DPP v Elsayed
[2018] VCC 1813
•07 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-02198
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OSAMA ELSAYED |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 07 November 2018 | |
CASE MAY BE CITED AS: | DPP v Elsayed | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1813 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms Edwards | |
| For the Accused | Mr M. Allen |
HIS HONOUR:
1 Osama Elsayed, you have pleaded guilty to:
· one charge of robbery, this carries a maximum penalty of 15 years' imprisonment;
· one charge of recklessly causing injury, this carries a maximum of five years' imprisonment; and
· a summary charge of committing an indictable offence whilst on bail, this carries a maximum penalty of three months' imprisonment.
2 You have admitted your prior criminal history. I shall return to the significance of your criminal history later in the sentencing remarks.
3 The prosecution tendered a summary of prosecution opening as Exhibit A. A summary of your offending is as follows.
4 On 2 May 2016 you were charged with indictable offences including trafficking in drugs. You were released on bail on the day of your arrest on condition that you completed a drug rehabilitation course.
5 In compliance with your bail conditions, you attended the drug rehabilitation centre, Recovery Oz. It was whilst you were at that drug rehabilitation centre that you met the victim of these crimes, Aaron Hanns. You commenced supplying drugs to Hanns.
6 In mid-2016, Mr Hanns was arrested and remanded in custody. On his release in October 2016 he resided in a converted garage at his mother's place.
7 The offending occurred on 9 February 2017 when you went around to Mr Hanns' home with an unidentified man who was referred to as ‘Mus’. You told the victim that he owed you $20,000. The victim acknowledged that he owed you thousands of dollars but disputed it was as high as $20,000.
8 With that, the unidentified male struck the victim several times to the face, causing the following injuries. First there was a broken front tooth, second a broken nose, third there was swelling and bruising to the face, fourth there were black eyes and there was bleeding from the lips and nose.
9 The victim told you that he was unable to pay you any money at that time. He went outside the garage where his mother saw the injuries to him.
10 When the victim returned to the garage, his mother saw him being held in a headlock by the unidentified male and heard you say that you would "call it quits" if he paid you $10,000 by 6pm.
11 In the opening, it was alleged that you stated that if the money was not paid, the victim's mother would, "go first" and, "then his kids." The victim agreed that there would be, "no cops." Mr Kassimatis QC who appeared with Mr Allen on your behalf submitted that I should not have regard to these utterances as, if the Crown wish to rely on them, they should have been the subject of a separate charge or charges of threat to kill. In this respect I was referred to Newman v Turnbull [1997] 1 VR 146. As noted however in other cases of the Court of Appeal, it is permissible for a judge on sentence to have regard to all of the circumstances that flow directly from the criminal conduct constituting the offence charged. What I will not do is punish you for an offence with which you have not been charged.
12 As you and the male Mus were leaving, you took about $900 to $1,000 cash from Mr Hanns, you took his iPhone, some perfume and some drugs that you found in the garage.
13 Over the next week, there were some email exchanges between you and the victim and a meeting between you both where it was agreed that you would be paid the proceeds from the sale of a car. At one of those meetings you repaid the victim $500 cash.
14 In the meantime, the victim's mother reported the matter to the police on 14 February 2017.
15 On 16 February 2017, Mr Hanns texted further assurances that you would be paid the proceeds from the sale of the car. Despite that text message, you did not go back to the Hanns house to collect any money.
16 You were arrested at the Highpoint shopping centre on 16 February and made a no comment record of interview to police.
17 At the time of the offending you were still on bail for the offences that had been committed the previous year.
18 You were remanded in custody after your arrest and spent 309 days in custody until your release on bail. You spent a period on bail and then you were rearrested and spent a further 11 days in custody, and I am now told that since your remand after the plea you have spent 322 days in pre-sentence detention excluding today.
19 You were originally charged with blackmail. The matter was resolved on 2 July 2018 when the matter was listed as a trial in the reserve list. I accept that your plea of guilty was made to a different charge after negotiations between the Crown and your lawyers resolved this matter. In that way I conclude that whilst the plea was not made early, it was to different matters and it must be taken to have a utilitarian benefit.
20 I turn to an analysis of the objective gravity of your offending. Your offending must be considered against the broader context in which it occurred. You targeted Mr Hanns because he was a drug user to whom you had been selling drugs and who, even from his perspective, owed you a considerable amount of money; some thousands of dollars.
21 The crime of robbery, of which I accept the assault was an integral part, was carried out in the company of another, who I can only conclude was there for the sole purpose of assaulting Mr Hanns. Your crime was planned, calmly executed, designed to intimidate and to enforce an illegal debt. Moreover, it was carried out in the victim's home. Again, I conclude that you did so to send the victim a clear message.
22 The assault on Mr Hanns was, as I have generally noted, premeditated. It is clear from the fact that nothing had occurred to that point to warrant the attack. In other words, Mr Hanns had not approached either you or the other male in a threatening manner. In this way, not only was it a one-sided attack but it was a deliberately brutal and vicious assault which was designed to cause physical injury, real pain and true intimidation.
23 After the assault occurred at the point when Mr Hanns was most vulnerable and most likely unable to stand up for himself, you stole property from him. It is little wonder you were able to extract from him a promise that he would not involve the police.
24 The victim impact statements of Aaron Hanns and his mother speak of the profound effect your actions have had on them both. Whilst I agree that there was much in their statements that was not admissible, there was sufficient content to paint a picture of the ongoing fear and psychological disruption caused to them by you both walking into their home and perpetrating these crimes.
25 I make it clear Mr Elsayed, that you are not to be punished for conduct with which you were not charged. Rather, it is necessary to set out the full context in which your offending occurred to make it clear that your offending is very serious indeed. I consider your moral culpability to be very high. In these circumstances, deterrence, denunciation and protection of the community must figure as the principal sentencing considerations.
26 I turn now to your personal circumstances.
27 You are 27 years of age and you were born in January 1990. You are the youngest of five children. Your parents migrated from Lebanon years before you were born. Your father worked long hours over 35 years at Tip Top bakery. Your mother stayed home to care for the children. You had an unremarkable but loving and normal childhood. You attended St Albans primary and then Keilor Downs College where you completed Year 12. You had a good peer group through your school years until you started using drugs.
28 After you finished your schooling, you completed four years of an electrician's apprenticeship. You did not qualify as you struggled with the maths and theory. Mr Kassimatis described you as competent in the area but for your lack of a qualification.
29 You were described as having a solid work history until 2014 when your best friend died. To that point, although you had been using drugs, you had been able to maintain work. However at that point, you commenced using methylamphetamines and your life spiralled out of control.
30 You started offending and that offending came before the courts for the first time in September 2015. You were placed on a community corrections order for 12 months but you comprehensively failed to embrace the opportunity given to you; essentially because you continued to use drugs. Eventually, in 2017, you were sentenced to two months' imprisonment in respect to those matters.
31 As I have noted, you committed further offences in 2016 and were bailed to Recovery Oz. It is somewhat disconcerting that the report of Amanda Brown refers to you having completed four months of residential rehabilitation at Recovery Oz in May 2016. I say it is disconcerting, because it appears that you used your time there to exploit Aaron Hanns the victim in this matter who you met whilst you were in residence at Recovery Oz.
32 Furthermore, you continued to use drugs after your period in residential rehabilitation.
33 Your real, first steps to seriously address your drug problem, and, it seems to me, to address your associated criminality, was when you were remanded in custody for this offending. The report of Amanda Brown outlines the efforts and commitment you have made in counselling with her, both whilst on remand and since your release. Ms Brown states that you have managed to remove yourself from the drug using subculture and that you now lead a more measured and quiet life. She considers that you display advanced insight into your condition which has proved valuable in helping you remain drug-free since your release from prison in late January 2018. Furthermore, you no longer drink alcohol. As an adjunct to remaining drug free, you have moved back to your parents' home. You acted as a carer to your father who only recently died after a long-term illness. You have also taken up your faith again. More importantly, you have focused your attention on relapse prevention and you have been attending weekly Narcotics Anonymous meetings.
34 In the last month, you have been working part-time with one of your brothers in his waterproofing business.
35 You have had one serious relationship. This has so far lasted six years, but I was told that it was under strain with the imminence of your appearance in court on these matters.
36 On your behalf, Mr Kassimatis QC with Mr Allen submitted that I should take into account the following factors in mitigation:
· first, the plea of guilty and its utilitarian benefit;
· second, that you have taken responsibility for your offending, that you have exhibited remorse, regret and self-castigation and that you have insight into the seriousness of your offending and its implications;
· third your prior criminal history is modest;
· fourth you have already spent a deal of time on remand, some ten months more or less;
· fifth you have commenced on the path to rehabilitation and you remain committed to future treatment;
· sixth you have the support of your family;
· seventh you have isolated yourself from your peers whilst on bail to ensure that you remain drug-free; and
· finally, you remain a relatively young man and that this factor should figure in your prospects for rehabilitation.
37 I accept these matters, although it may be observed so far as it is said that your criminal history is modest, that your offending behaviour escalated up to the point where you were remanded.
38 I do accept, however, as Mr Albert does on behalf of the OPP, who appeared on the plea, that there is considerable overlap between the offence of robbery and the injury charge in this case.
39 Your counsel submitted that the appropriate disposition in this case was not to impose any further period of imprisonment, but rather, to have you assessed for, and to place you on a community corrections order. Mr Kassimatis conceded that the offending here was serious, but ultimately he submitted that the protection of the community was an important sentencing factor in this case, and central to the protection of the community is your rehabilitation from drug addiction.
40
Mr Albert, on behalf of the Director, submitted that your offending was serious. It was accompanied, he submitted, with real violence, executed after planning and in the company of a co-offender who provided the muscle in this case. At the time of your offending you were on bail and you had earlier been placed on a CCO but did not take up the opportunity for drug treatment. Ultimately,
Mr Albert submitted that a custodial sentence with a non-parole period, that is, requiring more prison to be served, was required in this case.
41 In the end, I consider that you have very reasonable prospects for rehabilitation. You are still relatively young, although the clock is ticking down on your ability to call in aid your youth in the future. It seems to me that your commitment to rehabilitation started only relatively recently. Whilst you initially commenced some counselling whilst in custody in March 2017, it seems that the real commitment and test of your ability to remain drug-free commenced only with your release on bail on 24 January 2018. I consider that there are promising signs that you can remain drug and crime free. I intend to recognise that in the sentence I impose upon you.
42 Ultimately, however, I take the view that your offending was very serious and warrants a further period of imprisonment. Society will not tolerate gangster like behaviour. You endeavoured to enforce a drug debt by going into the victim's family home, beating him up and intimidating him and stealing property. This type of behaviour can only be met by imprisonment.
43 I fully recognise that part of the punishment in this case is the fact that after rebuilding a life on bail, you are now going back in prison. I consider that this factor, and the other factors I have mentioned, ought to be used to moderate the sentence I impose upon you.
44 On Charge 1, the charge of robbery, you are convicted and sentenced to 26 months' imprisonment.
45 On Charge 2, the charge of recklessly causing injury, you are convicted and sentenced to 12 months' imprisonment. I order that three months of that sentence be served cumulatively on all other sentences.
46 On the charge of committing an indictable offence whilst on bail, you are convicted and sentenced to two months' imprisonment. I order that one month of that sentence be served cumulatively on all other sentences.
47 You are therefore sentenced to a total effective sentence of 30 months' imprisonment. I order that you serve a minimum period of 19 months before you are eligible for parole. I declare the period of 322 days pre-sentence detention, excluding day, reckoned as already served.
48 But for the plea of guilty on these charges I would have imposed a sentence of four years and three months to serve with three years three months non-parole.
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