R v Keshishian [2018] NSWDC 520

District Court New South Wales

Medium Neutral Citation: R v Keshishian [2018] NSWDC 520 Hearing dates: 9 November 2018 Date of orders: 11 December 2018 Decision date: 11 December 2018 Jurisdiction: Criminal Before: Neilson DCJ Decision: ICO for 2 years including 18 months home detention Catchwords: CRIME. SENTENCE.

Offender pleaded guilty (late) to a charge of taking and detaining a male victim for financial advantage (recovery of a loan) whilst in company of four other persons. Maximum penalty 20 years.

21 year old woman (24 years at sentence) of prior good character. Engaged in self-rehabilitation. Low risk of reoffending. Some assistance to authorities. Legislation Cited: Crimes Act 1900 (NSW) Category: Sentence Parties: The Crown, Rosalene Keshishian Representation: Counsel: R. A. Kimbell (Crown) J. L. Ellis (Offender) File Number(s): 2016/00009517 Publication restriction: Nil.

Sentence 1. HIS HONOUR: Each of Rosalene Keshishian, Aws Mohammad Hussein and Jade Konaraki stands before me for sentence this morning following upon a sentencing hearing that was conducted on 9 November 2018. Sentencing can be a very difficult task for a Judge. Sentencing is often described as perhaps the most difficult task for Judges. My task this morning is made even more complicated by the fact that, although the three before me this morning are co-offenders, the Crown and each offender have agreed on facts. The facts in each case are different. Indeed the facts are so different that it is necessary for me to sentence the three persons this morning individually, rather than collectively. I turn then to Rosalene Keshishian. 2. At the time of the offence in question, Ms Keshishian was 21 years old. She pleaded guilty to a charge that on 17 December 2015 at Newington in this State, whilst in the company of Aws Mohammad Hussein and Jade Konaraki and two unknown males, she did detain Jacob Aboeid, without his consent, with the intention of obtaining a financial advantage. That is an offence contrary to s 86(2)(a) of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period. The offence can be shortly described as aggravated kidnapping. 3. The victim, Jacob Aboeid, owned a silver Mercedes Benz motor car. At the relevant time that vehicle was uninsured and the victim owed the finance company approximately $81,000. In March or April 2015 the victim and the offender met and agreed to swap telephone numbers and began what is referred to as a "casual relationship". In July 2015 the offender lent $20,000 to the victim. She obtained that money by obtaining a personal loan from a bank in her name. However, beside that fact, Ms Keshishian and Mr Aboeid are not agreed as to the details of the lending agreement. The personal loan money was deposited in the offender's bank account on 29 July 2015. On the afternoon of that day both the victim and the offender visited various automatic teller machines withdrawing $20,000, which the offender then lent to the victim. Over the following few months the victim met with the offender and repaid part of the loan, including deposits into her bank account of $450 and $2,000 respectively. 4. In the second half of 2015 the offender commenced a relationship with a male identified in the statement of agreed facts as "Moe" whose identity was then unknown to the authorities. Subsequently he has been identified as Mohamad Saddick who was arrested on 6 November this year and is due to appear before the Burwood Local Court on 16 January 2019. I shall hereafter refer to Mohamad Saddick as "Moh", using the accepted abbreviation for the name Mohamad. In addition to her relationship with Moh, Ms Keshishian was a close friend of her co-offender Jade Konaraki and she knew the third of the three, Aws Hussein, who is known by the nickname "Ace". 5. On 3 December 2015 the offender sent calls to the victim suggesting that they meet. On 11 December 2015 the offender and the victim agreed to meet on the evening of Thursday 17 December 2015. The victim asked Ms Keshishian to be free on that Thursday evening. Ms Keshishian replied, "I'm always free to get all my money off you". That caused the victim to send a text message saying "okay". Text messages sent by the offender from her phone in the days leading up to 17 December demonstrate that she was upset at the victim for not having repaid to her the loan that she had made to him. 6. On 14 December 2015 Keshishian sent a text message to Konaraki stating that, "I'm going to see some boys tomorrow to fix this..." and, "I have a plan that involves you but not to [sic,scil. too] deep only to help catch a guy." On 15 December 2015 the offender met with Konaraki, Hussein and Moh and a third male remains unidentified. A plan was agreed that the offender would organise to meet the victim during which time his money and his car would be taken from him. While the group of offenders was together this offender sent the following text message to the victim: "Hey babe/how are you/I'm about to leave dinner/I was wondering if you want to go for coffee or just chill/I'm in the mood". I have inserted the slashes to indicate where full stops ought to have been located. On 16 December 2015 the offender exchanged a number of text messages with Moh which indicate that the two of them were attempting to obtain a photograph of the victim, no doubt so that Moh and those who would act with him would know what the victim looked like. 1. The agreed facts list a large number of text messages that were made on 17 December 2015. The offender's new "partner" Moh indicated that he wished to kill the victim. Moh also told the offender to "make sure when I grab him move away". The offender's response to that was "Okay babe". There was then an exchange between Keshishian and Moh as to the place of Konaraki in this crime. Moh thought any role that she had would be unnecessary, but Keshishian wanted Konaraki to be there because she was a close friend of hers. It was agreed, however, that Konaraki would be present and that she would be picked up. 2. At about 6.30pm on 17 December 2015 the offender picked up Konaraki from her house. Later that evening the two women met with Hussein, Moh and the unidentified man at a house in Guildford. They stayed for some two hours there. The offender then drove her car to Hill Road, Wentworth Point and parked. The rest of the group followed her in another vehicle but parked elsewhere. Closed circuit television shows that at 9.46 pm the victim picked up the offender in his Mercedes Benz motor car from a bus stop in Hill Road, Wentworth Point. In the lead up to that there had been an exchange of text messages between the offender and Konaraki. The first of those text messages indicated that the offender believed that the victim would turn up within the next 10 minutes and that he wished to have sexual intercourse with her. Konaraki then asked the offender to take the victim "somewhere quiet" and the rest of the group would "move fast". There are further references in the exchange of text messages to having some alfresco sexual connection. This no doubt was an attempt to entice the victim towards the offenders. 3. After the victim picked the offender up the offender suggested to the victim that they go for a walk in a nearby park. The victim felt uneasy about that, but agreed to do so. They drove to the Avenue of Oceania in Newington where the victim parked his car on the footpath. They then walked through the Louise Sauvage walkway and sat on a bench. Konaraki kept track of where they were by using an app on her mobile phone. Whilst the victim and this offender were sitting on a bench in the park the victim noticed that the offender's phone was ringing and receiving text messages. In later analysis, the offender's mobile phone revealed text messages indicating that the group were on its way to where the offender was with the victim and that Ms Keshishian was asking them to hurry up because she thought the victim would soon try to commence some sexual interaction. 4. The vehicle used by Hussein, Moh, Konaraki and the unidentified male was parked next to a bus stop on the corner of Newington Boulevard and the Avenue of Oceania. All three males got out of the vehicle and ran through the park behind the bus stop towards the bench where the victim and the offender were. Konaraki walked behind the three men and stood next to the victim's car. At this stage the victim decided that he and the offender should return to his car in order to get something to eat. They commenced walking towards his car when he observed the three males. Hussein yelled out the victim's name as they got closer. The victim who was holding the offender's hand, let go of it and ran away in the opposite direction. The three males chased the victim. They grabbed him and punched him a number of times. He was kicked in the left knee, the back and the back of his neck. He was struck a number of times until he fell to the ground. As he was lying on the ground he was being held down by two of the males. The victim asked what he had done. One of the men said, "Where's your wallet and money?" The victim replied that his wallet was in his car. The victim was then "walked" back to his car with one male standing on each side of him, holding his person with their hands. One of those two was Hussein. Ms Keshishian was walking ahead of the two men holding the victim. Ms Keshishian was in company with Moh, who had placed his arm around her. 5. The offender and Moh stopped about 10 metres away from the victim's vehicle. One of the men opened the vehicle and took $4,500 from the victim's wallet and put it into his pocket. Another of the males who was holding the victim told him to get in the car. The victim then entered the front passenger seat of the car. Konaraki got into the rear passenger seat and Hussein got into the driver's seat. The unknown male then walked to the offender and Moh and those three got into the other vehicle and drove off. The unknown male informed the offender that he had taken $4,500 from the victim's wallet. 6. Hussein drove the victim's car south on Hill Road and west along Parramatta Road before turning onto Woodville Road in the direction of Guildford. Whilst in transit the victim saw Konaraki on her mobile phone. The victim heard Hussein say to Konaraki, "Tell them to meet us at the spot". This was no doubt a pre-arranged location at which to meet. Phone records indicate that Konaraki did not communicate directly to the victim, but relayed what was occurring in the victim's car to the offender who was in the other vehicle. In one of those messages Konaraki said, "Ace is roasting him hard". In another Konaraki said to Keshishian, "I'm about to fuck him up". Keshishian replied, "Don't get involved let the guys do it." That is a clear admission that Keshishian knew that some form of force or violence was being applied to the victim. 7. Hussein parked the victim's vehicle in Warnock Park on the corner of O'Neill and Stimson Street, Guildford. The victim, Hussein and Konaraki alighted from that vehicle and the victim was told to sit down on a bench seat in the park. Hussein was standing near the victim talking to him. Shortly thereafter Ms Keshishian, Moh and the unidentified male arrived. One of the men said to the victim, "You're safe. We're not going to hurt you. Next time watch who you borrow money off, consider yourself lucky". There was some further interaction between Konaraki, Hussein, the unidentified male and the victim. However a little later a police vehicle drove past causing all those present, excepting the victim to run away. Hussein and Konaraki entered the driver and passenger sides respectively of the victim's car and drove off in it. 8. At about 11.22pm police observed the victim's vehicle being driven west on HawksView Street, Guildford, approximately 500 metres from the park where the victim had been left. The vehicle was stopped by the police on Celia Street, Guildford. Police observed Hussein in the driver's seat and Konaraki in the front passenger's seat. Hussein provided a driver's licence to the police which satisfied the police that Hussein was who he said he was. Checks revealed that the driver Hussein, ought to have been displaying a P-plate but was not and the police then issued a traffic infringement notice for not displaying a P-plate and what is stated in the facts to be "driving an illegal vehicle". It maybe that the vehicle's third party insurance or registration had not been effected. At that time the vehicle had not yet been reported to the police as stolen. After being stopped by the police Hussein and Konaraki then took the victim's car to Hussein's unit at Guilford where they met again with Ms Keshishian and Moh. 9. There is much said in the agreed facts as to the fate of the victim's vehicle. The victim attended the Auburn Police Station at 1am on Saturday 19 December and made a formal complaint to the police. On 18 December the victim had sent this message to the offender: "Hey u hope u day was better than mine. I haven't slept yet my [anxiety] is [through] the roof at the moment. I haven't got one cent to my name and just wanna let u know my intentions was always to repay the money u borrowed from bank. I don't know [why] u set me up last night...got three guys to bash me and take my car and $3,000 cash from me I've been good with Rosalene and honest with u, how do u have the heart to do that to me. Straight out I thought we were actually friends". Between 19 and 25 December 2015 the victim received a number of missed calls on his mobile phone and also accepted a call from an unidentified male who essentially warned the victim, in essence, not to make a fuss about what had happened to him. On Thursday 24 December 2015 the victim's brother located his vehicle parked in Railway Street, Yennora. 1. The offender was arrested by the police on 11 January 2016. She agreed to participate in an electronically recorded interview but provided a false account of what had occurred on the evening in question. 2. The offender has no prior criminal conviction. She stands before me as a young lady of prior good character. She was living at all material times with her mother and sister in their family home at Carlingford. She completed her High School Certificate in 2011. She sought to further her education through tertiary studies in 2012, partially completing a childcare course. In 2016 she attended a college of TAFE and completed a real estate certificate. A pre-sentence report was prepared on 15 August this year. At that time the offender had been in fulltime employment for six months and was described by her employer as reliable and a valued part of a real estate agency's team. Furthermore, the employer had been told about the offence which the offender committed, but nevertheless took her into its employ. 3. The pre-sentence report tells me that the offender saw a psychologist after her arrest in 2016 and the psychologist confirmed that he or she had diagnosed "stress and anxiety". There is nothing abnormal about that. Anybody who committed the crime that this offender committed and was facing a gaol sentence of up to 20 years imprisonment would suffer from stress and anxiety. If she did not, she would be abnormal. 4. The offender told the maker of the pre-sentence report that she was financially motivated to commit the crime, she wished to recover the money that she had lent to the victim. She claimed that the victim had threatened her and she sought to maintain that in evidence but I have grave doubts as to whether that is reliable. She told the maker of the pre-sentence report that she was desperate to recover the money, especially as she was herself unable to pay for her car which had been repossessed in the weeks prior to the offence. 5. Under the heading "Attitude to Offending" the pre-sentence report says this: "Ms Keshishian showed little insight into her actions during interviews: she showed little empathy for the victim and her statements appear to be mixed with self-concern. She stated that she was in fear for her safety leading up to the day of the offence and did not feel she had an alternative. Ms Keshishian's aunty believed her niece to have been in fear for her own and her family's safety to have sought to resolve her situation through the offence." The opinion of Ms Keshishian's aunt is completely irrelevant. It is clear that the offender planned this "debt collecting" crime because of her own lack of money, her own poor financial state. Ms Keshishian gave evidence but I did not find it to be at all convincing. Again she appeared to be more concerned about herself than she was about the victim and she sought to minimise her involvement in this offence which is one she in fact caused to come about. 1. Corrective Services have assessed the offender as having a low risk of re-offending. The assessment made on 15 August 2018 was this: "Ms Keshishian has demonstrated her ability to live a lawful community life since the offence and has developed a support network through family and employment in the community. Ms Keshishian has accepted some responsibility for her offending, however demonstrated a lack of empathy for the victim or the impact of her offending during interviews. Ms Keshishian has met the criteria for suitability for a community service order, however a suitable work placement cannot be found despite inquiries with a number of Community Service Organisers. She has identified that she would benefit from a further psychological intervention to address her criminogenic needs and has accepted referral to a psychologist. She has been open and forthcoming with details pertaining to this report." 1. The crime which this offender committed is a very serious one. The toughest penalty which the law can impose is imprisonment, the deprivation of liberty. Ms Keshishian's actions led to the victim being detained against his will for about a half hour, and led to his being bashed by three male offenders, led to his losing his money, sometimes referred to as $4,500 and sometimes referred to $3,000 and losing temporarily the use of his motor car. This offence represents vigilantism: people taking the law into their own hands. There are a number of ways in which debts can be recovered lawfully. The offender needed only to consult a solicitor, a legal aid provider, visit a Community Legal Centre or merely to consult a clerk at a Local Court in order to get advice as to what she had to do to recover the debt that was owed to her by the victim. This episode of vigilantism must be condemned as the authorities clearly establish. 2. The essence of the offence for the purpose of sentencing is the unlawful detention of the victim. Factors which bear upon the assessment of the seriousness of the offence are the period of detention, the circumstances of the detention, the nature of the person being detained and the purpose of the detention. The aggravating factor is that the offender was in company. She was in company with Konaraki a close personal friend who was there to support her and provide her with encouragement and to provide communications between the groups of offenders when they were away from each other. For example, Ms Konaraki provided communication between the offender and the group when the offender was with the victim and then provided communication between the two vehicles when the victim's vehicle was driven from Newington to Guildford. 3. The period of detention was not particularly long. The circumstance of the detention involved a bashing, the victim being forced against his will to enter his car, being driven in his own car to another park where he was detained for a short while. Fortunately, perhaps for the offender and perhaps fortunately for the victim, there is no evidence of the victim's suffering any injury. There is no evidence that he even suffered any actual bodily harm, no evidence that he suffered any bruising, abrasion, cut or black eye. 4. The offender was in company, not only with Konaraki but with three males, Hussein, Moh and the unidentified male and the presence of five against one would have caused grave fear and anxiety in the victim himself. 5. This was hardly a spontaneous crime. There was a clear degree of planning to trap the victim and to take his money and his car. The offender admitted in her evidence that she foresaw the possibility of the victim's being harmed or violence being offered to his person. As the Crown has submitted the offence is objectively very serious and moves beyond the lower end of the scale. The Crown has submitted that there is no penalty other than imprisonment appropriate for this crime and there is no resiling to that submission by the offender herself. The offender however, asks me, through her counsel, to impose an ICO. 6. I accept that the offender's risk of re-offending is extremely remote. The experience which she has had over the last three years, from the time of this offence to this sentencing hearing should draw very firmly to her attention that nothing is to be gained by living a life of crime. I am confident that she will not commit an offence of this type again or any similar offence. The prospects of rehabilitation are accordingly good. 7. The offender is now 24 years old. She is still a relatively young lady and she realises that she kept company with others which caused her to fall into committing this crime, that is her circle of friends was such that it was easy for her to plan this crime. She has stayed away from her co-offenders since the offence occurred. She must realise she should only interact with those people who are "pro-social". 8. The offender's plea of guilty was late. She was committed for trial in this court on 15 February 2017. On 24 February 2017 the matter was listed for trial on 17 October 2017. Commencing on that day, the matter was before the Court on a number of consecutive days. On 19 October 2017 Ms Konaraki pleaded guilty. However, the matter was adjourned on the application of Mr Hussein and eventually a further hearing date of 10 days was fixed commencing on 20 August 2018. The offender pleaded guilty before the second trial date on 6 July 2018. Facts were only agreed with the Crown on 29 October 2018. However a trial was still avoided so the plea has utilitarian value. I allow a 10% discount for the offender's late plea of guilty. 9. The offender gave some assistance to the authorities. Ms Konaraki provided a statement to the police which identified Mr Hussein and provided information as to the role played by Moh in the crime. After Ms Konaraki made her statement, this offender made a similar statement corroborating what Ms Konaraki said about Hussein and Moh. The statement made by this offender was made two days after Ms Konaraki made hers. In the circumstance the offender did provide some assistance to the authorities and probably led to the plea of guilty by Mr Hussein. In the circumstances I am prepared to allow a discount of 5% for the offender's assistance to the authorities. The total of the two discounts is 15%. 10. I have reached the view that, bearing in mind the objective seriousness of the offence, that a starting point for the current sentencing exercise is a sentence of two years and five months imprisonment. Applying the 15% discount and rounding down that is a sentence of two years imprisonment. 11. At the end of the sentencing hearing I asked that a sentencing assessment report be obtained for Ms Keshishian as to whether she were suitable to undertake home detention. The assessment report, now exhibit 9, says that she is suitable for home detention. In the circumstances I accede to the submissions put to me by Ms Ellis on behalf of the offender, that I should sentence the offender to intensive correction in the community. I have determined that ICO should include a term of home detention of 18 months. 12. Mr Morrisey are those remarks sufficient for your purpose? MORRISEY: Yes your Honour. HIS HONOUR: And for you Ms Ellis? Just the reasons, are the reasons adequate for your purposes? ELLIS: Yes your Honour. 1. HIS HONOUR: Rosalene Keshishian on the charge that on 17 December 2015 at Newington in this State while in the company of Aws Mohammed Hussein, Jade Konaraki and two unknown males you did detain Jacob Aboeid without his consent with the intention of obtaining a financial advantage, you are convicted. I sentence you to imprisonment for a term of two years commencing today the 11 December 2018 to be served by way of intensive correction in the community. Terms of the order are: 1. You must not commit any offence; 2. you must submit to supervision by a Community Corrections Officer; 3. you are subject to home detention for 18 months; 4. you must participate in rehabilitation or treatment program as directed by Community Corrections; 5. you are not to associate with the following persons: any co-offender; 6. you are to report to the Community Corrections Office at Hornsby today.