Director of Public Prosecutions v Elbasha

[2021] VCC 604

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00769

DIRECTOR OF PUBLIC PROSECUTIONS

v

OMER ELBASHA

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 May 2021
CASE MAY BE CITED AS:	DPP v Elbasha
MEDIUM NEUTRAL CITATION:	[2021] VCC 604

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu	Office of Public Prosecutions
For the Accused	Mr M. McGrath	James Dowsley & Associates

HIS HONOUR:

1Omer Elbasha, you have pleaded guilty to one charge of theft.  That crime carries a maximum penalty of 10 years' imprisonment.  It is alleged to have occurred between 17th day of December 2019 and 30th day of December 2019 from Coles in Keysborough.  The sum taken is somewhat of an estimate but is in the order of a hundred and eighty odd thousand dollars.  It is obviously a considerable sum of money.

2You are now 26 years of age.

3I accept that your plea of guilty has to be accompanied by a level of appropriate remorse.  The utilitarian benefit of that plea of guilty in a situation such as this is of great value.  A number of witnesses would have been called and the trial would have taken some time.  In these COVID times with delays in backlog, pleading to such matters is to be encouraged.  There is a delay involved in that because of the COVID matters which of course is not your fault and I take that into account.

4You have no prior convictions and whilst there was one diversion previously, that is of no significance to me.

5The offending I will deal with in very short compass.  I point out that the Crown opening is an exhibit and goes into some 20 odd pages.  Because of the nature of the offending there is a considerable amount of detail as I have just indicated in that opening and anyone with a genuine interest can peruse it on the court file.

6What I will simply do is a very, very brief summary of it given the gist of what occurred.

7At the time of your arrest on 12 March 2020, you were employed as a duty manager at a Coles supermarket located in the shopping centre in Keysborough, Victoria.  You had been there for some period of time and have been working for Coles for a number of years.  At that point in time, you had somewhat of a managerial role in terms of what you were doing.

8The prosecution allege and by your plea of guilty you accept is that in that your role, you manipulated a pipe used to transport cash from the cashier to a safe.  Those pipes are pressurised and use the force of the air to push the bags of money all the way into a safe.  That pipe was manipulated so that the plastic bags containing cash could be intercepted before they reached the safe.  The plastic piping used to intercept the cash was found at your home at the time of your arrest together with the bandsaw that was used to cut the plastic piping.  The discarded plastic bag used to transport money was also found at your home together with a Chux wipe that was apparently used to test that the piping was working properly.  The police also found documents referring to significant amounts of cash.

9In other words, what you had done is by a relatively sophisticated process worked out how to divert the cash and you yourself were then taking it.

10A 'clearance' occurs when a cash register at the front of the store has an excess amount of money inside and the machine advises the operator to perform a clearance by removing the excess cash, but then having enough to continue trading and the clearance bag is mostly filled with $50 and $100 notes.  It is not counted before it is sent and accordingly that is why this is somewhat of an estimate from Coles but obviously very close and agreed to in the end by counsel.

11I think I do not have to go through the automatic tubing system or how all of this works but in fact what you had been able to do was get into that system so that you were able to intercept the money before it got into the safe.

12All this money was obtained in a period around about two weeks effectively and something in the order of 154 bags as I understand it were intercepted and kept.

13It was clearly a breach of trust and a significant one.  It is not as aggravating as a breach of trust for, say, a private company in a country town or something along those lines and the consequences to Coles would not be as dramatic as they would be to a smaller business; but, as I say, it does remain a breach of trust and it is obviously a very significant amount of money.  It is clear from what was found and the nature of what you were doing that an element of planning went into it.

14Insofar as recovery is concerned, a bank account containing $90,000 was seized effectively so that the Coles were able to get that amount back.  There is still about $80,000 missing and I was very candidly informed by your counsel that subsequent to the offending that amount of money had been spent by you in effect on lifestyle.  I do not think I need to go into the details of that.

15What did concern me and discussed with some length with your counsel during the course of the plea was that it is clear that on one occasion, you effectively laundered $30,000 through the Crown Casino and had clearly taken or made some efforts by the number of bank accounts and the like and I am not going down that path to conceal the offending.

16Whilst apprehension might have been inevitable, it is not offending which is generally regarded as naïve and obviously a degree of thought went into it.  What is put on your behalf, and I do accept this, is that at around the time of this offending, you had active suicidal ideation and that part of your thought process was that your then fiancé, if you killed yourself, would be left without and you were endeavouring to provide for her.

17I accept the report of Dr Owen which says that it was likely to have had an impact on your reasoning capacity and I take that into account.  However, obviously you had sufficient capacity to plan and carry out the offending though your motive for doing it may be one brought about to a certain extent by distress and therefore at least more understandable.

18I do not think that attracts the principles in Verdins as such but I do not think it needs to.  It is clearly a situation where with no prior convictions you have committed this offending in a very unusual and strange set of circumstances and therefore I think there is a reduction at least of your moral culpability.

19There is no victim impact statement from Coles.

20The offending has to be regarded as serious. It calls particularly for the application of general deterrence. In your case, I think the prison sentence I am going to impose will have effective specific deterrence. It thus calls for denunciation because of the breach of trust and obviously there must be an appropriate punishment. Your counsel's original submission was for a community corrections order but in my view the circumstances here are such that a clear breach of trust with such a significant amount even allowing for the precarious mental condition you may have been in at the time a gaol sentence with a minimum term is the only sentencing option open and I am well aware of all the provisions of s.5 of the Sentencing Act and all those other matters.

21I then turn to matters personal to you in determining the length of that sentence.  Your counsel has provided for the purposes of this matter a comprehensive and yet succinct point-form outline of your life.

22You were born in 1994 in Khartoum in Sudan and at that time, there was a civil war and a lot of violence.  In 1989, there was a coup, there were purges and executions in the upper ranks of the army and a lot of violence.  In 1996, it became a one-party State.  You did not witness any killing but you do remember the presence of soldiers and militia in your neighbourhood.  A number of your relatives were shot, an uncle had a leg amputated after being shot.  Your father there worked in maintenance for an electricity company and your mother cared for the children.

23Around 1998, somewhat understandably, the family fled Sudan to Egypt to avoid the violence.  You have never been back there but hope to return one day to visit.  You also have relatives who fled to Egypt and the family overall settled in Alexandria.  At that point, a further two children were born into your family which made it nine all up.  That was in a two-bedroom unit.  At that time, you were able to speak Arabic and two Sudanese languages as well though obviously English was more of a problem for you.  There was an element of violence in Egypt as well and a degree of racial discrimination against you and your family being Sudanese in that Egyptian society.

24You were, at one stage, sexually assaulted and I do not need to go into the detail of that.  Whilst it must have been very unfortunate, there seems to be no logical connection between what occurred there and the nature of this offending.  To put it clearly that whilst you may have an aspect of PTSD, this offending relates to theft and certainly in those circumstances PTSDs usually result in violence or that type of offending but your counsel has made it clear what he relies on and I do accept what he has to say about that.

25When you first came out, your family was living in Cairns.  At that point in time was when you started studying English.  You became an Australian citizen during primary school and it was around about that time, around Year 8 as I understand it, that your parents separated but lived under the same roof.  You went to another high school and completed Year 10 and you left school at the start of Year 12.  That was in 2012.

26You commenced work whilst you were at school which is to your advantage.  You worked at Hungry Jack's in Cairns again whilst you were at school and at landscaping gardening with a family friend in Cairns and Townsville.  It was in Townsville that you started working for Coles and made your way up.  You started as a trolley boy, then you were second in charge of the night fill and then became as I have indicated before the night duty manager ultimately in Melbourne.

27You had come to Melbourne in 2017 and sometime after that, you met a young lady who is now your partner and as I understand it to whom you are engaged.  The circumstances of when you came to Melbourne were somewhat precarious.  You were sleeping in a car or staying in hostels and you did that for about a year before you had been able to obtain a residence to live in.

28Your now partner or fiancé is employed as a Child Protection officer with the DHHS and I am told from the Bar table and accept that you have her support in terms of whatever occurs in this sentencing process.  You have been living together effectively since around about 2020.

29Insofar as your mental health is concerned, I have already indicated the aspects of it.  It is clear from the objective material here that in late December 2018, you took an overdose and it was an attempted suicide and were admitted at the Monash Medical Centre and that was after about a two-year period of a slowly deteriorating mood.  Obviously you were taken in as a psychiatric patient and I accept that it was the circumstances you were in.

30At that point in time, you were unable to work for some time because of that situation.  You were then placed on antidepressants which you took for a period of time.  You were at one stage put on a mental health care plan and diagnosed with depression by a GP and further put onto different antidepressant medication.  As I understand it, you have recently not been taking that medication.  There is no problem as far as you are concerned with drugs or alcohol which gives me confidence in the prospects of your ultimate rehabilitation.

31After leaving Coles because of all this, you have worked for a short period of time but obviously COVID has played a significant part in that and made it much more difficult for you to obtain employment.

32Because of the nature of this conviction and the nature of the sentence I am about to impose, I accept that there is an additional punishment upon you in that you have been working in positions of trust and it is very unlikely that you will be able to obtain such positions again and may be reduced, I think it is a fair word, to things such as factory work.

33As I say, the diversion you received some years ago, I do not need to take into account.

34The submission was for a community corrections order.  I have already said I think the offending is objectively too serious and is simple is not an option, in my view, is open.

35I accept that you have been brought up as a child in very, very unfortunate circumstances and that would have had an adverse effect on you.  Almost certainly it has contributed to depression and matters such as that.  When you came to Melbourne, you came without family support and being Sudanese, my experience as a judge and as a barrister, I am well aware of the need to family support in communities such as yours.

36I do accept in your circumstances and the report of Dr Owen, psychiatrist, that the burden of imprisonment will be greater on you than for a prisoner who did not have your difficulties and I accept also that certainly initially at least the time in prison will be a difficult one and in fact your mental health situation may deteriorate.  In those circumstances, I hope you have got enough common sense to tell the relevant people in gaol so that appropriate treatment can be organised, if at all possible.

37The matters of COVID which have been playing a part in so many sentences in recent times do not apply to you.  That may occur again if there is a further outbreak but you have not got the isolation periods that have been a burden for prisoners over the last year or so.

38I do not think I need to go through the report of Dr Owen.  I have referred to the pertinent findings of his.  He is not saying for a second that you are incapable of thinking rationally.  He is just saying that your background and your set of circumstances at the time would have impacted upon you and I think that has to be right.  It is clear from the evidence from people at Coles that around about the time of this offending, that your work output had reduced significantly and indeed when police raided your premises, there was a suicide note and you had indicated that you were leaving an amount of money for your partner.

39So I accept that remorse is displayed by the plea of guilty but it is a little bit difficult in other aspects in terms of trying to avoid  detection or the recovery of the money.  It could have easily been paid back but that did not occur.  There is very little that occurs after the actual incident to indicate remorse but, as I say, I make it very clear I am giving you the benefit of doubt in respect of that.

40You have a major depression with moderate severity and I accept that that again is the problem with the case but, as I say, it is hard to have a direct causal link in that situation with the offending.  This more goes to your overall state of mind and as I have indicated I do accept that.

41You do require treatment for your depression even though you are not undergoing any at the moment.  Back in early 2019, as I understand it, you saw a psychologist for a little while.  That did not seem to go anywhere.  It is to be hoped that something can be put in place certainly while you are undergoing a sentence and hopefully upon your release which is of assistance to you.

42I do not think I will need to go into much else in regards to the matter.  Clearly whilst you are not a young offender, you are still youthful.  You have no priors and I would regard the prospects of your rehabilitation as good.

43The risk of you reoffending if you get appropriate treatment for your depression because of your lack of previous dishonesty I accept is low but what has to happen is that general deterrence demand that the sentence that I impose be one such as to deter other likeminded employees even of very big companies not to conduct themselves in this way.

44Accordingly, on that charge of theft, you are sentenced to be imprisoned for a period of 20 months.  I order that you serve a minimum terms of 10 months before becoming eligible for parole.

45I am giving a longer than normal, if I am allowed to use that expression, opportunity for parole because of your prior history, because of your plea of guilty and because I do think that you can turn your life around.

46Pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of 30 months with a minimum term of 20 months and there is no PSD and I have already made the forfeiture and restitution orders.

47There is no other orders I need to make, gentlemen?

48MR PORCEDDU:  No, Your Honour.

49MR McGRATH:  No, Your Honour.

50HIS HONOUR:  All right.  Would you mind holding him here just for a second so Mr McGrath can talk to him.  I know you do not like that but if you could, I would appreciate it.  Thank you.

‑ ‑ ‑