Director of Public Prosecutions v El Azar

[2017] VCC 2051

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00554

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELIA EL AZAR

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2017
DATE OF SENTENCE:	30 November 2017
CASE MAY BE CITED AS:	DPP v El Azar
MEDIUM NEUTRAL CITATION:	[2017] VCC 2051

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. D. Gray	Office of Public Prosecutions
For the Accused	Mr. J. McQuillan	Marcevski Lawyers

HIS HONOUR: 

1Elia El Azar, could you stand up please.  You have pleaded guilty to one charge of causing injury intentionally, and one charge of possess drug of dependence.  These offences carry the following maximum penalties.

2Causing injury intentionally, 10 years imprisonment.  Possess a drug of dependence (not for trafficking purposes) one year's imprisonment and/or 30  penalty units. 

3It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, Summary of Prosecution Opening on the plea.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I  shall now briefly summarise.

4On 3 August 2015 you and the co-accused Pasoglou went to an apartment in McKenzie Street, Melbourne.  You were looking for the victim, Matthew Nicolai.  Pasoglou had a conversation with another person, Patrick Maher.  Eventually you were able to locate the victim.  At about 9 pm the victim, Nicolai, was seen on CCTV footage arriving at 61 McKenzie Street, Melbourne and he was met by Pasoglou and Maher. 

5The victim and Maher returned upstairs to the apartment.  On entering the apartment the victim was confronted by you.  You began to list a number of matters that had made you angry including that the victim allegedly owed you money.  You produced a pair of knuckledusters and hit the victim to the head and body multiple times while demanding that he produce drugs (ice) and money.  The victim was bleeding profusely from the head.  This is the basis of the charge of intentionally cause injury. 

6The victim suffered a haematoma, lacerations and swelling to the left side of his head and tenderness to his back.  Medical assessment indicated that he had sustained at least four separate blows to the face and head.  There is no victim impact statement.

7When you were arrested you were found in possession of two Ecstasy tablets.  This is the basis of Charge 2.

8I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and the cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial. 

9You pleaded guilty at a late stage.   There is a detailed chronology tendered by the prosecution setting out the long history of this matter. 

10I accept from your plea of guilty and on all the material before me that you are genuinely remorseful.  I have been told something of your personal circumstances and these matters are set out in detail in the defence outline of plea submissions.

11You are 41 years of age.  You are single with no dependents.  You are from a close-knit family.  There has been estrangement from your mother and siblings as a result of your drug use and offending, but to the credit of both you and your family and with the assistance of a Prison Fellowship worker, Paul Itter, you are all taking positive steps to reconcile.  You had a good education having completed the VCE and you obtained a place at Melbourne University.  You did not go to university, however, rather you worked in your family's hospitality business. 

12Unfortunately you have a long history of illicit drug use.  This offending occurred in that context.  You were using "ice."  In 2015 you were working very long hours at the "Cellar Room" venue in South Morang.  You had been drug-free for about two years but in about mid-2015 you relapsed and were using "ice" again at the time of this offending.  In your drug-addled state you needed money and you believed the victim owed you money.  

13Paul Itter gave evidence on your behalf.  He is a volunteer Prison Fellowship worker at the Port Phillip Prison.  He has been counselling and mentoring you.  As I have already stated, he has assisted in helping you and family members to reconcile. 

14In his evidence he indicated that he had seen a big change in your attitude in recent times.  He said that your aims were to ultimately reconcile with your family and remain drug-free.

15A number of urinalysis test results were tendered on your behalf which indicate you have been essentially drug-free whilst in custody.  You have also been using your time in custody in a most constructive manner. 

16It is to your credit that Paul Itter was prepared to give evidence on your behalf today.  I accept his evidence and as I said to him a few moments ago, I was greatly assisted by his evidence.

17I assess your prospects of rehabilitation as being reasonable.  Against these matters in mitigation however your actions were very serious indeed.  This was a vicious attack on the victim.  You were demanding drugs and money. 

18

You have admitted before me numerous prior convictions.  There are a significant number of court appearances between 1 July 2014 and

25 November 1996 involving convictions for many drug offences, motor vehicle offences, offences of dishonesty and criminal damage.  These numerous prior convictions reflect your long history of illicit drug use. 

19The principle of parity is important.  I sentenced the co-accused Dennis Pasoglou, on 23 February 2017, to eight months imprisonment on the charge of causing injury intentionally. 

20I have had regard to your respective roles, personal circumstances, antecedents and prospects of rehabilitation.  Whilst your role was greater than that of Pasoglou, you were both participating in a joint criminal enterprise.

21There are 192 days of pre-sentence detention.  The principle of totality is also highly relevant having regard to your incarceration for unrelated matters after this offending.  This offence was committed on 3 August 2015. 

22

As a result of other offending you were in custody from 19 August 2015 until

4 March 2016 when you were convicted and sentenced to nine months imprisonment at the Melbourne Magistrates' Court and a 12 month Community Corrections Order was imposed.  The pre-sentence detention in relation to this sentence was 212 days. 

23You were released on 4 May 2016.  You returned to police custody on 5 May 2017 for unrelated matters.  These will ultimately be the subject of a contested hearing at the Broadmeadows Magistrates' Court on 15 December 2017.  Bail was revoked in respect of these matters on 22 May 2017.

24As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.  Specific deterrence is relevant having regard to your long criminal history.  General deterrence is also of considerable importance in a case such as this.  This type of offending must be discouraged. 

25I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.  It is not in issue that an immediate custodial sentence must be imposed.  It was submitted on your behalf that I ought to impose a period of imprisonment not requiring a non-parole period and I ought pay particular attention to the principle of parity.  It was submitted on behalf of the prosecution that as a result of your role you were more culpable. 

26Whilst I agree you had a greater role I must also take into account that this was a joint criminal enterprise and as I have already stated I must take into account the differing personal circumstances, antecedents and prospects of rehabilitation and in your case, the principle of totality is highly relevant.

27Charge 2 possess drug of dependence is a relatively minor matter.  You were in possession of two Ecstasy tablets.  In all the circumstances, I have decided to make the sentence on Charge 2 wholly concurrent with the sentence on Charge 1.

28Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows:

29Charge 1, you are convicted and sentenced to nine months imprisonment.

30Charge 2, you are convicted and sentenced to seven days imprisonment. 

31I direct that the sentences be wholly concurrent.  The total effective sentence is nine months imprisonment.

32As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have spent in custody is - do I declare 192 or 193 days?

33MR GRAY:  192, Your Honour.

34MR McQUILLAN:  I agree with that, Your Honour.

35HIS HONOUR:  Yes, is 192 days, which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court. 

36There is a disposal order sought by the prosecution. I shall make the disposal order. Pursuant to s.6AAA of the Sentencing Act I state that the sentence and non-parole period I would have imposed but for the plea of guilty is sentence 15 months, non-parole period 10 months imprisonment. 

37MR GRAY:  As Your Honour pleases.

38HIS HONOUR:  Does that cover all the formalities?

39MR McQUILLAN:  It does, Your Honour.

40HIS HONOUR:  Are you right with that PSD Danny?

41ASSOCIATE:  Yes, Your Honour.

42HIS HONOUR:  192, okay.  Thanks a lot for your help Mr Gray, Mr McQuillan.

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