The Queen v Kassab & Anor [2013] VSC 379

2 After a trial you were both convicted of the offence of defensive homicide of Omar Taha. Both of you were acquitted of the murder of Ahmed Mohamad and its alternatives.

3 Mr Moustafa, you had been a close friend of the deceased, Ahmed Mohamad. He was your cousin. Mr Mohamad had also become friendly with Omar Taha who was, with Ahmed Abou-Eid, the joint proprietor of CBD Panels.

4 Your friendship with Mr Mohamad had become strained in the months leading up to August 2011. You believed him to be responsible for the theft from you of two large sums of money that had been secreted by you in the house that you had rented from the Mohamad family.

5 You had sold him a BMW X5 motor car, effectively owned by Mr Kassab's brother. Mr Mohamad had been slow in paying for this car which in turn placed you under pressure from the owner. There was some evidence in the trial that you had become jealous of Mr Mohamad's burgeoning friendship with Mr Taha.

6 The evidence suggests that you attempted to run a small business, buying damaged prestige motor cars, repairing them and selling them on. This business was clandestine in nature and you owned various vehicles registered in the names of others so as to avoid the scrutiny of the Licensed Motor Cars Traders authority.

7 Two of your cars, an Audi and a Porsche, had been with CBD Panels for months, ostensively to be repaired. It appears little work was done on them and this added to the strain on your relationship with your cousin and his friend Mr Taha.

8 It is impossible to say with any certainty whether all of these factors were operating upon you when you determined to go to CBD Panels on 18 August 2011, but the conclusion that you were expecting some form of confrontation when you went there is readily available.

9 On the evening of 17 August 2011 a meeting occurred at your rented home at 11 Moore St, Coburg. Present were Adam Lionetti, Abdul Atik, alternatively known as Carlos Fernandez, Abdul Saad, Giovanni Pugliano and Ahmed Abou-Eid. You expressed your dissatisfaction with the progress of your car repairs and the suspicions that you held about your cousin. You proposed that you would confront Mr Mohamad and Taha at CBD Panels the next day. At some stage you had expressed your suspicions that Mr Taha may have been involved with Mr Mohamad in the thefts of your money.

10 Ali Kassab, you, although some years older than Mr Moustafa, had become friendly with him. I am satisfied that you agreed to help Mr Moustafa to endeavour to resolve his issues with Messrs Taha and Mohamad. I am satisfied that you agreed to attend CBD Panels with Mr Moustafa on 18 August 2011 in order to provide physical back up if necessary.

11 Two days earlier you had been observed by an undercover policeman speaking to Mr Mohamad outside his home in Coburg. Mr Mohamad at the time was the subject of a drug related investigation. I am also satisfied that you, Mr Moustafa, arranged for a number of people to congregate outside CBD Panels at the time of your proposed confrontation. I have no doubt that this was done in order to persuade Mr Taha and Mohamad that you were serious in seeking to resolve the issues between you and the two deceased men.

12 Mr Kassab, you worked at your cabinet making business in the morning. By arrangement with Mr Moustafa, Mr Atik collected you from your Campbellfield factory and drove you to 11 Moore St, Coburg. There you both met Mr Moustafa and the two of you travelled to CBD Panels, a couple of kilometres away.

13 A number of men assembled on the footpath driveway area of a factory directly opposite CBD Panels. They included Abdul Atik, you, Mr Moustafa, you, Mr Kassab, Abdul Saad, Omar Saad and a little later Peter Bonanzinga. Abdul Abou-Eid greeted you in Florence St and escorted you both into the panel shop. The deceased man, Ahmed Mohamad, arrived while you were congregating outside. He shook hands with some of the people present and then he too went into the factory.

14 All of the above narrative can be derived from the direct evidence of various witnesses in the trial. The events in the factory itself are much more difficult to ascertain. The direct witnesses to the critical events are either dead (Mohamad and Taha) or not prepared to disclose what in my view they undoubtedly know (Abou-Eid, El-Atm, Jovanovski).

15 I consider that the jury by their verdicts must have rejected at least in part the accounts given by you, Mr Moustafa, in your police interview and by you, Mr Kassab, in evidence.

16 The objective evidence of the crime scene examiners and pathologists demonstrated that:

• five shots were fired from a .357 revolver, four of these shots were fired from within the office area and one from outside the office door which passed through the ajar office door and lodged in a cupboard adjacent to the southern wall of the office.

• Two shots were fired from a 9mm semi automatic pistol. Mr Taha's DNA was found on 9mm ammunition found on the office floor.

• A .22 long barrel pistol was attempted to be fired, probably twice. This pistol was defective and did not discharge.

• Both the 9mm pistol and the .357 revolver were absent from the crime scene. Neither has been found.

• You, Mr Kassab, were shot in the thigh with the .357 revolver, the bullet tracking a straight path and lodging in your calf muscle. Your leg must have been extended in the straight position for the bullet to have taken the path it did. You were also shot in the upper arm causing a through-and-through injury.

• Mr Taha was fatally shot with the .357 revolver from a range close enough to cause stippling to the face area. The bullet struck the tip of the nose, his jaw and passed through his upper chest lodging in his abdomen.

• Mr Mohammed was fatally shot in the chest with the 9mm pistol.

17 I am satisfied beyond reasonable doubt that you, Moustafa, provided the loaded .357 revolver to you, Kassab, before you travelled to CBD panels from 11 Moore Street. The witness, Abdul Atik, described you, Mr Moustafa, arriving at Moore Street carrying a black bag silky in nature about 75 centimetres high. You took that bag in the car driven by Mr Atik to CBD Panels. There is no direct evidence about the contents of the bag at that stage.

18 Mr Atik said that he remained outside during the gun battle. Mr Kassab emerged from the building wounded. Mr Atik said that you, Mr Moustafa, lifted out the black bag from the car, removed a black/brown handled cowboy-type gun from your waist, placed it in the black bag, gave it to him, and in Mr Kassab's presence said "Give this to Johnny" (Pugliano).

19 Although their accounts differed in some respects, a number of witnesses described you, Mr Moustafa, managing the removal and concealment of what must have been the .357 revolver.

20 In your dealings with police you, Mr Moustafa, initially lied about being at CBD Panels at all and stated that you transported the wounded Kassab from his factory in Campbellfield and you then lied about meeting Messrs Atik and Kassab at 11 Moore Street before travelling to CBD Panels. You omitted any mention of Mr Atik's role in the events. You did not give evidence and thus the jury had nothing before it from you on whether or why you took the black bag from your car or put it into Mr Atik's car.

21 Similarly, there was no account from you in the police interview or evidence from you as to whether and/or why you removed the revolver from the scene, placed it in the black bag, and managed its removal and concealment.

22 Mr Kassab, you declined to make a police interview but gave evidence at the trial. You denied that Mr Moustafa gave you the revolver and maintained that you removed it from Mr Taha after a struggle in which you were shot, as was Mr Taha. I consider the jury must have rejected this account. In cross-examination you denied seeing Mr Moustafa carrying a black sports-type bag at Moore Street.

23 As I have said I am satisfied beyond reasonable doubt that the .357 revolver was taken to CBD Panels by you, Mr Moustafa, and provided to you, Mr Kassab, shortly before you went into CBD Panels. Had Mr Taha in fact produced the gun, whilst theoretically possible, I consider it highly unlikely that the jury would have convicted two unarmed men of defensive homicide in circumstances where they happened to confront two men armed with three loaded guns, two of them functional. I consider the jury verdict fortifies my conclusion that the revolver was bought to the scene by you, Mr Moustafa, in the black sports bag and then passed to Mr Kassab.

24 I am satisfied that the 9mm pistol was controlled, at least initially, by Mr Taha. Two fired cartridge cases were found on the office floor. Three unfired cartridges were also found on the floor near the desk used by him. His DNA matched that found on these cases. One bullet, fired from the 9mm, lodged in Mr Mohammed's chest.

25 The only sensible explanation for the verdicts on the Mohammed counts of murder is that the jury were not satisfied that the person who caused the death was one of the accused. A fragment from the other fired bullet was found in the ceiling cornice of the southern office wall.

26 I am unable to resolve who controlled this pistol or who attempted to fire it. It is likely that your DNA, Mr Kassab, was found on the trigger guard area, but you were wounded and bleeding in the office area. Another contributor was detected at that sample site and the grips of the pistol gave up a mixed DNA sample with at least four contributors.

27 As I have observed, a shot was fired from the .357 revolver through the office door. I am unable to conclude when this shot was fired although logically it must have been just before, or just after the firing of the four shots from this gun within the office area itself.

28 It follows that I am unable to conclude that there was an initial confrontation outside the office area between you, Mr Kassab, and Taha. It may be that the shot through the door was fired by you, Mr Kassab, as you departed the area as you maintained in your evidence,

29 In my view, it is impossible to state with any precision what actually occurred inside the office area. The jury verdict demonstrates that they were satisfied beyond reasonable doubt:

(c) that you intended to kill Mr Taha or cause him really serious injury, and;

(d) that your belief that you were acting to protect yourself from death or really serious injury was unreasonable, and;

(e) that you, Mr Moustafa, assisted or encouraged Mr Kassab to carry out the act that caused death.

30 The prosecution went to the jury with a case that spoke unequivocally of Mr Taha's murder. The defence case spoke equally unequivocally of actions carried out in both subjective and objective self-defence. Neither case proposed a hypothesis consistent with the verdict, although this is not unusual when a jury returns a lesser alternative verdict.

31 In my view the most sensible interpretation of the jury verdict is this, you: Mr Moustafa, provided the .357 revolver to Kassab. You, Mr Kassab, produced it in or near the office area in response to some threat from Taha. A struggle ensued. Both of you were standing and the revolver discharged into your straight leg, Mr Kassab. Mr Taha attempted to retrieve his pistol. It is not clear when he loaded it.

32 You, Mr Kassab, could have retreated, instead acting under a genuine but unreasonably held belief in self-defence, you Mr Kassab shot at Mr Taha at least twice and perhaps three times. By this stage he was taking cover behind the desk. The first shot missed him and passed through the desk divider. The second shot struck him obliquely in the nose, jaw and upper chest. At some stage Mr Taha fired a shot at you with the 9 millimetre which struck you through-and-through in the upper arm and lodged in the ceiling cornice. Another shot was fired by you which may have struck Mr Taha's gun. The 9 millimetre has never been found nor has the .357. You, Mr Kassab, then retreated, perhaps firing a last shot through the partially opened office door. Mr Taha was still mobile and vocal at this stage.

33 Mr Moustafa, I shall sentence you on the basis that you aided and abetted this act of defensive homicide in the following manner;

(a) you recruited Mr Kassab to provide a physical presence to your demands of Mr Mohamad and Taha;

(b) you provided for Abdul Atik to transport Mr Kassab to your house and then to CBD Panels;

(c) you provided Mr Kassab with the loaded revolver;

(d) you were present throughout this incident, and by that presence and the actions of which I have just spoken, you encouraged and assisted him to carry out this offence.

34 I emphasise in respect of both of you that I do not proceed on the basis that the .357 revolver was taken to the panel shop with an offensive purpose. I consider that to proceed on that basis would be inconsistent with the verdict of defensive homicide. I proceed on the basis that it was taken for defensive purposes, effectively as insurance if things got out of hand.

35 Overall I consider that this is a serious example of a serious offence. Whilst I accept that events escalated out of control very quickly, the fact is that a loaded firearm was taken to a meeting that had a volatile potential, that it was produced and that the consequence of your unreasonable belief, Mr Kassab, is that a young man has died at your hand. You both took the law into your own hands and sought to enforce it by physical means. Mr Moustafa, you engaged Mr Kassab as your muscle, you organised a support cast to assemble outside and you supplied Mr Kassab with a gun. Mr Kassab, you allowed yourself to be used in this way and produced and used the gun in the way that I have indicated. I am unable to distinguish between your respective moral culpabilities, both of which I regard as high.

36 I turn now to personal circumstances. Mr Kassab, you are 27 years of age, your parents were born in or near Tripoli. Your father migrated to Australia in 1965 at 17. After gaining some facility in the English language he commenced to operate a milk bar. He married your mother in 1975 and they subsequently raised six children. The family ran milk bars, initially in Brunswick, then Reservoir, Footscray, Campbellfield, Broadmeadows and Glenroy. These were family affairs with the shop open seven days a week. You were the fifth of the children.

37 Mr Farrugia operated a clothing shop next to the Footscray milk bar. He spoke glowingly of you and your family. I accept that you are from a fine family, although you have some previous convictions that I will refer to shortly that tends to diminish the weight of this evidence.

38 You commenced a cabinet making apprenticeship when 15. You completed this although you continued to work for your original employer, Kennards Kitchens, for several more years. In 2008 you and a fellow former Kennards apprentice commenced N & A Cabinets, a kitchen fit-out business operating from a factory in Campbellfield. This business, as at 2011, was successful and prospects for your future must have seemed very sound.

39 At the time of your offending, you had just secured a contract to supply the kitchens for 40 town houses in Moonee Ponds. In fact, you took time off work to attend at CBD Panels.

40 Tragically your father died of bowel cancer in 2010. He had been diagnosed initially in about 2008. In 2009 at the Heidelberg Magistrates' Court you pleaded guilty to possessing a prohibited weapon without approval and possessing a dangerous article in a public place. You were fined $1000. The items in question were a knuckle duster and a finger knife.

41 Although this prior offending is disturbing in the context of the role you played in the events at CBD Panels, after some consideration I have come to the conclusion that you have very good prospects for rehabilitation. You have a demonstrated capacity for work, your business appears as if it will survive your absence and you have a skill to fall back on, even if it does not survive. You have no other prior convictions for violence. Your business partner spoke highly of your work ethic, honesty and reliability. As I say, I accept that your prospects for rehabilitation are very good.

42 Khaled Moustafa, you were 20 at the time of this offending and you are now 22. Your parents are both from Lebanon and are still alive. You were born here. You are one of 15 children.

43 Dr Kennedy, a clinical forensic psychiatrist, has provided a report which has been tendered on your behalf. You are of average intelligence and passed Year 10 at Princess Hill Secondary College.

44 You have worked in a variety of jobs since that time, including bricklaying, fencing, floor sanding, as a carwash attendant, and in restaurants. At the time of your offending you were buying damaged vehicles, repairing them and endeavouring to sell them on.

45 You have been a keen sportsman and apparently showed real football ability, most recently for Preston Colts after a good underage career.

46 You have a relatively short but significant criminal history. You have a Children's Court prior conviction for recklessly causing injury, various driving offences of little importance to this sentencing exercise, and in 2009 you were convicted of trafficking a drug of dependence, cannabis, dealing with property suspected of being the proceeds of crime, and possessing a drug of dependence, again cannabis.

47 On 6 May 2009 at Heidelberg Magistrates' Court, you were sentenced to four months' imprisonment wholly suspended for two years. That sentence had expired by roughly three months when Omar Taha was killed. All of your prior convictions were incurred before your nineteenth birthday.

48 You have been custody since your arrest. I accept that whilst a mainstream prisoner, you were attacked by another prisoner. You were beaten around the head and face and wounds required suturing to your forehead and upper lip. I accept that you have been threatened on several occasions and since October 2012 you have been in protection at Port Phillip Prison. It is difficult to predict your future classification but I accept that your time in custody thus far has not been easy. Whether you are a protection prisoner or not, you will be anxious as to your welfare.

49 A letter from Mr Brendan Money, assistant Commissioner, Sentence Management Branch, Department of Justice, was tendered on your plea. I accept that protection prisoners constitute a minority group within the prison community, although approximately 27% of prisoners are now held in protection at any one time. Should you be placed in the Charlotte Management Unit, you will have fewer out of cells hours and opportunities for programs and services are limited.

50 Otherwise, in the general protection system your opportunities to participate in programs and services are roughly equal to all mainstream units. I do accept, however, that the nature of your offending, and the victims of it, make you and Mr Kassab more vulnerable to retributive attacks than most other prisoners and the time both of you spend in custody would be more anxious and therefore onerous as a result.

51 Mr Moustafa, you have not demonstrated the capacity for work and self improvement that has been demonstrated by Mr Kassab but you are still young and there is time for that. I assess your prospects for rehabilitation as good.

52 I have read victim impact statements prepared by members of the Taha family. They have lost a loved member of their family who was in the prime of his life. He has left behind both parents, brothers, sisters, nephews and nieces. Their grief is palpable and I suspect will never completely resolve. Naturally they want both of you to be sentenced for the crime of murder. I cannot do that because you have not been convicted of that crime and so the sentence I impose will seem unjust and disproportionate to their loss. This will likely compound their grief. I am obliged to take into account the impact of your offending on those victims and I do.

53 I must also give effect to the sentencing principle of general deterrence. As I have observed, you both took the law into your own hands. You were both complicit in taking a loaded revolver to a potentially volatile confrontation. Our community cannot tolerate this. Those who are inclined to settle differences with firearms and those who carry them as insurance in the event of violence must understand that a lengthy prison term awaits them. The sentence that I impose will also express the community's denunciation of your offending and the need for punishment.

54 Whilst there are many factors that distinguish your offending and backgrounds, I have concluded that it would be unjust to impose different sentences upon you. I have already said that I consider your moral or criminal culpability as about equal. Mr Kassab, you are still quite young, you have a slightly less unimpressive prior history, and you have an established work record with, if you are lucky, a business to return to.

55 Mr Moustafa, your prospects for rehabilitation may not be quite as bright as Mr Kassab's but you are still very young and if your psychologist is correct, you still have some maturing ahead of you.

56 Balancing these factors as best I can in what has been a difficult exercise, I sentence you as follows:

57 Mr Kassab, I sentence you to eight years six months' imprisonment with a minimum term of five years six months' imprisonment to be served before you are eligible for parole.

58 Mr Moustafa, I sentence you to eight years six months' imprisonment with a minimum term of five years six months' imprisonment to be served before you are eligible for parole.

59 I declare that the following has been served by way of pre-sentence detention: