Director of Public Prosecutions v El-Sayah
[2023] VCC 1456
•16 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00470
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IBRAHIM EL-SAYAH |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 16 August 2023 | |
CASE MAY BE CITED AS: | DPP v El-Sayah | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1456 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Using a loaded firearm in a public place – Plea of guilty – Delay
Sentence: 58 days’ imprisonment in combination with an 18-month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms U. Ramachandran | Office of Public Prosecutions |
| For the Accused | Mr R. Melasecca | Giorgianni & Liang Lawyers |
HIS HONOUR:
1I will turn to sentence now. And these will be fairly brief reasons. Of course I've dealt with Mr El-Sayah on several occasions before and I commented during the plea, that looking through his criminal record, I can trace it back to my involvement back to September 2018, and he has been before me many times over the intervening years.
2He is now before me for a plea.
3You have pleaded guilty Mr El-Sayah to using a loaded firearm in a public place, that carries a five year maximum penalty and in determining the sentence one of the matters I have regard to is the maximum penalty and I steer by that maximum penalty.
4You have admitted relevant prior convictions. The circumstances of the offending are set out in the Summary of Prosecution Opening for Plea dated 14 June.
Circumstances of Offending
5The incident occurred on 12 July 2020, and so now more than three years' ago. You were the driver of a vehicle. You have stated in the CCO assessment that you were under the influence of substances, ice and GHB I think. I have no difficulty accepting that, giving your history as it has unfolded before me and your very difficult struggle with dependence issues.
6You were the driver of the vehicle, when the vehicle stopped into Broadway, Reservoir outside the Akkaar Pastry shop, the passenger got out and fired eight shots from a 7.62 x 39 millimetre calibre assault rifle at the building, striking the building eight times and causing damage to the front windows and internal walls. That shooter then re-entered the vehicle you were driving and you drove off. It is very serious offending.
Objective Gravity of Offending
7On your plea, I am sentencing you on the basis that I accept on balance that due to your drug-affected state and being the driver of the vehicle and due to an absence of evidence in relation to motive and pre-planning, I am prepared to accept on balance that your role in the offending is substantially less than the shooter. Nonetheless, your offending is still serious and this is a serious example of the offence of using a loaded firearm in a public place.
8I made comment during your plea hearing when Mr Melasecca, your counsel was taking me through the history, and the history of the one which I had dealt with you and also Magistrate Burchill had dealt with you at various times. Without going through the chronology, I have dealt with you in respect of a number of matters, but in the background at all times were contraventions of a CCO. And I did deal with you on repeated occasions in a lenient manner, because you were engaging with drug rehabilitation and drug counselling. And whilst on many occasions it was frustrating, and on many occasions you came close to losing the opportunity, I persisted and gave you an opportunity to continue in your efforts with drug rehabilitation.
9As I said at the plea, had this matter, this shooting matter, emerged in the way of a charge, you were back in 2020 or 2021, I certainly would have gaoled you for it. There is no question about that. It is relevant however to look at the delay and more importantly the effects of delay. What has transpired in the three years since your involvement in the commission of this offence.
Personal Circumstances
10I accept that you are a different person to a not insignificant degree than you were in July 2020. You have a much better handle on your drug dependence issues. You have the motivating factor of your daughter, who you are desperately trying to reunite with, one of the effects of the delay and the charging and remand of you in respect of this matter was the separation of you and your lifetime partner due to bail conditions. And that has also had an impact on the custody of the daughter you share with your lifetime partner.
11
As I understand it, your daughter is now in the care of your partner's parents. You are living with your parents in Broadmeadows with your sister. You are doing your best to try and stay on track. It would seem that you are trying to get back into work, working as a stone mason. You also had a major event occur in February of this year and I accept what has been advanced in relation to that, the shooting, where you were shot. There was much said about that on the last occasion. You were shot and received very serious injuries. You have had
six operations and that has been a major impact on you for this past seven or
eight months. Or seven months I should say.
12It was put that I can regard that as extra curial punishment. There are certainly grave suspicions that it is connected to the publicity that surrounded your role in this offending. It may well be connected, but I am unable to conclude that it is connected and extra curial punishment in that sense, however nonetheless it is still a very significant event that has occurred since the commission of this offence and you being dealt with by me.
Other Factors in Mitigation
13In helpful written submissions, Mr Melasecca made a number of submissions that he advanced that I should accept by way of mitigation and in relation to what I have just mentioned, the shooting, Mr Melasecca summed it up with the heading, good behaviour despite drug use and charges and being shot.
Prospects of Rehabilitation
14In the context of your trajectory over the last five years that you have been before this court, and in the context of what I know about you personally and your struggles with dependence and gravitation towards negative behaviours and what I termed on the last occasion, gangster like behaviour or attraction to that inane behaviour, in that context your progress to date in more recent times since being released from custody in relation to this matter, gives some reason for optimism that you are starting to turn the corner and starting to realise what is at stake in your life. The disposition I am going to give you, you should regard as your final opportunity to make good in relation to what you have told Mr Melasecca and what in turn has been told to me, as your aspirations in relation to your daughter and work, and family.
15
Looking after your own family, your father has some health problems as
I understand. There are a number of matters that were put before me that are motivating for you, so you will now have an opportunity to demonstrate how genuine that is.
16I accept the material that was advanced from Ms Barbagallo, and there is reason for some guarded optimism in your continued progress towards drug rehabilitation.
Plea of Guilty
17
I accept Mr Melasecca's submission that it is a valuable plea of guilty. And in the context of the past three years, we are still in the situation where the utilitarian value of a plea of guilty can be very significant and is very significant, given the state of the trial lists that still persist as a legacy of the pandemic lockdowns.
That value is even greater where there are matters admitted to that could have gone to trial, there could be a triable issue and that is just a forensic fact. And in that context, it is a very valuable plea of guilty, so you get credit for that.
Other Sentencing Considerations
18You did spend 58 days in custody in relation to the matter. As I say, had this matter been dealt with in 2020, 2021 and probably even earlier in 2022, no question you would have been gaoled and 58 days would not be sufficient. But with the passage of time, the orders that you are now under, and the orders that I will now impose, and some reason for optimism over the past 12 months or so, I am minded to accede to your counsel's submission in relation to a combination sentence, which does not exceed time served.
19I have had regard to the prosecution's submissions on sentence. They are excellent. A written document and outline of prosecution sentencing submissions, helpfully provided some reference to other cases which of course are not determinative, they are also very different examples. I have made some observations about this offence before me, being a serious example of the offence of discharging a firearm, but I was assisted by the sentencing submissions. Largely because of the delay factor and the effects of delay, I have determined that a head sentence and non-parole period is not appropriate.
Sentence
20
And accordingly, having regard to general deterrence and denunciation, and what I regard as some better prospects of rehabilitation for you at this point in time than were apparent some years ago, I intend to sentence you to a combination of
58 days imprisonment, in combination with an 18 month Community Corrections Order.
21Special conditions of that Community Corrections Order will be 75 hours of community work, drug and alcohol assessment, treatment, mental health assessment and treatment, supervision, 35 hours of treatment conditions can be credited towards the work. I have also noted the Mental Health Advice Response Service Forensicare report, where it is recommended you have ongoing GP review, psychological counselling to emotionally support you and learn practical psychological skills, and do dual diagnosis counselling to support your goal of sobriety and for education for your mental health vulnerabilities. Now those matters of that report will also be available to Corrections and I assume that those objectives can be addressed through the special conditions I have set on the Community Corrections Order.
22I declare 58 days as pre-sentence detention in relation to the matter.
23
Pursuant to s6AAA, had it not been for your pleas of guilty I would have sentenced you to a total effective sentence of two years' imprisonment with a 15 month
non-parole period. I make the disposal order and the forfeiture order as amended. Withdrawn sorry. I have just been reminded the disposal order's withdrawn. I do not make the disposal order, I make the forfeiture order as amended.
24Now are there any other orders I need to make?
25COUNSEL: No, Your Honour.
26
HIS HONOUR: Do you consent to the Community Corrections Order,
Mr El-Sayah?
27OFFENDER: Yes, Your Honour.
28
HIS HONOUR: All right, well that'll be prepared and I'll sign it and then you can sign it. Now, do we need time to have that prepared? We'll get that done now. All right, it's been signed. All right, you'll get a copy - you'll get copies of that
Mr El-Sayah. As you know, if you commit further offences, or you don't comply with the conditions of that order, you can be brought back before me for re-sentencing. When I said it's your last opportunity, I certainly meant that, so keep that in mind.
29MR MELASECCA: May it please Your Honour.
30HIS HONOUR: Thank you, Mr Melasecca.
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