Director of Public Prosecutions v Elmaghraby
[2015] VCC 1914
•18 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01688 and CR-14-01897
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM ELMAGHRABY |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 December 2015 | |
CASE MAY BE CITED AS: | DPP v Elmaghraby | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1914 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Batten | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr A. Patton | Haines & Polites |
HIS HONOUR:
1 Adam Elmaghraby, on 28 October 2015 a jury found you guilty of kidnapping at common law (Charge 1), false imprisonment (Charge 2), and causing serious injury intentionally (Charge 3). The maximum penalty for kidnapping is 25 years’ imprisonment. The maximum penalty for false imprisonment is ten years’ imprisonment, whilst the maximum penalty for causing serious injury intentionally is 20 years’ imprisonment.
2 These crimes arise out of your actions in the small hours of 30 January 2012 whilst in company with another adult male.
3 On 30 January 2012 your victim, Dwayne Mills, then a 15 year old boy, was out in the streets of Melton South with two other boys, pilfering small change from cars that had been left unlocked by their owners. Whilst trying to steal from a car at an address opposite 52 Second Avenue, Melton South, a house owned by your mother, Dwayne Mills was interrupted by you. Whilst it is unclear on the evidence, it is open that Joshua Adamson, one of Mills’ cohort, had either approached or attempted to steal from a car at your mother’s address.
4 In any event, Dwayne Mills heard the challenge “Why are you trying to break into my Mum’s car?” He ran away. You and your co-offender pursued him in what Mills described as a silver Corolla. Your pursuit lasted for some time, with Mills jumping over fences and hiding in backyards. Eventually you found him in the driveway of 71 Childs Street, Melton South. Together with your co-offender you dragged Mills to the Corolla sedan, placed a bag over his head, assaulted him in the car and took him to a residence which I find on balance of probabilities was your mother's house at 52 Second Avenue, a place that you had been renovating for some time. There you bound and tortured Dwayne Mills. When you had finished with him, you abandoned him by the side of the Melton-Gisborne Road some 12 kilometres north of Melton.
5 Dwayne Mills was found by a passing motorist at about 5 am, curled up in the foetal position with his wrists bound. Police and ambulance were summoned, and Mills was taken to the Royal Children’s Hospital where the following injuries were observed:
(a)tramline bruising on his trunk and legs;
(b)red markings about his ankles and wrists that were consistent with Mills being bound;
(c)complex bruise on the left lower lateral back, consistent with blunt trauma;
(d)subconjunctival haemorrhages to the right eye that were indicative of direct trauma;
(e)lacerations to the right lower lip and left forehead, indicative of blunt trauma;
(f)a small gaping injury to the left proximal anterior leg which was in all probabilities a stab wound; and
(g)overall bruising and other injuries consistent with assault. (See evidence of Dr Gall, transcript pages 1022 and following.)
6 Your offending was as brutal as it was uncalled for. Your offending is a serious example of offending of its kind, committed as it was by two adult males on a 15 year old boy whose only sin was that he was pilfering from cars.
7 Your plea was heard over two days, being 29 October and 4 December. On 29 October you pleaded guilty to Indictment D10952717 containing one charge of possessing methyl-amphetamine and ecstasy on 7 August 2012, the day of your arrest in respect of the kidnapping incident. On that day police searched 52 Second Avenue, Melton South, and found ice pipes, small plastic zip-lock bags containing crystalline material and a set of electronic scales. The substances found in the various plastic bags were identified as methylamphetamine totalling 1.1 gram, and MDMA totalling 0.1 of a gram. The maximum penalty for this offence is one year’s imprisonment.
8 Additionally, you pleaded guilty to five related summary offences, being:
(a)Charge 17, possession of a prohibited weapon (a double-bladed knife);
(b)Charge 18, possession of a prohibited weapon (a sword);
(c)Charge 20, possession of a prohibited weapon (a double-edged knife);
(d)Charge 21, possession of a prohibited weapon (an extendable baton);
(e)Charge 22, possession of a poison (Viagra) without prescription.
9 The penalty for Charges 17, 18, 20 and 21 is 240 penalty units or two years’ imprisonment, whilst the maximum penalty for Charge 22 is a fine of ten penalty units.
10 On 29 October, tendered as Exhibit A and read aloud in court was the victim impact statement of Dwayne Mills. Not unexpectedly, he has been profoundly affected by his experience at your hands. He has flashbacks of the events of 30 January 2012. He is scared when he goes out at night. He feels that he is a different person from his former self, but is incapable of expressing that change in words. He bears scars to his forehead, leg and right hand that are permanent reminders of your conduct.
11 Tendered as Exhibit B and read aloud in court was the summary of prosecution opening in support of the drug and summary offences.
12 You are 33 years of age and without prior conviction. You have a subsequent “without conviction” disposition for possessing an offensive weapon imposed by the Melbourne Magistrates’ Court on 25 November 2015. This matter has no impact upon the exercise of my sentencing discretion.
13 You are one of three sons born to migrant parents who came to Australia in 1970. You were educated to Year 12 at Melton Secondary College, and thereafter studied business management at La Trobe University. However, you did not complete your degree. Whilst in your final year at school, and your final year at university, you suffered two very different and significant traumas.
14 In Year 12, when you were aged nineteen, your father died. You blamed yourself, and probably still do, for your father’s death. Your father had been unwell for some days but refused to see a doctor. During this time you took care of him, and on the day of your father’s death you left him for only a short time to do some shopping. When you returned home, your father had become gravely ill. You called an ambulance, and your father was taken to hospital and died that day. As at 2006, some six years later, your father’s death caused symptoms of depression in you (see Exhibit 2).
15 Your father’s death affected your performance in your Year 12 exams.
16 I was told that you were a good sportsman at school, and that you played many sports, but excelled at baseball. After leaving school you coached junior sports teams.
17 Your degree at La Trobe University concentrated on hospitality management. You commenced your course in 2001, and you worked the winter months of that year at Mt Buller.
18 You have never been afraid of work, and whilst a university student you worked on building sites. On the second day of your plea Gabriel Ramos gave evidence on your behalf. He first met you when you were both working on building sites, and he subsequently came to employ you in 2012 and 2013, a matter to which I will return shortly.
19 In your last year at university you were the victim of a vicious assault. You were struck with a metal bar and knocked out. When you regained consciousness you were still being set upon. You heard one of your assailants say, “It’s not him.” To add insult to injury, you were not the intended target of the assault. You suffered a depressed fracture of an eye socket, damage to the optic nerve of that eye, a hairline fracture of the skull, and lacerations. A neurological report, part of Exhibit 2, records that you suffered some minor neurological deficit as a result of this assault when you were assessed in 2006.
20 A major effect of the assault on you was it caused you not to complete your degree when you were so close to achieving that goal.
21 It should be noted that no reliance was made on these two events as enlivening the principles in Verdins’ case. However, these events have contributed to your makeup, the makeup of the man who falls to be sentenced today.
22 After leaving university at the end of 2004 you worked in the building industry. You lived at home as you always had done, and you were the primary carer for your mother. Your life continued in this fashion until in 2011, in the aftermath of the Christchurch earthquake, you obtained work as a loss assessor, assessing the structural damage done to homes as a result of that catastrophe. You worked three weeks on and one week off. That allowed you to return home to see to your mother’s needs. Whilst working in Christchurch you saw a number of bodies exhumed from the wreckage caused by the earthquake. I was told that this experience adversely affected you, which I accept.
23 In February 2012 your mother suffered a heart attack, so you ceased your employment in New Zealand and returned home to be her carer. You also worked renovating the house at 52 Second Avenue.
24 I was told that at about this time you were an occasional user of the drug methamphetamine. What, if any, role that drug had in your offending conduct is unknowable.
25 Tendered as Exhibit 3 were a bundle of references from your mother, brothers, and friends. You are the primary carer to your mother, who is 68 years of age and in ill health. She, together with your siblings, share grave concerns for her health in your absence. You have been a generous friend to many. You have helped friends through personal crises. You are a sponsor to a child through the Save the Children foundation. All of your referees attest to your kind-heartedness, generosity and selflessness.
26 Tendered as Exhibit C were the criminal records of a number of your referees. To my mind these documents do not detract from the qualities that you have demonstrated over time to your referees.
27
From mid-2012 to mid-2013 you were employed by Gabriel Ramos. His company facilitated the certification to tradesman level of experienced workers in the construction industry who had not undertaken an apprenticeship.
Mr Ramos spoke highly of your interpersonal skills and reputation in dealing with candidates for this certification process. You also worked in a similar field dealing with migrant women to enrol them in English courses to enhance their prospects in the workplace.
28 Until the jury verdict you were a man of good character, a hardworking man, and one who was and is devoted to his family and friends. A more stark contrast with the man who committed the offences of 30 January 2012 cannot be imagined.
29 You pleaded not guilty to the principal indictment. Accordingly, the mitigating effects of a plea of guilty have no application to you. You have exhibited no remorse. However, your prospects for rehabilitation must be regarded as good in all the circumstances. The principles of public denunciation, just punishment and general deterrence must play the dominant role in arriving at an appropriate sentence in your case because of the circumstances surrounding your offending.
30 I note that there was a 12 month delay in the completion of the committal proceedings in this matter, and that delay must be taken into account in arriving at an appropriate sentence in your case. Likewise I will take into account the restrictive circumstances of your incarceration whilst on remand caused by the recent gaol riot. Will you please stand.
31 Taking into account the circumstances of the offences and their effects, with your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows.
32 On Indictment C1308998 on Charge 1, kidnap: five years’ imprisonment.
33 On Charge 2, false imprisonment: three years’ imprisonment.
34 On Charge 3, causing serious injury intentionally: five years’ imprisonment.
35 I order that eighteen months of the sentence imposed on Charge 1 and one year of the sentence imposed on Charge 2 be served cumulatively upon each other and upon the sentence imposed upon Charge 3.
36 This results in a total effective sentence of seven years and six months’ imprisonment.
37 I direct that you serve five years’ imprisonment before you will become eligible for parole.
38 On Indictment D10952717 on Charge 1, possessing a drug of dependence, I convict and fine you $500.
39 On the related summary offences, being Charges 17, 18, 20, 21 and 22, I convict you and fine you an aggregate sum of $1,000.
40 I declare that you have spent 88 days by way of pre-sentence detention not including today. You may be seated. Are there any other matters that need to be attended to, gentlemen?
41 MR BATTEN: No, Your Honour.
42 MR PATTON: No, Your Honour.
43 HIS HONOUR: Remove the prisoner. I will stand now until 11 o'clock.
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