Director of Public Prosecutions v David El Zein
[2015] VCC 1465
•23 October 2015
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| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01951
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID EL ZEIN |
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JUDGE: | LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 OCTOBER 2015 | |
DATE OF SENTENCE: | 23 October 2015 | |
CASE MAY BE CITED AS: | DPP v David El Zein | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1465 | |
REASONS FOR SENTENCE
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Subject: Theft
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Triandos | Vaille Anscombe Acting Solicitor for Public Prosecutions |
| For the Accused | Mr D. Holding | Stary Norton Halphen |
HER HONOUR:
1 You, David El Zein have been convicted, after trial, of one count of theft. The maximum penalty for this offence is 10 years imprisonment.
2 The prosecution alleged that you appropriated a Samsung mobile telephone and an iPhone that belonged to the complainant, Muhammad Rashid. You denied that you took the iPhone but did not dispute that you took the Samsung mobile phone. Having considered the whole of the evidence, I am not satisfied beyond reasonable doubt that you took the iPhone.
3 Mr Rashid advertised his Samsung mobile telephone for sale on the Gumtree Internet website. On 2 May 2014 he received some text messages from you. Mr Rashid told you that he lived at 6/70 Cornwall Street, Brunswick West. A week later on 9 May you telephoned Mr Rashid again asking about the Samsung phone he had previously advertised. Mr Rashid told you that you could come and look at the phone after ten o’clock that night. At 10.34 pm you telephoned Mr Rashid and said that you were outside.
4 You gave evidence that when you sent Mr Rashid the text message on 2 May 2014[1], you asked for permission to put your SIM card in the Samsung mobile telephone so you could “lure Mr Rashid back to the car so that [you] could act out [your] plan to take off with the phone.”[2]
[1] A screen shot of this email was tendered as exhibit 2 on the trial.
[2] Transcript p 119.
5 You said that when you met Mr Rashid in Cornwall street, you told Mr Rashid that you had your SIM card in the car and asked whether you could put the SIM card in the Samsung phone. When you went to the side of your red Ford motor vehicle, you asked him to “jump in”. Mr Rashid went to the passenger side. You gave evidence that “At that point I had the passenger side and the two back doors locked but I had my door unlocked. I had the handbrake down. I had it in first gear. I had the keys in the ignition. I started the car and I took off.” [3] You subsequently sold the Samsung phone on Gumtree.
[3] Transcript p 122.
6 The facts in this case are very serious. Your behaviour was shameful. The aggravating aspects include the element of pre-planning, the fact that you committed the offence late at night and that at the time of offending you were serving an 18 month Community Correction Order (the Community Correction Order) which had been imposed at the Broadmeadows Magistrates Court on 20 January 2014.
7 No victim impact statement has been tendered in this matter. I am satisfied from the evidence that the complainant gave at the trial that there was considerable suffering on the part of the complainant as a result of your actions.
8 As has been pointed out by your counsel, there are however some mitigating factors. I take it into account in your favour that you intimated your intention to plead guilty to the charge on 25 August 2015. The trial commenced on 12 October 2015. I accept your counsel’s submission that your offer to plead guilty to the charge of theft indicates some remorse for your actions.
9 I have been told something of your personal history and your circumstances. You were born on 6 July 1987 and are 28 years old.
10 You have two older brothers aged 30 and 32 respectively and a younger sister who is 23 years old. Your mother is a housewife and your father works as a mechanic.
11 You grew up in the Brunswick area and went to local catholic schools. You completed VCE at St Joseph’s college. You played football from the ages of 10 to 18. You completed a six month pre-apprenticeship course at Kanga Tafe. You obtained an apprenticeship with a friend of your father. The apprenticeship fell through because your father’s friend was Lebanese and could not speak English. There were problems with communication and he was dissatisfied with the manner in which you completed your tasks.
12 You wanted to be a carpenter. In your mid-twenties you were employed as a labourer at Princess Park. Between 2007 and 2013 you worked for six years for a firm called Bass making cabinets.
13 You started using cannabis at the age of 19. You went clubbing, tried the drug ice and became addicted to it. You told your counsel that it made you feel happy and relieved problems of self-esteem.
14 You have admitted before me to prior convictions. There are 12 such convictions, involving two court appearances between May 2013 and January 2014. The nature of some of those prior convictions, in particular the convictions for robbery, theft and obtaining property by deception are such that they are highly relevant to my task of sentencing you today.
15 The charges of theft which were dealt with in the Heidelberg Magistrates Court on 15 May 2013 relate to the theft of petrol when you left petrol stations without paying for the petrol.
16 The offences dealt with by the Broadmeadows Magistrates Court on 20 January 2014 included a charge of robbery and two charges of theft. A victim placed an advertisement on the Gumtree Internet site wishing to purchase mobile phones. You arranged to meet the victim at the rear car-park of the Duke of Edinburgh Hotel at 431 Sydney Road, Brunswick. At 9.45 pm on 7 August 2013 you knocked on the victim’s driver side window. The victim went out of his car and wanted to check the phones prior to purchase. You demanded that he give you the money first. To reassure you, the victim removed $500 from his wallet and showed it to you before placing the money in his jacket pocket. You then dropped the iPhone boxes on the ground and grabbed the victim by the collar of his jacket and said “Give me the money now.” The victim was in shock with fear and did not resist. The iPhone boxes which you had dropped did not contain any iPhones.
17 One of the charges of theft dealt with by the Broadmeadows Magistrates Court on 20 January 2014 was for the theft of fuel. The other charge related to the theft of a mobile phone in similar circumstances to the offence the subject of this indictment. On 11 July 2013 the victim advertised his iPhone on the Gumtree internet site. You telephoned the victim on 12 July 2013 and arranged a time to look at the phone. You attended the victim’s work address. When the victim pulled the phone out of his pocket, you grabbed the victim by the left hand or wrist and grabbed the telephone. You were a passenger in a vehicle. The driver of the vehicle accelerated and drove away with the telephone in the car.
18 The charge of obtaining property by deception related to another occasion where the victim advertised his iPhone on Gumtree. You gave the victim an envelope which contained four $100 notes which were counterfeit notes.
19 You were charged in relation to this matter on 20 May 2014 and granted bail on 23 July 2014.
20 Whilst you were on bail for this matter, you were dealt with in the Melbourne Magistrates Court on 28 May 2015 for three charges of theft and one charge of shopsteal. You were remanded in custody for a period of 75 days. The learned Magistrate sentenced you to a period of imprisonment of 60 days. The learned Magistrate stated that “the time held in custody was 75 days reckoned as a period of imprisonment already served under this sentence”.
21 The thefts dealt with in the Melbourne Magistrates Court on 28 May 2015 were committed on 12 October 2014, 14 November 2014 and 25 February 2015. The shopsteal related to an offence committed on 23 June 2013. Each of the thefts committed on 14 November 2014 and 25 February 2015 related to the theft of Samsung mobile phones which the victims had advertised on Gumtree.
22 As part of the Community Correction Order, you attended 10 sessions for treatment for drug abuse at the Regent centre which was not successful. Your counsel advised that you have been clean in gaol. I am told you desire to cure your addiction. I do accept that, though what I find more difficult to accept is that you will be able to do so. It is hoped that the time you have spent in custody in relation to these offences together with the support of your family will enable you to extricate yourself from your addiction to methylamphetamine.
23 A letter by your brother, Dory El Zein, was tendered on your behalf.[4] He stated that you have the support of your family and will be able to return home to be with your family in a positive environment when you are released from custody. You have received an offer of employment. It involves delivery work with Autotech delivering auto parts. It will be necessary for you to obtain a licence. Although you do not have a licence at the moment, you are not disqualified from driving.
[4] Exhibit 1.
24 Your counsel submitted that you have a home to go to and family support. Your father was present in court to support you.
25 I am, on balance, satisfied that the chances of your rehabilitation are reasonable provided that you are able to overcome your addiction to ice.
26 However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
27 Your counsel conceded that it was apparent from your prior criminal history that you developed a method of obtaining phones advertised on the Gumtree internet site by deception. He submitted that your prior offending was related to drug addiction. In the last two years you have become an ice addict and were attempting to get $450 a day to feed an addiction to ice.
28 Your counsel referred to the “jump effect” referred to in D. A. Thomas, Principles of Sentencing : the sentencing policy of the Court of Appeal Criminal Division (1979). The learned author stated that where people have been repeat offenders with the same type of offences the sentences received for similar offending should increase in length by gradual stages rather than by a sudden large jump. Your counsel submitted that there should not be “too big a leap” from the longest sentence to which you had previously been subjected. You had previously received a term of imprisonment of 20 days for each charge of theft and a total term of imprisonment of 60 days.
29 In terms of the level of your crime, your counsel submitted that your crime was not at the higher level of theft taking into account the fact that the value of the Samsung telephone which you had stolen was $270. Your counsel conceded that the aggravating features of your crime included the element of preplanning and that the offence was committed whilst you were serving a Community Correction Order. Your counsel conceded that the fact that the theft was committed late at night would have been upsetting for the victim but submitted that it was just an act of trickery and that there had been no physical threat. I accept your counsel’s submission that in terms of theft, your offending falls in the mid-range level of theft.
30 The prosecution submitted that taking into account the aggravating circumstances, your crime falls within the mid-range level of the offence of theft. The prosecution submitted that a term of imprisonment is warranted to address general and specific deterrence but did not take issue with the submissions made by your counsel.
31 As well as that, I would add that I cannot ignore what has occurred since you committed these offences. On 1 July 2015 riots took place at the Melbourne Metropolitan Remand Centre. Following the riots, the conditions for prisoners remanded at the Metropolitan Remand Centre have worsened. You have been imprisoned on remand in a cell for 23 hours a day which has been extremely difficult. I accept your counsel’s submission that the conditions that you experienced whilst on remand made the experience of imprisonment more burdensome on you and it is a matter I take into account in your favour in mitigation of sentence.
32 This is without doubt a serious offence. In all the circumstances I have no alternative to the imposition of a custodial sentence. I propose to record a conviction on the count of theft and sentence you to be imprisoned for a period of 131 days.
33 Your counsel submitted that on 28 May 2015 you were sentenced to 60 days imprisonment despite having spent 75 days in custody. He submitted that I should take the extra 15 days into account in sentencing you for this matter as Renzella time. In R. v. Renzella[5] the Court said that presentence detention to which s 18 does not apply is to be taken into account in the exercise of the court’s discretion. It should ordinarily be taken into account at the first opportunity. Mr Holding referred to R v Wade[6], in which Maxwell P stated:
In my opinion, persons standing for sentence are entitled to expect that, where a submission is made that an amount of pre-sentence detention should be taken into account, the sentencing Judge should clearly state that the matter has been considered, whether or not it affects the final result… The necessity for that specification is to inform the court which will be dealing with the unrelated offence on a later date (assuming the person to have been convicted of it). The later court needs to know that there is a part of that detention period which was not taken into account on the previous occasion, such that it remains to be taken into account in accordance with s.18.
[5][1997] 2 V.R. 88.
[6][2005] VSCA 276
34 Your counsel submitted that the extra 15 days had not been taken into account by the Magistrate, and in accordance with the requirements of Renzella and Wade it was appropriate to deal with the time in the current matter.
35 However, the updated criminal record[7] clearly indicates that the Magistrate did take the 15 days into account, the record reading:
Effective total state term imposed is 60 days. Time held in custody, 75 days, reckoned as a period of imprisonment already served under this sentence.
[7] Exhibit B
36 In the circumstances, I consider that it is inappropriate to take into account the 15 days served in relation to the 28 May 2015 matters in sentencing you in the current matter.
37 I declare that the period of 131 days pre-sentence detention be reckoned as time already served under the sentence I have imposed. I order that there be noted in the records of the Court the fact that such a declaration was made together with its details.
HER HONOUR: Are there any further matters?
MS CAVLEA: No, Your Honour.
MR HOLDING: No, Your Honour.
HER HONOUR: Now I order that he be taken into custody.
VOICE: (Indistinct).
HER HONOUR: Sorry?
VOICE: (Indistinct) given the list from downstairs.
HER HONOUR: Yes.
MR HOLDING: Yes, Your Honour.
HER HONOUR: Thank you. Yes, could you please take Mr El Zein into custody.
MR HOLDING: And if I could just approach very quickly just for - - -
HER HONOUR: Yes, thank you. I might leave the Bench.
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