Director of Public Prosecutions v El-Sayegh
[2022] VCC 506
•25 March 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02022
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FADI EL-SAYEGH |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 January and 25 March 2022 | |
DATE OF SENTENCE: | 25 March 2022 | |
CASE MAY BE CITED AS: | DPP v El-Sayegh | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 506 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Possession of trafficable quantity of firearms and related offences, implausible account given as to provenance, relevant prior convictions, early plea, prospects for reform – family support, employment and amenable to treatment, concession from DPP that combination sentence open.
Legislation Cited: Firearms Act 1996 (Vic); Drugs, Poisons and Controlled Substances Act1981 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:R v Verdins (2007) 16 VR 269; Djemal v The Queen [2020] VSCA 25; DPP v Fleiner [2010] VSCA 143; DPP v Weybury (2018) 84 MVR 153; Lee v The Queen [2018] VSCA 343; DPP v Tran [2020] VCC 1667; DPP v Xuereb [2019] VCC 984; DPP v El Hage Hassan [2018] VCC 771; DPP v Koukas [2019] VCC 573; DPP v Grixti [2018] VCC 943; DPP v Clarke [2018] VCC 966; DPP v White [2019] VCC 367; Kim v The Queen [2019] VSCA 149; DPP v Bruce [2020] VCC 1321; DPP v Schmidt [2020] VCC 660; DPP v Piscopo [2021] VCC 1310; DPP v Quadara [2017] VCC 366; DPP v Cragg [2021] VCC 1896; Re Elias [2020] VSC 502; Worboyes v The Queen [2021] VSCA 169; Rossi v The Queen [2021] VSCA 296; Boulton v The Queen (2014) 46 VR 308.
Sentence: 18 months imprisonment with 2 year CCO (with conditions), s 6AAA declaration – 4 years and 6 months imprisonment with non-parole period of 3 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr E Goldman | Office of Public Prosecutions |
| For the Accused | Mr R de Kretser | Slades and Parsons |
HIS HONOUR:
Introduction
1Fadi El-Sayegh, you have pleaded guilty to an indictment containing one charge of possession of a traffickable quantity of firearms which has a maximum penalty of 10 years imprisonment; four charges of possession of a drug of dependence, namely cannabis which has a maximum penalty of five penalty units, steroids (maximum penalty one year), diazepam (maximum penalty one year), and diphenoxylate Hydrochloride (maximum penalty one year).
2You have also consented to this Court hearing and have pleaded guilty to the related summary offences of being a non-prohibited person being in possession of a firearm (maximum penalty two years or 240 penalty units); one charge of possession of cartridge ammunition while not the holder of a firearm licence (maximum penalty 40 penalty units).
Circumstances of offending
3The matters were set out in the written Summary of Prosecution Opening tendered on the plea.[1]
[1]Exhibit A: Summary of Prosecution Opening dated 23 December 2021.
4On Wednesday 7 April 2021 at approximately 7:58 pm, investigators from the Mill Park Divisional Response Unit attended your home in Lalor for the purposes of serving and executing a Firearms Prohibition Order (‘FPO’) on your bother Fouad.
5Investigators attended the front door and were greeted by your father Ziad. Ziad advised investigators that Faoud had just left home, Ziad contacted him, and he returned home a short time later.
6Detective Acting Sergeant Andrew Howard served and explained the requirements of the FPO, and provided Faoud an opportunity to declare any firearms or firearm related items. Faoud stated he had no firearm or firearm related items within the house or in his vehicles. Once the FPO was served, investigators searched the house.
7One of the bedrooms within the house had a lock on the bedroom door, Ziad and Faoud advised investigators that this particular room belonged to you, and you were the only occupant within the house that had a key to open the door.
8Faoud contacted you to return home for the purposes of opening the bedroom door. In the meantime, investigators kept searching for firearm related items.
9Senior Constable Michael Castelleno searched a vehicle that was parked in the driveway being a 2014 Toyota Hilux registration 1OU 4KK registered to your brother. Senior Constable Castelleno located and seized the following items in that car:
a. 1 x Double Barrel Shotgun;[2]
b. 3 x Shotgun Shells;[3]
c. 1 x black Calvin Klein duffle bag;[4]
d. 1 x black Remington Pump action Rifle with the serial number erased;[5]
e. 9 x 30/30 rounds of ammunition;[6]
f. 1 x Winchester 94 30/30 and rifle magazine;[7]
g. 3 x boxes of 30/30 ammunition and 1 x box of 22 ammunition;[8]
h. 2 x imitation firearms;[9] and
i. 12 x bottles containing steroids and growth hormones.[10]
[2]Depositions, Exhibit 2: 1 x Double Barrel Shotgun.
[3]Depositions, Exhibit 3: 3 x Shotgun Shells.
[4]Depositions, Exhibit 4: 1 x Black Calvin Klein Duffle Bag.
[5]Depositions, Exhibit 5: 1 x Black Remington Pump Action Rifle (serial number erased).
[6]Depositions, Exhibit 6: 9 x 30/30 Ammunition and Rifle Magazine.
[7]Depositions, Exhibit 7: 1 X Winchester 94 30/30 Rifle.
[8]Depositions, Exhibit 8: 3 x Boxes of 30/30 Ammunition and 1 x Box of 22 Ammunition.
[9]Depositions, Exhibit 9: 2 x Imitation Firearms.
[10]Depositions, Exhibit 11: 12 x Bottles containing Steroids and Growth Hormones.
10At 8:40pm Senior Constable Matthew Yarwood formally arrested Faoud, who was transported to the Mill Park Police Station.
11You returned home and took responsibility for the contents within the vehicle. Your father stated to police that you had been 'occupying' the vehicle for about three weeks.
12You provided an account to police regarding those items, namely that you found the items within bags, when you believed that they were dumped in the parklands area from unknown people across the road from your house.
13You were arrested at your home and searched on 7 April 2021. Police found the keys to enter your bedroom, they then searched that room.
14Once they did, they located the following items:[11]
a. 2 x containers of Diazepam;[12]
b. 1 x packet of Diazepam;[13]
c. 1 x Diphenoxylate Hydrochloride;[14]
d. 2 x bags of cannabis (24.3 grams);[15] and
e. 1 x 30/30 calibre ammunition round.
[11]Photographed in situ at Depositions, p. 91 and following.
[12]Depositions, Exhibit 19: 1 x Packet of Diphenoxylate Hydrochloride.
[13]Depositions, Exhibit 18: 1 x Packet of Diazepam.
[14]Depositions, Exhibit 19: 1 x Packet of Diphenoxylate Hydrochloride.
[15]Depositions, Exhibit 20: 2 x Bags of Cannabis (24.3 grams).
15You do not hold a firearms licence and you were unlawfully in possession of the firearms and cartridge ammunition. Likewise, you had no lawful authority to possess the drugs of dependence that I have just outlined.
16I will turn now to your interview. You told police that at approximately 2:20 am on 5 April 2021 you returned home from work and not too long after returning, you heard noise coming from the parklands across the road from your house. You went to the front door and you observed two males dump duffle bags and enter a car which took off at a fast rate of speed. You then went and investigated what was in the bags as you thought there might have been money. Once you looked inside the bags and located the guns, you stated you did not know what to do with them, so you placed them in the back of your brother's car that you were using.
17I will return on how I treat this account later in my reasons. It is sufficient to say now that I reject this account entirely.
18You were charged with a number of offences and remanded in custody. You have spent 352 days (or about 11 and a half months) on remand to date.
19After the matter was listed for committal mentions in July and September of 2021, the matter resolved, and you made a summary jurisdiction application which was ultimately refused.
Matters personal to you[16]
[16]I was provided with a comprehensive set of written submissions on the plea (Exhibit 1: Outline of Plea Submissions), supported by a raft of materials. I have also drawn from your personal history as reported in the extended CCO report (Exhibit 9: Extended Pre-Sentence Assessment Report dated 04 March 2022).
20You are now 39 years of age and were 38 at the time of the offending. You were born in Melbourne to Lebanese Muslim parents. You have been raised in Lalor. Your father drove taxis. Your mother devoted her time to raising you and your three siblings. It is clear both of your parents worked hard to provide opportunities for you and your siblings.
21You have limited contact with your sisters. Fouad currently lives with your parents. You propose to return to live with them once you are released.
22Despite being an average student, you managed to complete VCE and commenced tertiary studies at NMIT in 1999 where you studied Business Marketing for 18 months. You did not like that and joined the workforce as a mechanic. You also studied Arabic in your teenage years.
23You reported that whilst you were working as a mechanic, you were enrolled in trade school but never attended as your employer was not particularly supportive of this and always needed you to complete work in the shop. You started getting involved in crime to support yourself given your financial stressors.
24You successfully operated a landscaping business which you started in 2009 or 2010. This coincided with a sustained period of stability in your life and no involvement in the criminal justice system.
25After working as a mechanic, you commenced working in the construction industry. You worked at Prime Build previously. Prior to your work at Prime Build, you were employed with Condello Constructions as a First Aid Safety Officer doing Inductions and Covid cleaning. This is where you were employed at the time of the offending, albeit on light duties, part time and on night shift.
26You have work to go to upon your release again with Condello Constructions as a general labourer (with accommodation being made for your health after your injury).[17] You have obtained certificates in Traffic Control, Traffic Management, First Aid and Safety.
[17]Exhibit 8: Letter from Anthony Condello dated 16 September 2021.
27In January 2020 you suffered a serious shoulder injury while you were on holidays. This significantly impacted on your wellbeing and employment activity. You feared you would lose your arm. The injury eroded your sense of self, self-worth and ability to work or gain pleasure from physical activities. You apparently became depressed and dependent on strong pain killers.[18] Surgery took place in September 2020 which was, at $15,000, an expensive procedure.[19] You suffered a decline in mood, disturbed sleep and symptoms of depression.
[18]Exhibit 5: Patient Health Summary from Resolve Medical Centre dated 15 June 2021 is said to represent the medications you were on at the time of offending, many of which relate to pain relief.
[19]Exhibit 4: Letter from Dr John Salmon, Orthopaedic Surgeon dated 30 June 2020.
28Your friend, Ms Omar, who has known you since birth, says that you were happily partnered with a fiancé and her two children for nearly five years until that surgery. This broadly corresponds with your most recent period where you have not come to the attention of authorities.[20]
[20]Exhibit 7: Letter from Marcella Omar dated 8 August 2021.
29You were in a relationship with your partner, Ada, for five months prior to your remand. You have found maintaining that relationship difficult for obvious reasons. You want to work on this relationship, and it is hoped that this relationship will improve once you are released.
30You reported to the CCO assessor that in the community you would spend most of your time with your partner. You deny any contact with negative peers prior to incarceration. Over the years you reported that you did associate with negative peers, but not to any great degree. Whatever the circumstances of your release, including living arrangements, you will need to be mindful of being around those who live pro-social lives.
31You have no dependants. You live at home with your parents. You have a decent work history. Nonetheless you have apparently had 'financial issues' for years. A cause, perhaps not the sole cause, of these financial issues became clearer in the process of having you assessed for a CCO.
Forensic and substance abuse history
32You started using cannabis at 19 years of age. You then experimented with speed, ecstasy and other drugs. You had some history with alcohol, but this increased about a year prior to your incarceration due to relationship issues.
33You told the CCO assessor that prior to this offending, you were using cocaine heavily. You started using every weekend and then reportedly started using even more regularly. You were spending around $600 a week on cocaine and this habit caused a lot of financial stress. This differs from what you apparently told Ms Lechner,[21] whereby your cocaine use was said to be limited to the year before your relationship ended and only occurred on weekends for a year. Your frankness in this regard is important, as it is only once you have acknowledged the full extent of your issues, can you now start to work properly towards your reform.
[21]Exhibit 3: Report of Ms Carla Lechner, Psychologist dated 19 December 2021, p. 4.
34Now, it seems at the time of the offending that you had debts for drugs. Those debts have not been paid. The risks to you in managing any interactions you are to have with those to whom you are indebted is obvious. So too is the potential means you might wish to use to make good that debt upon your release.
35In custody, you have engaged in drug and alcohol courses and significantly have just been appointed the drug and alcohol counsel peer support worker for your unit.[22] You will clearly need drug and alcohol treatment and assessment upon your release. It is encouraging that you appear to be committed to your reform in this sense. Whether your desire to reform translates into action remains to be seen.
[22]Exhibit 11: Letter of Jessica Martino dated 15 March 2022.
36I also note that you have engaged in courses offered by the Box Hill Institute relating to workplace safety and the like.[23]
[23]Exhibit 13: Bundle of Certificates.
37By way of forensic history, you admit a prior criminal history that has unhappy similarities to the matter before me — namely you have prior convictions for both possessions of drugs and weapons. You were not, I add, a prohibited person with respect to the possession of any firearms in this matter.
38Your prior history commences more than two decades ago in 2000 when you were 18. You were dealt with for charges of burglary, theft, use false document x 6, obtain licence by misrepresentation, make false document x 5. You were given a Community Based Order then for six months. I note you completed it.
39On 24 February 2003, you were dealt with for possession of controlled weapon, possession of dangerous article and possession of ecstasy. You were given a sentence of one month imprisonment suspended for 12 months and a fine.
40On 20 June 2005, you were dealt with for assault with an instrument x 2 and use threating words in public. You were fined. I am told that the instrument in question was a spatula. You were also dealt with for breaching the suspended sentence I just mentioned. No action was taken.
41On 3 October 2006 in this Court you were sentenced to a total effective sentence of two and a half years with a non-parole period of 20 months. This was for trafficking amphetamine and ecstasy, dealing with the proceeds of crime x 2, possess handgun, possess cocaine, possess controlled weapons x 2. This meant you were released in May 2008 and successfully completed parole in March 2009. This has thus far been the only time that you have been imprisoned. I am informed that the handgun was a bb gun that discharged pellets.
42You had further drug offences dealt with — first on 21 January 2015 for possess drug and fail to answer bail where you were fined a modest amount and in August the same year you were again dealt with for possess drug, possess material to manufacture or traffick drug and possess controlled weapon. You were again fined.
43In 2017, you were placed on a 12 month bond in NSW for a charge of common assault.
44You were fined in April 2019 at the Magistrates' Court in Melbourne for a charge of theft and a parking offence.
45Your criminal history ends there. You were not the subject of bail, parole or any other supervisory orders at the time of this offending. I note that when you have been on supervisory orders, you have complied with and completed them. I also note, which I will deal with later in these reasons, that in the view of the assessor, you still present as a high risk of re-offending.
46In terms of your psychological functioning and drug rehabilitation, as I alluded to earlier, you were assessed by psychologist, Ms Carla Lechner on 22 November 2021.[24] She diagnosed you as meeting the criteria for Major Depressive Disorder. She was of the view that you were of
'average intelligence' [and your ability to] engage in reflective and consequential thinking has been undermined by [your] low mood and tendency to interpret the world around [you] in a negative light. This has also affected [your] problem-solving skills. [You tend] to be impulsive in nature and will often do things without thinking of the potential longer-term outcome.[25]
[24]Exhibit 3: Report of Ms Carla Lechner, Psychologist dated 19 December 2021.
[25]Ibid p. 3.
47The disorder arose in response to a number of environmental stressors including your shoulder injury and resultant chronic pain, limitations on employment and the breakdown of a long-term relationship. You were suffering from a depressed mood, poor sleep routines and chronic pain at the time of the offending.[26]
[26]Ibid p. 7.
48Whilst Ms Lechner is of the view that at the time of offending your ‘apparent lack of clear thinking could be linked to his depressed mood state’ sensibly in my view,[27] no reliance was placed on the principles of R v Verdins[28] limbs 1 through to 4.
[27]Ibid.
[28](2007) 16 VR 269.
49Ms Lechner opines that you are struggling from ongoing depression in prison and ‘would benefit from psychological supports that are not currently available in custody’.[29] Whilst your mood has improved slightly since your initial incarceration, the severe prison conditions have contributed to your depressed mood and are likely to continue to do so in the immediate future. Access to therapeutic treatment remains limited in a custodial environment.
[29]Exhibit 3: Report of Ms Carla Lechner, Psychologist dated 19 December 2021, p. 2.
The offending
50Apart from these matters personal to you, I must also have regard to the gravity of your offending. In part that question is informed by the manner in which you are said to have come in possession of the firearms.
51I will turn to the question of fact finding now. First of all, I will deal with the version advanced on your behalf.
52Your counsel submits on instructions that your interview should be considered a full and frank one, such that it ought to be adopted as the factual basis for this offending.
53Specifically, you gave the following responses to questions in your interview:
a. you opened one or two bags and realised they contained firearms;[30]
b. you believed that by retaining the firearms, you were ensuring that they did not fall into the wrong person's hands;[31]
c. you admitted that they should not have been in your possession, but were concerned about the implications of handing them into police;[32]
d. you contemplated how to go about handing them in but did not get around to it;[33]
e. you did not touch the imitation firearms, but thought they looked like firearms;[34]
f. you did not know the imitation firearms were mere imitations and stated ‘oh great’ when advised by police the items were, in fact, cigarette lighters;[35]
g. you did not know how the single round of ammunition from the bag came to be in your bedroom;[36]
h. you were unaware that one of the firearms was loaded;[37] and
i. you possessed the drugs in your room for pain management following shoulder surgery.[38]
[30]Record of Interview (‘ROI’) Q192–4 (Depositions p. 141).
[31]Ibid Q123 (Depositions p. 131).
[32]Ibid Q156–7 (Depositions p. 135).
[33]Ibid Q160 (Depositions p. 136).
[34]Ibid Q540–1 (Depositions p. 175).
[35]Ibid Q545 (Depositions p. 175).
[36]Ibid Q718 (Depositions p. 191).
[37]Ibid Q735 (Depositions p. 193).
[38]Ibid Q836 (Depositions p. 205).
54It was conceded that you were aware that the items that you came into possession of were illegal.
55One of the firearms was loaded and the other two had matching ammunition located in close proximity. None of the firearms have been forensically examined for your DNA or fingerprints.
56Your counsel asserts that you immediately provided an account, which has remained consistent throughout the investigation process. You provided fingerprints and DNA to police. However, the firearms, imitation firearms and ammunition were not forensically examined to determine whether any forensic material was deposited on items that you denied touching.
57So, the argument goes, your account has not been refuted, and on balance should be accepted. To sentence you on those facts would indeed mean that your offending was less grave that it otherwise might be — you would be sentenced on the basis you made no active steps to acquire the weapons, that they were acquired by you almost by accident and retained by way as something akin to a public service to prevent them from falling into the hands of, in your words, ‘the wrong people’. I am being asked to sentence you on the basis you simply did not really know what to do with them once you clearly knew what they were.
58Whatever plausibility this argument had, which was effectively none, evaporated when, during the course of being assessed for a CCO, yet another version emerged about what you knew about the contents of the bags. That version is as follows, and I note your counsel does not wish to be heard further on the circumstances of your acquisition of the weapons, and I quote:
According to Mr El-Sayegh he was living at his parents' property at the time. Mr El-Sayegh came home from night shift where he saw two people placing a black bag in a park that was across the road of the property. He went over to the park and took the duffle bag as he believed it contained ‘cash’. When he took the bag, he reported he put the bag in his brother's car. He went to the park and took this bag but stated he did not check what was in the bag. He stated he did not know that the bag actually contained firearms. The police came to the property the night after in relation to a firearm prohibition order pertaining to his brother. At this time the firearms were seized, and Mr El-Sayegh indicated that he did not know the bag consisted of firearms.
The police summaries do not identify the lead up to how Mr El-Sayegh obtained the firearms. Therefore, Mr El-Sayegh's account of what occurred is not consistent with the police summaries. Mr Sayed reported he was not aware that the bag had firearms inside it, and he took the bag as he had financial stressors at that time and needed the money. Mr El-Sayegh stated if he knew they were firearms [in the bag] he would have handed them into police.[39]
[39]Exhibit 9: Extended Pre-Sentence Assessment Report dated 4 March 2022, p 2.
59The Crown rightly says that if I am to sentence you for this offending on the basis of the answers given in your interview, the onus will be on you to satisfy me on the balance of probabilities of the veracity of that account.
60The Prosecution understandably does not accept the position that your interview should be adopted as the basis for your offending for the following combination of reasons:
a. Your account as to how you came into the possession of the firearms and ammunition is highly implausible,
b. Your account is not supported by evidence other than your interview,
c. Your account minimises your culpability in the offending,
d. Your account does not explain how or why ammunition was found in your bedroom drawer that could be fired from one of the firearms found in your car,
e. And the contradictory explanation given during the CCO assessment process that you never knew what was in the bag.
Analysis
61I find that the account that you gave to police is inherently implausible. The notion that you happened upon this bag of weapons in a park near your home, where there was nearby activity at the time that you got home from work, is fanciful. That for some reason you thought someone might have left duffle bags of cash — as told to Ms Lechner — is in itself absurd. That there is no DNA evidence or otherwise tells me nothing about the circumstances of your true acquisition of these firearms. There is an absence of evidence that you had thus far handled them. In your interview you described the items in the bag with accuracy and clarity. Later you tell the CCO officer you did not know what was in the bag at all. All of these things mean your account is one that I cannot accept on balance.
62If your account is to be accepted, just for a moment, that a man with such an unfortunate history of possessing weapons in the past might have difficulty handing these items in, I cannot accept that you left the bags in your brother’s car, thought about handing them in, but then somehow just did not get around to it.
63You note several times in your interview you were concerned about the firearms getting into the wrong hands, but never spoke to a lawyer or the police, anonymously or otherwise, about handing them in. Further, they remained in the vehicle where they could have been taken by a third party.
64What is unexplained — and can only be explained by you and has not — is why there is ammunition of the very kind used by one of the weapons found in your bedroom.
65I am left in the troubling position where I cannot sensibly accept your account as to how you acquired these firearms, and I am left with no explanation I can act on how or why you would be in possession of items so dangerous as these. It was floated that I might find that you had admitted possession in circumstances where others, perhaps your brother, was the true possessor of the items. There is no evidentiary basis for me to conclude so.
66In summary, I find your lack of candour about these events troubling.
Matters relevant to assessment of gravity of offending
67In general terms, the Prosecution submits that Charge 1 on the indictment is a serious offence, and so much so is sensibly conceded at paragraph four of your counsel’s very articulate submissions. The maximum penalty fixed for that charge is 10 years’ imprisonment, which is reflective on how Parliament views possession of trafficable quantities of firearms.
68Having regard to authorities such as Djemal v The Queen,[40] the way in which to treat offences of this kind, and why, is clear. The Court said:
The accumulation of weapons, in a domestic setting, is a serious matter. The nature and quantity of the weapons is significant. The applicant [I pause to note in that case] did not provide a reasonable explanation for possessing the weapons. [I also add, nor did you, Mr El-Sayegh.]
The maximum term of imprisonment for possession of a traffickable quantity of unregistered firearms is 10 years’ imprisonment. As explained in DPP v Fleiner,[41] the offence of possession of a traffickable quantity of unregistered firearms is based on s 7C of the Firearms Act 1996. The purposes of that Act are to give effect to the principle that the possession of firearms is conditional on the need to ensure public safety and peace by establishing appropriate systems for licensing them, and for the regulation of their possession, carriage and use, for dealing in them and acquiring and disposing of them, and for their registration and secure storage.
Given the protective purpose of the provision, the risks that attend the accumulation of weapons and the difficulty of detection, general deterrence was also important to the firearms offences and especially to charge 6 [that I note in that case is identical to yours]. [42]
[40][2020] VSCA 25 (‘Djemal’).
[41][2010] VSCA 143.
[42]Djemal at [22]–[24]. In that case possession of a trafficable quantity of unregistered firearms (Firearms Act 1996 s.7C).
69Accordingly, I will approach this sentencing exercise with those comments in mind.
70More specifically, when I consider Charges 1, 8 and 13, the Prosecution submit the following:
a. You were found in possession of three dischargeable firearms with corresponding ammunition (in circumstances where two firearms is the threshold for a trafficable quantity), being:
(i)a double barrel shotgun with shortened barrels that was able to be discharged. You also possessed shotgun cartridges suitable for use with that item;
(ii)a black Remington pump action repeating rifle with serial number erased and a shortened barrel that was able to be discharged. You also possessed a magazine that was suitable for use with that rifle; and
(iii)a Winchester 94 30/30 lever-action repeating rifle that was able to be discharged. You also possessed cartridges suitable for the use with this rifle. Importantly, I repeat, one such cartridge was located in your bedroom drawer.[43]
[43]See Depositions, Exhibit 21: 1 x 30/30 Calibre Ammunition Round.
b. You were in possession of two imitation firearms, manufactured to imitate generic flint-lock handguns, which they resembled in size and shape.[44]
c. One of the firearms in your possession was loaded with a full magazine and had a round in the chamber.[45]
[44]Ballistics Report of David Breer, specifically with respect to item 7 (Depositions p. 218–19).
[45]ROI Q735-7 (Depositions p. 193).
71You possessed a number of weapons with varying capacity to cause serious injury or death. They were capable of being used in a range of criminal settings. No legitimate reason could ever be offered as to why such a collection of weapons would be gathered together in a bag like that.
72The imitation firearms were realistic enough to cause fear in anyone that had the misfortune of having them produced on.
73Given the surrounding circumstances as I have just outlined, there is not a lot of doubt that the firearms, both real and imitation, were either produced during past offending or to be produced in offending yet to occur. It is speculative as to whether you knew the details of their past or future use. I do not sentence you on the basis that you did.
74When looking at the admissions you made, the Prosecution say I ought to consider:
a. It is conceded you were aware the items you came into possession of were illegal.[46]
b. You knew the contents of the bag of items in your possession felt like firearms[47] and contained more than one firearm.[48]
c. You admitted looking in one of the bags and seeing a firearm, and you were aware that the items were illegal.[49]
d. You believed there were about three, four or five guns but said that you were not sure.[50]
e. You acknowledged that the firearms should not have been in your possession or anyone else’s and said that you were glad that they were not in the wrong hands as who knows what could have happened.[51]
f. You stated that you did not know how to go about giving the firearms to the police.[52]
[46]Exhibit B: Prosecution Submissions on Sentence dated 18 January 2022, p. 3 [12].
[47]ROI Q58 (Depositions p. 124).
[48]Ibid Q65 (Depositions p. 125).
[49]Exhibit 1: Outline of Plea Submissions at [6].
[50]ROI Q87 (Depositions p. 128).
[51]Ibid Q157 (Depositions p. 135).
[52]Ibid Q156 (Depositions p. 135).
75Your counsel describes this offending as mid-level when compared against other cases of this kind. He says that fact, coupled with other matters in mitigation, lead to the conclusion that a highly punitive Community Corrections Order (‘CCO’) is appropriate along with a term of imprisonment. I am reminded by him that I could sentence you to an additional period of 12 months’ imprisonment from today’s date, if I am so inclined, and that would still permit a combination sentence to be imposed.
76Mr Goldman, on behalf of the Director said that a combination sentence was simply not open here and the appropriate penalty is one that involves a head sentence and non-parole period. After the commissioning of a report, which I add was of a very high quality from Corrections, and analysis of the cases below, the Director fairly conceded that a combination sentence was indeed open.
77In order to properly inform myself as to the availability, suitability and appropriateness of all sentencing options, I had you assessed for a CCO. I will return to this assessment in a moment.
78In addition to the CCO assessment, in order to assist me in this exercise, I asked counsel to provide me with cases that they said were comparable. I am aware of the limitations in referring to other cases when sentencing and acknowledge that each case turns on its own facts.[53] I do not consider the other sentences brought to my attention as setting a floor or ceiling on the sentence I am about to impose, nor am I involved in an analysis of the kind one would undertake when considering parity for instance.
[53]Comparable cases being useful as a yardstick to measure where a particular case might sit on the spectrum of offending, see DPP v Weybury(2018) 84 MVR 153, 165 [33]–[34]; Lee v The Queen[2018] VSCA 343, [31]–[32].
79Nonetheless I was assisted by the provision of a number of sentencing remarks and the occasional appellate case concerning the charge of possession of a traffickable quantity of firearms.
80Mr Goldman took me to:
a. DPP v Tran,[54] where on a plea of guilty to possessing three firearms and with relevant prior convictions, the accused received three years (noting that other charges were involved).
b. DPP v Xuereb,[55] where on a plea of guilty to possessing [an unknown quantity of] firearms with no relevant prior convictions the accused received two years on Charge 1 of the first indictment and 18 months on Charge 1 of the second indictment (other charges were also involved there).
c. DPP v El Hage Hassan,[56] where on a plea of guilty to possessing four firearms and with no relevant prior convictions the accused received three years (again other charges were involved).
d. DPP v Koukas,[57] where on a plea of not guilty to possessing nine firearms and no relevant prior convictions the accused received imprisonment for two years (again other charges were involved).
e. DPP v Grixti,[58] where on a plea of guilty to possessing six firearms with relevant prior convictions the accused received 18 months (again other charges were involved).
f. DPP v Clarke,[59] where on a plea of guilty to possessing six firearms and with relevant prior convictions the accused received 18 months imprisonment (other charges were involved there). Finally,
g. DPP v White,[60] where on a plea of guilty to possessing seven firearms and with no relevant prior convictions the accused received a term of imprisonment of six months (but noting that other charges were involved).
[54][2020] VCC 1667.
[55][2019] VCC 984.
[56][2018] VCC 771.
[57][2019] VCC 573.
[58][2018] VCC 943.
[59][2018] VCC 966.
[60][2019] VCC 367.
81Mr de Kretser noted that the sentences in similar cases range from six months[61] to three years.[62] He argued that those cases the Crown referred to where a period of imprisonment of two or more years was imposed, the offending was of a more serious nature than the present case, notably:[63]
a. In DPP v Schmidt,[64] where a sentence of two years and four months was imposed for two firearms where one was a fully automatic machine gun.
b. In DPP v Tran,[65] a sentence of three years was imposed for three firearms which included a semi-automatic handgun, the accused had possessed that loaded handgun in a public place and was a prohibited person. He had extensive priors including for possessing firearms and for the purpose of being involved in the drug trafficking trade.
c. In DPP v Piscopo,[66] a sentence of two years and six months was imposed for six firearms, the accused was a prohibited person with a relevant prior.
d. In DPP v Quadara,[67] a sentence of two years was imposed for six firearms, four being operational.
e. In DPP v Cragg,[68] a sentence of 20 months was imposed for two firearms and the accused was the subject of a firearms prohibition order.
[61]Kim v The Queen [2019] VSCA 149.
[62]DPP v Bruce [2020] VCC 1321, where there were four firearms including a military assault rifle worth nearly $30,000.00.
[63]All of which appear to have been imposed during the pandemic.
[64][2020] VCC 660.
[65][2020] VCC 1667.
[66][2021] VCC 1310.
[67][2017] VCC 366.
[68][2021] VCC 1896.
82There are simply too many variables to discern clear trends in sentencing for cases of this kind. The number and nature of the weapons is of obvious relevance — as is the status of the offender as a prohibited person, or the subject of a firearms prohibition order, or not, and the nature and extent of their prior history. How long the offender has possessed the items is another matter requiring consideration, as is any particular explanation proffered by an accused as to why they possessed the relevant weapons. The monetary value of the items might be relevant, but it is not determinative of the gravity of the offence. As I said, the analysis conducted diligently and conscientiously by both parties saw them assist me in arriving at the sentence that I am about to impose.
Drug and ammunition offences
83It is noted that Charges 13 and 16 are not punishable by imprisonment. The remaining drugs located were for personal use.[69] It was submitted that these remaining drug charges are not serious enough to attract terms of imprisonment, or alternatively, should not impact the time you serve in custody. With due regard had to the principle of totality, I agree.
[69]Drugs, Poisons and Controlled Substances Act 1981 s.73(1)(b).
84MR GOLDMAN: Your Honour, I am not sure if now is the time to raise that I have looked into that issue we described earlier, or if you would like me to wait? I did not want to delay the pronounce sentence before I said something.
85HIS HONOUR: Sure.
86MR GOLDMAN: I looked into that issue, Your Honour, and as it is not punishable by more than five penalty units, it cannot go into the CCO.
87HIS HONOUR: All right.
88MR GOLDMAN: I do apologise, Your Honour, for interrupting you.
89HIS HONOUR: Mr Goldman, you can interrupt me any time, if it looks like I am about to make a mistake. So thank you.
90MR GOLDMAN: As Your Honour pleases.
91HIS HONOUR: How do I, while we are just having this pause — and I have probably only got 10 minutes to go — how does one properly declare the pre‑sentence detention knowing that the term of imprisonment cannot exceed 12 months from today? It is a quirk of the legislation. Can you gentlemen have a think about that while I am announcing the balance of my sentence?
92MR GOLDMAN: Yes, Your Honour.
93HIS HONOUR: I do not want to be seen to be falling into error if I effectively declare, I think you both understand what I am driving at.
94MR de KRETSER: Yes, and I have seen it done in different ways by different judges.
95HIS HONOUR: Me too.
96MR de KRETSER: I do not know if I have seen any criticism of it being in a higher court.
97HIS HONOUR: No, all right.
98MR de KRETSER: Which one is the preferable version.
99HIS HONOUR: I will turn now, Mr El-Sayegh, I have probably only got about 15 minutes to go, but it is important that this is a thorough exercise and the reasons why you are sentenced to what you are sentenced are exposed and clear, so be patient with me, all right.
100I consider this still to be serious offending, you being in possession of these particular firearms is an alarming matter. Members of the community should not have to worry that people have access to firearms like this. They have a justifiable expectation that such offending will be treated very seriously. I need not repeat the comments made by the Court of Appeal in Djemel here.
101The consequences for engaging in such serious criminality such as this must be such that any like‑minded members of the community who are contemplating behaving in this or a similar fashion, will pause to contemplate the possibility of stern punishment if caught. By appropriately punishing such conduct, the Court is, on behalf of the community, seeking to denounce it and vindicate the values of that community.
102Sentencing considerations such as general deterrence, denunciation and just punishment all assume a real prominence in this sentencing exercise.
103This Court is required to impose a just punishment on you for these offences. It involves a process of individualised justice in which all relevant factors relating to this offending and this offender are synthesised along with the relevant sentencing principles in order to reach an appropriate and just outcome. I note that the punishment though that you have experienced since March 2020, means that all prisoners in Victoria become subject to COVID-19 restrictions which places prohibitions on visitors, lockdown and lack of rehabilitation and education programs. This is allied to the matters raised in Ms Lechner’s report about the need for you to be treated and that the treatment available in custody is less than ideal. These matters are rendering custodial conditions more onerous on prisoners. As your counsel points out, the conditions have been described in the Supreme Court as bordering on the inhumane.[70]
[70]Re Elias [2020] VSC 502 per Priest JA at [38].
104To the extent that you admitted possession of the items the subject of these proceedings, I accept that. I do not necessarily agree with the Prosecution submissions that this was an overwhelming case against you before you made admissions. It is conceivable that you might have exercised your rights and perhaps avoided responsibility altogether. I think the better way to express the matter is that it was a strong circumstantial case, that was made complete or whole by your admissions.
105You have facilitated the course of justice as you have pleaded guilty at the earliest stage during the currency of this COVID-19 pandemic which entitles you to an even greater discount in light of its greater utilitarian value at a time when this Court is facing a very significant backlog of trials and intense case listing pressures by your plea. This approach is in accordance with the recent observations of the Court of Appeal in a number of recent cases, commencing with Worboyes v The Queen.[71]
[71][2021] VSCA 169. See also, Rossi v The Queen [2021] VSCA 296.
106I accept your plea is evidence of remorse, a sentiment fortified by the comments made to Ms Lechner during her assessment of you.
107As I noted earlier, it is asserted by your counsel I ought to impose a sentence that would foster your prospects of reform. More specifically, it is said such a sentence would involve a combination of time in custody followed by a highly punitive CCO.
108Though you were assessed as suitable for a CCO with conditions involving supervision, work, drug treatment, assessment, mental health treatment, offender behaviour programmes and judicial monitoring, your suitability still come with concerns. In an insightful way, the author of the Pre-Sentence Report says the following:
Mr El-Sayegh has previously completed his Community Work only order and Parole Order. Given this, Mr El-Sayegh reported he would have nil issues with complying with a CCO disposition. Mr El-Sayegh reported he would be employed upon his release however he would be able to manage this engagement on the order and his employment. During Mr El-Sayegh’s interview he reported that he had never been diagnosed with any mental health condition. However, the psychological report authored by Carla Lechner states he had previously been diagnosed with Depression.
Mr El-Sayegh advised that his family support and his partner's support are his main protective factors. The writer notes that both these things were present at the time of the offending however Mr El-Sayegh reports these are both motivating factors for him. Given the above it is unclear if these factors are protective in nature for Mr El-Sayegh and only by Mr El-Sayegh being committed to his own rehabilitation and pro-social choices will determine his future pathway. Further to this, Mr El-Sayegh reports a long history of cocaine use. He reported leading up to this offending he was using regularly and a substantial amount. Further to this he went into custody with a large number of drug debts that are still outstanding. This is concerning from an individual and community safety perspective.[72]
[72]Exhibit 9: Extended Pre-Sentence Assessment Report dated 4 March 2022, pp. 4–5.
109Your suitability for a CCO is not determinative of course. A CCO, whether stand alone or in combination with a term of imprisonment can, in certain circumstances, be an appropriate sentence to impose, even for serious offending. In my view, having regard to the principles established in Boulton v The Queen,[73] this is such a case.
[73](2014) 46 VR 308.
110I do not agree with your counsel's assessment of your prospects for reform as ‘favourable’. At best, they are guarded. You are now nearly 40. You have prior convictions for both drug use and weapons offences. You have been imprisoned before. You have completed supervisory orders before, though you were last supervised some 15 years ago. The matters you now rely on as protective matters existed at the time you offended. Despite your apparent commitment to reform, I repeat, that desire is yet to be tested in the community.
111The author of the CCO assessment concludes that you are a high risk of reoffending across seven of the eight domains against which risk is measured. On the eighth criteria you were assessed as very high risk. You would require the highest level of intervention possible to guard against your risk of re-offending.
112The Office of Corrections, though, indicate they can implement interventions that are targeted to address your substance use, pro-criminal attitude/companions coupled with education and employment. Addressing your mental health as a responsivity factor will be paramount, given that you have struggled with depression. It is this proposed targeted intervention that is an attractive option when sentencing you.
113After careful consideration I am persuaded that a combination sentence is appropriate in your case. This conclusion does not mean that you will be released immediately, and it will inevitably mean that you will be supervised in the community for a longer period than if you were to receive a term of imprisonment with a head sentence and non-parole period.
Sentence
114Having considered, balanced and weighed the various sentencing considerations raised in this case, I sentence you as follows:
115On all charges you are convicted and sentenced to a term of imprisonment of 18 months, and providing you consent, I will sentence you to a further two-year Community Correction Order.
116Every community corrections order, including this one, contains conditions. The core conditions are:
a. You must not commit another offence punishable by imprisonment during the period of the order,
b. You must comply with any obligation or requirement prescribed by the regulation,
c. You must report to or receive visits from the Secretary during the period of the order,
d. You must report to the Reservoir Community Correctional Services within two working days of the commencement of this order,
e. You must notify the Secretary of any change of address or employment within two working days after that change,
f. You must not leave the State of Victoria, except with the permission of the Secretary, and
g. You must comply with any direction given by the Secretary that is necessary for the Secretary to give, to ensure that you comply with the order.
117There are other conditions that apply in addition to those mandatory ones and they are as follows:
a. You are to be the subject of supervision from the Office of Corrections,
b. You are to complete 180 hours of unpaid community work over the two-year duration of the order,[74]
c. You undergo assessment and treatment, including testing, for drug abuse and dependency as required,
d. You undergo assessment and treatment, including testing, for alcohol abuse or dependency as required,
e. You must undergo programs consistent with the purpose of treatment and rehabilitation which may include, but is not limited to, for instance, employment,
f. You are to undergo offender behaviour programmes as directed,
g. In order to encourage you, I propose to order that 60 hours of treatment and rehabilitation, that is one third, successfully undertaken, are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition,
h. Finally, you will be judicial monitored by me and I will order that the first judicial monitoring commences on 13 December 2022 at 9.30 am.
[74]This has been moderated because of your injury and the importance I attach to your paid employment as a protective factor for you.
118Mr El-Sayegh, I can only impose such an order if you consent to it. Do you consent to it? Can Mr El-Sayegh simply be taken off mute briefly, thank you.
119ACCUSED: Yes, Your Honour. I do consent.
120HIS HONOUR: Very well.
121ACCUSED: Yes, Your Honour, I do consent.
122HIS HONOUR: Thank you, Mr El-Sayegh. You need to understand if you breach this order in any way, either by committing further offences or not complying with any of the core or special conditions, you could be charged with breaching this order. The offence of breaching a CCO carries a maximum penalty of three months' imprisonment. So if you were to breach the order, you would come back to court, be sentenced for the breach and also be resentenced for the offences before me. I strongly suggest you do not find yourself in that position.
Pre-sentence detention
123Pursuant to s.18 of the Sentencing Act 1991, I declare that you have served a total of 352 days by way pre-sentence detention, not including today's date. I order that that period is to be reckoned as already served under this sentence, and I further order that the declaration and its details be entered in the records of the court.
124It is my intention in imposing the sentence that I did, is to honour the statutory requirements that any term of imprisonment that I impose from today, not exceed 12 months, and accordingly it is approximately the six month period that your client has left to serve, Mr de Kretser. I hope that that is sufficient for the purposes of the Act and the authorities.
125MR de KRETSER: Yes, Your Honour. Thank you.
126HIS HONOUR: With respect to the charge of possess cannabis, being Charge 2, I convict and discharge you of that.
Section 6AAA indication
127I can indicate to you, pursuant to s.6AAA of the Sentencing Act 1991, how much of a sentencing discount you have received because of your plea of guilty. I can tell you, had you not pleaded guilty, I would have sentenced you to a term of imprisonment of not less than four years and six months and I would have set a non-parole period of approximately three years and three months.
Ancillary orders
128The ancillary orders sought, in terms of a disposal order and a forfeiture order are made in the terms outlined and I note that those orders are made by consent.
129MR de KRETSER: As Your Honour pleases.
130MR GOLDMAN: As Your Honour pleases.
131HIS HONOUR: Mr El-Sayegh, you will be required to perform and if you do not perform you may well find yourself where you are now, very quickly.
132ACCUSED: Yes, Your Honour.
133HIS HONOUR: Yes. Are there any other orders that I need to make, gentlemen?
134MR GOLDMAN: No, Your Honour.
135MR de KRETSER: No, Your Honour.
136HIS HONOUR: Can I thank counsel for your considerable assistance. I am sorry I went about 20 minutes longer than I proposed to. I will adjourn the Court but I will allow you, Mr de Kretser, and your client to discuss the outcome of today's case. Is there anybody else that needs to be included, Mr Dean for instance?
137MR de KRETSER: Yes, he has just logged on now, so thank you for that, Your Honour.
138HIS HONOUR: And is that your client's mother or sister whose name I can see on the tile?
139MR de KRETSER: Yes, I understand that is his mother.
140ACCUSED: Yep, it is.
141HIS HONOUR: Your client's mother, all right. Bear in mind, as I keep stressing, they are unrevised reasons. You will have a revised copy in due course. If there are no other matters I need to deal with, I will adjourn the Court. Thank you.
142COUNSEL: As Your Honour pleases.
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