Director of Public Prosecutions v Elliot

[2022] VCC 2137

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-00725

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB ELLIOTT

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 November 2022
DATE OF SENTENCE:	1 December 2022
CASE MAY BE CITED AS:	DPP v Elliot
MEDIUM NEUTRAL CITATION:	[2022] VCC 2137

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence – plea of guilty

Catchwords:              Sentencing – conspiring to engage in a course of conduct including a common law assault – prohibited person in possession of a firearm – commit an indictable offence while on bail – 21-year-old – greater role than co-offenders – initiator of offending – enlisted and directed co-offenders – youthful offender – relative immaturity – criminal history not extensive – remand more onerous due to COVID – utilitarian value of plea – strong family support – substance use disorder – nascent personality disorder – dysfunctional influence of father

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Confiscation Act 1997 (Vic); Firearms Act 1996 (Vic)

Cases Cited:Worboyes v R [2021] VSCA 169; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43; DPP v Lawrence (2004) 10 VR 125

Sentence:Total effective sentence of 22 months; 6AAA: 3 years with a non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	D. Karamicov	OPP
For the Accused	L. Gwynn	Doogue & George

HIS HONOUR:

1Jacob Elliot, you have pleaded guilty to conspiring to engage in a course of conduct including a common law assault (Charge 1) and to being a prohibited person in possession of a firearm (Charge 2), relating to the events of 18 June 2019.  You were on bail at the time of this offending and have also pleaded guilty to the summary offence of committing an indictable offence while on bail.

2The maximum penalty for Charge 1 is 5 years; for Charge 2 is 10 years and for the summary offence, 3 months' imprisonment or 30 penalty units.

Summary of offending

3

The agreed basis for your plea is set out in prosecution opening for plea dated

28 October 2022.  You are to be sentenced based on those facts.

4In summary, soon after 4.25 am on Tuesday, 18 June 2019, you called your friend Nidal Berou to ascertain the location of your girlfriend at the time. Mr Berou told you that your girlfriend was with two men in a hotel room and that he would give you the location once he found it.  You then phoned your friend Mr Jehad Mohamed and said 'I’m comin' down to your area… I'm going to punch on.'  Mr Mohamed replied, 'run through?… Do you got wheels bro?'You asked him to find out the location of the hotel by calling a mutual friend Gibbs.  Two minutes later Mr Berou called you to say your girlfriend was in a hotel in Docklands, but he could not say where exactly.  You called Mr Mohamed again and said that he should join you and Gibbs.

5You then asked Mr Mohamed to go past your mother's house to pick up some groceries that would be left in front of her door and bring it to you at Docklands where you were. You agree now that the reference to groceries was in fact a reference to a firearm.  Mr Mohamed told you, 'I'll be honest cuz, I don't wanna run to no apartment.'  You told him that if he brings the groceries to you and gave you the room number then he could just 'come sit in the car'.  He agreed to do as you asked and in doing so formed an agreement to pursue a course of conduct involving an assault on the two men with your girlfriend, while you would be carrying a firearm, as alleged in Charge 1.

6You arranged for your mother to place the firearm into a backpack and leave it outside her front door, which she did.

7You tried to convince Salih Aydin, who was with you at your Docklands apartment, to join you and Mr Mohamed in your plan.  You said Mr Mohamed was getting the gun and that he had said to you, '[he couldn't] be fucked while Xanied' (a reference to having taken Xanax medication) and that you told him he could just sit in the car while you would 'go in'.

8By phone, you then directed Mr Mohamed to your mother's home, telling him to park some distance away before walking to the door and picking up the bag.  He told you 'If worst come to worst, cuz, listen, I'm gonna sit in the car, getaway driver in case anythin goes down.'  You said he could sit in your apartment if he wanted to.  You told him not to show anyone the groceries.

9In another call with Mr Mohamed, while he was at your mother's door, it was clear he knew there was a gun in the bag. After he arrived at the Docklands apartment at about 5.30 am, you checked and confirmed that it was in fact loaded.

10At this point you still did not know the exact location of your girlfriend.  You directed Mr Mohamed again to call Gibbs, which he did but was cut short.  You told him to ring back and this time Gibbs told him not to bother visiting as they were going to go to sleep and would catch up later in the morning.  You unsuccessfully tried to get the information from someone else and Mr Mohamed made a third call to Gibbs without success.

11

At about 6:30 am, still not knowing where your girlfriend was still, you again asked Mr Mohamed for the address, who, suggested that you 'go on Snapchat and search locations'. After some time, you found her location that way and told the others she was 'next door to the building you were in'.  You were fuming and

Mr Mohamed tried to calm you down, saying, 'Bro, honestly, bro, give the girl one more chance.  Don't fuck your life, brother.  There's plenty of fish in the fuckin' sea, bro, I'll tell ya that much.'  Despite this you encouraged the group to go outside to find the others.  You collected the firearm, placed it into a dark satchel bag that you took with you.

12You, Mr Mohamed and Mr Aydin left the apartment at about 7:14 am and waited out of sight near the entrance of the same building but then returned to your apartment where you remained for about half an hour.  During that time, you said you still didn't know her location.  Mr Mohamed made a fourth phone call to locate your girlfriend.

13Later again at about 8.55 am, Mr Aydin left the apartment and when he returned a few minutes later, he said he saw your girlfriend running from the building and across a car park.  Mr Mohamed responded, 'Let's go, we'll go there ask for the reservation (sic),' but then Mr Mohamed and Mr Aydin rather decided to leave Docklands and head home.  Mr Mohamed offered to take the bag with him.  You instructed him on how to wipe the gun clean.  He said he could do it and you told Mr Aydin not to get pulled over.

14They left Docklands at about 9:30 am, stopping briefly at your mother's house at about 10:15 am, where Mr Mohamed left the backpack near the front door.

15At approximately 1:30 pm that day, police executed a search warrant at that address and seized the firearm from behind a refrigerator next to the front door.  Upon examination of the firearm, it was found to be a semi-automatic .45 calibre pistol.  Its factory serial number had been defaced and a new number stamped over it.  Its magazine contained 2 cartridges.  DNA recovered from its grip strongly suggested that Mr Aydin had handled it.

16In summary, the agreed facts establish that whilst you were the one who would commit the assault, Mr Mohamed would assist you by collecting and delivering the firearm, attempting to locate the apartment where your girlfriend was, and remaining in the car.  The prosecutor conceded that the evidence does not establish the way the firearm was proposed to be used during the proposed assault beyond the fact that you would have it available for use.

17As to Charge 2, you were at the time on 18 June 2019, a person prohibited from possessing a firearm because you were the subject of a Community Correction Order.  You were also on bail, granted on 6 March 2019, for driving matters which were later determined in the Melbourne Children's Court on 8 November 2019.  You were not licensed to possess a firearm, but I note that the source of your prohibition was entirely unrelated to the illegal use of weapons.

18There are no victim impact statements.

Procedural history

19On 1 July 2019 you were arrested on other matters and remanded.  Police gave you an opportunity on that day to participate in an interview about this matter, however, you declined.

20You conducted a contested committal hearing on 4 February 2021, involving the cross-examination of the informant alone about phone conversations between you and Mr Mohamed on 18 July 2018, the day before this incident.  Following that hearing there were numerous mentions and delays resulting from the late joining of Mr Mohamed's case to yours, the making and consideration of a discontinuance request and, of course, COVID-19.  The trial in this matter was ultimately set down for 6 July 2022 albeit on a more serious set of charges.

21You agreed, however, to plead guilty on about 26 May 2022 when a plea indictment, containing lesser offences, was filed over.

22

While this matter progressed in this Court, you faced other charges in the

Supreme Court arising from another incident in which you possessed, indeed used fatally, a firearm on 14 April 2019, not long before this incident.  On

21 September 2022 you were sentenced in the Supreme Court to imprisonment for life with a non-parole period of 29 years.  You are currently serving that sentence and all the time you have served in custody since your arrest on

1 July 2019 was declared as pre-sentence detention in that matter.

23

In that context, your plea hearing in this case, was adjourned on

12 September 2022 to permit the Supreme Court matter to be finalised.  That having occurred, the plea before this Court was heard on 22 November 2022.

24Your remand in July 2019 was your first experience of custody.  You have served most of that time since then during the COVID-19 pandemic and its attendant restrictions on you, including your inability to have contact with family.  I was told and it was not disputed that you have conducted yourself appropriately in custody and remained away from drugs.

25You have commenced counselling and are attending a literacy program.  This is to your credit.

26Your plea in all the circumstances has significant utilitarian value, coming as it does when the work of the courts has been sorely delayed by the effects of COVID and trial dates were hard to come by.  I find that it reflects a willingness to facilitate the course of justice and an acceptance of your responsibility for your actions.  In those circumstances, your sentence should reveal an appreciable reduction in penalty.[1]

[1] Worboyes v R [2021] VSCA 169

Personal circumstances

27

Your mother raised you from when you were very young until you were about

15 years old.  You report a caring and positive home environment during those early childhood years.

28You attended your local secondary school infrequently from the outset.  You paid little heed to your mother's encouragement to attend regularly, rather you connected with anti-social peer groups.  In their company your attendance deteriorated further until, after Year 8, you ceased attending school altogether.  At this point you briefly attempted an electrical apprenticeship, but made little progress.

29At 15 your father expressed a desire to have greater involvement in your life.  You were 'a little iffy' about this as you were aware of his notoriety within the criminal underworld.  However, you were attracted to the prospect of a stable father figure and envisioned positive personal growth as a result.  It is unfortunate that the opposite was true.

30You commenced living with your father in 2016 and you were exposed to drug use, violence and a criminal milieu that significantly influenced your development and behaviour.  On a daily basis you would observe 'guns, cocaine and heaps of money laying around' and 'see [your father] bragging about it and eventually [you] began to think like that too'.  You commenced using cocaine steadily from the age of 16, which your father would limit to certain amounts.  

31Your use of cannabis escalated dramatically.  You moved into your own place at age 17 and your cocaine use increased further still.  You reported that at the time of your arrest you were using approximately 2 grams of cocaine a day, which, you would couple with Xanax to help 'come down' from 'episodes of agitation and confusion'. It is no surprise that such heavy drug use meant these episodes were regular in the lead up to your offending.

32In the months prior to your arrest you attempted a carpentry apprenticeship, but could only complete a month or so before you were arrested.  You have expressed a desire to pursue vocational training while in custody.  Your attempts to obtain a trade is a positive indication of your attitude in spite of your lifestyle and influences.  I am not prepared to write-off your prospects of obtaining meaningful skills and work, even though you have got a long road ahead of you in prison.

33You are still only 21 years old, an age at which it should not be assumed that your ways are yet set.

34

Important women in your family, Cherine Maghnie, Amira Maghnie, Fay Maghnie and Karlene Jergens have provided personal references about you (Exhibit 2).  In ways that perhaps the men in your life have failed to regard, they speak of your loving and affectionate nature towards your uncles and aunts as well as your

half-siblings.  With their encouragement, for example, you saw the opportunity in seeking out an apprenticeship.

35I note that while your dependence on drugs notably affected your actions and thought processes you were still seen by others as affectionate and caring, even protective.  These are good traits.  They reveal the positive effect that stable and secure relationships had on your early developing years.  Equally they highlight the negative effect that an unstable and volatile home life had on your later development.  It is clear that your family members still offer you strong support despite appreciating the harm your actions have caused.

36Clinical and Forensic Psychologist, Patrick Newton assessed you and in his report dated 24 July 2022 (Exhibit 1) said you met the criteria for a substance abuse disorder relating to cannabis and cocaine.  He did not, however, diagnose you with any other psychological disorder relevant at the time of the offending or since.  On the basis of his considerable experience, he described the major contributing factor to your offending to be your substance use and nascent, although not diagnosable anti-social personality.  The dysfunctional influence of your father in this respect perhaps loomed large.

37Mr Newton stated that 'while these [anti-social] traits are not yet entrenched, they are becoming increasingly central to [your] personality'.  He assessed you as having a level of immaturity and cognitive functioning that places you at high risk of relapse into substance use should you return to the community without supports.  He noted, however, your desire to engage in drug rehabilitation, which appears genuine, although you are yet to complete any formal treatment to address that risk. Mr Newton's opinion was that proactive engagement with rehabilitative services alongside job education and training would facilitate a sense of purpose and lessen your risk of becoming institutionalised, which I accept.  While guarded, I do not write-off your prospects.

38In custody, you have maintained contact with your mother, with whom you still have a positive relationship; indeed, you have been able to engage in regular video link visits, while face to face contact has been severely limited due to COVID.  Other COVID related restrictions have made your time on remand and now your sentence harder than it should be.  

39You have had limited access to courses and programs.  You have been the subject of quarantine and lockdown, not only to protect you as part of the prison-wide mechanism to prevent the spread of the virus.  You have not, unlike those in the community, been able to choose or vary these impositions on your day to day life according to your own assessment of risk and personal factors.  This has been onerous by any standard.

40In January 2020 you learnt your father had been murdered and that, for security reasons, you could not attend his funeral.  This would be a hardship for any person, and I acknowledge that it was for you.  The difficulty of navigating your grief was amplified given that you spent much of your time in a solitary unit with only two hours a day out of your cell.  This decision was made by prison authorities for reasons concerning your safety, not your behaviour.  There is no question that you have served the last 2-3 years of your custodial term under very significant burdens.

Sentencing considerations

41As to sentence I must observe that the movement of firearms around our community, not to mention their use, poses a serious threat to community safety.  While it plays no great part in my sentencing task, so much is obvious from your Supreme Court case.  Even if, on the facts before me, it could not be said that you were going to do any more than waive the handgun around to threaten the men with your girlfriend, it is not hard to imagine ways in which this could have gotten out of control.  The physical harm such a weapon can inflict even from momentary mishandling is obvious.

42Your willingness to instigate and direct the actions of others in obtaining the handgun on this night and threaten to use it to assault others is undoubtedly serious.  Accepting as I do the opinions of Mr Newton about your maturity and capacity to consider the consequences of your actions, this only goes some way to explaining what happened.

43Similarly, while I accept that you were under the negative influence of anti-social others, including your father, at times during crucial years in your development, the risks you were prepared to take on this night were ones that you seemed to appreciate to a significant degree given the amount of time you discussed the assault with Mr Mohamed and Mr Aydin before, thankfully, you all thought better of proceeding further.

44Your young age and relative immaturity at 18 years of age at the time of this offending brings into play the principles in R v Mills[2] and Azzopardi v The Queen[3] and in my sentence I do not propose to underestimate the capacity for change or your ability to benefit from appropriate supports and opportunities.  Unlike in your Supreme Court matter, I do not regard this case to be one that calls for great weight to be given to the considerations in the DPP v Lawrence.[4]

[2] [1998] 4 VR 235

[3] (2011) 35 VR 43

[4] (2004) 10 VR 125

45Your criminal history at the time of this offence, was not extensive.  Your only prior matter for violence was relatively minor and sentenced along with other charges to a non-custodial penalty.  Of course, I have regard to the extremely serious matters sentenced in the Supreme Court when assessing your need to be deterred from future offending and your prospects of rehabilitation, but I will not be punishing you again for that conduct.

46

Of course, like offending should attract like sentences.  In this case, your

co-accused Mr Aydin only facing the equivalent of your Charge 2, was placed on a Community Correction Order for six months.  Melinda Elliot, for a much less serious offence of possessing an unregistered handgun was placed on a good behaviour bond.  Mr Jehad Mohamed on the same charges as you was placed on a CCO for two and a half years with 250 hours of community service, among other conditions.

47Your role in this offending was different to that of Mr Mohamed and was significantly more serious than all of the others involved.  The offending in which they all played a part, was initiated by you and you enlisted others to be involved.  At times you requested them to assist you.  At times you cajoled them.  You maintained your requests of them, even in the face of resistance, for example, when Mr Mohamed said he couldn't be bothered being involved, you then attempted to convince him by saying, he could just sit in the car.  You directed him and Mr Aydin on what they should do and say, and gave them detailed instructions with respect to the gun. Once it was delivered to you, you were the only one who handled it, demonstrating your familiarity with it when you did, and ultimately, you instructed Mr Mohamed and Mr Aydin to return it to your mother's home, and how to clean it, which they did.  You were on bail and a Community Correction Order at the time of this offence.  Mr Mohamed had no prior convictions as such, although without conviction he had been fined and placed on a good behaviour bond previously for non-violent offending.

48Whilst the sentences imposed on these others are not irrelevant to the task of sentencing you, I find your role and your criminal history to provide a sound basis for imposing a different type of sentence on you.  I find that a term of imprisonment is appropriate, even putting aside the fact that you are already serving a life sentence.

49Notwithstanding her previous submission, the prosecutor Ms Karamicov through her instructor, now concedes that it is inappropriate to attempt to accumulate sentence in a case such as this upon a life sentence.  I do not propose to do so.

50I sentence you as follows:

(a)   On Charge 1 – conspiring to commit a common law assault – 12 months;

(b)   On Charge 2 – being a prohibited person in possession of a firearm – 18 months;

(c)   On the summary offence of offending whilst on bail – 1 month;

(d)   Four months of the sentence on Charge 1 is to be served cumulatively upon the sentence on Charge 2.

(e)   The total effective sentence in this matter is 22 months.

(f)    The sentence is to be served wholly concurrently with the sentence you are currently serving, namely life imprisonment.

(g) In accordance with s 6AAA of the Sentencing Act 1991, had you not pleaded guilty and yet had been found guilty of the offences, I would have imposed a sentence of 3 years with 18 months to serve before being eligible for parole.

Ancillary Orders

51I also make the disposal order as sought, unopposed, in accordance with s 78(1) of the Confiscation Act.

52And I make the forfeiture order as sought, unopposed, in accordance with s 151 of the Firearms Act.

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