District Court New South Wales Medium Neutral Citation: R v Elarja [2022] NSWDC 738 Hearing dates: 7 June 2022 Date of orders: 7 June 2022 Decision date: 07 June 2022 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: An aggregate sentence of 4 years with a non-parole period of 2 years, 3 months: at [44]. Catchwords: CRIME — Violent offences — Aggravated assault with intent to take and drive a motor vehicle – Police pursuit SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation SENTENCING — Relevant factors on sentence — Circumstances of offence — Form 1 offences — General principles — Moral culpability — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Use of statistics SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Mental Health Act 2007 Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Bugmy v The Queen [2013] HCA 27 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Muldrock v The Queen (2011) 244 CLR 120 R v Attard [2020] NSWDC 443 R v Barker, R v Gibson [2006] NSWCCA 20 R v Fernando (1992) 76 A Crim R 58 R v Johnstone; R v Kelly Nelder [2020] NSWDC 152 R v Nateghi [2019] NSWDC 815 Category: Sentence Parties: Regina (Office of the Director of Public Prosecutions) Kazem Elarja (Offender) Representation: Ms C Murphy (Solicitor, Office of the Director of Public Prosecutions) Mr M Hunter (Counsel for the Offender) File Number(s): 2020/365179 Judgment 1. Kazem Elarja, who is now 23 years of age, appears for sentence having pleaded guilty to the following offences: 1. Aggravated assault with intent to take and drive a motor vehicle inflicting actual bodily harm contrary to s 154C(2) of the Crimes Act 1900 (H78209208 sequence 1). The offence carries a maximum penalty of 14 years imprisonment with a standard non-parole period of five years. 2. Police pursuit (H459331492 sequence 1) contrary to s 51B of the Crimes Act 1900. The offence carries a maximum penalty of three years imprisonment and an automatic licence disqualification of five years, and a minimum licence disqualification of two years. 1. An offence of resist of hinder police officer in the execution off duty, contrary to s 546C of the Crimes Act 1900 is to be taken into account on a Form 1 (attached to H459331492 sequence 1, Police Pursuit) in the way suggested by Spiegelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. 2. He pleaded guilty in circumstances justifying a 25% discount on sentence. 3. The sentence must take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 4. He has been in custody for some time, and it is conceded that a term of full-time imprisonment is required, and it is unnecessary for me to consider any alternatives. He was in custody from the time of his arrest after committing these offences on 24 December 2020 until he was granted bail on 29 July 2021. On 18 May 2022, he was sentenced to ten months with a five-month non-parole period, commencing 13 December 2021, expiring 11 May 2022, for offences committed on 12 December 2021 of take and drive a car without the consent of the owner, stalk and intimidate, driving with an expired licence, and possess prohibited drug. The aggregate sentence of ten months with five months non‑parole period was imposed for the first two of those offences. 5. It is common ground that in the exercise of my discretion and considering questions of totality and accumulation that the term of imprisonment to be imposed here may commence at any time between 7 April and 7 September 2021. As I indicated to the parties during the course of submissions, I propose to commence the sentence on 7 July 2021. There was no dissent from that proposition. 6. The agreed facts, which were amplified by a video taken by CCTV footage of the first offence, show that the victim of the offence is a man named Shann Chain. Mr Chain bought a. F80 BMW M3 competition car in 2018. He decided to sell it, and he advertised it on carsales.com on 23 December 2020 for $117,000. Someone contacted the victim and expressed an interest, and arrangements were made to meet at the BP service station at Marulan on the evening of 23 December 2020. 7. The victim asked his friend, Mr Carter, to accompany with him. After some discussion via messages with the person who was ultimately shown to be the offender, they arrived at Marulan late in the evening. Mr Carter was driving his own car, and the victim was driving the BMW. 8. The offender approached the victim and Mr Carter. He was wearing a hooded jumper, a hat, and a face mask covering, it being during the COVID pandemic, and there were presumably restrictions in place and mask requirements. They spoke about the car. 9. The offender had said that he was going to come with a mechanic, but he had not done so. The offender got in the car seat of the BMW, and the victim stood beside him in the driver's doorway. He was concerned about the offender's behaviour. The offender, apparently, told the victim to get in the front seat. They agreed on a price of 110,000. 10. Then the victim is shown on CCTV footage getting out of the passenger side and going around towards the driver's side door, which was open. As soon as he approached the door, the offender reversed the car at speed, and the victim was dragged along the car and then flung into the air, landing on the concrete about 20 metres away. 11. The offender drove off at speed, taking the BMW, obviously, without his permission. 12. The victim was convulsing on the ground. Mr Carter approached him and called 000. He suffered serious injuries, including abrasions to the forehead, swollen right eye, lacerations to the rear of the skull, a large haematoma at the back of the head, arm and leg abrasions, right fracture of the parietal bone, right subdural haematoma, small volume bilateral subarachnoid haemorrhage, and effacement of the majority of sulcal CSH spaces, suggesting increased intracranial mass effect. 13. He was transferred to Canberra Hospital from Goulburn Hospital and discharged on 31 December 2020. The victim suffered a traumatic injury and was unable to work for six weeks. There is no evidence as to any further sequelae. 14. Just after midnight, police saw the offender travelling in the BMW at 200km/h on the Hume Highway. As the vehicle came closer police checked the speed at 188 km/h. Police activated the warning lights and pursued the vehicle, but he did not stop. They pursued him for about 2 kilometres before discontinuing due to the high risk. Police estimated he had been doing about 230km/h in light to moderate traffic and he was last seen at 12.14am. 15. Shortly after police saw him parked near a truck in the breakdown lane on the side of the Hume Highway. Police pulled in front of him and activated warning lights. As they got out of the car, the offender accelerated out onto the highway, and he began driving at high speed, weaving in and out of traffic. Again, police did not engage in a further pursuit due to the risk, presumably. 16. Ultimately, about a kilometre further up the road, they saw the car stopped in the breakdown lane. They yelled, "Police. Get out of the car" andtook hold of his right arm. He lunged away. Police repeated to the offender, "Get out of the car and stop resisting." They told him to turn around, put his hands behind his back, and that he was under arrest. He attempted to, again, pull away and twisted his arm in an attempt to free it. He continued to resist both officers who were trying to restrain him. They said, "If you don't relax and allow me to cuff you, you'll be sprayed," and they held a can of OC spray in front of him. He then relaxed and allowed police to handcuff him. 17. Licence checks showed that he was not to drive prohibited vehicles, which this was, and that he must display P plates. He spoke to the policeman as he was getting into the police car and said, "What did I do?" The policeman said, "You carjacked someone and then had a police pursuit." The offender said, "He's got insurance. He'll get his money back." The policeman said, "Does that make it okay?" He said, "I didn't even hurt him." Then as for the chase, he said, "It wasn't that bad. I wasn't going that fast." 18. There was a further conversation with the police back at the station. He was asked about what sort of BMW it was. He said, "V6, 300 kilowatt. The bog one, fast. That car could do 280." He said, "Mate, I didn't mean to hurt him. I had no intention. And, I asked him about 100 times, 'Is this car insured?' You know, no way did I want to hurt that guy." 19. His record includes matters dealt with at Fairfield Local Court in May 2020 by community corrections order, namely possess prohibited weapon, dealing with proceeds of crime, resisting officer, and supply a small quantity of drugs; in addition to the subsequent offences to which I have already referred, at [6]. 20. There is a sentence assessment report, and the subjective material is set out in a number of psychological reports from 2008 and 2011, as well as mental health reports from 2020 and 2022, and a report of the consultant psychiatrist, Dr Gerald Chew dated May 2022. 21. The sentence assessment report, records that he claims to have no recollection of the offences, which he attributed to his intoxication and mental instability. 22. He had been admitted to the hospital for mental illness in May 2020, when he presented with symptoms of psychosis in the context of heavy cannabis use. He acknowledged that he can act aggressively when he was mentally unwell, and although he claimed to have no recollection of his driving offence, he acknowledged that it put the safety of the victim at risk. He was ready to undertake intervention. He was assessed as being at medium to high risk of reoffending. 23. His girlfriend, who he has known for three years, and has been dating for 10 months, speaks favourable of him in her affidavit dated 2 June 20222, She acknowledges his deteriorating mental state. She expresses a willingness to assist in his rehabilitation as outlined in the report of Dr Chew dated 6 May 2022 24. The offender did not give evidence. Although assertions to the author of the sentence assessment report and the psychologists, psychiatrists may be treated with some caution, there is a well-documented history of mental health difficulties over some years. 25. As Mr Hunter counsel for the defendant puts, his criminal history commences at the time of his first psychosis being diagnosed, leading to his admission to Emergency at Westmead Hospital, having been brought in by police in April 2020. 26. He had been assessed by paediatricians when he was nine and ten years of age with oppositional defiant disorder, ADHD, and family and social issues angry outbursts, and an unsettled family environment. 27. A subsequent assessment by the mental health nurse in September 2020 suggested schizophrenia or bipolar affective disorder, which was a mental illness as defined in the Mental Health Act 2007, but not such as to require scheduling. 28. There was a further assessment in March 2022. 29. He had been subject to a s 32 order in November 2020, but he had not received any mental health assessment or treatment while he was in custody last year. In a Justice Health report dated 11 March 2022 following a mental health assessment, he denied a range of psychotic symptoms. There was an admission to Cumberland Hospital in April 2020 in which he presented with auditory and visual hallucinations and asserted that he knew a secret information involving an unknown billionaire and that he would be shot if the secret was discovered. He believed that specific colours signal warnings to him. He says he is being sent messages from the TV. He reported perceptual disturbances and hearing people whispering and talking about him. The clinical impression of the reporting clinical nurse was outlined as follows: Mr Elarja has a documented diagnosis of First Episode Psychosis. His history could be indicative a prodrome for Schizophrenia or Bipolar Affective Disorder. Medical Records indicate that a diagnosis Bipolar Affective Disorder should not be ruled out and requires ongoing monitoring [He] was commenced on antipsychotic medication … in April 2020. He did not maintain full compliance with the medication and it was completely ceased whilst in custody until mid 2021. [He] was recommenced on antipsychotic medication … when reassessed by Custodial Justice Health on 28th December 2021 ... and was placed on the 'waiting list' for psychiatrist review. 1. In the psychiatric report of Dr Chew dated 6 May 2022, he reported a heavy cannabis habit prior to his incarceration and recounted a disruptive upbringing with domestic violence perpetrated by his father at home. His parents ultimately separated. He experienced difficulties at school following his diagnosis of ADHD. 2. Dr Chew said that he had a clearly documented psychotic illness with gross positive psychotic symptoms requiring psychiatric hospitalisations. He expressed a view that there may be a direct nexus between his mental issues and his offending behaviour. He outlined a treatment plan which he thought would be appropriate. 3. As to the objective seriousness of the carjacking offence, the parties referred to the well-known constellation of factors set out by Howie J in R v Barker, R v Gibson [2006] NSWCCA 20 at [63], namely It seems to me that for an aggravated offence involving the offender being in company the following factors may be relevant to an assessment of the objective seriousness of the offence: whether the offence was planned; the number of persons involved in committing the offence and their conduct; the type of threats made; the degree of violence displayed; the number of perons in the vehicle at the time of the offence; the degree of fear instilled in the victim; the period over which the vehicle is used; damage to the vehicle (if not giving rise to a separate charge); the place and time the offence is committed (for example whether at night or in an isolated area); the special vulnerability of the victim; and the motive for the commission of the offence. The list is not intended to be exhaustive. 1. The carjacking offence clearly showed a degree of planning in that he contacted the victim through a website, arranged to meet at the location at Marulan. He made enquiries as to the value of the car and the availability of insurance, which he, for some strange reason thought would somehow be relevant. He was reckless in causing serious injury to the victim in carrying out the pre-planned theft of the vehicle. It is true, as Mr Hunter said, that he was not armed, and there was no threat of violence, but there was the infliction of violence. Mr Hunter agrees with the Crown's assessment, as do I, that the carjacking offence falls in the mid-range of objective seriousness. 2. The police pursuit was obviously a very serious and sustained piece of high-speed driving on a highway. Although the traffic was described as light to moderate, driving at such speed, as set out in the agreed facts, clearly indicates a serious offence. Again, I accept the parties' common position that the offending is just below the mid-range of objective seriousness. 3. The Crown acknowledges, from the subjective material, that his rehabilitation would be heavily reliant upon abstinence from illicit substances and use of medication. The Crown accept that his prospects of rehabilitation are guarded, at best, and does not oppose a finding of special circumstances, noting his mental health history. However, the Crown maintains that a non‑parole period should reflect the gravity of the offending. 4. The expressions of remorse provided to Dr Chew are, as I said, not affirmed by the offender in evidence, and they are treated with some considerable caution. Mr Hunter acknowledges that the offender was on conditional liberty, namely the community corrections order, at the time of the offending, but clearly, that does not increase the objective seriousness of the offending itself. His reasonably limited criminal record does not disentitle him to a measure of leniency. 5. The evidence as to what is said to be a Bugmy v The Queen [2013] HCA 27 and R v Fernando (1992) 76 A Crim R 58 point is not persuasive in my view. Mr Hunter asserts a childhood involving exposure to repeated domestic violence, parental substance abuse, and parental separation and his mother's hospitalisation, but none of those lead, in my view, even if accepted, to a finding of a deprived background or background of disadvantage in the way that the term is used in cases such as Bugmy and Fernando. 6. However, his well-documented psychiatric illness is a matter which, as Dr Chew acknowledged as having a causal connection, is something which leads to a reduction, to a modest extent, in his moral culpability, in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 terms. Correspondingly, general deterrence, retribution, and denunciation are slightly lessened: Muldrock v The Queen (2011) 244 CLR 120. 7. His youth and his relatively limited criminal history are factors in his favour when assessing the prospects of rehabilitation and likelihood of reoffending, but as the Crown has pointed out, it is largely dependent upon his abstention and engagement in intensive rehabilitation programs. 8. I have considered such details as are available for all 21 cases listed on the JIRS website for the carjacking offence. The parties have been given the opportunity to consider three of those 21 decisions which have been reported, namely R v Johnstone; R v Kelly Nelder [2020] NSWDC 152 (Lerve DCJ), R v Nateghi [2019] NSWDC 815 (King SC DCJ, ) R v Attard [2020] NSWDC 443. As Mr Hunter puts, they are, in the case of Nateghi and Attard more serious factual circumstances than the present. 9. It is acknowledged that the statistics and the limited details behind them, beyond those cases which are available, are but a broad guide to the sentencing that had been imposed in the particular objective and subjective circumstances of other cases, but they are of some assistance. 10. The orders that I will make are: 1. The offender is convicted of each offence. 2. Taking into account a discount of 25% for the pleas of guilty, the indicative sentences are: 1. H78209208 Sequence 1, three years and four months, with an indicative non-parole period of two years and one month. 2. H459331492 Sequence 1, taking into account the Form 1 matter (H459331492/6): 18 months. 1. I impose an aggregate sentence of four years, commencing on 7 July 2021. 2. I impose a non-parole period of two years and three months, expiring on 6 October 2023. 3. I find special circumstances. 4. In relation to the police pursuit offence, I impose a licence disqualification for four years. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2023