Director of Public Prosecutions v El Hamzah

[2018] VCC 939

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01589

DIRECTOR OF PUBLIC PROSECUTIONS

v

BASSIM EL HAMZAH

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 June 2018
CASE MAY BE CITED AS:	DPP v El Hamzah
MEDIUM NEUTRAL CITATION:	[2018] VCC 939

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle
For the Accused	Mr J. Desmond

HER HONOUR:

1Bassim El Hamzah, you have pleaded guilty before me to two charges of handling of stolen goods, one charge of intentionally causing injury, one charge of reckless conduct endangering life, one charge of reckless conduct endangering serious injury and one charge of assaulting a police officer in the due execution of his duty. 

2You also pleaded guilty to summary charges uplifted for hearing pursuant to s.145 of the Criminal Procedure Act 2009 of resist police and possessing a cartridge ammunition without a license.

3The facts underlying your offending are as follows.  On 17 December 2016, a black Mercedes E250 Coupe belonging to a real estate agency was stolen from the carwash where it had been sent.  On 5 January 2017, a silver Mercedes was stolen from the home of the owner when he went inside to change his shoes.  On 6 January 2017, registration plates to a silver Mercedes were stolen from the car which was parked out in the street outside the owner's home.

4By late December 2016, you were in possession of the black Mercedes, which underlies Charge 1 on the indictment, handling stolen goods.  You wanted to store it at the home of the victim's girlfriend.  The victim's name was
Mahmood Regarb and his girlfriend's name was Silvia Hunter.  Via a series of text messages on 26 December 2016, you asked Ms Hunter if you could store the car there and one evening at about 10.30 pm you drove to her house without first calling.

5You told Mr Regarb you had spoken to Ms Hunter about it and as Ms Hunter had been away from home for several days because she and Mr Regarb were fighting, he consented.  You told Mr Regarb you had been in a police chase and you wanted to store the car there until the next day and you parked the vehicle in the backyard, saying you would return.  However, you did not return the next day and two days after leaving the Mercedes at her home, Ms Hunter returned, asked Mr Regarb about the car and made a number of successful attempts to contact you to take it away.

6A few days later, you turned up at her house with a friend, at which time you were bleeding and in pain, but said you did not have the key to the Mercedes and would come back the next day to get it.  You turned up the next day, but did not have the key.

7On 7 January 2017, you returned again to collect the car and drove it to the front of the house. You then told Mr Regarb there was a problem with the brakes which needed replacing.  Mr Regarb offered to pay and went to purchase some, and the brake pads were replaced, but due to a further mechanical issue, the car would not start.

8On 8 January 2017, you returned again, asking Mr Regarb to help you repair the Mercedes, but you were unable to get it started and you then noticed he had a Volkswagen Golf.  You asked if you could use it.  Mr Regarb said no and you became angry and left.  Later that day, Ms Hunter went out leaving
Mr Regarb at home alone and at about 8.30 pm, you returned to the house and Mr Regarb heard you calling out to him.

9He opened the front door, but heard the back gate being kicked, went to the back door and saw you standing in the back yard.  You said he told you he knew you had kicked the gate, that you were being disrespectful and you responded angrily, telling him to hand over the key to the Volkswagen, and
Mr Rejarb again refusing.

10You called out to a waiting friend to come to the back gate.  A male then appeared.  You and Mr Regarb continued to argue and you then produced a small, black handgun, which you pointed at him, telling him you were going to shoot him.  Mr Regarb said he was not giving you the key and "to do it."  You then fired a single shot, striking Mr Regarb in the lower leg.  Mr Regarb swore at you, picked up a broom or a shovel, which he threw at you and you then fired another shot, striking Mr Regarb in the upper right leg.  These actions underline Charge 2 on the indictment, intentionally causing injury.

11Mr Regarb ran into the house.  You fired a bullet at him through a side window before walking around the property firing multiple bullets into the house.  These actions underline Charge 3 on the indictment, reckless conduct endangering life. 

12Mr Regarb hid in a bedroom until you left, then called Ms Hunter who returned home and found him lying in the driveway.  She drove him to the
Northern Hospital where he was treated for injuries, they being two injuries to his right leg, commonly referred to as "through and through bullet wounds."

13Police attended the premises and examined the scene, finding a series of fired casings and un-fired bullets around the premises, including from retrieval of spent and unspent ammunition from the porch windows, a couch and a couch inside the house.

14On the morning of 9 January 2017, police saw you driving the stolen grey Mercedes, which actions underlie Charge 4 on the indictment, handling stolen goods.  At this time, the car was bearing the registration plates which had been stolen from the third Mercedes on 6 January.  Police pursued you along various suburban streets which had a limit of 50 kilometres per hour, they measuring your speed at times reaching 110 kilometres per hour.

15They tried to intercept you, but you failed to stop, instead entering the east bound lanes of the Princes Freeway where you further accelerated.  At this time, police terminated the pursuit after estimating you to be driving at a speed of 165 kilometres per hour and these actions underline Charge 5 on the indictment, reckless conduct endangering persons.

16You were arrested on 10 January 2017 when you drove the stolen grey Mercedes into the driveway of a private home in Reservoir and passed out in the driver's seat, leaving the engine running.  The residents rang 000 and police from several units and police stations attended.  The stolen Mercedes was identified as the car involved in the earlier pursuit and the first police officers on the scene found you slumped over the centre console of the car.

17An acting sergeant from the OPS Unit cracked the driver's window with a glass breaking implement and a second officer smashed the window with a crow bar.  As they were clearing the glass to unlock the front door, you woke up and started shouting.  First Constable Robert Simmioni reached in to open the door and told you to calm down, but you started to punch into his upper left arm and stopping him from opening the door, and these actions underline Charge 6 on the indictment, assaulting a police officer in the execution of his duty.

18First Constable Simmioni used a crow bar to push you back.  Another officer tried to reach in to secure you, but you continued to fight police and these actions underline summary Charge 4, resist police.

19OC spray was sprayed into your face and First Constable Simmioni managed to open the driver's door and police tried to get you out of the car, but you punched and kicked Mr Simmioni and these actions underline Charge 6, assault police officer.

20The other police officers tried to arrest you.  You were told to stop resisting, but you lashed out with your fist and eventually police got you to ground and handcuffed you.  You continued to resist on the grass and were yelling, "Allahu Akbar" at police while you continued to kick out, and these actions also underlie summary Charge 4, resist police.

21Soon after you stopped resisting, you were assisted in relation to the spray that had been used and you told police you had taken oxycodone.  When you were searched, three bullets fell out of your underwear and later, police found a firearm magazine with .22 bullets inside the Mercedes.  Possession of these items underlie summary Charge 22, possess cartridge ammunition.

22Also located was a mobile phone on which were photographs of you driving the stolen black Mercedes.  Text messages found on the phone demonstrated that you were trying to sell it.

23First Constable Simmioni sustained several scratches to both his forearms and a graze/bruise to his upper back and shoulder blade as a result of the altercation with you.  You were taken to the Austin Hospital for treatment and after discharge, were interviewed by police.

24You made admissions to attending Mr Regarb's home and arguing with him, but claimed he was trying to sell you the Mercedes.  You claimed you queried Mr Regarb about the car being stolen, which led to an argument, that Mr Regarb told his German Shepherd dog to attack you and you then pulled out the pistol.  You said you ran at Mr Regarb and punched him in the face.  You picked up the handgun which Mr Regarb had somehow got hold of and when he went inside, you did not know whether he was going to get another gun or a machete.

25You said that Mr Regarb came back and you saw a handle in his hand, so you shot him in self-defence, throwing the gun away in a nearby park.  You said that because the gun was an automatic, something you had never seen before, when you pulled the trigger, it fired and kept firing.

26The maximum penalty for handling stolen goods is ten years' imprisonment.  The maximum penalty for intentionally causing injury is ten years' imprisonment.  The maximum penalty for reckless conduct endangering in life is ten years' imprisonment.  The maximum penalty for reckless conduct endangering serious injury or persons is five years' imprisonment.  The maximum penalty for assaulting a police officer is five years' imprisonment.  The maximum penalty for possessing cartridge ammunition without a license is 40 penalty units.  The maximum penalty for resisting police is 25 penalty units of six months' imprisonment.

27The matter proceeded to the Magistrates' Court by way of filing committal mentions throughout 2017 and following a directions hearing on 19 October 2017, which was adjourned for negotiation.  A guilty plea was entered on
2 November 2017.  No committal hearing was ever held and you have been remanded in custody since 10 January 2017.

28I now turn to your personal circumstances.  You are now 26 and were 25 at the time of this offending.  You are the third of four children born to your parents, you and your two elder siblings being born in Iraq and you have a 21 year old younger sister who was born in Australia.  You told neuropsychologist
Laura Scott. whose report dated 4 June 2018 was tendered on the plea, that you grew up in a "very calm family where there's no history of alcohol or drug use or domestic violence."

29However, shortly before you were born, your family were force to flee their home on foot and then spent five years in a border refugee camp where your family lived in tents and mud houses with a military city around the camp.

30You told psychologist Carla Lechner, whose reports dated 3 April and
30 December 2017 were tendered on the plea, that you had an uncle who was murdered at 24 by being shot in front of your father and that you were named after him.  You told her that during the time you lived in the camp, you were exposed to extreme trauma, which included being made to watch executions which occurred every Friday or second Friday before prayers when there was a beheading in the carpark and others were forced to watch.

31You told Ms Lechner that after watching executions, you and other children "started doing it to animals like cats and we'd burn them."  Ms Scott described your memories of childhood in the refugee camp as emotionally intense and vivid.  You had significant difficulty adjusting when you arrived in Australia with your family at age five after being sponsored here by the United Nations and settling in the Lalor area.  For example, at kindergarten, you were unable to nap, fearing what would happen while you were sleeping and you would not speak with the other children.

32You told Ms Scott that the first time you saw a sprinkler in a front yard, you ran away screaming.  You spoke only Arabic on arrival and learned English at a prep school, attending three primary schools and then Lalor North Secondary School for Years 7 to 9.  You then completed the second half of Year 10 and the first half of Year 11 at Lalor High School.  You told Ms Lechner that at school you did well academically, but had strong anger issues and were sent to varying psychologists between Grades 3 and 9.  You also reported violence problems.

33At the age of 11 in 2003, you returned to Iraq with your mother to visit your grandparents at what was thought to be a time of peace.  But during the two months you were there, the American invasion occurred and you told
Ms Lechner, "It was total chaos.  I saw at least 11 to 13 bodies just splat and I changed.  Quiet but violent.  Hold it all in."

34It was Ms Lechner's opinion that this experience re-traumatised you. 
Ms Lechner spoke to your sister, Zahara, a 29 year old medical scientist who confirmed the family history of exposure to war time atrocity, adding that you had been the most deeply affected.  She said that you had changed after returning from Iraq in 2003, refusing to respect your elders.  "He had to be bigger and stronger than everyone else."  She said your behaviour at school declined.  You were constantly angry and seemed to hold grudges against those whom you thought had either hurt or slighted you.

35You told Ms Scott you received numerous detentions and several suspensions throughout high school.  On leaving school, you attempted a personal training qualification at the Australia Institute of Fitness, which you enjoyed, but the family was unable to afford the cost of the course and you had to give it up, this being the source of some ongoing difficulty for you as your parents were able to finance the education of your 31 year old brother, who is now a pilot and your sister, Zahara.

36You then obtained work as a panel beater by going round to various garages near your home and seeking work from mechanics, and said you had been supporting yourself in that occupation ever since.  You have also worked casually as a bouncer in various nightclubs and strip clubs between the ages of 18 and 20, whilst working as a panel beater during the day.  You have a fascination with cars and motorbikes.

37You also told Ms Scott that you had been interested in guns your whole life as they gave you a sense of security.  You told her that you began using alcohol at the age of 18, but drank only on a monthly basis until you were gaoled.  Occasionally, you used Valium to help you sleep.  You first began using cocaine at age 20 and began to use it regularly soon after, typically consuming half to a gram at a time every second or third day, and that you spent more money on it than you intended.  You told Ms Lechner you rarely used methamphetamine or ice and in the past and that you had taken Oxycodone. 

38You have a fairly concerning criminal history dating back to 2013.  You were placed on a community corrections order for possessing a long-armed firearm without a license, making a false statement and driving offences.  That year you were imprisoned for 36 days, at which time you were 21, for possessing an imitation firearm.

39In 2014, you were placed on a suspended sentence for being a prohibited person possessing a firearm, possession of amphetamine, failure to answer bail and contravening your community corrections order.  Later that year, you received an 18-month sentence which comprised a restoration of the six-month suspended sentence which you had breached by further offending, which comprised of possession of amphetamine, possessing ammunition without a license, being a prohibited person possession a firearm, dealing with suspected proceeds of crime and driving offences.

40The suspended sentence was ordered to be served cumulatively with the 12-month sentence you received for the further offending.  You were also fined on that occasion on charges of resisting police, driving offences, stating a false name and address, fraudulent use of registration label and acting in a way prejudicial to the court order and management of a gaol.

41You told Mr Lechner that on your release from that sentence in 2016, you "came out reformed, got my learner's, applied for a construction course at Foresite Training in Epping."  Apparently police attended your school to conduct a routine check upon you, which included a search of your car, after which you were asked not to return to the course and you "felt like I was back to square one."

42In addition to the offending before this court, you committed further offences in 2016 comprising of theft of motor vehicle, resist police, possess proceeds of crime, driving offences including driving at excessive speeds, possession of cocaine and possession of Oxycodone.  You received a three month sentence in the Broadmeadows Magistrates' Court on 25 September 2017.

43Whilst in custody at the Metropolitan Remand Centre, you have undertaken a managing loss program and you have a job in horticulture at the prison. 
Ms Lechner diagnosed you as suffering from a persistent post-traumatic stress disorder, which had arisen from your very early childhood experiences and which was aggravated by your experiences in Iraq in 2003.  She described you as hyper aroused and hyper vigilant and a possibility of danger, and responding according, "Perhaps without properly evaluating the situation."

44She administered the Beck Depression Inventory and the Beck Anxiety Inventory, your scores taking you into the extreme range for depression and leading Ms Lechner to making a diagnosis of Clinical Depression with results on The Anxiety Inventory, also in the severe range.  She noted that your mood was low, that you felt suicidal on occasions and that you continued to experience post-trauma symptoms such as nightmares, flashbacks, hyper arousal, hyper vigilance and avoidance.  Essentially, these conditions have remained untreated in you for the whole of your life.

45Ms Lechner stated,

"From a purely psychological perspective, Mr El Hamzah is in need of intensive and specialised treatment that preferably commences whilst he's in custody and continues upon his release."

46She also recommended a neuropsychological examination.

47In her report, neuropsychologist Laura Scott noted that as a child, you developed breath holding, which she stated was,

"A known condition in which children hold their breath until they lose consciousness.  It happens in approximately one in 20 children and is a reflex reaction to an unpleasant stimulus.  It is not deliberate behaviour on the child's part.  It often occurs in response in a minor accident, fright or emotional upset.  The child will then cry and hold their breath until they faint."

48She noted that you have been taken by your parents several times to the
Royal Children's Hospital to investigate heart palpitations during your childhood.  You also reported to Ms Scott you had been shot several times, that bullets had entered your face as well as your right arm and hand, showing her the scars and telling her that on attendance at hospital, you told staff it had been a nail gun injury in order to avoid problems with police.  You then underwent surgery.

49You also suffer a chronic condition to the left eye, which had been wounded, known as Keratoconus.  This condition reduces vision and I received a report from the Eye and Ear Hospital dated 17 August 2017 which noted that whilst there had been deterioration in your eyesight which had worried you greatly, there was significant improvement in vision in the left eye with the use of the contact lens and there were no plans for surgery at this point.

50Returning to Ms Scott’s report.  She believed you are undergoing "subtle cognitive impairment secondary to significant psychiatric illness."  That psychiatric illness included, "Chronic post-traumatic stress disorder, major depression and anxiety."

51She stated,

"Mr El Hamzah is a highly traumatised young man who has shown signs of distress throughout his whole life."

52Ms Scott noted there had been a history of exposure to severe trauma commencing from birth with psycho social disadvantage, including forced relocation, English as a second language and financial strain.

53She stated,

"Early signs emerge in infancy, including breath holding and delayed language acquisition progressed into childhood, including refusal to participate, hypervigilance in kindergarten, lack of engagement in age appropriate activities and heart palpitations and ultimately escalating into offending behaviours in young adulthood.  It is not possible to ascertain when these impairments emerged, although it is clear there was a significant decline in his level of function following his re-exposure to warfare in 2003.

It is likely that his level of psycho social distress and associated cognitive impairment escalated significantly at that time and remained elevated since."

54Ms Scott said you were,

"Highly emotionally reactive due to his psychiatric illness and can be more likely to demonstrate impulsive response in an emotionally charged context.  His impairments in mental flexibility mean he is susceptible to returning to longstanding patterns of behaviour, even if they have had negative consequences in the past."

55She said you had a limited ability to make calmed, reason decisions, had disorganised thinking and stated,

"In addition, he has a high level of baseline psychological distress which would escalate further in a conflict situation.  This would make it difficult for him to regulate his emotions and responses."

56It was her view that your cognitive impairment, and again I note, these are secondary to your significant psychiatric illness, were likely to have a detrimental impact on your ability to manage in a prison environment in that you would struggle to adapt changes in routine "or to know best how to respond in situations where there are not clear guidelines for behaviour."

57She believed you would be at risk for unintentional breaches and failures to follow instructions easily due to your being easily overwhelmed, as was revealed in the testing, with large volumes of verbal information, difficulty sustaining attention over the time, being easily distractible and being disorganised.  Further, it was Ms Scott’s belief that you are also at high risk of,

"Deteriorating mental health in a prison environment.  His propensity towards hyper vigilant and threat orientation, a symptom of his psychiatric illness is likely to be exacerbated in the prison context.  It could place him at risk of misunderstanding and conflict with other prisoners or correctional staff.  He is also unlikely to be able to access appropriate mental health treatment while in custody."

58Overall, Ms Scott seconded and confirmed Ms Lechner's diagnosis of post-traumatic stress disorder, major anxiety and depression.

59In relation to your prospects for rehabilitation, whilst Ms Scott believed your cognitive impairment increased your risk of reoffending, this was what she called a modifiable risk,

"There could be expected to be improvements in his level of cognitive function if he received adequate treatment for his psychiatric illness."

60She noted you have a supportive family, have had a supportive girlfriend for the past four years and you told him that you had severed links with high risk associates, and can I say, Mr El Hamzah, that having a look at the current offending and your past offending, it seems you had a number of those.

61She noted that you were currently abstinent from use in gaol and I note that you have apparently been tested for drugs on six occasions whilst in gaol, the results all being clear, and that if this continued, this would lower the risk of future offending.  She noted you had shown initiative in independently seeking and maintaining employment in the past.

62You expressed remorse for your offending to both Ms Scott and Ms Lechner, although I note that to each practitioner, you described a version of events similar to that outlined in your record of interview, which basically describes you reacting to attack from your victim and differs markedly from the prosecution summary, which by your plea of guilty, you have accepted.

63Clearly this is very serious offending and it was not argued that anything other than a term of imprisonment to be immediately served was an appropriate response in your case.

64However, in sentencing you, I note there was a plea of guilty at a relatively early stage and that no witnesses have had to be cross-examined.  I accept that you are remorseful for your offending, notwithstanding your description of events to Ms Lechner and Ms Scott, and I accept and I regard this as most significant, that for your entire life, you have suffered a serious post-traumatic stress disorder and have gone on to develop major anxiety and depression for which you have never really been treated.

65I accept the opinion of both practitioners that your psychological and psychiatric state provide explanation for your offending despite having been raised by a close, supportive and otherwise law abiding family.  I note that you are the only member of your family ever to have been in trouble with the law.

66It is my view that critical to your rehabilitation is the treatment of your serious psychiatric difficulties and it is to be hoped that as much as possible, this can be attended to in the prison environment.  It should certainly be attended to once you are released on parole.

67I make those remarks and acknowledge that these sentencing remarks will be forwarded to prison authorities together with the psychological and neuropsychological material presented on the plea.  It is my belief that close attention should be paid to that material and the recommendations of
Ms Lechner and Ms Scott be implemented as far as is possible, both whilst you are serving your sentence and when you are released on parole.

68I am of the view and accept your counsel's submission that limbs five and six of Verdins have application in your case.  That is, that the sentence will weigh more heavily upon you than it would on a prisoner in normal mental health, and that there is a serious risk of imprisonment having a significant adverse effect on your mental health.

69In the circumstances, I have to be guarded about your prospects of rehabilitation.  But overall, you appear to have used your time in prison productively.  I am firmly of the view as I have already stated, given extensive psychological, neuropsychological assessments made of you, both of which categorically have found you to be suffering serious psychiatric illness, that proper extensive treatment is fundamental to your recovery.  Given the support of your family and indeed, some of the insight you have displayed in discussing this, I am to some extent optimistic that this can occur.

70Ultimately however, in cases such as this where there has been, in particular, use of a firearm in this dangerous and serious way, combined with a history of reckless, violent and dangerous behaviour on your part, together with serious firearm offences, it is clear the principles of general deterrence, specific deterrence, denunciation and punishment and protection of the community must play a significant role in the sentencing exercise before me.

71However, and I am probably repeating myself, I do take into account the factors in mitigation that have been raised on your behalf and again note that you present with serious psychiatric problem which in my view and clearly the view of Ms Lechner and Ms Scott, underlie most of this dangerous, unlawful behaviour by you.

72I therefore sentence you as follows.  Could you stand up please, sir?

73On Charge 1, you are sentenced to six months' imprisonment.

74On Charge 2, you are sentenced to three years' imprisonment.

75On Charge 3, you are sentenced to three years' imprisonment.

76On Charge 4, you are sentenced to six months' imprisonment.

77On Charge 5, you are sentenced to two years' imprisonment.

78And on Charge 6, you are sentenced to six months' imprisonment.

79On the charge of possessing cartridge ammunition without a license, you are fined $200.

80On the charge of assault police, the summary charge, you are sentenced to one month imprisonment.

81I order that the base sentence be the sentence imposed on Charge 2. 

82I order that two months of the sentence imposed on Charge 1, 12 months of the sentence imposed on Charge 3, two months of the sentence imposed on Charge 4, 12 months of the sentence imposed on Charge 5 and six months - sorry - two months of the sentence imposed on Charge 6 be served cumulatively to the sentence imposed on Charge 2.

83That gives a total effective sentence of five years and six months, and I order that you serve a minimum term of three years before being eligible for parole.

84Now that might sound like, if I can use the colloquial, a bit of a whack for you, Mr El Hamzah.  But I can assure you, it could have been a great deal more.  You understand that?  What is the PSD please?

85MR DOYLE:  Four thirty-six.

86HER HONOUR:  I declare that 436 days of this sentence have already been served by way of pre-sentence detention.

87MR DESMOND:  Not including ‑ ‑ ‑

88MR DOYLE:  Not including today.

89HER HONOUR:  Four hundred and thirty-seven days of this sentence have already been served by way of pre-sentence detention.

90Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of seven and a half years and order that you serve a minimum term of five and a half years.  Do you - I had to speak in fairly formal language when I am delivering a sentence, Mr El Hamzah.  Did you understand what I was saying?

91OFFENDER:  Yes, Your Honour.

92HER HONOUR:  Did I make the points I hope I made before, that underlying all this is the trauma, the anxiety and depression.  You got that?  Do you think you would be in a position to actually, you know, seek as much help as you can out in the gaol without getting frustrated if you do not get what you want?  All right?  You understand you have to apply for parole these days?  You do not just get it.  You are going to have to keep your nose clean.

93OFFENDER:  Yes, Your Honour.

94HER HONOUR:  All right.  Well have a seat, sir.  Are there any orders that I was meant to ‑ ‑ ‑

95MR DOYLE:  Yes, Your Honour.  There were two forfeitures and one disposal.

96HER HONOUR:  I have got them.  I have not lost them.

97MR DOYLE:  Yes.

98HER HONOUR:  Go me.

99MR DOYLE:  The other matter was this, Your Honour.  In relation to his license, the prosecution sought to license cancellation order under s.89A.

100HER HONOUR:  Yes.

101MR DOYLE:  And the submission I made was that this was a - there was the driving offence involving reckless conduct.

102HER HONOUR:  Yes.  Was related to drug use.

103MR DOYLE:  There is a minimum - yes, and that was an additional declaration we sought under 89C.

104HER HONOUR:  I know.

105MR DOYLE:  I think the purposes of that is it relates to, as I follow, the interlock provisions on re-licensing.  I think that is the reason behind that.

106HER HONOUR:  Yes.

107MR DOYLE:  But for instance, in relation to the reckless conduct, if that had been a dangerous driving for instance, there would be, I think it is a mandatory six month for non-conviction for dangerous driving.

108HER HONOUR:  Yes.

109MR DOYLE:  So the prosecution seeks an order in relation to the license for the reckless conduct relating to the police chase in particular, Your Honour.

110HER HONOUR:  How does that go?  That does not come into operation until Mr El Hamzah gets out of gaol, does it?

111MR DOYLE:  No, no.  That would - no.  That would start from the order today.

112HER HONOUR:  Would it?

113MR DOYLE:  Yes.

114HER HONOUR:  All right.

115MR DOYLE:  Yes, I think that.  Yes.  That is right.

116HER HONOUR:  Say that again.

117MR DESMOND:  Judges have tried to sort of postpone it to ‑ ‑ ‑

118MR DOYLE:  You cannot make an order in - starting in the future.

119HER HONOUR:  Yes, well I do not particularly want to.  I mean, this man has got a reasonably vigorous history of employment which is tied to his license.  But my concern was that I do not want ‑ ‑ ‑

120MR DOYLE:  He has got a three and a half year minimum.

121HER HONOUR:  Well that is right. 

122MR DOYLE:  Yes.

123HER HONOUR:  But my concern is if I - -

124MR DOYLE:  Prosecution would argue this.  That in relation to this particular driving, there is a need for an order.  Yes, yes.

125HER HONOUR:  No, I think there is a need.

126MR DOYLE:  Yes.

127HER HONOUR:  But my concern is I do not want him when he comes out of gaol to be hampered in his prospects for employment by an excess - he is a panel beater by trade.

128MR DOYLE:  Well he will have to go back through the process.

129HER HONOUR:  He will have to go ‑ ‑ ‑

130MR DOYLE:  Until - yes.

131HER HONOUR:  He will have to go back ‑ ‑ ‑

132MR DOYLE:  To get re-licensed, yes.

133HER HONOUR:  He will have to get re-licensed.

134MR DOYLE:  Yes.

135HER HONOUR:  All right.  In relation to - which is the charge?

136MR DOYLE:  Well 89A allows you effectively to make the order on any charge.  But in this case, Your Honour ‑ ‑ ‑

137HER HONOUR:  I think I might do it in the reckless conduct endangering persons.

138MR DOYLE:  Yes, that is right.  The police chase.

139HER HONOUR:  All licenses are disqualified.  Sorry, are cancelled and you are disqualified from - suspended ‑ ‑ ‑

140MR DOYLE:  It is a cancellation.

141HER HONOUR:  Nice try.

142MR DOYLE:  Ask for anything.  Yes.

143HER HONOUR:  Your counsel is trying very hard on your behalf, Mr El Hamzah.  It is over reaching.  Your license - all licenses are cancelled.  You are disqualified from obtaining any further license for a period of two and half years.

144MR DOYLE:  Your Honour, there is one other matter ‑ ‑ ‑

145HER HONOUR:  And I will make a declaration pursuant to s.85 ‑ ‑ ‑

146MR DOYLE:  Eighty-nine C.

147HER HONOUR:  Eighty-nine C ‑ ‑ ‑

148MR DOYLE:  Yes.

149HER HONOUR:  ‑ ‑ ‑ of the Road Safety Act that the ‑ ‑ ‑

150MR DOYLE:  Sentencing Act.

151HER HONOUR:  Sentencing Act.

152MR DOYLE:  Yes.

153HER HONOUR:  Thanks.

154MR DOYLE:  That is all right, Your Honour.

155HER HONOUR:  That - what is it I am meant to say?  That the driving ‑ ‑ ‑

156MR DOYLE:  The offences were committed under the influences of drug.

157HER HONOUR:  The offences were committed under the influence of drug use - of influence of drugs.

158MR DOYLE:  Your Honour, in terms of this sentence, could I just - one matter Your Honour said or referred to was that there was ‑ ‑ ‑ 

159HER HONOUR:  Do not do it.

160MR DOYLE:  ‑ ‑ ‑ no committal in this matter.  There was.

161HER HONOUR:  There was?

162MR DOYLE:  Yes, there was.  A half day committal.

163HER HONOUR:  All right.  I will do a further ‑ ‑ ‑

164MR DOYLE:  So that was on 8 August 2017.

165HER HONOUR:  I apologise.  I do not know why I got that wrong.  There was a committal hearing conducted on 8 August 2017 which lasted half a day.  Negotiations proceeded and a plea of guilty of was entered fairly ‑ ‑ ‑

166MR DESMOND:  The committal was a productive process.

167MR DOYLE:  Yes, the committal and once it made its way into the County Court stream, it has resolved.

168HER HONOUR:  All right, I will say it again.  A contested committal was conducted in this matter on 8 August 2017, which was only a half day duration and once the case reached the County Court stream, settled fairly promptly into the plea of guilty to the charges before the court on this occasion.  Yes.

169MR DOYLE:  As Your Honour pleases.

170MR DESMOND:  Look, Your Honour.  The neuropsych report is under the Jackson banner head.

171HER HONOUR:  Yes.

172MR DESMOND:  It was actually a Ms Laura Scott.

173HER HONOUR:  That is right.  Yes.

174MR DESMOND:  Who is the neuropsychologist.

175HER HONOUR:  It was the opinion of Ms Laura Scott.  I will amend - I am really sorry.  I completely - yes, I am sorry about that.  All right.  I will edit that appropriately.  I apologise for those slips.

176MR DESMOND:  Your Honour pleases.

177HER HONOUR:  I will hand back a certificate for the managing loss program and no, I think everything else can - now I am going to make absolutely sure - I mean it happens in all cases.  But the material, in particular, the neuropsychological report, it has just added so much weight to the diagnosis.  I am directing my comments to the family here.  It is really important material for the prison to have.  It is really important material for you to have and everything I have said today and the reports will be forwarded to the prison, all right?

178Thank you very much.  Is there anything further I need to attend to?

179MR DOYLE:  No, Your Honour.

180HER HONOUR:  All the best, Mr El Hamzah.  All right.  Thank you very much.  I thank counsel for their assistance and we will stand down to 10.30.

‑ ‑ ‑