea as well as also suffering hypertension which requires you to take ongoing medication.

24 There have been three suicide attempts by you since the brain aneurism occurred. You had been trying to give up cigarettes and had succeeded in reducing your usage from some 80 cigarettes a day down to 20 prior to this offence. As a result of Mokbel's arrival and ultimately being questioned by police together with admitting your involvement in this matter you have resumed smoking some 80 cigarettes a day.

25 In the report by Mr Cummins, forensic psychologist, dated 25 March 2009, you discussed with him the circumstances in which you allowed Tony Mokbel to remain at your premises and in that you indicated your relationship with his uncle, Mr Wajih Kabalan, as well as knowing Tony Mokbel's deceased father.

"He said over many years he had maintained a very close relationship with Mr Wajih Kabalan who was aged 92. He had previously worked with VicRoads and lived in Pascoe Vale and he stated words to the effect of", and he there quoted you when he said, "when I had the stroke Wajih would come to us, to my wife saying, 'We'll help you'. When I was ill Wajih would cook for us. When Tony Mokbel asked if he could stay a couple of days my wife and I tried to convince him to give himself up. We felt we couldn't report him because of the family loyalty thing. In any case, I thought he would get caught and I didn't want to get involved. I suppose in a way I felt a sense of obligation because I had such a close friendship with Wajih Kabalan and I still speak with Wajih on the telephone often daily."

27 At no stage did you, Youssef Zeidan, have any business dealings with Tony Mokbel.

28 In relation to the issue of remorse apart from your immediate admissions to the police and your willingness to make a statement that is equally supported in the report of Mr Cummins at page 4 where he stated:

In my opinion, it was quite apparent by Mr Zeidan's presentation and comments at interview that he felt overwhelmed, ashamed and guilty concerning his offending behaviour. He expressed the opinion he felt pressured by Mr Mokbel to allow him to stay at his address. He also repeatedly stated, "I felt a sense of obligation". At interview he said it had been explained to him the hearing of the charge against him will take place in the Supreme Court. He said he was feeling very stressed and worried about the possible outcome of this matter for both himself and his wife. He said attending court as he and his wife have now done on several occasions in relation to the present matter has forced them to both more fully understand the seriousness of their actions and why they have been charged. He also highlighted the reporting conditions were recently dropped and he stated that he and his wife feel ostracised by acquaintances that live in the local area.

29 Mr Cummins was of the view ultimately that you had been suffering from a depressive disorder, most probably in the form of a dyschymic disorder subsequent to suffering the stroke some 12 years ago. As part of the consequences subsequent to the stroke you have also been suffering from a chronic adjustment disorder with mixed disturbance of emotions and conduct as partly evidenced by your active suicidal behaviour and your tenancy to live a reclusive lifestyle. Mr Cummins said in his opinion:

He offended by harbouring Tony Mokbel under circumstances where he was suffering the symptoms of an adjustment disorder with mixed disturbance of emotions and conduct.

30 He further expressed the opinion that your mental state had been chronically compromised subsequent to you suffering the stroke and that in his view you presented as being quite psychologically vulnerable and under those circumstances it is very probably that your mental state would quickly deteriorate if you were incarcerated.

31 In relation to you, Evette Zeidan, as I indicated, you were born in 1953 in Lebanon and you came to Australia at the age of 13 in the company of your mother and six other siblings. A further two siblings were born in Melbourne. Your father had left Lebanon and arrived in Australia approximately 18 months earlier. You settled in North Carlton and the family purchased a property in North Fitzroy. Your father worked in a factory involved in the manufacture of machinery and your father died at the age of 65 from cancer. Your parents had never separated. Your mother is in her 80s and lives with one of her son and his family in Lalor. Your mother had been involved in home duties, unsurprisingly, as she raised nine children. You were very close to your father but you are not particularly close to your mother. You are the third eldest in your family. Your oldest sibling is aged 60 and your youngest 38. Only one sibling resides out of Australia and is a sister who lives in Lebanon. I was informed that one of your brothers had been in trouble with the law but the others had no involvement in the criminal law. You also are described as having been raised in a loving family. You were schooled up to the age of 12 in Lebanon. After you came to Melbourne a year later at the age of 14 you commenced working. You worked in factories and it was during this time that you met your husband. You eloped after a short time when you were 16 and subsequently married. Once you had eloped your mother agreed to sign the papers.

32 As indicated already, you and your husband have three children to whom I have already referred. In relation to the youngest son Danny, he was working in a winery in Kinglake. He is currently not working because of the loss of his house together with the loss of his likelihood, not being able to work in the winery due to the events of Black Saturday. Your son's wife was about eight months pregnant at that time and she had an emergency caesarian shortly after the fire, possibly due to the shock. They of course have no home as a result of the fires.

33 You have a very similar work history to your husband in that apart from raising your children you also assisted your husband in operating the coffee lounges in Lygon and Elgin streets and then in Church Street, Brighton. Your life also obviously changed dramatically when your husband suffered the cerebral aneurism in 1997 and it was subsequent to this that you relocated to reside in Elphinstone. Previously the property had been a weekend getaway. You do not have a licence and have never driven, so accordingly the isolation must be more significant for you. You moved to Elphinstone to please your husband as he wanted to avoid undergoing formal rehabilitation subsequent to suffering the aneurism. You said to Mr Cummins in a report which is part of Exhibit 3 that, "Your husband feels better in the fresh air, that he has his music and that is how he passes his time". You are responsible for the supervision of his medication and you yourself have experienced headaches and stomach pains over the years.

34 You have clearly been under stress since this has occurred. Your headaches have got worse since your arrest and you take normal pain killing medication which you increase to stronger dosages as required. In the report from Mr Cummins he quoted you as saying that you had always enjoyed being married, although sometimes you got frustrated with your husband subsequent to him suffering the stroke in 1996 in relation to which you were of the view that his personality changed significantly. She said, and he quoted you:

We have three gorgeous children and they are very supportive of us but now we are avoiding them a lot because we have not wanted to talk to them about these charges but I'm sure they're understanding.

35 He also referred to some aspects of what you told him in relation to the offence at page 3 of his report where he stated:

I told Joe he mustn't allow Tony Mokbel to stay at our place but he's soft hearted and I feel Tony Mokbel sort of pressured him into this. We didn't really know Tony Mokbel, although occasionally he'd come to our place and gone rabbit shooting. I had heard these rumours about him being involved with drugs but I didn't know anything about this. When I saw him at our place I was just frightened and I told Joe he mustn't let him stay but I think Joe was scared of what might happen if he didn't let him stay there. The police had been very nice to us and I think they know we made a big mistake. When we were last at court the police told us to get on with our life but now we feel we can't move on with our life and now Joe is saying he wants to sell the house and move back to Melbourne. Joe just feels embarrassed because people in Elphinstone in the local area seem to have ignored us and there's really just this one friend who now drops in. But before this we used to have a number of friends who'd drop in.

36 Mr Cummins described what his ultimate opinion was in relation to your mental situation at page 4 when he said:

In my opinion Mrs Zeidan's psychological state is genuinely fragile. She is petrified she could be incarcerated in relation to this offending. In my opinion it is correct to state that at the time of the offending she did not appreciate just how seriously this sort of offending is viewed by the law. Further, at interview she stayed she felt a sense of obligation to support her husband once she realised that he felt he had practically no choice but to allow Mr Mokbel to stay overnight, a stay which had then extended at Mr Mokbel's insistence to two nights. In my opinion, her offending behaviour was strictly situationally motivated. She is not assessed as having an antisocial personality style or having an antisocial personality disorder. In my opinion, Evette Zeidan is highly remorseful and embarrassed concerning her offending behaviour.

37 Having heard and read all of the material relating to you and your husband I agree with the view expressed by Mr Cummins in respect of those matters.

38 There are also a number of character references that were tendered on your behalf. I accept what is contained in those.

39 There is no doubt that up until this offending you were law-abiding, valuable contributing members of our community and very family orientated people. All of these factors are matters which I will take into account in your favour together with your remorse, your plea of guilty, the earliest stage at which you made it, your co-operation with the police and your health issues. Equally though I must balance those factors with the seriousness of the offence, the consequences of your actions and the need to impose an appropriate penalty reflecting those matters and overall impose a just sentence. Balancing all of those factors it is my view that nothing other than a sentence of imprisonment would reflect the seriousness of the offences but equally to reflect your personal circumstances to which I have previously referred and your other matters, that term of imprisonment should be wholly suspended.

40 Accordingly in respect of the one count on the presentment, Youssef Zeidan, you are convicted and sentenced to be imprisoned for a period of nine months. Evette Zeidan, you are convicted and sentenced to be imprisoned for a period of six months. I further order that both sentences be wholly suspended for a period of two years.

41 I am obliged to indicate the sentence that I would have imposed but for your plea of guilty. That is a difficult task as there are so many factors that are considered in determining sentence but just taking your plea of guilty into account, the best that I can say is that the sentence would have been in the case of you, Youssef Zeidan, a sentence of 12 months' imprisonment and you, Evette Zeidan, a sentence of nine months' imprisonment. Neither sentence would have been wholly suspended.

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