Director of Public Prosecutions v Elmarkaz

[2025] VCC 691

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION  Revised
Not Restricted
 Suitable for Publication

CR 24-01792

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMOSE ALMARKAZ

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2025
DATE OF SENTENCE:	30 May 2025
CASE MAY BE CITED AS:	DPP v Elmarkaz
MEDIUM NEUTRAL CITATION:	[2024] VCC 691

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW – Sentencing

Catchwords:             Plea of guilty – stalking - common law kidnapping – common assault – prohibited person possessing a firearm – possessing ammunition – Category 2 offence – young offender – threat to kill - substance abuse --

Legislation Cited:    
Cases Cited:             

Sentence:Total Effective Sentence: Three years and four months, non-parole period two years and four months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Casey	Office of Public Prosecutions
For the Accused	Ms H. Moodie	Doogue George

HIS HONOUR:

1Amose Elmarkaz, you have pleaded guilty before me to six charges on Indictment.

·Stalking, which carries a maximum penalty of 10 years' imprisonment.

·Common law kidnapping, which carries a maximum penalty of 25 years' imprisonment.

·Common assault, which carries a maximum of five years' imprisonment.

·Intentionally causing injury which carries a maximum penalty of 10 years' imprisonment.

·Prohibited person possessing a firearm, which carries a maximum of 10 years' imprisonment.

·Making a threat to inflict serious injury, which carries a maximum penalty of 5 years' imprisonment; and

·the relevant Summary offence of Possessing Ammunition, which carries a maximum of 40 penalty units.

2You have admitted a criminal record that discloses a serious crime of violence for which you were imprisoned when you were 18 or 19.

3You are now 24.

4The circumstances of your offending are set out in Exhibit A, Summary of Prosecution Opening for Plea, which sets out the pertinent circumstances of your offending in detail which I am not going to recite herein.  Exhibit A forms part of these Reasons for Sentence. 

5In brief terms, you were involved in a planned kidnapping, which had some very serious aspects to it.  It is a very serious offence, kidnapping.  It is a Category 2 offence, there can be variations in the range as to different levels of seriousness of committing an offence of this type.  Your commission of it is very serious given the planning involved and the conduct you and others engaged in during the imprisonment of your unfortunate victim.

6The stalking of your victim was constituted by you and your co-offenders conducting surveillance and tracking the victim over the 3rd and 4th May 2024. You and your co-offenders were in a group utilising a white van to follow the victim.

7You were waiting for an opportunity to seize him.

8You found your opportunity at 4:20 pm when you and your co-offenders forced your victim, who unbeknown to you at that point in time was not your intended victim, into the back of the white van.

9Your victim was held down in the back of the white van and driven to an address in Doncaster Road, Doncaster.  You and your co-offenders held him there. You were getting instructions via a Signal chat group. At one stage an image was sent of the victim's head and it was only then that you and your co-offenders realised you had kidnapped the wrong person.

10The victim was terrorised, assaulted and tormented in a most appalling way during his captivity. He was tied to a chair. His head was shaved and this was recorded on film and sent to the remote instructors.

11You placed a sawn-off or cut-down firearm in his mouth. This was also filmed. I was shown footage of this episode. It was terrifying. The fact you did this without any qualms, under instruction apparently, is disturbing.

12He was punched during his ordeal. Threatened. He had a bullet placed in his mouth as part of the threat, and he received bruising, cuts and scratches.

13You were arrested and remanded on 20 May 2024.

Objective Gravity

14It is very serious offending and no doubt has had longstanding and significant impacts upon your victim, who was too overwhelmed by the experience and the ongoing sequelae of the offending to make a victim impact statement, as I understand it, but I take into account that it was a terrifying, impactful and traumatic experience for him.

15It is conceded by your Counsel that your role was central to the events. The charge of prohibited person possessing a firearm is particularly grave due to the use the firearm was put to. The threat offence in all of its circumstances is also very grave.

16Your Counsel submitted that you took a driving job on an app that led to this offending. You and others were receiving instructions through a Signal group chat. You felt under some pressure to continue. One of your co-offenders pulled out of the scheme and received threats via the chat.

17Your Counsel advances these circumstances as impacting upon the objective gravity of the offending or your moral culpability. Your willingness to go through with these directions in all of these circumstances does not reflect favourably on either the circumstances of the offending or your moral culpability in my view.

Personal Circumstances

18You are still a young man, 24 years old and you were 23 when you committed these offences.

19You were born in Egypt and moved to Australia when you were an infant, with your parents and three elder brothers. You had the benefit of a stable loving childhood and both of your parents and your siblings continue to be supportive. Your parents have been hard-working all of their lives, and they both worked during your childhood – whilst older siblings performed supervisory roles.

20I received a letter from your older brother Nekroma, which I accepted as providing a frank and truthful assessment of your development, and drift towards negative influences. The support of your family, which comes through in Nekroma's letter is an important consideration.

21I accept that you experienced some adversity when you were in primary school due to your introversion and poor English. You did not complete Year 12, leaving school after falling in with the 'wrong crowd' and using drugs including cannabis and Xanax.  Your childhood and teenage years are summarised in greater detail in the report of Dr Hannah Dawson.

22You were first incarcerated in 2019 at the age of 18. You have struggled with drug use throughout your adult life.

23You have worked at times in bricklaying, and other times in plastering, but you have said that you got bored and did not continue.

24You have expressed a desire to engage in an electrical apprenticeship.

25Boredom, lack of application, being impulsive and susceptible to negative peer pressures are features of your personality according to the expert report filed on your behalf, and that helps explain how someone from a solid background such as yours has engaged in such serious criminality at a relatively young age.

26I received a report from Dr Dawson dated 2 May this year which was of great assistance.

27You described yourself to Dr Dawson as 'as someone who always lacked responsibility', she said you explained that you had 'been a baby [your] whole life'.

28Dr Dawson concludes that you are particularly limited in your social functioning, and that your emotional development is somewhat arrested.

29You gave the following account of your offending to Dr Dawson:

[58] In relation to the offences, Mr Elmarkaz explained that he did not know the co-accused prior to the offence, stating 'there was an ad for driver job in app group chat'. He explained that he used this particular application to purchase substances and when he saw the advert for the job, 'thought "yeah, why not"'. Mr Elmarkaz noted that he was using cocaine at the time and considered this impacted his decision-making and judgement.

30I accept that aspect of the account.

[59] Mr Elmarkaz reported that even when there were indications that the job was more serious than just driving, he felt that he was 'forced to continue', adding that he was being threatened by the organiser. He asserted that he 'felt bad' for the victim, but recognised that he put himself in the situation and asserted, 'I couldn't see an out once I was involved. I would have left if I could'.

31I do not accept that account in its entirety, and nor did your Counsel advance it as entirely reliable.  It does provide some insight into your psychological functioning as tested by Dr Dawson and I do accept the opinion of Dr Dawson as to these matters.

32At paragraph 60 of Dr Dawson's report, continuing on from the account of the offence, she wrote:

Mr Elmarkaz described getting 'adrenaline' from deception and 'lying to people', adding that prior to his current incarceration, he would 'get a kick out of making people feel bad'. He reported that he did not think he possessed emotions, and noted that he had 'no empathy', expressing, 'I don't care about other people's feelings; I used to steal from my dad when I was younger'. However, he asserted that he is more considerate of what he says and does now, and the impact on others. He asserted that he had matured out of this attitude and now felt 'disgusted with [himself]'.

33Dr Dawson wrote:

[61] Mr Elmarkaz reported that his 'mindset' had changed since then.

34Dr Dawson administered psychological tests and stated:

[Your] results … indicates scores suggestive of ADHD, falling in the 97th percentile which is in the high range. [She wrote] Further interpretation of his responses indicate attentiveness and hyperactivity challenges that fall in the very high range, substantially exceeding the clinical cutoff for ADHD, indicating scores that are typical of someone with severe ADHD. This pattern suggests pronounced ADHD symptoms that significantly impact multiple areas of functioning and warrants further assessment, treatment and management.

35Dr Dawson also concluded that you are likely to be Alexithymic (this means that you have significant difficulty recognising and expressing your emotions).

36I accept these findings.

37Her report sets out the features of this condition at [89] and [90]. I will not reproduce that herein.

38Dr Dawson assessed you as being a moderate risk of reoffending.

39At [102] Dr Dawson opined:

Mr Elmarkaz is a 24-year-old male who is facing charges for a serious offence against an unknown victim, seemingly for financial gain. He reports being from a prosocial and stable upbringing but presents as someone who has experienced social and emotional difficulties throughout his life. He presents as someone who in his adolescence became increasingly vulnerable to peer influence, based on his difficulties with building social relationships, but possibly also due to his difficulties establishing a sense of identity and self-understanding due to some potentially undiagnosed Attention Deficit/Hyperactivity Disorder (ADHD). In relation to this, he reported that his social difficulties were coupled with some behavioural challenges, which were exacerbated by his exposure to undesirable peers in his local area and at school, introducing him to illicit substances and antisocial behaviour.

40She went on to opine that:

[you] had likely been self-medicating symptoms of untreated ADHD and adjustment challenges with polysubstance use attempting to further detach himself from his emotional experiences and increasing pressures of maturation, and re-engaged with antisocial associates when seeking a place of familiarity, safety and belonging.

41In a positive finding which contains a degree of speculation, Dr Dawson wrote:

With intermittent offending history, there does not appear to be evidence of a set criminal belief system, and despite his antisocial personality features, Mr Elmarkaz presents with a sense of right and wrong.

42She went on to consider that you are at a critical point where, with the right support, intervention and engagement, your offending may remain 'adolescence limited' as opposed to you becoming a 'life-course persistent offender'.

43As I said during the plea, this is largely up to you now; the decisions that you have to make about your future.

44Dr Dawson's report has been helpful in my understanding of your functioning, and the relationship between personality functioning, drug use, negative peers and offending behaviours.

45It has assisted me in assessing your moral culpability, prospects of rehabilitation and the appropriate sentence.

Plea Guilty

46I accept your Counsel's submission as to a relatively early plea. The sentence I impose is discounted due to the utilitarian value of your pleas of guilt.

Parity

47I have had to have regard to the principle of parity given the sentence I imposed upon Mr Hadairi. Your Counsel accepts that a disparate sentence is appropriate however regard must be had to parity, and I must impose a sentence that is not so disparate as to give rise to a justifiable sense of grievance having regard to all of the circumstances.

48There is disparity in relation to the circumstances of the offending, as well as criminal histories and matters personal in mitigation.

49First, Mr Hadairi was 20 at the time of sentence and found suitable for a Youth Detention order.

50He therefore had available to him for consideration a different sentencing range of options than do you. That is not the only relevance of his younger age compared to you however.

51His personal circumstances and background were relevant to his sentence in several ways also.

52His traumatic background gave rise to significant mitigation by way of application of the Bugmy principle.

53He had also developed PTSD as a result of his experiences that enlivened the Verdins principle in relation to hardship in custody with some force.

54There was also a possibility of deportation in his case which had to be considered as a sentencing factor.

55I found his prospects of rehabilitation to be good, whereas I am more guarded as to your prospects based upon the Dawson report, the circumstances of offending, and your history.

56Your role in the offending was central, and as I have noted, your actions in relation to the firearm in particular are quite disturbing. You also face more charges than Mr Hadairi. Your criminal history is worse than Mr Hadairi's.

57I have weighed up the similarities and dissimilarities across all relevant considerations in applying the principle of parity.

58I have weighed up the importance of imposing a sentence in your case that adequately reflects the importance of general deterrence, denunciation, and specific deterrence.

Sentence

59I sentence you as follows, Mr Elmarkaz.

60In relation to Charge 1, the charge of stalking, you are sentenced to six months imprisonment.

61In relation to Kidnapping Charge 2, you are sentenced to two years and six months' imprisonment.

62In relation to Charge 3, you are sentenced to six months' imprisonment.

63In relation to Charge 4, intentionally causing injury, you are sentenced to six months' imprisonment.

64In relation to Charge 5, a Prohibited Person Possessing Firearm, you are sentenced to 18 months' imprisonment.

65In relation to Charge 6,  charge of threat to inflict serious injury, you are sentenced to 12 months' imprisonment.

66In relation to the relevant Summary offence of Possess Ammunition, you are fined $800.

67The sentence imposed in relation to Charge 2 is the base sentence.

68I direct that one month of the sentences imposed on each of Charges 3 and 4, five months of the sentence imposed on Charge 5, and three months of the sentence imposed on Charge 6 be served cumulatively upon the base sentence.  The sentences are otherwise to be served concurrently.

69That makes a total effective sentence of three years and four months' imprisonment.

70I set a non-parole period of two years and four months.

71I declare that pursuant to s18, you have served 374 days as pre-sentence detention.  Is that right, Ms Bazina and Mr Moodie? 

72COUNSEL:  That's correct.

73HIS HONOUR:  Thank you.

74Pursuant to s6AAA, were it not for your pleas of guilty, I would have sentenced you to a period of four and a half years' imprisonment with a non-parole period of three years and three months.

75I do not think there are any other orders I need to make.  Accordingly, we will adjourn the court.

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