Director of Public Prosecutions v El-Leissy

[2024] VCC 1590

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 24-00274

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAMZA EL-LEISSY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2024
DATE OF SENTENCE:	14 October 2024
CASE MAY BE CITED AS:	DPP v El-Leissy
MEDIUM NEUTRAL CITATION:	[2024] VCC 1590

REASONS FOR SENTENCE

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Subject:  Criminal Law - Sentence

Catchwords:                  Discharging a firearm at a premises with reckless disregard for safety; Conduct endangering life; Prohibited person possess firearm; Drive whilst authorisation suspended; Possess cartridge ammunition without a licence and/or permit; youthful offender.  

Cases Cited:Bugmy v The Queen - [2013] HCA 37 - 249 CLR 571; R v Verdins - [2007] VSCA 62 - 16 VR 269; 171 A Crim R 227; Azzopardi v The Queen [2011] VSCA 372; R v Mills [2011] VSCA 372; Director of Public Prosecutions v Lawrence [2004] 10 VR 125; DPP v Reynolds - [2022] VSCA 263 - 71 VR 336

Sentence:Term of Imprisonment of four years and six months with a non-parole period of three years; Convicted and fined $400.00; Licence cancellation and 14 month disqualification.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr L. Barker	SLKQ Lawyers

HIS HONOUR: 

1Hamza El-Leissy, in the early hours of 23 January 2023 you, and at least one other criminal associate, drove to an address in suburban Thomastown.  Both you and your co-accused were armed; you with a handgun and the other man with a shotgun.

2It seems that at an earlier point, a car rented by friends of yours was superficially damaged by a group of men.  This, it seems, was sufficient for you and the other man to go to a house connected to one of the other group, who you thought caused the damage to the car.  You were plainly intent on revenge.  The level of your violence and danger in response to what had occurred with respect to damage to a car was bewildering.

3You first went up the driveway of the suburban home endeavouring to fire your handgun.  You were seen on CCTV footage to be pulling the trigger multiple times, but the gun did not fire, or it malfunctioned in some way. 

4Your co-accused came up from behind you and right onto the veranda of the house.  He violently struck at the window shutters, endeavouring to break through so as to allow for a better shot.  He then fired the gun at the front door from close range.  He then headed back down to the driveway where you were and as he left, he fired again towards the house.  You too, took aim as you left and tried again to shoot at the house, but again your handgun malfunctioned.  You and the co-accused fled in a car.

5In February 2023 the police searched your house, finding another different handgun and ammunition.  You were at the time prohibited from being in possession of a firearm.  The police also seized and examined your phone.  Amongst items linking you to the shooting there was a video of you driving the previously mentioned damaged car, the day after the shooting.  The video was taken by a friend and copied or sent to your phone.  The video showed a number of other young men in that car.  The video was of you deliberately driving the car at homicidal speeds along Sydney Road and another road in Campbellfield.  This driving was all for your own and your associates' pleasure.  What was seen and heard was the car accelerating with the other foolish young men encouraging you.  The video concentrated on the speedo of the car, recording it getting up to 229 kilometres per hour.

6After reaching that incomprehensible speed, you slowed to take a corner, whereafter you again accelerated up to 224 kilometres per hour before the video finished.

7You were charged with conduct endangering life for this extraordinarily dangerous behaviour.  The full set of charges that you pleaded guilty to are discharging a firearm at a premises with reckless disregard for safety, conduct endangering life, being a prohibited person possessing a firearm, and two summary offences of driving whilst disqualified, and possessing cartridge ammunition.

8I am required to consider the gravity of your crimes as well as your moral culpability.  The crime of shooting into a house is a reasonably new offence that Parliament determined was necessary, due to what the Minister in his second reading speech, said was a response to 'an increase in drive-by shootings’ and a response to the fears and risks created by firearms being used in public streets.[1]

[1] Firearms Amendment Bill 2017: Second Reading Speech (Victoria Parliament, 21 September 2017)

9Although in this instance you and your co-accused got out of the car and went close to the house, as opposed to a drive-by shooting involving the risk of collateral damage, your offending remains a serious example of this offence.  The use of firearms by shooting wildly into a house in revenge is to be condemned.  There must be proper denunciation expressed in practical terms by stern punishment, usually involving lengthy incarceration.

10Also of primary importance is that the sentences in fact operates to send an unambiguous message to anyone who might be contemplating shooting guns in a public street or at a home, the message being of course, that long terms of imprisonment await.

11Your other firearms offence being a charge of being a prohibited person in possession of a firearm relates, it seems, to a different handgun which was found loaded and hidden in your premises.  It is also a serious matter requiring a proper and proportionate penalty.  A handgun of this kind is inherently dangerous and you are someone who cannot and ought not possess any firearms.

12The ammunition you had also is troubling, however the penalty available is a monetary fine.

13As to the driving which amounted to the conduct endangering life,
self-evidently this is a very serious example of this offence.  You directly endangered your young associates, who were I note, egging you on.  You endangered any member of the public who happened to be in the vicinity of your driving.  The time and location of your offending meant that traffic was light, but there was traffic and at speeds of over 200 kilometres per hour, the risks of your car going out of control and launching over distances adds to the scope of risk created.  Your moral culpability for all these offences is on any measure high.

14That is, you knew when you went to the house, that you were going to shoot at it, and you knew when you put the accelerator down you were endeavouring to reach the sorts of speeds that you did, egged on by others, which created a risk.

15I must consider not just the circumstances of your offending but also your circumstances as the offender.  You are now 24, you were 22 years and nine months at the time you committed these crimes.  I will return to the always important sentencing factor of your relative youth, however, I note despite your young age you have a criminal history and concerningly it involves breaches of community corrections orders imposed to assist you to rehabilitate and put crimes behind you.

16You were first before the courts in June 2019 for dishonesty, drug and bail offences. 

17Later in August 2019 you were placed on a community corrections order for driving, dishonesty and violent offences, including threats to inflict serious injury.

18In August 2022 you again were placed on a 12 month community corrections order for driving, drugs, dishonesty, violence and on this occasion weapons offences.

19Your criminal history, which is not extensive, reveals an escalation in the types of offences.  You committed offences, including these offences that are before me, while on a community corrections order which elevates the seriousness of the offending.

20You are one of seven children.  Your parents migrated to Australia from Egypt.  Your father was a strict disciplinarian prone to fits of rage and physical punishment and violence towards your mother.  Your sister's letter to the court confirms this account of your father's abuse.  Your parents separated when you were 11.  You had little to do with your father thereafter until you were in your late teens.  Your sister's letter indicates any interaction with your father as you grew up was abusive.  A reconciliation at the age of 18 failed, but of late you now have a strong relationship with your father.

21You were raised by your mother, but you reported physical discipline from her as well.  Your sister's letter does not support this account.  Rather, your sister writes of your mother's health problems and her heavy responsibilities in raising seven children alone. 

22At age 16 you were leaving the family home and living on the streets or with other young associates.  In this time you took to smoking cannabis and using methylamphetamines, moving from that drug to cocaine at around age 19.  You also used MDMA and abused prescription medication.  In this scenario, you were committing crimes and associating with other drug users and criminals.

23You had some short drug rehabilitation in 2018 before a longer period of abstinence from drugs when you were, at age 21 to 22, in or commencing an important relationship.  You relapsed six or so months before this offending, that is in mid-2022.  You commenced the relationship when you were turning 22 when you were abstinent.  You reported that your partner's family did not approve of you, but she continues to telephone and visit you in prison.  You hope to settle with her upon your release.

24You have friends, some you now recognise as a negative influence.  In prison you have committed to only mixing with those who are a positive influence on you, in particular on your release.

25Your education was not successful.  You often created disciplinary problems and truanted from school.  You began work at 17 and had many very short periods of employment.  You commenced your own transport company at age 21, which it seems made some profits, which you donated to building mosques and orphanages in Africa and also provided for your ill grandmother.

26As to your mental health, you reported to the medico-legal psychologist,
Ms Fakhri, that you felt your mental health decline after your parents separated and when you would spend time away from your family with negative peers.  You found using methylamphetamines to improve things, but only temporarily as negative thoughts then intruded.

27Since being on remand and abstinent, your mental health has improved.  Despite this, a screening test based on nine questions with self-reported answers that Ms Fakhri used and she then reported your answers, indicated severe depressive symptoms in the 14 days before the assessment.  Similarly, the seven question screening questionnaire used to identify anxiety saw your answers lead to a description by Ms Fakhri of severe anxiety in the last 14 days before the test.

28Ms Fakhri found that your answers to questions about trauma and trauma-caused symptoms led her to say you met the clinical threshold for a diagnosis of complex Post Traumatic Stress Disorder.  However, with his usual commonsense approach, your counsel, Mr Barker, submitted that while your upbringing was turbulent and at times harsh, it fell short of what would enable mitigation on the basis of what was said by the High Court in Bugmy v The Queen.[2]

[2] Bugmy v The Queen – (2013) HCA 37 - 249 CLR 571

29Further, Mr Barker submitted that while the report of Ms Fakhri was in his view comprehensive and careful, it was not sufficient to invoke the mitigatory principles set out in the Court of Appeal decision of Verdins.[3]  That said, your background and psychological state remain important in the sentencing synthesis.

[3] R v Verdins – (2007) VSCA 62 - 16 VR 269; 171 A Crim R 227

30These carefully considered submissions and forensic decisions by Mr Barker are in my view not just an example of a commonsense approach, they were solidly based. In my view, the report of Ms Fakhri in particular was helpful, although solely self-reported, it was a helpful narrative as to your background, but the psychological aspects, in particular the screening tests used to establish disorders, were not particularly or sufficiently rigorous.

31Your sister wrote of you being remorseful and having insight into the severity of your offending.  She has seen you reflect whilst in prison and commit to making changes in your life upon release.  These are positive indications.

32What you said to Ms Fakhri about the offending indicates regret and developing insights.  Your plea of guilty is also an indication of remorse.  It is of utilitarian benefit, though it came after testing the evidence in a committal.  Your sentence will be lower than it would otherwise have been, because of your plea of guilty.

33You have had support in the past from those who taught you at the mosque and those who work as part of support organisations for young Muslim youth.  I have read their letters tendered on your plea and they are helpful.

34I have mentioned your time on remand.  Early on, it involved drug use and threats which resulted in you being restricted and kept in units for higher level of security classification.  You report you have been more settled and drug free in the last 12 months or more.  You have been in custody when both your maternal grandparents died.  You had a bond with them.  Being unable to be with family to grieve increased the onerousness of prison for you.

35As I have mentioned, an important sentencing consideration is your young age.  You were 22 at the time and are now 24.  The principles guiding sentencing young offenders are well settled.  What was said by Redlich J in Azzopardi v The Queen[4] has application in your case.  His Honour identified the following sentencing considerations when an offender is young.  These considerations have less weight or impact the older the offender is within the demographic of young offenders.  His Honours said:

Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’.  They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’.  They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.

Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’.[21]  This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour.  

Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation.[5]  

[4] (2011) VSCA 372 (Azzopardi)

[5] Ibid [34] –[36].

36His Honour then referred to the well-known judgment of Batt JA in R v Mills[6] however, a feature of that decision was the application of the principles of giving primacy to rehabilitation when the young offender was also a first-time offender.  You are not a first-time offender, but one who has been given a chance on rehabilitative community corrections orders that were breached.

[6] (1998) 4 VR 235.

37But Redlich J went on in Azzopardi to make clear that the focus on rehabilitation in sentencing young offenders must yield to other more punitive sentencing purposes in circumstances where the seriousness of the offending is elevated.  His Honour referred to a number of important authorities that limited the primacy of youth and rehabilitation in sentencing, and he concluded by citing at length what was said again by Batt JA in the DDP v Lawrence.[7]  He said:

… with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender's youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright[8], take a 'back seat' to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits.[8]

[7] (2004) 10 VR 125

[8] Azzopardi (2011) [39], reference to DPP v Lawrence (2004) [132] (citations omitted).

38Your case is one where the seriousness of the offending in each of the charges, or episodes of offending, is at a level that your rehabilitation, because of your youth, must yield to other sentencing purposes of denunciation, deterrence generally and specifically to you, and protection of the community.

39Your counsel urged that given you had already done 600 days or near abouts, on remand, that that could be combined with a lengthy onerous community corrections order, or if necessary, a short sharp additional period of imprisonment, being imposed again with a community corrections order.

40The prosecution urged a sentence of imprisonment where a head sentence and a non-parole period was fixed. 

41I gave anxious consideration to your counsel's submissions and all the material relied on, most importantly, the value in facilitating your rehabilitation, given that you are still relatively young.

42I gave consideration to the sentence that your counsel urged, notwithstanding that you had failed in the past in completing corrections orders.  But in the end in my view, a combined sentence of the time you have served together with a community corrections order would dilute the importance of denunciation, deterrence, and protection of the community and overly emphasise your reform.  I come to the view given the gravity of the offending, that is the shooting at the house in particular, and the driving offences.

43As two judges of the Court of Appeal in DPP v Reynolds[9] made clear, there are limits to how community corrections orders operate as punishment and as a deterrent.  Here, the use of guns to fire into the house, the possession of guns while being a prohibited person, and the outrageous danger caused by driving at over 220 or nearly 230 kilometres an hour on a major road in Melbourne's suburbs, means only further imprisonment is appropriate.  And it must be imprisonment of a length that means by a good margin that no community corrections order can be part of the sentence.

[9] DPP v Reynolds - [2022] VSCA 263 - 71 VR 336

44I have considered the cases provided by the prosecution of sentences imposed for discharging firearms into a house, and also some sentences of my own, including one delivered just last week for this offence.  Those sentences all involved lengthy terms of imprisonment and ultimately head sentences and non-parole periods.

45Doing the best I can in respect of Charge 1, the discharging a firearm into a house, you are sentenced to three years and four months' imprisonment.

46For Charge 2, the conduct endangering life, you are sentenced to two years' imprisonment.

47For Charge 3, being a prohibited person in possession of a firearm, you are sentenced to 12 months' imprisonment.

48For the summary offences you are convicted and fined $400.

49I order that 10 months of Charge 2 and four months of Charge 3 be cumulative upon Charge 1, which gives a total effective sentence of four years and six months.  I fix a non-parole period of three years.

50You have served 600 days in custody thus far on remand.  This figure having been reckoned, I now declare it part of the sentence that I have just imposed.  I will ensure this declaration is entered into the records of the court, so that the prison authorities are left in no doubt that you have already served 600 days of the sentence that I have just imposed.

51Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of six years and six months with a non-parole period of four years and eight months.

52Your licence is cancelled, and you are disqualified from driving in respect of Charge 2 for 14 months.

53Is there any other orders required?

54MR DEVLIN:  There was just the forfeiture, disposal firearm orders.

55HIS HONOUR:  Yes, they will be signed.

56MR DEVLIN:  Thank you, Your Honour. 

57HIS HONOUR:  Is there anything other than that?

58MR DEVLIN:  Nothing further.

59HIS HONOUR:  Thank you.  Mr Barker, anything further?

60MR BARKER:  No, Your Honour. 

61HIS HONOUR:  Very kind, thank you.  

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