Director of Public Prosecutions v Fanous
[2014] VCC 603
•5 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00136
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MARIO FANOUS |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2014 | |
DATE OF SENTENCE: | 5 May 2014 | |
CASE MAY BE CITED AS: | DPP v Fanous | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 603 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – attempt to pervert the course of justice
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Cases Cited:Director of Public Prosecutions v Fanous; Director of Public Prosecutions v Fanous [2014] VCC 421
Sentence: Convicted and fined $5,000. S6AAA declaration: conviction and fine of $7,000.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Thomas | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr S Petrovich | MDG Lawyers |
HIS HONOUR:
1 Mario Fanous, you have pleaded guilty to one charge of attempting to pervert the course of justice, the maximum penalty for which is 25 years’ imprisonment.
Circumstances of Offending
2 The facts are not in dispute and are described in Exhibit “A”, the Summary of Prosecution Opening. Further, details of the circumstances of the offending are described in a ruling I made as to the admissibility of various aspects of the evidence, both in respect of this charge, and the same charge brought against your father.[1] Given those matters, it is unnecessary for me to recite details of your offending.
[1]DPP v Fanous (Mario); DPP v Fanous (Emad) [2014] VCC 421
3 In brief compass, on 10 May 2011 you were acting as the supervising driver of a motor vehicle driven by your brother, who held a learners permit. You were suspended from driving at the time. The vehicle was involved in a collision and was extensively damaged. When the police arrived, you told them that your father was the supervising driver, and he had left the scene of the collision to seek assistance from a relative who lived nearby.
4 You have now conceded that that statement to the police was untruthful and designed to deflect a potential prosecution against you or your brother Anthony.
5 Subsequently, you were taken to the police station, and made a “no comment” record of interview, as is your right. It was put by your counsel that you did not, at the time of making the statement, further compound the untruth, although it must be said that you took no steps to recant it.
6 You were subsequently arrested, and the matter listed for trial. As a result of the ruling I had earlier made, a plea of guilty was entered, and although entered at a late time, I accept that concessions were made to the police and the Office of Public Prosecutions in all respects, save as to the admissibility of the statement made to the police at the time of the collision.
Factors Personal to You
7 You are now 28 years of age and were 25 at the time of offending. You are a single man, and live with your family. You were born in Egypt and arrived in Australia in 1988. You grew up in a stable home environment and no one else in your family, neither your parents nor two younger brothers, have ever been involved with the authorities before.
8 After school, you attended Swinburne University over the years from 2003 to 2005, and obtained a degree in accounting. You decided upon a change in vocation and have now worked at a 7-Eleven store over the past four years, in the expectation that you will at some point own your own franchise.
9 The vehicle that was driven at the time of the collision was written-off, and I was told that as a result a loss of approximately $13,000 was suffered.
Sentencing Considerations
10 The purposes for which a court may impose a sentence are:
· Punishment – to an extent and in a manner which is just in all the circumstances;
· Deterrence – both specific and general;
· Rehabilitation;
· Denunciation and/or protection of the community.
11 You have pleaded guilty, although at a late stage, and are entitled to have that fact taken into account in your favour.
12 You are a youthful offender and as such, rehabilitation is an important sentencing factor. Given your lack of relevant prior convictions, a stable home life and full-time employment, I accept the submission of your counsel that the prospects of re-offending are very limited.
13 I accept the plea of your counsel that this conviction on such a serious charge is, itself, a matter of significance for a person hoping to establish a career in either accounting or in a business franchise.
14 I accept the submission that when approached by the police, you were startled and frightened and concerned that because your motor vehicle licence was suspended, you faced a further prosecution. While that does not excuse the blatant lie made to the police, it explains the circumstances under which it was made.
15 You have a number of prior convictions, being speeding matters, and, as I have said, you had your licence suspended prior to this offending. While they are matters to be taken into account, they are not significant as sentencing considerations.
16 While the charge is serious, as is reflected by the maximum penalty, I regard your offending as at the lower end of the scale. There was no injury sustained in the collision and the statement to the police was made only on the one occasion. However, the lie led to further investigations by the police and a significant amount of public time and effort was wasted pursuing those investigations.
17 However, I am satisfied that the significant sentencing considerations, in particular specific and general deterrence, and appropriate punishment can be achieved without the need for a term of imprisonment.
Sentence to be Imposed
18 Taking into account all of the matters to which I have referred, I impose the following sentence:
19 On the charge of attempting to pervert the course of justice, you are convicted and ordered to pay a fine of $5,000.
20 Under s.6AAA of the Sentencing Act 1991, I state that but for your plea of guilty, I would have imposed a fine of $7,000.
21 MS HOANG: As Your Honour pleases.
22 MR PORTER: As Your Honour please.
23 HIS HONOUR: Anything further?
24 MR HOANG: No, Your Honour.
25 MR PORTER: Just the time to pay, Your Honour.
26 HIS HONOUR: Yes. What sort of a stay do you want?
27 MR PORTER: My instructions are to seek the maximum that Your Honour would allow. Perhaps say of three months, Your Honour?
28 HIS HONOUR: A stay of three months?
29 MS HOANG: Not opposed, Your Honour.
30 HIS HONOUR: Very well. I'll grant a stay of three months in relation to the payment of the fine.
31 MR PORTER: Thank you, Your Honour.
32 HIS HONOUR: Thank you. Anything further?
33 COUNSEL: No, Your Honour.
34 HIS HONOUR: Thank you.
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