Director of Public Prosecutions v Elawad

[2015] VCC 780

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00038

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDELMOEZ ELAWAD

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2015
DATE OF SENTENCE:	12 June 2015
CASE MAY BE CITED AS:	DPP v Elawad
MEDIUM NEUTRAL CITATION:	[2015] VCC 780

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. F. Thomas	Office of Public Prosecutions
For the Accused	Ms L. M. Torres	Revill & Papa Lawyers

HIS HONOUR:

1Abdelmoez Mohammed Elawad, you have been found guilty by a jury after a laudably short trial of one charge of theft.  You were originally indicted and went to the jury on a charge of armed robbery with the alternative of robbery.  It was never in dispute in this case that you ended up with the phone of the victim and you were perfectly entitled to run a trial in these circumstances.  You do not get the benefit of a plea of guilty pursuant to the provisions of the Sentencing Act, I am entitled to take into account the way in which the trial was conducted and if I may say so, it was conducted very sensibly by both sides of the equation and did not cost the community in any way, shape or form.  You, as I have said, are justified in running it in any event because of the acquittal of the charge of armed robbery.

2The circumstances of the offending are to be described in short compass because of that acquittal.  In effect, what happened is that you on 16 October 2014 with a friend were collecting hard rubbish from a put out in Sunshine.  I accept that you and your friend were washing your hands at a tap in the driveway of a block of units.  The woman who lived in the nearest unit became concerned upon arriving home and telephoned her husband.  He came and then began to film the two of you with his camera outside his motor vehicle.  I have seen video of you approaching that vehicle and in that approach you were certainly not being aggressive or any such thing and you say that you were simply washing your hands.  The video stops short and it is clear that the jury rejected the version of the complainant as to what occurred thereafter.

3However, the jury have clearly accepted that the complainant had a phone and that you ended up with it and as Mr Jones of counsel would have said in an opening, you should not have.  What gives rise in that circumstance is that I cannot sentence on the basis of any force, simply that you took a phone dishonestly with the intention of permanently depriving.  In any event, a very short time later, you were seen by police.  You volunteered the phone to police and you were arrested.  You were not interviewed because it became clear, as I understand the situation, that your mental health was such that you were unfit.  It is in those circumstances that I sentence for a charge of theft.

4You are now 36 years of age. You do have a significant criminal history which would appear to have commenced in Victoria at least around about 2010. You have now been in custody on this and other matters for a period of something like 239 days. Firstly, pursuant to s.464ZF of the Crimes Act, I would order that you provide a saliva sample for DNA purposes.  That order having been made, I say to you that if you refuse to provide such a sample, police may use reasonable force to take it from you. 

5You do have criminal convictions for dishonesty and at the time of committing this offence were on bail.  I am informed by the Crown that the charges for which you were on bail at the time have been or were subsequently withdrawn.  In those circumstances where I have before me in addition to the charge of theft an uplifted charge of committing an indictable offence whilst on gaol, I think while it is technically there, it is of little significance. 

6Theft carries a maximum penalty of ten years' and whist it is always difficult these days to work out a LEAP report, you would appear to have been gaoled for theft before.  This act of theft on what I am called to sentence you upon, where the person has not been on what I sentence for subjected to force and the property has been returned undamaged within a very short period of time, is at the lower end. 

7Furthermore, there has been a psychiatric report tendered on your behalf.  What I will do is, I am always reluctant to go into these in detail in open court when the person is listening to us, so I will direct that that psychiatric report remain on the court file so anyone with a genuine interest can look at it.  What it does point out is this, you have had a very chaotic lifestyle over a number of years.  Your personal circumstances are that you have been diagnosed with schizophrenia since 2006.  You were born in the Sudan and your father had been in the army and run a restaurant.  You had done reasonably well at school and were in the army yourself for about three years.  You are of Bedouin descent.  You left the army and were charged with being absent without leave and you have endeavoured to educate yourself subsequently. 

8According to the report, you were politically active in that area and were arrested and tortured in, as I understand it, the Sudan, before fleeing into Egypt.  You met your wife there and came to Australia in 2006 where you were then diagnosed.  You became an Australian citizen and have a daughter and it is subsequent to that that in the context of alcohol abuse and mental illness that marriage has been somewhat problematic.  The report tells me that you have had something in the order of 13 inpatient stays in the psychiatric units of the Footscray, Sunshine and Werribee hospitals.  You have been on involuntary treatment orders and your personal difficulties are such that compliance with medication and the like has been difficult. 

9I accept that at the present time you are complying, possibly because you are in custody.  I do not have to go into any further detail than that other than that the nature of your schizophrenia is one of a paranoic disposition and the delusional aspects of it are clear from the report itself.  I can well understand how in this situation someone with your persecution and anxiety and fear delusions could have reacted badly to being filmed.  As I said, I have seen the start of that and you do not appear to me to be acting badly but I do take all that into account.  The principles in Verdins I think clearly reduce your moral culpability.  I suspect that you may possibly do better in gaol because of the regime and the compliance with medication but certainly your moral culpability is reduced.  Also, general deterrence are very significantly reduced and the best proposition for you in terms of specific deterrence and rehabilitation is clearly ongoing supervision and assistance. 

10On Thursday of this week you face a breach proceedings in the Magistrates' Court for a community based order.  I obviously have no control over what a magistrate may do on that occasion.  I would assume that the same material will be placed before a magistrate who will be then dealing with you after you have been in custody for approximately eight months and hopefully have been clean of any substance abuse which also played a part in this offending. 

11From that position, I will simply leave it to a learned magistrate to determine what is the best prospect for you.  I think it would be inappropriate for me to impose a community corrections order at this time because I think that the nature of the theft is such that a short gaol term is sufficient and I may not even have done so had this matter been a plea in the outset.  For me to impose a community corrections order may be viewed by a magistrate as somehow binding him or her and again I am reluctant to do that.  In a situation such as yours, obviously there needs to be an element of community protection and I am sure that a learned magistrate will take that into account in terms of the disposition that is imposed subsequent to the breach proceeding.

12This matter, had it been a plea without the armed robbery aspects of it, would undoubtedly have been heard in a Magistrates' Court and I take that into account as well.  Because of the Verdins principles, because of the lower end offending and all those other circumstances and because a magistrate will be in a position to have a community disposition, I think that a short custodial sentence in all the circumstances is appropriate.  The prospects of your rehabilitation will rely heavily on assistance from others and the risk of you reoffending if you are not rehabilitated is obviously going to be fairly high, I would have thought.  But be all that as it may, I do not see any point in inflating a sentence.  Accordingly, on the transfer charge?

13MS THOMAS:  Yes, uplifted transfer.

14HIS HONOUR:  Uplifted, yes, on the uplifted charge of committing an indictable offence on bail, you are convicted and discharged.  On the charge of theft, you are sentenced to be imprisoned for a period of 90 days and I direct that 90 days be reckoned as having been served under that sentence.  There is no plea of guilty so s.6AAA does not apply.  Are there any other orders I have to make, ladies?

15MS THOMAS:  No, Your Honour.

16MS TORRES:  No, Your Honour.

17HIS HONOUR:  All right, you will explain all that to him.

18MS TORRES:  I will.  I'll go down with him now.

19HIS HONOUR:  Yes, that leaves him about five months' worth down at the Magistrates' Court if a magistrate wants to declare time served and whatever.  Just gives you some room to move.

20MS TORRES:  Yes, I'll explain all of that.

21HIS HONOUR:  Yes, all right.  All right, could I just - yes, just also thank and commend counsel both for the way this was conducted.  The shortest trial seen for a long time and highly commendable.

22MS THOMAS:  If only every week was like this week, Your Honour.

23HIS HONOUR:  Well no, well that is right but I mean it was, if I may say so, conducted very sensibly and very competently by both.  All right, 9.30.  That is fine, yes, yes, sine die.

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