Director of Public Prosecutions v Elias

[2014] VCC 1310

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-12-01547

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN ELIAS
GEORGE GROTTA
KAMAL TAMER

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 August 2014
CASE MAY BE CITED AS:	DPP v Elias & Ors
MEDIUM NEUTRAL CITATION:	[2014] VCC 1310

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director For Accused Elias	Mr M.Fisher with Ms J. Harris Mr. T. Marsh
For Accused Grotta	Mr J. Desmond
For Accused Tamer	Mr G.Hevey

HER HONOUR: 

1John Elias, George Grotta and Kamal Tamer, you have each pleaded guilty to one charge of common law assault.  The maximum penalty for that offence is five years' imprisonment.

2The circumstances of your offending are set out in the Summary of Prosecution Opening upon plea, which was tendered as Exhibit A.

3In brief, the circumstances were as follows: The three of you flew from Sydney to Melbourne on the evening of 11 January 2009.  Sometime before 11 am on 12 January 2009 the three of you drove to the offices of Cadbury Schweppes in St Kilda Road, Melbourne.  You, or someone connected with you, had made an appointment with a Cadbury Schweppes sales director, Mr Peter Scott.  The appointment was made for a fictitious Herald Sun journalist. 

4Prior to this, Mr Scott had been involved in discussions with a New South Wales distribution company.  The company had been advised that the discount they received on Cadbury Schweppes products would be significantly reduced.  I am satisfied beyond reasonable doubt the principal purpose of your visit to Mr Scott was to put some pressure on him to make a more favourable arrangement for the New South Wales company.  Whether or not there was also an idea of offering Mr Scott a monetary inducement, as suggested by counsel for Mr Elias and Mr Grotta, is not material for the purposes of sentencing you given what occurred once you arrived at the Cadbury Schweppes premises.

5Mr Elias remained in the car while Mr Grotta and Mr Tamer went in to see Mr Scott.  Either Mr Grotta or Mr Tamer signed the visitors' book in the name of the fictitious journalist.  Once Mr Tamer and Mr Grotta had entered into Mr Scott's office, Mr Tamer spoke on a mobile phone saying, "Yeah, boss, I am here now."  Mr Tamer handed the mobile phone to Mr Scott.  Mr Elias spoke to Mr Scott, saying that he, Mr Elias, was a representative of the New South Wales company and that Mr Scott was to "give these guys the contract or there will be consequences." 

6Mr Scott stood up and gave the phone back.  In apparently direct language he told Mr Grotta and Mr Tamer to leave his office.  Mr Grotta was pointing a camera at Mr Scott.  Mr Scott again told Mr Grotta and Mr Tamer to leave and accompanied them to the lift.  At the lifts, Mr Tamer said to Mr Scott that they were only the messengers and that he should give Joe a call or the next time they would not be just the messenger.  Mr Scott replied that he was also just the messenger implementing company policy.  Another employee of Cadbury Schweppes was waiting at the lifts.  He heard one of Mr Tamer or Mr Grotta state, "You want to go down that path, do you?" or words to that effect.  At 11.12 Mr Grotta and Mr Tamer left the Cadbury Schweppes building. 

7At 1.45 pm on that same day, the three of you flew from Melbourne back to Sydney.  Later that evening a message was left on Mr Scott's phone from Mr Elias.  That message was following up what had happened earlier in the morning but is not part of what constitutes the common law assault.

8The words and actions of the three of you caused Mr Scott to fear physical injury to himself and his family including his young children.  As a consequence, Cadbury Schweppes provided him with a hire car and 24 hour physical surveillance as well as updating the security on his house. 

9On 21 July 2009, New South Wales police executed search warrants at the home address of each of you.  In respect of being interviewed by the police, Mr Elias declined to take part in an interview, Mr Grotta participated in a formal interview, as did Mr Tamer. 

10In sentencing you, I have taken into account your personal circumstances and sentencing submissions made on behalf of each of you.

11Mr Elias, you have an unusual history in that you have been a very successful football player and coach.  You have played rugby at a top level in Australia and internationally.  You have particularly made a contribution to rugby within the Australian and international Lebanese community.  Parallel to this, you have also engaged in criminal offending, as set out in your criminal record.  Your court appearances began in 1981 and have involved offences of dishonesty and violence.  In 2004 you were sentenced to a term of imprisonment of six years with a non-parole period of four years and six months on one charge of malicious wounding.  You were on parole in respect of that sentence when this offence was committed.  You apparently have said in an interview that you had led a double life while playing against some of the greatest players in rugby. 

12I accept that the death of your father when you were a baby left you without a male role model and that this is at least a partial explanation of your involvement in crime from a relatively young age.  I also accept that you have been treated for a major depressive disorder and post-traumatic stress disorder since 2008, as confirmed by your treating psychiatrist in his letter, which was tendered as Exhibit E1.

13In sentencing submissions, your counsel did not rely on the application of Verdins principles.  He did rely on a number of factors including your plea of guilty, the delay since the offending, the absence of any subsequent offending and the circumstances of this offence.

14Your counsel said that there had been unsuccessful prior attempts by defence to resolve this matter on the basis that it was now proceeding.  Your plea of guilty was entered, as was the plea of guilty of your co-accused, on the first day of the trial listing once the prosecution agreed to proceed on this one charge only.  Your counsel apologised on your behalf to the community and to Mr Scott for your offending. 

15Your counsel submitted that this offence was at the lower end of common law assault.  Your counsel also addressed the lack of various aggravating features in the offending and stressed the short duration of the event. 

16Your counsel submitted that since this offence you have demonstrated rehabilitation.  He submitted that a suspended sentence would properly reflect the relevant sentencing considerations.

17Mr Grotta, you have also had considerable involvement in football since leaving school.   You have mainly worked in hospitality, and in that context met Mr Elias when he was playing football.  You have been involved as a trainer with rugby and soccer clubs.  You have been the major carer for your now adult son and two younger children.  You have a number of current medical problems, as outlined in the GP Management Plan, which was tendered as Exhibit G1.  These conditions require regular monitoring.

18In sentencing submissions, your counsel relied on a number of factors including delay, absence of subsequent offending, absence of relevant prior criminal history and your role in the offence, which was limited to your physical presence.  Your counsel also submitted that a suspended sentence would meet the relevant sentencing purposes.

19Mr Tamer, sport has also been a feature of your life.  You have played professional football and have played at international level, including in a team coached by Mr Elias.  You have worked in sports journalism in the past, but more recently in hospitality.

20It is clear from the medical material, tendered as Exhibit T1, that you have suffered from a very serious medical condition since this offence.  Fortunately, it appears that your cancer has been successfully treated and you intend to recommence paid employment.  You have considerable family support and may be able to work with a family member. 

21In sentencing submissions your counsel relied on a number of factors including your plea of guilty, the delay, a lack of relevant prior criminal history, your good prospects of rehabilitation, your role in the offending and the circumstances of the offending.  Your counsel submitted that the appropriate penalty would be a fine and that a sentence of imprisonment was not warranted. 

22Mr Elias, Mr Grotta and Mr Tamer, it is clear that you all made a very bad decision to get involved in this exercise. 

23The prosecution has put the case against you on the basis that there is no distinction between your roles.  That, in my view, is appropriate given that the three of you travelled together to and from Melbourne and cooperated together to carry out the plan.  The plan involved tricking your way into Mr Scott's office and there to intimidate him by the physical presence of Mr Tamer and Mr Grotta and the connection made by Mr Elias to there being consequences if the contract was not given.  Mr Scott dealt with the situation robustly but was clearly and understandably frightened.  It was not surprising that extra security measures were put in place.

24I accept that this offence occurred over a short duration and that you left, Mr Tamer and Mr Grotta, when you were told to leave.  I accept there was no escalation in the threats made or in physical intimidation.  I accept that this offending is at the lower end of common law assault.  That said, it is of considerable concern that anyone would see this as an appropriate way of doing business.  Physical intimidation ought to play no part in commercial dealings.  This behaviour must be strongly denounced and appropriately punished.

25There is a clear need for that punishment to be sufficiently severe to deter others from engaging in similar conduct.  It is my view that a monetary penalty would not be sufficient to deter others from engaging in physical intimidation in order to achieve a favourable commercial outcome.  I consider that the only sentence which would achieve that purpose would be a gaol sentence.

26There are a number of matters which operate in mitigation of sentence.  You have all pleaded guilty.  Your pleas have considerable utilitarian value.  You have saved, by your pleas of guilty, a relatively lengthy trial.  You have saved the expense of that trial and the potential trauma to witnesses of that trial. There was a relatively short committal proceeding, and I understand that no civilian witnesses were cross-examined.

27I accept that the plea of guilty is also an expression of your remorse.  It is clear that all three of you regret your involvement.  I particularly note the apology expressed on behalf of Mr Elias.  I also note that limited admissions were made by Mr Grotta and Mr Tamer when they were interviewed by the police. 

28The delay in this matter is clearly significant to the sentencing exercise.  There was an unexplained delay between the commission of the offence and the charges being laid, but there was further significant delay later, in part due to Mr Tamer's ill health.  During that time the matter has been hanging over your heads.  None of you have committed any further offences.  You have each demonstrated positive progress in rehabilitation.  I also note that despite the lengthy delay, you have all complied with your bail and have come from New South Wales for the trial. 

29Mr Elias, in your case the positive steps towards rehabilitation are particularly significant in the light of your prior criminal history.  It is concerning that you offended in 2004 despite a gap in offending and that this offence was committed while you were on parole. 

30I consider that given your lack of offending in the last five years, your prospects of rehabilitation are reasonably good.  Despite that, I consider that specific deterrence needs to be given greater weight in your sentence.  You will be sentenced to a somewhat longer sentence than your co-accused to reflect that.

31Mr Grotta, I consider that your prospects of rehabilitation are good.  You have no relevant prior criminal history.  Given your age and medical problems, it is likely, in my view, that you will now be concentrating on the care of your children rather than involvement in criminal activities.  Specific deterrence need be given little weight in the sentence to be imposed on you.

32Mr Tamer, you also have good to very good prospects of rehabilitation.  You have no relevant prior criminal history.  You have a history of employment and future employment prospects.  You have suffered a significant life event in the illness that has now been treated.  You have considerable family support.  I consider that in respect of you, specific deterrence need be given little weight in the sentence to be imposed. 

33In the circumstances of this offending, given your prospects of rehabilitation and the delay since the offence was committed, I consider that it will be desirable to wholly suspend any sentence of imprisonment imposed. 

34Could you please stand up?

35John Elias, in respect of one charge of assault, you are convicted and sentenced to five months' imprisonment.

36George Grotta, in respect of Charge 1 of assault, you are convicted and sentenced to three months' imprisonment.

37Kamal Tamer, on Charge 1 of assault, you are convicted and sentenced to three months' imprisonment.

38In respect of each of you, the sentence is suspended for a period of 12 months. 

39I need to explain the consequences of having a suspended sentence.  If you commit an offence for which imprisonment is a potential penalty during the next 12 months, then you will be brought back before me for breach of suspended sentence and then, unless there are exceptional circumstances, you will be required to serve the sentence of imprisonment which has been imposed.  It is, therefore, very important that during the next 12 months, and for the future of course, that you do not commit any criminal offence for which imprisonment would be a potential punishment. 

40But for your pleas of guilty, I would have sentenced you to the following:

41John Elias, but for your plea of guilty, I would have sentenced you to a term of imprisonment of eight months.

42George Grotta, but for your plea of guilty, I would have sentenced you to a term of imprisonment of six months.

43Kamal Tamer, but for your plea of guilty, I would have sentenced you to a term of imprisonment of six months. 

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