Director of Public Prosecutions v Dawale

[2023] VCC 234

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-00939

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBLEH DAWALE

---

JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 February 2023
CASE MAY BE CITED AS:	DPP v Dawale
MEDIUM NEUTRAL CITATION:	[2023] VCC 234

REASONS FOR SENTENCE

---

Subject:  Contravention of community corrections order

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Bye
For the Offender	Mr D. Ajak

HIS HONOUR:

1Well, these are the matters I see relevant to this matter.  I don't think I'll be much further assisted by submissions. 

2He's done about 12 months, I've got to apply the principle of totality.  His level of compliance has been poor.  There is some - I have accepted - some indication of growing stability in family relationships, work – that is, the apprenticeship.

3He is still relatively young and was only 20 at the time of the original offending.  The time that has passed since that offending event is now five years.  Much of the delay has been caused by him, but there is still the fact of a five year passing of time.  He has, clearly, a low level of motivation, particularly in relation to therapeutic programs.

4In all the circumstances the re-sentence should not be a re-sentence to prison, but there needs to be some punishment or recognition of the fact that he has so poorly complied with this order.

5A sentencer has little discretion or flexibility these days.  I could impose a monetary penalty – it would have to be quite large – or I could sentence him to a 'work only' community corrections order.  I think the best – the most appropriate sentence is the second.  I find the breach proven.  I convict him for that offence and impose a fine on that of $400; so that's a week's salary.

6I also impose on all offences that were originally before me, with conviction, a community corrections order of 12 months duration with the usual conditions, and the only additional condition is that he perform 150 hours of unpaid community work.  Now, that's not much more than one hour a week and if he can't do that, as well as keeping his apprenticeship job, well, another judge is just probably going to send him to gaol.  So it's not much of a task, in my view.  If he can't meet it he will suffer the consequence of imprisonment.  I don't see that that judge will have much choice.

7All right.  So just on the community corrections order that is available to me,
Ms Bye, isn't it?  Up to a certain number of hours?  I don't have to impose supervision, or anything like that?

8MS BYE:  No, Your Honour.

9HIS HONOUR:  Yes.

10MS BYE:  But would it not be preferable to have – well, you can't put a judicial monitoring, he'll be going, but ‑ ‑ ‑ 

11HIS HONOUR:  No, I'm just sick of him.  Can I express it that way?

12MS BYE:  The only other thing that concerns the prosecution is that he still needs to get to the bottom of the re-offending, because he's now up for a breach of the other order in the Magistrates' Court too.

13HIS HONOUR:  Yes, but he hasn't re-offended for some time, I was told last week.

14MS BYE:  Well, except for the alleged breach that's coming up end of March.

15HIS HONOUR:  Well, is that a breach by re-offending?  This is the Magistrates' Court matter, is it?

16MS BYE:  That's right.

17HIS HONOUR:  Or is it a breach by non-compliance?

18MR AJAK:  It's non-compliance, Your Honour.

19HIS HONOUR:  Non-compliance.  I mean, that's a factor that I didn't mention today.  There's been some movement towards stability and part of it is he hasn't offended for some time.  No, he's not interested in being assisted, and a community corrections order, as he candidly told the assessor, is only a mechanism for him to avoid going to gaol.  Well, he's still got to – he's still going to have to do some work and if he doesn't do it he will go to gaol, so he needs to ‑ ‑ ‑ 

20MS BYE:  Well, I believe ‑ ‑ ‑ 

21HIS HONOUR:  I don't think the system should be further burdened with him.

22MS BYE:  ‑ ‑ ‑ there's the capacity.  I don't think his apprenticeship would go over the weekend, and so ‑ ‑ ‑ 

23HIS HONOUR:  Right.  He's got ‑ ‑ ‑ 

24MS BYE:  ‑ ‑ ‑ there would be some capacity to do community work, yes.

25HIS HONOUR:  It's about an hour a month.

26MS BYE:  Yes, on a weekend.

27HIS HONOUR:  Yes, surely he can do that.

28MS BYE:  Yes.

29HIS HONOUR:  All right.  Well, that's what I'm going to do, so we'll print that out.

30ASSOCIATE:  Could you tell me the Corrections Centre?

31HIS HONOUR:  What's the relevant Corrections Centre?  He lives in that Reservoir area, I think?

32MR AJAK:  Reservoir.

33HIS HONOUR:  Reservoir, is it?  Yes.  Is that where you are, Ms Guerra?

34MS GUERRA:  Your Honour, it will be the Derrimut Justice Service Centre where all community work orders are now sent.

35HIS HONOUR:  All right.  Well, there it is.

36MS BYE:  Is that hard to get to?

37OFFENDER:  Yeah, very far.  That's on the west – it's in the western suburbs.

38HIS HONOUR:  Sorry?

39MS BYE:  Your Honour, apparently that's a difficulty for him to get to.

40HIS HONOUR:  Well, I'm not sure where Derrimut is.

41MS BYE:  I don't ‑ ‑ ‑ 

42OFFENDER:  Um, it's near, ah – it's near, um, Truganina and stuff.

43HIS HONOUR:  He's living at Reservoir.  Is Derrimut down in the western suburbs?

44OFFENDER:  Yeah.

45HIS HONOUR:  That far west?  Am I right there's ‑ ‑ ‑ 

46MS GUERRA:  It is, Your Honour.  However ‑ ‑ ‑ 

47HIS HONOUR:  I'll just find out where it is.  Where's he living?

48MR AJAK:  He's in Heidelberg West, Your Honour.

49HIS HONOUR:  Heidelberg.  So I've got to – I mean, he'll have to go to – well, to the extent that it's monitored.  Are you telling me that work only community corrections orders are managed from there?

50MS GUERRA:  Yes, Your Honour.  Remotely.

51HIS HONOUR:  Well, of course, he doesn't have to go there to be supervised, he just has to go to the work sites?

52MS GUERRA:  Yes, Your Honour.

53HIS HONOUR:  All right.

54MS GUERRA:  And those work sites are organised within close proximity to the residence.

55HIS HONOUR:  Yes, all right.  So that's all right.  Look, Mr Ajak, can tell me what your problem is.  What's his problem?

56MR AJAK:  Your Honour, he was just asking if he has to go there once – so I suspect to be inducted.  He'd have to tell ‑ ‑ ‑ 

57HIS HONOUR:  No, I don't think he has to be.  Ms Guerra, he doesn't have to be inducted?  This is a work only thing, you don't ‑ ‑ ‑ 

58MS GUERRA:  The induction will occur remotely via phone.

59HIS HONOUR:  All right.  Yes, if he wouldn't mind answering the phone this time that would help everybody.

60MR AJAK:  Thanks, Your Honour.

61HIS HONOUR:  How do I word it, Ms Bye?  I cancel the order – the community corrections order – and re-sentence?

62MS BYE:  Re-sentence, Your Honour.

63HIS HONOUR:  In the way I've described, on all charges.

64ASSOCIATE:  Sorry, I thought it was the other one.

65HIS HONOUR:  On all I convict and impose a community corrections order, 12 months duration, the usual terms, and additional term; 150 hours of unpaid community work.  All right.  Are there any other orders that I need to make?

66MS BYE:  I don't think there was ‑ ‑ ‑ 

67HIS HONOUR:  I suspect not.

68MS BYE:  No, I don't think so, Your Honour.

69HIS HONOUR:  The s6AAA indication was made those many years ago when I sentenced him and I don't think there's a need to add to that.  All right.  Stand up please, Mr Dawale.  All right.  Now, I'm fining you $400 for the offence of breaching the order – so you'll have to come up with that fairly quickly, I should imagine – then a community corrections order, but what's called a 'work only' community corrections order, so the usual terms apply.  They are that you don't commit another offence over the next 12 months, that you comply with a regulation that states that you not attend any work site affected by alcohol or drugs, or in possession of illegal drugs.  You must report to and receive visits from Community Corrections at their discretion.  It says here you must report to the Community Corrections Centre within two clear working days.  Is that the phone contact, is it?

70MS GUERRA:  Yes, Your Honour.

71HIS HONOUR:  Yes, he'll be contacted.  You must let Community Corrections know within two days of a change of address or job.  You must not leave Victoria without getting their permission to do so.  You must obey all of their lawful instructions.  The additional condition is you perform 150 hours of unpaid community work.  You'll be told where that is and that is 150 hours of unpaid work over a period of 12 months.  What's the arrangement?  He'll be contacted by phone.  Is he told a particular time that he must be available to speak to the relevant person?

72MS GUERRA:  So ‑ ‑ ‑ 

73HIS HONOUR:  Go on.

74MS GUERRA:  Your Honour, for the first reporting Mr Dawale should contact the service, which - the number will be on his order - and then, following that, phone contact will be established as required.

75HIS HONOUR:  All right.  So there's a number here, you've got to phone that.

76OFFENDER:  Yeah, I understand.

77HIS HONOUR:  All right.  I recommend that you do that as soon as possible.  Now, do you understand the order?

78OFFENDER:  Yes, Your Honour.

79HIS HONOUR:  All right.  And do you agree to it?

80OFFENDER:  Yes, I agree to it.

81HIS HONOUR:  All right.  Well, I'm going to sign it, and then I'll get you to sign it and you can be given a copy.  All right, you can go now.  Thank you, Mr Ajak.  I've signed it – haven't I signed it?

82ASSOCIATE:  You've signed it.

83HIS HONOUR:  Yes, all right.  Yes, sit in court there and my associate will give you a copy of the order.

84OFFENDER:  Yeah.

85HIS HONOUR:  The phone number is on it.

86OFFENDER:  Yeah.  I'll give 'em a call.  I'll ‑ ‑ ‑ 

87HIS HONOUR:  Don't fail to ring it up, will you?  You ring them.

88OFFENDER:  I'll give 'em a call right now.

89HIS HONOUR:  All right, you can go now.  Thank you for your assistance today, Ms Guerra.  All right.  Thank you, Mr Ajak.

90MR AJAK:  Thanks.  And if I may be excused?

91HIS HONOUR:  You're excused.  Are you in the next matter?

92MS BYE:  I am, Your Honour.  Yes.

93HIS HONOUR:  Yes, all right.

---