Director of Public Prosecutions v El-Hassan

[2023] VCC 1678

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. Cr-21-01993

DIRECTOR OF PUBLIC PROSECUTIONS

v

MORTADA EL-HASSAN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2023, 24 July 2023
DATE OF SENTENCE:	14 September 2023
CASE MAY BE CITED AS:	DPP v El-Hassan
MEDIUM NEUTRAL CITATION:	[2023] VCC 1678

REASONS FOR SENTENCE

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Subject: Criminal law - sentence   

Catchwords:              pleaded guilty  one charge each of conduct endangering persons – recklessly exposing an emergency worker to risk by driving – possessing a drug of dependence – discharging a firearm at premises – being a prohibited person possessing a firearm – persistent contravention of a family violence intervention order -  summary charges: drive whilst disqualified-  possessing a controlled weapon without lawful excuse – possessing a prohibited weapon -  some offending involved former partner – offences committed over 11 days -  26 years of age at time of offence -  offending and worsening drug use in late teens -  extremely low  intellectual capacity – chronic substance abuse disorder – depressive disorder – provisional PSD -  been assessed as suitable for 12 week intensive outpatient program for drug treatment and PTSD – family support

Cases Cited:Verdins v R [2007] VSCA 102

Sentence:                  5 years 8 months non parole period of 3 years 6 months with 1,099 days already served.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms F Holmes	Office of Public Prosecutions
For the Accused	Ms K. McKay	Slaveski & Associates

HER HONOUR:

1Mortada El-Hassan, you have pleaded guilty to six charges on an indictment. They are one charge each of the following:

Conduct endangering persons;

recklessly exposing an emergency worker to risk by driving;

possessing a drug of dependence;

discharging a firearm at premises;

being a prohibited person possessing a firearm; and

persistent contravention of a family violence intervention order.

2You have also pleaded guilty to three summary charges, numbered 15, 23 and 31. They are: a rolled-up charge of four occasions of driving while disqualified, possessing a controlled weapon without lawful excuse, namely a knife, and possessing a prohibited weapon, namely a butterfly knife.

3I have set out the maximum penalties in a footnote to be included in these sentencing remarks.[1]

[1] Conduct endangering persons and persistent contravention of family violence intervention order – 5 years

Reckless exposure of emergency worker to risk by driving, and prohibited person possessing a firearm - 10 years.

Discharging a firearm at premises -15 years

Possessing drug of dependence – 12 months or fine of 30 pu ( if not for trafficking purposes)

Drive while disqualified – 2 years or fine of 240 pu

Possess controlled weapon -  12 months

Possess prohibited weapon – 2 years.

4I will be sentencing you to a term of imprisonment, which will require you to serve several more months before being eligible for parole. I will explain my reasons for that decision.

Background

5The background to these offences is as follows.

6Your former partner, who is the mother of your four-year-old son, has an intervention order against you, on behalf of herself and the child. It was granted on 31 August 2017 and lasts until 31 December 2060.

7At the time of the offending, you were in a relationship with Brittany McGuire. You were using two mobile phones at the time of the offending, each registered in fictitious names and each belonging to the Optus network.

8Two incidents occurred within a few days, giving rise to the charges.

First incident

9The first incident was on 29 August 2020 at about 10.45 am, when police saw a black Audi sports car driving erratically in New Street, Brighton. A police sergeant attempted to intercept the car in a 60 kilometre per hour zone.

10You, the driver, accelerated sharply to about 130 kilometres per hour in North Road, Brighton, when there was a large number of pedestrians and cyclists in the area. Accordingly, the sergeant discontinued the intercept.

11At 10.52 am your car was observed at a vehicle check point on Beaconsfield Parade, Middle Park, again being driven erratically, cutting off other motorists and driving at high speeds. Police at the check point tried to intercept you, but you fled, driving towards Fitzroy Street, St Kilda.

12Your car was sighted again and reported to police by members of the public as it was driven in a dangerous and erratic manner on Fitzroy Street, where it was again observed speeding and running red lights, narrowly avoiding a collision with another vehicle at the intersection of Lakeside Drive and Fitzroy Street. That is Charge 1, conduct endangering persons

13You were driving at high speeds in a signed 40 kilometre per hour zone being used heavily by motorists, cyclists and pedestrians at that time.

14You continued to drive erratically, and police attempted to intercept you at the intersection of Punt Road and Wellington Street. You stopped on St Kilda Road, your car facing south, approximately two metres from vehicles stationary at a red light travelling west on Wellington Street. Police then manoeuvred their vehicle in an attempt to cut you off, with the front bumper bar of the police car facing the front driver's side bumper of your car. You then accelerated from stationary, causing the front bumper of the police vehicle to collide with your driver side door. This is Charge 2, reckless exposure of emergency worker to risk by driving.

15You then attempted to drive away at speed, but there was significant damage to the rear driver's side wheel, and the car was immobilised after travelling about 50 metres.

16Police ran towards your car and as they approached it, you and your passenger, Brittany McGuire, fled from the car. McGuire was apprehended shortly afterwards but you avoided apprehension by entering a house and leaping from a balcony.

17Police searched your car and found two knives (one a butterfly knife), 6 vials of steroids, syringes and wipes, and a Samsung mobile phone. The vials of steroids is Charge 3, possessing a drug of dependence. Police also found and seized a grey Adidas hooded jumper that you had dropped in Phoenix Lane, St Kilda.

18You were unlicensed at the time, having been disqualified in the Magistrates Court on 19 February 2020. That is part of summary Charge 15, drive whilst disqualified.

Second incident

19The second incident occurred on 1 September 2020, a few days after the first.

20On that date at 11.26 pm Brittany McGuire and her mother Danielle were inside their residence at 14 Punt Road, St Kilda. The premises is known as the Melbourne Hostel and was owned by Danielle McGuire.

21There were guests staying in the hostel at the time.

22You drove in a Jaguar to the rear of the premises via Nelson Street and approached the side door of the hostel. You fired one shot from a sawn-off shotgun into the door, damaging it by creating a 5-7 centimetre hole in the door beside the lock. Brittany and Danielle McGuire heard the shot and Danielle McGuire went to inspect the damage. She and other occupants then retreated from the back door and left the premises onto Punt Road.

23You then fired a second shot into the lock area forcing the door open and gained entry into the premises. You walked through the storeroom towards the kitchen while holding the firearm. You remained inside for about 5 seconds before leaving and driving away in the Jaguar. That is Charge 4, discharging a firearm, and Charge 5, being a prohibited person in possession of a firearm, both arising from these circumstances.

Driving while disqualified

24On 2 September you were seen on CCTV footage driving a black Jaguar during a period of disqualification. That is part of summary Charge 15, a rolled-up charge, with reference also to three other occasions in close proximity when you drove while disqualified. The first was on 27 August 2020 at a service station, the second was on 29 August whilst driving through Brighton, Middle Park and St Kilda, the third was on 1 September and the fourth on 2 September 2020.

Intervention order breaches

25On 6 September 2020 you contravened the Family Violence Intervention Order, described earlier, by being in the company of your former partner and your son, in a location in a’Beckett Street, Melbourne. On 7 September you were again in their company, and on 8 September you were in the same apartment in Burwood East as her. Those occasions are the basis for Charge 6, persistent contravention of a family violence intervention order.

Arrest

26You were arrested by the Special Operations Group on 10 September 2020, and have remained in custody. During the arrest you were restrained and then bitten by a police dog. You were also kicked in the back by a police member. From that injury you sustained spinal fractures at T7 and T8, according to hospital notes, which still cause you ongoing almost continuous pain. While in custody you have very limited opportunities to move around and relieve the pain.

27The dog bite was severe and needed treatment in hospital, with debriding of necrotic tissue and sutures. It caused nerve damage, and a visible scar.

Gravity of offending

28Your behaviour over these 11 days was characterised by Ms McKay, who appeared on your behalf, as a period of madness. Your driving and the confrontation by firing a gun in a person's residence is serious offending, and deserves condemnation by the court and an appropriately firm sentence. Only some of the offending is at the lower end of the range of seriousness

29The offence of persistent breach of an intervention order fits this latter description. CCTV footage shows interaction between you and your former partner and your son, which suggests the contact occurred in the context of facilitating seeing your son, with no objection on her part.

30It is clear that the offence of recklessly exposing an emergency worker to risk by driving was not at the lower end of the range. Although the damage to the car was relatively slight, as can be observed in a photograph that was produced, the police executed the manoeuvre with their vehicle to cut you off because of your driving in a brazen and perhaps desperate attempt to prevent the police interception, and with no regard for safety. Notwithstanding that you are being dealt with separately for that driving, the context is relevant to an assessment of seriousness. While it does not sit at the highest level of seriousness, it is certainly not at a low level.

Personal background and circumstances

31You are now aged 28; you were 26 at the time of the driving. You were unemployed at the time and living intermittently with your parents and siblings. Otherwise, you were staying in various short-term accommodation units around Melbourne.

32You are the second-eldest of five children of your parents who were born in Lebanon, but who came to Australia some thirty years ago, a few years before you were born. Your father worked in factories and spent long hours away from home. Your mother stayed at home raising the children. She suffered from undiagnosed schizophrenia, with erratic behaviour, and the household was dysfunctional and chaotic. Your parents separated when you were young, and the children remained with their mother, but your father remained supportive of you all and continued to have contact.

33You were very close to your paternal aunt and spent a lot of time with her. Sadly, she died of a brain tumour when you were 17, and this affected you badly. In combination with your poor progress and behaviour difficulties at school, you turned to drugs to deal with your grief and other problems.

34You began offending in your teens, and your quite extensive criminal history is consistent with worsening drug use in your late teenage years. It includes convictions for serious offending including dishonesty and violence, seven previous convictions for unlicensed driving and two previous convictions for dangerous driving.

35Your drug use commenced with cannabis at age 16, followed by misuse of prescribed pain medication, and then illicit drugs including GHB, benzodiazepines, cocaine and methylamphetamine. Your use of the latter drug increased significantly just before your arrest for these offences.

36You were assessed in April 2023 by a neuropsychologist, Dr Matthew Staios, who concluded that your intellectual capacity is within the extremely low range. You have also been diagnosed with chronic poly-substance abuse disorder, depressive disorder and provisional Post Traumatic Stress Disorder, possibly arising from your disordered childhood, but also from traumatic experiences while living in Tripoli for 8 months as a child, and witnessing confronting scenes, including violent murders.

37You were assessed again by Dr Staios on 30 May, and further tests were administered to establish your intellectual capacity. From these tests, Dr Staios concluded that you have a mild intellectual development disorder, which has been long-standing.

38Significantly, parts of your intellectual functioning are at the extremely low range. This was true of your speed of information processing,[2] and certain of your executive skills.[3]

[2] Report of Dr Staios dated 3 July 2023, par 6.6

[3] Loc cit par 6.9

39Dr Staios explained that against the background of a chaotic and unstable upbringing your intellectual disorder is amplified, and in combination they have had significant impact on your capacity for security, healthy attachment and general stability.

40In addition, your long-term drug abuse, in conjunction with the factors just mentioned, has had an impact on your reasoning skills. Dr Staios explained that when you are acutely intoxicated your intellectual abilities are highly likely to be further limited, which will further compromise overall cognitive skills.[4]

[4] Loc cit par 7.4

41This brings into play the principles in the case of Verdins, meaning that your moral culpability for your offending is reduced somewhat, and that is to be taken into account in determining an appropriate sentence.

42That indeed is the submission made by Ms McKay on your behalf, and Ms Holmes for the prosecution conceded that point in principle, urging that appropriate weight be applied in your circumstances, where you have been able to function relatively well in many areas of your life.

43You have a very limited work history. You completed only two years of secondary school, and later began a carpentry apprenticeship but did not finish it. You worked for a short time in factories after that.

44On 6 July 2020, a few weeks before the offending, you had been released from prison after serving a sentence, with no period of parole, and immediately encountered the lock-down in Melbourne which applied at that time. Unable to re‑connect with your family or re-integrate into society, all you could do was to find accommodation for yourself, and you turned to your old pattern of drug use, which quickly escalated.

Prospects of rehabilitation

45While in prison and abstinent from drugs you have become motivated to remain so, and you wish to engage in extensive and targeted treatment. Through your solicitor you arranged to be assessed for a 12-week intensive outpatient program at Australian Forensic Therapeutic Rehabilitation. You have been assessed as suitable, and there is a plan for drug treatment as well as treatment for suspected Post Traumatic Stress Disorder.

46A detailed assessment report was provided by Dr David Millar, the CEO and Therapeutic Program Leader of that organisation, co-written by Ms Sophie Russell, a psychologist with that group.

47The organisation is described as a specialist outpatient rehabilitation provider and has experience in treating clients from the criminal justice system. The report states that dual diagnoses, meaning a mental health diagnosis and a Substance Use Disorder, are common among their clients.

48It was considered that at the time of the assessment you were in a state of readiness and were motivated towards participating in rehabilitation, with the goal of sustainable behaviour change. Your treatment would be one-on-one with a psychologist and others, and after the 84-day course you will be able to continue with daily check-ins and a support program.

49Your family is ready to provide support for you, according to a letter from your father, and support would also be offered by family friends who have written letters to the court. Two have offered to help you to obtain employment.

50Because of the sentence of imprisonment that I am going to impose shortly, Mr El‑Hassan, the arrangements that have been made tentatively for that program will have to be put on hold for several months.

51A further mitigating factor is your plea of guilty, indicating that you have taken responsibility for your behaviour. I can also accept it as an indication of remorse, which you expressed to Mr Millar. Two of the letters written refer to at least a perception of remorse. Rehabilitation is more likely if remorse is genuinely felt, which is one reason why it is important.

52Perhaps more strongly demonstrated is your expressed motivation to stay out of prison and to change your way of living. I have taken all these matters into account in sentencing you, with the chance of your prospects for rehabilitation being better than in the past.

Conclusions

53The observations, test results and clinical opinion of Dr Staios in his most recent report, which I read out a moment ago, led me to consider the option of a combination Community Correction Order with a Justice Plan

54The defence submission was that you could be sentenced to up to twelve months in addition to the time served, without declaring it, and be eligible for a CCO.[5] So far you have served just a few days more than three years in custody.

[5] I was referred by Ms McKay to the case of Carter v R [2020] VSCA 13, a case involving serious sexual offences against and involving a young person and a child. Some of the offending was at a low level and the sentence of 5 years imprisonment with a npp of 3 years was appealed. By the time of the appeal the applicant had already served 1089 days of PSD. The appeal was allowed and the applicant was re-sentenced to 3 years imprisonment. The court addressed the issue of a non-parole period being required under s.11 of the Sentencing Act, stating that as the applicant had already served almost the entirety of the 3 year sentence, there was no point in fixing a npp, and the court declined to do so. It acknowledged that these were unusual circumstances, adding that the court should not make orders that are pointless.

55The prosecution submission was that a head sentence and a non-parole period is warranted, and that the pre-sentence detention of that time which is, I think round about 1,098 days, is insufficient imprisonment.

56Since the initial plea hearing, the Court's request for a Justice Plan to accompany a CCO has been considered by the Department of Families Fairness & Housing and you were found to be ineligible, as you do not have an intellectual disability within the meaning of the Disability Act 2006.

57While the Corrections report found that you are suitable for a CCO, it was noted that you had breached seven such orders since 2013, and that you are at high risk of re-offending.

58After careful consideration of these matters, combined with the seriousness of the offending, I have concluded that a Corrections order is not appropriate.

59I will be making orders for imprisonment, by way of a head sentence and a non‑parole period.

60The sentences are as follows, Mr El-Hassan:

For Charge 1, 18 months' imprisonment.

For Charge 2, 18 months;

For Charge 3, 2 months;

For Charge 4, 3 years;

For Charge 5, 2 years;

For Charge 6, 3 months;

For summary Charge 15, 12 months;

For summary Charge 23, 3 months;

For summary Charge 31, 6 months.

61The sentence for Charge 4 is the base sentence for purposes of cumulation. I make the following orders for cumulation: 9 months of the sentence for Charge 1, 6 months of each of the sentences for Charge 5 and summary Charge 15, and 2 months for the sentence for summary Charge 31.

62I note that the Sentencing Act 1991 requires that the sentence for Charge 2 is to be served cumulatively unless ordered otherwise. Taking into account the principle of totality, I order that 9 months of that sentence be served in cumulation upon the base sentence.

63This results in a total effective sentence of 5 years and 8 months.

64I order that you serve 3 years and 6 months before being eligible for parole.

65I declare that 1,0989 days, subject to correction if necessary, of pre-sentence detention be reckoned as already served, and I shall cause that to be noted on the court record.

66If you had pleaded not guilty I would have sentenced you to 6 years and 6 months' imprisonment, with a non-parole period of 5 years.

67The prosecution seeks forfeiture orders for the firearm and the knives and a disposal order for the drugs. Ms McKay, I don't think I have heard whether those are opposed or not?

68MS McKAY:  No, they're not, Your Honour.

69HER HONOUR:  Thank you.  I make those orders.

70MS McKAY:  I just wish to say to Your Honour that when I calculated the pre-sentence detention I arrived at 1,099 days, not including today.

71HER HONOUR:  All right, thank you.  Do you agree?

72MS HOLMES:  Yes, that's correct, Your Honour.

73HER HONOUR:  Thank you, I will correct that.  Are there any other matters?

74MS HOLMES:  Just a question over the licence, Your Honour.  Whether Your Honour is intending to make an order on his licence?

75HER HONOUR:  I have neglected that.  I will just seek a few more details about that.  Presumably his licence status at the time of going into custody was unlicenced, because he had been charged by then with four - - -

76MS McKAY:  My understanding is he was disqualified at the time, Your Honour, and he hasn't yet reapplied to be relicensed.

77HER HONOUR:  Yes, I see.  Ms Holmes, there may be a mandatory provision about licence in respect of the conduct endangering persons.

78(Discussion ensued re licence disqualification)

79HER HONOUR: I order in relation to both Charge 1 and Charge 2, that any licence or permit is cancelled and Mr El‑Hassan is disqualified from obtaining any further licence or permit for two years from this day.

80MS HOLMES:  Thank you, Your Honour.

81HER HONOUR:  Thank you for your assistance with that matter.

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