Director of Public Prosecutions v Erradi
[2016] VCC 1902
•25 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-01700
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ABDELOUAHED ERRADI |
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| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 November 2016 |
| DATE OF SENTENCE: | 25 November 2016 |
| CASE MAY BE CITED AS: | DPP v Erradi |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1902 |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleas of guilty to one charge of using a carriage service to menace, harass or cause offence, one charge of stalking, one charge of using a carriage service to make a threat to cause serious harm and one charge of using a carriage service to make a threat to kill - offending is breach of CCO imposed for similar offending – Verdins principles applicable – alcohol and drug use played part in offending but judgment affected by mental illness – unsuitable for further CCO – recidivist offending too serious for CCO.
Cases cited -Verdins v R [2007] VSCA 102
Sentence: TES 3 years, non parole period 15 months.
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| APPEARANCES | Counsel | Solicitors |
| For the DPP | Ms E Linfoot | OPP |
| For the Accused | Mr Antos | Yang & Vale |
HER HONOUR:
1Abdelouahed Erradi, you have pleaded guilty to one charge of using a carriage service to menace, harass or cause offence; one charge of stalking; one charge of using a carriage service to make a threat to cause serious harm; and one charge of using a carriage service to make a threat to kill.
2The details of the offending in relation to Charge 1 are that between 20 February 2016 and 9 June 2016 you made 875 calls from your mobile phone to the Bankstown police station in New South Wales, 825 calls to Bunbury police station in Western Australia, 68 calls to Perth Communications Centre and 42 calls to Bunbury Magistrates' Court in Western Australia.
3All these calls amounted to 40 hours, with more than 39 hours of that time being calls to police. The calls were aggressive, abusive and vulgar in nature. During the calls, you shouted and swore in English and Arabic. Police officers at Bankstown police station received calls constantly and as soon as one call ended, you would call back straightaway.
4On some occasions, you persisted with calls over a long period. For example, you made 609 calls to Bunbury police station between 7.56 pm on 15 April and 2 pm on 16 April. The total duration of those calls was around 10 hours and
25 minutes.5Between 10.22 pm on 1 May and 1.43 pm on 2 May, you made 422 calls to Bankstown police station with the total duration of those calls being around
9 hours and 22 minutes. Those calls were abusive and of a sexual nature, such as "I'm going to fuck up your commissioner" and the use of the words like "cock" and "dick" when speaking with the police. None of these calls related to any genuine request for advice or assistance. A police officer at Bunbury police station reported answering your calls and you called her "a motherfucker" and "a slut".6Calls from you to the Perth Communications Centre were recorded and contained similar words and abusive language. Police reported that your calls took up considerable time and that the frequency of the calls could prevent other members of the public from speaking with the police or reporting urgent matters and this in turn, could cause delays in police attendance and response.
7The stalking charge was unrelated to the phone calls. On 14 January 2016, you were involved in a traffic collision with Mr Gregory Westbrook and you exchanged details. On 20 January, you rang Mr Westbrook and said you would stab him unless he fixed your car. That is Charge 3 - using a carriage service to threaten serious harm.
8On 1 June, you told Mr Westbrook in a phone conversation that you would be coming to Bendigo the following day. The next day, you went to Mr Westbrook's office and expressed your grievances to him and his staff. You returned the following day and acted in an aggressive and threatening way.
9On 7 June, so that is six days later, you called Mr Westbrook's office nine times between 11.20 and 12.45 pm requesting that he pay for your car. The ongoing contact with Mr Westbrook and his office is Charge 2, the stalking charge.
10Speaking to a staff member at Mr Westbrook's office, you told her, "Your mother is a whore, you are the son of a whore. I will stab him. Stab the motherfucker. I will shoot him. I will start a war on Bendigo." That is part of Charge 4.
11You continued screaming and saying you were going to "fuck Westbrook up" and the staff member was very concerned and notified the police. At 12.29 that day, you called the Bendigo police station and spoke with Constable Jelbart telling her that you had been involved in a car accident with a lawyer from Bendigo called Greg at the start of the year and asked Constable Jelbart to do a police report for the accident.
12You indicated that you knew which suburb Mr Westbrook lived in. You became angry when Constable Jelbart said she would not do a police report and you told her that if she did not do so, you would stab Mr Westbrook and it would be her fault for not helping. You said you knew where Mr Westbrook lived and you were going to kill him to make him pay because he needs to be punished. That is also part of Charge 4.
13Mr Westbrook was concerned because you knew where he lived and your behaviour was escalating in its seriousness. He was extremely concerned for the safety of himself and his family and they moved out of their home for a week.
14Mr Westbrook provided a victim impact statement in which he described his apprehension that you might carry out your threats and it led him to close his law practice on 7 June after the threats you made to his staff member on the phone and he sent his staff home. For several months afterwards, he found it difficult to concentrate and was extremely anxious. He conceded that his family suffered from this as well as his work.
15Mr Westbrook's anxiety was no doubt exacerbated by his perception that you had come to Bendigo solely to confront and threaten him and his staff, and he was not to know that you had genuine reasons for being there - to go to court in relation to a driving charge and to attend a supervision appointment with Corrections.
16You were arrested on 12 June and taken to Fawkner police station where you spat at an officer and punched the window of the interview room. Because of this aggression, you were not interviewed. You were remanded in custody and you have remained there and have now spent 166 days in detention not including today.
17You pleaded guilty to the charges at committal mention in September and for that you are entitled to a discount on your sentence as it has avoided a trial and has expedited the hearing of the case. I also accept it as some indication of remorse as you seem to have acknowledged that your behaviour was wrong. You told your friend Mr Imlahi when he visited you in prison that your behaviour was your own fault, that you were guilty and you did not know why you behaved as you did.
18The immediate history of your offending dates back to 15 November 2015 when I sentenced you to seven months' imprisonment with a Community Correction Oder for two years. You had already served 231 days in detention then and you were released forthwith on a recognisance release order to be of good behaviour for two years.
19That sentence was for almost identical offending - that of making constant and abusive phone calls but many more of them over a short period of time. The stalking behaviour then was in relation to a particular member of the police force in Bankstown. This time, the stalking charge is even more serious as the victim was a member of the public who felt very vulnerable himself but also feared that his family and staff were vulnerable as well.
20In my previous sentencing remarks, I noted that you had been living in Bendigo during the offending period after arriving there from Bunbury in Western Australia the previous year.
21You were then aged 36, you are now 37, having been born in Morocco and having come to Australia in about 2005. You married here in 2008 and you have a daughter who is now seven, but you and your wife separated in 2011, and you have not seen your daughter or had any contact with her for a long time. This continues to be a matter of great sorrow for you.
22You have had problems with substance abuse, including both drugs and alcohol, for some years, and this was the cause of the separation from your wife. There is also a history of mental health problems dating back to your time in Bunbury when you spent three weeks in a psychiatric hospital.
23Since the separation, your contact with the police has produced perceptions that you have not only been treated unfairly but your mistreatment was racially based and discriminatory. You believe you were wrongly convicted of assault in Western Australia. These experiences and perceptions gave rise to the phone calls you made at that time.
24I also noted previously that whilst at MRC you were assessed by a psychiatrist, Dr Claire McInerney who made a provisional diagnosis of a delusional disorder or psychosis and prescribed the anti-psychotic olanzapine. It then had the effect of stabilising your mood, and your mental health appeared to have improved. This was the first time you had been medicated for that disorder, or so it would seem, as nothing is known of the details of your hospitalisation in Western Australia.
25You had told Dr McInerney that alcohol and drugs had played a part in your offending and six weeks after she made that note, she said there were further signs of delusion in your presentation. This was at a time when you had been in custody for some time and so neither alcohol nor drugs could have played a part.
26These comments and observations are relevant not only to the repeat offending which has occurred but also to the submissions concerning a possible application of the principles in the decision of Verdins. In sentencing you last time, I moderated your sentence to some degree because I concluded that your mental illness had reduced your responsibility for your actions and that being intoxicated or under the influence of drugs at the time of making the calls was only part of the story.
27There was some confidence expressed then in your prospects for rehabilitation subject to being supervised and assisted and being compliant with medication. I stated that a mental health plan if appropriate should be attended to as soon as possible and that your treatment was the principal purpose of the order.
28On release, you were initially compliant with the conditions of the Community Correction Oder and you were referred to ACSO COATS[1] for drug and alcohol treatment. It was recommended that you be referred for an "episode of complex counselling" to develop and apply a comprehensive relapse prevention plan. It was also recommended that you engage in psychological treatment through a referral via a mental health plan.
[1] Australian Community Support Organisation - Community Offender Assessment and Treatment Service
29The contravention report provided by Corrections states that "Due to a mix-up in relation to counselling placement, Mr Erradi was not scheduled to attend his first appointment with Bendigo Community Health Services until 13 April 2016." This was five months after being sentenced. You attended that appointment but you did not attend the next one scheduled for 20 April because by then you had had to leave your accommodation and go to Melbourne to live. No further appointments were scheduled as you had disengaged with the service.
30Clearly, you should have taken greater responsibility for your compliance but if the referral had been organised earlier, your opportunities for compliance would have been greater. Meanwhile, during that five-month delay, you had been referred by your general practitioner to a psychiatrist who assessed you on
18 February and diagnosed "an adjustment disorder with depressed mood in the background of anxious, dependent and anti-social personality traits."31You were again prescribed olanzapine which you were taking, but of course at that time, you had not yet been referred to a psychologist with your first appointment not scheduled until 13 April.
32You were also referred to SOATS[2] which stands for Specialised Offender Assessment and Treatment Service on 26 November very soon after being sentenced and it was recommended that you be referred to Forensicare. That referral was never made and you were remanded in custody on 12 June. No real explanation has been offered for that omission and it is an important one. There was no Corrections officer in attendance at the contravention hearing as would usually be the case and I am not aware of a reason for that.
[2] Specialised Offender Assessment and Treatment Service
33A report was prepared by the forensic psychologist Mr Cummins last year and an updated report recently after he assessed you in prison. When he saw you last year, Mr Cummins did not think you were delusional but you presented as moderately suspicious and moderately paranoid. He said the Forensicare notes made in custody disclosed obvious obsessional thinking, if not blatant delusional thinking, and that your mental health had stabilised through the prescribing of medication.
34At that time, Mr Cummins diagnosed an adjustment disorder with mixed disturbance of emotions and conduct. He considered that at the time of your offending, your ability to think clearly and to exercise appropriate judgment was significantly impaired as a result of your mental health problems and he recommended that you be linked in with a treatment facility, perhaps via Forensicare, as a condition of a court-imposed order.
35Mr Cummins repeated that recommendation in his recent report. There is no power under which the court can make such an order. But the conditions of the Community Correction Oder made a year ago resulted in a recommendation for Forensicare to be involved, as I said earlier, and it did not happen.
36Combined with that omission was the long delay in referring you to a psychologist as I have already noted. Mr Antos of counsel, who appeared on your behalf in this plea, suggested that if these referrals had been made promptly, as I had urged in my sentencing remarks, you might not have offended again. That may be so or at least the extent of your offending might have been reduced.
37You told Mr Cummins that it was once you relocated to Melbourne in late January or early February that you resumed drinking and using methamphetamine. Your compliance with medication was sporadic. You moved from Bendigo without the consent of the Corrections officer and stayed in a friend's bungalow. You say you were drinking a lot. Your friend was not happy with you. This coincides with the commencement of the offending and lends support to the prosecution's submission that substance abuse was the driver of the offending and that there is no nexus between it and your mental illness.
38In his recent report, Mr Cummins expressed his opinion that you are now intermittently engaging in delusional thinking in conjunction with suffering from and I quote, "at least one and possibly two adjustment disorders and also in conjunction with suffering from a persistent depressive disorder with melancholic features and mood-congruent psychotic features."
39Mr Cummins added that alcohol and drugs may have played a significant role in the offending but nonetheless, your mental health problems also played a significant role.
40Ms Linfoot, for the prosecution, submitted that insofar as the Verdins argument is concerned, the focus should be on recent rather than previous provisional diagnoses, and that there is now less room for mental illness to have played a part in your offending. The logical difficulty with that approach is that the current offending as far as the phone calls are concerned, is essentially the same as the earlier offending, motivated in the same way and carried out in the same way.
41The difference is in the more serious offences of stalking and making threats, which was an escalation of the offending, but they occurred during the same period of time and so under the same influences of substance abuse and mental instability.
42It is not possible to exclude the role of mental illness and the nexus between your condition and the offending, while accepting that substance abuse obviously played a central role.
43That being the case, I take the view, as I did in relation to the previous offending, that the principles in Verdins apply and that I should moderate the sentence insofar as general deterrence is concerned. Even so, it remains the fact that specific deterrence in your case is also of great importance because there can only be very guarded prospects for your rehabilitation.
44The principles in Verdins also apply in relation to your experience in custody. You are finding it difficult, being idle despite being given work to do but with too much time for rumination. You have been harming yourself, inflicting scratches and cuts on your arms. I take that matter into account in determining the length of your sentence and the non-parole period in particular.
45As for your rehabilitation, that brings me to the evidence given by Mr Abdelkader Imlahi who for many years has been involved with the Moroccan community and is now the president of the community's association. He has known you since early this year and explained that you are accepted as a full member of the community before you were taken into custody. He has been visiting you in prison each fortnight and has been involved in making a plan for supporting you after your release. He said he had not known of the offending and was shocked to learn of it.
46Your community is prepared to assist you with accommodation in the bungalow where you were living previously and the owners would provide you with food and other assistance, I am told. It is likely that a job would be found for you and you would be encouraged to join in community activities. Mr Imlahi explained that the Moroccan community is a very small one and its members are generally known to each other and meet regularly in social gatherings.
47In view of that support and in taking account of the deficiencies in the provision of services by Corrections, I formed the view initially that a further period of custody to be served in combination with a new Community Correction Oder would be an appropriate sentence. Upon further consideration of the seriousness and escalation of the offending and in light at least in part of your assessment as unsuitable for a Community Correction Oder, I will not adopt that course as you have heard this afternoon.
48The Corrections officer who assessed you noted that you have contravened two Community Correction Orders by these offences and the officer set out your history with Corrections, but as I said earlier, with no explanation as to the delay or the omission in relation to the Forensicare referral.
49It should be noted that the maximum penalties for these offences are as follows: for Charge 1 - using a carriage service to menace, harass or cause offence, imprisonment for three years; for Charge 2 - stalking, ten years; for Charge 3 - using a carriage service to make a threat to cause serious harm, seven years; and for Charge 4 - using a carriage service to make a threat to kill, ten years.
50The recent offending breaches both the Recognisance Release Order and the Community Correction Oder but in the circumstances and in view of the terms of imprisonment I shall impose, it is not necessary that order I any further action to be taken. Accordingly, the Correction Order is cancelled and I sentence you as follows. There will be a total effective sentence of three years. Would you stand please, Mr Erradi? Thank you.
51As you heard before, the intention is that you will serve a further ten months before being eligible for parole and being released on a Recognisance Release Order and that is to be achieved by making the following orders.
52For Charge 2, the State charge, you are sentenced to two years' imprisonment. That begins today. I will fix a period of 15 months which you must serve before being eligible for parole. Because you have already served 166 days which is about five months - a little over, you will have to serve approximately ten months before being eligible for parole.
53For each of the Commonwealth charges, you are sentenced to 12 months' imprisonment. The sentence for Charge 4 begins in six months' time on 25 May 2017. Then after nine months, the sentence for Charge 3 begins. That would be on 25 February 2018. Then after a further nine months, the sentence for Charge 1 begins.
54The Recognisance Release Order will require you to be released after serving ten months of the Commonwealth charges. So that would see you with a release date for the Recognisance Release Order on 25 October 2017. I will return to that in a moment.
55Now that provides you with a long period of parole and/or being on the Recognisance Release Order during which time, you will be able take up the support that you have been offered while attending to your obligations as part of your parole, and the Recognisance Release Order will include the condition that you be treated through Forensicare once you are assessed as suitable for that.
56You have now spent 166 days in pre-sentence detention and I declare that is to be reckoned as already served, and I shall cause that to be noted on the court record.
57I have not attended to s.6AAA because the notation about that that I had prepared earlier would not apply, so I will attend to that in a moment.
58Ms Linfoot, can I check with you as to whether I read those orders out correctly in relation to the commencement date of the RRO?
59MS LINFOOT: Yes, Your Honour. That accords with my calculations that I read out earlier.
60HER HONOUR: Good. Thank you. Just give me a few moments please for the s.6AAA order.
61COUNSEL: Yes.
62HER HONOUR: The order under s.6AAA is as follows, that if you had pleaded not guilty to these charges, I would have sentenced you to a total effective sentence of four years, to serve two years and nine months by way of a non-parole period and to be released under a Recognisance Release Order. I do not think that has to be technically accurate to comply with s.6AAA.
63Now, the recognisance release order needs to be signed?
64MS LINFOOT: Yes, Your Honour.
65HER HONOUR: Be seated for the moment, Mr Erradi.
66MS LINFOOT: Your Honour will need to indicate the recognisance amount and a good behaviour period and then the other conditions that Your Honour wants to add to that.
67HER HONOUR: Yes. Yes, thank you. All right. What was the time that was suggested for the Forensicare treatment to be instituted?
68MS LINFOOT: Nothing was suggested in Mr Cummins’ report. In another matter, it was three years. I am not sure what time they require toward ‑ ‑ ‑
69HER HONOUR: I would have thought two years might be sufficient.
70COUNSEL: Yes.
71HER HONOUR: All right. Mr Erradi, there are just a few more things I need to say to you, if you would stand again, please.
72I fix the recognisance in the sum of $1000. That is not a sum you have to pay now, but it is a sum that could be forfeited if you did not comply with the order at some later time. There will be a condition that you be of good behaviour for two years and participate in treatment with Forensicare during that time.
73Now, those are very important conditions because if you were to breach the good behaviour condition by any offending or anything which would bring you to the attention to the police then that would be possibly a breach of the order and it would bring you back to court to be re-sentenced. The same would apply in relation to the condition that you have treatment through Forensicare. That also is most important.
74The last thing I need to say to you is to advise you that if at any time there seems to be a need to vary the order or change it or cancel it or take some further steps in relation to the order, you can do that through your lawyer. Now, if you have any questions about that I am sure Mr Antos will tell you that that requirement is set out in the Crimes Act (Cth) and I am obliged to tell you about it now. It is not something that you probably will take much notice of right now but it is necessary for me to tell you that.
75MS LINFOOT: Your Honour, I will prepare the Recognisance Release Order. Can I just clarify the wording of the condition in relation to Forensicare? Will that be as Your Honour just said or will it be as set out in the example which was that "The defendant attend for assessment and if assessed as suitable, be treated through the problem behaviour program of Forensicare"?
76HER HONOUR: Yes.
77MS LINFOOT: Yes.
78HER HONOUR: That is what I intended my order to cover.
79MS LINFOOT: Yes, Your Honour. It will just take me a moment to add that to the order.
80HER HONOUR: Certainly.
81MS LINFOOT: Your Honour, there was an additional condition on the example provided which was that if the defendant is assessed as unsuitable to undertake the program, then he would have to come back before the court. Was it intended to include that in this order? I had not understood Your Honour to mean that.
82HER HONOUR: I do not know what “unsuitable” would mean. Seems pretty remote, does it not?
83MS LINFOOT: Yes.
84HER HONOUR: I do not think it is necessary.
85MS LINFOOT: It is unclear what action could be taken at that point in any event.
86HER HONOUR: Yes.
87MS LINFOOT: Yes.
88HER HONOUR: All right. Anything further?
89MS LINFOOT: Not from me, Your Honour.
90MR ANTOS: No, Your Honour.
91HER HONOUR: Is that ready to be signed now?
92MS LINFOOT: Your Honour, my friend has reviewed this and we will hand it up.
93MR ANTOS: Yes.
94HER HONOUR: Now, just while - sorry, go ahead. I will wait till you come back to the Bar table, Mr Antos. Is that done?
95COUNSEL: Yes, Your Honour.
96HER HONOUR: Anything further?
97MR ANTOS: Nothing further, Your Honour.
98MS LINFOOT: No, Your Honour.
99HER HONOUR: Well, I will take this opportunity to thank both counsel very much for your assistance. Whenever there is a Commonwealth and a State charge involved in the same indictment, it is no easy matter. So thank you very much.
100MR ANTOS: As Your Honour pleases.
101HER HONOUR: Adjourn the court please.
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