Director of Public Prosecutions v Anastasi
[2019] VCC 1544
•12 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00898
Indictment No. J10094144
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER ANASTASI |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 29 August 2019 | |
DATE OF SENTENCE: | 12 September 2019 | |
CASE MAY BE CITED AS: | DPP v Anastasi | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1544 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Attempt to pervert the course of justice –– Relevant criminal record - Deferral of sentence – History of drug addiction (Ice) – Excellent self-engagement with Narconon program - Impressive rehabilitative progress
Sentence: Convicted and sentenced to a 12 months adjourned undertaking to be of good behaviour for that period – Payment of $500 to Oxfam Australia
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Watson | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr C. Piesse (Plea) Mr A. Isaacs (Sentence) | CPL Lawyers |
HER HONOUR:
1 Alexander Anastasi, you have pleaded guilty to two charges of attempting to pervert the course of justice which has a maximum penalty of 25 years’ imprisonment.
2 I must take into account the maximum penalty in sentencing you, as this reflects the seriousness with which Parliament regards the offence.
3 You were 21 years old at the time that you committed the offences.
4 You had been arrested in relation to a burglary on 29 July 2016 and you were charged on summons in relation to the matter to appear at the Melbourne Magistrates’ Court on 23 November 2016. Ultimately, the case was listed for sentence on 16 October 2017. On that day, you sent an email to the Magistrates’ Court advising that you were unable to attend due to ill health. A medical certificate was attached to the email which indicated that it had been issued by a Dr Ansari from the Yarra Medical and Cosmetic Centre on 12 October 2017. The certificate advised that you would be unfit for work from 12 October to 17 October 2017 inclusive “due to a medical condition”. The medical certificate was a fake document and so gives rise to Charge 1 on the indictment.
5 The hearing on 16 October 2017 which was listed before Her Honour Magistrate Bazzani was adjourned to 19 October 2017. You were represented on that occasion but did not attend.
6 On 19 October 2017, the Magistrates’ Court received a second email from you advising that you were again unable to attend court due to ill health. A new medical certificate was attached from Dr Ansari indicating that you would not be able to attend court on 19 October due to a medical condition. The certificate went on to say, “I have advised Alexander to not attend work and any other commitments from 18 October 2017 to 25 October 2017 inclusive, and to use this week to recover to prevent illness.” This again was a false document and gives rise to Charge 2.
7 The Court provided this medical certificate to the police prosecutor in order that she make inquiries. Contact was made with Dr Ansari who advised that you had never been a patient of his and had never been a patient or at the clinic or anywhere else that Dr Ansari had worked. No other doctor at the practice had ever seen you.
8 After being advised of this, Her Honour Magistrate Bazzani issued a warrant for your arrest.
9
Dr Ansari was provided with a copy of the medical certificate and confirmed that the letterhead was from his clinic and that the stamp on the certificate appeared to be the correct stamp and the doctor's signature, although faint, resembled the doctor's signature. However, Dr Ansari said that the contents of the first certificate were in the wrong order and it was not written in the way that
he would usually complete the template certificate. Further, the doctor said he would usually only issue a certificate for a period of two or three days and then request the patient attend the clinic again for check-up.
10 In relation to the second certificate, Dr Ansari said that he would never write anything like what was written in that certificate.
11 On 9 January 2018, police attended an address in Rowville where you were present. You were arrested and taken to the Prahran Police Station for interview.
12 When interviewed, you maintained that you had attended the clinic and obtained the medical certificates. You were charged with summary offences related to the conduct and also charged in relation to the two charges which you have now pleaded guilty to on the indictment.
A committal mention was listed on 1 May 2018 and the matter resolved and proceeded by way of straight hand-up brief. The prosecution accepts that you entered pleas of guilty at the earliest opportunity.
13 Mr Anastasi, your offending is serious and warrants a punishment which is just in all of the circumstances. Strong weight must be given to general deterrence in a bid to deter others from behaving as you have. As Charles AJ, as he then was, said in a case of Healy v The Queen in quoting the sentencing Judge (VSCA Unreported Judgment BC9703737 at page 5):
“The administration of justice depends upon the system operating so that people who commit crimes are pursued, are brought to court and are punished, and those who take part in trying to interfere with that system commit a grave injustice insofar as the community is concerned.”
14 Of course you attempted to put off the finalisation of your Magistrates’ Court case on two occasions by using false documents in a bid to do so, which is most concerning conduct.
15 I understand that after you committed these offences, you were remanded in custody and have spent 33 days in custody from 9 January 2018. At the time that you committed these offences, you were subject to an 18 month community corrections order which had been imposed on 17 November 2016.
16 Initially, I heard this matter on 29 August 2018 and deferred sentencing for a period of 12 months. At the time of the hearing the prosecution said that a combination sentence which involved a community corrections order and a term of imprisonment was appropriate and your counsel sought a community correction order alone.
17 As you have done so well over the past 12 months, the prosecution now accepts that all sentences are open, but that a conviction ought be imposed against your name. Your counsel agrees with this and has submitted that, due to your excellent compliance with pre‑existing Community Corrections dispositions to which you have been subject, and your advances over the past 12 months, there was no need to impose a further community corrections order.
18 In sentencing you in relation to the matters before me, I have regard to your criminal record. You have one set of matters dated 17 November 2016 comprising a number of burglary and theft offences, as well as some other dishonesty offences, resisting an emergency worker, contravening a conduct condition of bail, possessing GHB and possessing ecstasy.
19 You were convicted and received the benefit of an 18 month community corrections order which was to commence on 17 November 2016 with unpaid work and treatment and rehabilitation conditions. I note that you committed the offences which are now before me about 11 months later.
20 I was told that you committed the offences now before the court whilst addicted to methamphetamine, that is, ice. Mr Piesse submitted on your behalf in his original outline of submissions, that you might well have obtained adjournments by legitimate means without the need to resort to such fraudulent ones. He pointed out that, at the time you printed the false documents and sent them to the court, you were on summons, so you could have sent a legal representative to court in order to secure and adjournment. However, Mr Piesse acknowledged that even though you were on summons, you were still required to attend court.
21 However, in all of the circumstances, although your offending is serious, it is not the most serious kind of offending in relation to these offences that the court has ever seen, in view of the nature of your conduct and what was to be achieved, which was a short-term gain.
22 I take into account your background. You come from a loving and supportive family, even though you have not enjoyed the support of your father. You had been very close your father. Mr Piesse said that you were only seven when your father left home, and, understandably, you took this very badly. Your father was in Asia at the time of the original plea hearing.
23 Mr Piesse said that when you were 18, you were engaging in recreational drug use at first, which started with amphetamine. Your use rapidly escalated, to the point where you using ice. You left home and committed offences which led to a consolidation hearing where you were placed on an 18 month community corrections order with 250 hours of unpaid community work. You performed 104 hours over the first 10 and a half months and completed a drug treatment program with the Salvation Army. However, you relapsed into drug use and this led to the second phase of offending. He said that the deterioration was triggered by you breaking up with a girlfriend who had been a good influence on you. She did not use drugs and was working. You had been working in a printing business which apparently equipped you with the skills to commit the offences now before me.
24 I also understand that you breached the community corrections order to which I have previously referred and that on 23 August 2018, you were dealt with for that breach and re-sentenced in relation to the previous mentioned offences, to an 18 month community corrections order with supervision, 200 hours of unpaid community work, programs to reduce re-offending, drug and alcohol treatment and rehabilitation, with a note that you had successfully completed the “Narconon program” and had been offered an internship. “It is hoped he will continue with the program and complete the unpaid community work I have ordered at Narconon”. That community corrections order had been imposed the week before the first plea hearing in relation to the offences now before me. On that occasion, I was provided with impressive evidence from Andrew Cunningham, Executive Director of Narconon, “Get Off Drugs Naturally” dated 14 August 2018 and I heard evidence from Mr Cunningham, who spoke of your progress at that stage in most positive terms. Indeed, he said that he was so impressed with you that he would like you to stay with the program and then finish an internship and an apprenticeship, so he could offer you a full-time position as a counsellor with his organisation.
25 Your mother also gave evidence in support of you and spoke of your deterioration into drug abuse since you were 18. She said that whilst you had let her down on a number of occasions previously, to the point where she was unable to support you in your bail application, you had convinced her with your dedication to the Narconon program that you were serious about addressing your drug issues. She said that she and other members of your family visited you regularly whilst you were undergoing the program and that she had seen a real change in you since you had commenced it. Your mother spoke of the pressures she had concerning her own health with ongoing problems involving brain tumours. She also has tumours in her spine and has the need for ongoing operations. This evidence was verified by a letter from her neurosurgeon, Professor Kaye. Your mother said that your progress whilst at Narconon had impacted positively on her levels of anxiety and management of her own medical situation. She spoke highly of the Narconon program. She said that if you were to go on to work in traffic management, she hoped that your commitment to the Narconon program would stand you in good stead to remain offence-free in the community. She said that, while it was always a worry that upon leaving Narconon you may reconnect with some bad influences in your home area, she was confident that you knew who your good friends and good influences were.
26 I must say, I was most impressed by the evidence that your mother gave and obviously she is a tremendous support to you and ought be commended in respect of all that she has done for you and is still doing for you to support you.
27 In relation to the offending itself though, whilst you may have been drug-affected at the time that you created the two documents and sent them to court, you were not so affected that you were unable to create these and send them. However, as Mr Piesse pointed out, methamphetamine can enable one to function, which is apparently what happened in your case.
28 I understand that your time on remand was a most salutary experience, which is also relevant to specific deterrence and your prospects of rehabilitation. It is to your credit that you initiated the engagement with the Narconon program and that you fully engaged with it, to the point that Mr Cunningham sang your praises and wished you to stay on as a counsellor. I was told that your mother could not afford the cost of the program, but you were able to negotiate with Narconon to pay by way of performing tasks like cleaning, gardening and general maintenance at the residence where the program took place.
29 I adjourned this matter for 12 months to see how you progressed and I must say, I was very pleased to see that your progress has been most positive. In a progress report from Community Corrections in relation to the order imposed on 23 August 2018 at the Dandenong Magistrates’ Court, Mr Montalto, Community Corrections officer, said that you had displayed a positive attitude to the order conditions, with minimal non-compliance. He said that your compliance was satisfactory, having attended all of your supervision appointments, testing appointments and drug assessment appointments, as well as drug treatment appointments. You had completed all of your community work, incurring one acceptable absence, and were currently wait-listed to complete an offending behaviour program.
30 The extended pre-sentence assessment outcome report indicated, although suitable for a further community corrections order in the matters before me, the author, Ms Mimmo, Acting Supervisor Court Assessment and Prosecution Services, said that she could not make any additional recommendations to the court which you have not already met on the community corrections order to which you were already subject. She noted that you are subject to the other order until 22 February 2020.
31 At the further hearing of this matter on 26 August this year, the prosecution submitted that, in view of your impressive progress over the past 12 months, instructions had changed from a community corrections order and gaol sentence, to instructions that all sentencing options were open, so long as a conviction was recorded in relation to the offending.
32 Mr Piesse gave an update as to your situation. He told me that you had taken up all opportunities available to you and were now residing back with your family and that life at home for all had been 'wonderful'. After completing all stages at Narconon, you went on to take up work in the traffic control area and you have been working in that field since December last year. I was told that you often work six days a week.
33 Mr Montalto, who appeared via video link at the further hearing, agreed that your progress had been most impressive, remarking that he would like to “bottle” your rehabilitative efforts.
34 Your counsel submitted that an adjourned undertaking with conviction would be appropriate in your case and I agreed.
35 I was told that you earn between $700 and $1,000 per week and had saved up for a car, which you have purchased. It was anticipated that when you obtain your driving licence once more, your work would be providing a vehicle as well. It was also indicated that your job involved random drug tests, which would be another form of ensuring that you did not relapse into drug use.
36 In all of the circumstances, as I have said, I am most impressed with your progress and find that your prospects of rehabilitation are good and I need to place fairly minimal weight only on specific deterrence.
37 I accept that it is appropriate to impose an adjourned undertaking in this matter and I hope and trust that you will go from strength to strength, having shown a most impressive turnaround in your life, which is all credit to you, to your mother, and the program in which you involved yourself.
38 Would you please stand up.
39 You are convicted in relation to each of the offences:
40 In relation to each of these, the matters are adjourned for a period of 12 months from today, upon you entering into an undertaking to be of good behaviour for a period of 12 months from today and a payment of $500 to Oxfam Australia. Payment to be made by Friday 27 March 2020 at 4.00pm. You are to provide evidence of this payment by providing an official receipt from Oxfam to the County Court Registry by Tuesday 31 March 2020 at 4.00pm and when I say a 'receipt', I want an original document, or something that indicates clearly that it is from Oxfam and shows clear evidence that you have made the payment.
41 I indicate that, If not for your pleas of guilty in this matter, I would have sentenced you to a period of imprisonment of 18 months, with a non-parole period of 12 months’ imprisonment.
42 Take a seat for a moment and the adjourned undertaking will be provided to you for signing and I will ask Mr Isaacs to assist you with that.
43 MR ISAACS: Certainly.
44 HER HONOUR: Thank you.
45 Yes, thank you, I have signed that document. Is there anything arising?
46 MR ISAACS: No, Your Honour, just - - -
47 MS WATSON: No, Your Honour.
48 HER HONOUR: All right. Yes.
49 MR ISAACS: - - - if we could have a copy of that?
50 HER HONOUR: Yes. Yes, we will get a copy to you, Mr Isaacs.
51 MR ISAACS: I will wait for that, Your Honour.
52 HER HONOUR: All right.
53 MR ISAACS: Thank you.
54 HER HONOUR: Yes. All the best, Mr Anastasi and to your mum. I hope never to see you again, all right? Yes, thank you, we will adjourn.
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