Director of Public Prosecutions v Elgammal

[2019] VCC 202

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02085

DIRECTOR OF PUBLIC PROSECUTIONS

v

NORE ELGAMMAL

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2019
DATE OF SENTENCE:	28 February 2019
CASE MAY BE CITED AS:	DPP v Elgammal
MEDIUM NEUTRAL CITATION:	[2019] VCC 202

REASONS FOR SENTENCE
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Subject:
Catchwords:  Possession of an unregistered handgun; Common assault;

Using a firearm in a populous place; General deterrence; Specific deterrence; Protection of the community; Limited remorse; Combination sentence

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Barrington	Office of Public Prosecutions
For the Accused	Mr B. Johnston	Galbally Rolfe

HIS HONOUR:

1Nore Elgammal, you have pleaded guilty to the following charges:

2(i) Possession of an unregistered handgun, contrary to s.7B(1) of the FirearmsAct 1996. The maximum penalty for that offence is seven years' imprisonment.

3(ii) Common assault, contrary to common law. The maximum penalty for that offence is five years' imprisonment.

4You have also pleaded guilty to the related summary offence:

5(i) Using a firearm in a popular place, contrary to s.130(1) of the Firearms Act 1996, as it then was. The maximum penalty for that offence is 12 months' imprisonment or a fine of 60 penalty units.

6You pleaded guilty at committal and no witnesses were called, and I have taken your early plea into account in your favour in mitigation of sentence. 

7You have admitted a criminal history that includes two court appearances for offences of violence, albeit at the lower end of seriousness for such offences. 

8A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –

9On Sunday 25 March 2018, you attended a wedding of a relative in Port Melbourne and there, consumed a large quantity of alcohol and illegal drugs of dependence.  After leaving the wedding, you travelled to Chapel Street, Prahran, and at approximately 3.48 am, became involved in a heated argument and then physical confrontation with four other men who assaulted you and your companion.  There is no explanation before the court as to why this occurred. 

10You left the scene in a taxi and then returned to the intersection of Malvern Road and Chapel Street, Prahran.  You confronted your attackers and produced from your pants a loaded .22 calibre revolver.   You pointed it at them as you crossed the intersection.  They fled on foot and you chased them through the back streets of Prahran behind the market.  In the car park, you fired the gun into the ground, which was, as considered by your counsel, to scare the other men who you were pursuing.  No doubt, it had the intended effect. 

11I have viewed CCTV footage of you brandishing the firearm at the intersection of Chapel Street and Commercial Road, and plainly, it depicts extremely serious offending. 

12A short time later, you were apprehended by investigating police and you attempted to dispose of the firearm.  During the course of a record of interview, you made no comment to questions asked of you. You were then charged and remanded in custody, where you remained. 

13The possession and use of firearms in public places has become a prevalent offence and it is the responsibility of the court to protect our community from these types of offences. 

14Plainly, this offending carries with it the risk of serious harm to innocent members of the public.  The sentence I impose must be calculated to deter others from offending in this serious manner.  Pointing a loaded handgun at another person in public at night whilst intoxicated is plainly extremely serious offending. 

15In that context, I note the summary offence that you have pleaded guilty to has now been repealed and replaced with an indictable offence carrying a maximum of ten years' imprisonment.  That offence relates to the use of a firearm.  That amendment became operational on 9 May 2018, less than two months after your offending.  That amendment now recognises the seriousness of your crime and, had it been operational at the relevant time, it would have been incumbent upon me to reflect that fact in a sentence that I am to impose on you.

16For this reason, it must be stated that the sentence I will impose in this case, in all likelihood, would not be imposed for offending committed after the amendment became operational. 

17In my opinion, specific deterrence is also a relevant consideration in this case.  You have prior court appearances to crimes of violence, and I do not accept that you have no recollection of your offending or how you came to be in possession of the firearm.  It is implausible that you would not recall carrying and using a loaded revolver following assault upon you.  I note that you provided a relatively detailed account of how much alcohol and the types of drug of dependence you had consumed to Mr Jeffrey Cummins during your consultation with him. 

18Your instructions in this regard are also relevant to your prospects for rehabilitation.  It also indicates to me that you have limited remorse for brandishing and using a firearm in public. 

19I now turn to your personal circumstances.

20You were born on 18 November 1990 and are now aged 28.  You are one of five children and are of Egyptian heritage.  I have received in evidence a body of character evidence and certificates, attesting to your good character and the progress that you have made whilst in custody.  I also accept that you have a sound work history. 

21I have received in evidence a psychological report of Mr Jeffrey Cummins, setting out your psychological profile and personal background.  In my opinion, you suffer from substance abuse disorder, which requires treatment, but you are otherwise in physical and psychological sound health.  I accept
Mr Cummins' assessment that you would benefit from participation in an anger management program. 

22You will reside with your mother on your release from prison and resume work as a concreter.  As I have said, the absence of any plausible explanation for your offending means that your prospects of rehabilitation are to be approached with a degree of caution.  Nevertheless, I have had you assessed for suitability for a Community Correction Order and the prosecution do not dispute that it is open to me in the circumstances of this case to impose a sentence, known as a combination sentence, that is imprisonment and a Community Correction Order. 

23I have received a report from Corrections Victoria that you are suitable for such a disposition, and I propose to impose a combination sentence. 

24On the charges of common assault and using a loaded firearm in a populace place, you are convicted and sentenced to an aggregate term of imprisonment of 15 months. 

25On the charge of possession of a handgun, you are convicted and sentenced to participate in a Community Correction Order for a period of 18 months on the core conditions provided for in the Sentencing Act and the following special conditions, that during the period of the order, that you are under the supervision of a community corrections officer, you undertake treatment and rehabilitation for drug addiction, you undertake treatment and rehabilitation for alcohol abuse, you undertake offender specific programs, in particular an anger management program.  Do you agree to enter into a Community Correction Order on those terms?

26OFFENDER:  I do.

27HIS HONOUR:  Thank you.  I declare that you have served 339 days, not including today, by way of pre-sentence detention. 

28But for your plea of guilty, I would have imposed a total effective term of imprisonment of three years with a non-parole period of two years. 

29I will make the s.464ZF order and the forfeiture order sought by the prosecution.  Is anything else required?

30MR BARRINGTON:  Not now, Your Honour.

31MR JOHNSTON:  As Your Honour pleases.

32HIS HONOUR:  Thank you.  All right, so the sentence will be entered in the record of the court in the terms that I have announced.

33MR BARRINGTON:  As the court pleases.

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