Director of Public Prosecutions v Al-Assady
[2016] VCC 1032
•20 July 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 11-01455
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED AL-ASSADY |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 June 2016; 15 and 18 July 2016 |
| DATE OF SENTENCE: | 20 July 2016 |
| CASE MAY BE CITED AS: | DPP v Al-Assady |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1032 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Contravention of Community Corrections Order – Community Corrections Order imposed for second time – Contravention by non-compliance – Fled jurisdiction – Cancellation and re-imposition of Community Corrections Order
Sentence:Convicted and sentenced to Community Corrections Order of 18 months’ duration with mandatory and other conditions – Fine on contravention charge $1,000 with stay of 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Solicitor for Public Prosecutions |
| For the Offender | Mr M. Gumbleton | Markotich Lawyers |
Pages 1 - 7
HER HONOUR:
1Mr Al-Assady, you are very fortunate indeed that you are not going to gaol today for contravening the community corrections order that you were placed on for a second time by His Honour Judge Gullaci.
2Annexed to the remarks that I will be making to you today will be a copy of the chronology of this matter which was helpfully provided to me by the prosecution, and a copy of the breach report will also be annexed to my remarks.
3However, in short, it was two months after His Honour Judge Gullaci imposed a second community corrections order upon you, in place of the first which you had breached through non-compliance, that you saw fit to escape the jurisdiction with the help of your father, remaining overseas for over 18 months.
4When you returned, you did not front up to Community Corrections or to the police in order to take responsibility for your offending, but you resumed living at home and worked at a car wash. You were arrested in April 2016.
5While I understand that your family were trying to help you to deal with your drug addiction and to remove you from negative influences by sending you out of the country, you and they flouted the law here. That is not acceptable.
6Your father is lucky that he has not been charged with a criminal offence relating to his actions. However, having heard from your sister and having considered the fact that you appeared to have reformed in the past years, I am prepared to give what will in all likelihood be your last chance to stay out of gaol. So please, stay out of trouble, stay in Victoria and stick to the community corrections order that I am about to impose. Now, in respect of the charge of breaching the community corrections order, you are convicted and find $1000. I will allow you three months to pay this fine or longer if you instruct your counsel that you need more time. All right? I will give you that chance to speak with him in a moment about that.
7In respect of the community corrections order which you breached, that community corrections order is cancelled and I propose to impose a new community corrections order. In doing so, I have taken into account that you completed 64 hours of 200 hours unpaid community work which was required in respect to the previous community corrections order, and I also factor in the level of your compliance with other aspects of this order.
8When you initially complied with the supervision aspect of the order, your engagement was satisfactory, but your attendance soon became sporadic, then non-existent. You were never monitored as required because of such non-compliance.
9I accept that you are now older, wiser and drug free. But you must be dealt with for the serious crime you have committed. In saying this, I have factored in that your role was not a major one in the offending and you were only 18 years old at the time.
10As you would know, I can only impose a community corrections order if you consent to the terms of this. So please listen carefully to what I propose.
11The community corrections order would run for 18 months and there would be the following terms attached to it.
12Firstly, the mandatory terms that apply to all community corrections order which are: you must not commit another offence for which you could be imprisoned during the time the order is in force; you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011; you must report to and receive visits from the Secretary to the Department of Justice or his or her delegate; you must report to the Broadmeadows Community Corrections Centre before 4 pm within two clear working days of today; you must let a Community Corrections officer know within two clear working days if you change in your address or job; you must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate; you must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.
13The conditions that will apply or would apply if you consent to the order are in addition to the mandatory terms are as follows:
14You must undergo 150 hours unpaid community work within the next 18 months. You must be under the supervision of a Community Corrections officer for a period of 18 months. You must undergo assessment and if necessary, treatment including testing for drug abuse or dependency as directed by the regional manager.
15You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager.
16Further, you must attend this court, the Melbourne Country Court, on Thursday 22 September 2016 at 9.30 am to be reviewed by me. You will be required to be attend for further reviews by me from time to time for the duration of the order. We will just see how that goes. However, I initially want to see you on 22 September 2016.
17There is a residual condition that I also wish to impose which is that you must surrender all passports and any other travel documents held by you to the County Court Registry immediately upon leaving this court room today and you are not to apply for any new passport or other travel documents for the duration of this order.
18Now, do you consent to the terms and condition of the proposed order?
19OFFENDER: Yes.
20HER HONOUR: Yes?
21OFFENDER: Yes.
22HER HONOUR: All right. I should tell you that if you do not comply with all of the requirements of this community corrections order, then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be resentenced in relation to the charge, in which case, you may well be sentenced to a period of imprisonment.
23I will regard a breach in the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the conditions of the order. Do you understand this?
24OFFENDER: Yes, Your Honour.
25HER HONOUR: Do you still consent to the order? Yes?
26OFFENDER: Yes.
27HER HONOUR: All right. It is just that we have to - you say to say something rather than nod, or else it is not picked up by the recording machines.
28All right, therefore in relation to the charge, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out. You can now leave the dock and approach Mr Gumbleton and he will assist you with the signing of that order. All right?
29MR DEVLIN: As Your Honour pleases.
30MR GUMBLETON: May it please the court. Thank you for that, Your Honour. The order has been signed.
31HER HONOUR: Yes.
32MR GUMBLETON: And my client has his passport and we will make sure that that finds its way to the registry before we leave court today.
33HER HONOUR: Yes, thank you.
34MR GUMBLETON: The only outstanding matter is the question of payment of the fine.
35HER HONOUR: Yes?
36MR GUMBLETON: On instructions, the submission is that it be by way of instalment.
37HER HONOUR: Yes.
38MR GUMBLETON: At $100 per month which would be a ten-month period if Your Honour will allow that time.
39HER HONOUR: Yes. The first instalment to be by when?
40MR GUMBLETON: A month from today?
41HER HONOUR: All right. So ‑ ‑ ‑
42MR GUMBLETON: Today is the 20th, is it not?
43HER HONOUR: A thousand dollar fine ‑ ‑ ‑
44MR GUMBLETON: August.
45HER HONOUR: ‑ ‑ ‑ to be paid by monthly instalments. The first payment to be made by 20 August 2016 and by the 20th of each month thereafter until the full amount has been paid.
46MR GUMBLETON: Yes, may it please the court.
47HER HONOUR: All right. Well, I vacate that aspect of my sentence and substitute the instalment order. Very well. All right. Well, the next business day to the 20th of any particular month, so apparently 20 August is a Saturday.
48MR GUMBLETON: Yes.
49HER HONOUR: So, perhaps if we just say by 22 August and on the 22nd of each month thereafter unless the particular date falls on a weekend in which case, the payment must be made on the next business day.
50MR DEVLIN: Thank you, Your Honour.
51HER HONOUR: Is that satisfactory?
52MR DEVLIN: That is sweet.
53MR GUMBLETON: That is one way of doing it or you can leave it as the 20th of each month which means he will have to pay before the weekend but both options are workable I should submit.
54HER HONOUR: All right. I think we will just leave it. I will express it in those terms so that that gives a little more time perhaps potentially for the payment to be made and no mistakes be made by Mr Al-Assady in ensuring that the payment has been made by the proper date.
55Now, I will just let you know, Mr Al-Assady, that ahead of every monitoring appointment, I receive a report from Community Corrections to tell me how you are going, all right?
56So, we will have a chat informally about how you are going. I hope to hear good news each time and it might be if after a few appointments, I think you are going well, then we will leave it at that and I will not require to see you again.
57But if it is bad news, we will have a pretty important chat about how you are going and obviously I want to make sure that you stay on this order and complete it successfully. So it is in your interest to follow it to the letter and I hope to hear good news when I see you on 22 September, all right?
58Yes, thank you. Anything further?
59COUNSEL: No, Your Honour.
60HER HONOUR: We will now adjourn.
Mohammad AL-ASSADY: Chronology
CR-11-01455
| Date | Event |
| 16 May 2011 | Original offence |
| 12 December 2011 | Sentence – Melbourne County Court – including a two year CBO |
| 6 March – 29 October 2012 | Breaches of CBO x 12 |
| 5 June 2012 | Warning |
| 30 October 2012 | Contravention of CBO proceedings initiated |
| 3 December 2012 | Charge sheet and summons filed |
| 27 December 2012 | Charge sheet and summons served |
| 6 February 2013 | Contravention hearing – CBO cancelled and CCO imposed for 18 months |
| 22 April 2013 – 14 May 2013 | Alleged contravention of CCO x 10 unacceptable absences 4 x failing to report and 6 x failing to perform unpaid community work |
| 23 January 2014 | Charge and warrant issued due to difficulties serving charge and summons |
| 24 April 2016 | Charge and warrant executed and bailed by Police to the Broadmeadows Magistrates’ Court on 26 April 2016 in error (should have been County Court) |
| 26 April 2016 | Charge and summons issued in relation to original 10 alleged unacceptable absences |
| 26 April 2016 | Charge and summons served |
| 17 June 2016 | Contravention Hearing (1st mention): adjourned for further plea and sentence |
| 15 July 2016 | Contravention Hearing (2nd mention) |
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