Director of Public Prosecutions v Elhaj

[2023] VCC 518

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00153

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAJAT ELHAJ

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2023
DATE OF SENTENCE:	28 March 2023
CASE MAY BE CITED AS:	DPP v Elhaj
MEDIUM NEUTRAL CITATION:	[2023] VCC 518

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW --- Sentence

Catchwords:  Robbery --- Motor Vehicle --- Significant Impaired Mental Functioning --- Delay --- Parity

Legislation Cited:           ---

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571--- Marrah v The Queen [2014] VSCA 119 --- Worboyes v The Queen [2021] VSCA 169 --- Chenhall v the Queen [2021] VSCA 175 --- Boulton v The Queen [2014] VSCA

Sentence:132 Days Imprisonment --- 18 Months Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Zammit	Office of Public Prosecutions
For the Accused	Ms N. Freijah	Emma Turnbull Lawyers

HIS HONOUR:

1Najat Elhaj, on 9 March 2023 I gave an indication of the sentence I would impose if you pleaded guilty to a charge of robbery and two summary matters.  The indication was a sentence of imprisonment combined with a community corrections order.  The length of the imprisonment was 131 days, being the time that you have served on remand.  You accepted that indication and pleaded guilty on arraignment.

2The circumstances of the offending which occurred on 7 June 2020 now are over nearly three years ago.  Those circumstances were summarised by the prosecution in an opening tendered at the plea.  In the briefest terms, the victim had had his car stolen in May 2020.  On 7 June 2020 you received a telephone call in which a man said he could provide information about where the stolen car was being kept.  That information proved false.  The victim rang the number back and you, Mr Elhaj, answered.  You said you would show the victim where the car was.

3The victim and his friend came to where you agreed to meet them.  You were with your male co-accused.  The victim was in another car with a friend.  You and the co-accused got into that car or their car and directed the victim to a lane in Carlton.  Ultimately the co-accused and the victim's friend got out of the car.  You then confronted the victim and took the keys from and drove off, that is drove off with the victim's car.  The car was later recovered in Fitzroy.

4You were arrested the same day as the car was recovered.  It was in July 2020.  You made admissions to the robbery.  The co-accused pleaded guilty to theft of the car and unlawful assault.  He was sentenced in June 2021, nearly two years ago in the Magistrates' Court to six months' imprisonment, which was in fact shorter than the time he had served on remand.

5For a very long time you faced much more serious charges of carjacking.  The matter resolved recently with the charge being robbery, a serious offence but much less in terms of the maximum term than carjacking.  But let there be no mistake.  This offending was serious and it was frightening.  However, it is of note that the car was recovered some six weeks after the robbery.

6You were in custody for a lengthy period of time.  Only some of that time, being 132 days, declarable as part of the sentence for the robbery.  There were periods of imprisonment that were attributable to other later offending, as I understand it.  Once you were released you spent 16 weeks in the
well-respected rehabilitation facility, The Cottage, which is in the Shepparton area.  The report from the operations manager, Mr Gilhooley, was, as usual, very helpful.  He wrote: 

'Najat has shown firm commitment to her recovery from substance abuse and to taking every opportunity to adhere to feedback given around turning her life around.  It appears that she has willingness to change and to grow and that is genuine.  She's certainly taken steps forward', he says, 'in the four months'.

7Mr Gilhooly goes on to indicate that in order to maintain community safety all participants, including you, provided supervised regular urine analysis on an ongoing basis and since your entry into The Cottage you maintained this as a requirement and produced clean and clear urine tests.  He concludes with the following:  'Najat completed the 16 week program on 2 March 2022 and The Cottage now supports Najat in returning to continue her journey of recovery back closer to her children and family'.

8The reference to your family and children is important.  Your upbringing has been particularly traumatic.  Indeed, violence and trauma has continued to plague you, with you being the victim of a shooting, that is a shooting to your leg in September 2022.  You are now 29, the youngest of three.  You were born in Syria.  Your father died suddenly when you were just days old.  Your mother subsequent partner was extremely violent, including throwing acid on your mother, causing blindness.  You too were a victim of that attack.  Your sight was retained but there was facial scarring which has left you with significant psychological issues.

9You and your family moved first to New Zealand to escape the violence.  You suffered another childhood illness there which caused loss of hearing in one ear.  Your schooling was to Year 12 but you struggled socially due to your scars, your trauma and general mental health problems.  Your mother's experience in violence did not abate, as she was set upon by a male relative while in Australia.  You also have suffered from his violence as well as witnessing what was happening to your mother.  Your social anxiety meant that you have not been able to secure employment.  At age 19 you formed an important relationship and your son was born.  Unfortunately your partner was killed via a violent attack.  Your son was born shortly after and in the circumstances you struggle with postnatal depression.

10Your next relationship was one replete with violence and sexual abuse.  A daughter was born but is not currently in your life.  This man introduced you to methylamphetamine.  You have been drug dependent since.  Your prior crimes, of which there are many and some are very serious, have been committed in circumstances of being drug affected for seeking funds for drugs.

11Since your return to Melbourne from The Cottage you were able to establish better relationships with your young son.  However, the shooting incident set you back and you resumed drug use and crime.  You were given a sentence of imprisonment.  I have learnt that you face further charges that are before the Magistrates' Court, having been arrested on the day of your
Community Corrections assessment, that is after the sentence indication.

12The sentences that you received for various crimes have ended and you have gained support of a rehabilitation provider known at Star Health, and you have housing support from Launch Housing.  The report from Star Health provided to the court was very encouraging.  As too was the letter from the advocacy organisation, Flat Out.  The worker, Ms Gibson, is working to see if an NDIS plan can be secured for you.  For completeness, I have read the Royal Melbourne Hospital discharge summary relating to you being shot in
September 2022.  The gravity of that and the additional trauma to you are obvious.

13The evidence of your upbringing and your trauma, anxiety and depression enlivens mitigatory principles articulated by the High Court in Bugmy,[1] and the Court of Appeal of Victoria in Marrah.[2] Also the evidence makes it clear that you have a significant impaired mental functioning, being post-traumatic stress disorder and depression, which also operates to mitigate, in my view.  It makes you vulnerable to poor decisions such as drug use and crime.

[1]Bugmy v The Queen (2013) 249 CLR 571.

[2]Marrah v The Queen [2014] VSCA 119.

14As to your rehabilitation it may be said that your prior and subsequent criminal history makes your reform significantly problematic.  However, you have had the long inpatient rehabilitation successfully completed at The Cottage and you are involved in intense rehabilitative supports at or overseen by Star Health and the Flat Out organisation.  There will no doubt be setbacks along the way to rehabilitation.  There have been of late, but I must do what I can to establish conditions to facilitate your rehabilitation.  Having you remain in the community with the supports I have spoken of, together with the supervision and programs of the community corrections order, seem to me to be the best I can do to facilitate your rehabilitation. The community is safer if you do reform.

15The other powerful matters in mitigation are your plea of guilty in these pandemic times. The utilitarian benefit must be an augmented one.  That is palpable to you and encouraging to others.  That is what the Court of Appeal has said in Worboyes,[3] and Chenhall,[4] and what is required of the sentencing judges.

[3]Worboyes v The Queen [2021] VSCA 169.

[4]Chenhall v the Queen [2021] VSCA 175.

16You are remorseful and indicated or acknowledged your responsibility in your July 2020 record of interview.  You have had the more significant serious crime of carjacking hanging over your head for years.  The delay has been too long due to the pandemic.  I take into account what Ms Zammit said as to you not using all that time apart from the positive aspects of the period of time in The Cottage, but there has been further offending which makes your use of the delay time, again, problematic.

17The principle of parity with the male co-accused has to play a role in the fixing of your sentence, notwithstanding he was charged with a different crime and was dealt with in the Magistrates' Court, cannot be ignored.  As noted, you have done other periods in custody and I factor in this and the time, that is the month, that you spent in the restrictive rehabilitation facility in the overall mix.  The principles articulated in Boulton are to the fore in my view.[5]  Your assessment for a community corrections order was that you were high risk but you were suitable, and in need of mental health treatment.  That comes over again clearly in the MHARS report and recommendation.

[5]Boulton v The Queen [2014] VSCA.

18The community corrections order that I intend to impose is not in any sense a soft option for you.  It will be punishment and sticking with the requirements or doing what you are required to do will for you, I suspect, be onerous.  It is a risky sentencing order given your past and recent history, but you should understand should you fail and commit offences or not do the order as I have set it out, you should consider that there will be a term of immediate imprisonment.  It will follow almost inevitably.

19What I am doing is seizing an opportunity to give you a final chance because you have community supports and are perhaps in the best position now to take up those opportunities.  A term of imprisonment of 132 days is merciful given your history and the nature of this offending, but it will be combined with the community corrections order with onerous conditions.

20So for committing the crime of robbery I sentence you to imprisonment for a period of 132 days.  I declare, pursuant to the Sentencing Act that you have served, or there is already a 132 days served by way of pre-sentence detention.  This figure having been reckoned and declared I will ensure that the declaration is entered into the records of the court so the prison authorities know that you have done every day of the sentence that I have just imposed in terms of imprisonment.

21In addition to the imprisonment you are placed on a community corrections order for two years.  There will be some unpaid work, 70 hours.  You will have to undergo treatment and assessment for mental health, also for drug addiction.  So treatment and assessment for drugs.  Also you will have to undertake programs to reduce your risk of reoffending that you are directed to do by the Office of Corrections.  All hours that are done with respect to programs can be counted as part of the unpaid work component.  So that can be deducted away.

22You will also have to be under supervision and I am persuaded, given the turbulence in your life, that you attend for judicial monitoring at least once in three months' time.  We will give you the date if you have to come.

23In respect to the summary matters, the unlicensed driving, they are all proven with no further orders imposed.

24Does there have to be something done with her licence?  I do not suppose she has got one but I have to make an order with respect to her licence, or is it discretionary?

25MS FREIJAH:  No, Your Honour.  Your Honour must, as the offence involves the theft of a car.  Your Honour, it is a minimum of three months' disqualification.

26HIS HONOUR:  All right, you are disqualified from driving in the State of Victoria for a period of six months.

27All right, had you pleaded not guilty to these matters I would have imposed a sentence of two years with a minimum of 15 months if you had been found guilty.  Is there anything else I have to do?  All right, so the judicial monitoring will be on 7 July.  So shortly we will produce a document, Ms Elhaj, and on it will be the conditions that apply to every community corrections order and the conditions that apply to you.  So I will say what they are without the document in front of me.  It is pretty straightforward.

28The first thing you have to understand is that you must not commit an offence punishable by imprisonment within the two years from now in the community corrections order, and every offence you can think of is punishable by imprisonment, such as driving while disqualified.  So any offence, if you commit that within two years you will come back before me.  It does not matter what the magistrate does.  You will come back here and, as I said to you, a term of imprisonment is almost inevitable.

29There are a number of other conditions that apply to every community corrections order.  They are all about cooperation.  You have to tell the Office of Corrections if you change your address or get a job or change your job.  You have got to get permission to leave the State of Victoria.  You have got to report to the Office of Corrections within two clear working days.  Where would that be?  At the Melbourne office.  The details will be there.  You have got to go and see them, and you have got to follow all lawful directions of the
Community Corrections staff.

30So they are the standard conditions that apply to everyone.  What applies to you in particular is these conditions.  You must do unpaid community work of 70 hours.  You must have assessment and treatment for mental health problems, assessment and treatment for drug problems.  You must do programs to reduce your risk of reoffending that you are directed to do.  You must be under supervision and you must attend for judicial monitoring on 7 July at 9.30.  No, later, 10.30 for the judicial monitoring.  All right.  If you understand and consent to this order being made then sign it, so your lawyer will bring it down to the back of the court for you to sign.

31All right, , you have signed that.  So you must understand that you have consented to it.  If you do not do it, every single aspect of it, then you will come back before me.  None of these things are voluntary.  You must do each of them like you did it at The Cottage when they said you had to do something, you had to do it.  The same, all right.  Is there any other order that needs to be made?  No.  I am very grateful to the parties for sorting this out and for the very high quality of the preparation of the prosecution for plea and the defence as well.  She can leave the dock.

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