Director of Public Prosecutions v Ghazi
[2020] VCC 690
•16 March 2020
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-01364
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BASSAM GHAZI |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 March 2020 | |
DATE OF SENTENCE: | 16 March 2020 | |
CASE MAY BE CITED AS: | DPP v Ghazi | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 690 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Zammit | Office of Public Prosecutions |
| For Ghazi | Ms Hughes | Papa Hughes Lawyers |
HER HONOUR:
1 Mr Ghazi, you have pleaded guilty before me to one charge of dangerous driving while perused by police, one charge or attempting to pervert the course of justice, two charges of process a drug of dependence. You also pleaded guilty before me to a charge of driving a motor vehicle whilst your license was suspended; committing an indictable offense on bail, which was attempting to pervert the course of justice, and contravening bail by failing to report to police on two occasions.
2 Also you failed to comply with a police direction. The facts underlying the offending are as follows: in 2018, you were placed on bail for other offending, which included a condition that you reside at 48 Cuthbert Street, Broadmeadows, and be there between the hours of 9 pm and 6 am; you were to present at the front door of the address at the request of police; you were to possess only one mobile telephone and to provide the informant with the number; and you were to supply the passcode of a mobile telephone if it was legally seized by police.
3 You were also to report to Broadmeadows police station every Monday, Wednesday and Friday between 6 am and 9 pm, and you were not to be in charge of any motor vehicle without a valid license. On June 16 2018, your license was suspended for a period of 12 months due to speeding. On 29 August 2018, you were disqualified from obtaining a license for a period of six months after being convicted of driving whilst suspended. In breach of your bail conditions, you failed to report at the Broadmeadows police station on the 19th and 21st day of December 2018, that being rolled-up summary charge 17.
4 On 28 December 2018, two police officers, Senior Constable Phillips and Constable Taliva were performing static laser speed detection duties on Mahoneys Road, Reservoir, in which they were using a laser speed detector. The speed on the stretch of road there was 70 kilometres per hour. At about 3.35 pm, Senior Constable Phillips saw a black Hyundai that he estimated at travelling at about 120 kilometres per hour head towards Hughes Parade, and then saw the car brake suddenly, indicating that the driver had seen the marked police car.
5 Senior Constable Phillips aimed the laser at the car and obtained a reading of 100 kilometres per hour. Police then did a U-turn of the police car, intending to intercept the black Hyundai, but, as the U-turn was being performed, that car passed the police car, and police saw that there was only one occupant in the car, being a driver, later identified as you. Police followed the vehicle and saw it approach the intersection of Mahoneys Road and Hughes Parade, at which time there was a red light directing the oncoming traffic. You veered around the stationary traffic, entering the bus lane, and entered the intersection against the red light at about 70 kilometres per hour.
6 As a result, two cars who you were legally entering the intersection and in the process of turning right into Mahoney's Road, had to brake heavily to avoid colliding with you. You swerved to avoid these cars as well. Police accelerated, activated sirens and lights and followed you. After a short time, police were able to get close enough to take the registration number and to use the speed reader, and they noted the speed was 139 kilometres per hour. At that point, the speed limit on Mahoney's Road was 80 kilometres per hour. Police saw that you increased you speed in what they thought was an attempt to get away, and at that point, because of concern for safety of other road users, and a view that you were driving at a dangerous speed, police decided to discontinue the chase.
7 So your actions in speeding, entering an intersection on a red light, causing at least two vehicles to brake heavily and then increasing speed again after driving through the intersection constitute dangerous driving and underlie charge 1 on the indictment: dangerous driving whilst pursued by police, and summary charge 6, driving whilst disqualified. You had no license at the time, and, indeed, were disqualified from driving. You continued to drive west along Mahoney's Road, driving erratically around traffic at high speed. Police checks on the car revealed that the black Hyundai was registered to your brother.
8 Police entered the address associated with the registration at 9 Bungay Street, Fawkner, and spoke to your brother. He said he did not know who had the car, as he had sold it. Police required him to make relevant enquiries, and provide police with details of a person who had possession of the car within seven days. On 31 December 2018, at 11.51 am, you sent Ahmed a text message saying "call me", which he did, and, during a recorded telephone conversation, you and your brother discussed the ownership of the car, you admitting that you'd been driving it during the chase.
9 You told your brother to tell police that a woman was driving the car, and you said you'd already provided your brother's wife with details of the driver, being a photograph of a Victorian driver's license, and the name of a woman, Nikita Bullock. I attach the prosecution summary to these sentencing remarks, but, in essence, in the conversation, you said you called the girl and she was going to “take the wrap”, and that you had already paid her. These actions underlie charge 2 on the indictment: attempt to pervert the course of justice, and summary charge 15, committing an indictable offense on bail.
10 That same day, Senior Constable Phillips contacted Ahmed to get details of who had possession of the black Hyundai, Ahmed saying it was a woman called Nikita Bullock. Ahmed was told that it was thought you were the driver and to make further inquiries and ring back. On 31 December 2018 at 6.34 pm, you had a conversation with an unknown male, during which you had a discussion about ecstasy, during which it was confirmed that you'd previously provided the caller with ecstasy and were willing to “top him up”. On 3 January 2019, police attended a house in Augustine Terrace, Glenroy, where you were present, and those actions underlie summary charge 16, contravening certain conduct conditions of bail, being the condition to reside at 48 Cuthbert Street, Broadmeadows.
11 While speaking to you, a mobile phone was produced, and police informed that it was yours. You were asked for the passcode for that phone, and you refused to provide the pin. Those actions underlie summary charge 20, failing to provide information to access data under warrant, and summary charge 19, contravening certain conduct conditions of bail, that being the failure to provide the passcode, which is one of the conditions. During the search, police found a zip lock bag containing a small amount of brown substance on the kitchen bench, which you said was MD belonging to a friend, that is, ecstasy, and it was later found to be 3.9 grams of ecstasy.
12 Your possession of that drug, together with the admissions made in the conversation underlie charge 4 on the indictment, possession of a drug of dependence, namely ecstasy. In a bedside draw located in your bedroom, police found prescription medication, being Prodeine Forte. Your possession of that underlies charge 4 on the indictment, possessing a drug of dependence. You were taken to the Melbourne West police station, where you answered 'no comment' in a record of interview. The maximum penalty for driving whilst disqualified whilst an authorisation is suspended is 240 penalty units, or two years imprisonment.
13 The maximum penalty for dangerous driving while pursued by police is three years imprisonment. The maximum penalty for attempting to pervert the course of justice – you need to have a listen to this, Mr Ghazi – 25 years imprisonment; the maximum penalty for possessing a drug of dependence, it being for possession of sale, five years imprisonment; maximum penalty for possessing a drug of dependence, five penalty units; the maximum for committing an indictable offence whilst on bail, three months imprisonment; maximum penalty for contravening certain conduct conditions of bail, three months imprisonment; maximum penalty failing to provide information to access data under warrant, two years' imprisonment.
14 Your brother has now been charged with attempting to pervert the course of justice, and there is a contested committal being heard on 11 May 2020. You were remanded in custody ultimately, and you remained in custody for a further seven months before being released on bail. You have a fairly concerning prior criminal history, starting in 2014, in the Broadmeadows Magistrates' Court, where you were dealt with for driving whilst authorisation was suspended, and you were fined. Then, on 2 March 2015, you were placed on a community corrections order for a charge of assault in company and driving in a manner dangerous and theft.
15 You were then dealt with, on 11 May 2016, for contravening the community corrections order by further offending, which involved driving while authorisation suspended, various other minor traffic offenses, possessing methandienone and failing to answer bail. And, again, you were on that occasion fined, and you were placed on another community corrections order. On 1 December 2016, you breached that community corrections order and you received a month’s imprisonment. On that same day, you were dealt with for committing an indictable offense on bail, and driving whilst authorisation suspended.
16 You were given a total of one month's imprisonment. On 14 March 2017, you were dealt with for hindering police and, a month earlier, on 28 February 2017, you were placed on another community corrections order for recklessly causing injury, committing an indictable offense on bail and driving whilst authorisation was suspended. Finally, on 25 June 2018, you were dealt with for contravening a community corrections order by way of the offending on 28 February, and you were placed on yet another community corrections order. Ordinarily, as I hope I made perfectly clear during the hearing, Mr Ghazi, when I first heard these matters, my view was that this wasn't a question of another corrections order, it was a matter of a considerable term of imprisonment, probably in years.
17 You have had something like four or five community corrections orders. You breached them all. You've got an appalling driving record; virtually every one of your previous offences has involved some sort of driving infringement. Luckily for you, you seem to have changed your ways, but it took a time in gaol before it dawned on you that the way you were living your life was not going to work. However, the situation is that on your release from the seven months in gaol, you did set about changing your life.
18 For a start, you undertook the CISP remand outreach program. You did well on that: you attended treatment, you got good reports. You began working with your cousin who installs and maintains air conditioners, and I received a reference from your cousin saying that if you are released from custody, he will place you on an apprenticeship. You've gone back to live with your family who, you say, have been extremely supportive of you. You don't seem to have had a particularly difficult childhood, or anything along those lines. Your family obviously emigrated here. That's not always a massively easy undertaking, but it just seems that, ultimately, you've just, quite frankly, been an idiot and gone off the rails.
19 You're 25 years of age; your parents were born in Lebanon; they moved to Australia well before you were born; you completed year 11 at school; you undertook an apprenticeship as an electrician, but you couldn't complete it, then, when you were 20, began working with your twin brother as a roof plumber. You've had some trauma: your best friend was killed in a shooting, and, after that, you began using cannabis and ecstasy. So I'm certainly not suggesting for one moment that that incident did not have an effect upon you, but your behaviour since then, in terms of your offending, has just been off the wall.
20 It's clear overall that you come from a good family, and it's at least to your credit that, unlike many young men your age who go into gaol and think it's wonderful and you found a whole lot of brothers and you found some sort of a club that takes you in a member. You hated gaol and I'm satisfied that has been a real deterrent for you. It was urged upon me by the prosecution to deal with you simply by a sentence of imprisonment with a maximum term and a minimum term. You are still a young man; you have been found suitable for placement on this order.
21 In my view, the assessing corrections officer made appropriate remarks, in that he stated, 'Mr Ghazi has a history of contravening orders, both by non-compliance with conditions and by further offending. He is, however, a relatively young offender who has now spent seven months in custody, and stated that his experience has changed his views around his offending behaviours. He stated he ceased all illicit substance use when he was remanded into custody, and is now in a position to comply fully with the requirements of the court if given another opportunity to complete a community corrections order.
22 That pretty much sums up the reasons why I'm giving you what I stress is your final opportunity to avoid gaol. Do you understand me? You can stand up, sir. You tell me what you think will happen if, for the first – if you don't complete this corrections order.
23 ACCUSED: Gaol.
24 HER HONOUR: You've never completed a community corrections order ever, have you?
25 ACCUSED: The last time I got – the whole (indistinct) got kicked out.
26 HER HONOUR: Yes. I don't reckon you have. I don't reckon you have. So, as I said to you, there will be judicial monitoring. All right? And you better keep your nose clean. Okay? All right. I'm sorry. I've misstated his priors. There was a sentence imposed on your client, as I understand. Is that right? Yes. In relation to your priors, you were also gaoled. What was that offending for?
27 UNIDENTIFIED DEFENCE: I think Your Honour's already mentioned the one month imprisonment for breach of CCO, and a number of other matters that appears to of (indistinct) two breaches of CCOs and other matters.
28 HER HONOUR: Yes.
29 UNIDENTIFIED DEFENCE: And since his remand, he's had three sentences, but they are not priors.
30 HER HONOUR: Very well. All right. So the time that you were remanded in custody, you had matters outstanding that were then dealt with, resulting, it would seem, in a total sentence of seven months. Can I say, Mr Ghazi, the way you were behaving, that was inevitable, and – pardon?
31 UNIDENTIFIED PROSECUTOR: Sorry, just to make it clear, Your Honour, Mr Ghazi spent seven months in prison. There were certain sentences imposed whilst he was in prison in relation to this offending. There's 118 days of pre-sentence attention available, but it was seven months. Thank you, Your Honour.
32 HER HONOUR: No. Thank you very much. That's all right. Yes. Sorry. I withdraw that. Whilst in gaol, you served a number of terms which were imposed upon you for outstanding offending. You had been previously refused bail; you remained in gaol until you were released on a Supreme Court – isn't that right?
33 UNIDENTIFIED DEFENCE: So the contested committal was 9 July.
34 HER HONOUR: Yes.
35 UNIDENTIFIED DEFENCE: He was bailed on 9 July, but he was still serving a sentence, so he was released on 29 July once that sentenced lapsed on that, and then released on that bail.
36 HER HONOUR: Yes.
37 UNIDENTIFIED DEFENCE: The prosecutors did appeal the bail decision, but at that point he was out, and the application to revoke bail was refused.
38 HER HONOUR: Very well.
39 UNIDENTIFIED DEFENCE: So he remained on bail – so he came out on 29 July.
40 HER HONOUR: So by the time he actually served the sentences, he had already – but he'd already been inside on these matters. Is that correct.
41 UNIDENTIFIED DEFENCE: Yes. He was remanded on these matters until 9 July.
42 HER HONOUR: Yes. Yes.
43 UNIDENTIFIED DEFENCE: But then had 20 days left of the one of the sentences to search.
44 HER HONOUR: Very well. In any event, overall, you spent about seven months in gaol. One-hundred-and-forty-six days of that, is it?
45 UNIDENTIFIED PROSECUTOR: One-hundred-and-eighteen, Your Honour.
46 HER HONOUR: One-hundred-and-eighteen days of that is attributable to this offending. It is fortunate for you that you have served some time attributable to this offending. I regard your offending as extremely serious; you are lucky you didn't kill anybody, and if you hadn't already served some time, in relation to this offending, I would not have hesitated to impose a further sentence, albeit that I would have combined it with a community corrections order. You are 25, and so the principles of rehabilitation, pursuant to the case of Azzopardi, have more application in your case, that is, rehabilitation has a greater role to play than it would if you were an older prisoner.
47 What that means is, because you're only 25, the community is more interested in your reforming, and more interested in keeping young people out of gaol. You're 25 now; that's about as old as you can get and have that sort of principle taken into account. If you come back to court and you're 26, 27, no one is interested about you being a young offender, in really legal terms. Very well? You have done your dash, if I can put it this way, of getting any leniency from the courts. I know I said that before, I know I'm repeating it again.
48 I therefore propose to deal with you by way of a combination, mainly because you have been out in the community for around a year; you have not offended any further; you've successfully undertaken a CISP program, as I said; you seemed to have stopped using drugs, and you've got good employment prospects. In the circumstances, it seems to me that a combination sentence will properly respond to both the punitive sentencing aspects required in your case and the rehabilitative requirements that I have already outlined.
49 I therefore sentence you as follows. In relation to dangerous driving whilst pursued by police. I'm sentencing you to 118 days imprisonment, and you are to be released on a community corrections order for a period of one year. On the charge of attempting to pervert – actually, I'll make that eight – I'll do them both. No, because – I'm sorry, I take that back. The driving priors are too bad. It's 118 days, two years CCO. Attempting to pervert the course of justice, 118 days, two years CCO. I need to give separate CCOs on them, because, in my view, they don't amount to the sort of offending where I can impose an aggregate.
50 The possession of the drug of dependence, that can be one month, which will be concurrent. In relation to the summary charges – let's have a look – sorry, I'm just working out what I can and can't give gaol for, because I have to bear some – I might deal with them by ways of fines, I think. Yes. And pay some money, too, I think, Mr Ghazi. So in relation to charge 6, $300; in relation to charge – the next one's charge 15, isn't it.
51 UNIDENTIFIED PROSECUTOR: Yes, Your Honour.
52 HER HONOUR: Very well. So charge 15, $100; 16, $100; 17, $100; 18 ‑ ‑ ‑
53 UNIDENTIFIED PROSECUTOR: There is no 18.
54 HER HONOUR: Sorry, 19, $100. How's that. One, 2, 3, 4. What did I say for the whilst suspended?
55 UNIDENTIFIED PROSECUTOR: Three-hundred dollars, Your Honour.
56 HER HONOUR: So that's $700. I'll give you six months to pay. All right? Is there a license disqualification?
57 UNIDENTIFIED PROSECUTOR: Yes, Your Honour, but there's also charge 20, being failing to provide the information to access.
58 HER HONOUR: Yes, another $100. That's $800. Very well? Six months to pay. He's working?
59 UNIDENTIFIED DEFENCE: Yes, and there's 12 months mandatory disqualification.
60 HER HONOUR: Yes. So all licenses are cancelled. You're disqualified from obtaining any further licence for a period of 12 months.
61 ACCUSED: Does that – does that go for my jet ski license too?
62 HER HONOUR: Pardon?
63 ACCUSED: Does that go for my boat license too?
64 HER HONOUR: Your boat license? I think it's a driver's license only.
65 UNIDENTIFIED PROSECUTOR: Naturally, I'll have to clarify that under the (indistinct) Act.
66 UNIDENTIFIED DEFENCE: We'll find out via VicRoads.
67 HER HONOUR: You'll find out from VicRoads. I'm pretty sure it's car license only, but don't take it from me. You better check with VicRoads. All right?
68 ACCUSED: Yes.
69 HER HONOUR: Very well. So I now need to explain to you, because ‑ ‑ ‑
70 UNIDENTIFIED PROSECUTOR: Sorry, Your Honour. Sorry to interrupt. Your Honour, there's an issue in relation to charge 4 on the indictment. There is two possess drug of dependence charges, the charge 3 and charge 4. My notes indicate on charge 3, Your Honour, imposed a sentence of one month imprisonment. This is charge 4; that was the possession of the prescription medication.
71 HER HONOUR: One week.
72 UNIDENTIFIED PROSECUTOR: One week. Thank you.
73 HER HONOUR: And that'll be concurrent. Thank you. Sorry.
74 UNIDENTIFIED PROSECUTOR: No, yes, Your Honour. That's a five penalty unit maximum.
75 HER HONOUR: Five penalty unit? Two-hundred dollars. That's 1000 bucks.
76 UNIDENTIFIED PROSECUTOR: Thank you, Your Honour.
77 HER HONOUR: All right? Very well. And so I need to outline to you – well, you could probably say to them me, Mr Ghazi; you've been put on a community corrections order so many times, but anyway, you must report to the Community Corrections Office within two working days of the making of this order, that is, by Wednesday of this week. While on the order, you must not commit another offence by imprisonment. If you do, you'll be brought back here on a breach and I'll gaol you. You may not leave Victoria whilst you are on the order without the permission of the Community Corrections Office.
78 You must report to and receive visits from the Community Corrections Office; you must report any change of address or employment within 48 hours of the making of that change. You must obey all lawful directions of the Community Corrections Office. Very well? I'm going to order that you undertake 250 hours of unpaid community work. You are to attend for supervision; you are to attend for judicial monitoring; and you are to attend for assessment and treatment for drug use. Are you prepared to enter these orders?
79 ACCUSED: Yes.
80 HER HONOUR: Very well. And I'll see you in two months.
81 UNIDENTIFIED PROSECUTOR: 13 May at 9.30.
82 HER HONOUR: 13 May at 9.30. I'll allow you to be videoed in from your Community Corrections Office. You don't have to come here. All right. Now we've got the order. Have a seat. Yes?
83 ACCUSED: Do I have to sign back in? (Indistinct)
84 HER HONOUR: I beg your pardon?
85 ACCUSED: Do I have to sign back in?
86 HER HONOUR: No. All done. Very well? All you've got to do is obey the order.
87 UNIDENTIFIED PROSECUTOR: Your Honour, for the sake of completely, does Your Honour propose to make a finding in relation to 6AAA?
88 HER HONOUR: Do I have to, because it's a – I do, because – pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years, and I would have ordered that you serve a minimum term of 18 months. I declare that the 118 days has already been served by way of pre-sentence detention.
89 UNIDENTIFIED DEFENCE: As Your Honour pleases.
90 HER HONOUR: You can come down and sit with your family. Thank you. Where does he live?
91 UNIDENTIFIED DEFENCE: Broadmeadows Corrections Office.
92 HER HONOUR: You'll be going to the Broadmeadows Community Corrections service.
93 UNIDENTIFIED DEFENCE: Can I also just confirm, Your Honour, given that there's two CCOs, will the 250 hours be attached to simply one of the CCOs and the other CCO be treatment only?
94 HER HONOUR: Well, given that they – well ‑ ‑ ‑
95 UNIDENTIFIED DEFENCE: Or else it can just be – just if there's a – as long as they're ‑ ‑ ‑
96 HER HONOUR: They run concurrently. They run concurrently, so he's not going to have to do it – for example, he's not going to have to attend two drug treatments.
97 UNIDENTIFIED DEFENCE: Yes.
98 HER HONOUR: All right? So we'll make a point that they run concurrently.
99 UNIDENTIFIED DEFENCE: As Your Honour pleases.
100 HER HONOUR: We'll need to stand down. Thank you very much.
101 (Short adjournment).
102 HER HONOUR: All right. Now, Mr Ghazi, can you stand up? With that $1,000, you've got 6 months to pay. The sensible thing to do is to start paying it off. If you run out of time in six months, if you've already started paying off, the registrar will be a little more sympathetic than if you've made no effort at all. Very well?
103 ACCUSED: Yes.
104 HER HONOUR: All right? So we're going to make this the first order you've ever finished, aren't we, Mr Ghazi? Yes. Good. All right. I will see you on 13 May. Yes. Thank you. Stand down for the next matter. Thank you.
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