IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	

Case No. CR-21-01096

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SALIM EL MASRI		

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JUDGE:	HIS HONOUR JUDGE LYON	
WHERE HELD:	Melbourne	
DATE OF HEARING:	9 November 2022	
DATE OF SENTENCE:	9 November 2022	
CASE MAY BE CITED AS:	DPP v El Masri	
MEDIUM NEUTRAL CITATION:	[2022] VCC 1977		

REASONS FOR SENTENCE
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Subject:			Criminal Law
Catchwords: 	
Legislation Cited:		Crimes Act 1958 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)	
Cases Cited:		Croughan v The Queen [2015] VSCA 209 ; R v Verdins & Ors [2007] VSCA 102; DPP v Jackson [2016] VCC 2003
Sentence:		Five and a half years imprisonment; non parole period of three and a half years 

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr E. Dober	OPP	
			
For the Accused	Mr R. Thyssen	Chester Metcalfe	

HIS HONOUR:

1	Salim El Masri, after a trial of four days you were found guilty on 
28 October 2022 of Armed Robbery, contrary to s75A of the Crimes Act 1958.  The maximum penalty for this offence is 25 years' imprisonment.
Indictment  K12630662.1B
2	You also pleaded guilty to two charges of possession of a drug of dependence, contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act.  The maximum penalty for these offences is one year imprisonment or 30 penalty units where the offence was not committed for any purpose relating to trafficking in that drug of dependence. 
3	Mr El Masri, you have a relevant prior criminal history and I will say something of that in these remarks
Circumstances of Offending  
4	I turn then to the circumstances of the offending.  The facts and basis on which you were found guilty are as follows:
5	On the night of 20 August and into the morning of 21 August 2019, the victim Nathaniel Head was in the company of Natalie Kabalan and Jamil Chehade at both at Cramers Hotel and the Preston Hotel in High Street, Preston. 
6	The complainant gave evidence that he withdrew about $1000 cash and purchased methylamphetamines with Mr Chehade before going to Cramers.  He gave evidence that he won about $1,600 at Cramers, and that he gave Ms Kabalan and Mr Chehade each $300.  The complainant stated that he continued to gamble at the Preston Hotel and lost about $500 to $600. 
7	The CCTV footage at the Preston Hotel shows that you were in company with Ms Kabalan and Mr Chehade in the gaming room and at the rear entrance onto the car park at the Preston Hotel between roughly 6 am and shortly before 7 am on 21 August.  It appears that you departed and they departed as a pair in the red Toyota in which they had arrived earlier with Mr Head.  Mr Head was left on his own. 
8	It is reasonable to infer from the evidence that Ms Kabalan and/or Mr Chehade informed you that the complainant was carrying a sum of money.  When Mr Head realised he was on his own, he went and got something to eat from a bakery on High Street, Preston.  He then rang Mr Chehade. Mr Chehade and Ms Kabalan picked up Mr Head and the three of them were travelling in the red Toyota. 
9	Shortly before the offending Ms Kabalan texted the coordinates and location of the red Toyota to a telephone number previously used by you.  At about 8.10 am the car stopped in a laneway off High Street when Ms Kabalan got out, stating that she needed to use the toilet.  Mr Head did not see Ms Kabalan again. 
10	When the car was stopped, Mr Chehade and Mr Head spoke briefly.  Mr Head was seated in the back of the car.  You approached the car and brandished a handgun.  You pointed it first at Mr Chehade and made a demand of him.  You then turned towards Mr Head and pointed the gun a couple of inches from his forehead.  You said words to the effect of, 'Give me everything you've got or I'll shoot you'. 
11	Mr Head emptied his pockets which contained his phone, cigarettes, credit card and cash of about a thousand dollars.  Mr Head stated that he was carrying a knife which he put on the seat.  You then said, when you saw the knife, 'You take a knife to a gunfight'.  You told Mr Head to get out of the car and run, which he did.  CCTV footage shows Mr Head running down the laneway and looking back.  A pair of feet come into view at the top of the frame of the CCTV footage. 
12	After a period of time Mr Head looked back and saw that he was no longer being pursued and that the car was gone.  He stopped a passer-by, who contacted the police on his behalf.  Mr Head provided descriptions to the attending police and provided a face fit composite image to the police image composer. 
13	Mr Head gave evidence that he did not know the offender.  Mr Head described clothing and facial features which appear similar to what you were seen to be wearing in the CCTV footage.  Although Mr Head gave evidence that he did not know the offender, it is reasonable to infer that when the jury observed the descriptions given to attending police and the face fit images, they concluded they closely matched your features. 
14	You did not give evidence or call evidence in your defence at your trial.  When police searched your home on 9 October 2019, amounts of methylamphetamine and morphine were found.  Mr Dober, for the Crown, did not contend that you possessed those drugs for a commercial purpose.  I am satisfied that the drugs were for your personal use. 
15	You were remanded in custody, released on bail after a few months and then returned to custody before you again were granted bail, which you maintained until the trial verdict. 
Objective Gravity and Moral Culpability 
16	I turn now to a consideration of the objective gravity of your offending and an assessment of your moral culpability.  
17	The seriousness of the offence of armed robbery is immediately marked by the maximum penalty prescribed by Parliament; that is, 25 years. 
18	Moreover, it is a Category 2 offence, which means that a period of imprisonment, excluding a combination sentence with a CCO, must be imposed unless certain circumstances exist.  It was not suggested that you fall within any of the exceptions to the imposition of a period of imprisonment; that is, the non-parole period. 
19	Your offending is a serious example of this charge:
(a)	The offending was executed using a handgun.  The evidence is that the handgun was pointed directly at the victim's head at a distance of a couple of inches.  It was so close that he was able to provide a reasonable description of the gun you were holding;
(b)	The crime was executed with premeditation, planning, and coordination.  I conclude that the jury were satisfied that you acted on information provided by Ms Kabalan / Mr Chehade, and that Ms Kabalan provided the precise coordinates and location to enable you to pinpoint Mr Head; and
(c)	The crime was calculated to cause surprise and fear in a soft target.  I note however that the opportunity to make a victim impact statement was offered to Mr Head.  He took the form but it was not completed before sentence. 
20	In these circumstances I conclude that the objective gravity of your offending is very serious; moreover, your moral culpability for your offending is high.  Not only was your offending premeditated, but your criminal history indicates that you have previously been convicted as a prohibited person possessing a firearm and possessing cartridge ammunition, and that you have convictions for violence, dishonesty, drug use and possession. 
21	You have served a number of periods of imprisonment in the past.  In other words, you are an experienced criminal offender who knew exactly what you were undertaking on this occasion.  Your offending must be met by principles of general deterrence, specific deterrence, denunciation, and a measure of protection of the community.  As I have said, you face a term of imprisonment for your offending on this occasion.
Personal Circumstances 
22	I turn then to your personal circumstances.
23	You are 32 years old and you were born on 16 March 1990.  Your parents were born in Lebanon and came to Australia in the 1960s.  Your father works as a project manager in a computer company and your mother is engaged in home duties.  You have two siblings who are both working professionals. 
24	You attended Erinbank Secondary School and completed your VCE.  After finishing school you worked with your father for some time and then worked in a warehouse.  More recently you have been working part time in a tool hire business and receive a partial Centrelink payment. 
25	You were married and lived between your wife and your parents in Bundoora and Broadmeadows.  You have been with your wife for over 13 years and you have four children aged 12, nine, six and four. 
26	You have had issues with drug abuse and you have been using ice on and off all your adult life.  I was told that more recently you have managed to curtail your drug use.  Prior to your remand you had been receiving counselling and support through the Office of Corrections and the Preston Mosque. 
27	You were remanded in custody after your arrest on these charges and spent over seven months in prison before you were granted bail, and then of course you returned to prison after the jury verdict.  You have now spent 229 days on remand by way of pre-sentence detention, excluding today.  I shall reckon that period as already served. 
28	I was told by Mr Thyssen that you have support from family and friends.  Your criminal history dates back to your early 20s.  I have summarised your history in assessing your moral culpability for this offending.  I will finish this topic by noting that the last offence before this offending was dealt with at the Heidelberg Court on 20 August 2019, the day before the offence was committed. 

Sentencing Submissions
29	Mr Thyssen, who appeared on your behalf, submitted that the effort you have made to change your life since the most recent grant of bail should be taken into account to mitigate your sentence.  Mr Thyssen submitted that you have re-established links with your religion, that you have gone back to work and you have worked on your family relationships. 
30	These are matters which I will take into account, but they cannot dominate the sentencing consideration.  Ultimately Mr Thyssen conceded that there is no remorse and submitted that only a sentence of imprisonment would be appropriate. At present your prospects of rehabilitation are guarded.  You have a long history of drug use and criminal offending.  I accept that you have made some effort to obtain counselling.  I was told that in the time you have most recently been on bail, that this has provided you with the opportunity to show that you have been able to comply with bail, that you have made an effort to address your drug use through counselling, and that you both work and receive the Newstart allowance.
31	 Mr Thyssen handed up the court order which shows that a community corrections order was imposed for earlier offending, from March and April of 2019.  The CCO was imposed at the Heidelberg Court on 30 March 2022.  As conditions of the order, you were ordered to complete 120 hours' work and I was told that you have completed about 80 hours' work; that you attended for supervision, drug treatment and counselling, and offender behaviour. 
32	Whilst this is not necessarily strong evidence of engaging in programs which would provide you with expertise and structure, it does provide the court with some encouragement that you have, at least, made the initial decision to guide away from drug use and criminal offending.  It is to be hoped that if you are released on parole, you may receive further assistance in this respect. 
33	Mr Dober, who appeared for the Crown, submitted that the only appropriate sentence is a period of imprisonment.  Mr Dober referred to the cases of Jackson, which was a sentence in the Victorian County Court, and Croughan in the Court of Appeal as potentially comparable cases to provide assistance on sentence. 
Analysis
34	I have read those cases and I note the sentences imposed in both of them.  In particular I have had some regard to Croughan, which was a case, as Mr Dober said, of an armed robbery conviction after trial where the offenders held up a schoolgirl using a knife.  The court in that case sought the total effective sentence of four and a half years imposed on Croughan.  He had appealed against the sentence on the basis that it was manifestly in excess.  The court said that the sentence was lenient and, but for Verdins, a significantly higher sentence would have been justified. 
35	Of course, I must not be overly influenced by the sentences imposed in other cases; rather I must take into account all of the circumstances of your offending and the matters personal to you, and arrive at the appropriate sentence in this case. 
Orders
36	Accordingly, I make the following orders: 
37	On the charge of armed robbery, you are convicted and sentenced to a period of imprisonment for 5 ½ years.  On each of the charges of possession of drugs of dependence you are convicted and sentenced to one month's imprisonment. 
38	I order the sentences in indictment K12630662.1B be served concurrently with the sentence of armed robbery.  I order that you serve a non-parole period of three years and six months before you are eligible for release on parole.  I declare the period of 229 days pre-sentence detention, not including today, reckoned as already served. 
39	Mr Thyssen, do you have anything to say about the disposal and forfeiture orders? 
40	MR THYSSEN:  No, Your Honour. 
41	HIS HONOUR:  All right.  I'll make those orders in chambers.  Mr El Masri, the sentence is five and a half years, with three and a half years to serve, taking off the seven and a half months that you have already done.  If you would be good enough to go with the prison officer now - Mr Dober - before you do, Mr Dober.
42	 MR DOBER:  I think Your Honour is formally required to give a 6AAA on the drug offences. 
43	HIS HONOUR:  But for the pleas of guilty on the two drug offences, I would have sentenced you to six weeks on each, both concurrent. 
44	MR DOBER:  As Your Honour pleases. 
45	HIS HONOUR:  Thanks for your attendance, Mr El Masri.  If you would be good enough to go with the prison officer now.  I'll adjourn. 
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