Regina v Michael Kanaan

CATCHWORDS : Sentence - Maliciously Discharge Firearm with intent to cause grievous bodily harm - Maliciously Discharge Firearm with Intent to Prevent Lawful Apprhenension - Armed Offender Fleeing from Police - Conviction after trial.

CASES CITED : Kanaan & Ors v Regina (2006) NSW CCA 109 Regina v Kanaan (2005) NSW CCA 385

PARTIES : Regina Michael Kanaan

COUNSEL : Crown - M Cunneen Offender - CB Simpson

SOLICITORS : Crown - S Kavanagh Offender - Michael Croke & Co

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION LATHAM J

1 LATHAM J: Michael Kanaan (the offender) was found guilty by a jury on 29 May 2006 of two counts of maliciously discharge firearm with intent to cause grievous bodily harm and one discharge firearm with intent to prevent his lawful apprehension. Each of the offences carries a maximum penalty of fourteen years imprisonment pursuant to section 33A of the Crimes Act 1900. 2 The offences arose out of an encounter between the offender and two police officers in the early hours of 22 December 1998. I regard the following summary of the facts as having been established by the jury's verdicts: The offender was a rear seat passenger in a vehicle, in which three other persons were travelling, namely Mark Cheihk, Ian Rossini (as the offender came to be known) and Mr El Asaad. A fully marked police vehicle driven by constable Fotopoulos (as he then was), with constable Christopher Patrech (as he then was) as passenger, followed the offender's vehicle into a dead-end street, Alma Street in Paddington. The occupants of the offender's vehicle left the vehicle and proceeded on to Weigall Sports Ground. The police officers gave chase, shouting at various intervals "stop, police". Mr Rossini, the offender and Mr El Asaad were all in possession of pistols, having armed themselves earlier in the evening when leaving the offender's premises. In the course of the chase, Mr Rossini and Mr El Asaad threw their pistols away . 3 Mr Rossini was able to scale a cyclone wire fence and make good his escape into Vialoux Street and thence to Goodhope Street and Oxford Street. Mr El Asaad was tackled by constable Fotopoulos and remained pinned to the ground. The offender and Mr Cheihk scaled a cyclone wire fence on to a tennis court. Constable Patrech climbed after the offender and was able to reach the top of the fence. Mr Cheihk continued to run across the tennis court and into Nield Avenue. The offender, however, stopped and turned to face the police officers.

4 Whilst straddling the fence with his right leg at a 90 degree angle to his body, constable Patrech looked down to his right and saw the offender approximately four metres away, raise his left arm and shoot directly at him. Constable Patrech was shot in the right thigh. He commenced to retreat and whilst climbing back the way he had come, he was shot in the right wrist. Constable Patrech then jumped from his position on the fence, sustaining a fractured right ankle and damaging his hip. He crawled a short distance to a pit filled with sand and fell in, after telling constable Fotopoulos of his injuries. Constable Fotopoulos pulled his service pistol from his holster and returned the offender's fire. The offender was struck by bullets in each leg, the buttocks and the right wrist. He fell backwards on the tennis court and continued to fire upon constable Fotopoulos from a half sitting position, in the course of which the offender accidentally shot himself in the top of the right foot. The offender continued to fire at constable Fotopoulos until he had no more ammunition in the magazine.

5 The offender was arrested and conveyed to hospital where he declined to be interviewed by police. Following his discharge from hospital, and his release to bail, the offender met with Alan Rossini. The offender gave notice to Mr Rossini of his intention to raise self defence at his trial, on the basis that the police opened fire whilst the offender was running away. When it became apparent that Mr Rossini was to give evidence in the Crown case in return for an indemnity, the offender nominated Mr Rossini as the only occupant of the vehicle that night to fire at police. This account was obviously rejected out of hand by the jury.

6 Unfortunately for constables Patrech and Fotopoulos, the offender was neither inexperienced in, nor reluctant to resort to the use of firearms. Barely one week before the encounter in Paddington, the offender had, jointly with others, shot and killed one Danny Karam whilst the latter was seated in his vehicle in Surry Hills: See Kanaan and Ors v Regina (2006) NSW CCA 109. Moreover, approximately five months before the encounter in Paddington, the offender had shot and killed two men and maliciously wounded another outside a hotel in Five Dock: See Regina v Kanaan (2005) NSW CCA 385. The offender was not arrested in relation to those offences until late 1999 and was not convicted of them at trial until 2001 and 2002. The offender's only criminal history at the time of the commission of the instant offences was a summary of his possess prohibited drug offence, for which the offender ultimately received a recognisance under the now repealed section 556A of the Crimes Act to be of good behaviour of two years, to date from 12 June 1998. It follows then that the offender was subject to that recognisance as at 22 December 1998. That is an aggravating feature of the commission of these offences.

7 Disregarding the offender's criminal activity in the months preceding the commission of these offences, they are objectivity very serious in their own right. Ignoring police directions in his efforts to escape apprehension is perhaps not surprising, given the fact that he was unlawfully in possession of a loaded firearm, but it is clear on the evidence presented at trial, and accepted by the jury, that the offender had every prospect of avoiding arrest entirely if he had continued to run across the tennis court to Nield Avenue, as did Mark Cheihk. The offender chose instead to stop, turn and fire directly at constable Patrech, who was at the time in a vulnerable position, precariously balanced on the top of a high fence. Constable Patrech made no attempt to draw his service revolver. The offender fired more than once at constable Patrech. The evidence at trial established that the offender discharged his pistol even after it became apparent that constable Patrech was retreating and that he no longer offered a threat to the offender. In my view, this offence, being count two on the indictment, is the most objectively serious of the three offences for which the offender stands to be sentenced.

8 The offences constituted by counts five and six on the indictment are also objectively grave. Having effectively neutralised one police officer, the offender turned his attention to the other. He returned constable Fotopoulos' fire, standing his ground rather than avoiding any further casualty. This was not mere callous disregard for the well-being of police officers - this was a conscious, deliberate and sustained attack which had all the characteristics of a "shoot out" with police in a residential neighbourhood. The offender was clearly prepared to go to any lengths in the course of his use of the firearm, in order to prevent police from carrying out their duty. The threat to public safety and public order represented by these offences was of the highest order.

9 It should be remembered that members of the public unthinkingly rely upon the services of police officers, like constables Patrech and Fotopoulos, to enforce the law and keep the peace. That such police officers expose themselves on a daily basis to risk of serious injury and death in the course of their professional lives is rarely publicly acknowledged, until, of course, events such as these brings these dangers to the fore. Whatever criticisms might be levelled at Mr Fotopoulos for his conduct before or since 22 December 1998 and the circumstances surrounding his departure from the police force, there was nothing in the evidence at trial that was inconsistent with the proper performance of his duties as a police officer.

10 The offender is presently thirty-one years of age. He was twenty-three at the time of these offences. He is currently serving three life sentences for the offences committed in July and early December 1998. The imposition of sentences for these offences therefore adds nothing to the time that the offender will be required to remain in custody. Given the significant delay between the date upon which the offender was charged with these offences and the final disposition of the charges, the sentences to be imposed are less than might otherwise be warranted.

11 The delay could not be attributed to any conduct of the offender; there had been three previous trials, only one of which proceeded to the jury and that jury was ultimately unable to reach a unanimous verdict. Further delay has been occasioned by the offender's trials and appeals in relation to far more serious offences. The fact remains that these offences must be described as "stale" and sentencing principles call for some element of leniency on that account. Nonetheless, the objective gravity of the offences must be reflected in the sentences to be imposed.

12 Whilst these offences were committed in the course of a number of hours, I regard wholly concurrent sentences as inappropriate in view of the fact that there were two complainants, that is, two potential victims. However, the sentence for count six should in my view be wholly concurrent on the sentence for count five, given that it does not represent a further discrete form of criminality.

13 I know nothing further of the offender's subjective circumstances than what I have already related. He has effectively been in custody since 3 June 1999, primarily in relation to other offences. He has been in the High Risk Management Unit for the past five years. That status involves relocation within the custodial setting every twenty-eight days. The offender is largely kept in isolation. I am informed his health is relatively good, despite the fact that as a result of the injuries sustained by the offender during the commission of these offences he has spent a period of two and a half years in a wheel chair.

14 It remains to sentence the offender according to the regime which applied as at the date of the commission of the offences.

15 Mr Kanaan, would you please stand. On count five on the indictment, you are convicted. I sentence you to a term of eight years imprisonment to date from 30 March 2006 to expire on 29 March 2014. I fix a non parole period of five years to date from 30 March 2006 to expire on 29 March 2011. On count six on the indictment, you are convicted. I sentence you to a term of seven years imprisonment to date from 30 March 2006 to expire on 29 March 2013. I fix a non parole period of four years to date from 30 March 2006 to expire on 29 March 2010. On count two on the indictment, you are convicted. I sentence you to a term of ten years imprisonment to date from 30 March 2008 to expire on 29 March 2018. I fix a non parole period of five years to date from 30 March 2008 to expire on 29 March 2013. It follows that the aggregate non parole period expires on 29 March 2013. The sentences imposed reflect a period of sixty-one days custody solely referable to these offences.

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