Director of Public Prosecutions v Ajak
[2013] VCC 748
•31 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01371
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NEDE AJAK |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 March 2013; 6 May 2013 (for mention); 31 May 2013 | |
DATE OF SENTENCE: | 31 May 2013 | |
CASE MAY BE CITED AS: | DPP v Ajak | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 748 | |
REASONS FOR SENTENCE
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Catchwords: Sentencing, breach of Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Guesdon | Office of Public Prosecutions |
| For the Accused | Mr B. Keating | Slink & Keating |
HER HONOUR:
1 On 27 February last year I sentenced you to a Community Corrections Order for two years for what I regarded as serious offending. I explained my reasons about that at the time and I am going to go back over some of them shortly. However you breached that Community Corrections Order in several ways.
2 First, some three weeks later, you failed to attend the Magistrates' Court to answer bail on other charges, this being an offence. Secondly, over the following nine months you did attend and comply with some of what was required, but with ongoing unsatisfactorily explained absences. Thirdly, in July last year, you committed further offences namely driving whilst disqualified and stating a false name to police. Then, after a warning that if you failed to attend for supervision on 5 November you would be breached, you did fail to attend. Your explanation is that you had to work that day and the next, and had told a community corrections officer that when the date was being set.
3 By breaching the Community Corrections Order you have committed an offence that is punishable by up to three months' imprisonment.
4 I am urged by Mr Keating on your behalf to nevertheless confirm the Community Corrections Order which is one of the orders I can make, that is to confirm it. He argues on your behalf that given that I should confirm the Order for the following reasons.
5 First, you have completed a substantial part of the unpaid community work, that is more than 128 hours out of the 150 hours that was imposed, and secondly that you satisfied SEADS by attending three or four appointments about alcohol misuse, and satisfactorily explained that you accepted your goals in that regard.
6 Next, because you are still under 25 and also have ongoing family support and I note in that regard that your mother and your girlfriend are present in court. Further, because a subsequently imposed suspended sentence is another sanction on your behaviour which would run concurrently with an ongoing Community Corrections Order if I confirmed that. Lastly, there is still utility, I take that to mean both for you personally and for the community, in your remaining on a Community Corrections Order so as to access further programs aimed at reducing the chances of you re-offending.
7 I have taken all of these matters into account. I have also taken into account that you have apparently been off work since an injury at work in January of this year. Although that does not seem to be a condition requiring significant current medication but I am told that you are having some ongoing physiotherapy and do not yet feel able to return to modified work duties notwithstanding that your general practitioner has certified you as fit for them since mid April.
8 I am certainly aware that you are still under 25 and that rehabilitation should be significant in your sentencing. However that has been diminished due to your criminal history, which has been a growing criminal history, some being incurred since I sentenced you.
9 What I also take into account is the seriousness of the original offending. I explained my reasons at some length when I sentenced you last February, and indeed the very facts of the incident itself speak for themselves. Particularly I take into account that in committing the offence of attempted armed robbery and recklessly causing injury to the driver, you held a broken bottle to the throat of a taxi driver and threatened him in attempting to rob him. This was after he had agreed to keep driving you a long distance without your paying a required deposit on the fare, and in circumstances where it became apparent to the court, although not to the taxi driver at the time, that you had actually given him a false address so that there was not a prospect of someone at the other end being able to pay the fare.
10 As I did at that stage I again take into account your relatively young age, your background, the ongoing family support from your mother, from your siblings and from your girlfriend, your eventual plea of guilty although I did not find much remorse on the last occasion and have not changed my mind since, and the fact that you had spent 18 days in custody before obtaining bail which I did accept would have been a salutary lesson for you. On that occasion the prosecution also did not press that imprisonment was necessary in the circumstances.
11 Mr Ajak, what your history reflects, both at that stage and since I imposed the Community Corrections Order is that at each stage where you have had the opportunity to show that you accept the need to take responsibility for your actions and face up to the need to prioritise the serving of a sentence, the punishment imposed by the court in respect of these offences, and the need to do something you do not actually want to do, you have decided to do otherwise. In other words you have not accepted the need to prioritise the serving of your punishment and the need, at times, to do what you do not want to do.
12 From the failure to answer bail only weeks after the Community Corrections Order was imposed, to choosing work over what the community corrections officer had imposed as a mandatory attendance on 5 November 2012, to not attending court here on the first day of this breach hearing was listed.
13 Whilst you give excuses for some of those, and claim no memory of why you did not attend to answer bail, you were given the opportunity at each of these occasions to show that you could stand up and accept responsibility, but on each occasion you failed to do so. You were given opportunity under the Community Corrections Order I imposed to avoid the more stern punishment of imprisonment, but it seems that that was not enough to teach you to face the consequences of your actions.
14 In my view further time on a Community Corrections Order would not sufficiently reflect to you, or the community, the seriousness of your original offending nor the chance you were given under the community corrections order. In these circumstances I am not going to confirm the order. My decision is to cancel the Community Corrections Order and re-sentence you for the original offences.
15 I am satisfied, for all the reasons I have summarised, that no sentence other than imprisonment is now appropriate. In setting how long and whether it should be wholly or partly suspended, I do take into account that you should get credit for those parts of the Community Corrections Order you did complete. That was substantial completion of the unpaid community work, and also a satisfactory attendance at the program as required originally by SEADS and also for attending for supervision on the majority of occasions although with spasmodic unsatisfactorily explained absences.
16 I also take into account the mitigating factors as well as the aggravating ones that I did at the time of originally sentencing you last year, having regard to the seriousness of the offence and to your general circumstances, from your personal background to what your living circumstances were at the time, and taking into account your plea of guilty.
17 In my view, taking all of those matters into account, the sentence I now impose should be as follows and I ask you to stand for this. In re-sentencing you, Mr Ajak, on the charge of attempted armed robbery you are sentenced to a term of imprisonment of five months. On the charge of recklessly causing injury you are sentenced to one month imprisonment, which I direct be served concurrently with the five months. That makes a total effective sentence of five months imprisonment.
18 I declare 18 days of pre-sentence detention as reckoned served, and I direct that two months of that sentence be suspended for 12 months. That is, I am partially suspending the five month sentence I impose. Eighteen days comes off at the start. You have to serve what is in effect approximately two and a half months, and then two more months of imprisonment will be suspended for the period of 12 months.
19 I am well aware that that suspension overlaps with the duration of a suspended sentence imposed in the Magistrates' Court. In fact what I impose will expire before then, and I have done that deliberately so that there is a staggered set of goals you should set out to achieve to keep yourself out of gaol in the future. But I am obliged to explain to you the consequences of partially suspending that sentence.
20 As to that two months that I am suspending, for the 12 months after you serve the time I require you now to immediately serve, that two months of imprisonment will hang over you, and if you commit any other offence that could be punished by imprisonment, even if a court did not choose to impose imprisonment, you could expect to come back in front of me. Unless exceptional circumstances have arisen after today that would make it unjust, you could expect to have to serve that further two months imprisonment.
21 Just to make clear, offences punishable by imprisonment include a range of offences which you have a history now of committing, from anything to do with violence including recklessly or intentionally causing injury or, of course, anything to do with robbery such as the attempted armed robbery, or theft. Even stealing a can of soft drink from a shop is theft and is punishable by imprisonment. Also very specifically, driving whilst disqualified, driving under the influence of alcohol, and some other associated driving offences.
22 Now I ask do you understand the effect of a suspended sentence?
23 PRISONER: Yes, Your Honour.
24 HER HONOUR: All right. I ask you to take a seat while I just check that I've covered everything I need to in this regard.
25 MS GUESDON: Just the actual contravention itself - in terms of - - -
26 HER HONOUR: Yes. I have not separately imposed a penalty for that. I find the breach proved. I did consider whether to impose imprisonment. If I had I would have made it to be served concurrently with the sentence I am imposing and in the circumstances I am not going to do that. I find the breach proved, and having re-sentenced as I have I am not going to impose a further sentence, but thank you for reminding me about that.
27 It is also my view that no declaration under s.6AAA is required this time around. I made one when I originally sentenced, and the sentence I impose now takes into account, as I have tried to outline, the areas of compliance with the Community Corrections Order together with all the aggravating and mitigating factors originally, which at that stage included a plea of guilty without much remorse. Unless persuaded otherwise I do not believe a s.6AAA sentence here is required because it does not really fit the situation.
28 MS GUESDON: No.
29 MR KEATING: It doesn't really.
30 HER HONOUR: All right. In that case I will ask that - that should bring the need for the community corrections officer's attendance to an end and I'll ask that that video link be finalised, disconnected. Thank you for your attendance. While that's occurring is there anything else that needs to be raised? I did ask about medication or anything specific to go - there doesn't seem to me I've got anything specific to note as a custody note. I've really got the most minimal explanation of what injuries are involved, and no doubt there'll be an assessment to take into account any medical conditions.
31 MR KEATING: Yes I don't think there's any custody management issues.
32 HER HONOUR: No. All right in that case I'll ask that Mr Ajak be taken into custody please.
33 MR KEATING: Thank you.
34 HER HONOUR: All right I'll just adjourn the court generally at the moment because there will be a day next week and I'm not sure of the timing yet. Thank you.
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