Director of Public Prosecutions v Elbob

[2024] VCC 1670

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01938

CR 23-01968

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZAYNE ELBOB

KHALIL EID

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	23 October 2024
DATE OF SENTENCE:	23 October 2024
CASE MAY BE CITED AS:	DPP v Elbob & Anor
MEDIUM NEUTRAL CITATION:	[2024] VCC 1670

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - SENTENCE

Catchwords:  Recklessly cause injury, plea of guilty, young offenders

Legislation Cited: ss 49, 73 Sentencing Act 1991

Cases Cited:  

Sentence:ELBOB - Adjourned undertaking, fine $2,000, without conviction

EID - Adjourned undertaking, fine $1,750, without conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For Accused Elbob	Mr D. Sheales	Mr S. Andrianakis
For Accused Eid	Mr C. Farrington	Ms Marlene Kizana

HIS HONOUR: 

1Zayne Elbob and Khalil Eid, you have both pleaded guilty before me after a sentencing indication to a single charge of recklessly causing injury which has a five year maximum penalty.  Neither of you have prior appearances or prior convictions.  That is a significant matter of course. 

2Neither of you have subsequent matters and both of you have shown appropriate response to being charged and accepting your responsibility in relation to this matter.  I have got no doubt, that for both of you, it has been a very salutary experience.  Neither of you were the drivers of this criminal offending, both of you were swept up in it to a considerable degree, you slightly more so Mr Elbob, than Mr Eid. 

3To a large part I am satisfied that was due to the influence and loyalty to older family members who should have known better.  The circumstances of your offending are set out in Exhibit A which is the summary of prosecution opening and there is an addendum to that filed today.

4I am not going to recite the facts in relation to it all.  It has been described, that is, the overall offending, being described as 'vigilante' type behaviour which it is. 

5Essential to that sort of behaviour is the belief that there is some sort of justification for it, but I am satisfied that each of you had that belief at the outset that there was some type of intervention that was required.  What followed of course, got completely out of hand, and took on a life of its' own due to the actions of others, not due to the actions of either of you. 

6You accept, however, your criminal complicity in the offence of recklessly causing injury and it is for that criminality of course that you are to be sentenced by me. 

7The role of each of you, that is made clear through Exhibit A and through submissions before me, is a very significant sentencing matter in this case.  The role and your age and antecedents at the time.  You were peripheral to what took place. 

8Notwithstanding, of course, that it was a terrifying and traumatic experience for the victim and that your actions, notwithstanding that they would have had considerably less impact than the actions of co-offenders did, it nonetheless impacted upon the victim and I take those impacts into account.

9It is the sort of offending that must be deterred, sentences must be imposed to deter others from engaging in this sort of vigilantism.  It is also conduct that must be appropriately denounced on behalf of the community.

10Those factors are moderated in each of your cases, due to other relevant sentencing factors, but principally your role, the primacy of youth in the sentencing exercise where I am satisfied I have before me two men of excellent background, excellent previous character, strong prospects of rehabilitation, no prior offending and both gainfully employed. 

11Having embarked upon a pathway that indicates you have assessed your options, you have each made decisions along the way as to what is best for you to be gainfully employed and to be productive members of society moving forward and I place some significance, some considerable significance on that. 

12You, Mr Elbob are well on the way to qualifying as a plumber, and that is a trade that will stand you well throughout your entire working life.  You, Mr Eid, had very sound aspirations in relation to professional football and still have those aspirations.  They have not been extinguished, but you have also made some practical decisions in relation to your future and are embarking on a boiler making apprenticeship.

13It has been submitted on each of your behalves, that youth is an important factor.  You are 19 Mr Elbob, Mr Eid you are 20, 19 at the time.  Your involvement in this Mr Eid was largely circumstantial, given that you did not have much option but to reside in Melton with family members.  I am not going to go into each of your personal particulars in great detail.  The materials that have been filed both in the sentencing indication hearing and in today's plea hearing set out those personal circumstances and I include in that of course the reference material that has been filed. 

14Based on your personal circumstances, the lack of antecedents and what you have been doing since the commission of this offence, that is, for the past 15 months or so,  your youth,  you are each entitled to the full mitigatory affect of your youth, particularly in circumstances where it is your first time before the courts and the 15 months or so whilst on bail awaiting the resolution of these matters, has demonstrated your strong prospects of rehabilitation-  I do not expect either of you are ever going to offend in this manner or anything like this manner again. 

15I mention that it has been a salutary experience for you.  Going through the criminal process, being committed for trial and having to attend in this Court, the higher court, and prepare for a criminal trial, I have no doubt would be a sobering experience for both of you.

16It is important that you have accepted criminal responsibility, your pleas of guilty attract a discount.  As I indicated at the sentencing indication, when I balance as best I am able the sentencing factors I must have regard to in my intuitive synthesis, sometimes referred to as instinctive synthesis, I indicated that the combination of your youth, your lack of previous history, the peripheral role and the reasons for why you were swept up in that factual matrix to begin with, and the effects of delay being your demonstrated rehabilitation and your strong prospects, are all powerful factors in leading to consideration of the imposition of a non-custodial sentence. 

17Neither of you require the therapeutic aspects of a community corrections order.  There are practical obstacles, or indeed, complete impediments in your case Mr Eid, in placing you on a community corrections order, because of your location in Sydney. 

18However, on proper reflection with the matters raised on the last occasion, I have concluded that when I consider all of the circumstances of both each of yourselves and the offending, a community corrections order without conviction was placing the bar a little bit too high in terms of arriving at the sentence which could reflect general deterrence and denunciation, while still falling within the principle of parsimony.

19Today I have been addressed in relation to the imposition of conviction.  The impositions of a conviction is of course a punishment in itself.  The finding of guilt and the entering of the finding of guilt into the records is a punishment. It has been significant in the discussion today that the prosecution have appropriately considered all of the factors and concede that the preconditions or requirements or matters that I must consider in the Sentencing Act in relation to imposing either a conviction or a non-conviction are apparent in this case, and it is a matter for me to determine.

20When I tie together the various sentencing considerations in each of your cases, I have concluded that a fine in combination with an adjourned undertaking pursuant to s73,[1] that is, a without conviction adjourned undertaking of 12 months duration is the appropriate disposition in each of your cases. 

[1] s73 Sentencing Act 1991.

21Section 49[2] of the Sentencing Act as I read it, allows me to impose a fine in addition to any other sentence.

[2] S49 Sentencing Act 1991.

22Starting with Mr Elbob, for the charge of recklessly causing injury, I adjourn the proceeding for 12 months and release you without conviction on an undertaking with conditions that you attend before the Court only if called upon to do so, and that you be of good behaviour during the
12 month period.  I do not make any other special conditions.  In addition to that adjourned undertaking, you are fined $2000 without conviction.  

23In relation to you Mr Eid, you are similarly released on adjournment without conviction for a period of 12 months to attend before the court during that time if you are called upon to do so, and you are to be of good behaviour during that time and in addition you are fined $1750 without conviction. 

24Were it not for your pleas of guilty, I would have sentenced each of you to a two year CCO with 100 hours of community work each.  I just want to go on and say that that concludes my reasons for sentence, save to say this, that these sentences should not be viewed as a guide in relation to any co-offender not before me.  It goes without saying perhaps, but I will say it anyway, there are stark disparities in relation to the charges, the role and the personal circumstances between the two young men I have just dealt with and others, insofar as that is currently known to me, and as I have said, the primacy of youth, good character, rehabilitation during delay, salutary experience of progression through the criminal justice system, relationship to other parties involved, role, circumstances of offending are all factors central to me arriving at the sentence that I have imposed in relation to each of Mr Elbob and Mr Eid. 

25All right, so those documents need to be prepared. 

26I will sign them and then they will be sent to Mr Eid and Mr Elbob for their signatures, and we will arrange how to do that with the assistance of your instructor. 

27MR FARRINGTON:  If the court pleases. 

28MR SHEALES:  If Your Honour pleases.

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