Director of Public Prosecutions v Erradi

[2015] VCC 1672

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01700

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDELOUAHED ERRADI

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2015
DATE OF SENTENCE:	20 November 2015
CASE MAY BE CITED AS:	DPP v Erradi
MEDIUM NEUTRAL CITATION:	[2015] VCC 1672

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty 1 charge using a carriage service to harass; one charge stalking – 7000 phone calls to 2 police stations over 2 months whilst affected by drugs or alcohol  – mental health issues . 
Sentence:  Using carriage service 7 months imprisonment  231 days  pre sentence detention – released forthwith recognisance  order for 2 years with $1000 surety –
Stalking – 2 year CCO with conditions and  judicial monitoring

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms A. Payten	CDPP
For the Accused	Mr C. Yang	Paul Vale

HER HONOUR:

1Abdelouahed Erradi, you have pleaded guilty to one charge of using a carriage service to menace, harass or cause offence and one charge of stalking.

2Between 1 February and 28 March 2015, a two month period, you made 7193 telephone calls to police stations in two States.  3052 calls were to the Bankstown Police Station in New South Wales.  2054 calls were to the Campsie Police Station also in New South Wales, and 2085 calls were to the Bunbury Police Station in Western Australia.

3The content of the calls was vulgar, threatening and menacing in nature.  Each time you called and the phone was answered by a police officer you made comments such as, "Fuck you, you mother fucker.  I'll fuck your mother with my cock.  I'll kill the police.  I'll blow the police station".  This is only a small but representative sample of the type of comments you made.  You also made offensive remarks in relation to the 2014 siege events in Martin Place, Sydney.

4Forty-two police officers made statements recounting the large number of calls made with examples of their content and explaining the effect of the calls, both personally and on their work.  The frequency and number of calls  caused significant interference with police work, as police often had to resort to leaving the phone off the hook instead of replacing the receiver as that only encouraged you to call back.  This meant other callers wanting to discuss legitimate matters with the police could not get through.

5Personally, officers reported feeling threatened, harassed and intimidated by the calls.  One officer in particular, Senior Constable Linda Southall of Bankstown Police Station received regular calls from you during the period of Charge 1, and later, between the 10th and 18 March this year, she bore the brunt of some 500 calls from you.  You made comments to her such as, "Fuck your slut mum, your dirty pussy.  Women Aussie is slut", and, "You need to be killed in that station.  All of you".  Again, this is a small but representative sample of the comments you made to Senior Constable Southall.  She felt apprehension and fear for her safety because of your calls and they had a significant impact on her ability to carry out her duties as a police officer.

6You were arrested on 3 April and taken to Bendigo Police Station where you took part in a recorded interview.  You said that you called the police in Bunbury because you had been treated in "a very racist and barbarian way", and you agreed that the police had asked you many times to stop calling.  You admitted having made offensive calls to Senior Constable Southall, saying this was because she had made a statement about you and that you had intended to upset her or intimidate her because you said you yourself had been treated that way.

7You were remanded in custody where you have remained and you pleaded guilty to the charges at a committal mention on 30 September.  On the application of the parties the case was moved to Melbourne to be heard.

8Throughout the offending period you were living in Bendigo where you had lived since late last year, arriving there from Bunbury in Western Australia.

9Your background is that you are a 36 year old man who was born in Morocco and came to Australia ten years ago.  You married here in 2008 and a daughter, who is now six, was born.  You and your wife separated in 2011 and you started to drink heavily and to use cannabis and other illegal substances.  During the four years since the separation you have had no contact with your daughter.

10In 2013 you saw a psychiatrist in New South Wales in relation to substance abuse but no medication for any mental health problems was prescribed.  In western Australia where you had gone to try and start a new life you spent three weeks in a psychiatric hospital and again no medication was prescribed.  During your time in Australia you have always worked, either as a labourer or in your trade as a butcher and you last worked in a chicken factory in Bendigo until your arrest.

11The motivation for the offending stems from your separation and inability to see your daughter, with several related events causing you to feel badly treated by the police.  The police had assisted your wife to obtain an intervention order against you.  Later, when unable to locate you, they contacted your brother to obtain your phone number, which angered you as you considered this was an invasion of your brother's privacy.

12Senior Constable Southall became the target of your calls after she made a statement about your behaviour at the police station when you went there to report an unrelated matter.  You say the police there had asked you to speak English and you confronted them and verbally abused them.  It was after this that you moved to Western Australia to escape these circumstances and to avoid abusing alcohol and drugs.

13You stayed there three months, working as a meat inspector, and there you say you were the victim of an unprovoked attack by a stranger one night.  You called the police and when they arrived your attacker and another man made false accusations to the police, whereupon you assaulted the man in front of the police and were charged.

14At court you felt mistreated by the system and perceived there was bias against you, resulting in wrongful conviction.  You then moved back to Victoria and made the phone calls to Bunbury.  You also made the calls to Campsie and Bankstown stations because of the calls those police made to your brother.

15Soon after your arrest you were placed in Chilwell Unit at the Melbourne Remand Centre, a unit for prisoners with mental health issues.  You were assessed by a psychiatrist, Dr Clare McInerney who, after the third consultation on 15 October, made a provisional diagnosis of a delusional disorder or psychosis and prescribed the anti-psychotic, Olanzapine.  That has had the effect of stabilising your mood and it appears your mental health has improved.

16In her notes made on 3 September Dr McInerney reported you telling her that you felt better, that you realised alcohol and drug abuse had played a part in you making the calls to the police, and she said you seemed less angry.  There was no evidence of delusions on that occasion but there was when she reviewed you about six weeks later on 15 October.  Not only was there a complete absence of remorse for your offending but you said you felt justified in making the calls.  This led to her provisional diagnosis as well as her view that it was likely that some of your previous behaviour was driven by illness.

17The forensic psychologist, Mr Cummins, saw you very recently and he considers that you are also suffering from an adjustment disorder with mixed disturbance of emotions and conduct.  He thinks your mental health problems are now in partial remission and that imprisonment has had a salutary effect on you so that you now feel you have learned your lesson and will not re-offend, even though you still feel angry about your belief that the police have helped your wife to stop you seeing your daughter.

18General deterrence needs are very high in this case.  It is a serious example of this type of offending.  Police resources were badly compromised by the calls you made, resources that are relied upon in emergencies and by members of the public in a wide variety of circumstances.  In behaving as you did you were totally absorbed in your own needs and oblivious of the needs and rights of others, but because of your mental illness you were not totally responsible for your actions.

19You say that you were often intoxicated or under the influence of illicit drugs at the time of making a call but that can only be part of the story in this case.  Because of the role played by your illness I should moderate your sentence to some degree while acknowledging at the same time the need for specific deterrence.  You deserve to be punished but you also require treatment for your problems, and the combination of a prison sentence, which you have already served, and that is for Charge 1, and a community corrections order for Charge 2 will provide for those separate needs.

20You pleaded guilty at an early stage and that has been of assistance in facilitating the process of justice, therefore you are entitled to a discount on your sentence.

21As for your prospects of rehabilitation, it is rather a complex picture.  You have a prior conviction for similar offending at a time when you were in a brief relationship, so the circumstances were quite different.  You seem to have benefited from your time on remand, being assessed and treated and coming to the realisation that you acted wrongly, but in order not to offend again you need supervision and assistance and you need to comply with taking the medication prescribed for you.

22From what you have told those in authority at the prison, quite recently, in October, you still intended to contact the premier of Western Australia to complain about your mistreatment by the police.  That gives rise to a concern that you still do not fully appreciate that you acted wrongly and that it must not happen again.  However, it was a month later that you saw Mr Cummins, and he reported a rather different attitude, indicating that you have learned a lesson.  Hopefully that remains the case and the treatment that you are going to have will reinforce that changed attitude.

23Will you stand now, please?

24In relation to Charge 1, which is a charge under Commonwealth legislation, I sentence you to seven months' imprisonment which commences today.  I note that you have been in custody for 231 days, which I declare to be reckoned as already served and I shall note it on the court record.  You will be released forthwith upon giving a security of $1000 to comply with a condition to be of good behaviour for two years.

25As to Charge 2, the State charge of stalking, you have been assessed as suitable for a Community Corrections Order and I shall impose that sentence.  It starts today and will last for two years and a conviction will be recorded.  You must have treatment for drug and alcohol use and for mental health issues.  You will also be under supervision.  You must attend programs to address factors relating to offending.  I expect that you will be required to have a mental health plan arranged and if that is the appropriate course it should be done as soon as possible.  I have not required you to perform any hours of community work as the purpose of the order is to ensure that you continue with treatment.

26There will also be a condition for judicial monitoring.  That means that you must return to court to see me from time to time.  Because you will probably be living in Bendigo this can be arranged by video link from Bendigo Court.  You will not have to have your lawyer with you but the Corrections officer will also appear by video link and will give me a progress report.

27If you had pleaded not guilty to these charges I would have sentenced you to ten months' imprisonment and a community corrections order for three years respectively.

28HER HONOUR: Let me look at the diary and see when there's a suitable date to see your client, Mr Yang.

29MR YANG:  Yes, Your Honour.

30HER HONOUR:  Wednesday, 9 December at 9.30.  This needn't concern you, of course, Mr Yang.  It's only for your client to attend.

31MR YANG:  Yes, Your Honour.

32HER HONOUR:  So do you understand that, Mr Erradi?

33ACCUSED:  Yes, Your Honour.

34HER HONOUR:  All right, 9.30, Wednesday, 9 December, and you go to Bendigo Court and a video link will be arranged.  That order will be ready in a moment.

35MR YANG:  As Your Honour pleases.

36MS PAYTEN:  Your Honour, I have completed the recognisance release order form.

37HER HONOUR:  Thank you.

38MS PAYTEN:  And I will hand that up.      

HER HONOUR:  At my instigation my associate rang the officer in charge of the cells this morning to make sure that a provision was in place for

Mr Erradi's release. The officer assured my associate that Mr Erradi would be supplied with a MYKI card,  a Coles voucher and a Centrelink form that he needs to fill in to apply for a crisis payment, which takes a couple of days to come through.  So that's what he will receive downstairs when he is released.  It is then suggested that he go to the Magistrates' Court to see the Salvation Army officer on the fourth floor who will assist him with any other of his needs,  given that he has to get back to Bendigo. In fact I did not explain to him but I will in a moment, about going back to Bendigo and reporting to the officer in charge of Corrections there.  If you have got the time and opportunity to reinforce this with Mr Erradi that would be a good thing.

39MR YANG:  Yes.

40HER HONOUR:  If someone was available to escort him over to the Magistrates' Court after he is released.

41MR YANG:  I will do so personally, Your Honour.

42HER HONOUR:  Thank you very much.

43MR YANG:  Thank you, Your Honour.

44HER HONOUR:  Mr Erradi, can I just tell you this?  That it is part of the Community Correction Order that you must go back to Bendigo and report to the Community Corrections office there by the end of Tuesday.

45ACCUSED:  (Indistinct).

46HER HONOUR:  So before four o'clock on Tuesday afternoon.  You have got all day Monday and all day Tuesday.   It is at No.18 to 20 St Andrew's Avenue, Bendigo.  That is where the office is, all right?  You just heard me tell Mr Yang that provision has been made for you to receive some items that will assist you in getting back to Bendigo as soon as possible.

47ACCUSED:  (Indistinct).

48HER HONOUR:  Thank you.  Anything else, Ms Payten?

49MS PAYTEN: Your Honour, one other brief matter along those lines. Peculiar to the Crimes Act, s.16F requires Your Honour to explain briefly to the offender in simple terms the purpose of setting a recognisance release order.

50HER HONOUR:  I see, yes, thank you.  This is something I often ask defence counsel to reinforce later as well, Mr Yang.

51Mr Erradi, the $1000 recognise that I mentioned, is not a sum you have to pay now.  It is only a sum of money that you would have to pay if you breach the good behaviour condition that is going to operate for the next two years as well, and if that did happen, if there was some breach of it, you would have to be brought back here. But you also have, through your counsel and your solicitors, the opportunity to come back to court to have the order changed if there is any change in your circumstances. 

52I think that covers it, does it not, Ms Payten?

53MS PAYTEN:  Yes, Your Honour, thank you.

54MR YANG:  As Your Honour pleases.

55HER HONOUR:  Thank you.  I do not think there is anything else.

56COUNSEL  As Your Honour pleases.

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