Director of Public Prosecutions v Abdou

[2020] VCC 568

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -13-02139

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHMMED ABDOU

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2020
DATE OF SENTENCE:	6 May 2020
CASE MAY BE CITED AS:	DPP v Abdou
MEDIUM NEUTRAL CITATION:	[2020] VCC 568

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Contravention CCO – Breach by way of non-compliance - No further offending – Complex psychiatric issues - Need for treatment and rehabilitation

Sentence:Contravention proven – No further order made in relation to this charge – Confirm CCO – Request that unpaid community work be suspended in favour of treatment and rehabilitation

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Atkinson	Solicitor for Public Prosecutions
For the Accused	Ms S. Vardy	Balmer and Associates
For Corrections Victoria	Ms B. Bushe	Community Correctional Services

HER HONOUR:

1Well, I am not impressed; on the one hand that so little has been done that I asked to be done over the past 12 months.  I understand that there have been some intervening events that have been most difficult for Mr Abdou, but part of the signs that he is rehabilitating are his ability to deal with those events in a more resilient manner than in the past, and I would have hoped that he would have done all that I had asked of him if he was concerned that he should not return to gaol.

2On the other hand, there is very little in the way of even an allegation of further offending in that past 12 months, and what little material there is indicates that Mr Abdou is actually working and he is apparently drug free, although I do not have anything to support that other than the submissions on instruction from Ms Vardy, who has made valiant attempts on Mr Abdou's behalf to obtain a benevolent outcome in these proceedings which I hope Mr Abdou appreciates that. 

3What is sought is that the breach be found proven and that there is simply a variation of the community corrections order for such time as I see fit, and there should be a removal or reduction in the hours of unpaid community work on the order. 

4What I am minded to do, in view of the difficulties that Mr Abdou has experienced, in view of the fact that he has served a substantial term of imprisonment in relation to this offending and the unusual way in which His Honour Judge Parsons, with all due respect, formulated the sentence in the first place. 

5What I am minded to do is take the bold suggestion that has been made by
Ms Vardy, insofar as I would find the breach proven, make no further order.  The current order is due to expire in February 2021 and I will simply confirm that order.

6But I can indicate that if Mr Abdou goes to the psychiatric appointment and can indicate to me on the next occasion that I see him, which I hope will not be on a further contravention, but can indicate that he has done all he can to comply with the community corrections order, understanding that a component of the unpaid community work was to be traded off, as it were, against treatment. 

7What I would be looking at rather favourably in the future is for Mr Abdou to come back to court and seek a variation of that community corrections order, so that if he needs more time, then that order would be extended to give him more time, and I would look favourably upon a submission to reduce, perhaps even reduce to simply the treatment hours, the unpaid community work. 

8So, it is going to be up to Mr Abdou as to whether he gets a favourable variation of the order down the track.  It is going to be over to him, over to you, Ms Vardy, and all the best, to come back to court if you feel in a strong position to ask for a variation of the community corrections order, and I will indicate to Community Corrections - I was hoping they were going to be there - but that I would ask that there be a suspension of the unpaid community work requirement whilst Mr Abdou is seeking out and obtaining his psychiatric treatment. 

9I will not be so concerned if he has not done unpaid community work; if he is doing his job, going to work, supporting his wife, and hopefully family coming along in the future, and if he is doing what he has to with the treatment conditions of the community corrections order, then I will look favourably on probably getting rid of the unpaid community work altogether, all right?  Because I want Mr Abdou to actually get treatment.  I understand things are complicated, but he has got to understand that he will find things less complicated if he gets with the program. 

10But as I say, he has done pretty well in the last 12 months, all things considered, by not committing any offences of the nature that he committed in the past, and although he should not have done anything, and it might be he has not - I do not know - because he has not declared a course in relation to further offending, but for him, and given what he has come from, that is fairly impressive.

11I think his letter is impressive and I hope you mean what you say about all that, Mr Abdou.  Do you mean what you say about the letter?

12OFFENDER:  Yes, Your Honour.

13HER HONOUR:  All right.  So I find the breach proven and make no further order in that regard.  I will confirm the community corrections order previously imposed and I will communicate with Community Correctional Services that I would ask that the requirement to do the unpaid community work be suspended in favour of the treatment conditions being observed.

14I also have indicated that I would look favourably upon a variation of the order so as to eliminate or vastly reduce the unpaid community work down the track if Mr Abdou is doing all he can in relation to the other requirements of the order.  All right, now do you want to explain that to Mr Abdou.

15MS VARDY;  Yes, Your Honour, I might just have a moment to explain it.  I am not sure what - he is currently residing in Hoppers Crossing, so whether the order to attend upon Corrections might be properly varied to Werribee?  I am not sure what it currently is for him, otherwise he can attend wherever he was attending and arrange with Corrections to transfer that order.

16HER HONOUR:  Well, you better not.  I mean, has he got a licence at the moment? 

17MS VARDY:  No, no.

18HER HONOUR:  I would like him to go to whatever the local one is.

19MS VARDY:  He is residing in Hoppers Crossing, and I would think that Werribee would be the closest. 

20HER HONOUR:  Well, I think that people will not be actually going anywhere at the moment, they will be telephoning. 

21MS VARDY:  Of course, of course, of course.

22HER HONOUR:  So, if he reports to where he was reporting two days from today and the confirmation of the order will be communicated. 

23MS VARDY:  Yes, Your Honour. 

24HER HONOUR:  All right.

25MS VARDY:  Yes, Your Honour.

26HER HONOUR:  Yes, thank you.  Ms Bushe, you are back, are you?

27MS BUSHE:  Yes, Your Honour.  Sorry about that.

28HER HONOUR:  Sorry, what happened?

29MS BUSHE:  My connection just dropped out, so I am having to use my ‑ ‑ ‑

30HER HONOUR:  All right.  No, all right.

31MS BUSHE:  Yes.

32HER HONOUR:  All right, well thanks for that.  Ms Bushe, what I have done is, because there is not been anything too significant in the last 12 months in terms of reoffending and maybe nothing at all, because I am not sure of what
Mr Abdou intends to do in relation to offences which are alleged to have been committed in the last 12 months, so I cannot really factor those in, what I have just said is that I am persuaded to find the breach proven and make no further order in relation to the breaching offence, and to confirm the community corrections order previously imposed. 

33I have indicated also that in view of Mr Abdou's complicated psychological/psychiatric issues, and the need for the treatment conditions, in my view, to take precedents.  I would ask that Community Corrections suspend any requirement to complete unpaid community work, because I want Mr Abdou to concentrate on the work that he is doing for income and also the treatment conditions.

34What I have said to counsel is that if he does do well under the community corrections order, that is supervision and the treatment and rehabilitation conditions, I would look favourably, in all likelihood, to an application for a variation of the community corrections order in the future, which sees him perhaps not being required to do the unpaid community work at all, but that will be very much up to him and how he goes in the meantime with the other requirements of the order.  So, the thing is he should report to you within two days; is that correct, Ms Bushe?

35MS BUSHE:  Yes, that is correct, Your Honour.

36HER HONOUR:  All right, so he needs to report by 4.00pm beyond Friday, is that right?  Yes. 

37MS BUSHE:  Your Honour, is he reporting to Broadmeadows Community Corrections or Werribee? 

38HER HONOUR:  What is the last one that he is supposed to have been reporting to?

39MS BUSHE:  So, he had requested to be transferred to Reservoir and that was honoured, so that is where he was reporting prior to the offending and being ‑ ‑ ‑

40HER HONOUR:  I see.

41MS BUSHE:  - yes, so I am not sure.  If he is residing in Hoppers Crossing, Werribee CCS would be the closest.

42HER HONOUR:  Sorry, Reservoir CCS, did you say, would be the closest?

43MS BUSHE:  Werribee if he is (indistinct) in Hoppers Crossing, yes.

44HER HONOUR:  Right.  And so do I need to do anything in terms of the order to change the reporting, the office to which he needs to report, or is that just done sort of administratively?

45MS BUSHE:  So, you would need to direct him to report to Werribee Community Correction.

46HER HONOUR:  All right.  All right.  Well look, I will make that direction, that within two working days, clear working days, that is by 4 pm on Friday,
Mr Abdou is to report to Werribee Community Corrections, and they will be notified of what has happened today.  And I take it that at the moment all communications are via telephone; is that right?  There is no need for him to actually visit the office?

47MS BUSHE:  No, there is no need for him to visit the office.  And also, community work is currently suspended, so there is no expectation that he will be required to attend community work.

48HER HONOUR:  Right.

49MS BUSHE:  And all the treatment and rehabilitation is also occurring via video and, in some instance, via the telephone. 

50HER HONOUR:  All right. 

51MS BUSHE:  So, there is no requirement for him to physically attend appointments.  However, some of the community correction services have different policies in terms of the reporting requirements; some offenders have to go into the office to physically report.  However, in some cases, they do not, so it is on a case by case basis.

52HER HONOUR:  All right.  Well, look, then would - and the best thing would be for Mr Abdou to ring Werribee today or - I mean, what should he do?  Do you turn up or ring?

53MS BUSHE:  So, I suggest that he contacts Werribee CCS via phone to find out what the requirements are for him.

54HER HONOUR:  All right.  I suppose they will not even know about him if he has been transferred there today, effectively; so, would it be best to leave that till tomorrow to suss out what he is supposed to do?

55MS BUSHE:  Yes, Your Honour, that sounds like a good idea.

56HER HONOUR:  All right then.  So, Mr Abdou needs to telephone Werribee Community Corrections tomorrow, he needs to either report in by phone or personally once he finds out from the Werribee Community Corrections office what they require him to do, so can you make that clear to him, please?

57MS VARDY:  Yes, Your Honour.  Certainly, Yes, Your Honour. 

58HER HONOUR:  Very well.  All right, is there anything further form your point of view?

59MS VARDY:  No, Your Honour.

60HER HONOUR:  Mr Atkinson, anything further?

61MR ATKINSON:  No, Your Honour.  I just wondered about any judicial monitoring or something like that, just to keep an eye on what is happening?

62HER HONOUR:  Look, I think Mr Abdou is a grown man now, he is - I mean, I know that that was tried in the past, I just think he is either going to sink or swim, and it is up to him. 

63MR ATKINSON:  That is a matter for Your Honour, yes.

64HER HONOUR:  But I am not going to require judicial monitoring for the time being, he just needs to take responsibility, he says that that is what he is doing, there are some positive signs there, and I just want him to go from strength to strength if he can, otherwise I will be dealing him again. 

65MR ATKINSON:  Yes, thanks, Your Honour.

66HER HONOUR:  All right.  Yes, thank you.  Anything further?

67MS VARDY:  No, Your Honour.

68HER HONOUR:  All right.  Yes, thank you.  Thanks everyone, we will now adjourn.

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