Director of Public Prosecutions v Gharfari
[2013] VCC 908
•18 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-01909
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AJMAL GHARFARI |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 June 2013 | |
CASE MAY BE CITED AS: | DPP v Gharfari | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 908 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Miss S MacDougall | |
| For the Accused | Mr M. Cenacchi |
HER HONOUR:
1 Ajmal Gharfari, you have pleaded guilty to one charge of causing injury intentionally (Charge 1) and one charge of possession of a drug of dependence (Charge 2).
2 The maximum penalty in relation to Charge 1 is ten years imprisonment. The maximum penalty in relation to Charge 2 is five penalty units.
3 The prosecution sought orders for the retention of a forensic sample taken from you and the disposal of cannabis which was seized. The making of those orders was not opposed.
4 The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A. In brief, at the time of this offending you had been in an off and on sexual relationship with the complainant since about 2005. The complainant had been married since 1999 and had a daughter. You also married in 2005. The relationship between you and the complainant was a volatile one with police obtaining intervention orders on the complainant's behalf in 2006 and 2008.
5 In about 2010 the complainant discovered you had two children. The complainant decided she did not want a relationship with you but would meet you occasionally for sex. In December 2010 the complainant contacted you. On Thursday 30 December 2010 you agreed to meet in a park. You met and drove to another park area. You had sexual intercourse in your car. You got out of the car and dressed.
6 An argument then started and you threw the complainant to the ground. She landed on her hands and knees. She felt pain to her knees and had injury to her knees by way of small cuts and scrapes. You then kicked her to the head causing bruising and soreness.
7 You pulled her to a standing position, grabbed her car keys and told her to get into your car. She opened the back door of your car and begged for her keys back. She told you she would not go to the police. You started to reverse your car as the complainant was half in and half out of the door. She closed the car door and chased your car asking for her keys back. You stopped the car and got out. You punched the complainant on her left cheek so hard she was spun around and fell to the ground. The complainant suffered pain and a black eye. She also suffered soreness to her neck and back.
8 The injuries covered by Charge 1 include all the injuries that occurred in that incident.
9 The complainant got off the ground as another car approached. The driver stopped and asked her if she all right. She told the driver that she had been bashed. You drove your car back towards the complainant. You threw her car keys out of the car and then drove off rapidly.
10 The complainant was taken to Sunshine Hospital for a medical examination.
11 You were interviewed the same day and declined to comment.
12 On 31 December 2010 in the course of investigating these allegations police executed a search warrant on a car owned by you. Located inside the car was a small clear plastic bag containing cannabis. The amount of the cannabis is a small amount and is the subject of Charge 2.
13 You spent 49 days in pre-sentence detention.
14 A booklet of photographs showing the complainant's injuries was tendered as Exhibit B.
15 A victim impact statement declared on 14 May 2013 by the complainant was tendered as Exhibit C. She says in that victim impact statement that she had constant nightmares and flashbacks about the assault. She says those are decreasing but she is reminded every day of this incident. She says she does not go out by herself as often and that when she does she is "terrified that he will find me and harass me". She says there are times when she believes that she has seen you and she goes into a state of panic.
16 I have taken into account in sentencing you your personal circumstances. You were born in Afghanistan in 1981. You came to Australia with your family in 1987. You completed Year 12 and enrolled in a diploma course at RMIT. In 2004 you returned to Afghanistan because your parents had arranged a marriage for you. You met your future wife then.
17 In August 2005 you returned to Afghanistan and were married. You then returned to Australia with your wife. Two months later you met the complainant. A relationship formed between you which was intense and passionate. At times you decided to leave your wife but did not persist with that intention. You have remained married and want to make your marriage work your counsel advises.
18 You have two children now who are three and five years old. You are living with your parents. You are working full time as a house painter. You have discussed taking over your parents' clothing stall which they operate in a market.
19 You have admitted a prior criminal history. You have a number of court appearances between 2007 and 2009. Those appearances mainly concern dishonesty offending and include some drug related offending.
20 In June 2008 you were convicted on charges of making threat to kill and unlawful assault. Those charges apparently arose from a dispute that you had with your older brother. On these and other charges you were sentenced to serve a community based order of 12 months. You failed to comply and were sentenced to 19 days imprisonment. You had already served that 19 days in pre-sentence detention and that 19 days was reckoned as served. You had also failed to complete a previous community based order imposed about two weeks earlier. There were no assault charges involved in that sentence.
21 In March 2009 you were sentenced to two months imprisonment on unrelated charges which was wholly suspended for eight months. On that date on other non-assault charges you were sentenced to a community based order of 18 months together with a six months sentence of imprisonment which was suspended for 12 months. That suspended sentence was breached by other offending which occurred prior to the offending for which I am sentencing you. The term of imprisonment was reimposed on 10 August 2011.
22 In respect of this offending for which I am sentencing you counsel said that it occurred on a very hot day, that the sex that you had had was unsatisfactory for both of you and that an argument had ensued. You lost your temper and struck the complainant.
23 Your counsel said, and this was not contradicted by the prosecution, that the complainant had contacted you after your release from remand. The sexual relationship continued between you until August 2011. You then continued in phone contact with the complainant until early to mid 2012. I was shown DVD footage which showed you and the complainant together some time after this offending. You counsel advises that the relationship is now over.
24 You counsel said, in relation to the cannabis, that you had occasionally smoked cannabis but have now ceased use.
25 Your counsel urged me to take into account the following matters:
(a) your early plea of guilty and early indication that you would not contest the violence offences;
(b) your offending occurred in the context of an intense and unusual relationship;
(c) the delay that occurred between charge and the matter being finalised and the accompanying distress and stigma;
(d) the delay meant that the matter had been hanging over your head;
(e) you had spent a period of six months in custody on the reimposed suspended sentence since this offending.
26 Your counsel submitted that the appropriate sentence would be a short period of imprisonment equivalent to time served and a community correction order. Your counsel said that you now have a car and could complete such an order. You also have two children now. Your family are aware of matters that they were not aware of before.
27 The prosecutor submitted that there were a number of aggravating features in relation to charge 1 of causing injury intentionally including the kick to the head. The prosecutor submitted that this could have caused more serious injury. The prosecutor also submitted that specific deterrence ought loom large in sentencing you given that there had been previous physical altercations.
28 The prosecutor also submitted that just punishment, general deterrence and, to a lesser extent, denunciation and community protection ought to have a part to play in sentencing you. The prosecutor submitted that the appropriate sentence would be a term of imprisonment of between 18 and 24 months with a non-parole period of 9 to 12 months.
29 Ajmal Gharfari, your behaviour which led to Charge 1 was seriously wrong. You engaged in physically violent behaviour towards a female with whom you had been in a close relationship. You intended to injure her. You deliberately behaved in an aggressive intimating and frightening way. There was not just one physical act but you continued with violence towards the complaint. You did cause her injuries. Those injuries could easily have been more serious than they were.
30 It is not clear what your motivation was. You had been in a volatile and complex relationship with the complainant. It appears that there was an argument and you became angry and acted physically on that anger. It is one thing to become angry and quite another to become physically violent as you did. That behaviour must be strongly denunciated and appropriately punished. It is to be hoped that the prospect of a prison sentence would deter you and others from acting in a similar way again.
31 It is not clear what harm apart from physical injuries were suffered by the complainant. Her victim impact statement speaks in strong terms but footage shown of later interaction includes the complainant getting into a car with you and going out to a restaurant. This indicates that she was much less frightened of you that she indicated in her victim impact statement. Her recent attitude to you may also reflect the complex nature of your past relationship. In sentencing you I do so on the basis of the physical injuries she suffered and degree of fear and distress that the complainant felt at the time. I have not included any consideration of any ongoing harm in sentencing you.
32 I have taken into account in mitigation the delay involved in this case. It appears that the delay in this proceeding resulted from the complexity of the case and various other matters which were being dealt with at the same time. It appears from submissions by both parties that the delay was not caused by any fault on either side. I take into account that there was considerable distress caused to you by this matter hanging over your head particularly in respect of charges which have not been proceeded with. Those charges would have given rise to both distress and stigma. I have taken those matters into account in mitigation of sentence.
33 I do not consider the context of your relationship provides any mitigation. You knew the relationship was volatile. You knew that the relationship had involved violence in the past. Despite that knowledge when an argument started you did not simply drive away but engaged in physical violence.
34 I have concerns in relation to your rehabilitation. You have some prior criminal history of violence. You have a history of other offending which has led to a short term of imprisonment and a suspended sentence hanging over your head at the time of this offending. That did not stop you engaging in this offending.
35 You have pleaded guilty but in my view have demonstrated no other remorse towards the complainant. You had family support in the past but you still offended. I accept that you are making effort to have a good relationship with your wife and children and parents. You have employment and increasing maturity. I consider your prospects of rehabilitation to be reasonable. In view of that and in view of your history of offending and failure to comply with past sentences I consider that specific deterrence must have some weight in sentencing you.
36 You are entitled to a significant discount for your plea of guilty. There was an early indication of your plea although not as early as contended for by your counsel. Your plea of guilty has had considerable utilitarian value in saving the cost and time of a trial. It has also save any trauma to the complainant. That plea of guilty I accept is an expression of remorse but only to a very limited extent. I repeat however that your plea of guilty has considerable utilitarian value.
37 I have taken into account in mitigation of sentence that you have since served a six months sentence of imprisonment. I accept that that has had some impact in respect of specific deterrence. I also consider that you lost the opportunity for concurrency because of the delay in these proceedings.
38 In respect of the cannabis charge I note that that is a small amount and accordingly is relatively minor offending. It is concerning in view of your prior history of drug offending. I accept for the purposes of this sentence that you have stopped using illegal drugs.
39 I considered imposing a community correction order. You have been assessed as suitable but I do not consider either a community correction order or a sentence of say three months imprisonment plus a community correction order would adequately reflect the sentencing considerations of denunciation, just punishment, general deterrence and specific deterrence. I consider that a sentence of imprisonment is the only sentence that would adequately meet those sentencing objectives.
40 Could you please stand Mr Gharfari.
41 In respect of Charge 1, causing injury intentionally you are convicted and sentenced to 12 months imprisonment.
42 On Charge 2, possession of a drug of dependence you are convicted and fined $400.
43 I fix six months as the period to be served before you are eligible for release on parole. I declare that you have spent 49 days by way of pre-sentence detention which is to be deducted administratively.
44 I make the order for a retention of the forensic sample taken from you. I make that order because of the seriousness of the circumstances of this offending, your prior convictions and that the making of the order is not opposed. I also have made the order for disposal of the cannabis.
45 But for your plea of guilty I would have sentenced you to a term of imprisonment of 18 months with a non-parole period of 12 months.
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