Director of Public Prosecutions v El-Sheikh
[2021] VCC 1218
•25 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00380
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL EL-SHEIKH |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 August 2021 | |
DATE OF SENTENCE: | 25 August 2021 | |
CASE MAY BE CITED AS: | DPP v El-Sheikh | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1218 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Armed robbery; Theft of a motor vehicle
Cases Cited:R v Johnson (2004) 205 ALR 346
Sentence: Total effective sentence two years and three month; non-parole period of one year and to months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr F. Cameron | Office of Public Prosecutions |
| For the Accused | Mr B. Newton | Chris McLennan & Co |
HER HONOUR:
Introduction
1Michael El-Sheikh, you have pleaded guilty to an indictment containing one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment, and one charge of theft, which carries a maximum penalty of 10 years’ imprisonment.
2Related summary charges were uplifted into the hearing of the plea in mitigation of penalty, and you pleaded guilty to these charges, namely, of driving whilst unlicensed, which carries a maximum penalty of six months’ imprisonment or 60 penalty units, fail to stop motor vehicle upon police request, which carries a maximum penalty of six months’ imprisonment or 60 penalty units, and committing an indictable offence whilst on bail, which carries a maximum penalty of three months’ imprisonment or 30 penalty units.
3The circumstances in which you came to commit those offences are set out in the Prosecution Opening on Plea dated 13 August 2021 (Exhibit A). In addition to the matters developed in oral argument, your counsel relied on defence submissions on plea dated 17 August 2021 (Exhibit 1), a psychological report by Ian Mackinnon dated 7 August 2021 (Exhibit 2), a bundle of urine screens and drug test results (Exhibit 3), a bundle of substance abuse educational certificates (Exhibit 4), a bundle of vocational education course certificates (Exhibit 5), letters of support for you from family members (Exhibit 6), and a summary of your time on remand (Exhibit 7).
4I have had careful regard to all exhibited documents, as well as the matters addressed in the oral plea.
Circumstances of the offending
5On Friday, 26 April 2019 at 9.00pm, you were in company with Tristan Burns and Aleesha Hazelwood-Smith at the Excelsior Hotel in Thomastown. At about 9.15pm that evening, Ms Hazelwood-Smith contacted the victim Goran Jordanovski, through the Skout application and arranged to meet him at the hotel. She then contacted him and changed the location of the meeting to the Reservoir YMCA carpark in Cuthbert Street in Reservoir. You and the victim had not previously met.
6Though you were not licensed to drive a motor vehicle, you drove Ms Hazelwood-Smith and Mr Burns from the Excelsior Hotel to the arranged meeting location in Cuthbert Street in Reservoir. This is the offending referable to your related summary charge of driving whilst unlicensed.
7The victim arrived at the location at about 9.30pm and parked his Holden SS Ute in Cuthbert Street. He waited inside the vehicle, and he was approached by Mr Burns who knocked on the window and asked for a cigarette. The victim provided Mr Burns with loose tobacco, which he used.
8The victim noticed in the rear vision mirror of his car that another vehicle was parked, and that Ms Hazelwood-Smith was standing next to that vehicle. Mr Burns produced a hunting knife and demanded that the victim “get out of the car” and “give it up, dog”, which I take to mean give up the car and hand over his car keys. The victim complied with Mr Burns’ demands and, whilst he was exiting the vehicle, you got out of the car and approached him. In your presence, Mr Burns demanded that the victim get on the ground, and he said “give me everything”. The victim put his phone on the ground and you stated words along the lines of “you better do what he says or he’ll stab you”. The victim handed his watch and car keys over to Mr Burns.
9This is the offending referable to your charge of armed robbery, which alleges that you robbed Goran Jordanovski of a G-Shock watch, a Westpac tap and go card, and an Optus X-Spirit mobile phone, and that at the time you knew that your co-offender, Mr Burns had with him an offensive weapon, namely a knife.
10You took the keys and drove away in the victim’s vehicle. Meanwhile, Ms Hazelwood-Smith and Mr Burns left the victim on the ground and drove away in your vehicle. This is the offending referable to Charge 2 on your Indictment, that you stole a Holden SS Ute from Goran Jordanovski.
11I note and interpolate that the circumstances of armed robbery apply only in relation to the items of property that I have specified, and that the charge of theft relates to the car but does not involve the circumstances alleged in Charge 1 of threat or the presence of an offensive weapon.
12The victim woke up residents in Cuthbert Street, who phoned 000 to report the incident.
13At approximately 12.05am on 27 April 2019, you were driving the victim’s vehicle around Sarissa Street, Lalor, when police observed the vehicle and pursued you. You drove at a fast rate of speed to avoid police, and dumped the victim’s vehicle a short distance away in Coonawarra Place, Lalor. While you were walking away from the vehicle, you called Ms Hazelwood-Smith.
14Ms Hazelwood-Smith was a passenger in a rideshare vehicle, driven by Hamza Zahoor, and she advised the driver that she needed to pick you up in Lalor, as you were on the run from police. The driver drove to Lalor and picked you up, and then drove Ms Hazelwood-Smith, Mr Burns and yourself back to Clements Grove in Reservoir.
15Hamza Zahoor then drove to Reservoir Police Station and reported the incident.
16The victim’s vehicle was located in Coonawarra Place, Lalor and was recovered by police. The vehicle was forensically examined, and police found your fingerprints on the gearstick.
17On 9 May 2019, police arrested you at your home address and seized an Apple iPhone 6 believed to have been used in the course of the offending. You were remanded into custody later that day.
18Police later located a hunting knife in a bedroom cupboard at the address where Mr Burns and Ms Hazelwood-Smith were residing.
Plea of guilty and timing
19You were remanded into custody following your arrest on 9 May 2019. The matter was listed for trial in this Court for eight days commencing 15 February 2021. However, the trial needed to be vacated owing to the postponement of trials caused by the unfortunate effects of the COVID-19 pandemic on the criminal justice system in our State.
20The matter proceeded as a sentence indication which resulted in the resolution of the matter with a more serious charge being withdrawn, upon your indication of the acceptance of the outcome of that indication. I accept and take into account that your plea of guilty was entered prior to the court reaching the date for your relisted trial, and that it has saved the court, the witnesses and the community the time and expense of a trial. This is of considerable significance in the current era, where the effects of the pandemic continue to linger upon the listing of trials.
21Moreover, I consider that this plea is accompanied by your remorse and I mitigate sentence on each of these bases.
Personal circumstances
22You are now 37 years old, and were 35 at the time of your offending. You are the youngest of three children born to loving parents, who migrated to Australia from Lebanon before you were born. Your parents were both honest and hardworking people who provided a good home environment to you and your older brother and sister. Your father died at 76 years of age in 2019, after battling cancer and other medical complications for more than a decade – his death unfortunately occurred a month prior to the offending before me. Your mother is now 67, and she lives with your older sister who has recently moved back home.
23You attended Thornbury Primary School, and then Northcote Secondary College to the end of Year 10, before completing an automotive engineering apprenticeship at Bateman TAFE. You experienced periods of real difficulty at school and were bullied.
24After you qualified as a motor mechanic you worked for Ralph Da Silva Holden from the age of 20 to 23. Your older brother then opened his own automotive engineering garage and you worked there for nine years, until you were 32 years old.
25You married at the age of 23 and, as a result of your long history of hard work, you bought a home. However, your marriage ended when you were 32 years old. After you separated from your former wife, you lost the house and started using drugs to excess. Over the last six years, you have not worked for any significant period.
26In 2018 or 2019, you were involved in a motor vehicle accident and sustained nerve damage and a 9-millimetre lesion in your brain.
27You started smoking cannabis occasionally at the age of 16, and escalated to the use of Ecstasy and amphetamine on weekends by the age of 18. You ceased using all illicit substances when you married but, as I have mentioned, after your marriage ended, you started using drugs to excess. You have reported using 1.7 grams of Ice daily at the time of your offending.
28You had three court appearances prior to the commission of these offences. Since the commission of these offences, you have been sentenced to imprisonment on three occasions for offending which occurred prior to your remand on these offences, which is a topic to which I will return.
29In December 2014, you were convicted of offences of driving whilst suspended and contravene Family Violence Intervention Order, and were fined. In August 2015, you were found guilty of offences including traffic methylamphetamine, possess amphetamine, property offences, persistent contravention of a Family Violence Intervention Order and unlawful assault, contravene a condition of bail and other driving offences. You were convicted and placed on a Community Based Order for a period of 12 months with conditions requiring that you be treated and undergo rehabilitation for drug abuse or dependency and for your mental health.
30In May 2017, this order was breached, including by the commission of offences including contravene Family Violence Intervention Order, 10 charges of failure to answer bail, 4 charges of commit an indictable offence whilst on bail, 1 charge of contravene a conduct condition of bail, property offences, and possess methylamphetamine. On the contravention, the order was confirmed and on the other charges you were sentenced to an aggregate term of four months’ imprisonment in relation to that new offending.
31I was told by your counsel that in June 2019, that is just short of two months after the commission of the offences before me and a month after you were remanded into custody, you received a sentence of 10 months’ imprisonment in the Magistrates’ Court at Heidelberg in relation to offences including criminal damage, make threat to kill, breach intervention order, dishonesty and driving offences, and committing offence whilst on bail. Once pre-sentence detention had been deducted, a period of approximately 7 months and 23 days of the time that you have spent on remand in relation to this offence was consumed by the sentence of imprisonment imposed on these offences.
32Two further court appearances have ensued whilst you have been on remand in relation to these offences:
(i)in August 2019, you were sentenced in the Magistrates’ Court on offences including driving offences, criminal damage, unlawful assault and breach of intervention order, which resulted inter alia with a one month sentence to be served concurrently with other sentences;
(ii)in October 2019, in relation to property offences, commit indictable offence whilst on bail, drug and firearm ammunition charges, you were sentenced to a total effective sentence of one year with six months minimum before parole eligibility.
33As you have been on remand for the offending before me, parole was denied and your full sentence expired in August 2019. Since you have been in custody, there have been restrictions and lockdowns placed upon you and other prisoners as an unfortunate and onerous consequence of the pandemic.
34I note that the time you have spent on remand, and undergoing sentence in relation to the matters I have just described, has been productive and that you have been working in the prison kitchen. You have completed multiple educational and rehabilitative certificate courses, including substance abuse programs requiring very significant hours of participation, a traffic management course, a barista course, and meetings and rehabilitation for your drug addiction.
35I have received a report from Ian Mackinnon, consultant psychologist, who has not disclosed any empirical testing processes, but who expresses the view that you are suffering from a chronic mixed anxiety and depression disorder, currently manifested at a mild level, in a context where you are apparently being treated with Paroxetine. He notes that since you have been remanded into custody, you have overcome a polysubstance abuse disorder which, though Mr Mackinnon does not note, has been in controlled remission in the custodial environment.
36Mr Mackinnon opines that you have long-suffered with a mostly low level of anxiety and depression and low self-esteem, and reports that your substance abuse took on a self-medicating aspect and grew to be a habitual behaviour until it eventually worsened.
37In Mr Mackinnon’s view, you do not possess an inherently antisocial and criminal character, and he notes, as do I, that your history of offending did not begin until you were 31 years old. Before your circumstances declined, you had an impressive prior history of skilled and legitimate employment.
38You are also well-supported by your family, and you can expect further support upon your eventual release from prison.
Prospects for rehabilitation
39I note and take into account that there are some factors in your case that may be seen to support your prospects for rehabilitation, including the fact that whilst you have a relevant criminal history, that your armed robbery charge arguably represents an escalation of previous offending, and your family support. I also take into account that you have completed useful courses whilst in custody.
40I am cautious about your prospects for rehabilitation, in that I share the view of Mr Mackinnon that once you are released from prison, you will be at risk of relapsing into illicit substance abuse if your circumstances are not then stable and appropriate.
41For the first 10 years of your adult life, you showed yourself to be a hardworking and law abiding individual, and it is my sincere hope that, upon your release, you may be tempted to resume the path that your life would have taken if you had not descended into your high level of drug abuse.
42Ultimately, as I have previously indicated in the course of the sentence indication hearing, it is my intention to provide you with an opportunity for supervised release on parole in the community, to assist with your continued rehabilitation from your illicit use of drugs and your associated temptation to offend.
Objective seriousness of your offending
43Your offending causes me serious concern. As your counsel has acknowledged, the offence of armed robbery is a serious one, and it is made more serious when the offence is committed in company with others, as was the case here.
44You became involved in Mr Burns’ offence after he produced a knife and made demands of the victim. Your words acted as encouragement of Mr Burns, and led the victim to surrender his property.
45The victim was not known to you, and after the completion of the armed robbery, he suffered the indignation and loss of you stealing his car at his point of vulnerability.
46I accept your counsel’s submission that your offending was unaccompanied by aggravating factors that we see in other similar cases, in that it was not protracted, did not result in the application of force, or result in injury to the victim, and there was no evidence of planning or preparation.
47Charge 1 was committed in a breach of your undertaking of bail, which did not deter you from participating in Mr Burns’ offending. Whilst arguably your armed robbery represents an escalation of previous offending, you have come before the court on numerous prior occasions for property offences, and it is fair to say that your bail undertakings in the past have not acted as any deterrent from committing these types of offences.
Relevant sentencing principles, sentencing submissions
48I take into account the purposes for which sentence must be imposed and the need for deterrence, both general and specific. The gravity and prevalence of each of the indictable offences that you have committed require emphasis of general deterrence in the sentencing exercise. Specific deterrence is also needed in your case, given your prior criminal history.
49The sentences that I will impose will punish you and denounce your behaviour, whilst allowing and emphasising your continued efforts at rehabilitation.
50I have taken care in my application of the totality principle of sentencing to the circumstances of this case. This is so for a number of reasons.
51You have been on remand in relation to these offences since May 2019, which is a period of two years and three months. However, as I have carefully summarised, there have been three court appearances since your period on remand, all of which of course related to offences that pre-dated the commission of this offence, but all of which resulted in sentences of imprisonment that would lead to a calculation of pre-sentence detention but fall short of the actual time spent on remand.
52In my application of the totality principle to the circumstances of this case, I am required to take into account the overall criminality of the offences, the subject of all four court appearances, and then set a single non-parole period.[1]
[1]R v Johnson (2004) 205 ALR 346
53As non-parole periods that were earlier imposed have now passed, as have the head sentences associated with those sentences, this is going to result in individual sentences but particularly orders allowing concurrency that will appear less burdensome to you than they might in another similar case in which the sentencing judge was not obliged to have regard to that principle and in those circumstances.
Sentence
54I now impose the following sentences:
On charge 1, of armed robbery, you are convicted and sentenced to two years’ imprisonment. This is the base.
On charge 2, of theft, you are convicted and sentenced to 15 months’ imprisonment, three months to be served cumulatively upon the sentence imposed on charge 1.
On the related summary offence of breaching bail, convicted and sentenced to one month imprisonment, to be served wholly concurrently with other sentences.
On the related summary offence of unlicensed driving, you are convicted and sentenced to three months’ imprisonment, to be served wholly concurrently with other sentences.
On the related summary offence of failing to stop, convicted and sentenced to two weeks’ imprisonment, to be served wholly concurrently with other sentences.
55This is a total effective sentence of two years and three months and I require you to serve one year and two months before parole eligibility. I reckon 369 days presentence detention as served.
56Were it not for your pleas of guilty in this case, I would have imposed a longer sentence, which is not possible for me to quantify given the totality allowance that I have made in this case by reason of your service of other periods in prison whilst being on remand for this offending.
57Now, Mr Cameron, there was a mandatory disqualification or was it discretionary?
58MR CAMERON: Theft of motor vehicle, Your Honour, with his prior criminal history I believe it was mandatory disqualification.
59HER HONOUR: Yes, I thought there was one on the - was it the unlicensed driving or the failing to stop by reason of
60MR NEWTON: It's six months I think.
61HER HONOUR: Yes, I thought so too.
62MR CAMERON: I thought it was six months, yes, but I think it might have been the failure to stop.
63MR NEWTON: It's the failure to stop.
64MR CAMERON: Yes, I agree.
65MR NEWTON: Yes.
66MR CAMERON: Apologies, Your Honour.
67HER HONOUR: That's all right. In the meantime I'll make the order for forfeiture.
68MR NEWTON: It's in paragraph 21 of the prosecution opening for plea.
69MR CAMERON: Yes.
70HER HONOUR: Yes, I saw a table, but I found it a little difficult to follow. Is that mandatory or is it discretionary and is that the minimum?
71MR CAMERON: 54A, first offence, 60 penalty units or six months or both. That's in relation to gaol. If the offender holds a driver's licence, not less than six months on the first offence.
72HER HONOUR: Yes.
73MR CAMERON: Yes, six months minimum mandatory.
74HER HONOUR: All right. So firstly I'll order forfeiture in the terms sought for the Apple iPhone 6.
75MR CAMERON: Thank you, Your Honour.
76HER HONOUR: And I will cancel all licences held and disqualify the accused for a period of driving for nine months from today.
77MR CAMERON: If the court pleases.
78HER HONOUR: Thank you very much. We'll now adjourn until 9 am. Thank you very much.
79MR NEWTON: Just before we do, can we just confirm the non-parole period? It just was one year, sorry, Your Honour?
80HER HONOUR: Yes, it was one year and two months.
81MR NEWTON: Yes.
82HER HONOUR: Less 369 days.
83MR NEWTON: Most grateful, thank you, Your Honour.
84HER HONOUR: Thank you very much. I'll stand down.
85MR NEWTON: As Your Honour pleases.
86MR CAMERON: Thank you, Your Honour.
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