DPP v Elrajab [2014] VCC 1185

1. At approximately 12.05 am, you attended at the Eltham Hotel in order to conduct surveillance of those premises in preparation for an armed robbery. About half an hour later, Chabib, Abdu and two unknown males attended the Eltham Hotel. At that time, Chabib and one of the unknown males were armed with handguns, a second unknown male was armed with a baseball bat, and Abdu was armed with a milk crate. They attended the venue by way of a side street and attempted to gain entry. After some unsuccessful attempts were made by them to force open various portions of the premises, they left the hotel. The offenders were wearing gloves, and had their faces covered to conceal their identity. The incident was captured on CCTV footage, which is before me as an exhibit.
2. Your role with respect to this particular attempt at armed robbery was the surveillance you undertook being present in the premises for approximately 30 minutes, immediately prior to the arrival of the four who attempted to break into the premises.

1. On Friday 13 July at approximately 10 pm, Abdu drove you to Thornbury and you then walked to and entered the Furlan Club. You then withdrew various sums of money using your own cards. You left the premises approximately half an hour later, and you were picked up by Abdu. At approximately 11 pm, Abdu again dropped you a short distance from the Furlan Club, and you re-entered the venue. You withdrew further money and played poker for about 15 minutes before you again left the premises to be picked by Abdu.
2. The purpose of your attendance had been to conduct reconnaissance in preparation for the armed robbery. Half an hour later at about 11.33 pm, Chabib, Abdu, Gazi and you attended the Furlan Club. Gazi was armed with knuckle dusters, Abdu with a metal pole, Chabib was carrying a bag, and you were armed with a sawn-off shotgun. The four of you entered the building and immediately took control of the staff and patrons, and stole cash from the gaming cashier and two Apple iPhones belonging to staff members.
3. Chabib then took the sawn off shotgun from you and forced a female member of the staff into the strongroom. Just prior to leaving the venue, you forcibly removed a donations receptacle that was chained to a table and carried it away. During the incident you each wore balaclavas to conceal your identity, the total amount of cash stolen was approximately $8,863 and again the incident was captured on CCTV footage.
4. Charge 3, armed robbery of 15 September 2012. On Saturday 15 December 2012, at approximately 12.14 am, you attended the Manningham Club in Bulleen as a visitor. You entered the gaming room, looked around the venue and then left about ten minutes later. This was to conduct reconnaissance in preparation for an armed robbery. About an hour later, Chabib, Abdu, Gazi and you attended the club in Chabib's car. Gazi was armed with a rifle and you were armed with a sawn-off shotgun. After gaining forcible entry to the premises, you remained in the reception area controlling access to the gaming area. The others present with you then carried out their various roles, including Chabib smashing a large glass window attempting to gain entry to the venue after he had arrived with his vehicle.
5. Whilst Chabib was trying to smash his way in, the manager was walking towards the foyer. You tackled him and forced him to the ground, as a consequence he suffered a significant cut to his head which required seven stiches. The patrons were told to get on the ground, and they were threatened they would be shot.
6. Approximately $5,940.50 was taken from the cashier's drawers. The window smashed by Chabib was replaced at a cost of $6,752 and the locking mechanism at the front automatic doors that was damaged was repaired at a cost of $528. And again, the incident was captured on CCTV footage.

1. On the following evening, you in company with Abdu Garcia and Chabib met in Campbellfield and smoked cannabis. You then made your way to the rear of an industrial estate and there found several large of panes of thick glass, which you proceeded to smash causing $5,000 worth of damage.
2. The aggravating aspects of these offences include their planning, the utilisation of disguises and the presence of weapons. There are a number of victim impact statements which have been made, one of which was read to the court and I take each of them and their contents into account in determining an appropriate disposition. It is very clear that each of the victims has suffered considerably in the manner they described as a result of your actions. I was particularly moved by the thoughtful analysis of one of the victims who pointed to not only the devastating effects that your crimes have had on her, her relationship, her employment and her life generally, but also the devastating consequences that it will have on your life.
3. As was pointed out by your counsel, there are a number of mitigating factors. Very significantly you have pleaded guilty, and whilst it was not at the earliest opportunity, it was at a time which meant that there was a minimum of inconvenience to the police and prosecution in their presentation of the matter. Your plea of guilty entitles you to have that fact taken into account in your favour and I will do so.
4. The community has by your plea been spared the time and costs of the trial, indeed perhaps trials. Witnesses have been spared the ordeal of giving evidence upon your trial or trials and I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.
5. I accept that in your case your plea does indicate true remorse for your actions, and indeed this is remarked upon by both the author of the psychological report and your counsel and I accept as I told you on the date of your plea that that was the case. I have been told something of your personal history and your circumstances and that is made very clear both in the submissions made on your behalf by your counsel, which are contained in an exhibit and also in the report of Ms Carla Lechner, a well-known forensic psychologist who regularly provides reports for the benefit of the court, and that document has also been marked as an exhibit.
6. You were 19 years of age at the time of the commission of the offences, and you are currently 20 and you are to turn 21 very shortly. Your personal history is appropriately summarised in Paragraph 2 of the submissions made on your behalf and these matters are somewhat amplified in the report of Ms Lechner, under the heading; "Personal History, and drug and alcohol history." You were born on 20 July 1993, the youngest in the family of six. You grew up in the Campbellfield area and you were residing there with your parents and siblings at the time of your arrest.
7. Your father worked in the grocery trade and also as a truck driver, and indeed two of your older brothers are currently employed in that trade and another brother is employed as a concreter. Your mother is a home-maker.
8. You were educated at Campbellfield Primary School to Grade 6 and then Hume Secondary College. Clearly your time at school was very unsatisfactory and there were significant problems related to the fact that you were bullied. That caused you to leave during Year 10 although happily you were offered a boilermaker's apprenticeship. You completed that apprenticeship at Butler engineering and worked there until September 2012 when you commenced employment with Candella's Engineering Proprietary Limited and you were working there at the time of your arrest on 25 October 2012.
9. I note that a letter was tendered from your employer, testifying to the fact that you were a good employee at that time. You were remanded in custody on 25 October 2012 and have remained in custody since that time. You have retained the support of your mother and father and siblings, all of whom were present in court to support you. The catalyst for your offending seems to be that you were taking the drug known as ice. I accept the submission that your immaturity and your low intellectual functioning also contributed, both of which are referred to in the report of Carla Lechner, to which I will return in a moment.
10. You have no prior convictions, and I sentence you as a person of previous good character. As I say, a report has been tendered on your behalf which has been prepared by Ms Lechner. She recounts your personal and drug and alcohol history before reflecting upon your offending behaviour. What is of significance is that you explained your offending behaviour in such a way that you made no attempt to shirk responsibility or to minimise the seriousness of your actions. You explained that your drug habit, and particularly your ice habit has "destroyed your life" and certainly it explains how it is that you met this group of friends with whom you offended. You committed these offences in order to maintain your ability to buy the drugs that you were then using.
11. As you explained it, "I got about $2,000 from each robbery and I'd go and score." You explained also that you were high on ice at the time of each robbery. You further explained to the author of the report and again I quote, "It's disgraceful, especially as I was a victim of bullying, it's honestly disgusting. I have shamed my family and shamed myself. If there was a way I could apologise, I never grew up around this stuff."
12. Various tests were administered to you and it was the author's opinion that you present as cognitively and emotionally immature with formal testing indicating that you are on the borderline of eligibility for specialist services.
13. Your drug use further undermined your already immature judgement and reasoning skills in relation to your offending behaviour. You do present with favourable rehabilitation prospects in the author's view. At the time of writing the report, it was known that you were then currently evidencing symptoms of depression at a clinical level, and this was confirmed by your support in the extreme range on the Beck depression inventory. You report a long-standing history of low-mood associated with your chronic social difficulties. Your symptoms at that time were of sufficient severity to warrant a diagnosis of adjustment disorder with depression. Further psychometric testing indicates that your intelligence is in the "borderline oblique mildly to intellectually disabled" range. Further testing is recommended to determine if you are eligible for client disability services.
14. I also take into account the other material that was tendered in evidence reflecting the fact that you have utilised the time that you have spent in custody to effect your rehabilitation as best you can. I do note the amount of time you have spent in custody in pre-sentence detention, which is significant, and there is no doubt that you have used the passing of that time to effect your rehabilitation, as I say, the best you can in the circumstances. I have also no doubt the gaol sentence that you realised was inevitable was also a cause of some anxiety, and as a result of both those matters, you are entitled to a favourable sentencing consideration.
15. I must also take into account parity of sentence with your co-offenders. I have already mentioned the two co-offenders whom I have already sentenced. You were much more significantly involved in the criminal activities than either of them.
16. As well as those matters personal to which I have referred, including the question of rehabilitation. I must take into account such matters as deterrence, and especially general deterrence, which is of considerable importance in a case such as this. I particularly bear in mind the submissions made with respect to your age and the applicability of the cases dealing with the sentencing of young offenders, and those matters have been brought specifically to my attention in the Crown outline of submissions on the plea.
17. I was referred to the remarks of Justice of Appeal Ashley in the case of DPP v McLoy where His Honour said, Paragraph 59 of 62, and I quote;

Rather in the usual case for reasons explained in Mills, the considerations there mentioned will be at the forefront when a young offender is to be sentenced, but any one of a series of circumstances may dictate a different approach in a particular case. I should give some examples." And His Honour continued at Paragraph 62; "Further again in a particular case, the circumstances of the offence regardless that the offender does not have a past criminal history, may be so serious as to make considerations such as punishment, denunciation and deterrence, general and special of prime importance."

1. It is my view that your offending is an example of offending that can only be described as so serious as to make considerations of general and special deterrence of prime importance. The community is entitled to be outraged that a gang of young men such as yourselves armed yourselves with firearms and attended at business where there would inevitably be numbers of patrons in attendance. These matters are of the greatest concern. Of course I must nevertheless bear in mind your age and circumstances as they now are, as you find yourself free of drugs and looking for that time in your life, when at the completion of your sentence I have no doubt you will re-join society and hopefully practice your trade, in respect of which you served your apprenticeship. I trust that you will successfully do that so long as you remain drug-free. You clearly have the support of your family and I have no doubt that that will remain a very important aspect of your ongoing rehabilitation. With respect to your likelihood of re-offending, it seems to me that it is very much dependent on the strength of your resolve to never again be involved in the drug culture. Given the range of matters adverted to by the author of the report to which I have referred, one would never be completely confident that you would be able to do that, but I hope that it does remain the case.
2. I also refer to the remarks of Justice of Appeal Redlich in the case of R v Azzopardi and others, 2011, 35 Victorian Reports 43, where His Honour said at Paragraph 44;

The general propositions which flow from the authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth but only in the circumstances of the gravest criminal offending and where there is no ridiculous prospect of rehabilitation may a mitigatory consideration of youth be viewed as all but extinguished.

1. I have endeavoured to apply His Honour's observations in the circumstances. In my view, there does remain some prospect of your rehabilitation continuing on the current plan, which you have embarked upon and that is positive and has been persisted in for some time whilst you have been remaneed in custody. Clearly the significant test will come when you are released from prison and you seek to continue your rehabilitation within the community. Bear in mind, as I said, the difficulties that have been pointed out by Ms Lechner in her report.
2. Yes, if you would stand please Mr Elrajab. These are without doubt serious offences, and in all the circumstances I have no alternative to the imposition of custodial sentences, and you will be convicted and sentenced as follows. On Charge 1, the offence of attempted armed robbery; 18 months imprisonment. On Charge 2, the offence of armed robbery, three and a half years' imprisonment. On Charge 3, armed robbery; four years important. And on Charge 4, criminal damage; three months' imprisonment. I direct that Charge 3 be the head sentence and I direct that 12 months of the sentence imposed on Charge 2 and six months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 3 and each other.
3. That results in a total effective sentence of five years and six months. I direct that you serve a minimum term of four and a half years before becoming eligible for parole. As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody is - what are the number of days, please?
4. MS HASSAN: 624 not including today, Your Honour.
5. HIS HONOUR: 624 days, and I direct that such be noted n the records of the court. As I say, I have made the orders sought by the DPP and not opposed by counsel and I make the order for retention of forensic sample and the disposal and compensation orders. And for the purposes of s.6AAA, had you not pleaded guilty then the sentence of the court would have been seven and a half years' imprisonment with a non-parole period of five years. Yes, thank you Mr Elrajab, if you would be seated please. Anything further?
6. COUNSEL: No, Your Honour.

HIS HONOUR: Thank you, Mr Elrajab, if you would go with the officer to the back of the court, thank you. Yes, thank you. I think that completes that matter now. - - -