Director of Public Prosecutions v El-Sayed

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-01534

DIRECTOR OF PUBLIC PROSECUTIONS

ALADIN EL-SAYED

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2018, 15 October 2018
DATE OF SENTENCE:	26 October 2018
CASE MAY BE CITED AS:	DPP v El-Sayed
MEDIUM NEUTRAL CITATION:	[2018] VCC 1739

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW

Catchwords: Sentence – Plea of guilty – Burglary – Commercial burglary – Youthful offender – Reoffending whilst on bail – Community Corrections Order – Combination sentence.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A Harrold	OPP
For the Defendant	Mr T Danos	Giorgianni & Liang Lawyers

HIS HONOUR:

Aladin El-Sayed, you have pleaded guilty to a charge of burglary and a charge of theft committed on 1 July 2016 at Airport West. The maximum penalty for both of these offences is ten years’ imprisonment. You have also pleaded guilty to three charges of possessing a drug of dependence. The maximum penalty for each of these offences is 30 penalty units or one year imprisonment if a trafficking purpose is excluded, otherwise 450 penalty units and/or five years imprisonment.
You have admitted the matters shown on your criminal record.
Tendered as Exhibit A and read aloud in court on 13 September 2018 was the summary of prosecution opening on your plea. The facts set out in Exhibit A are accepted by you through your counsel and form part of these reasons for sentence.
In summary, the facts are as follows:
Burglary and Theft 1 July 2016 at Airport West
On 1 July 2016 in company with co-accused Bilal Ersoy, Badr Taleb, Ibrahim El-Sayah and Ghazi Omar, you attended at Westfield Shopping Centre, Airport West at around 3:30 am. You arrived at the shopping centre in a stolen BMW SUV. You pulled up outside the main entrance of the plaza. Four of your group got out of the vehicle and a Makita brand angle grinder was removed by one of you. All of you were wearing dark clothing and head coverings. A jemmy bar was used to force open the glass sliding doors to enter the shopping plaza.
A Tobacco Station General store was located approximately 700 metres from the front entrance. The angle grinder was used on the lock on the metal door of the store to gain entry. Inside the store a jemmy bar was used to force open the locked cigarette cabinets located behind the register.
You had with you a doona cover. The cigarettes and tobacco products in the cabinets were emptied into the doona cover and carried from the store to the BMW.
The BMW and whoever was driving the BMW remained outside the store driving around the car park whilst four of your group were inside.
Two of your group returned to the Tobacco Station General store a second time with a shopping trolley which was filled up with more cigarette packets. Eventually you all returned to the vehicle and made your escape.
Police were alerted and approached the plaza. You were observed to be leaving in the BMW at high speed and evaded police.
The prosecution have not alleged any value in relation to this offending. It is apparent however from telephone intercepts following the burglary that you each stood to gain in the vicinity of $3,000 as a result of your crimes.
You were arrested on 7 October 2016 at your home address in Pascoe Vale. Investigators seized from your bedroom a cigarette packet containing three vials of steroids, each containing the drugs of dependence testosterone, trenbolone and nandrolone which are Charges 5-7 on the indictment, possess drug of dependence.
Pre-sentence detention
You spent one day, before being bailed, and that day will be reckoned as pre-sentence detention.

Loss not Quantified

The burglary and theft offences fall into a category of offending which is sometimes referred to as commercial burglary. The offence required considerable planning. Tools were required to effect the break-in. You and your co-offenders wore disguises to avoid detection via CCTV surveillance. You targeted a store where you knew you would reap considerable financial gain from the sale of cigarettes. Unlike many examples of offending that falls into this category the value of the thefts or the loss to the business has not been quantified.
Personal Circumstances
You were born in Victoria on the 20^th July 1996. You have one older sister, two younger sisters and a younger brother. Your parents divorced when you were aged ten. You lived with your mother following the divorce. You have reported that your father did not care about the family and started a new family. From a young age you saw yourself as responsible for providing for your family. You have recollections of your father beating your mother even when she was pregnant. You were also beaten by your father. You have a good relationship with your mother. You have lived in the family home throughout periods of disruption in your life, including periods of offending and prior to your recent incarceration.
You attended Fawkner Islamic College and Fawkner High school. You left school during Year 9. You reported to psychologist, Dr Aaron Cunningham, that you were regularly expelled from school for fighting. You also reported to him that you have been expelled from approximately three different TAFE courses.
You are a qualified mechanic and worked in the trade for four years. You moved out of that employment because you did not like the conditions of that sort of a job. You worked in roof plumbing in 2017 until you suffered serious injuries in a motor vehicle accident in September last year.
The use of illicit drugs has been a problem for you and has been one of the motivations for your offending. You used cannabis from the age of 14. You used cocaine and methylamphetamine from the age of 18. At the time of the offending you were using ice and cocaine. These substances have continued to be an issue for you and may have played a role in subsequent offending also.
On 23 September 2017 you were involved in a significant motor vehicle accident. You suffered fractures in your lower back and did not walk for three months. You were in hospital for two weeks and spent two months in rehabilitation. You were in a wheelchair for four months. You have ongoing difficulties arising from that collision, including a shoulder injury. Dr Cunningham noted in his report dated 10 September 2018 that you experienced depression prior to the motor vehicle accident in September 2017 as well as suicidal thoughts.
In Dr Cunningham’s opinion your presentation is consistent with symptoms of trauma. You were exposed to trauma as a child due to your father’s violence. In Dr Cunningham’s opinion this trauma likely underlined your aggression during schooling. In Dr Cunningham’s opinion your trauma was aggravated by your motor vehicle accident in 2017. Dr Cunningham notes that you engaged with some psychological treatment for trauma through the TAC but you are currently not engaged in psychological treatment.
Your mother confirmed to Dr Cunningham that you have acted in a paternal role for your younger siblings. Your mother also noted that the motor vehicle accident not only caused disruption to your employment but changed you from your "old self" as you got frustrated at your disability.
Dr Cunningham formed the view that the burden of taking on the role of financial provider for your family when your father left was something you struggled with understandably. He concluded that you used drugs to manage your anxiety and also associated with drug using peers.
Prior Criminal History and Subsequent Offending
Your criminal record discloses three prior appearances. On 15 February 2012 you appeared in the Children’s Court at Broadmeadows for theft of a motor car and received a good behaviour bond without conviction.
On 8 July 2015 you were convicted at Broadmeadows Magistrates' Court of assaulting an emergency worker on duty, damaging property and unlawful assault. You were convicted and sentenced to a 12 months' community corrections order to perform 200 hours of unpaid community work.
On 5 May 2016 you appeared at Broadmeadows Magistrates' Court for driving offences including the offence of driving in a manner dangerous and driving whilst your authorisation was suspended. You also appeared in relation to handling or receiving stolen goods as well as contravening the community corrections order imposed on
8 July 2015. You received an aggregate term of two months' imprisonment and were placed on a community corrections order. This community corrections order had only been in place for less than two months when you committed the offence the subject of Charges 1 and 2 on the indictment.
When the plea in this matter commenced on 13 September 2018 you were on bail. Mr Danos, who appeared on your behalf, sought an adjournment of your plea due to the need for clarification of the extent of your shoulder injury and the treatment that was being scheduled regarding your shoulder. After the opening the further hearing of your plea was adjourned. On the further hearing of your plea on 15 October I was told that during the period of adjournment you had reoffended and are currently serving a sentence.
Your subsequent matters were placed before the court. On 31 January 2017 you were before Melbourne Magistrates' Court in relation to charges of theft, driving whilst disqualified, fraudulently altering an identifying number and possessing cocaine. You were convicted and fined and orders were made against your licence.
On 15 February 2017 you appeared in the County Court at Melbourne in relation to your appeal of the sentence imposed on 5 May 2016. That appeal was allowed and you were released on a two year community corrections order.
On 9 March 2017 you were convicted and fined $250 at Heidelberg Magistrates’ Court in relation to a charge of theft from a shop. On 19 December 2017 you were dealt with in relation to contravening a community corrections order (which relates to the order imposed on 5 May 2016) and the order was confirmed.
On 18 July of this year you appeared before the Melbourne Magistrates’ Court in relation to charges of reckless conduct endangering serious injury, committing an indictable offence whilst on bail, possessing a prohibited weapon, unlawful assault, unlicensed driving and possessing anabolic steroids. You were sentenced to seven days imprisonment in relation to those matters.
On 4 October of this year you appeared in the Melbourne Magistrates' Court in relation to a theft of a motor vehicle, driving whilst disqualified, committing an indictable offence whilst on bail, reckless conduct endangering life and possessing a Schedule 4 poison. You were sentenced to a period of three months' imprisonment.
On 11 October 2018 you appeared in the Broadmeadows Magistrates' Court in relation to charges of failing to stop a vehicle on police direction and driving whilst disqualified. You received an aggregate sentence of two months' imprisonment to be served concurrently with the earlier sentence. The offences that were the subject of your appearance at Melbourne Magistrates' Court on 4 October were committed on 28 September this year. The appearance on 11 October of this year related to offences committed on 2 July 2017.
It is of great concern that you have committed further offences whilst on bail for the matters before this Court. It is of even greater concern that you offended in the period during the adjournment of your part heard plea hearing.
Your performance on bail whilst awaiting the resolution of these matters places you in a very distinct position from your co-offenders El-Sayah, Omar and in particular Mr Taleb.
Youth
I turn now to our youth. You were the youngest of your co-offenders, being 19 years old at the time of the offending. You are now 22 years old. You can call upon your youth in mitigation, your youth at the time of the offending which is now more than two years ago, as well as your relative youth at the time of sentence.
Your youth has relevance as a sentencing consideration in this case in a number of ways. Firstly, young or relatively youthful offenders such as you were, are often immature and are prone to ill-considered decisions. Young or youthful offenders may lack the degree of insight, judgment and self-control that is possessed by an adult. They may not appreciate the nature, seriousness and consequences of their criminal conduct to the same degree.
Importantly, courts recognise the potential for youthful offenders to be redeemed and rehabilitated. Rehabilitation of youthful offenders is in the community’s interest.
It is also recognised that incarceration of youthful offenders will more likely impair than improve the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench criminal behaviour and exacerbate anti-social tendencies.
I accept the importance of these considerations and give them considerable weight. You are not a "young offender" within the meaning of the Sentencing Act but you are relatively youthful.
The sentences imposed reflect the considerable weight I have given to the mitigatory effect of your youth.
CCO Assessment
You were assessed as suitable for a community corrections order. You have been assessed as high risk of reoffending. This is not surprising given the point made in the assessment that and I quote from it,
"Mr El-Sayed has previously been subject to three community corrections orders and has contravened each of them by way of further offending".
The assessment report also states:
"Should Mr El-Sayed receive a further CCO he intends to limit his contact with negative peers and focus more on supporting his family. Mr El-Sayed stated he would like to engage with mental health support and create a mental health plan for further rehabilitation. Mr El-Sayed reported to be aware of what he should and should not be doing and believes this time he will keep out of trouble."
Parity
I have considered the issue of parity with your co-offenders. As I have already noted, the circumstances of your offending are essential identical to those of Mr Taleb, whom I have already sentenced.
Mr Taleb was 22 at the time of the offending and was 24 years of age at the sentence. Whilst you are younger than Mr Taleb your history at the time of the offending was worse than his. You had received a sentence of imprisonment in combination with a community corrections order less than two months prior to your offending on these matters. A more significant difference between your personal circumstances and those of Mr Taleb is that he was able to demonstrate powerful rehabilitation during the period of delay between the commission of the offences and the date of sentence. In contrast you have reoffended in circumstances which are concerning.
As was conceded on your plea hearing these circumstances require that I impose a sentence on you that is disparate from the lenient sentence I imposed on Mr Taleb.
In arriving at the sentence I will impose on you I have also applied the principle of parity to the extent I am able in relation to co-offenders Omar and El-Sayah.
Pleas of Guilty
Your pleas of guilty have not been entered early but nor should they be considered late pleas. You were facing a vastly different indictment to the indictment you have pleaded guilty to. There are legitimate forensic decisions at play which militate against the entry of pleas to a multi count indictment before it is resolved satisfactorily.
I accept that there is a significant utilitarian benefit in your pleas and I also accept your pleas are indicative to some degree of remorse and contrition.
Objective Gravity of Offending
I want to turn now to the objective gravity of the offending. The charges of burglary and theft you are to be sentenced for, as I have said, fall into the category of commercial burglary. Primarily the motivation was financial gain although in your case addiction to drugs played a role also. I am quite sure too that peer approval or pressure, the impulsivity of youth and perhaps a level of excitement were also contributing factors.
The offending is extremely serious. I viewed the CCTV footage tendered by the prosecution as far as it relates to you. It provides a vivid picture of your offending, the degree of planning, the break-in, the heist and the getaway.
On the face of it, this is organised criminal activity at a disturbing level for young men such as you and your co-offenders.
The objective gravity of the offending, as expressed in the prosecution opening and as depicted on the CCTV footage, calls for punishment. It calls for a sentence that will satisfy the need for general deterrence. It calls for sentences that will express appropriate denunciation. In your case, a sentence directed towards specific deterrence is also called for.
You can stand up now please, Mr El-Sayed.
Sentence
On Charges 1 and 2 being the charges of burglary and theft committed on 1 July 2016 I sentence you to an aggregate sentence of three months' imprisonment in combination with a community corrections order. I impose an aggregate sentence on those charges as they form a series of offences of the same character.
I direct that two months of the sentence be served cumulatively upon sentences you are currently undergoing.
The community corrections order is of two years duration. You will be required to perform 250 hours of unpaid community work. You are to undergo treatment and rehabilitation programs to reduce your reoffending behaviour. You are also to be assessed for mental health treatment and rehabilitation. Up to 50 hours of treatment and rehabilitation programs can go towards satisfying the unpaid community work condition.
You should bear in mind, Mr El-Sayed, that this sentence has a considerable aspect of it directed toward your rehabilitation. Make sure you take the opportunity. If you fail in complying with this opportunity with the community corrections order or if you reoffend, you will be simply back before me and my options will quite clearly be considerably constrained.
I declare that you have already served one day of pre-sentence detention and this period is to be reckoned as time already served under the sentence that I impose.
On each of Charges 5, 6 and 7, possessing drug of dependence, you are fined $250 on each charge making a total fine of $750.
Pursuant to s.6AAA I declare that but for your pleas of guilty I would have sentenced you to an aggregate total effective sentence of 14 months' imprisonment with a non‑parole period of eight months.
Any other matters?

MR DANOS:Just in relation to the fine, Your Honour, given that he's now going to be in custody until the early part of next year I'd seek a stay of six months.
HIS HONOUR: Yes. I was told that we don't give stays any more. I think it's in the legislation. Yes, I won't order a stay. As I understand it's something that is taken up with Fines Victoria and whether they can be converted well it's a matter for them. So I won't order a stay.
MR DANOS:If Your Honour pleases.
HIS HONOUR: Any other matters?
MS HARROLD: No, Your Honour.
HIS HONOUR: No, all right. Mr El-Sayed, he's got to sign the corrections order.
Mr El-Sayed, you consent to the community corrections order? You consent – the effect of the sentence is that whatever your release date currently is you've got an extra two months and then you'll be released on a community corrections order.
OFFENDER: So extra two months on my release date?
HIS HONOUR: Yes and then you'll be released on a community corrections order and the conditions that apply, unpaid community work 250 hours over the two years of the order. The order will go for two years from the date of your release. You'll have supervision, also treatment and rehabilitation. Just a moment. We'll just have to amend this and print it off before it's signed but we'll get you to sign it.

MR DANOS:Might I approach, Your Honour?
HIS HONOUR: Yes and just explain, Mr Danos, 250 hours, 50 hours of whether it be mental health treatment or drug treatment will go towards that. All right. Yes. Mr Danos, the order's here if you want to show it to your client and get his signature if he consents. Thank you, Mr Danos. I'll now sign that order, Mr El-Sayed, and Mr El-Sayed can be taken out now. All right. What's next?
MR DANOS:I wonder if we - Your Honour, if we could get a copy?
HIS HONOUR: Get a copy? Yes.
MR DANOS:Yes please.
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[2018] VCC 1739

26 October 2018