Director of Public Prosecutions v Elsayegh

[2014] VCC 2005

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01522

DIRECTOR OF PUBLIC PROSECUTIONS

v

FOUAD ELSAYEGH

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 November 2014
CASE MAY BE CITED AS:	DPP v Elsayegh
MEDIUM NEUTRAL CITATION:	[2014] VCC 2005

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Gilligan
For the Accused	Ms B. Coath

HER HONOUR:

1Fouad Elsayegh, you have pleaded guilty to one charge of intentionally causing injury, the offence occurring in the early hours of the morning of Sunday 13 April 2014.

2The circumstances of your offending are set out in Exhibit A, prosecution summary of the plea opening, dated 27 October 2014, and you are to be sentenced on that factual basis.

3On Saturday 12 April the victim, Llewellyn Wooly, was out with friends in the Prahran area.  He had been drinking alcohol during the night and described himself as being pretty drunk.  After leaving Prahran at about midnight the victim and friends went to a club in A'Beckett Street, Melbourne, where they continued to drink alcohol but also took some recreational drugs.

4On this night you were with a friend at Crown Casino.  You left at the same time and you followed your friend on the road in different cars.  Just before 3am the victim and two of his friends were asked to leave the club.  They were all heavily intoxicated and drug affected.  They were walking along Elizabeth Street towards Flinders Street Station.  The victim and one of his friends were mucking around on the street play fighting.  They were out the front of KTM Motorcycle store on Elizabeth Street and the victim was on the ground being held by his friend to stop the wrestling between them.

5Your friend saw this happening as he pulled up at the traffic lights.  You were still travelling in your car behind him.  The victim and his friends approached your friend's car on the passenger side and grabbed hold of the mirror, bending it back.  Your friend got out of his car, told them to "fuck off" and then got back in his car and drove off.  You got out of your car and were yelled at by the victim.  One of the victim's friends was trying to push the victim away from you.  You had a pen gun in your car.  You raised your arm and fired a shot at the victim, hitting him in the chest.  You then got back in your car and attempted to drive off.  One of the victims rushed up to your car and smashed the passenger side window with his skateboard.  You then drove off.

6The CCTV footage captures this incident.  It all happened very quickly, with the incident taking only about 20 seconds.  The victim was taken to Royal Melbourne Hospital.  He suffered a penetrating gunshot wound.  The bullet was located between the proximal left common carotid artery and the left subclavian artery.  The bullet was not removed and he was transported to intensive care for monitoring.  He underwent CT scans and was discharged after two days on oral analgesics.

7The victim has provided a victim impact statement and I take the contents of it into account.  As I indicated the bullet was not removed.  He remains fearful for his health given the lead bullet remains millimetres from his heart.  He indicates he has been in and out of hospital for check-ups, requiring him to miss work and causing him stress and anxiety.  In his victim impact statement he says:

"I have been shot at random in Melbourne, the world's most liveable city.  It made me feel unsafe in all surroundings, paranoid that they would try to finish the job and/or hurt my loved ones."

8Clearly the victim suffers from ongoing psychological problems as a result of this event.

9You made a no comment record of interview.  In seeking an explanation for this offence I was informed that you were using, and were addicted, to ice, and as a consequence you made this terrible decision to use the pen gun, which you had with you in your car.  It was submitted that you had the weapon as a consequence of paranoia attributable to your drug use.

10It was submitted, and I accept, that this was somewhat irrational conduct by you, particularly given the location of the offence and the heavy presence of security cameras in the city area, with an inevitability that you would be caught.

11I was provided with a report from David Ball, psychologist, dated 20 October 2014, which sets out your history and personal circumstances.

12You are currently aged 25 and are the youngest of four children.  You were brought up with extended family members, principally by your grandfather.  Your upbringing and family life were reported as being nothing out of the ordinary.  You left home at 20 years to live independently.  Your family were with you in court and remain supportive of you.  You attended school until Year 9 and then completed an apprenticeship in carpentry.  You have had consistent employment including setting up your own business.  You have more recently been unemployed which you attribute to your substance abuse.

13You reported that you commenced using cannabis in your mid-teens then progressed to ecstasy and amphetamines.  During 2011, when ice became more readily available, you commenced use of that drug.  You soon developed an addiction and your stable home life and employment were dramatically interrupted.  You became involved in criminal activities, resulting in you being incarcerated during 2013.

14You have a number of prior convictions commencing from 1 April 2010.  In 2012 you had six court appearances in 12 months.  Many of these offences relate to traffic, drug and dishonesty kind of offending, but more significantly you have been convicted of a number of offences involving violence and weapons.  I note that the circumstances of these latter matters were not as serious as that currently before me and did not involve firearms.  Additionally, since the commission of this offence you have been convicted of other driving and dishonesty offences.

15You were first incarcerated in May 2013 and were released in December of that year.  It was a straight sentence and you were not on parole.  Upon release you resided with your parents but you continued using drugs and your out of control lifestyle.  This offending occurred a few months after your release and you have been in custody since 1 May 2014.

16This offence has a maximum penalty of 20 years.  There are a number of features that aggravate this offending.  This attack was inexplicable other than due to a vague sense of paranoia as a consequence of your drug use.  The victim was unknown to you and he did little, if anything, to provoke you.  The attack has had a significant psychological effect on him.  You aimed deliberately at the chest of the victim.  It involved the use of a dangerous weapon, a pen gun, that was readily available to you.  You have a number of relevant prior convictions for violence.  The learned prosecutor submitted that this conduct was somewhere in the middle range of seriousness for this kind of offence and your counsel did not dispute that categorisation.

17You have accepted responsibility for this offending and you indicated you would plead guilty at the first opportunity.  Your plea of guilty has saved time and expense to the community.  You have expressed your remorse and regret to others and I am satisfied your plea of guilty in the circumstances of this case is indicative of genuine remorse.

18The report of Ball also addresses your prospects for rehabilitation.  As previously mentioned you continue to have the support of your family and a girlfriend who visit you in custody and are prepared to help you on your ultimate release from custody.  You have spent your time in custody thus far productively.  Ball remarks you present as "successfully withdrawn from your stimulant dependence."  You presented as genuinely insightful and have applied yourself to your own rehabilitation whilst in custody.

19As a qualified and experienced carpenter you stand to have good employment prospects, including self-employment.  Ball considers your prospects for further rehabilitation to be positive.  I was informed that you were working in the kitchen in custody but that you are hoping to be able to utilise your carpentry skills, though that is dependent on where you are placed.  You have provided drug screens and these are clean.  The indicators are positive regarding your rehabilitation but clearly that depends on your capacity to stay away from illicit substances, particularly ice.

20You are still relatively young at 25 years, though your commitment to your rehabilitation in custody shows a level of maturity and is reflective of a change in attitude towards drugs by you.  I accept that you have good prospects for rehabilitation, though they are clearly dependent on the proviso that drugs are not reintroduced into your life.

21The offence of intentionally cause serious injury can occur in a wide variety of circumstances with a resulting broad spectrum of punishment.  As Justice Priest said in Nash v The Queen [2013] VSCA 172 at 75:

"Experience shows that the circumstances of the commission of the offence of intentionally cause serious injury are almost infinitely variable, and thus the sentence commonly imposed widely vary.  There are cases which involve protracted savagery while others are constituted by one punch.  Some involve the use of a variety of weapons.  Moreover, the injuries caused widely vary from gross and permanently disabling injuries to others that barely cross the threshold of serious.  Accordingly, sentences widely vary from suspended sentence of imprisonment at the low end of the spectrum to head sentences of imprisonment in double figures at the high end."

22The circumstances of this offending are very serious.  Both specific and general deterrence loom large in the sentencing considerations that I have to take into account.  This is particularly so given your prior history, and also to discourage those who act in a similar way, namely wilfully ingesting ice and acting in a paranoid, violent and irrational manner whilst under its influence.  The community needs protection from those prepared to act in that manner.

23The nature of your conduct, occurring as it did in the early hours of the morning in the city precinct, also makes community protection important.  Denunciation of the conduct itself and your willingness to resort to the use of a very dangerous weapon, a pen gun that was readily accessible to you, means that denunciation also carries a significant role in sentencing.  These sentencing principles need to be balanced with your personal circumstances and your positive rehabilitation prospects.

24In respect of the charge of intentionally cause serious injury you are convicted and sentenced to serve a term of imprisonment of six and a half years with a non-parole period of four years. If you had not pleaded guilty in relation to this offence I would have, pursuant to s.6AAA of the Sentencing Act, imposed a sentence of eight and a half years with a minimum of six and a half years.  What is the pre-sentence detention Mr Gilligan?

25MR GILLIGAN:  A hundred and fifty-one days.  And that's agreed, Your Honour.

26HER HONOUR:  A hundred and fifty-one?

27MR GILLIGAN: Yes.

28HER HONOUR:  I declare 151 days pre-sentence detention.  Are there any other orders?

29MR GILLIGAN:  No, Your Honour.

30HER HONOUR:  Thank you.  You can remove the prisoner, thank you.  I'll just stand down, thanks.

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