Director of Public Prosecutions v El-Sayegh and Rajic
[2016] VCC 2034
•22 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-16-01062
CR-16-01061
CR-16-01159
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AHMED EL-SAYEGH and |
| FRANK RAJIC |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 November, 19 December 2016 | |
DATE OF SENTENCE: | 22 December 2016 | |
CASE MAY BE CITED AS: | DPP v El-Sayegh and Rajic | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2034 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Legislation Cited: Road Safety Act 1986; Sentencing Act 1991
Cases Cited: R v Smith (1987) 44 SASR 587
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Hammill Mr M. Vella (for sentence) | Solicitor for Office of Public Prosecutions |
| For the Accused (Frank Rajic) | Mr J. Podmore Mr R. Melasecca | Leanne Warren & Associates Melasecca Kelly Zayler |
HIS HONOUR:
1 On 25 November 2016, Ahmed El-Sayegh and Frank Rajic, each of you pleaded guilty to Indictment C1510429. You each pleaded guilty to prohibited person possessing an imitation firearm (Charge 1), aggravated burglary (Charge 2) and theft (Charge 3). Additionally, you, Mr El-Sayegh, pleaded guilty to Charge 4, handle stolen goods. You each pleaded guilty to a related summary offence, being dealing in property reasonably suspected of being the proceeds of crime.
2 In your case, Mr El-Sayegh, it related to a registration plate found on the vehicle used in connection with the aggravated burglary, whilst in your case, Mr Rajic, it related to a mobile phone. You each admitted your extensive prior criminal histories.
3
The maximum penalty for prohibited person possess imitation firearm is ten years’ imprisonment. The maximum penalty for aggravated burglary is
25 years’ imprisonment. The maximum penalty for theft is ten years’ imprisonment. The maximum penalty for handle stolen goods is 15 years’ imprisonment. The maximum penalty for deal with property suspected of being the proceeds of crime is two years’ imprisonment.
4
At the end of the arraignment, Mr El-Sayegh, your plea was adjourned until
19 December 2016.
5 Additionally Frank Rajic, you were arraigned on a second indictment, numbered C1610572, and you pleaded guilty to Charge 1, burglary, and Charge 2, theft. The maximum penalty for each of those offences is ten years’ imprisonment. You also pleaded guilty to a related summary offence, namely driving a motor vehicle in a manner that was dangerous to the public.
6 The maximum penalty for this related summary offence is 240 penalty units or two years’ imprisonment or both. The penalty also includes a mandatory disqualification of any licence or permit held under the Road Safety Act for a minimum of six months.
7 In respect to Indictment C1610572, at the time of committing the offences contained therein you, Mr Rajic, were on bail pursuant to an appeal from the Magistrates’ Court to the County Court. This is an aggravating feature of your offending.
8 In respect to this indictment, tendered as Exhibit B on the plea was a summary of prosecution opening which was read aloud in court. In summary, on 3 August 2015, together with three other men, you drove to a house located in Streeton Avenue, Caroline Springs. You were disguised. You went to the garage and entered the house via a roller door. Inside the house was a cannabis crop being grown hydroponically. You, together with your co‑offenders, stole a number of cannabis plants (Charges 1 and 2).
9 Whilst at the house in Streeton Avenue, Robert Cleland arrived there and challenged you and your co‑offenders. In response, one of your co‑offenders, Radovanovic, produced a .357 Smith and Wesson revolver. All offenders fled the scene in a Holden Captiva sedan. You were pursued by Cleland until, outside an address in The Esplanade, Taylors Hill, both vehicles stopped, and Radovanovic got out of the Captiva armed with the revolver and ran towards Cleland’s vehicle. Over the ensuing few seconds Cleland drove over Radovanovic on at least three occasions, and during this time Radovanovic shot at Cleland.
10 After Radovanovic had been incapacitated, you, Mr Rajic, drove away from the scene, and you were pursued by Cleland. It is your erratic driving on that occasion that founds the related summary offence of driving in a manner dangerous.
11 Police attended the address at Streeton Avenue and found 19.15 kg of cannabis that had been harvested by you and your co‑offenders. On 22 September 2015, you were arrested and interviewed under caution, and made “no comment” answers to questions asked by the investigating police. You were not charged with offences arising out of this escapade until 17 February 2016.
12 In respect to Indictment C1510429, tendered as Exhibit A on the plea was the summary of prosecution opening that was read aloud in court.
13 On 2 November 2015 at about 4.30 am, Ahmed El‑Sayegh and Frank Rajic, you each attended at an address at Denton Avenue, St Albans. Cannabis was being grown at those premises by hydroponic means. You banged on the door and yelled to the occupant, Alexander Diep, that you were police, and that he should open the door. Your victim had observed you attend the scene in a utility, and formed the view that you were not police, and refused to give you access to the property.
14 Together you tried to break down the front door. Each of you were armed: one with an imitation firearm, and the other with a .44‑calibre revolver. Together you broke a hole through the front door large enough for an arm to be pushed through it. One of you fired a shot from the revolver through the hole in the front door. The projectile passed through the hole in the front door, ricocheted off the tiled floor, and penetrated the side of a washing basket full of washing, and came to rest within the washing.
15 Neighbours heard the yelling and gunshot, and called Triple 000. After the firearm had been discharged, the victim Diep was threatened with being shot by one or both of you, and agreed to let you into the house on the basis that you did not shoot him. The victim observed that each of you had a handgun in your possession at the time you entered the house (Charges 1 and 2).
16 Once inside the house you harvested some of the cannabis (Charge 3). The Crown is not in a position to identify the weight or number of plants that you cut down.
17 A short time later police arrived at the scene, and you, Mr El-Sayegh, were arrested by police while trying to escape by jumping over a fence at the back of the property. You, Mr Rajic, climbed into the roof cavity of the house and exited the house by removing some of the roof tiles, you climbed out onto the roof, and walked along the roof and jumped from the roof onto a garden shed, and then from the shed into a neighbouring backyard, where you were subsequently located by a police canine unit and arrested.
18 Police conducted a search of the Denton Avenue address and located a Denix brand imitation Colt 1911 semi-automatic pistol within a box in the bathroom next to the bath. Police found a .44‑calibre projectile that was located within a laundry basket near the front of the entrance to the house. Police also found a .44‑calibre revolver containing three live rounds and one spent cartridge case, as well as an empty chamber. This firearm was located under insulation batts within the roof cavity. I find that you, Mr Rajic, secreted the revolver in the roof cavity. I make no finding as to who discharged the revolver.
19 Police conducted a search of the utility in which you drove to the address in Denton Avenue. Seized from the utility was a white Samsung mobile phone which is the subject of the related summary offence in respect of you, Mr Rajic; and a black Apple iPhone, which is the subject of Charge 4, handle stolen goods, in respect of you, Mr El-Sayegh.
20
Further, police found an infrared camera that had images contained on it of the premises in Denton Avenue that had been taken at 11.22 pm on 1 November 2015, a matter of hours before the instant offending. Police also found a stolen registration plate affixed to the rear of the utility that was able to be flicked up and down to display the stolen number plate or the number plate appropriate to the utility. This is the basis of the related summary offence of dealing with property suspected of being the proceeds of crime that relates to you,
Mr El-Sayegh.
21 At the time of the commission of these offences, you, Mr Rajic, were undergoing a community correction order, and this is an aggravating feature of your offending. After your arrest, each of you were interviewed under caution, and made “no comment” answers to questions asked of you by investigating police. You were remanded in custody and you had each spent 389 days by way of pre-sentence detention, as at 25 November 2016.
22 Mr El-Sayegh, at the time of the commission of the instant offences, you were serving a community correction order, and this fact is an aggravating circumstance of your offending.
23 Frank Rajic, you are 43 years of age. You have a lengthy criminal history, commencing when you were aged 19. You have prior convictions for burglary, theft, and other dishonesty offences, possessing and trafficking in drugs of dependence as well as driving offences. Over the years you have received a number of sentences of imprisonment including suspended sentences.
24 Tendered as Exhibit 2 on your plea was a report of Dr Adam Deacon, psychiatrist, dated 10 September 2016. The contents of this report set out much of your personal background that was relied upon by Mr Melasecca, solicitor, who appeared on your behalf.
25
You were born to Croatian parents. You have three brothers, two of whom have served terms of imprisonment or are presently in custody. I was informed that your father was a physically abusive alcoholic. You completed Year 9 at
St Albans High School, and, after leaving school, joined your father working as a painter. You started your own painting business at age 19, and thereafter your father worked with you for about six years or so. I was told that your business flourished until you commenced to abuse methylamphetamine in about 2005. This success in business occurred despite you being a daily user of cannabis between the ages of 14 and 40. In addition, you were an occasional user of amphetamines from the age of 18.
26 Dr Deacon reported that you first used methylamphetamine when you witnessed a woman commit suicide by walking in front of a bus. This scenario does not sit well with your prior criminal history. In contrast, Mr Melasecca informed me that your use of methylamphetamine came about as a result of you suffering a back injury and that the use of methylamphetamine allowed you to continue to work as a painter despite your injury. I note that methylamphetamine is not an analgesic and that the use of opiates is more likely in the circumstances as put to me by Mr Melasecca. (See the evidence of Ms Abadee.)
27 It was put on your behalf that at the time of your offending you were using between 1 and 3 g of methylamphetamine per day, and had been doing so since 2013. As well, it was put that you used ecstasy up to a few days per week between the years 2006 and 2009. As well, you have been an abuser of alcohol, but it appears that was for a limited period when you were aged between 16 and 25 years.
28 Confusingly, contained within the report of Dr Deacon is the assertion that you have developed chronic back pain from a prolapsed disc that did not resolve despite two epidural procedures. However, Dr Deacon also wrote that you have two prolapsed lumbar spine discs that required epidurals, and that recently you have been mostly pain-free and not requiring analgesia.
29 Whatever the state of your back, it did not inhibit you in gaining access to the roof cavity of the house at Denton Avenue, St Albans, nor removing some roof tiles so that you might attempt to escape the police by walking across the roof and jumping onto a nearby shed, and from that shed into an adjoining backyard.
30 Dr Deacon reported that you have no formal psychiatric history. However, whilst in prison on remand you have been prescribed the anti-depressant, mirtazapine. Since being remanded in custody you have been diagnosed as being HIV-positive. Despite this diagnosis, you have refused any treatment because you were afraid of how you will be viewed within the prison system should your diagnosis be generally known. Despite your refusal to receive readily available treatment within prison, you sought to rely upon your present condition and your lack of treatment as a mitigating factor to be taken into account in the exercise of my sentencing discretion.
31 Tendered as Exhibit 2 on the plea was a report Dr R. Byron Collins dated 24 November 2016 that addressed general information in respect to HIV AIDS.
32 Dr Collins opined:
“There is, as yet, no known cure or preventative vaccine for HIV infection. Prolonged treatment with antiretroviral drugs (ART) will slow the progression of the disease processes. In the absence of such therapy, it is generally accepted that approximately half of the number of people suffering from HIV will develop full blown AIDS within ten years. In addition, without ART therapy, the average survival period from initial diagnosis to HIV infection to the development of various complications of AIDS and death is in the vicinity of 11 years.”
33 Later Dr Collins opined:
“Although Mr Rajic’s pathology investigations indicate that he has a normal CD4 count and a low HIV viral load, it would be important that the commencement of ART therapy not be unduly delayed and, ideally, in my view, should have already commenced, having regard to the fact that his HIV positivity was diagnosed in January, 2016.”
34 He further opined:
“It would have to be conceded that the medical management of his present HIV positivity could be carried out whilst in prison.”
35 However, Dr Collins noted that the treatment regime for HIV is somewhat complicated.
36 Dr Collins in summary opined:
"The proper medical management of HIV/AIDS is not straightforward, requiring special expertise and, importantly, patient compliance. If any of these component parts are sub-optimal, then there is the very real potential for the individual’s lifespan to be unnecessarily compromised.”
37 Mr Melasecca, on your behalf, emphasised that an important part of your treatment would include family counselling especially with your wife,
Ms Abadee (drug counsellor), who gave evidence on the plea, placed importance on an holistic treatment of persons who are HIV-positive and in particular counselling that involved all members of the family.
38 Your wife was called to give evidence in support of you. She acknowledged that you had made many promises in the past to her that you would reform and that those promises have proved to be empty. However, she was of the view that your diagnosis of being HIV-positive has caused you to review your life and she is satisfied that you genuinely desire to reform.
39 However, she was entirely uncertain as to her relationship with you and as to whether it would continue into the future. However, she was willing to undertake counselling with you to assist you in your treatment for HIV. She swore that your children had not been informed of your HIV status and that your young son was not coping with you being in custody.
40 Mr Melasecca relied upon a number of authorities including R v Van Boxtel (2005) 11 VR 258 at paragraphs 28 and 29, wherein referring to R v Boyes (2004) 8 VR 230, Callaway JA emphasised that the state of health of an offender is always relevant to the consideration of the appropriate sentence for that offender. Although ill health will be a factor tending to mitigate punishment, only when it appears that imprisonment would be a greater burden on the offender by reason of his state of health or when there is the serious risk of imprisonment having a gravely adverse effect on the offender’s health.
41 Apart from the fact that you have been diagnosed as HIV-positive, there is no evidence before me as to the likely effect of that diagnosis upon your health or prognosis or any reaction either physical or psychological you might have to treatment and/or prognosis. There is, of course, only the general proposition contained in Dr Byron Collins report that:
“In the absence of therapy it is generally accepted that approximately half of the number of people suffering from HIV will develop full-blown AIDS within ten years.”
42 For reasons which are good to you but to my mind are wrong-headed, you have deliberately refused treatment for your condition. The consequence of this is that there is an absence of evidentiary material that may have been of significance on your plea. Mr Melasecca on your behalf sought a sentence which combined an immediate term of imprisonment together with a community corrections order so that you might be optimally treated within the community upon your release. To my mind, this submission lacks the evidentiary foundation to make it good.
43 HIV has been a disease treated both in the community and in the prison system for many years. It is widely accepted that treatment of HIV has improved since it was first detected in the community. You have deliberately chosen not to be treated in respect of HIV. On the materials before me, it has not been demonstrated that imprisonment will be a greater burden on you by reason of your state of health or that there is a serious risk of imprisonment having a gravely adverse effect on your health (see R v Smith (1987) 44 SASR 587).
44 Ahmed El-Sayegh, your plea was conducted on 19 December. Tendered as Exhibit A on the plea was the same opening relied upon by the Crown on Mr Rajic’s plea hearing.
45 You have 89 convictions from eight court appearances, including convictions for firearms, weapons, drug, dishonesty and driving offences. You committed the instant offences while serving two community corrections orders, one of which was imposed on 23 January 2015 for drug, firearms, weapons and dishonesty offences.
46 You are 30 years of age, and were born in Newport and grew up in the Keilor Downs area. Your parents were born in Lebanon. You have four siblings, being three sisters and a brother. Your family has always been supportive of you, and you are close to both your parents, who are devout in their Muslim faith. Your family members have visited you regularly whilst you have been on remand.
47 You completed Year 11 at Keilor Downs Secondary College, and immediately on leaving school gained employment with a transport company for eight months or so, loading and unloading trucks. At 17, you travelled to Lebanon to become engaged, and subsequently returned to Australia after marrying in Lebanon. Your wife arrived in Australia two years later, and you married again in Australia.
48 Upon your return from Lebanon, your father purchased a shop in Newport for both yourself and your brother, and you worked seven days a week, 18 hours a day, in that business. Together with your brother, you operated the business for a number of years until he travelled to and resided in Lebanon for family reasons. Thereafter, you ran the business single-handed.
49 One of the consequences of your long hours at work was to put strain upon your relationship with your wife. There are two children of the marriage: Rached, aged eight, and Serene, aged seven, who you have not seen since 2012. You returned home from work one day in 2012 to find your wife and children gone and the house empty.
50 As a result of the loss of your family, your desire to maintain your business waned, and you were introduced to the drug methylamphetamine. Since 2014 you have had a number of relationships, some of them founded on the mutual abuse of methylamphetamine. Each of these relationships, however, have foundered once you have gone into custody in respect of prior criminal matters.
51 You do not drink, and until you commenced to use methylamphetamine were only an intermittent user of cannabis. However, once you commenced to use methylamphetamine heavily you would smoke cannabis as a way of coming down from using ice.
52 Tendered on the plea as Exhibit 1 was a report from Warren Simmons, psychologist, dated 30 August 2016. Mr Simmons refers to your amphetamine use commencing prior to the breakdown of your marriage, and that in part contributed to that breakdown.
53 Since 2014 you have been a regular user of methylamphetamine as well as GHB.
54 In the past you have been treated with Lexapro and Seroquel, both whilst you have been in custody. Mr Simmons opines:
“It appears that this [and I interpolate, the treatment] was more likely related to his use of methylamphetamine and it subsequently resolved.”
55 I interpolate from Mr Simmons’ report that you are no longer treated with any form of anti-depressant, anxiolytic or anti-psychotic medication. Mr Simmons reports that you sleep well, you have no problem with your appetite, and you have gained weight whilst in custody. You are an appropriate vehicle for the application of the principle of general deterrence.
56 In short, you come from a loving and supportive family who will continue to support you once you are released from prison. You have work to go to upon release. Both of these factors augur well for your rehabilitation. However, it is predicated upon your abstinence from all kinds of illicit substances, and accordingly, I regard your prospects for rehabilitation as guarded.
57 In respect of the offence of aggravated burglary, I regard your offending, Mr Rajic and Mr El-Sayegh, as a serious example of that crime. You did a reconnaissance on the target property. You took infrared photographs of the property during that reconnaissance. Upon return, you gained entry into the premises by force, by discharging a firearm.
58 Scared for his life, your victim, who was sitting a hydroponic crop of cannabis, let you in and did as he was told, because he was threatened that if he did not do so he would be killed. By your pleas you have acknowledged that at the time of entering the house you were armed with an imitation firearm and a firearm. The aggravated burglary was at night, and on a soft target, being a crop sitter who was highly unlikely to report the crime to the police, and, but for your drawing the attention of the neighbours to your activity, your crime may very well have gone unreported.
59 Mr Rajic, the burglary you committed was likewise committed on a crop house. Again, a soft target and an offence unlikely to be reported to police. You were a member of a group of criminals preying on other criminals. The burglary and theft committed by you are serious examples of those offences. I regard your prospects for rehabilitation as poor.
60 You have each pleaded guilty, and you are entitled to the benefits that flow to you from your pleas, being their utilitarian value and that they are some evidence of your remorse. In each case, I am satisfied of your remorse, particularly in the case of you, Mr El-Sayegh, because of the shame that you have brought upon your family.
61 In your case, Mr El-Sayegh, you have spent your time in prison productively undertaking a number of courses of study (see Exhibit 2). Each of your referees referred to their hope for your rehabilitation and the support that they will provide you during that process.
62 I would like to check with counsel the pre-sentence detention. By my calculation, 417 days, is that correct?
63 MR VELLA: No, Your Honour. I calculated 416 not including today. But if Your Honour is including, I get 417.
64 HIS HONOUR: Thank you very much.
65 MR VELLA: Just to confirm, Your Honour, that calculation is from 2 November two thousand and - - -
66 HIS HONOUR: No, that is all right.
67 MR VELLA: All right.
68 HIS HONOUR: It is correct. Would you both please stand?
69 By these sentences, I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must look to your rehabilitation. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce sentences which reflect and promote the purpose of sentencing in a manner appropriate to you, in respect of Indictment C1510429 I sentence you as follows.
70 On Charge 1, you are each sentenced to a term of 12 months' imprisonment.
71 On Charge 2, you are each sentenced to a term of imprisonment of five years.
72 On Charge 3, you are each sentenced to a term of imprisonment of six months.
73 On Charge 4, you, Mr El-Sayegh, are sentenced to a term of imprisonment of six months.
74 In respect to the related summary offences of Charge 13, dealing with property - namely a Victorian registration plate suspected of being stolen, you, Mr El‑Sayegh, are sentenced to three months’ imprisonment.
75 On the related summary offence, Charge 10, dealing with property - namely a Samsung mobile phone suspected of being the proceeds of crime, you, Mr Rajic, are sentenced to three months’ imprisonment.
76 In respect of you, Mr El-Sayegh, I order that one month of the sentence imposed on Charge 1, two months of the sentence imposed on Charge 3, and two months of the sentence imposed on Charge 4, together with one month of the sentence imposed on the related summary offence, be served cumulatively upon each other and upon Charge 2. This results in a total effective sentence of five years and six months, and I direct that you serve three years and six months’ imprisonment before you will be eligible for parole.
77 I declare that you have spent 416 days by way of pre-sentence detention, not including today.
78 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty I would have sentenced you to seven and a half years’ imprisonment with a non-parole period of five years' imprisonment. Mr El-Sayegh, you may be seated.
79 MR PODMORE: As Your Honour pleases.
80 HIS HONOUR: In respect of you, Mr Rajic, I order that one month of the sentence imposed on Charge 1, together with two months of the sentence imposed upon Charge 3, and one month of the sentence imposed on the related summary offence be served cumulatively upon each other and upon the sentence imposed upon Charge 5. This results in a total effective sentence on Indictment C1510429 of five years and four months’ imprisonment.
81 In respect of Indictment C1610572, Mr Rajic, I sentence you as follows.
82 On Charge 1, 18 months’ imprisonment.
83 On Charge 2, 12 months’ imprisonment.
84 On the related summary offence, you are convicted and sentenced to two months’ imprisonment.
85 I order that six months of the sentence imposed on Charge 2 and one month of the sentence imposed on the related summary offence be served cumulatively upon the sentence imposed on Charge 1.
86 This results in a total effective sentence on this indictment of two years and one months’ imprisonment.
87 I order that 12 months of the sentence imposed on Indictment C1610572 be served cumulatively upon the sentence imposed on Indictment C1510429. This results in a total effective sentence of six years and four months’ imprisonment. I direct you serve four years and four months’ imprisonment before you will be eligible for parole.
88 I declare that you have spent 416 days by way of pre-sentence detention, not including today.
89 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to eight and a half years’ imprisonment with a non-parole period of six and a half years’ imprisonment.
90 I order that all licences and permits held by you under the Road Safety Act 1986 be cancelled and that you be disqualified from obtaining any such licence or permit for a period of 12 months. Would you please be seated?
91 Now, there were applications made for a restitution order, a disposal order and a forfeiture order and I have made those orders.
92 COUNSEL: May it please, Your Honour.
93 HIS HONOUR: Mr El-Sayegh, would you please stand?
94 The Crown have made an application for a forensic sample or procedure that is a mouth scraping or buccal swab and I have granted that order. I have granted the order because the seriousness of the circumstances of the offending warrant the order. Your prior convictions are such as to warrant the order and the granting of the order is in the public interest.
95 I need to inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted. I hand down three copies of that order. You may be seated, Mr El-Sayegh.
96 Are there any matters that have not been dealt with, gentlemen?
97 COUNSEL: No, Your Honour. Thank you.
98 HIS HONOUR: I want to thank counsel for their assistance in this matter. Would you remove the prisoners please? I will stand down till 12 o'clock for the next sentence.
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