Director of Public Prosecutions v Afolayan (a pseudonym)

[2016] VCC 250

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01066

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOMINIC AFOLAYAN

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2016
DATE OF SENTENCE:	9 March 2016
CASE MAY BE CITED AS:	DPP v AFOLAYAN (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 250

REASONS FOR SENTENCE
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Subject: Criminal Law- Sentencing- Criminal Damage- Common Assault and Summary Charge of Breach of Family Violence Intervention Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Warren	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr S. Moglia	Victoria Legal Aid

HER HONOUR:

1Refilwe Afolayan[1], you have pleaded guilty to one charge of criminal damage and one charge of common assault and a summary charge of breach of Family Violence Intervention Order. 

[1] This is a pseudonym.

2The Family Violence Intervention Order (FVIO) was made on 5 January 2015 at Frankston Magistrates’ Court. 

3The charges are serious and that is reflected in the maximum penalty that I could impose and that is ten years’ imprisonment with respect to criminal damage, five years’ imprisonment for common assault and two years’ imprisonment for breach of the Family Violence Intervention Order. 

4I note that a Summary Charge No.2 being an unlawful assault charge has been withdrawn by the prosecution and that will be noted in the court records. 

5I will now sentence you as in accordance with the circumstances that were outlined by the prosecutor, Ms Warren and the plea opening is exhibited.

6I do not propose to go into great detail about the circumstances other than to note that the context of the offending was that in breach of a Family Violence Intervention Order you attended the home of your former partner on 1 February 2015, in the afternoon and demanded that she open the door.  When she did not do so, you then began to yell and punched a hole in the pane of glass and gained access to the home. (Criminal Damage) (Breach of Family Violence Intervention Order).

7It is accepted that when you entered the property your intention was limited to retrieving some property that belonged to you.  After you gained entry there was an argument between yourself and your former partner.  You were swearing and abusing each other and during that argument you spat in her face approximately four times. (Common Assault).

8Eventually, she was able to access Triple 0 at a neighbour’s house and police were requested to attend and they arrived a short time later.  By that stage you had left and you were not located and arrested until some four days later on 5 February 2015.

9Police interviewed you but you denied the offending and denied being present at the house on that day.  This was clearly not the case and the prosecution were able to rely on the evidence of your former partner but in addition, you cut yourself when you smashed the pane of glass and you left droplets of blood at the scene and that was matched to your DNA profile. 

10Mr Afolayan, your offending is serious.  Your actions on this occasion were in clear breach of the court order that had been earlier made in respect to the Family Violence Intervention Order and it involved further offending including an assault on a protected person. 

11I note in the past that you were dealt with in respect to an assault that occurred on 3 January 2015 involving your former partner for which you were charged with recklessly causing injury on 22 September 2015 and on that date you were sentenced to 15 months’ gaol.  That related to a very serious assault on her where she was struck by you and lost consciousness.

12In addition there were some driving related offences and the dishonesty matter that was dealt with on that occasion. 

13On 23 November 2015 you received a further term of four months’ imprisonment and that was ordered to be served concurrently with the sentence that I have just mentioned. 

14I understand that you served your sentence at the Melbourne Remand Centre; that was the subject of riots in July 2015 and for a period of four months after the riots you were held in very difficult circumstances.  Namely, you were in lock down and you were in your cell for 23 out of 24 hours each day. 

15You were not charged with any matters relating to the riot and no disciplinary action has been taken against you. 

16Since November 2015 you have been serving your sentence at Margoneet Prison. 

17You have been using your time in prison productively.  You have done an alcohol and drug rehabilitation course, an occupational health and safety course and a course in logistics and currently you hold a white card which enables you to work within the prison.

18Your offending, as was noted by Mr Moglia, was unjustified irrespective of the circumstances and the background and history of your relationship with the victim. 

19I note that that relationship had broken down and that in no way provides an excuse for your bad behaviour on this occasion.

20You had no permission to be present.  You were verbally abusive and spat at your former partner which would have been very humiliating and terrifying for her.  Your behaviour was completely out of line and needs to be marked by appropriate punishment. 

21Given the particular circumstances of your case, I consider that you are now in a position where a disposition directed at dealing with your underlying offending behaviour, that is your alcohol problems, and anger is needed to offer you the best prospects of your future rehabilitation and to provide for protection for the community. 

22It is obvious from reading your past criminal history that you have admitted that alcohol is a predominant feature that underscores a lot of your prior court appearances and convictions. 

23Over the time between 1 June 2007 and 29 October 2013, there have been nine court appearances and you have convictions for violence against a person, police, alcohol related driving offences, driving whilst disqualified, dishonesty offences.  As well, you have the subsequent court appearances that I have already referred to and I note you were drunk on the occasion that you assaulted your former partner on 3 January 2015. 

24Breaches of intervention orders are serious.  Family violence is a very serious problem in Australia and intervention orders can only protect victims of threatened violence if they are effectively enforced by the courts and any breaches must be appropriately punished. 

25I have noted the particular chronology of your matter and that following the offending you were remanded in custody on 18 June 2015. A committal hearing was conducted and prior to that date offers to settle your matter were made but rejected and then following the committal hearing after your former partner had been cross-examined on 8 September 2015 a further offer was made in writing which was rejected. 

26Effectively, the offer made in writing offered to settle your case was on the same terms as the charges on the plea indictment.  I have taken that factor into account because it did express a willingness on your behalf to resolve the matter at an early stage.

27I accept that your plea of guilty is an acknowledgement of your behaviour being inappropriate and it also demonstrates that you have facilitated justice.  You have not required the witnesses to come to court to give further evidence on your trial, especially the victim and there is real utility in your plea and the sentence will be discounted accordingly. 

28I have noted your personal history and background.  You are still a relatively young man.  You are only just 26.  You are from Sudan and your early life was characterised by conflict and violence.  Your own father was killed in the civil war.  You then went to Egypt with your mother and lived, as a very young child in a refugee camp where there was no school and violence was dominant.   You were there until you turned 16. 

29When you arrived in Australia you enrolled in high school but you left school relatively quickly, you had very little English and found it very difficult.  There is some work history in a factory.

30Alcohol seems to be a feature of your life since leaving school and I accept that a lot of your prior criminal history reflects your association with drinking to excess and conflicts with other men.

31I have had regard to the fact that since you have been in gaol you have taken some steps to address your underlying offending behaviour and that you have now done an alcohol and drug rehabilitation course but that was only of some 24 hours duration.  So, I only see that as the beginning of your alcohol and drug rehabilitation and the purpose of the order is to foster a continuance of your rehabilitation whilst enabling you to remain in the community.

32I understand that upon your release it is proposed that you will live with your mother who was present at the plea hearing and is very supportive of you.  I note that you are the eldest of 11 of her children, one of whom is deceased, and you enjoy a good relationship with her.  Currently she cares for seven dependent children at her home. 

33Mr Afolayan, in sentencing you I have to have regard to the purposes of sentencing and obviously you must be punished for your behaviour in a way that deters you from further offending and also in a way that deters others from undertaking this sort of offending. 

34In Victoria we are guided by what is called a guideline judgment of Boulton[2] and the courts now have available to them Community Correction Orders that can be utilised in cases where previously the offending may have attracted a medium term of imprisonment.

[2]Boulton v The Queen [2014] VSCA 342.

35It is my view that your current position is such that it is in the best interests of the community to capitalise on your commitment to try and change and to assist you further in the tentative steps that you have already taken. 

36So, with all that in mind, what I propose to do is to convict you and sentence you as follows:  You will be convicted and sentenced to 14 days’ imprisonment for the criminal damage charge, 8 weeks imprisonment for the common assault charge and, in respect of the breach of intervention order, you will convicted and sentenced to 8 weeks imprisonment to follow community corrections order of two years’ duration on the conditions I have already outlined. 

37I note that you did commit this offending whilst you were on bail and that is an aggravating feature but for the reasons that I have set out in my sentencing remarks, I do not propose to order that you serve these sentences cumulatively upon the sentence you are already undergoing.  It is my intention that they be served concurrently. 

38Finally, I make the compensation order sought of $160.  I note that that is consented to and I make the s.6AAA declaration. But for your plea of guilty I would have convicted and sentenced you to an aggregate term of imprisonment of 12 months to follow a CCO of two years on the same terms and conditions.  I think that covers everything.

39MS WARREN:  As Your Honour pleases.

40MR MOGLIA:  As Your Honour pleases.

41HER HONOUR:  Have we prepared the order?  The Community Correction Order – it is to start upon completion of the imprisonment term.

42MR MOGLIA:  As Your Honour pleases.

43HER HONOUR:  If you could just make sure that your client fully understands that Mr Moglia, that would be appreciated. 

44HER HONOUR:  Thank you both for your assistance.  I think for the future, Ms Warren, and for your instructor at the OPP, it is really important if you have a Sudanese accused that an appropriate interpreter be organised.

45MS WARREN:  Yes.

46HER HONOUR:  It has been much better today with the Sudanese/Arabic speaking interpreter.

47MS WARREN:  Yes.  No, I have certainly noticed the difference, Your Honour.

48HER HONOUR:  Yes - no, it is good.

49MS WARREN:  Yes.

50HER HONOUR:  So thank you for that.  Mr Daniel, thank you very much for your attention today.  It has been very helpful to the court and if you could just let Mr Afolayan know I wish him all the best for the future.  I hope that he takes this opportunity that I have given him today and utilises it.  He is still a very young man and he’s got a long way to go in his life and he’s got opportunities here that he can make the most of.  Is there anything he wants to say to me?

51OFFENDER (Through interpreter):  Thank you, Ma’am.

52HER HONOUR:  All right.  I think it is really important that he makes the most of this opportunity and that he’s more respectful to women in the future.  All right.  You understand that?

53OFFENDER:  Yes. 

54HER HONOUR:  All right.  He’s smiling. 

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