Director of Public Prosecutions v Elabed
[2025] VCC 1269
•1 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01658
CR-24-01998
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDUL ELABED |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2025 | |
DATE OF SENTENCE: | 1 September 2025 | |
CASE MAY BE CITED AS: | DPP v Elabed | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1269 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: Firearm possession as a prohibited person, Assist offender, Aggravated burglary, Theft, Plea of guilty, Significant relevant history, Case history, Victim impact, Delay, Hardship, Burden of custody, Physical health, Totality, Prospects of reform, Community protection.
Legislation Cited: Sentencing Act 1991, Firearms Act 1996, Crimes Act 1958
Cases Cited:R v Verdins (2007) 16 VR 269; Powell v The King [2023] VSCA 235; Landmark v The Queen [2015] VSCA 178; Director of Public Prosecutions v Matthews & Burford (1997) A Crim. R 19; Director ofPublic Prosecutions v Abbott [2020] VCC 99; The Queen v Dowdy [2005] VSC 68; R v Zeidan [2009] VSC 137; R v Prestage [2023] VSC 400; Director of Public Prosecutions v Bahnert [2010] VSC 265; R v Armstrong [2014] VSC 256; Director of Public Prosecutions v Miller [2005] VSCA 7; Director of Public Prosecutions v Hindes [2022] VCC 2362; Berichon v The Queen (2013) VR 490; Fazal v The Queen [2024] VSCA 161; Director of Public Prosecutions v Dalgleish (Pseudonym) [2017] HCA 41; Cameron v The Queen (2002) 209 CLR 339; Arthars v The Queen (2013) 39 VR 613; R v Cockerell (2001) 126 A Crim R 444; Chandler v The Queen [2010] VSCA 338; Weartherburn v The King [2023] VSCA 283; R v Miceli [1998] 4 VR 588; O’Brien v R [2014] VSCA 94; R v Schwabegger (1997) 4 VR 650; R v Katsoulas [2008] VSCA 278; Dragojlovic v The Queen (2013) 40 VR 71; Ly Dang v Director of Public Prosecutions [2014] VSCA 49; Director of Public Prosecutions v Milson [2019] VSCA 55.
Sentence: TES: 3 years and 10 months imprisonment with a non-parole period of 2 years and 4 months.
6AAA: 5 years and 3 months imprisonment with a non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | OPP |
| For the Accused | Mr C. Hooper | Hofman Carroll |
HIS HONOUR:
INTRODUCTION
Abdul Elabed, you have pleaded guilty to charges on Indictment P12495050.1
(CR-24-01658) where the informant is Heymason.
# Offence provision Offence description Maximum penalty 1 Firearms Act 1996 (Vic) s112B Possessing a firearm whilst being subject to a firearm prohibition order on 23 November 2023 10 years imprisonment 2 Crimes Act 1958 (Vic) s325 Assisting an unknown principal offender knowing or believing them to be guilty of a serious indictable offence namely discharging a firearm at a vehicle with reckless disregard for safety and doing acts with the purpose of impeding the apprehension, prosecution, conviction, or punishment of the said principal offender without lawful authority or reasonable excuse
on 24 November 20235 years imprisonment
You have also pleaded guilty to charges on indictment Q11811027.1
(CR-24-01998) where the informant is Farrelly.
# Offence provision Offence description Maximum penalty 1 Crimes Act 1958 (Vic) s77 Aggravated burglary with intent to steal while reckless as to whether a person was present
on 17 May 202425 years imprisonment 2 Crimes Act 1958 (Vic) s74 Theft of personal belongings
on 17 May 202410 years imprisonment
The offending is serious, and what is more you have a long and relevant prior criminal history of serious offending.
Your plea comes after a process of negotiations and extensive case management in this Court. Two sentencing indications have been given, and for reasons I need not expand on here, one was rejected (only to see the matter resolve shortly thereafter to a different charge) and another was accepted. The long history of this matter is covered in some detail in a chronology that I attach to these reasons.
You experienced a complex upbringing and was exposed to criminality from your young age due to your father's drug use and subsequent imprisonment. You commenced drug use at age 18. Your two brothers have also served prison sentences in the past. You and your former partner lost custody of your daughter because of your chaotic life and drug use and incarceration. You have a limited employment history. You have attracted previously a diagnosis of PTSD after witnessing two murders.[1] You suffer from major cognitive deficits now as a result of a stroke, that rather changes the sentencing landscape in your case.[2]
[1]Which makes prison a source of anxiety and perceived danger for you.
[2]Exhibit 4: Report of Dr Matthew Staios dated 20 May 2025.
It is in no small part due to these recent issues that have arisen that I have taken a more tempered approach to your sentencing.
I have sentenced you to three years and 10 months' imprisonment (46 months) and declare that you serve two years and four months (32 months) before being eligible for parole. That represents something like 70 per cent of the head sentence.
My reasons for imposing this sentence follow.
OFFENDING
I will deal with the offending chronologically, in accordance with the single summary of prosecution opening tendered for the plea (SPO) [3] which covers both matters.
HEYMASON MATTER
[3]Exhibit A: Summary of Prosecution Opening dated 18 August 2025.
Background
You were 39[4] and resided at Rosedale Drive, Lalor at the time of the offending.
[4]Date of Birth 13 December 1985.
The victims in this matter, Konnor Gibson and Levan Signal-Hocking were, and remain, unknown to you.
On 23 November 2023, Gibson and Signal-Hocking were in the Westmeadows area looking for work. They were both due to have job interviews the following day.
At about 10 pm that night, they went to Anytime Fitness gym in Tullamarine, each driving their own car.
Gibson had a gold 2002 Nissan Patrol with Queensland plates.
Signal-Hocking drove a white 2000 Nissan Patrol.
They parked their cars outside the Anytime Fitness Gym, located at 203 Melrose Drive, Tullamarine.
McDonalds drive through
At about 12.30 am on 24 November 2023, Gibson went to the McDonald's at 173 Mickleham Road, Westmeadows. Signal-Hocking remained in his car at the carpark and watched a movie on his laptop.
Gibson went to the drive through at the McDonald's and there was a grey/white sedan in the drive through area ahead of his vehicle. The driver of the other vehicle appeared to be shouting at the McDonald's staff and not moving. Gibson beeped his horn and the passenger in the sedan turned to face Gibson, shouting 'If you beep again, I'll fucking kill you!'. The sedan then drove off. It is unknown who the driver or the passenger of that sedan was.
Shooting
Gibson returned a short time later to the Anytime Fitness car park and parked next to Signal-Hocking.
Both planned to sleep in their cars that night.
Gibson went into the back of his vehicle where he had a bed and lay down.
As he was ready to go to sleep, he heard a loud bang and realised the windscreen on his car had been smashed. The noise was so loud that Gibson initially thought a brick had been thrown through it. Gibson could see two men running from the scene, both wearing black clothing and black balaclavas.
Gibson drove after the two offenders, followed by Signal-Hocking in the other Patrol. At a location around 185 Melrose Drive, Gibson saw the two offenders standing next to a parked car.
Gibson did a U-turn and saw the two offenders running across the nature strip. Outside 193 Melrose Drive, one of the offenders raised what looked like a plastic bag in his hand as if pointing something and Gibson realised that the windscreen damage may have been caused by a firearm. He called Triple 0.
Gibson and Signal-Hocking stopped outside 37 Broadmeadows Road, Tullamarine. A short time later they both heard a loud bang and saw a grey-coloured SUV drive past them. Both could see the driver of the SUV holding a pistol and pointing it at Gibson. The driver was wearing a balaclava and a hood. It is unknown who that was.
Gibson and Signal-Hocking then drove east on Broadmeadows Road into Mickleham Road and saw the same grey SUV approximately 500 metres behind.
As they drove away, they heard what sounded like a number of shots being discharged from the grey SUV. Gibson and Signal-Hocking drove to Craigieburn police station and reported the incident.
At some point shortly after this, you received a firearm, being a loaded .22 rifle from the unknown principal (Charge 2- assist offender) and by doing this, impeded the apprehension, prosecution, conviction or punishment of that unknown principal offender.
At the time you received the 0.22 rifle from the unknown principal, you were the subject of a firearm prohibition notice which had been served on you on 30 April 2021 and due to expire a decade later. (Charge 1 – possess firearm contrary to prohibition order )
Police location of the Accused
Police went to the area of 203 Melrose Drive in an attempt to locate the offenders.
At 1.40 am, Senior Constable Walls and First Constable Baines found you walking south outside 56 Broadmeadows Road. That is about 300 metres from 203 Melrose Drive. Police activated their Body Worn Cameras.
You were sweating and out of breath. You were in black tracksuit pants and a beige T-shirt despite the cool weather at that time of night.
You provided your details, and it was confirmed that you were in fact the subject of a firearm prohibitions order.
You were uncertain for your reasons in being in the area, saying (unconvincingly I might add) that you had come from an address in Theresa Street, Tullamarine and were simply out exercising at 1.40 am. You were observed to be nervous and unable to explain what you were doing.
Police arrested you and they searched you. They located a red shotgun shell in the front right pocket of your pants. (uncharged act)
A short time later you appeared to lose consciousness and police called an ambulance to attend.
You were taken to the Northern Hospital for examination before being discharged and taken to Fawkner.
Canine tracking – location of firearms
At 1.23 am, canine handler Senior Constable Guerin attended the area where you had been found and commenced tracking with Police Dog Fredrick at 1.52 am.
Fredrick had tracked to the back of 189 Melrose Drive. At this location a magazine of .22 calibre ammunition was located.
A loaded sawn off .22 rifle was found by police at the rear of 189 Melrose Drive, as well. The rifle had two rounds in the chamber and were stuck in a double feed stoppage.
It is alleged that with respect to Charge 1
(a)You were in possession of this firearm,
(b)You obtained this firearm from the principal offender, whose identity is unknown;
(c)That you impeded the apprehension, prosecution, conviction or punishment of the principal offender by your possession and hiding of this firearm.
That sawn-off rifle was later identified to be a .22 long calibre rifle, Sturm brand model 10/22 semi-automatic. The detachable magazine had 27 cartridges. The butt stock had been sawn off and shaped into a pistol style grip.
Police located a grey plastic storage tub in the middle of Mickleham Road. Inside, police found a black North Face hooded jumper, and a black Nike hooded jumper. In the North Face jumper three .22 calibre rounds and two shotgun shells were located.
DNA
You provided a sample of DNA for analysis at the Fawkner police station by consent.
Subsequent analysis of the rifle and comparison to the DNA results indicated:
(a)There was a mixed profile of four contributors on the trigger guard where you were not excluded; and
(b)There was a mixed partial mixed DNA of three contributors on the handle, where you were not excluded.
Those results support the proposition that though you handled the weapon, it is likely not yours, given the mixture.
Ballistic Analysis of the Vehicle
At 10 am, Leading Senior Constable Atkinson and Leading Senior Constable Dawe processed Gibson's Nissan Patrol and informed investigators the damage to the windscreen from a shotgun shell had been discharged into it.
The ballistics analysis of the Patrol showed that:
(a)There was a single area of impact damage across the front bonnet and windshield;
(b)The area of damage contained multiple impact sites caused by the passage of a fired shot from a single discharge which had ricocheted off the bonnet and windshield;
(c)There was damage to the snorkel and to the surfboard and bag on the roof;
(d)The damage showed that the shot fired impacted the bonnet and windshields on a relatively flat trajectory and that the fired shot originated on the driver's side and forward of the vehicle.
Charge, remand and bail
You were charged on the day that you were arrested, namely 24 November 2023.
On 15 May 2024, after nearly five months in custody, you were released on bail with strict conditions, including electronic monitoring.
You were on bail for a mere four days before you re-offended[5]
FARRELLY MATTER
[5]Which is important in this exercise, given s.16(1A)(e) of the Sentencing Act 1991.
Background
You reoffended in this way, where the informant is Farrelly. The victims are Elias Elcheikh, and his wife Nayfi. They lived in Adrienne Close, Keilor Park, with their son's girlfriend, Zoe Findlay. Elias and Nayfi are separated but slept in different rooms.
The victims had a CCTV doorbell camera installed which monitored movement at the front of the house. CCTV footage of the offending was subsequently provided to police.
Accused attends victim’s house
At 11.45 am on 17 May 2024, a white Audi sedan with false plates stopped at the victim's house, parking in the driveway. The driver is unknown.
An unknown male approached the Audi on foot and then went to the rear passenger side, speaking to you who were seated in the rear passenger seat.
A short time later, you exited the rear passenger seat of the Audi and walked to the front door of the house. You knocked on the door and called 'Hello'. At this time, the unknown male entered the front passenger seat.
You returned to the vehicle, re-entering the rear passenger seat and the Audi was driven away.
At 12.02 pm, the Audi came back and parked in the neighbouring driveway of the victim's house.
At this time Elias was in the upstairs bedroom, having returned home at about 5 am. Thankfully, Nayfi and Zoe were not at home.
You and the unknown male left the Audi and climbed the side fence between the houses. Meanwhile, the unknown driver of the Audi moved it to a position on the road between the two properties.
You and the unknown male forced entry into the victim's house. You entered through a glass sliding door at the rear of the property, causing damage to the lock.
The forcing of the door was enough to wake the victim, who described hearing a loud bang.
You and your accomplice entered one of the bedrooms upstairs containing property belonging to Nayfi. Together you opened multiple drawers before stealing a box containing jewellery and other personal belongings. (Charge 1 - Aggravated burglary and Charge 2 – theft).
You both then exited the house through the front door, ran to the Audi and at 12.07 pm the Audi drove away. CCTV footage of the scene shows you carrying the box with the jewellery and personal possessions and the unknown male carrying a separate bag.
The victim came downstairs and could see the front door was open, and the house alarm had been activated. He called his wife, and she returned home immediately. Zoe Findlay was also notified.
Findlay arrived home and noticed the drawers in Nayfi's room had been opened. She advised Nayfi and then called Triple 0.
Nayfi then arrived home and went to the bedroom and found that her keepsake box had been stolen.
Police investigation
Police attended the house at 1.00 pm and observed the CCTV footage from both the victim's house and properties nearby.
They were able to identify you from the CCTV footage.
Police also obtained your Bailsafe GPS records and those records showed you to be in the Keilor Park area at the time of the offending.
Arrest and interview
On 26 August 2024, you were arrested at your home in Rosedale Drive, Lalor.
You were taken to Sunshine police station but were not able to be interviewed.
No items that were stolen were ever recovered.
You were remanded in custody, where you have remained ever since.
Case history
As I alluded to in the introductory remarks of this sentence, this matter has had an extensive history in this Court. Mr Pickering described it as tortuous which is hard to disagree with. A chronology of the proceedings is attached to these reasons that outlines same. Amongst having a change of solicitor and Counsel, the matters were listed separately, for separate case management hearings, or bail applications, or both. Finally, the matters were consolidated and case managed by me in early 2025, and from that point in time, took a trajectory towards the resolution presented before me now.
Victim impact
Though there are no victim impact statements with respect to the shooting (and I note that you are not charged with same), I infer that this was a terrifying and serious incident for those who were shot at, but of course that is not attributable to you. I can only take into account how the assistance you provided to the principal caused harm to the victims and I am unable to do so here.
I have though received a victim impact statement from Ms Echeikh[6] a victim of the aggravated burglary who says her life has been changed for the worse because of your offending. She no longer feels safe. She feels in constant, exhausting fear. She had to replace the damaged locks and lost money on a trip she was planning, not to mention losing those very personal things you took that cannot be replaced. She is hypervigilant and feels vulnerable since you violated the sanctity of her home. I take this impact on her into account in passing sentence on you.
[6]Exhibit B: VIS of Nayfi ELCHEIKH dated 29 August 2025.
I will come to a more detailed assessment of the gravity of this instant offending, your role in it, culpability for it, and matters of general sentencing principle to this offending in due course, but not before I recite important matters personal to you.
MATTERS PERSONAL TO THE ACCUSED
Material tendered
I have had regard to the very large amount of material tendered on your behalf, which has been
(a)Outline of submissions for sentencing indication on 10 February 2025
(b)Outline of submissions for sentencing indication on 29 July 2025
(c)Outline of submissions for plea (dealing with totality) on 26 August 2025
(d)Report of Dr Matthew Staois 20 May 2025
(e)Eastern Health Discharge Summary 9 August 2024
(f)Letter from Karly Doyle of Ontrack 9 August 2024
(g)Letter of Samantha Mark 28 October 2024
(h)Letter of Donna Chandler 28 October 2024
(i)Email of Samantha Mark 30 October 2024
(j)Urine Screen Results Bundle
(k)Various medical documents relating to your hospitalisation
(l)ATLAS Certificates in Custody
(m)CISP suitability reports 27 November 2024, 11 December 2024, 10 February 2025 and 13 June 2025
Details
You are 38 years old.
You were born in Australia, with Lebanese heritage.
I touched on aspects of your upbringing in my introductory remarks.
You experienced a complex upbringing and was exposed to criminality from a young age due to your father's drug use and subsequent imprisonment. Your mother lives in Sydney and you have contact with her via phone.
Your father lives in Melbourne and has re-partnered. You have a close relationship with him.
Your younger brothers have served prison sentences in the past. You have a sister who is not involved in criminal activity it seems.
You have attracted a previous diagnosis of PTSD after witnessing two murders.[7]
[7]Which makes prison a source of anxiety for you, as I have noted earlier.
You now suffer from major cognitive deficits, as a result of suffering a stroke.
Relationships
You had been with your partner Ms Newham, for about two years up until recently.
Your daughter, now 17 years of age from a previous marriage, now lives with her paternal grandfather. Your daughter had been placed in the care of your parents due to you and your former partner's drug use and incarceration. You had sole custody of her from two to 11. Her mother has limited involvement in her life.
Education
You completed your primary school education and you moved to Melbourne with your father in adolescence and completed secondary school.
Employment
You have had a limited employment history.
Upon your eventual release from custody, you will be prioritising your rehabilitation given the state of your physical health.
You have previously received the Disability Support Pension (DSP) but are now in the process of obtaining NDIS funding if you can.
Alcohol and drug use
You admit a significant substance abuse history dating back to your adolescence. You
(a)Began using illicit substances in late adolescence (alcohol, cannabis, Valium Xanax)
(b)Before using methamphetamines (18 years)
(c)GHB (19 years)
(d)Heroin (31 years)
(e)Suboxone injections (Buvidal) in custody, which I am told that you will continue to use upon your release in community
All illicit substance use ceased upon your remand in August 2024, and you have remained drug free ever since [8] I add it would be more than just folly for you to resume illicit drug use, given the events I am about to come to.
[8]Exhibit 10: Urine Creen Results Bundle, (negative screens).
Forensic history
You have a plainly relevant, recent and extensive prior criminal history. That is relevant to the assessment of your character but does not itself permit me to impose a disproportionate sentence. The sentence I impose must conform to the principles of proportionality and parsimony.
Your criminal history dates back to 2005 including relevant dishonesty and property offences. This history is consistent with significant insidious
poly-substance abuse since youth, which I take to be part of the pro-criminal environment that you were raised in.You have simply too many prior Court appearances for me to count. They take up 56 pages of your LEAP criminal history record. You have committed almost every species of offending (save for sex offences), including
(a)Dishonesty
(b)Driving
(c)Endangerment offences
(d)Weapons offences (including firearms)
(e)Drug use and sale of multiple substances
(f)Resist and assault police (later whilst on duty)
(g)Breaches of bail,
(h)Breaches of CCO
(i)Causing injury, damage property
You have been the subject of almost every conceivable penalty any Court can impose on you by way of disposition, with very few successfully completed orders, including for instance, a breach of CCO imposed on 23 November 2023, that is the very day prior to the Heymason offending, as well as the fact you were on bail granted on 13 May 2024 which was breached within four days by the Farrelly offending.
You have been sentenced to straight terms of imprisonment, terms of imprisonment with CCOs attached to them, a term of imprisonment with a non‑parole period, suspended sentence of imprisonment, and standalone CCOs.
Leading up to the 23 November 2023 appearance, you had amassed six Court appearances in the preceding three years. You received multiple terms of imprisonment over that time.
You are not to be punished again for this prior offending, but it causes obvious concerns about your capacity to reform. None of the sentences so far have diminished your appetite for offending. You have proven to be very hard to deter. This present offending arguably represents the most serious criminality you have engaged in so far
It is events concerning the stroke and its aftermath that are said to act as the circuit breaker to this regular and persistent history.
Medical
You have a history of high cholesterol and asthma.
You were diagnosed with major depression and anxiety and are currently prescribed antidepressant Mirtazapine.
Significantly, there are health conditions that inform the sentencing process.
Diabetes
You are diabetic, and there was significant concern regarding a lack of medical attention and treatment whilst on remand. Your lawyers expressed disquiet about your treatment (or lack thereof) for this condition in custody.[9]
Stroke
[9]You were tested in September 2024 and despite having been apparently treated for insulin resistant diabetes, it was determined you do not have diabetes anymore and are not medicated.
But the more important of the matters is obviously concerned with the stroke. On 18 July 2024, you suffered a stroke and were hospitalised for several weeks. The medical documents refer to a potential cause of this being 'suspected drug overdose or misuse'.[10]
[10]Exhibit 5: Eastern Health Discharge Summary dated 9 August 2025.
You suffered a second stroke while you were in the Box Hill Hospital, but self‑discharged yourself afterwards. There is no data upon treatment in the community between your strokes and your remand, other than you were referred to physio and follow up for three months later (that you never made because of your arrest for this matter).
You were arrested and remanded on 26 August. You then remained in mainstream prison population (suggesting that your health issues were manageable in that setting), but you also relied heavily on other inmates to assist your daily tasks, given your limited fine motor skills.
You struggle to sleep, your memory was significantly affected, and your eyesight deteriorating rapidly.
You received limited neurological support/stroke rehabilitation while incarcerated, which was of concern to the Occupational Therapist, Ms Mark[11] and there was a hint that you may have suffered an ABI.
[11]Exhibit 7: Letter of Samantha Mark dated 28 October 2024, and Exhibit 9: Email from Samantha Mark 30 October 2024, correspondence from Ms Mark at Forensicare between 28 October 2024 and 30 October 2024.
These matters formed the centrepiece of the plea, though it took some time for something substantial by way of expert opinion to substantiate. It was initially extremely difficult to make any conclusive findings about the state of your health and how it affects your time in custody or how it may inform your prospects or even your ability to offend in the future.
The expert opinion finally came in the form of the report of Dr Matthew Staios, clinical neuropsychologist in his report 20 May 2025.
With the assistance of that report, I have a better understanding of the damage done to you by the stroke beyond simply those very understandable human reactions to a serious health event; that is your desire to change, to be a better parent, to be sober (if only for the prospect that given the recent stroke, drug use could kill you).
A summary of the impact of your stroke is contained in the report of Dr Matthew Staios, opining at [6]: 12:14:32
Mr El Abed will require ongoing support moving forward, given the nature of his medical history and cognitive profile. I note he is presently being supported by medical and allied health staff in custody. However, concerns have been raised by allied health staff with regards to providing him with appropriate rehabilitation. Medical treatment summaries and emails provided by OTs have indicated that they do not possess the specific skills needed to assist with providing Mr El Abed with tailored strategies to manage his cognitive deficits in the area of stroke. Mr El Abed is approximately 11 months post-stroke and continues to display significant cognitive issues, particularly in the area of new learning and memory. The added stress of a custodial setting is likely to further impact his rehabilitation capacity, due to a combination of limited access to appropriate specialists and symptoms of mood. He will require ongoing rehabilitation for the foreseeable future.
In terms of your prospects, he opines:
Mr El Abed has a very vulnerable brain. Several parts of his brain that have been impacted as a result of the stroke have been linked to complications concerning mood disorders, including depression. Survivors of stroke are prone to mood disorders. His mental health will need to be carefully monitored moving forward, particularly if he is to remain in a custody setting for an extended period. His history of excessive substance use is a factor that will need to be given careful consideration following his release from custody. Given the nature of his stroke, ongoing substance use will likely present further cognitive impairment and disability. At present, while cognitive deficits were noticed, he has not suffered from any form of physical disability (he can walk, use his arms) and can carry out a range of tasks independently. He stated he does not have an enduring power of attorney in place to assist him with making more complex decisions. His cognitive status remains unclear at this point, and further recovery may be possible. However, it is my opinion that he should consider appointing a family member to assist him with making complex decisions around medical, financial, and legal matters.
In light of this cognitive profile, your time in custody is more onerous than it would be for a person without those limitations.[12] The Crown accept that this is so.
[12]R v Verdins (2007) 16 VR 269.
Present custodial situation
You were remanded in custody on the first indictment on 24 November 2023 and granted bail after serving 171 days on remand.
You were later arrested on further offences on 26 August 2024 and have remained in custody ever since serving an additional 371 days at the time of sentence
In total, you have spent 542 days in custody or approximately 18 months in prison for these matters.
That time in custody has been spent labouring under the health issues I have taken great care to outline. This is the longest time you have spent in custody, and it will be the longest sentence you have received to date.
You have been clean of illicit substances since 26 August 2024 and remain drug free. You have undertaken AOD counselling whilst on remand demonstrating a strong desire and commitment to self- improvement. [13]
[13]Exhibit 8 letter Donna Chandler, see also Exhibit 12: ATLAS Certificates in Custody.
There are now though significant medical, neurological and health concerns for you to navigate both in custody and upon release, of which you hold insight and show a genuine desire to reform from and focus on your own rehabilitation. You are to be more present as a father to your 17-year-old daughter and focus on your existing family relationship. I am told that you will live with your grandparents upon release.
In many important ways you appear to be a much diminished and more fragile man. I was invited to assess your time in custody and prospects for reform afresh in light of these issues.
I have done so.
MATTERS OF SENTENCING PRINCIPLE
HEYMASON
Assist offender
Such an offence requires proof that a person who has committed a serious indictable offence, and you, knowing or believing the principal to be guilty of that offence (or some other indictable one that is serious) act in a way to impede the apprehension, prosecution, conviction or punishment of the principal
Matters, it seems to me, relevant to the assessment of the gravity of such offending includes:
(a)Circumstances of the index offence
(b)State of belief that you held about that offence
(c)Actions taken by you to prevent arrest or detention
(d)Your motive for same
(e)The nature, extent and duration of the relationship, if any between you and the relevant principal.
(f)The presence or absence of any coercion of a threat to you or others to obtain your participation
(g)Duration of your participation
(h)Degree of success of your actions
Assistance can be found in the relatively recent case of Powell[14], where a thorough analysis was undertaken after an appeal for assist offender after a culpable driving (where three years was the highest sentence imposed for assist offender).[15]
[14][2023] VSCA 235.
[15]I have also reviewed the entire case collection provided by the JCV at 8.7.
There, on the plea, the court was referred to the following cases, each involving a plea of guilty for an offence of assisting a principal offender:
(a) Landmark v The Queen,[16] in which a sentence of 2 years and 3 months’ imprisonment was imposed for assisting a principal offender who had shot and fatally wounded a victim; the offence was defensive homicide. The offender was present at the shooting and had assisted in covering up the crime. He had previous convictions, and the plea was a late one. A co-offender was sentenced to 18 months’ imprisonment, receiving a discount for his co-operation with police and willingness to give evidence against his co-offenders.
(b) Director of Public Prosecutions v Matthews & Burford,[17] in which a sentence of 12 months’ imprisonment was imposed for the offence of accessory after the fact to manslaughter. The offender assisted the principal offender to remove the deceased’s body and dispose of it in a mine shaft. He was promised, and given, a car in exchange for his assistance. He had some prior convictions. He pleaded guilty early, assisted police and gave an undertaking to give evidence against the principal offender. A co-offender, who lacked any financial motive, received a community correction order of 16 months
(c) Director of Public Prosecutions v Abbott,[18] in which a sentence of 16 months’ imprisonment was imposed for assisting a principal offender who had driven a motorbike on a footpath and seriously injured a pedestrian, leaving him with a brain injury and cognitive impairment. The offender disposed of the motorbike, and it was not located by police for some months. The offender pleaded guilty early and had a range of prior convictions.
(d) The Queen v Dowdy,[19] where a bond was imposed on an offender who had assisted in erasing video evidence implicating the principal offender in the offence of manslaughter;
(e) R v Zeidan,[20] where sentences of 6 months and 9 months, wholly suspended, were imposed for assisting Antonios Mokbel to flee Australia during the course of his trial for the offence of importation of cocaine;
(f) R v Prestage,[21] where a sentence of 2 years and 3 months’ imprisonment was imposed on an offender who, believing the principal offender had committed manslaughter, assisted in removing the body from scene and dumping it in mineshaft;
(g) Director of Public Prosecutions v Bahnert,[22] where a sentence of 2 years, wholly suspended, was imposed for the assisting a principal offender who had intentionally caused serious injury; and
(h) R v Armstrong,[23] where a sentence of 8 months, wholly suspended, was imposed for assisting a principal offender who had intentionally caused injury.
(i) Director of Public Prosecutions v Miller,[24] in which a sentence of 18 months’ imprisonment was imposed for assisting the offence of intentionally cause injury (although the victim later died). The offender, who had a criminal history, took possession of the knife used by the principal offender to stab the victim and disposed of it by placing it on a window ledge around the corner from the offending. The offender had pleaded not guilty to manslaughter (of which he was acquitted) but offered to plead guilty to assisting the principal offender (of which he was ultimately convicted following a trial). That offer was a relevant mitigating factor.
(j) Director of Public Prosecutions v Hindes,[25] in which a 30 month community correction order was imposed for assisting a principal offender who had engaged in culpable driving. The offender, who had no criminal history, had pleaded guilty following a sentence indication. He had been a passenger in the offending car and had assisted the principal offender to escape.
[16] [2015] VSCA 178.
[17] (1997) A Crim. R 19.
[18] [2020] VCC 99.
[19] [2005] VSC 68.
[20] [2009] VSC 137.
[21] [2023] VSC 400.
[22] [2010] VSC 265.
[23] [2014] VSC 256.
[24] [2005] VSCA 7.
[25] [2022] VCC 2362.
You received the .22 firearm from an unknown offender a short time after it was used to fire a single shot into the windscreen of one of the victims. You were later arrested in the vicinity of the shooting where two firearms were located by the police, one of which was the weapon used in that prior shooting.
Your criminality arises from your conduct in impeding the apprehension, prosecution, conviction or punishment of the principal by your own possession and hiding of the .22. This effort of at least concealing the item used in the shooting was short lived. I cannot say what underlying motive there was to this behaviour.
The .22 rifle on which the DNA profile was said to match yours, was located. No DNA was taken from the other firearm which was the sawn-off shotgun.
The ballistic analyses do not demonstrate that either firearm was actually used in the alleged offending, and no gun-shot residue was located on your person or any clothing the Crown can prove that you wore. Those are relevant facts when assessing the value and utility of your plea.
Firearm possession
Firearm possession are self-evidently serious offences. The offence you committed and have pleaded guilty to carries a maximum penalty of 10 years.
There is an obvious interplay with this charge and Charge 2. You are said to be in possession of the firearm in a particular context – that is immediately after its use and with the purpose of assisting someone who discharged it (in dangerous circumstances) to avoid apprehension or punishment. To that extent it was possessed really by another and used in a dangerous way. I must sentence you in a way that reflects that the firearm came to you without pre-planning or warning, otherwise you would be complicit in the shooting itself – which is obviously not what your criminality is here.
Possession of firearms are broadly divided into two categories[26]:
(a)First, where it is not open that the possession of the firearm is associated with ongoing criminal activity, and
(b)Second, where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose.
[26]See Berichon v The Queen (2013) VR 490 and Fazal v The Queen [2024] VSCA 161.
Comparatively small sentences may be imposed for the former, but more severe sentences for the latter.
They are not fixed sub-categories though which prescribe the manner in which a court must assess the gravity of the offending.
There are many factors which elevate the seriousness of a possess firearm offence, even if it is not associated with an ongoing criminal purpose and some of those include:
(a)an offender's criminal history, especially for firearms convictions. Especially in your case that is relevant; and
(b)any circumstantial evidence that enables the conclusion the firearm was in possession for an unlawful activity.
The various possession offences share factors relevant to assessing offence gravity. Other factors may aggravate a possession of firearm offence including:
(a)the number of firearms involved - here, it is one
(b)the nature of the firearm – in that the firearm is capable of great lethality is considered more serious. This is a semi-automatic weapon, shortened for concealment.
(c)whether the weapon is loaded and/or the presence of ammunition. This applies. There was a detachable magazine and 27 cartridges and the item was loaded.
(d)where the firearm and ammunition are not kept securely, or are readily accessible and capable of being retrieved and discharged quickly – which has less application given the above circumstances.
(e)the duration of the possession – possession for a longer period may aggravate the offending, but possession for a short period may not mitigate the offending if it is designed to reduce the risk of being caught.
(f)the status of the offender, either as a prohibited person or the subject of a firearm prohibition order, and the nature and extent of their prior history. In your case, your prior history discloses that you are quite comfortable possessing weapons. You have done so before and been imprisoned for it before. You disobeyed a prohibition order imposed on 30 April 2021.
Here the weapon was used and so clearly referrable to other criminal activity, but not by you. The firearm is of course directly related to a specific act of shooting and is so related.
But importantly, as to avoid double punishment, the criminal conduct that is the subject of the principal offence (that is, assist offender) cannot be relied upon in relation to the charge of possess the firearm to elevate that possession into a more serious category.
I stress I have not aggravated or treated the assist offender charge as a more grave one given your status as being the subject of a prohibition order. I have not doubly punished you in that sense
I gave a sentence indication in this matter at your request on 5 August 2025.
I indicated that were you to plead guilty to the charges on that indictment I would sentence you to not more than 22 months, with a non-parole period of 16 months. You were arraigned and pleaded guilty.
The matter was adjourned to 1 September 2025 for this plea.
FARRELLY
Aggravated burglary and theft
It was acknowledged that sentencing for this type of offending requires more prominent considerations of general deterrence, community protection and denunciation. Such violent property offences create harm to victims and cause disquiet in the community generally.
It was conceded that the offending is objectively serious and set against a history of antisocial behaviour, requiring considerations of specific deterrence.
But the administration of the criminal law requires individual justice, and as was said in Director of Public Prosecutions v Dalgleish (Pseudonym) 'the imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case.' [27]
[27][2017] HCA 41.
The prosecution accept that this is not a high-level example of the offence, however, note that the matter appears to be pre-planned and not particularly spontaneous.
It lacks some of the other aggravating features that might lift it above this categorisation. It lacks extensive planning for instance, or disguise. You were not armed or had an intent to assault, for instance.
I have reviewed the current sentencing practices insofar as the sentencing statistics for this offending is concerned as well as the Case collection of the Judicial College.[28]
[28]I have had regard to sentencing practices (by reference to sentencing statistics and the JCV case collection), which are not a controlling factor in my decision by any means. They do not set a numerical limit on the upper and lower limits of the appropriate sentence in any particular case.
Your criminality here concerns your active involvement in the course of what appears to be a pre-planned aggravated burglary and theft.
There is the forcing of the backdoor to gain entry and the effect that this has had on the complainant's safety and fear. You took keepsakes - the kind of things that are sentimental in value and hard to replace. They were never located.
This offence brazenly occurs soon after being granted bail after very serious allegations were levelled at you. You were the subject of rigorous conditions including wearing an ankle bracelet. This obviously accentuates the seriousness of that present offending.
For completeness, I note that you sought and were given a sentence indication on the charges of Indictment Q11811027, but declined to accept that indication.[29] That indictment was for charges of home invasion and theft. You subsequently pleaded guilty to a filed over indictment of aggravated burglary and theft on 30 April 2025. That indication was for different charges and was, as I said, refused. Still, the term I was contemplating then serves as a useful guide in this exercise.
[29]On 12 February 2025 I indicated I would impose a sentence of not more than 3 years and 2 months (noting that the PSD accumulated in relating to this this matter be reckoned as served).
Plea of guilty
Your pleas of guilty here possess significant utilitarian value as it has avoided the need for a trial and thus has advanced the interests of justice.[30]
[30]See Cameron v The Queen (2002) 209 CLR 339, 343–4 [11–[15] (Gaudron, Gummow & Callinan JJ).
This is especially so given some of the difficulties in the Crown case on the firearm charges (especially fixing your state of mind to the circumstances of the principal offence).
The human and resource savings are enormous. That the victims of the shooting would either have to travel or give evidence remotely is but one feature of any trial that has been avoided.
It was said I can glean some measure of remorse from your plea, but that contrition is not found elsewhere in comments you made to others for instance and in the end, not much reliance was placed on it.
Delay
It has been put there has been a delay and you ought to be given the full mitigatory effect of delay.
Delay of course does not of itself necessarily entitle an accused to a discount on sentence.[31] Rather, it is commonly assessed as a matter in mitigation having regard to the extent to which an accused has demonstrated their capacity for rehabilitation over the relevant period, and the extent to which the delay can be regarded as visiting unfairness upon you.[32] While particular reasons for delay will not always require specific identification,[33] the delay here was occasioned by the rather painstaking process of resolving both of your serious matters.
[31]Arthars v The Queen (2013) 39 VR 613 (Arthars), 621 [29].
[32]R v Cockerell (2001) 126 A Crim R 444, 447 [10].
[33]See. Arthars at 621 [27]; Chandler v The Queen [2010] VSCA 338, [19].
Counsel, I will not read the quotes in both Chandler, Hicks, and Arthars.
Though there were later qualifications in the judgment in Arthars[34], for present purposes I am prepared to accept, certainly over the last eight months, genuine efforts have been made to resolve this matter (successfully I add). The matter initially looked to be on course for consecutive trials (in fact it was booked in as such to commence today for three weeks) but by any measure, 18 months in custody pending sentence is a significant period of time I am obliged to consider in your favour, and I do so. There is no requirement that the delay be 'inordinate' before I can consider it in mitigation.[35]
[34]Arthars at [28]-[30], see also Weartherburn [2023] VSCA 283.
[35]See R v Miceli [1998] 4 VR 588, 591; see e.g. O’Brien v R [2014] VSCA 94 where delay of 16 months was regarded as an important sentencing consideration.
The delay here has had deleterious effects on you as the ultimate finalisation of the matter, and your likely sentence hanging over your head for an extended period and you have suffered significant cognitive decline since first being charged.
Delay in the order experienced by you, ought to be regarded as punishment in and of itself.[36]
[36]R v Schwabegger (1997) 4 VR 650, 653, 659–60; R v Katsoulas [2008] VSCA 278, [9]–[13]; Dragojlovic v The Queen (2013) 40 VR 71, 131 [294].
I give it weight accordingly.
Hardship and the burden of custody
In light of your cognitive profile, your time in custody is more onerous than would be the case without your limits.[37] The prosecution acknowledge you would find your time in prison more onerous than a person in good health.
[37]R v Verdins (2007) 16 VR 269 – this is the only limb relied on.
I have tried to limit the amount of time you may have to spend in custody by setting a non-parole period for you to aim towards in the not-too-distant future.
Totality
Where a Court is passing sentence on an offender for multiple offences, the principle of totality is likely to require some moderation of the individual sentences either by reduction or orders for concurrency, in order to achieve a sentence which reflects the 'overall criminality of the offending' after first determining the appropriate sentence for each charge. This will necessarily result in a reduction in the total effective sentence imposed regardless of whether the Court reduces the individual sentences, in particular charges, or makes orders for concurrency. Although the Court of Appeal has expressed a preference for the latter. While totality may also be expressed in the form of an aggregate sentence, this would not be appropriate in respect of the two indictments given they are unrelated.
In this vein, Mr Hooper submitted that the charges on each indictment may be regarded as calling for either an aggregate sentence, or significant concurrency given they are each founded on the same set of facts or occur simultaneously. I must say in the interests of transparency I am not inclined to impose an aggregate sentence.
In both indictments, the same or similar conduct is relied on to found each charge. Although in respect of indictment P12495020.1, it is accepted that charge involves different interests and on the other indictment, theft is not an element of burglary and involves additional criminality post-entry. I have had regard to the Court of Appeal's statement in Dang[38] and the application of principle inform the setting of both the global head sentence and non-parole period.
[38]Ly Dang v DPP [2014] VSCA 49.
Both parties essentially agreed there can be a significant amount of concurrency in the sentence imposed for each indictment and meaningful concurrency as between the indictments (noting of course the second matter occurred a mere four days after you were bailed on the first).
Prospects for reform and community protection
Community protection looms large because of your demonstrated entrenched criminality. Your long history of serious drug use itself suggests a need for community protection and deterrence.
Your prospects may be seen to be very guarded (especially given your history), but I cannot conclude they are extinguished given recent events (and the rather positive way that you are assessed for instance by CISP)[39]
[39]Exhibit 13: CISP suitability report dated 27 November 2024; Exhibit 14: CISP Suitability report dated 11 December 2024; Exhibit 15: CISP Suitability report dated 10 February 2025; Exhibit 16: CISP Suitability report dated 13 June 2025.
It was submitted your prospects of rehabilitation are to be assessed now, in light of your cognitive difficulties and I agree.
Ultimately the community is best protected by your enduring rehabilitation,[40] and I have attempted to fashion a sentence that will encourage the good in you and tame, or treat, the bad.
[40]Sentencing Act 1991 (Vic) ss 51(1)(c) and 51(1)(e). See DPP v Milson [2019] VSCA 55, [71].
I have allowed for what I consider to be a meaningful parole period should you be eligible for it. The setting of both the head sentence and non-parole period pays due regard to the way in which you have served your time in custody so far, which satisfies both the punitive and deterrent aspect of sentencing to a large measure, and takes into account the personal circumstances, medical concerns, plea of guilty, and other factors raised in mitigation.
SENTENCES IMPOSED
Having considered the matter, and weighed the necessary sentencing considerations, I sentence you as follows:
On Charge 1 on the Heymason indictment, 16 months' imprisonment.
On Charge 2, assisting an offender, 18 months' imprisonment.
I direct that four months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2. To make it clear, on Indictment P12495020.1 you are sentenced to one year and 10 months' imprisonment.
On the second indictment where the informant is Farrelly:
On Charge 1 you are sentenced to two years and 10 months' imprisonment.
On Charge 2, theft, six months' imprisonment, with two months of the later to be served on Charge 1. For the sake of clarify on Indictment Q11811027.1 you are sentenced to a total effective sentence of three years' imprisonment.
I order 10 months of the sentence on Indictment 1 to be served cumulatively upon the sentence I have imposed on Indictment 2.
This brings about a total effective sentence of three years and 10 months (46 months).
I declare that you serve two years and four months (32 months) before being eligible for parole, which represents approximately 70 per cent of the head sentence.
You have served 542 days (or around 18 months) so far in satisfaction of this sentence.
If you are paroled at the earliest opportunity (and I do not take into account that you will inevitably will be), you could be serving as much as 14 months of your sentence in the community by way of parole. I should add, I encourage you to do all that you can, Mr Elabed, to make sure that you can be eligible for parole as soon as possible.
ANCILLARY ORDERS
I make the forfeiture orders and disposal as sought.
Pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty I would have sentenced you to five years and three months' imprisonment with a
non-parole period of four years.Thanks very much both of you. Mr Elabed, I wish you well in your endeavours post-release. As I said, I encourage you to work hard to be paroled at the earliest opportunity and be a dad to your daughter. You also have a number of health concerns that mean, as I said, you are going to have to look after yourself and by looking after yourself it is hoped that you will avoid any further involvement in the criminal justice system. Thanks very much.
- - -
CHRONOLOGY
| Event | Date | Outcome |
| Heidelberg Magistrates Court plea to driving and other offences | 23 November 2023 | 8m CCO |
| CR-24-01658 Heymason offending | 24 November 2023 | Remanded in custody |
| CR-24-01658 Bail application | 13 May 2024 | Bailed on conditions |
| CR-24-01998 Farrelly offending | 17 May 2024 | |
| CR-24-01998 Farrelly | 26 August 2024 | Arrest and remand |
| Filing Hearing CR-24-01998) | 27 August 2024 | Listed for CCC on 18 November 2024. Remanded. |
| Contested Committal (CR-24-01658) | 23 September 2024 | OMC Committal hearing. All witnesses attended. Discharged on charge 7 - statement of drugs seized in hospital not on brief. Committed on charges 1 through 6 inclusive. Pleas of not guilty to 1 – 6 inclusive. Alibi caution given. Remanded in custody as no application for trial bail. Listed for IDH on 21 October 2024. |
| Initial Directions Hearing (CR-24-01658) | 21 October 2024 | Listed for a case assessment hearing on 18 December 2024. All outstanding Pros materials to be filed and served by 4 Dec 2024. |
| Committal Case Conference CR-24-01998) | 18 November 2024 | Committed – NG. Alibi caution given. Listed for IDH on 16 December 2024. No application for bail. |
| Bail Application (BOTH - CR-24-01658 & CR-24-01998) | 29 November 2024 | Adjourned administratively on 28 November 2024, due to email from new legal representatives who may be instructed in the matter seeking adjournment for time to get and review material. Current legal reps unaware of accused seeking new representation. New listing date - 12 December 2024. |
| Case Conference and Bail Application (BOTH - CR-24-01658 & CR-24-01998) | 12 December 2024 | Case Conference and Bail Application proceeded. Adjourned for a DH on 28 February 2025. Also listed with accused's other matter (2406079) for Sentence Indication and Bail Application on 28 February 2025. |
| Initial Directions Hearing CR-24-01998) | 16 December 2024 | Vacated |
| Case Assessment Hearing CR-24-01658) | 18 December 2024 | Vacated |
| Sentence Indication Hearing & Bail Application (BOTH - CR-24-01658 & CR-24-01998) | 11 February 2025 | Sentence indication proceeded on CR- 24-01998. HH will indicate head sentence tomorrow. HH's indication will be on the basis that there are potential matters in mitigation that have not been made out. If indication is accepted by defence, the court will order a forensicare report. |
| Sentence Indication Hearing Directions Hearing (BOTH - CR-24-01658 & CR-24-01998) | 12 February 2025 | SIH given HH orders defence responses are to be filed by 3 March 2025. Both matters listed for trial on 1 September 2025 for 15 days. Parties to decide which trial goes first. A FDH date will be set at the bail application. |
| Mention (BOTH - CR-24-01658 & CR-24-01998) | 7 March 2025 | Mr Elabed appeared from remand but was not represented. Yet to confirm new representation. He said he was not able to pay his last solicitors. HHJ Dempsey retained 11 March for Bail Application. |
| Bail Application (BOTH - CR-24-01658 & CR-24-01998) | 11 March 2025 | Accused unrepresented. Adjourned for Mention on 18 March 2025. |
| Mention (BOTH - CR-24-01658 & CR-24-01998) | 18 March 2025 | Accused represented by new solicitors. Adjourned for Defence to obtain material. Listed for Mention on 8 April 2025. |
| Mention (BOTH - CR-24-01658 & CR-24-01998) | 8 April 2025 | Adjourned for Prosecution to consider Defence offer (informant Farrelly matter only). Listed for Mention on 30 April 2025. |
| Mention (BOTH - CR-24-01658 & CR-24-01998) | 30 April 2025 | CR-24-01998 - Arraigned on the plea indictment. Particulars taken but Criminal Record not yet admitted. Plea listed to follow Trial in other matter on 1 September 2025. CR-24-01658 - Final directions hearing 29 July 2025. Amended summary of prosecution opening and notices by 25 June 2025. Defence response and any pre-trial issues by 16 July 2025. |
| Mention (BOTH - CR-24-01658 & CR-24-01998) | 23 June 2025 | Defence requested sentence indication for both matters. HH stated he could not give a global sentence indication on both of accused's matters as accused has already entered a plea to CR-24- 01998. HH raised concerns about multiple hearing using court resources without sufficient material. Defence indicated they had psych report for sentence indication. Sentence indication listed for CR-24-01658 on 5 August 2025. CR-24-01998 - adjourned to plea listed 1 Sep 2025. |
| Final Directions Hearing (CR-24-01658) | 29 July 2025 | Vacated |
| Sentence Indication (CR-24-01658) | 5 August 2025 | Sentence Indication of TES 1 yr 10m with NPP 14m. Adjourned for Mention on 8 Aug 2025. |
| Mention (CR-24-01658) | 8 August 2025 | Certify fresh Indictment Number P124950020.1 filed. Full arraignment. Further Plea and Sentence listed 1 September 2025. Trial vacated. |
| Plea (BOTH - CR-24-01658 & CR-24-01998) | 1 September 2025 | Sentenced (also represents proposed trial dates) |
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