Director of Public Prosecutions v Fatho

[2019] VCC 1358

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02408

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDY FATHO

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 – 16 May, 5 July, 21 August 2019
DATE OF SENTENCE:	22 August 2019
CASE MAY BE CITED AS:	DPP v Fatho
MEDIUM NEUTRAL CITATION:	[2019] VCC 1358

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords: Plea of guilty; traffick commercial quantity 1,4-Butanediol; aged 19 at time of offence; prior criminal history; whether exceptions under section 5(2H) Sentencing Act 1991 (Vic) apply; version of sub-section in force at the time of offence; meaning of “psycho-social immaturity”

Legislation Cited:     Sentencing Act 1991 (Vic) ss 5(2H), 6AAA
Cases Cited:            DPP v Le-Galliene [2015] VCC 954
Sentence:                  19 months’ imprisonment followed by 18 month CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Saunders	Vanessa Mellios, Solicitor for the Office of Public prosecutions
For the Accused	Ms C. Dwyer	Giorgianni & Liang Lawyers

HER HONOUR:

1Andy Fatho, you have pleaded guilty to a charge of trafficking in a drug of dependence, namely 1,4-Butanediol in not less than a commercial quantity.  The maximum penalty for that charge is 25 years' imprisonment, which shows how objectively seriously offences of this nature are to be regarded.  You have also admitted a prior criminal history to which I shall refer later. 

2The charge against you arises out of a police investigation which commenced in late 2017, into the trafficking in drugs, primarily by your brother, Aysar Fatho and others, which led to the detection of several other people involved. 

3Your case was heard with those of five other people involved, including your brother, Aysar Fatho and also Mr John Mansoor, Mr Ngoc Huynh, Mr James Van and Mr Andrea Verrina.  You eldest brother and some other persons have also been charged with related offences, but they are to stand trial and I make no findings about their involvement. 

4Details of the background of the overall offending were outlined in a prosecution summary.  Essentially, your brother, Aysar Fatho, had been seeking a source of the substance called 1,4-Butanediol, which I will abbreviate to 1,4-BD, which although it is a chemical which can be used legally as a cleaning agent, is a proscribed drug of dependence when not used legally. 

5I understand that when ingested it metabolises into the drug known as GHB.  Your brother, Aysar, was seeking a source of such drug to traffic to another group or syndicate and also to traffic through other people, including his own group of syndicate.  He was offered a supply of 1,4-BD by Mr Andrea Verrina, whom he knew but who was not part of any of these drug syndicates. 

6However, the substance initially provided through Mr Verrina in March 2018 was not in fact 1,4-BD, and when supplied by your brother, Aysar, to another syndicate, attracted a number of consumer complaints relayed back to him that the product was not of appropriate quality. 

7Various efforts were made by Aysar Fatho to solve that problem and ultimately, as he admitted, he acquired through burglary of a legitimate chemical company, a total eight 200 litre barrels of the substance 1,4-BD.  He agreed to exchange some of that for the previously supplied poor quality product and an arrangement was reached that two of the 200 litre barrels would be provided to Mr Huynh and Mr Van and their associates in exchange for the initially supplied bad product. 

8This exchange, which would constitute trafficking, was planned to occur on
28 April 2018, and there were many calls intercepted by police over the course of that day about issues of availability of suitable transportation, enough men to load or unload the drug substance at each end. 

9Police were keeping surveillance on various relevant people and premises, including your brother Aysar's house, and a storage premises at 52 Potter Street, Craigieburn, of which he is said to have been occupier or at least of which he had some control. 

10Turning to your specific involvement, shortly before 5 pm on 28 April last year, one or more vehicles were driven from your brother Aysar's house to the storage premises at 52 Potter Street, and you were in one of them.  Shortly after 5 pm, you together with Mr Mansoor and allegedly your older brother, Aymon Fatho were observed through police surveillance loading barrels onto a trailer attached to a white van at 52 Potter Street, Craigieburn. 

11Police then entered the premises.  All three of the people loading the van, including you, ran away and were chased by police. Each of you was caught.  You were observed by the police constable chasing you to remove multiple items, including phones, from you tracksuit pocket.  You started to climb the fence but the police officer pulled you down and arrested you. You were interviewed by police that night, and remanded in custody where you have been ever since.    

12I must assess the seriousness of this offending, both objectively and having regard to your personal role and culpability - culpability means your personal blameworthiness.

13There can be no doubt that trafficking in a commercial quantity of a drug of dependence is regarded by Parliament and the community as a very serious offence. That is reflected not only in the high maximum penalty, 25 years' imprisonment, which is the second highest maximum penalty known under our system of law, but also in s.5(2H) of the Sentencing Act, which requires a term of imprisonment to be imposed unless one of the exceptions is established. Your counsel submits that you should be found to fall into one or more of those exceptions and I shall deal with that submission later.  Nevertheless, these matters indicate how very seriously offending of this nature is to be regarded objectively. 

14A commercial quantity for 1,4-BD is defined as 2 kilograms of substance containing it.  The amount of substance containing 1,4-BD found at your brother's premises that night was a total of 1402 kilograms.  You, however, are only charged in respect of 525 kilograms. Nonetheless, 525 kilograms is some 260 times the commercial quantity for this drug, and is undoubtedly a very large quantity for this drug, for which there is no defined “large commercial quantity” as there is for some other drugs of dependence.  Quantity is highly relevant to the objective seriousness of a drug trafficking offence, and the amount with which you were involved makes this objectively a very serious instance of this offence.    

15I explained when I sentenced four of your co-accused last month, that the distribution and use of drugs in our community is well recognised as causing extensive harm to the whole community.  It impacts destructively on the health and lives of individuals and often their families, and is very costly to the community in medical and other services. It also undermines the ability of many drug users to perform constructive activities in the community, including employment.  Indeed, as I will turn to later, it would appear that your best attempt at employment ceased because of your own drug use when you were aged 18. For these reasons, that is the impact on the community and individuals, the principles of general deterrence and denunciation are usually the most important sentencing factors.  It is important that people who contemplate embarking on large scale trafficking of drugs do so in the clear knowledge that if detected they will be sentenced to lengthy terms of imprisonment. That is a way of stating the principle of general deterrence.  Further, because of the harm done to the community through the trafficking of drugs of this type, protection of the community is also an important purpose of a sentence for such a charge.   

16The charge against you is limited to your involvement on the single date of
28 April 2018, being your participation in loading containers of the drugs onto a trailer for them to be conveyed for an exchange with Mr Van and Mr Huynh and their associates. I am sentencing you only for this extent of active involvement, although it is clear from other material, including intercepted phone calls and as described in the Crown summary and acknowledged on your behalf, that you had prior knowledge of your brother Aysar's drug trafficking operation, that he had committed a burglary to obtain a large quantity of this product, and that the purpose of the loading of these barrels on that day was to exchange some of this product for what had previously been supplied by your brother and been the subject of complaints as to its quality.    

17The prosecution accepts that for both you and Mr Mansoor, your roles are to be regarded as limited, both in time and participation, but not as being as at low a level as is sometimes described as being “merely a pair of hands” to help in the loading.  That is because both of you had more extensive knowledge of your brother Aysar's drug trafficking conduct and plans for the product that you were loading to be exchanged. Indeed, an intercepted call on the previous afternoon, 27 April 2018, between you and your brother, Aysar, referring to the eight barrels of product he had obtained through a burglary, indicates that you had discussed with him some of the wider aspects of the destination of this product, and confirms that you knew in advance of being asked to load those barrels, the purpose for which that was to occur. 

18It is submitted on your behalf that your role should be viewed as very limited in both time and activity, and therefore at a low level of seriousness for this offence.  It is also argued that your personal blameworthiness, what is called your “moral culpability,” should be viewed as much lower than for another person who might have done the same things but did not suffer the same personal attributes or conditions that are said to reduce your blameworthiness. These include your youth and immaturity at the time, relatively low intelligence, leaving you inclined not to think of consequences before acting, and to succumb to the influence of others and especially family.  It also is said to include your dependence on drugs at the time and the influence of those on you and your judgment.  I shall discuss the information relating to all of those matters later.

19When interviewed by police after your arrest that night, you claimed to be at those premises to carry something, having been asked by someone, who you would not name, to help out.  You claimed not to know what you were carrying.  It is clear from your plea of guilty that that was a lie. You also said that you had not used drugs. Indeed, in answer to Question 64, you said, 'my whole life, I've not touched a drug. I've never got anything – involved with drugs.'  You later said that everyone knew that you were not involved with drugs.  Those assertions also, I am now told, were totally untrue and indeed, that untruthfulness has been confirmed from other records, including in the Youth Justice System.

20Indeed, it is the various contradictory things that you have said about this and about your mental health that have caused some delay in your sentence, because I did not consider some of what I was being told to be reliable, and wanted some further information about it.

21It is clear from your plea of guilty that what you told the police were lies about now knowing that there were drugs in what you were moving at the time of your arrest.  As I have said, it is also now clear that you lied about other matters to police, whether from bravado, or through immaturity, or the effects of drugs which you may have been taking at the time.  I will discuss these aspects of your condition later. 

22You were remanded on the day you were arrested, 28 April last year, and have remained in adult custody ever since.  You were aged 19 at the time and I have been told how difficult you have found your experience in adult prison.  You have now been about 15 and a half months in prison and that will count towards your sentence. 

23You pleaded guilty to this charge at the time of the committal hearing in November last year, and before it commenced, or witnesses were called to be cross-examined on your behalf.  You were charged in conjunction with a large number of other people, and there were some delays in negotiation of appropriate charges for each of you. The prosecution accepts that the timing of your plea of guilty is to be regarded as at a reasonably early stage in this case, given the complexity and time taken at that stage for negotiations as to appropriate charges.    

24You are entitled to considerable leniency for your plea of guilty at that time as it has not only saved the time and expense of a trial and saved the inconvenience for witnesses, but it demonstrates your willingness to facilitate the course of justice and that you accept responsibility for your involvement. 

25It is also some reflection of remorse, although what you told police immediately afterwards was far from that.  You have told Ms Lechner, a psychologist who examined you for the purpose of this sentence, that you feel regret and shame about your offending.  Given your denials to police on the night after your arrest, I am not convinced that you have felt unqualified regret for what you did from the outset, as opposed to growing regret at finding yourself in the situation you have been for the last 15 or more months. However, in the context of the plea, I accept that that plea reflects some remorse on your part.    

26After I have imposed sentence, I will state what the sentence would have been, had you not pleaded guilty. 

27I turn now to your personal circumstances.  You are now aged 21 and, as I have said, were only 19 at the time of this offending.  You are the fourth of your parents’ six children.  You were born in Iraq but were only about one year old when the family escaped the war there, first to Turkey, and then to Greece, and ultimately, in 2002, to Australia. You would have been aged just four when you arrived in Australia.    

28Although you were yourself very young, I accept that the family as a whole had been exposed to very traumatic events before leaving Iraq, with an older brother killed there, your father shot and your mother also seriously injured, as well as the upheavals and risks and hardships in escaping first to Turkey, then to Greece before arriving in Australia with very little. The memories of trauma did not cease at that point, and apparently your parents have both continued to be affected by those.  Your father, you have said, has been alcoholic and your mother has been in hospital at times and often very emotionally traumatised and upset, reflecting on the death of your brother in Iraq and other matters.    

29You told Ms Lechner that when growing up, you were always told about what your family went through, and you say it “played with your head.”  I accept for you, as I did with your brother, that the ongoing effect of those traumatic experiences through your family, and their ongoing reactions to them, would undoubtedly have impacted on you in your childhood and teenage. Indeed, in a recent psychiatric report, Dr Chow is of the opinion that your parents’ experience of trauma has impacted on their capacity to parent you and your siblings.  She notes that they have certainly provided physically for you, but considers that emotionally, they have been ill-equipped as a result of their own experience of trauma. 

30When you arrived in Australia, you did not speak English, and I gather no one in the family did.  You have said that this made settling into a school and making friends very difficult, and that you were teased and bullied as a result of being unable to speak English. As you would have started primary school in Australia, within a year or so of arrival here, it would normally be expected that a child of your age would learn English quite quickly, even if another language was still spoken in their home.  Your slowness in doing so may have been due to learning difficulties which were not identified at the time.    

31Your behaviour clearly reflected that you did not settle into school.  You were expelled from your first primary school in Grade 3 for what you call 'displaying anger', which I take to have been at least in some way threatening to other children or to teachers for an expulsion to occur at that stage. You were also expelled from your next primary school for similar reasons.  You attended a third primary and then a secondary school, but eventually left school before completing Year 8.  You apparently achieved basic literacy in English, but clearly did not obtain a full education.  It is to your credit that you have used some of your time in custody to do some further education, described as general education, but I am told courses in maths and English. Dr Chow has commented that you may have experienced learning difficulties as a result of borderline IQ, but that was never identified while you were at school.      

32You told Ms Lechner that during Year 8, you met up with the wrong group and that your life spiralled even further downwards from that stage.  You became involved in criminal conduct. You also apparently commenced using drugs, especially cannabis and methylamphetamine.  I take that to be from about age 15 although as was discussed again today, there are some variations about the age.    

33Although you have not always been truthful about your history of using drugs, I am satisfied that you did indeed use illegal drugs from about age 15, and that such drugs and your mixing in those circles while under the influence of drugs and in pursuit of money for drugs, is likely to have contributed to at least some, if not most, of your offending in those years.

34You have had minimal employment to keep you occupied.  You described to
Dr Chow a job tried at age 18, loading and unloading containers which you left after one day as you found it too physically demanding.  You have also described spending about two months working as a carpenter, which I am told is the field that you would want to pursue through an apprenticeship. However, you left that job, you say, when you resumed drug use.  As I have already said in relation to the objective seriousness of drug trafficking, one of the effects on users of illicit drugs is that the drugs interfere with a user’s ability to engage in the community constructively, such as with employment, and it seems you found that out yourself.    

35Your criminal history formally commenced in Melbourne Children's Court in 2015 when you would have been aged 16, although information supplied to me yesterday and recently obtained from your Youth Justice file indicates that there was earlier interaction with Youth Justice Services in mid-2014. 

36On 5 February 2015, you were sentenced in the Children's Court for multiple charges ranging from two charges of going equipped to steal, that occurred more than six months earlier, to armed robbery, burglary and attempted burglary, thefts of motor vehicles, resisting police, reckless conduct endangering serious injury and intentionally damaging property. You were sentenced on that occasion to detention in a youth justice centre for a total effective sentence which is recorded as 19 months and 114 days. I agree with your counsel that that was a most unusual recording and what was meant by it is unclear, but your counsel tells me that the documentation reflects that it was treated as a two year sentence. You were granted youth parole apparently only a couple of months after that sentence was imposed, probably because you had pre-sentence detention time in custody.  But over the course of 2015, you seem to have been arrested and remanded repeatedly within a month or two of being granted parole.  You were sentenced on two further occasions during 2015 to further detention in a youth justice centre, which I am told were sentences for which most, if not all, of the time had been served on remand.    

37In April 2016, you were sentenced for further offences, including unlawful assaults, criminal damage, failing to stop a vehicle on police request, unlicensed driving and dangerous driving, for which you again received sentences of youth detention.  I am told that you were last paroled in July 2016.  In September 2016, you were last before a Children's Court and on that occasion were fined with conviction for criminal damage.

38Your criminal history is quite extensive for someone of your age, and you told Dr Chow that you spent barely six months out of youth detention between ages 16 and 18.  Your counsel submits that the absence of court appearance for more than 18 months between September 2016 and the time of the offending that brings you before me should be regarded as being to your credit, and as a sign that you were learning to control your behaviour, and that that is a good sign for your prospects of rehabilitation. 

39I accept that in the context of your history, it is not insignificant that for some 18 months in your later teens, after two to three years of clearly significant and destructive behaviour, you had not been charged with a further offence.  However, I am told that you relapsed into drug use the day after release from youth detention, and continued to use methylamphetamines effectively daily, sometimes in combination with other drugs or taking Xanax to come down from the high of the methylamphetamine. I accept that you were not charged at any stage with drug offences but that does not mean that you were not offending by drug possession and use, or remaining susceptible to becoming involved in further offending by your taking of those drugs and the people you must have been mixing with to obtain them. 

40Your criminal history does not include any prior drug offences and certainly not for trafficking of drugs.  It does reflect a youth repeatedly getting into significant trouble, consistent with drug abuse, and who was posing a risk to the community as well as to yourself. 

41You told Ms Lechner that you had received no drug rehabilitation whilst in the Youth Justice system, and no treatment apart from some counselling, for mental health issues of depression and anxiety or arising from your family circumstances and their impact on you. I said, when that was first submitted to me, that I found it hard to believe that if you had been a daily drug user since age 15, and it was related to your offending cohort, that would not have been noticed and addressed either within a youth justice centre or while you were on parole.  I similarly expected significant mood disorder behaviour to have been noticed and treated.    

42During the latest adjournment of your hearings, that was until yesterday awaiting the psychiatric report I had requested, your lawyers obtained access through a subpoena to your Youth Justice records, and a useful summary was provided to me.  It appears that you were in fact noted to need treatment for drug abuse from mid-2014, and in July-2014, a psychologist from the Children's Court clinic reported it critical that you receive drug and alcohol counselling. 

43You apparently did receive frequent counselling whilst in YJC over about a two year period, until on 6 June 2016 you told your counsellor that you had misrepresented your substance abuse history, believing it would help at court.  I am told that that was a lie that you told, that is on 6 June 2016, because you wanted to stop the drug counselling sessions that you had been having as you thought it was not helping. I was told that the day after you were last paroled in July 2016 you resumed using drugs.    

44You also told Ms Lechner that you had not had mental health treatment whilst in a Youth Justice Centre.  It is clear from records that you were prescribed anti-depressants and mood stabilising medication over the period from 2015 to June 2016, at least whilst you were in custody.

45I am informed that there is a record of scores on testing upon entering custody, on one occasion reflecting no significant concerns within the domains of depressive symptoms, and that may be why the prescription of medication did not start, apparently from the records, until later that year of your first incarceration. That is, it started in September 2015. 

46I come then to what has occurred since you were remanded in custody for the present charge.  First, to your credit, you appear to have ceased drug use, with screens being negative since May 2018.  In April this year you undertook a 24-hour drug treatment program, attending seven of eight scheduled sessions and making up the missed one. I have read a report on your participation. It discloses or describes that initially you were quiet, finding it difficult to speak in the group, but open to hearing the experiences of others, attentive and becoming more responsive and willing to engage.  Towards the end you began to independently develop a self-management plan to recognise potential high risk triggers for you, and identify obstacles so as to implement ways to avoid relapse. 

47I note that in the pre-sentence assessment of you yesterday, you acknowledged that you need further assistance and are willing to undertake programs to assist you to break the drug cycle.  You have also undertaken an occupational program whilst in custody and some further general education courses through Box Hill Institute.  As I have already said, the latter recognised that you need to repair your lack of schooling, or at least that would be useful.

48All of these matters I have described do reflect that perhaps through the shock of being in adult custody, you do seem to have formed some more responsible and constructive attitudes in recognition of how you need to help yourself for the future. 

49This has, as I have said, been your first time in adult custody, commencing at age 19.  I am told you have found it very difficult indeed, missing being able to return to your family, feeling unfairly treated at times by some guards, having some difficult interaction with some other prisoners, and I was told of there having been a most upsetting incident of a suicide of a young man in the unit where you were then placed at Port Phillip Prison. 

50I am told that you have experienced very significant depressive symptoms as a reaction to your being in custody, as well as anxiety symptoms, but that you have been and remain unwilling to request mental health treatment.  I am told that your reason for not reporting such needs or seeking treatment is because of what you regard as dehumanising and intimidating conditions. I have no doubt that the conditions in prison have been very confronting indeed for you, and many do find them dehumanising and intimidating.  That, in some ways, is the purpose of imprisonment as a punishment.  For some people, a short experience of this is salutary enough for them to complete their reform on release.  You have already experienced an extended period of that and at your age I have little doubt that it has been a shock to you. 

51Unfortunately, it seems that the periods you spent in youth detention some years earlier in your mid-teens did not deter you from further offending, and even more unfortunate is that you became involved at the age of 19 in the very serious offending that brings you before me.

52In April this year, you were assessed for this case, as I have said, by Ms Carla Lechner, a clinical psychologist.  She took a history from you about your family background and personal experiences at school.  She understood from you that you were released from youth custody in July 2016 but relapsed into drug abuse within one day, claiming to have not received any therapy while in youth detention.  I have already referred to that. 

53You also said you had no assistance from youth mental health services and therefore still had to contend with your old demons of anxiety and low mood.  Through your drug use, you told her you were back in negative company and your current offending occurred in that context.  As I have already outlined, it seems you had in fact had access to, and indeed, some extended drug counselling while in YJC but had deliberately, if unwisely, ended it so that it was not continued after your release on parole.

54I accept that you were in negative company but it of course occurred in conjunction with the company of your brother, Aysar, and also, allegedly, your older brother, that you entered into the involvement you had on 28 April last year. 

55You told Ms Lechner that you had sustained a couple of serious head injuries that rendered you unconscious, but you could not recall details as they occurred in your childhood.  Ms Lechner considered that your formative years were strongly suggestive of what she described as “intergenerational PTSD,” as you were constantly reminded of the tragedy in your family's life and had to live with your mother's psychological distress, which Ms Lechner said are emotions that you took on personally.

56Ms Lechner considered you presented as cognitively, socially and emotionally immature.  She conducted some formal testing of you, and concluded that your performances placed you in the borderline range of intelligence.  There were some areas of relative strength and others of deficit, or that were low, although all sub-test results were in the low-average range or below it. Particular results in the extremely low range suggested that you have problems in what is called sequencing abstract material and recognising patterns, and the implication of this for you is that it impacts your ability to logically link cause and effect.  You were better at non-verbal tasks. On verbal tasks, your comprehension and expressive skills were adequate, but you showed a concrete rather than conceptual thinking style that limits your ability to think objectively and to take perspectives other than your own.  She also describes that as having a problem seeing the bigger picture.  She recommended that you might benefit from a full cognitive assessment.    

57In relation to psychological assessment, Ms Lechner found your score on the self-report questionnaire for depression fell into the extreme range, which she said was consistent with your presentation at interview.  She diagnosed clinical depression.  On the anxiety self-report inventory, the result was in the top end of the moderate range. 

58You maintained to Ms Lechner that in relation to this offence, you were only there to help lift something up, although you did know what it was – the name was on the side of the barrel.  You told her you were being paid in drugs, specifically “ice.”  You told her that everyone looks after each other and it was getting more drugs that you were there for, although you do favours for family anyway.

59You gave her a history that you had been smoking ice at age 14, but by the time of the offending you would stay up a couple of days and then take Xanax to come down, or use coke instead, as you phrased it.  You were also smoking cannabis daily.  You spoke of other drugs you have used.  You said that you liked drugs because it is more like how you grew up and you feel better.  You call yourself a follower, and that you think you are taken advantage of by others. 

60You told Ms Lechner that while in gaol, this time, you have been trying to do drug and alcohol programs but they are often only available to sentenced prisoners.  I have already said that you have, since about the time you saw
Ms Lechner, been undertaking and completed a 24-hour program. You told her you were involved in a couple of incidents when first remanded but had not been in trouble in the last six months before you saw her. 

61She considered you presented with symptoms of stimulant use disorder in early remission while in prison, and what she called “intergenerational post-traumatic stress disorder,” the latter arising from continued exposure to the trauma of your refugee parents. 

62She felt you would benefit from both drug rehabilitation counselling that assists you in recognising relapse triggers and in managing those triggers, and also specific post trauma counselling work, and she said she thought you were not likely to have that available within the adult gaol environment.

63In relation to the self-reported symptoms of depression and anxiety which, at clinical levels, produce scores in the extreme and moderate ranges, respectively, she considered your mood disturbance appeared to be mostly reactive to your current situation – that is when she assessed you, being on remand in adult prison.  However, she felt it of sufficient severity to warrant diagnosis of an adjustment disorder with mixed depression and anxiety. 

64The prosecution submits that notwithstanding how Ms Lechner expresses it, intergenerational PTSD is not a recognised mental health disorder.  I have already said that I have no doubt that your parents’ experiences of trauma, and its ongoing impact on their lives has also had impact on you and your siblings’ emotional development.  I do not take so-called intergenerational PTSD to be formally recognised as a mental health disorder under criteria such as DSM-V. 

65As a result of Ms Lechner's recommendation for further neuropsychological testing, such an assessment was obtained through your lawyers, through the organisation Arbias, and this was the reason for the first adjournment of your plea hearing after it had partially commenced. 

66Clinical neuropsychologist, Dr Michael Takagi assessed you in June this year at MRC.  He noted that eye contact was intermittent and your mood was flat with restricted affect.  He considered it clear that you were struggling with anxiety and depression symptoms which he found commensurate with what he read from Mr Lechner's description. As a result, he administered only two cognitive tests and through them found that you failed to meet criteria on several embedded tests of genuine effort.  He concluded that this was not due to deliberate lack of effort, but he attributed it to what he thought were acute mood and mental health conditions.    

67He thought your mental health was significantly adversely affecting your test performance and capacity to participate in the neuropsychological assessment.  He found the cognitive profile produced on the tests he did administer invalid and was not able to comment on your cognitive abilities. 

68He says that on a questionnaire, but it is one he does not identify, he found your pattern of responses consistent with extremely severe levels of depression symptoms in the 99th percentile, and severe levels of anxiety symptoms in the 98th percentile, as well as what he called moderate levels of stress symptoms in the 93rd percentile. He concluded from those that your mental health had deteriorated in the time between Ms Lechner's assessment and his, which I note was an interval of only about six to seven weeks.  He thought you had severe levels of anxiety and extremely severe levels of depression and noted that you were not receiving any mental health treatments, such as medication or psychological therapy whilst in custody.    

69As a result of that report, I requested a psychiatric report through Forensicare.  Such report has been provided from Dr Sally Chow, a consultant psychiatrist, last week.  She apparently interviewed you for approximately 80 minutes, however, that was by video-link, notwithstanding my specific request that if possible the interview be in person.  I recognise that there are some limitations on the ability of even qualified and experienced professionals to make these assessments by video-link, however, they are becoming more frequent. 

70Nevertheless, Dr Chow is of the opinion that you clearly meet criteria for substance use disorder with methylamphetamine the main focus.  She found no evidence of the presence of a psychiatric illness around the time of the offending.  She diagnosed your present symptoms as described to her as consistent with adjustment disorder with depressed and anxious mood.  When I say 'as described' to her, she also made her own clinical assessment of you.

71She found these symptoms appear to have developed whilst you have been in custody.  She said the triggers are likely related to your current circumstances and not having illicit substances, which you have previously used to manage negative emotions.  You describe constant worry and stress around when you will be released, and sadness at not seeing or being with your family. 

72She noted that you had not sought treatment in prison and are reluctant to talk to others about your mental health difficulties.  She believes you would benefit from mental health care relating to your adjustment disorder while in prison, including a review of medications to treat your symptoms, or if out of custody, through a general practitioner coordinating referral to a psychologist under a mental health care plan. 

73She considered that the adjustment disorder would likely make prison more onerous for you than for a prisoner without that condition.  She thought that condition may potentially deteriorate while you are in prison as you are struggling with the structure and hierarchy and being away from your family and missing their support. 

74I note that although not administering tests, and it not being specifically within the field of psychiatry, Dr Chow noted cognitive testing that was supplied to her - that is Ms Lechner’s and I believe also of Dr Takagi’s - Dr Chow noted cognitive testing had found you in the borderline IQ range, and she thought that consistent with your presentation in interview with her.  It also linked, in her view, with what may have been learning difficulties experienced by you during your childhood contributing to the difficulties you had whilst at school.

75Your counsel, Ms Dwyer, has taken great care to present every potentially favourable aspect of the material and of your situation to me.  Her task, as I have already said, has not been easy, and not assisted by some apparent contradictions or inconsistent accounts of some matters.  Nevertheless, I will try to deal with each of the submissions.

76First, I am urged to find that your role in the offending and your culpability for it was of a low level of seriousness and was a result of the combined effects of your youth and immaturity, your limited cognitive skills, making it difficult for you to think of consequences before acting, and making you more vulnerable to influence by others and, in particular in your case, you having agreed to become involved to assist an older brother, that being partly because he is older than you and also out of family loyalty.  These matters are all put as reducing your moral culpability. 

77I accept that your role was quite limited, although with wider knowledge of your brother Aysar's overall dealings with this drug at that time.  I accept that you only became involved at the request of your brother and feeling some obligation to help family.  It is not suggested that you made the arrangements yourself or had any seniority over others involved.  I accept that you were the youngest person involved, and that as a daily drug user you were probably also not the most clear of thinkers at the time. 

78Like many of the others that I have sentenced for this offending, your personal gain was for either drugs directly or money for drugs for your own use rather than for greed, and I accept that it was not for a share of profits. 

79Your counsel urges me to find that your personal drug use was a mitigating factor because it was a reaction to the family experiences of trauma which I should find impacted your moods such that you took drugs to manage your negative emotions. Drug use is not usually a mitigatory factor, and the circumstances of it being adopted to address other problems, including psychological or mental health ones or hardships, should be confined to cases where there is a very clear link in that occurring.    

80I accept that your use of drugs at the time was probably impacting on your ability to think clearly or make responsible decisions for yourself, putting your decision to agree to participate in this offending into that context of not taking the time to think of the consequences, being reactive to the pressure coming from your brother or the influence of your brother, and also being in the context of you being motivated to gain money or drugs directly for your own use rather than from greed.

81However, I am not satisfied that the material here supports that your drug use should be regarded as mitigatory.  I say that for two reasons.  First, I am not satisfied that you were suffering a diagnosable mood disorder at the time of the offending, requiring self-medication.  Secondly, I am satisfied that you had a contradictory attitude towards whether or not you had an ongoing drug use problem or required or wanted to submit to treatment for it, and in my view that undermines a finding that your ongoing using was not a matter of choice. 

82Both Ms Lechner and Dr Chow are of the view that your current level of symptoms for a mood disorder is largely reactive to your experience of imprisonment and anxiety awaiting sentence, and neither is prepared to diagnose such a condition as being present at the time of the offending to warrant self-medication with illicit drugs.

83Although there are problems with the reliability of the scores on testing of your cognitive, or understanding and functioning abilities, I am satisfied that overall clinically, you present as of borderline cognitive functioning and intelligence.  I am prepared to accept Ms Lechner's opinion in the descriptive sense of that, and that your abilities are particularly low in sequencing patterns, and that relates to consequential thinking. As I understand it, you have low ability to recognise from past mistakes and what is likely to result from your actions.  I consider that this and the family configuration do make it more likely than not that you were particularly susceptible to agreeing to do something as wrong as this because your brother asked you, and you did not think through the likely consequences at the time. In this way, I do regard your culpability as somewhat lower than for a person of average intelligence, not in the same - sorry, of average intelligence in the same situation.    

84In relation to your current mental health condition, I am satisfied from the opinions of Ms Lechner and Dr Chow that you are suffering symptoms of depression and anxiety that are sufficient to justify a diagnosis of adjustment disorder with depression and anxious mood.  I am satisfied from each of their opinions that this has largely been caused by your experience so far in prison and is likely to make imprisonment more onerous for you than for someone not suffering this condition. 

85Ms Dwyer, on your behalf, put great weight on the report of Dr Takagi, whose assessment of you in June was that you were too depressed to be administered more than two psychometric tests, and that your mental health was interfering with your responses on testing, so as to make the results unreliable and unable to be interpreted by him. 

86Your counsel argues is that his findings prove on the balance of probabilities a worsening of your depression and anxiety since
Ms Lechner had assessed you. 

87It may be that the questionnaires that Dr Takagi administered were indeed the Beck Inventory ones that had been administered by Ms Lechner, but that is simply unclear.  I am not convinced by Dr Takagi's methodology or reasoning that your depression and anxiety symptoms should be regarded as having both worsened in that six to seven week period, nor as being as high as what he described as in the 99th and 98th percentiles. As I have said, he does not identify the questionnaire he administered.  His conclusions as to your anxiety symptoms, in my view, were not adequately explained.  Fundamentally, just because he did not consider that you were deliberately responding unreliably on the cognitive tests does not support that there were such extreme levels of depression or anxiety symptoms as he reports.   

88Moreover, the more recent report of the Forensicare psychiatrist, Dr Chow, while not specifically quantifying degree of symptoms, does not bear out such extreme levels of symptoms. Even bearing in mind the reservation that she interviewed you by video-link and not in person, in contrast to Dr Takagi,  her findings reflect, in my view, that you were able to communicate with her cooperatively.  She found and described your affect as mildly anxious and restricted in range.  You described your mood to her as 'all right', and your speech was spontaneous with normal rate and volume.  You described feeling stressed about the uncertainty around how long you will remain in prison, and she described your ruminating over your past actions. 

89If you were indeed in such extreme throes of depressive and anxiety symptoms as described by Dr Takagi as when he assessed you, I am satisfied that the symptoms were not still so extreme when you were interviewed by Dr Chow, although clearly they were sufficient for her diagnosis of an adjustment disorder and recommendation of treatment. 

90Now, I notice the time and that you have been sitting, trying to listen to me for more than an hour now.  I have a little way to go and, as I said, this would be lengthy because of the number of submissions put to me that I need to address.  Ms Dwyer, I am prepared either to adjourn for perhaps a shorter than average lunch break, or for a ten minute break, or to continue, but I know it is a long sustained period for your client to be listening. If you like you could approach to discuss that with him.

91MS DWYER:  Can I just approach please, Your Honour?  Your Honour, my client's preference is to continue. I am in Your Honour's hands.

92HER HONOUR:  Does he want a 10 minute break now, a few minutes break now?

93MS DWYER:  No.

94HER HONOUR:  No, all right.

95MS DWYER:  No, his preference is to continue.

96HER HONOUR:  I will keep going then but I think I have probably at least another 15 to 20 minutes, that is all.  Does anyone else need a few minutes break?

97MS DWYER:  I don't need a break but ‑ ‑ ‑

98MR SAUNDERS:  No, Your Honour, thank you.

99HER HONOUR:  All right.  Now, I have dealt with the various submissions about what findings I should make, Mr Fatho, about various conditions put forward as affecting you.  Applying these findings that I have described, to applicable legal principles,  it was accepted by your counsel that it was insufficient to establish that you were suffering the adjustment disorder that you now suffer at the time of the offending or that it contributed to your offending, so there is no reliance placed on what are known as the first limbs of Verdins case. 

100Indeed, there was only reliance on what are called limbs 5 and 6 of that case.  I am satisfied, as I have said, that you currently suffer a  mental health condition, an adjustment disorder with mixed anxiety and depression, which I accept is impacting your experience of imprisonment adversely, and making it more onerous than for someone without this condition.  I am satisfied also that that has largely developed as a reaction to your experiences in prison so far. 

101The only evidence going to whether it is likely to deteriorate is by implication from Dr Takagi, and I have already expressed my reservations about that, and when compared with the apparent better, although, far from resolved symptoms when you were examined by Dr Chow.

102I do, in accepting that the condition has developed largely as a reaction to your time in prison, accept overall that there's a real possibility that it would deteriorate with sustained further time in prison. I do accept that some moderation in your sentence is required to reflect not only that but, in particular, that it has made your experience in prison so far and, likely for so long as you remain in prison, more burdensome.  I have moderated your sentence to take that into account. 

103Your counsel submitted that I should find that your prospects of rehabilitation are good, and should be given prominence as a sentencing factor in light of your young age.  I am satisfied that you fall into an age bracket where rehabilitation should be given prominence in sentencing.  Given your history through the Youth Justice system, however, that has to be taken in context and I do not consider that rehabilitation should be the primary sentencing factor. 

104Further, given that history, including, as it did, effective rejection of ongoing treatment for your drug problem at that stage, and frequent reoffending in your mid-teens, followed by your resumption of drug use almost immediately on release, and then involvement in this much more serous offending, albeit at the urging of your brother, I am not satisfied that your prospects of rehabilitation can be described as any better than guarded.

105I recognise that there are some positive signs in your abstinence from drugs since being in custody, and that you are undertaking a drug rehabilitation program. You are showing willingness and recognition of the need to undertake further programs to address relapse risks, and if you maintain those attitudes it is likely to assist in your rehabilitation. You have also accepted the need to undergo mental health treatment for similar reasons, and that is also promising.  However, I note you have been deeply reluctant to talk about such matters in the past, for some of which there may be very real reason, and I have not gone into details of those or their description. However, I do regard you as a long way from being able to achieve effective mental health treatment or ultimate recovery.   

106I accept next that you are on better terms now with your parents than you were when you were in youth detention; that you have regular visits from them, that you have a loyal partner who wants to build a stable future with you, and you have general family support, including a recent offer of employment from your father to commence with him on your release and that you are anxious to take that offer up. Apparently it has not previously been available.

107I have read supportive references from your uncle, your partner, and most recently your father.  Far from the immature, easily led, daily heavy “ice” user that your lawyer's submissions otherwise point to, these letters describe you as the supportive figure and backbone on whom they lean. In one, you are described as the glue who holds the family together.  You are also described as the life of a party, and always humorous and good company and very much accepted and relied on in family circles. 

108I accept that there will be family support for you on your release, and I accept that these references are all written in an attempt to support you.  But these are another example of some matters that do not always assist where they contradict other submissions or material that has been put to me. 

109At your age, your rehabilitation is not only in your own interests and that of your family's, but ultimately in the community's interest.  And although I assess your prospects of rehabilitation and of building a stable and constructive future for yourself as no more than guarded, I regard your prospects as far from hopeless, and of course you will have the opportunity to prove my pessimism wrong. 

110I turn then to issues raised under the technical requirement that is s.5(2H) of the Sentencing Act, which requires that in sentencing for a category 2 offence, which yours is, a court must impose a term of imprisonment other than one in addition to a CCO, unless one of the exceptions is established. 

111At the time of your offending, those exceptions were somewhat wider than they now are and one has been repealed.  Your counsel had thoroughly researched those matters and submits that I should find three of the exceptions as in force at the time applicable to you and your circumstances. Those three exceptions relied on are:

(b)that you were between 18 and 21 years of age at the time of the offence, and have a particular psychosocial immaturity that has resulted in a substantially diminished ability to regulate your behaviour in comparison with the norm for persons of your age;

(c)(ii)that you have impaired mental functioning that would result in you being subject to significantly more than the ordinary burden or risks of imprisonment; or

(e)there are substantial and compelling circumstances that justify not making an order that is a sentence of imprisonment that is not in addition to a CCO.    

112Under (b), that is the first of those exceptions, your age at the time clearly brings you within the first requirement.  As for the second requirement, that of having a particular psychosocial immaturity that has resulted in a substantially diminished ability to regulate your behaviour in comparison with the norm for persons of your age, the term 'psychosocial immaturity' is not defined either in the Act, nor in diagnostic materials.  I was referred to discussion of that term as used in the Sentencing Advisory Council's 2011 report,[1] on which this exception and some other amendments were based. 

[1] Sentencing Advisory Council, Statutory Minimum Sentences for Gross Violence Offences: Report (Sentencing Advisory Council, Victoria, October 2011)

113The term “psychosocial immaturity” was used to describe the recognition of how children develop various functions, including, relevantly, emotional temperance, future time perspective and antisocial outcomes.  That psychosocial immaturity has been found to peak at age 15 and then to dissipate, and most psychosocial variables appear relatively stable beyond age 18, with the exception of emotional temperance, which improves through the mid to late-20s. The Sentencing Advisory Council notes that a number of offenders fall outside of the standard trajectory, and those few individuals will display particular psychosocial immaturity that is out of step with their chronological age.  The discussion of that follows what is recognition that the immaturity attributed under our law to young offenders, which is taken to reduce culpability compared with adult offenders, is usually regarded as only applying to young offenders, and that is why the age of 18 is used as a determinant of adulthood in that sense, or at least when the principles applicable to sentencing children no longer apply. I am interpolating – that was not specific in that report. 

114What the Sentencing Advisory Council was advising on was where there were circumstances warranting that that recognition of immaturity be extended to those who fall into the exception of being older in age than 18 but being psychosocially immature through other factors. 

115Now, it was also brought to my attention that that similar expression is used under another sub-section, and was discussed by His Honour Judge Parrish in another case,[2] and I have read his comments and noted his approach to the application of it in that case, including, as is clear from the section I have to consider, that I must be satisfied on the balance of probabilities on proper material that such an exception is made out.

[2]DPP v Le-Galliene [2015] VCC 954

116Although this whole exception has since been repealed, you are entitled to rely on it as it was in force at the time of your offending. 

117I note that Ms Lechner specifically concludes that she found you to be cognitively, socially, and emotionally immature, with a limited capacity to reflect on the impact of your actions, and the impact your actions have both on yourself and others, until after the event.  She found you to have cognitive limitations that have also contributed to drug use, social vulnerability, poor judgment and poor decision making. 

118For this purpose, I also note Dr Chow’s view that there has been some influence on your emotional development through your parents’ ongoing reaction to their traumatic experience in and leaving Iraq.  I also accept that your cognitive function is likely to be in the borderline range, limiting your ability to reason as to consequences of your actions. 

119I have taken into account the prosecution submission that in deciding whether I am satisfied that this or any of the other exceptions are established, I should bear in mind that they are to be interpreted as exceptions – that is the primary purpose of sub-s.5(2H) is to require imposition of imprisonment for offences in this category, and therefore an exclusion is not lightly to be found. 

120In the end, based on the various issues discussed earlier and, as I have just summarised, specific aspects of the evidence relevant to this, I am satisfied on the balance of probabilities that in combination, your circumstances bring you within the exception of sub-part (b) – namely that I am satisfied that in combination, you were suffering a psychosocial immaturity that resulted in a substantially diminished ability to regulate your behaviour in comparison with the norm for persons of your age. And finally, to make very clear, part of my finding as to that combination of circumstances is that you were still only aged 19, not much beyond what the accepted range of development of those functions is in general for persons not affected by cognitive deficit or other impact.   

121Given that finding, I am not going to go into the detail I had prepared, although I said I would address all submissions raised. I am doubtful of the application of the second of the exceptions relied on, although I find there is a mental health disorder likely to impact the burden of imprisonment. I find it doubtful that it could reach the description “significantly more,” even as that exception was worded at the time. 

122And finally, I am not satisfied that exception (e) applies – of there being substantial and compelling circumstances that justify not making an order – that is not one for combined imprisonment and a CCO. So, it is only sub-paragraph (b) that I find established, as an exception.

123I turn then to the nature of the sentence to be imposed, as well as its detail.  The prosecution maintains its submission that owing to the serious nature of trafficking in a commercial quantity of a drug of dependence, and the very large quantity being more than 260 times the commercial quantity, as well as taking into account your criminal history and previous lapses into resumed drug abuse, that despite your youth, a sentence should be one of a head sentence with a non-parole period.

124On your behalf, I have been urged to impose a combination sentence which recognises the 15 and a half months you have already been in custody, and allows for release on a CCO with conditions to address your drug and mental health issues. 

125To make clear, a combination sentence of imprisonment to be followed by a community correction order is only possible if the sentence of imprisonment is no more than 12 months, in addition to pre-sentence detention.

126Now, I finally turn to another factor which I have had to consider, which is consideration of issues of parity regarding Mr Mansoor in this case.  It was submitted by the prosecution that your involvement and his were similar.  He is a little older than you, and unable to rely on a mental health condition or disability in cognitive function that you have been able to call in aid.  However, he has no prior criminal history and, in my view, had considerably better rehabilitation prospects than yours, given that he has had no track record of failing in them. He also had a physical impairment in hearing, making imprisonment more burdensome. 

127Overall, I have concluded that it is not unfair in the sense of applying parity principles to impose what will be a more onerous sentence on you. On the other hand, I note that it wasn't open in his case to find an exception to the provisions of sub-section 5(2H), which required a term of imprisonment, not including a CCO. I set a relatively low, although not insubstantial non-parole period for him.

128I have previously explained that general deterrence and community denunciation are important, as well as specific deterrence in light of your criminal history and previous lapses almost immediately into drug abuse.  I have taken into account your prospects of rehabilitation and certainly your young age, and that it is in the community’s interest that as far as possible, rehabilitation be facilitated.

129In all of the circumstances, I have decided that the least severe sentence to achieve all necessary sentencing purposes is a combination of a term of imprisonment to be followed by a CCO, in order for you to be supervised and referred for appropriate treatment and rehabilitation programs on your release.  But I have decided that that release will not be for some more months.

130Stand up now please. 

131Andy Fatho, on the charge of trafficking in not less than a commercial quantity of a drug of dependence, you are convicted and sentenced to 19 months' imprisonment, to be followed by a CCO to last for 18 months.  I declare 481 days of pre-sentence detention reckoned served, and direct that that be noted in court records.  It will be deducted administratively and, on my calculation, means that you have a little over three more months left to serve in prison. 

132The Community Correction Order will commence on your release from prison.  The conditions will be supervision, assessment and treatment as directed for drugs, including testing, assessment and treatment as directed for mental health; and assessment and as directed to attend programs to reduce reoffending. 

133I am also going to impose a judicial monitoring condition. That means that you must attend before me for a report on how you are going on the CCO.  I am going to fix a date for that now.  I fix it at Thursday 27 February 2020 at 9.45 am for the first judicial monitoring which, on my calculation, is about three months after your likely release.  I think I have calculated that correctly but I stand to be corrected. If, due to work or other pressing commitments, you cannot attend at that time, it is made well in advance and I recognise that, you must notify the court and, at the first instance, your Community Corrections Officer, of that problem so that an alternative timing can be arranged.  It is not necessary for you to be legally represented on that occasion, although you will be entitled to if you wish.  That usually does not take more than 10 to 15 minutes. 

134Now, in addition to the conditions I have just imposed on the CCO, all usual terms of a CCO apply.  You have heard me summarise them to Mr Verrina today and I know they have been explained to you but I will briefly remind you of them. 

135Within two days of your release from prison, you are to report to the nearest Community Corrections office to where you will be living.  That will be discussed with you by the time you leave prison - you will know what that address is by then.  At the moment, it is said to be the Craigieburn office, but as I raised with your counsel, I am really not sure where you are likely to be living at that stage, that is whether with your sister-in-law or your parents. So, you are to report within two working days of leaving prison to the Community Corrections office. 

136During the whole of the 18 months of the Order, the Community Correction Order, you are to report to your Community Corrections office any change of address of where you are living or where you are working and that is to be done within two clear working days of the change happening. 

137Throughout the Order you are to attend supervision meetings as directed, and allow visits as directed, and you must obey all lawful directions or instructions of Community Corrections Officers.  You are not to leave the State of Victoria without prior permission of community corrections officers.  Above all, you are not to commit any further offences which could result in a term of imprisonment.  And just to be very clear, that includes all offences of dishonesty, violence, many driving offences, most drug use or possession offences, and certainly all drug trafficking offences. 

138If you breach the order either by not complying with any of the conditions or by further offending, you can expect to be brought back to court and depending on the circumstances of the breach and how much of the order has been satisfactorily completed, you could have the order confirmed, or varied by being extended in time or conditions, or it could be cancelled and you could be re-sentenced for this offence. 

139Now, do you understand the terms and conditions of this Community Correction Order?

140OFFENDER:  Yes.

141HER HONOUR:  Do you agree to comply?

142OFFENDER:  Yeah.

143HER HONOUR: I state for the purposes of section 6AAA that but for the plea of guilty, I would have imposed a sentence of four and half years' imprisonment with a non-parole period of three years and three months. Now, finally, I believe there's a forfeiture order for a mobile phone ‑ ‑ ‑

144MR SAUNDERS:  Correct, Your Honour.

145HER HONOUR:  ‑ ‑ ‑ that's sought and I think is not opposed?

146MS DWYER:  Unopposed, Your Honour.

147HER HONOUR:  All right, I will sign that order too.  First, I will check with counsel whether I have left anything out?

148COUNSEL:  No, Your Honour.

149HER HONOUR:  All right, then the order can be produced and that will for the CCO to be produced and it has to be checked and signed.  All right, the draft Community Correction Order will be handed for counsel to check that it reflects what I said.  That is not the version that gets signed but if you both check that while I am checking? 

150MS DWYER:  Yes, Your Honour.

151MR SAUNDERS:  Thank you, Your Honour.

152HER HONOUR:  All right.  I think I have just seen it, it comes up as Coolaroo Community Corrections Office, I think I was confusing address when I said Craigieburn.  Anyway, that will be revised in light of where Mr Fatho is to live when his release is approaching. 

153MS DWYER:  Both addresses are Craigieburn, Your Honour, there are (indistinct) parties, I understand.

154HER HONOUR:  I thought one was Roxburgh Heights or something like that.

155MS DWYER:  One is Roxburgh Park but I understand they are quite close.

156HER HONOUR:  All right.

157MS DWYER:  Yes, they are quite close; I am not familiar with the area.

158HER HONOUR:  Right, no, I am not familiar enough with it, nor where the office is.  But I am familiar with the approach now taken that when there is lead up time of - there will be a case manager, a Corrections Officer assigned, will make contact with Mr Fatho ‑ ‑ ‑

159MS DWYER:  Who checks him.

160HER HONOUR:  ‑ ‑ ‑ before he is to be released and finalise those details ‑ ‑ ‑

161MS DWYER:  Excellent.

162HER HONOUR:  ‑ ‑ ‑ and if it's a different office, different address and needs a different office, that will be established then.  Also, it is to be hoped that there will be arrangements put in place for prompt assessment for particular programs and indeed for the referral for mental health issues. I understand is now the practice.  Whether it is fulfilled in every case, I cannot guarantee but there is lead up time to allow that to occur.

163MS DWYER:  Excellent.

164HER HONOUR:  But a known finalisation for Mr Fatho for him to work towards and hopefully relieves some of his stresses and anxiety about that.  All right, I will ask that the community correction order now be taken by my associate to be signed by Mr Fatho, who should check it.  Ms Dwyer, if you would like to accompany my associate, that is fine.

165MS DWYER:  Yes.

166HER HONOUR:  All right, I have now signed that Community Correction Order and that will be copied and a copy provided for both sides and, obviously, for Mr Fatho.  Now, Mr Fatho, that means you know you have got a little over three months still in prison, and then an 18 month Community Correction Order.  You are back for monitoring in front of me on 27 February next year.  I will have a brief report and briefly discuss with you how you are going on that. It is up to you, it is not going be easy.  And I have expressed my reservations about a number of matters.  But I invite you to prove my hesitation wrong and hopefully in February next year, things will be going well.    

167You will of course now be returned to custody but in light of what has occurred, I will, if it is wished, I will ask that Mr Fatho be allowed to remain, if he wishes, for a few minutes: I know his mother is present. There may be other family members to talk to him, but  to have no contact with him, but I allow this for others as I often do, and given that the sentence is now known and he has had a protracted wait for it, I am prepared to ask that he remain here if that is desired.

168MS DWYER:  I am very grateful, Your Honour, thank you.

169HER HONOUR:  All right.  I know it has eaten into lunchtime but could a few minutes - there is not to be contact, he is in custody, but I will allow that so that the family can have a brief word with him and Ms Dwyer too.  All right, that is the end of this matter. I adjourn the court till 10 o' clock tomorrow.

‑ ‑ ‑