The Queen v Chaouk [2013] VSC 362

Supreme Court of Victoria|2013-07-17|Before: LASRY J

CRIMINAL LAW - Sentence - Jury trial - Not guilty of one charge of attempted murder, guilty of three charges of reckless conduct endangering life - Shooting at vehicle containing three occupants on public street - Absence of remorse - Delay - Total effective sentence of five years' imprisonment with three year non-parole period.

1 Matwali Chaouk, on 31 May 2013 you were found guilty by a jury of three charges of conduct endangering life. The jury found you not guilty of a charge of attempted murder. The maximum penalty for conduct endangering life pursuant to of the is ten years' imprisonment. On 6 June 2013, I heard submissions from Mr Gibson for the Director of Public Prosecutions and Mr Jackson on your behalf on the issue of sentence. I must now sentence you for these three offences.

2 These verdicts arise from an incident which occurred in Altona North on 15 November 2009. These events follow hostility between your family and the Haddara family.

3 The evidence before the jury revealed that on 14 November 2009 there was some kind of argument at the Williamstown beach between Sabet Hadara and Bilal Hablas. The argument apparently became heated, and later in the evening there was telephone contact, which Sabet Hadara said included a conversation with you. Hadara's evidence was that in that phone call you said to him, "I'm going to get you, I'm going to kill you." In view of the jury's verdict on the charge of attempted murder and the short duration of the phone call in which a number of conversations were claimed to have occurred, I am not satisfied that you actually said that. I am, however, satisfied there you were involved in some level of hostile contact with Sabet Hadara.

4 On the following day, Sabet Hadara, his friend Antonio Sawan and Sawan's girlfriend Natalie Camilleri were together in the late afternoon in Natalie Camilleri's mother's vehicle. After visiting an automatic teller machine and the Altona North McDonald's they drove west down Blackshaws Road from Millers Road in Altona North, approaching the intersection of Chambers Road. There was some level of apprehension on their part concerning the presence in the area of several people including Ahmed El Gammal and Bilal Hablas in a blue Ford Falcon; there had been some sort of confrontation between at least El Gammal and Sabet Hadara at the ATM.

5 At the intersection of Blackshaws and Chambers Roads, you appeared in a black BMW convertible. That was not by chance. The telephone records support the conclusion that you were, as Mr Gibson put it, summoned to the scene and that was concerned with hostility toward Sabet Hadara. Also at the intersection were Ahmed El Gammal and Bilal Hablas in the blue Ford Falcon. When the vehicle containing Sabet Hadara, Antonio Sawan and Natalie Camilleri stopped at the intersection, you pulled in front of the car, and from your BMW convertible produced a gun and fired several shots.

6 It is unclear how many shots you fired, although in my opinion it was more than one. In his evidence, Sabet Hadara said, "Several shots were let off, so I just heard bang, bang, bang, and I ducked my head at that time."[1] He later said he thought the number was five or six. In cross-examination, he said the number of shots was more than three, he saw a few hit the windscreen and thought one hit steel.[2] Antonio Sawan, who was the front seat passenger, said he heard three shots. Bilal Hablas who was in the blue Falcon said he heard shots that "got fired" but then said it was only one shot.[3] Mr Pule, the gentleman who repaired the windscreen said that there was damage to the windscreen that "had a chip and like a small circle around a chip".[4] One of the limitations to the evidence in this case is that the windscreen was never examined; it was replaced and destroyed before investigators had any opportunity to look at it. Mr Pule did not claim in his evidence to have taken particular notice other than recognise that there was damage which needed to be repaired.

7 The result of the evidence is that I would not be satisfied that more than one shot hit the windscreen, but given all the circumstances including the pre-existing hostility and the deliberate way in which you approached the vehicle containing Sabet Hadara, I am satisfied that more than one shot was fired. Exactly how many, I am not able to say.

8 You fired these shots from a .22 semi-automatic handgun, in a public place and at an intersection which, as the prosecutor pointed out, was only a short distance away from several fast food outlets and other shops. After the incident you then sped away from the scene and then disposed of the firearm by putting it into the custody of the occupants of the Ford Falcon, Bilal Hablas and Ahmed El Gammal.

9 You pleaded not guilty and did not give evidence. The trial was conducted on the basis that the prosecution could not prove beyond reasonable doubt that the person in the black vehicle firing the handgun was you. In my opinion, the case against you was overwhelming. There is thus no indication from you of any willingness to accept responsibility for your actions.

10 Only one victim impact statement was filed and it is from Sabet Hadara. In that statement dated 4 June 2013, he described the understandable emotional trauma he suffered as a result of the incident and the fact that he has needed counselling assistance since the incident. I have taken that statement into account in fixing the sentence that I will impose on you.

11 You were born on 15 November 1983. Your criminal history appears to have begun in 2002 with driving offences and in December 2003, you were given a suspended sentence. In June 2005, you were gaoled for 6 months for driving whilst disqualified. Your offending then seems to have become more serious. On 22 June 2007, you were sentenced by Judge Gaynor in the County Court in relation to offences of trafficking in a drug of dependence being amphetamine, trafficking in MDMA, possession of cannabis, recklessly engaging in conduct endangering a person, theft of a motor vehicle, destroying property and attempted theft. You were then 23 years of age. You were sentenced on the two presentments to three years' imprisonment and you were required to serve 22 months and 18 days before becoming eligible for parole. Mr Gibson, in referring to those matters, noted that the offence of reckless conduct endangering persons was an offence of the same kind as you have been found guilty of by the jury in this case. However, as Mr Jackson has pointed out, the previous matter involved the driving of motor vehicle rather than the use of firearms. In her reasons for sentence, Her Honour expressed the concern that your offending had now escalated beyond driving offences. She particularly expressed to you that if you went on offending, the sentences would get longer and you would spend the best years of your life in prison. She thought that would be a tragedy.

12 You were released on parole on those matters in July 2007. You went back into custody in April 2008, charged with a number of offences which did not proceed and then you were released on bail in December of that year. The offences for which I will shortly sentence you were committed on 15 November 2009 and in June 2010 you went back into custody on other offences being the possession of firearms - a handgun, a pump action shotgun and a Ruger 357 revolver. The finding of the .22 calibre pistol formed part of the evidence in this trial. For the 18 months or so that you spent in the community prior to that, you had worked in the building industry. You were sentenced for those matters on 11 November 2010. These are matters occurring subsequent to the matters for which I must sentence you but they give me some indication about the genuineness of your prospects for rehabilitation. The total effective sentence was two years and six months' imprisonment with a period of 18 months to be served before eligibility for parole. As I understand it you have remained in custody since that sentence was imposed on you.

13 That history shows a lack of respect for authority and the rules by which the community must live, as did your offending in this case. It also shows that you are more than willing to engage in violence including the use of firearms to make your point or exert your influence. To the extent that any of this is in some way explained by hostility between your family and the Haddara family, that is no justification at all. Whatever the issues and whatever the history, violence on the street by the use of firearms must be deterred.

14 On the other hand, it is important for me to note that according to your counsel, since June 2010 you have spent the entirety of your time in custody at Barwon prison. Up until August of 2012, you were apparently in 23 hour lock down. You only had one contact visit a month and limited access to facilities. I gather you are now in mainstream but you are still considered to be a high security prisoner. I can only express the hope that the sentence I will shortly impose on you should, if at all possible, be served in conditions that give you some chance to improve yourself.

Personal circumstances and prospects of rehabilitation

15 You are 29 years of age and born of Lebanese parents. Your father was murdered in 2010. Your mother, Fatma, lives in the family home. The evidence seems to suggest that your mother has a cancer condition which you have been understandably concerned about for some time. You are the second youngest of the children of the family. Your education finished at year 10 and then you pursued apprenticeships and then later worked in the building industry. You also worked in the family green grocer business. That continued until 2005 when your were first imprisoned. At about that stage, your brother Mohammed was killed and your imprisonment meant you were unable to attend his funeral. From 2005 until the present time, you have spent a significant period in custody.

16 I am told you are concerned about your family and that there is at least the idea that you and they might move interstate depending on the conditions of your parole when you are released. Mr Jackson makes the point that your recent opportunities to rehabilitate yourself have been limited. It may be that the supervision you receive when you are released on parole will be to your advantage. However, I am not very optimistic. I have not seen any real indication from you that there are to be law abiding changes to your life. If there are not, then, as Mr Jackson noted, the sentences will get longer. However, you have family support and if you value that, as you seem to, then the best way to capitalise on that support is to return the favour and stay out of trouble.

17 On your behalf, Mr Jackson pointed out that there has been quite a significant delay in this matter coming on for trial. These offences occurred almost four years ago. There seemed to be a reluctance on the part of various participants to facilitate any investigation by police of the matter and in that connection, the Office of the Chief Examiner was utilised. You were not charged until 21 March 2012 at around the time when you might have otherwise been eligible for release on parole for the sentence you had then been serving. The committal for this matter was held in October 2012 and the trial was listed and began in February of this year until it was delayed by an issue of Legal Aid funding. It resumed and concluded in May of this year. Mr Jackson submitted, and Mr Gibson accepted, that the delay was not in any sense attributable to you.

18 Were it not for these delays, you would have been sentenced for the present offences while you were still undergoing the sentence imposed by his Honour Judge McInerney in November 2010. The principle of totality would therefore have been applied, bearing in mind the nature of the offences in each case and the six month period between offending. I will therefore take the sentence imposed by Judge McInerney into account in fixing your sentence today.

19 Your offending in this case demonstrated a complete lack of respect for the law and the community. You drove to the area around the Altona North McDonald's for the purpose of at least endeavouring to intimidate or frighten Sabet Hadara and his friends with a loaded firearm, which you fired. You drove your car in a manner which suggested a deliberate intention by you to intimidate Sabet Hadara and possibly his two friends. In firing the handgun at the vehicle, you were doing so in a suburban street with other people and vehicles in the vicinity. The idea that people such as yourself can drive around the streets firing guns so as to cause danger to the lives of other people needs to be deterred. This is not Chicago in the 1930s and this conduct will not be tolerated. You and the community both must realise that this kind of conduct, involving as it does a complete disregard of the law in relation to firearms and aggression, will produce significant punishment.

20 You are still under 30 years old. Potentially, your best years still lie ahead of you. You are the one who will have decide how they will be spent. If they are spent committing more violent conduct of this kind then much of your life will be spent in custody. It's up to you.

21 Your counsel properly accepted that these are serious offences and that as between the three offences some degree of cumulation of the sentences is appropriate. Consistent with authority and the duty to assist the Court, Mr Gibson put forward a range within which he suggested the appropriate sentence should fall. The range put forward was between 6 and 8 years as the head sentence and between 4 and 6 years as a period to be served before you become eligible to apply for release on parole. Mr Jackson, on your behalf, took issue with that range, submitting that it was by no means clear that it took into account the matters he had relied on during the plea and what he referred to as totality - you having been in custody continuously since 2010.

22 In my opinion it was not clear how much of what was put on your behalf by Mr Jackson formed part of the prosecutor's analysis to produce the range he relied on. Fortunately for you, I have concluded that the range put forward was too high, but not by much.

23 In my opinion, the appropriate sentence for me to impose on you is the following:

On Charge 2, that you did without lawful excuse recklessly engage in conduct that placed or may have placed Sabet Hadara in danger of death by discharging a firearm at a motor vehicle in which he was a passenger, you will be sentenced to a period of four years' imprisonment;
On Charge 3, that you did without lawful excuse, recklessly engage in conduct that placed or may have placed Natalie Camilleri in danger of death by discharging a firearm at a motor vehicle in which she was the driver, you will be sentenced to a period of four years' imprisonment;
On Charge 4, that you did without lawful excuse, recklessly engage in conduct that placed or may have placed Antonio Sawan in danger of death by discharging a firearm at a motor vehicle in which he was a passenger, you will be sentenced to a period of four years' imprisonment.

24 I will direct that six months of the sentence on Charge 3 and six months of the sentence on Charge 4 be served cumulatively with the sentence on Charge 2.

25 The result is a total effective sentence of five years' imprisonment. I direct that you serve a period of three years' imprisonment before you are eligible to apply for release on parole.

26 Pursuant to s 18(4) of the Sentencing Act 1991, I declare that the period of 72 days is your pre-sentence detention and that is to be reckoned as time already served. I direct that be entered in the records of the Court.

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