Director of Public Prosecutions v Charif
[2016] VCC 1194
•17 August 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-01039
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAMSEY CHARIF |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 August 2016 |
| DATE OF SENTENCE: | 17 August 2016 |
| CASE MAY BE CITED AS: | DPP v Charif |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1194 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Theft – deal with property suspected of being proceeds of crime
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 6 months' imprisonment and 2-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. A. D'Arcy | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Ms E. Mackinnon Mr D. McKenna | Magazis & Associates |
HIS HONOUR:
1Ramsey Charif, on 16 June this year you pleaded guilty to one charge of theft and on 16 August you pleaded guilty to one transferred summary charge of dealing with property suspected of being proceeds of crime.
2The maximum penalty for theft is 10 years' imprisonment.
The maximum penalty for the summary offence is 2 years' imprisonment.3For purposes relevant to this sentence it is important to note that the principle charge - theft of a motor car - originally formed part of an earlier indictment for which you stood trial before me in June this year, starting on the last day of May in Ballarat.
4At the commencement of proceedings you elected to plead guilty to the present charge, and the trial proceeded on the remaining charges. You were subsequently found not guilty of the other charges by jury verdict.
5You are currently 37 years of age, having been born on 8 March 1979, and you were 34 when you committed this offence in November 2013.
6You have an extensive criminal history, about which I will go into more detail later.
7The circumstances of your offending are as follows.
8As part of an investigation, on Friday 1 November 2013 surveillance was conducted on addresses and known associates of yours in an attempt to locate you.
9At approximately 1.05 pm, a Holden Commodore sedan bearing stolen registration plates YAS309 was observed parked outside an address in Sydenham.
10At approximately 1.55 pm, members from the State Surveillance Unit observed you get into the Holden and drive the vehicle to another address in Sydenham, at which time you drove past a member of the State Surveillance Unit. You drove the vehicle back to the address in Sydenham where it had been first sighted.
11At approximately 4.15 pm, members from the State Surveillance Unit observed you in the Holden sedan, without registration plates, at an address in Deer Park.
12At approximately 5.22 pm, members from the Special Operations Group approached you as you were sitting in the car in the driveway at that address. You attempted to run into the house when you saw the Special Operations Group operators, however you were detained and arrested.
13Upon inspection of the Holden, the correct registration was identified to be NSB951. This vehicle had been stolen between 20 and 21 October 2013 from an address in Corio.
14Following your arrest, police inspected the stolen Holden. They located the following items within the vehicle, being property suspected of being the proceeds of crime:
-a Geelong Mazda registration trim;
-2 Samsung mobile telephones;
-2 red, 1 green, and 1 silver USB stick;
-1 Tom Tom GPS;
-1 red 8-gigabyte USB;
-1 black container with 7 USB sticks;
-2 rubber knives;
-1 black Tom Tom GPS and car charger;
-1 black coloured laptop; and
-1 bag contained 8 GPS units and cords.
15I now turn to your personal circumstances.
16As noted earlier, you are now 37 years old and you were 34 at the time of this offending.
17You have an extensive criminal history which, after some Children's Court matters, commenced in 1997 with an appearance in this court at Melbourne just months after your 18th birthday, when you were convicted and ordered to serve an 18-month community-based order for armed robbery which, I note, you breached. The record thereafter is too numerous to recite in these remarks. It extends to 28 pages. The full history is available on the court file.
18In summary, you have appeared subsequently in this court on three further occasions, before Judges Williams, Campbell and Smallwood, the last being for offending on 13 April 2013 which is prior to this offending but for which you were sentenced on 5 June 2015. The offending for which you have been sentenced in the County Court previously comprises armed robbery, attempting to pervert the course of justice, reckless endangerment, dangerous driving, possessing amphetamine, unlicensed driving and failing to exchange name and address.
19Apart from your County Court appearances, you have practically lived at the Magistrates' Courts around this State, with rarely more than a few months between appearances. You have experienced virtually every sentencing disposition available to the courts, from fines and community-based orders to imprisonment and suspended periods of imprisonment, encompassing offences for theft, robbery, weapons, driving and drugs, including trafficking. From your conviction for armed robbery in 1997, serious offending has continued through 1999, 2001, 2002, 2004, 2006, 2008, 2009, 2010 and 2012.
20You have approximately 12 previous instances of theft of a motor vehicle and 4 previous offences of deal with property suspected of being proceeds of crime, as well as 2 prior offences for handling stolen goods.
21As I said before, you are now 37. Your parents separated when you were 8 and you lived with your mother, with whom you had a close relationship. You had less involvement with your father when growing up.
22As a consequence of moving between your parents' homes, you attended multiple schools. This had an impact on your academic achievements and socialisation.
23You left school at 15 and began an apprenticeship as a chef. Two years into that apprenticeship your mother was tragically killed in a car accident. You in fact observed the damaged vehicle and assisted your mother out of the car. It was a traumatic event for you.
24You were unable to maintain the mortgage repayments on your mother's home and soon after were remanded in Pentridge Prison on criminal charges. Your apprenticeship was broken and the home was sold.
25Thereafter you have spent more time in prison custody than in the community. Your counsel has calculated that over the past 20 years you have spent approximately two-thirds of your life in prison.
26A psychological report dated 30 May 2015 from Mr Ian Mackinnon, forensic and consultant psychologist, was tendered on your plea.
27In Mr Mackinnon's opinion you appeared to be suffering from a substance dependent disorder, then in remission as a consequence of being held in a controlled environment. Mr Mackinnon opined that this disorder primarily entailed your abuse of methylamphetamine, and that your history of substance abuse suggests that you remain vulnerable to relapsing into substance abuse upon release from prison.
28Further, in Mr Mackinnon's opinion your offending over the last 18 years has been fuelled by chronic distress, characterised by a combination of unresolved grief and depression and consuming angry embitterment - a consequence of you perceiving yourself to have been unjustly incarcerated when you were in the process of grieving for your deceased mother.
29Mr Mackinnon postulated that this chronic distress appears to be the underlying cause of your substance abuse - partly serving as a means of self-medication for your emotional and psychological discomfort, but also serving as a means of symbolic protest at society for the terrible injustice you feel you suffered at 17 years of age. Mr Mackinnon diagnosed you as suffering from a depressed mood disorder.
30In Mr Mackinnon's opinion your internal rage has subsided significantly and this has led you to develop a greater self-awareness and insight into the challenges you face. In this manner, you are aware that it is your offending that has caused you to serve several significant terms of imprisonment. You are also aware that your habitual substance abuse has led you into offending and you acknowledge that you must first address your substance abuse in order to reduce the likelihood of offending.
31In the circumstances, I am not satisfied that there is sufficient evidence before me that establishes on the balance of probabilities that there existed at the time of the current offending an impairment of mental functioning that contributed to the offending in such a way as to render you less blameworthy for the offending that you otherwise would have been.
32The question is one of causation. Does the evidence establish a direct causal connection between the impairment of mental functioning and the offending for which the sentence is to be imposed? Whilst I accept, on the evidence of
Mr Mackinnon and the objective record of your past offending, that it is probable that you have suffered and were suffering at the time of offending from a substance use disorder, the evidence is otherwise very general and based on one assessment at Port Phillip Prison from self-reporting.33There was no evidence before Mr Mackinnon that at the time of the offending you were under the influence of any drug of addiction, or what the nature and severity of any symptoms might have been.
34Similarly, Mr Mackinnon's diagnosis of depressed mood disorder appears to me to be speculative and unsupported by any evidence that you had ever sought or had treatment for mental health issues such as depression, or that you were suffering from a significant depressive illness at the time of this offending which affected your mental capacity to the extent that would reduce your moral culpability for the offending conduct by being a direct cause in reducing your ability to appreciate the wrongness of your actions.
35In my view it is open on the evidence to allow some mitigation for the likelihood of a long-standing drug habit in the context of traumatic circumstances you experienced at a vulnerable age.
36The more pertinent aspect in mitigation is what allowance should be made for the delay in this matter being heard, especially in the context that you were arrested nearly three years ago in November 2013.
37The chronology is as follows:
15 August 2012: You were sentenced at the Heidelberg Magistrates' Court to 12 months’ imprisonment, with 38 days of pre-sentence detention being declared. You appealed that sentence and were granted appeal bail. The appeal was set for hearing on 12 August 2013.
13 April 2013: There were offences you committed involving high speed police pursuit and driving offences including reckless conduct endangering life.
12 August 2013: You failed to appear at the hearing for the appeal on the August 2012 sentence. The appeal was dismissed and a warrant was issued for your arrest that day.
1 November 2013: The current offending for which you are before me on this plea. You were arrested and remanded in custody on that day. At this time you then began serving the sentence of 15 August 2012 from the Heidelberg Magistrates' Court. That sentence would have expired after approximately ten and a half months, so your anticipated release date would have been about September 2014. You remained in remand custody for the April 2013 and November 2013 offending, therefore from September 2014.
5 June 2015: You were sentenced on the April 2013 offences by His Honour Judge Smallwood. The total effective sentence was 2 years and 10 months' imprisonment, with 21 months to serve before eligibility for parole. Pre-sentence detention was declared as 474 days, which indicates being in custody from approximately halfway through February 2014, when in fact you had been in custody serving the August 2012 matters and on remand on the current matters since 1 November 2013.
38The full term of Judge Smallwood's sentence expires in April 2018, less 474 days, which equates to December 2016. You did not make application for parole on the basis that you were still on remand for the current matters before me as at the date of your eligibility, which was November 2015.
39The balance of the chronology referring to scheduled court hearings and adjournments is set out helpfully in the chronology tendered on the plea as Exhibit 2. In summary, committal mentions in this matter were appropriately scheduled, albeit with some adjournments, from January to February 2014, until the first committal date of 9 April 2014.
40Thereafter there were many adjournments of both committal and trial dates until 31 May this year. Two committal dates were adjourned because of court conflicts and two were adjourned because the main prosecution witness failed to appear. The committal finally concluded on 2 April 2015.
41The trial was initially set down for October 2015, then November 2015 in the Ballarat circuit and was adjourned ‘not reached’ on each occasion. It was then listed for 29 February 2016 before His Honour Judge Punshon. Police were communicating with Mr Richardson, the crucial witness for the prosecution, in the period immediately before 29 February. It was anticipated that he would attend the trial. Mr Richardson had confirmed that he would be attending.
42On 29 February you were arraigned and a jury empanelled before His Honour Judge Punshon. Openings were about to commence when it was realised that Mr Richardson had failed to appear. The trial was adjourned to 2 March and a warrant was issued for his arrest. The warrant was not able to be executed because of Mr Richardson's disappearance. On that same day the jury was discharged without verdict and the trial re-listed for 17 March.
43On 17 March the matter was adjourned to the sittings commencing 30 March. By 30 March, the police had still not been able to ascertain Mr Richardson's whereabouts, despite regular enquiries and investigation. The trial date was then adjourned to the April sittings.
44On 11 April Mr Richardson's whereabouts was still unknown, despite continuing enquiry. On that date the prosecution made a further application, this time before His Honour Judge McInerney of this court, to adjourn the trial. The defence opposed the adjournment on the basis that it was unreasonable, in light of the history of adjournments. His Honour ruled that the trial should be adjourned and listed as the first matter to be heard in the June 2016 sittings.
45Mr Richardson was then still missing and failed to appear on the trial date then before me, commencing 31 May 2016. A ruling was made admitting the recorded evidence of Mr Richardson into the trial. The trial proceeded on the severed indictment. You pleaded guilty to the current charge of theft of a motor vehicle.
46In summary, from 1 November 2013 you were serving the sentence from the August 2012 sentence until September 2014, you were on remand for the April 2013 sentence until sentenced by Judge Smallwood on 5 June 2015, thereafter serving that sentence whilst on remand for the trial before me until 31 May 2016, then on continuing remand on the current charges until today. Judge Smallwood's sentence continues until 16 December this year.
47Both prosecution and your counsel agree that you come to this matter with no relevant pre-trial detention, despite spending a long period awaiting trial and the resolution of this matter. A particular disadvantage you have suffered as a result of the delay in the trial on the current charge and associated matters is that you believed that any application for parole in November 2015 would have been fruitless and you would inevitably have been required to remain in custody. I accept that, in light of the circumstances of the trial charges and your criminal history, there is substance to that belief.
48But for the committal adjournments and non-appearance of the witness Richardson, it is likely that your matters could have been heard by perhaps October or November 2015. Regardless of what the result of any application for parole might have been, you have at least lost that chance by the delays. None of that delay was attributable to you. Because you are serving a sentence on another matter, you have lost the chance to have pre-sentence detention taken into account in reduction of your sentence today. This “dead time” can however be taken into account in a broad way so as to ameliorate any unfairness.
49Theft of motor cars is a prevalent crime and calls for appropriate punishment. Your long history of offending and repeated re-offending on this charge in particular means that principles of denunciation, specific and general deterrence and protection of the community become the dominant considerations. I note that sentences of imprisonment in the past on this offence have not had the effect of deterring you from re-offending.
50In mitigation I take into account the submissions made by your counsel, including:
· your plea of guilty, albeit not an early plea; however I accept that there may have been complications concerning the focus on this particular charge in the context of all the charges on the original indictment, and the protracted nature of the proceedings had not been anticipated;
· your difficult formative years and the likely development of vulnerability to substance abuse;
· your long-term substance-dependent disorder;
· the delay in this matter coming before the court; and
· your expressions of intention to engage in a residential rehabilitation program on release.
51You have had many opportunities in the past to rehabilitate yourself, to no avail. Previous judges of this court have, unsurprisingly, despaired at your prospects of rehabilitation.
52I note that back in 2006 you participated in and graduated from a three-month course entitled "Lives in Transition", designed to train you in life skills and fit you for release in the community, yet your offending continued with a multiplicity of crimes shortly following your release.
53In 2015 Judge Smallwood rejected the submission that a community correction order could be regarded as appropriate. Similarly, you have been found unsuitable for such a disposition when assessed this week. The assessment refers to community-based orders being made and breached, successful completion of only 1 of 6 parole orders and breaches of suspended sentences.
54I do note, however, that you have not been before subject to a community correction order and that the last breach of any non-custodial order - a suspended sentence - was in 2009. The community-based orders were made in 1997.
55Whilst I conclude that your rehabilitation prospects are considerably poor, they should not be considered eliminated.
56The prosecution submitted that some period of further detention followed by a community correction order would not be inappropriate in these circumstances.
57I accept this submission. You have spent a long time in prison on this occasion and much of that time has operated unfairly on you. You were denied the chance of parole. In the circumstances, I consider that a properly tailored community correction order, following further time in custody, will be both a deterrent to you from further offending and better enhance your rehabilitation - to the ultimate end of the protection of the public. You will have that chance.
58Mr Charif, could you please now stand.
59On Charge 1 of theft on Indictment No.D13368239.1, you are convicted and sentenced to 5 months' imprisonment.
60On the transferred Summary Charge 14 of deal with proceeds of crime, you are convicted and sentenced to 2 months' imprisonment.
61Charge 1 is the base sentence.
62I direct that one month of the sentence imposed on Summary Charge 14 be served cumulatively on Charge 1.
63The total effective sentence is 6 months' imprisonment.
64On Charge 1 and the transferred Summary Charge 14, you are also ordered to serve a community correction order for a period of two years.
65Pursuant to s.6AAA of the Sentencing Act, but for you plea of guilty the total effective sentence that would have been imposed is 2 years' imprisonment, with a minimum period of 18 months to be served before eligibility for parole.
66As to the community correction order, the order commences immediately upon your release from prison and ends two years from that date.
67The Corrections Centre you will attend is the Box Hill Community Corrections Service at 703 Station Street, Box Hill, and you must attend there within two clear working days after the completion of your imprisonment term.
68All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
·you be under the supervision of a Community Corrections officer;
·you perform 250 hours of unpaid community work as directed by the Regional Manager;
·you undergo assessment and treatment, including testing for drug abuse or dependency as directed by the Regional Manager;
·you undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric, if necessary in a hospital or residential facility, as directed by the Regional Manager; and
·you undergo programs or courses aimed at addressing factors relating to your offending as directed by the Regional Manager.
69Now I believe from the pre-sentence report that the mandatory terms of the community correction order were explained to you. However it is appropriate that I briefly summarise them here, so that it is quite clear that you understand what those mandatory terms are. They are as follows:
·you must not commit another offence for which you could be imprisoned during the time that the order is in force;
·you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially sets out your obligations as to your attendance at the Community Corrections Centre and such things as not attending drug- or alcohol-affected;
·you must report to and receive visits from a Community Corrections officer;
·you must report to the Community Corrections Centre, that is the Box Hill Centre, within two clear working days of the order starting, and as I have already indicated the order commences immediately upon your release from prison;
·you must notify a Community Corrections officer of any change of address or employment within two clear working days after the change;
·you must not leave Victoria without first getting permission to do so from a Community Corrections officer; and
·you must obey all lawful instructions from and directions of Community Corrections officers - such directions may be given either orally or in writing.
70Do you understand and agree to those conditions, Mr Charif?
71OFFENDER: Yes I do, Your Honour.
72HIS HONOUR: If you get sick or if there are exceptional circumstances the order may be suspended for a period of time, and if your circumstances materially alter, you may apply for a variation or cancellation of the order. In either case you must notify the Box Hill Community Corrections Centre and I recommend that you obtain legal advice if any of these things happen.
73However, I must warn you that if you breach any condition of this order, you will be brought back to court, and that will back before me. One of the options open to me - and the likely option - is to cancel the community correction order and re-sentence you on the original charges. I may also deal with you for the breach by sending you to prison for up to three months.
74Mr Charif, do you understand the consequences of breaching your community correction order?
75OFFENDER: Yes I do, Your Honour.
76HIS HONOUR: I will ask you to sign that order shortly. I note that your theft involves a motor vehicle and this has enlivened s.89(4) of the Sentencing Act, and pursuant to that section I further order that any driver's licence that you hold is cancelled and that you are disqualified from obtaining any such licence for a period of two years, effective from today.
77At the plea hearing, the Crown sought a disposal order to which you have consented and I have also made that order today.
78Unless there is anything further, can the community correction order be passed through Mr Charif's representative, to him now and signed if he accepts it, and returned to me.
79Thank you. Just a couple of things. Firstly, for the sake of clarity, the prison sentence component of the sentence obviously starts today. The only other matter … unless there is anything from either counsel, no?
80COUNSEL: No, Your Honour.
81HIS HONOUR: … is this, Mr Charif. This is not necessarily an easy option for you.
82OFFENDER: Oh I know that, Your Honour. I understand that.
83HIS HONOUR: I have thought very carefully about this sentence and there are many aspects of your background that would indicate that perhaps this is not a desirable course, the main thing being that every other time that you have been given the opportunity for some rehabilitation, you have not been able to make it.
84I take the view that it is never absolutely eliminated and the circumstances that you have been through whilst you have been waiting for this matter to come to court, as I have articulated in the sentence, mean that this can be an appropriate part added to your sentence of some time in prison. This is an opportunity for you to actually do something now. It is a matter for you now.
85OFFENDER: Thank you, Your Honour.
86HIS HONOUR: Thank you both.
87COUNSEL: Thank you.
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