Director of Public Prosecutions v Ellaz

[2019] VCC 516

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02531

DIRECTOR OF PUBLIC PROSECUTIONS

v

NADAL ELLAZ

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 April 2019
CASE MAY BE CITED AS:	DPP v Ellaz
MEDIUM NEUTRAL CITATION:	[2019] VCC 516

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. H. Edwards
For the Accused	Mr. M. Kowlowski

HIS HONOUR: 

1Nadal Ellaz, you have pleaded guilty to an indictment containing six charges.  Charge 1 alleges the offence of robbery which carries a maximum penalty of 15 years' imprisonment; Charges 2 and 3 allege the offence of theft which carries a maximum penalty of 10 years' imprisonment; Charge 4 alleges the offence of reckless conduct endangering serious injury which carries a maximum penalty of five years' imprisonment; Charge 5 alleges the offence of being a prohibited person possessing an imitation firearm which carries a maximum penalty of 10 years' imprisonment or 1200 penalty units, and Charge 6 alleges the offence of possession of a drug of dependence which carries a maximum penalty of one year imprisonment and/or 30 penalty units if the court is satisfied the offence was not committed for the purpose of trafficking, or in any other case, five years' imprisonment and/or 400 penalty units. 

2You have also pleaded guilty to a number of related summary offences.  Charges 3 and 12 allege the offence of committing an indictable offence whilst on bail which carries a maximum penalty of three months' imprisonment or 30 penalty units. Charges 10 and 15 allege the offence of drive whilst disqualified which carries a maximum penalty of two years imprisonment or 240 penalty unit. Charge 21 alleges the offence of contravene a family violence intervention order which carries a maximum penalty of two years' imprisonment, or 240 penalty units and the final related summary offence, Charge 23, alleges the offence of fraudulently use registration number plates carrying a maximum penalty of six months' imprisonment or 60 penalty units.  

3At the time you committed these offences, you were 34 years of age, and you are now aged 36.  The circumstances in which you came to commit these offences is set out in the detailed prosecution opening dated 27 September 2018, a copy of which was tendered as Exhibit A. 

4I will not recite the full circumstances of your offending.  It is sufficient for present purposes to provide only the following outline. 

5You and the victim in this matter, Gareth Williams, had met some eight months prior to the offending when the two of you were guests at the Mantra Hotel in Melbourne. 

6Since that first meeting, you and Williams had seen each other on two further occasions.  At approximately 5.32 pm on 15 January 2017, Williams observed that you tried to call him a number of times on his phone via the Facebook app.  After returning your call, the two of you arranged to meet in Ashwood.  Williams drove his leased black BMW sedan and collected you at the agreed pointing point before continuing on to St Albans to visit a friend.  During the journey you directed Williams to hand his keys to you in order to demonstrate that he trusted you.  He acquiesced and handed you the keys, which were electronic proximity keys that did not require to be inserted into the ignition for the car to operate.

7Upon arriving in St Albans, the victim parked the vehicle and asked for you to return the keys.  You replied, "You need to show you trust me, by the time you get there and back", there being the victim's friend's house, “it will only be about 15 or 20 seconds, which is not long enough time for me to get to the driver's seat and back."

8Williams exited the vehicle and began walking towards the house while you remained in the vehicle.  He walked about 20 metres and made a number of phone calls to his friend which went unanswered.  Assuming that he was not home, he turned back to discover that his car was gone. 

9At about 7.45 pm he called you and inquired as to the whereabouts of his vehicle.  You responded by saying, "I know where you live, if you try and do anything about this, I will hurt your family.  Do not call the police." 

10Further, this robbery took place while you were subject to a bail undertaking.  Williams called 000 and reported the incident.

11At about 4.50 am on 16 January, you pulled the stolen vehicle into a 7-Eleven convenience store in Ashwood and filled it with about $50 worth of fuel.  You then entered the store, informed the attendant you had forgotten your wallet, but would return later to pay for the fuel before leaving, however you did not return to pay for the fuel. 

12At 8.54 pm later that night, you went a Shell Coles Express on Melbourne Road in Spotswood.  With you, was an unidentified passenger who filled the vehicle with about $33 of fuel before you both drove off, again without paying.  At the time that you were driving, your licence was disqualified. 

13At about 7.20 am on 27 January, police observed the stolen vehicle parked outside the residence of Sarah Finn in Bundoora. Finn had previously been in an on and off de facto relationship with you for some 18 months. 

14In September 2016, a family violence intervention order had been issued at the Broadmeadows Magistrates' Court with Ms Finn as the applicant and listing you as the respondent.  The order prohibited you from going within five metres of her, contacting or communicating with her and did not expire until 20 September of 2017. 

15Police observed the vehicle was now fixed with alternate number plates belonging to another vehicle and sometime later, you and Ms Finn left the premises in the stolen vehicle.  Later, you were seen driving it in Park Orchards, Collingwood and then in Richmond. 

16After Finn left your company, police Special Operations Group attempted to make an arrest while you were parked in James Street in Richmond.  You attempted to flee by ramming the police vehicle with the BMW.  Police were nevertheless able to remove you from the vehicle soon thereafter and arrest you.

17A subsequent search of the vehicle located an imitation firearm and a quantity of methylamphetamine.  You were taken back to the police station in Richmond where you were interviewed during which you stated that you did not steal the BMW, that the victim had paid you $5,000 to hide the vehicle so that he could receive insurance money, that the victim had given you the numberplates, that you were not aware the firearm was in the vehicle, that in relation to both thefts, you had simply forgotten to pay for the fuel and that the victim's account “was a load of shit" you said.

18This offending is serious offending, particularly the robbery which was carried out upon an acquaintance by way of veiled threats and deception. 

19Even more serious in my view, is the aftermath which involved attempting to flee from rightful apprehension by ramming the police vehicle.  Such reckless conduct endangered serious injury to police members going about their duty. 

20Police and the community look to the court to denounce such dishonest and reckless conduct, and protect it from such behaviour by appropriate punishment which is a deterrent to others who are like-minded. 

21I accept that the physical damage to the vehicle was minimal and the ramming of the police vehicle was at low speed and of short duration.  Nevertheless, this is a frightening and unacceptable conduct.  I do not accept the proposition proffered upon your plea that it lies at the lowest end of this offence.  I accept that the intervention order breach was of a low order because of the mutually agreed contact between you and Ms Finn proceeding the breach.

22The maximum penalties which the legislators have applied to each of these offending, is indicative of the seriousness within which the community looks at this offending. 

23I take your plea into account.  You were arrested on 27 January 2017.  Your committal came before the court in December of that year and at that hearing you offered to plead to robbery, an offer which was rejected. 

24It was not until September of 2018 that further plea discussions took place.  In the meantime, you had spent some time in custody on unrelated matters.  You were arraigned in October and a plea date was listed for 13 December 2018.  A plea was made on that day and I sought an extended pre-sentence assessment which was received and is dated 19 January 2019.  I will come to that in a moment.

25I consider that your plea was reasonably early and therefore there will be a reduction in your sentence as a consequence.  The delay in the resolution in this matter was in part due to your incarceration on other matters up to 12 April 2018.

26But nevertheless, the main charge which is now before me of robbery, was offered by you earlier in time than the vacated trial date of November 2018.  Your plea also carries a utilitarian value which the reduction will account. 

27I take your personal circumstances into account.  You grew up in Melbourne.  Your father was said by you to be violent towards you and your mother.  He died when you were in your early teens. 

28You attended two different high schools and completed Year 8.  You are literate, you have little by way of academic or scholastic achievement.  In 2011, you worked as a manager for Beaurepaires for some eight months, and you have previously done some concreting work, but could not continue because of leg and back injuries which have led to sporadic and inconstant employment.

29In your mid-20s, you were in a relationship which offered you some stability.  You had a son from it who is now 9 years old.  You separated in 2012.  You had struggled with drug use ever since.  You have had little contact with your son of recent times, and in 2016, another relationship was described by you as chaotic.  A number of years ago, you had a car accident in which you fractured your spine.  Pain, migraines and other physical symptoms persist regularly.  Later, you were attacked with a hammer and hit on the head.  The consequences of that were unclear.

30In 2016, you broke your leg after an accident while riding a dirt bike.  Again, pain was difficult to manage and your CISP bail program was affected by your anxiety and physical condition. 

31In adolescence, you binged on alcohol and then from early 20s, you used methamphetamines regularly together with GHB later on.

32Incarceration helped you to detox from that drug.  To some extent, you asserted that as a young person you were diagnosed with ADHD in 2014 by a psychologist.  You told Alison Mynard, a clinical psychologist, the symptoms of this which in later years, have included panic attacks, hyper-vigilance and anxiety. 

33In 2012, you were threatened by four friends of yours with guns.  You told Ms Mynard you withdrew from social contact because of this breach of trust, including your close family members.  That same year, you broke up with your partner, and began abusing substances and self-harming.

34In 2014, your cousin came close to death after ingesting GHB.  You told Ms Mynard you attempted suicide by overdosing on GHB yourself on several occasions, and in 2016, you said that you threw yourself in front of a car and woke up in a psychiatric ward. 

35Over the years, you have experienced some hallucinations.  Your past history on community corrections orders were unsuccessful even in your estimation because of your daily GHB use. 

36In custody, you have been on a reducing dose of methadone from 70 to 20 micrograms.  Ms Mynard's report is that of 26 November 2017.  She presented your psychological symptoms under headings of "generalised anxiety, social anxiety, post traumatic stress disorder" on p.5 of her report in some detail as well as ADHD. 

37She opines that there may be a longer term psychotic illness due to levels of paranoia and mistrust, but these may also be symptoms of PTSD and social anxiety.

38Cognitive functioning testing was carried out and she found you to be on the borderline range of cognitive functioning indicating some deficits.  She opines that your mental health and cognitive deficits have impacted upon you since childhood without much insight into these issues. 

39You have been on a downward spiral since 2012.  Ice use probably was a form of self-medication which then translated to GHB, well known for its sedative effect to reduce anxiety and fear and assist with sleep with which you have struggled for some years, but GHB can also cause extreme anxiety, amnesia, hallucinations, lack of inhibitions and agitation. 

40She argued you would benefit from long-term therapeutic relationship and further assessment could ascertain your intellectual capacity. 

41A neuro-psychological report was received, authored by psychologist Kerry Lynch, dated 3 December 2018.  A medical history was obtained as well as a psychiatric history, alcohol and substance use history, all of which I have carefully reviewed. 

42There was no evidence of perceptual disturbance, disordered thought or delusional contents at interview.  A number of tests were administered and the results are reported in some detail.  The overall intellectual abilities are broadly within the borderline to extremely low ranges.  Your overall cognitive functioning falls within the range of intellectual disability.  No strong evidence of acquired brain injury was seen however, but drug use may have exacerbated cognitive inefficiency, together with head injuries.

43This complex history makes it difficult according to the reporting psychologist to confirm the ADHD diagnosis.  While the cognitive function suggests you have the capacity to understand right from wrong, the drug use and your pattern of reoffending suggests you have difficulties with behavioural control and consequential thinking. 

44Should you return to drug use upon your release, you present as a great risk of reoffending.  Kerry Lynch suggests that you function best in a highly structured and controlled environment with reduced substance use.  Reintegration through support and management will be required. 

45It was accepted properly during your plea, that imprisonment must follow this offending.  You do have some positive protective factors which may assist you in the future.  You have the support of your mother and siblings who have been in court and visit you regularly.  You will have accommodation hopefully upon your release, to offer you some stability and I accept that either in reclusion or in the community, your vulnerabilities are real and should be taken into account.

46In my view, the reports bring to play the considerations enlivened by Verdins.  In custody, your time may lead to some isolation, your ability to work may be limited by your physical restrictions.  However, your enforced absence from drugs may assist you in the long term whilst secure in a structured environment. 

47The prosecution fairly conceded that the offending was towards the lower end for each of the particularised offences.  I have taken into account your prior criminal history, where relevant priors may be found in the 21 page long recital. 

48I was properly furnished with the record which included post-offence sentences.  Your poor record begins in the Children's Court.  In April of 1999, on appeal to this court on the Children's Court, you were placed in Youth Training for an assault with intent to rape, with a number of dishonesty offences having been dealt with in the years leading to it. 

49Then in December 1999, again an appeal to this court, a further 12 months was confirmed for armed robbery, rape and false imprisonment.  There is then a litany of offences over many appearances with various penalties imposed by courts for reckless cause serious injury, affray, robbery, dishonesty offences, driving offences, trafficking in drugs, possession of firearms, reckless conduct endangering serious injury. 

50Post offence convictions and sanctions include assault, contravention of family violence orders and further driving, dishonesty and drug offences consistently until 2018. 

51This appalling record does not auger well for your rehabilitation, which must be very guarded at best.  A full report from Corrections was sought and obtained.  It is dated 19 January 2019 and finds you unsuitable for a community corrections order. 

52You minimised your offending, or your impact on your victim Mr Williams.  The writer noted you served eight terms of imprisonment, resulting in a total of three years and 8 months of time served.  Your current period on remand is the longest served, having spent just under two years in custody and at the time of arrest, the matter I take into account in regard to the principle of totality, 359 days excluding today, which are referrable to these offences before me by the way of pre-sentence detention. 

53Your behaviour while in custody was noted, recording instances requiring disciplinary action from 27 January 2017, whilst on remand.  These involved assaults and threats and stockpiling of medication issued for back pain. 

54The writer noted your poor history with community correctional services also.  You were assessed as being a high risk of reoffending.  It is my view, informed by all of this detailed and complex material, that a term of imprisonment is warranted.  Opportunities for rehabilitation can be fostered by the structured and managed environment of reclusion and thereafter by parole requirements.  The important principle of deterrent, both general and specific, are properly addressed by incarceration.  I will tailor the sentence to the requirement of parsimony given your intellectual and cognitive function and the principle of totality.  Please stand, Mr Ellaz. 

55On Charge 1, of robbery, you are convicted and sentenced to 12 months' imprisonment. 

56On Charges 3 and 4 of theft, you are convicted and sentenced to two months on each;

57On Charge 4 of reckless conduct, you are convicted and sentenced to 18 months' imprisonment;

58On Charge 5, being a prohibited person possessing an imitation firearm, you are convicted and sentenced to 9 months' imprisonment;

59On possession of a drug of dependence, you are convicted and sentenced to three months' imprisonment;

60On Charges 3 and 12 of committing an indictable offence on bail, you are convicted and sentenced to one month of imprisonment on each;

61On Charges 10 and 15 of drive whilst disqualified, you are convicted and sentenced to one month on each;

62On Charge 21, the contravention of family violence, you are convicted and sentenced to one month;

63On Charge 23, on fraudulent use of registration plates, you are convicted and sentenced to one month imprisonment. 

64I order that the base sentence be charged for the reckless conduct. 

65I order that four months on Count 1 of the robbery, and two months' on the prohibited person Count 5, be cumulative on the base sentence, and that all other sentences be served concurrently, making a total effective sentence of two years.  I order a non-parole period of 16 months.  I declare that you have served 359 days excluding today by way of pre-sentence detention, and I will have that number noted in the court's records. 

66I order that all licences held by you be cancelled and you be disqualified for a period of two years from today. 

67But for your plea, I would have sentenced you to two and a half years imprisonment with a non-parole of 22 months.  I have signed the disposal order in this matter. 

68MR KOWLOWSKI:  If Your Honour pleases.

69HIS HONOUR:  I note that there are family members in the court.  I'm content for them to approach the dock, unfortunately you can't have any physical contact, but you can approach the dock if you wish before Mr Ellaz is taken away.  I'll remain on the Bench while that happens, just for a few moments.  If you wish to do that, you need to do that now.  Are the details of the sentence clear counsel?

70MR KOZLOWSKI:  Yes, Your Honour.

71MS EDWARDS:  Yes, Your Honour.

72HIS HONOUR:  Yes, thank you.  He can be removed. 

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