District Court New South Wales Medium Neutral Citation: R v Konaraki [2018] NSWDC 521 Hearing dates: 9 November 2018 Date of orders: 11 December 2018 Decision date: 11 December 2018 Jurisdiction: Criminal Before: Neilson DCJ Decision: ICO for 18 months, including 600 hours community service. Catchwords: CRIME SENTENCE Offender pleaded guilty (late) to taking and detaining a male victim whilst in company with four others. Of three offenders involved in the same offence, this offender was first to plead guilty. Offender also offered assistance to the authorities. Total discount allowed at 25%. Young female 20 at the time of offence, 23 years at sentence. Very minor role in offence. No prior conviction. Good work history. Very low risk of reoffending. Legislation Cited: Crimes Act 1900 Cases Cited: Barlow v R [2008] NSWCCA 96 Category: Sentence Parties: Jade Konaraki, the Crown Representation: Counsel: R. A. Kimbell (Crown) P. Murphy (Offender) File Number(s): 2016/00109168 Publication restriction: Nil SENTENCE 1. HIS HONOUR: Jade Konaraki stands for sentence as a consequence of having pleaded guilty to a charge that on 17 December 2015 at Newington in this State, while in the company of Aws Mohammed Hussein, Rosalene Keshishian, and two unknown males, 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. 2. At the time of the offence the offender was aged 20 years. The victim, Jacob Aboeid, met Rosalene Keshishian in early 2015 and they began a short relationship. In July 2015 Keshishian and the victim were discussing money inside the victim's vehicle at La Perouse. That vehicle was a Mercedes Benz motor car. Keshishian decided to obtain a loan on behalf of the victim as the victim did not have a clean credit rating. Approval was granted by the Commonwealth Bank for the loan to Keshishian. On 30 July 2015 the victim and Ms Keshishian attended various automatic teller machines withdrawing $20,000 in cash which was then given to the victim. The victim agreed to pay to Ms Keshishian $500 per month in order to repay the loan. Over the ensuing few months the victim paid part of the loan monies back to Keshishian. 3. On or about 3 December 2015 the victim received calls from Keshishian suggesting that they meet. They agreed to meet on 17 December 2015. However text messages on Keshishian's phone indicate that she was upset with the victim for his not having paid her the loan repayments in full and indicating that the amount owed was sufficient to pay off the loan that she had on her own car. Keshishian therefore set up a meeting with the victim and planned with Mohammed Sadiq, who was known as Moh, to take the victim's money and the victim's car. On 17 December 2015 there was an exchange of text messages between Keshishian and Moh. Part of that exchange concerned Ms Keshishian arranging for Konaraki to be present at the time of the planned offence. Text messages exchanged between the current offender and Keshishian indicate that Konaraki wished to be present. 4. At approximately 9.46pm the victim picked up Keshishian in his Mercedes motor car from a bus stop on Hill Road, Wentworth Point. This was on 17 December 2015. Prior to that Keshishian had been in contact with Konaraki and a number of exchanges occurred. In essence Keshishian told the offender that she anticipated that the victim would be present within the next 10 minutes and that the victim was anticipating or desired to have some sexual connection with Keshishian. Konaraki replied that the victim would be followed and the group that were following him would "move fast". Further text messages indicated that Keshishian expected there to be some desire by the victim to have some sexual relationship with Keshishian and that the group following the victim was to act quickly. 5. When Keshishian was picked up she 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. He drove to the Avenue of Oceania in Newington and they then walked around until they found a park bench on which they sat. Keshishian and the victim then began kissing. Whilst that was occurring the victim noticed that Keshishian's phone was ringing and receiving text messages. Keshishian told the victim that she was receiving text messages from her girlfriend who was having "boyfriend problems". In fact the exchange between Keshishian and the current offender concerned the need for the group to hurry quickly to where Keshishian was with the victim because Keshishian anticipated some attempt at sexual activity very shortly. However the victim decided not to engage in some form of sexual activity but to obtain something to eat for which purpose he and Keshishian needed to return to his motorcar. 6. It was at this stage that the victim observed three males, of Middle Eastern appearance, who included Aws Hussein, Moh and an identified male, were approaching him. The victim was then grabbed by the males and punched a number of times. He was kicked in his left knee, in his back and in the back of his neck. He was struck a number of times until he fell to the ground. As he was laying on the ground he was held down by two of three men who held onto his shoulders and hands. The victim felt something pushed into the back of his neck which he thought was a cold piece of metal but he did not know what it was. It may have been designed to frighten the victim. One of the males said, "I should kill you, you dog. You owe my sister money". The victim asked what he had done and Keshishian replied, "Fuck you, you cop it and I'm taking your car too". One of the men then asked the victim where was his wallet and the victim told them that it was in his car. 7. Whilst the assaults and verbal threats were occurring Konaraki was waiting at the car park. The victim was then walked back to his car, one of the men standing on each side of him, holding on to him. The Crown contends that one of those males was Hussein. Keshishian was walking ahead with another male and they were laughing. As the group of people approached the victim's car one of the males opened it, found the victim's wallet and removed from it $4,500 and put it into his pocket. The victim was then told to get into the car by one of the men. He sat on the back seat. Konaraki got into the front passenger seat and one of the males drove the vehicle whilst another sat next to the victim. The Crown case is that one of the males was Hussein. The victim was told to keep his head down as he was being driven in his own car. Keshishian and another male left in another vehicle. 8. Whilst the victim's car was being driven the victim saw Konaraki use her mobile phone. The victim overheard the driver say to Konaraki, "Tell them to meet us at the spot", which indicates that there had been prior agreement as to where the two vehicles should be driven. Records indicate that Konaraki did not communicate with the victim but relayed what was occurring in the victim's car to Keshishian who was in the other vehicle. One of the text messages sent by Konaraki to Keshishian indicates that Hussein was "roasting him hard". Konaraki went on to send messages to Keshishian indicating that the victim was being "a little bitch" and that he was a "scared man". One message sent by Konaraki to Keshishian was this: "I'm behind him and I'm about to smash the cunt". Later Konaraki said to Keshishian, "I'm about to fuck him up", to which Keshishian replied that Konaraki should let the "guys do it". Clearly Ms Konaraki was excited or incited by what was happening to threaten violence herself to the victim. 1. The victim's vehicle was stopped at a park on the corner of O'Neill and Stimson Street in Guildford. The victim, Konaraki, Hussein and an unknown male alighted from the victim's vehicle and the victim was told to sit down on a bench seat in the park. Konaraki did not directly engage with the victim and was made to stand back away from him. One of the men then 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". Although the last statement implies a threat the earlier words must have been a cause of some relief to the victim. A little later Keshishian was sitting with the victim on the bench seat. She then stood in front of him and said to him, "You got what you deserved". The victim said, "Sorry if I hurt your feelings in some way or said something to wrong you, I just don't understand". Keshishian then left. Hussein and Konaraki then entered the driver and passenger side of the victim's vehicle and drove off. The victim walked home. 2. A few minutes later New South Wales Police observed the victim's vehicle in Hawkesview Street, Guildford approximately 500 metres from the park in which the victim had been left. The vehicle was stopped by the police in Guildford and the driver, Aws Hussein, as asked to produce his driver's licence which he did. He was a P-plate driver and there were no P-plates on the victim's Mercedes Benz. For that Hussein received a traffic infringement notice. While the police were interacting with Hussein, Konaraki sent Keshishian a number of text messages advising that they had been stopped by the police. 3. The victim attended Auburn Police Station at 1am on Saturday 19 December 2015 and made a formal complaint to the police about what had happened to him. At 2am on that morning police attended Ms Keshishian's address to speak with her. When asked what had happened Ms Keshishian said that she had no comment to make. Between 19 and 25 December the victim received a number of calls on his mobile phone from a private number, from a mobile service ending in 062, regarding the night of the incident, reporting the matter to police and the property taken from him. 4. On Thursday 24 December, Christmas Eve, the victim's brother unexpectedly located the victim's vehicle at Railway Street, Yennora. On Christmas Day the victim received a phone call from the mobile ending 062 and the male who is unidentified asked the victim about his car. The victim lied to the male and told him that he did not know where his car was. The male asked the victim to call the police and tell them that the keys of the vehicle had been handed over freely. The victim then terminated the call and disconnected his mobile number because of concerns he had for his and his family's safety. 5. Ms Konaraki voluntarily attended Auburn Police Station on 2 April 2016 and was arrested. When advised about the allegations that had been made Ms Konaraki replied, "Yes, but doesn't it matter that I was only standing back". Ms Konaraki agreed to participate in an interview. In the interview Ms Konaraki denied knowing that her co accused intended to steal the victim's vehicle but later the searching of the text messages indicated that she did. 6. Ms Konaraki was committed for trial in this Court on 15 February 2017. On 24 July 2017 the matter was set down for hearing on either 16 or 17 October 2017 with an estimate of ten days. The matter was listed on consecutive days in this Court and on 19 October 2017 the offender pleaded guilty. She was the first of the current offenders to plead guilty. The plea of guilty has utilitarian value. The Crown has submitted that I should allow no more than a 10% discount for the late plea of guilty. However her plea has greater utilitarian value than that. It was because she pleaded guilty, I infer, that the other two offenders pleaded guilty. She broke the resolve of her co offenders to maintain their denial of responsibility for the crime. In the circumstances, I allow a 15% discount for the offender's plea of guilty. 7. The offender has also given assistance to the authorities. The offender provided a statement to the police, two days before Mr Hussein's matter was listed for trial. The statement identified Hussein as a co offender and provided a description of other males but did not identify the person now known to be Mohammed Sadiq. The Crown has submitted that the assistance provided by the offender, was relatively low. However, her statement in conjunction with the statement made by Keshishian, and other evidence, persuaded Hussein to plead guilty. The Crown has submitted that I would allow a discount of between five and 15% for the offender's assistance. I believe it appropriate in the circumstances, to allow a discount of 10% for the assistance provided by Ms Konaraki, and therefore the total sentence on her discount, will be 25%. 8. There was clearly a degree of planning involved in this offence but none of the planning appears to have been carried out by the current offender. She agreed to be and wanted to be present, in order to give support and encouragement to her then close personal friend, Ms Keshishian. The offender's role in this offence, was essentially to facilitate communication. She was communicating with Ms Keshishian, when Ms Keshishian was alone with the victim, and when the group of offenders and the victim, were in separate cars, moving from Newington to Guildford, she maintained communication between the two vehicles. 9. The period of detention appears to have been roughly a half hour, between roughly 10pm and 10.30pm. The victim was subjected to a significant degree of physical violence and his life was threatened. However, there was no participation by this offender in any of those activities. Nevertheless, by her plea of guilty to the joint criminal enterprise that actually took place, she accepts some responsibility for those acts of violence and I have sought to show, in quoting some of the text messages, she was actively encouraging violence. This offence was clearly carried out for the purpose of financial recompense for Ms Keshishian and there is nothing to suggest that the current offender obtained any financial benefit herself. 10. Clearly, the offender was involved in an act which can be described as vigilantism. In Barlow v R [2008] NSWCCA 96, Hall J said at [40]: "The nature of the conduct by the applicant could be correctly identified in the remarks on sentence, as having been in the nature of 'vigilante' conduct. The seriousness of the offence in question, despite the purpose or motivation having been revenged for alleged sexual assault by the victim upon her some six years before, involved a deliberate course of conduct, in company with another, whereby the applicant decided to act outside the law in seeking retribution for what she alleged had been done to her by the victim. Such conduct, as the sentencing judge correctly identified, is the antithesis of what is required in society based on the rule of law and is to be denounced in the strongest terms." That which his Honour said was agreed to by McClellan CJ at CL and Price J. Of the three offenders standing before me today, Jade Konaraki's behaviour was the least criminal of the three and her moral responsibility for what happened, is less than those of her two co offenders. She was clearly motivated by a false sense of loyalty to Ms Keshishian. Common sense ought to have indicated to her that what was to be done was very wrong and contrary to the law. 1. The offender is currently single and has no dependents. She is the elder of two siblings who were born and raised in Australia. When the pre-sentence report was made on 28 February she was living with her brother and mother and step-father at Rydalmere. She expressed a high level of contentment with her then domestic arrangements pointing out that she had moved back home in 2017 for family support due to the feelings of anxiety which she felt about the current court proceedings. 2. Ms Konaraki left school at the end of year 10 with the School Certificate. She subsequently obtained credentials in hairdressing and beauty treatments. She has a Certificate III in Beauty Services and Certificate II in work and training. The pre-sentence report says this: "It appears that Ms Konaraki has maintained a continuous employment regime in conjunction with her studies. She formerly worked as a shift manager at a coffee shop and is currently employed on a 28 hour part-time contract stock filling in a department store, retaining the latter role for approximately two years." Ms Konaraki gave evidence. She told me that she had now been working for Kmart at Top Ryde for three years. Her plans for the future are for a career working with disadvantaged children. At the time the pre-sentence report was prepared it seemed to Community Corrections that Ms Konaraki was leading a pro-social lifestyle, that she had been doing voluntary work for over two and a half years providing for Sydney's homeless population three times each week. I was impressed by Ms Konaraki's evidence and believe that the prospects of rehabilitation are excellent and that, therefore, the risk of her reoffending is low. Such was also the assessment of Community Corrections. 1. In her evidence Ms Konaraki told me that Ms Keshishian had been her best friend and that Mr Hussein was a friend of Moh and that is how Ms Keshishian came to meet Mr Hussein. In the pre-sentence report is this matter: "Ms Konaraki advised that she did not have a familiar relationship with the three male co-offenders, who were rather the companions of her female co-offender she formerly considered a good friend. She claimed not knowing the male counterparts were involved in anti-social behaviours and had no foresight into the extent of their intentions to inflict harm when she agreed to become involved in support of her friend and female co-offender. She purported that her female co-offender, who had former relations with the victim, expressed her intentions to acquire money the victim previously owed. Ms Konaraki claimed her involvement in the commission of the offence was misguided by her loyalty towards the co-offender in fulfilling her intentions, not for personal advantage or to inflict violence in any sense." That is my assessment also of the evidence before me, subject only to the observations that the language used by the offender indicates that she was "excited or incited" by what was occurring around her to say what she said. There is no evidence, however, that she, herself, offered any violence to the other than telling Ms Keshishian that she would offer some violence to him. 1. The pre-sentence report indicates that the offender was suitable for a community service order. As to supervision this was said: "The offender is unlikely to benefit from a period of supervision by Community Corrections due to being assessed as a low risk of reoffending, which would deem her ineligible for acceptance into the programs facilitated by Community Corrections. It would, however, appear Ms Konaraki has the capability to utilise services available in the community to further her mental health concerns and has since scheduled an appointment with her former psychologist." Earlier the report had suggested that the offender does have some mental health problems although it appears to me that these had been likely to have been outgrown by the offender with her increasing maturity. I 1. It has been urged upon me by Mr Murphy who appears for this offender that an Intensive Corrections Order would be appropriate in this young lady's case. She is now 23 years old. I have reached the same conclusion. 2. I start this sentencing exercise with a head sentence of two years imprisonment. I discount that by 25% because of the plea of guilty and the assistance given to the authorities by the offender. A 25% discount reduces the head sentence to 18 months imprisonment. That can be served by way of Intensive Corrections in the community. I shall also order the offender to undertake 600 hours of community service. 3. Those reasons adequate? MURPHY: Yes thank you your Honour. HIS HONOUR: Mr Morrissey, adequate for your purposes? MORRISSEY: Yes your Honour. HIS HONOUR: Thank you, thank you I will make the orders now, sorry. MORRISSEY: Were there any extra conditions on the ICO-- HIS HONOUR: Yes there will be. 1. Jade Konaraki, on the charge that on 17 December 2015 at Newington in this State while in company of Aws Mohammed Hussein, Rosalene Keshishian 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 one year and six months commencing today, 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 Community Corrections' officer; 3. You must complete community service work for 600 hours; 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 of your co-offenders; 6. You are to report to the Community Corrections' office at Parramatta within seven days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2019