DPP v Elmarkaz [2025] VCC 691

1. It 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.
2. It 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.
3. Your 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.
4. Your 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.

1. You are still a young man, 24 years old and you were 23 when you committed these offences.
2. You 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.
3. I 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.
4. I 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.
5. You were first incarcerated in 2019 at the age of 18. You have struggled with drug use throughout your adult life.
6. You have worked at times in bricklaying, and other times in plastering, but you have said that you got bored and did not continue.
7. You have expressed a desire to engage in an electrical apprenticeship.
8. Boredom, 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.
9. I received a report from Dr Dawson dated 2 May this year which was of great assistance.
10. You 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'.
11. Dr Dawson concludes that you are particularly limited in your social functioning, and that your emotional development is somewhat arrested.
12. You 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.

[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'.

1. I 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.
2. At 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]'.

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

1. Dr 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.

1. Dr Dawson also concluded that you are likely to be Alexithymic (this means that you have significant difficulty recognising and expressing your emotions).
2. I accept these findings.
3. Her report sets out the features of this condition at [89] and [90]. I will not reproduce that herein.
4. Dr Dawson assessed you as being a moderate risk of reoffending.
5. At [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.

[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.

1. In 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.

1. She 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'.
2. As I said during the plea, this is largely up to you now; the decisions that you have to make about your future.
3. Dr 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.
4. It has assisted me in assessing your moral culpability, prospects of rehabilitation and the appropriate sentence.

1. I 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.

1. I 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.
2. There is disparity in relation to the circumstances of the offending, as well as criminal histories and matters personal in mitigation.
3. First, Mr Hadairi was 20 at the time of sentence and found suitable for a Youth Detention order.
4. He 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.
5. His personal circumstances and background were relevant to his sentence in several ways also.
6. His traumatic background gave rise to significant mitigation by way of application of the Bugmy principle.
7. He had also developed PTSD as a result of his experiences that enlivened the Verdins principle in relation to hardship in custody with some force.
8. There was also a possibility of deportation in his case which had to be considered as a sentencing factor.
9. I 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.
10. Your 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.
11. I have weighed up the similarities and dissimilarities across all relevant considerations in applying the principle of parity.
12. I have weighed up the importance of imposing a sentence in your case that adequately reflects the importance of general deterrence, denunciation, and specific deterrence.

1. I sentence you as follows, Mr Elmarkaz.
2. In relation to Charge 1, the charge of stalking, you are sentenced to six months imprisonment.
3. In relation to Kidnapping Charge 2, you are sentenced to two years and six months' imprisonment.
4. In relation to Charge 3, you are sentenced to six months' imprisonment.
5. In relation to Charge 4, intentionally causing injury, you are sentenced to six months' imprisonment.
6. In relation to Charge 5, a Prohibited Person Possessing Firearm, you are sentenced to 18 months' imprisonment.
7. In relation to Charge 6, charge of threat to inflict serious injury, you are sentenced to 12 months' imprisonment.
8. In relation to the relevant Summary offence of Possess Ammunition, you are fined $800.
9. The sentence imposed in relation to Charge 2 is the base sentence.
10. I 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.
11. That makes a total effective sentence of three years and four months' imprisonment.
12. I set a non-parole period of two years and four months.
13. I declare that pursuant to s18, you have served 374 days as pre-sentence detention. Is that right, Ms Bazina and Mr Moodie?
14. COUNSEL: That's correct.
15. HIS HONOUR: Thank you.
16. Pursuant 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.
17. I do not think there are any other orders I need to make. Accordingly, we will adjourn the court.