Director of Public Prosecutions v Charis

[2015] VCC 768

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00635

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAMSEY CHARIF

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2015
DATE OF SENTENCE:	5 June 2015
CASE MAY BE CITED AS:	DPP v CHARIS
MEDIUM NEUTRAL CITATION:	[2015] VCC 768

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Manova	Office of Public Prosecutions
For the Accused	Ms E. McKinnon	Theo Magazis

HIS HONOUR: 

1Ramsey Charif, you have pleaded guilty to one charge of reckless conduct endangering serious injury, one charge of dangerous and negligent driving while pursued by police and one charge of possessing a drug of dependence, to wit, methamphetamine.  These offences carry maximum penalties of five years, three years and one year respectively.  You have also pleaded guilty to two summary matters of unlicensed driving and failing to exchange names and address.  These offences carry maximum penalties of three months and, as I understand it in this situation, 14 days.  Be that as it may you are not getting extra for that.

2You are now 36 years of age and you pleaded guilty, having made admissions to police upon your arrest shortly after the incident.  You will obviously get the benefit of the utilitarian effect of that plea of guilty.  There has been delay - I will not go into why that is so, but there has been delay before the matter was ultimately dealt with and I take that into account.  Insofar as remorse is concerned, you expressed remorse but as you are an experienced prisoner, I have some doubt about that.  I make it clear, however, that I do treat the plea of guilty as being accompanied by remorse. 

3You have a very long criminal history.  You have been gaoled, as I understand it, on three occasions for reckless endangerment involving a motor vehicle, on five occasions for dangerous driving;  you have four prior convictions for failing to stop;  you have a conviction for escape;  and convictions for failing to obey directions of a police officer.  You have multiple convictions and have gaol sentences for dishonesty and drugs, including armed robbery and trafficking.  You have spent a very significant portion, by my calculation something like two-thirds of your adult life, in custody.

4The circumstances surrounding this offence can be best looked at, I think, in terms of the history leading up to it.  In November 2009, you had been disqualified from holding a driver's licence for a period of three years.  In fact, you would appear to have never had a driver's licence.  On that occasion, you were sentenced to a period of nine months for reckless conduct endangering serious injury, which involved the driving of a car, failing to stop a vehicle on police request and failing to stop after an accident.  Nine months' imprisonment was the direct effect of those particular charges.

5

In any event, on 4 January 2012, some-time after that, you stole a motor vehicle.  On 17 January 2012 at 8.43 in the morning, two police officers saw you and you saw them.  You looked in the direction of them and identified them as police officers, you then drove off from the driveway at high speed, this was in Lalor.  You lost control of the vehicle 100 metres into the road, colliding with two parked cars before fleeing the vehicle over several fences and avoiding apprehension.  You were convicted in the Magistrates' Court of those and other matters and sentenced to be imprisoned for a period of

12 months.  You appealed that and were released on bail about a month before the incident that I am about to describe. 

6Ultimately, that appeal would appear to have been abandoned.  I have had a long discussion with counsel about how this works out and I am not going into that at this point in time.  The circumstances are that you were on bail for exactly the same type of offending when this occurred.  That sentence has now been completed so there is no provision for cumulation or concurrency.

7

The Crown opening points out that you have been a drug user for a long period of time and obviously your counsel has pointed it out to me and I take all that into account.  In any event, on 13 April 2013, police were conducting duties in an unmarked vehicle on the Monash freeway.  At about 10.15 am, you were seen driving a motor vehicle outbound on the Monash freeway.  Police used a laser device to measure that you were travelling at

129 kilometres per hour in a 100 kilometre per hour zone. 

8Police observed you to be driving erratically at a fast rate of speed, overtaking on the left and using the emergency lane in order to overtake vehicles.  You were driving at 140 to 150 kilometres per hour and changed lanes in an erratic fashion without indicating.  That gives rise to Charge 1, reckless endangerment.

9Charge 2 arises from the police then activating their lights and sirens and giving pursuit.  When you were approaching the Wellington Road exit of the freeway, you accelerated the vehicle to 180 kilometres per hour and it was at that point in time that the police began a serious pursuit.  During that pursuit you continued to travel at a very fast rate of speed, you changed lanes numerous times without indicating and used the emergency lane in order to avoid traffic that was moving at the speed limit.  You continued to drive at a fast rate of speed and made an attempt to exit the freeway at Jacksons Road.  The police estimate is that you were doing about 140 kilometres per hour on the exit ramp when you lost control of the vehicle. 

10Charge 3, relates to the circumstances of when you lost control of the vehicle, you collided with a small white hatchback, you then continued on and collided with a semi-trailer.  When your vehicle came to a stop, you jumped out of the driver's side window and ran down the road in an attempt to avoid police.  You ran through a residential property, you were jumping fences and were eventually found hiding in a garage. 

11You are not charged with the actual collision itself but it is part and parcel of the overall offending on this day and as a consequence of Charge 2, though not a direct element of it obviously.  The driver of the white hatchback was a pregnant woman who became frightened.  She suffered some pain and was taken to the Dandenong hospital for observation and spent a very worrying period of time insofar as he foetus was concerned.  She was 19 weeks pregnant.  In any event, there is no charge in relation to her, that simply amplifies the need for general deterrence in terms of offending of this sort because that is the sort of consequence that these laws are designed to prevent.  You obviously did not have a licence and amphetamine was found in a black bag in your car.  When arrested, as I have indicated, you made full admissions to all this, though I suppose you had no choice, but you get the benefit of that.  You accepted responsibility for the offending and purported to understand the danger that you had posed to other people.

12The offending is clearly serious and, unfortunately in your situation, Mr Charif, you have done this sort of thing more than once and been gaoled for it more than once.  Specified deterrence has to play a significant part in all of this, although it would not appear to have worked in the past.  There also has to be general deterrence, denunciation and appropriate punishment.  In your particular situation there clearly has to be a degree of community protection.

13It was put, and there is a report on file, that you have a drug addiction and that you suffer from depression.  This driving has nothing to do with a drug addiction.  It is not as if you are stealing to support a habit or anything along those lines.  Insofar as Verdins is concerned, I do not see that it removes any form of moral culpability.  There is no evidence before me that you had been using drugs when you were driving and it would appear that you, when driving on occasion, simply do as you please.  I do not accept the explanation of panic as it has happened far too often for that.

14Insofar as the other principles of Verdins are concerned, you told the psychologist that you do all right in gaol and you are very used to it.  I do not see that those conditions would attract the principles of making gaol harder for you.  Of far more important in your particular situation is the question of totality and I must bear in mind the maximum penalties for these offences, as well as the problems involved in institutionalisation.  If you are not already institutionalised, you are obviously close to it. 

15Turning to matters person to you in terms of working out the length of gaol sentence to be imposed, firstly, it was the principles applicable to CCOs do not apply here.  There was no suggestion a CCO would be appropriate and, indeed, when I asked your counsel, he disavowed such a prospect.  I think that is dead right.  I have a report from Mr McKinnon, I have a letter from you (which I have read and take into account), also a letter from your partner of some years (which I have read and taken into account).  I note that you have a five year old child with whom you are disengaged whilst you are in custody.  There is also a letter from a rehabilitation facilitation which indicates that there would be a bed available to you, were you to be released.  I would assume that that position remains until ultimate release and was not told that was only open for a short period of time.

16Again, it was put to me that this is the first time that you have determined that you are going to get off drugs, that you are going to rehabilitate.  You were sentenced in 2006 (I think) by Judge Campbell in this court where it was put there that you were receiving counselling and that you were going to rehabilitate and the like.  I have no doubt that these suggestions have been put many times on your behalf. 

17You have breached parole previously and I take that into account only in the sense that it gives rise to a fairly tentative but nevertheless existent loss of opportunity for parole breached after this.  You are presently awaiting trial in regard to very similar matters.  I do not take those into account in any way, shape or form as aggravating but just as to the situation in which you find yourself.  Whatever comes of those is a matter for another court on another day.

18Your personal history is one of you being born to Moroccan parents, one of a few children.  You did not do well at school but on what I am told, were doing an apprenticeship as a chef and it was at around the age of 17 that your mother passed away as a result of a motor vehicle collision and you, as a teenager, witnessed the aftermath of that.  You have minor prior convictions in the Children's Court but it is around the age of 17 where the real trouble begins.  From that point on, as I have indicated I am not going to go through them all, there are armed robberies, robberies, trafficking and all sorts of offending.  There is no suggestion in the material before me that you suffer from a post-traumatic stress disorder which would have been my tip but that is simply not before me.

19You have basically, in a sense, lived the life of an outlaw.  What I am to do here is sentence you for this driving.  The prospects of your rehabilitation are entirely up to you.  When one looks at your history, the risk of your re-offending has to be regarded as high and the best that I think I can do in these circumstances is to give you an opportunity for parole.  It is then a matter for the Parole Board.

20

I take into account all the matters that are contained within the report from

Mr McKinnon.  You are clearly of average intelligence and he describes you as having, from an early age, anger and resentment about a period of incarceration that took place when you were in your mid-teens. 

21

Accepting all those matters, as I point out again, I must sentence you for driving and not for dishonesty and not for drug use.  Take all those matters into account as best I can, on Charge 1, reckless endangerment, 2 years and 3 months;  on Charge 2, dangerous driving whilst being pursued by police,

15 months;  on Charge 3, possessing amphetamine, 2 months;  on the charge of unlicensed driving, 2 months, bearing in mind, on my calculation, it is your fifth or six prior conviction for that;  on failing to exchange name and address, 14 days.  The 14 days are to be served concurrently.

22Because this was one continuing incident, there has to be significant effect given to Charge 2 insofar as concurrency is concerned.  Accordingly, I direct that 5 months of the sentence imposed on Charge 2, 1 month of the sentence imposed on Charge 3 and 1 month of the sentence imposed on the charge of unlicensed driving be served cumulatively upon each other and upon the sentence imposed on Charge 1.  This gives an effective head sentence of 2 years and 10 months. 

23In these circumstances, I direct that you serve a minimum period of 21 months before becoming eligible for parole.  I note that, after some discussion, it was realised that you had served 474 days in relation to this matter and I direct that that be entered in the court records as having been served under this sentence. 

24So that you appreciate the benefit of the plea of guilty, pursuant to s.6AAA, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of 3 years and 9 months with a minimum term of 2 years and 9 months.

25Are there any other orders I have to make?

26MS MANOVA:  No, Your Honour.

27MS McKINNON:  No, Your Honour.

28HIS HONOUR:  I have made the disposal, there is no 464 you already have that, I presume.

29MS MANOVA:  I was thinking about an order on the licence.

30HIS HONOUR:  He hasn't got one.

31MS MANOVA:  No he doesn't have one but Your Honour can still disqualify him for a period.

32HIS HONOUR:  I have to for the reckless endangerment. 

33MS MANOVA:  I'll have to check whether there is a mandatory, it might be just discretionary, Your Honour, I apologise.

34HIS HONOUR:  I think it's mandatory. 

35MS MANOVA:  Your Honour, it's 89A, it is discretionary for such time as the court specifies.  "If the person is not the holder of a licence for the period for which he or she would have been disqualified from obtaining a licence, had he or she held one".  Sub-s.3 provides that on the order the court must cause to be entered in the records of the court the fact that it is an order made under this section and the offence or offences on which the person was found guilty or convicted, that would be the reckless endangerment. 

36HIS HONOUR:  What did he get last time for this?  Three years, wasn't it?

37MS MANOVA:  August '12, when he was sentenced on the Heidelberg matters, he was received six months on the road for driving manner dangerous. 

38HIS HONOUR:  By that stage the three years from the Melbourne Magistrates' Court in 2009 had expired, only just.

39MS MANOVA:  Yes.

40HIS HONOUR:  Anything you want to say about this?

41MS McKINNON:  No, Your Honour, just by the time this sentence is finished, assuming that he is acquitted of the matters that are before the court later in the year, if he goes into rehab and he is in the country, obviously the sooner he gets his licence the better.

42HIS HONOUR:  He is 36 and he has never had one.

43MS McKINNON:  My instructions are, when he is finally released, he wants to apply for a licence.  They are my instructions.

44HIS HONOUR:  Very well.  I will impose the same as last time but I will backdate it.  I can backdate a licence disqualification?

45MS MANOVA:  Yes. 

46HIS HONOUR:  Very well.  Pursuant to s.89A, I will disqualify you from obtaining a licence for a period of three years.  The disqualification to date from 13 April 2013 - that is the date of the offence?

47MS MANOVA:  Yes, Your Honour, it was.

48HIS HONOUR:  Very well.  Thank you.

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