Director of Public Prosecutions v Ghebrat
[2016] VCC 154
•11 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-02294
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ADHIL GHEBRAT |
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JUDGE: | Her Honour Judge Pullen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February 2016 | |
DATE OF SENTENCE: | 11 February 2016 | |
CASE MAY BE CITED AS: | DPP v Ghebrat | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 154 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Martin | Office of Public Prosecutions |
| For the Offender | Ms C. Morris | Rob Stary Lawyers |
HER HONOUR:
1 Adhil Ghebrat, you have been charged with and pleaded guilty to two charges of breaching conditions of a supervision order pursuant to Serious Sex Offenders Detention and Supervision Act 2009 (“the Act”). The maximum penalty applicable for such a breach is five years’ imprisonment, although summary jurisdiction has been applied for and granted in these proceedings, with the maximum penalty applicable being two years’ imprisonment.
2 These two charges arise from events which occurred on 14 December 2015 and 16 December 2015. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit B. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to say your continued breaches, in my opinion, are most serious and disturbing.
3 Turning to your index offending. On 11 March 2003 you were sentenced in the Melbourne County Court to a period of 7 years and 3 months' imprisonment with a non-parole period of 3 years and 6 months. That sentence was imposed on three charges of rape and one charge of robbery. The charges related to two separate incidents with two victims of your offending.
4 At the time of the index offending, you were 18 years of age and had been consuming alcohol on both occasions.
5 On 1 December 2011 I imposed a supervision order pursuant to the Act. That order commenced on 1 December 2011 and was for three years.
6 The conditions of the order were subsequently amended on 19 October 2012 by his Honour Judge Taft by a temporary condition to reside at Corella Place.
7 On 2 September 2014 I renewed the supervision order for a period of two years and the residence condition of the supervision order was later varied by me on 6 November 2014.
8 Relevant to the breaching offences before me, at the time of those breaches you were subject to a number of conditions pursuant to s.17 of the Act, specifically conditions 4.1, 4.2, 4.4 and 4.5. In brief, residential, curfew, drugs and drug testing conditions.
9 On 27 January 2015 the Adult Parole Board issued an instruction to you pursuant to condition 5.1 of the supervision order, which permitted that you could reside at an address in South Yarra during certain hours. Then on 17 August 2015 the Adult Parole Board issued further directions relevant to residence, pursuant to condition 5.1 of the supervision order.
10 You were inducted into the supervision order and were aware of the conditions of the order. You have, concerningly, previously breached the supervision order.
11 On 19 December 2012, you were sentenced by me to 70 days’ imprisonment in respect of 12 (rolled-up) charges of breaching the supervision order. Your offending involved numerous positive drug tests, providing false urine samples and failing to attend drug and alcohol treatment.
12 On 11 November 2015 you were convicted and sentenced by me on that occasion to 56 days’ imprisonment on one charge of breaching the supervision order, your offending involving the use of heroin.
13 As is noted in the prosecution opening, and aIso I note that preceding the breach on 11 November 2015 and the breaching currently before me, there were three mentions before me throughout 2015 when you attended court as requested, and I discussed with you my concerns regarding your compliance with the supervision order.
14 I am in no doubt you were well aware I was concerned to monitor your compliance with the supervision order generally, and in particular in relation to compliance with the residence, curfew, drug use and drug testing conditions.
15 Specifically, there was a mention on 14 April 2015 regarding incident reports relating to diluted urine samples, failing to attend urinalysis testing and being uncontactable. On 6 May 2015 there was a mention to review your progress with residence and curfew conditions and on 22 July 2015, a mention to discuss your then concerning behaviour and alleged noncompliance with the supervision order conditions.
16 As I have said, I have no doubt you are aware I was concerned regarding your non-compliance with the order and, in essence, “warned” you of the need to comply with my order.
17 Turning to the current Charge 1. At 9.50 pm on 14 December 2015 you were checked by police and were found asleep in your vehicle with drug paraphernalia present. At 11.00 pm a scheduled telephone call was made to your home in Springvale, however, you did not answer the landline.
18 The electronic monitoring centre then placed subsequent telephone calls to your landline between 11.00 pm and 11.23 pm and all went to MessageBank. Two calls were also made to your mobile phone at 11.08 pm and 11.24 pm which went to Voicemail.
19 At 11.10 you were intercepted by police driving a motor vehicle on the Monash Freeway. You were the sole occupant of the vehicle.
20 At 11.31 pm a Corrections Victoria duty director phoned your mother, who confirmed you were then at your home. You subsequently identified yourself on the phone. When questioned as to why you had not answered your landline or mobile, you said you had been at home and that the phone had not been plugged in correctly.
21 The duty director then phoned your landline at the address in Springvale at 11.34 pm and you answered. On this evening you were required to be at the Springvale address by 11.00 pm. This charge relates to beaching the curfew.
22 Turning to Charge 2. On 15 December 2015, following the above incident, your acting specialist case manager attempted to contact you on your mobile phone and landline on numerous occasions throughout the day, wanting you to attend for urinalysis testing that same day. You eventually contacted her at 4.00 pm and said you had unwittingly put your mobile phone on flight mode and that it was not taking calls. You said you had been at home in bed all day and had not heard the landline ring.
23 The case worker directed you to attend urinalysis testing in the city the following morning.
24 On 16 December 2015 you contacted the case worker at 2.30 pm asking if she wanted you to attend drug testing and she reiterated you had already been directed to do so that morning. You were directed to proceed immediately for testing. You subsequently attended for urinalysis testing. The results were received on 21 December 2015 and tested positive for morphine, codeine and oxazepam, consistent with recent heroin use.
25 That test result breached condition 4.4 of the supervision order.
26 You were arrested and interviewed on 22 December 2015. Regarding Charge 1, curfew, you said you were not aware of the time and regarding Charge 2, you denied taking any prohibited drugs.
27 You appeared at Dandenong Magistrates' Court where the charges were uplifted to the County Court. You did not apply for bail and were remanded to appear at Melbourne County Court on 21 January 2016. There was a mention that day and the matter was listed for hearing on 4 February 2016 before me. You were remanded to that date.
28 As at 4 February 2016 you had served 44 days in custody as pre-sentence detention from 22 December 2015 to 3 February 2016 inclusive.
29 Ms Morris, who appeared on your behalf, submitted you were a protection prisoner.
30 You instructed that you would be re-employed with your recent employer upon your release from prison following sentence for the two breaches before me.
31 Ms Morris conceded a term of imprisonment was the only appropriate disposition for your offending. That was a very sensible submission on her behalf.
32 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. Also I accept, and have taken into account in your favour, that you intimated early your intention to plead guilty to these charges.
33 In all the circumstances, however, in particular in light of your previous breaches I am unable to conclude, on the evidence before me, that your plea of guilty indicates real remorse. I have no doubt you are regretful at having been caught, but that is not to say you are remorseful for these breaches. In that regard, I am particularly concerned by your repeated breaches of the supervision order.
34 Ms Morris accepted the need for general, specific deterrence and just punishment when sentencing you. She submitted you were now aware you needed ongoing assistance, in particular regarding your drug use and you said you were prepared to engage with services upon release, including the possibility of being in a residential unit. To that end, I was told you had made some inquiries with Odyssey House. I discussed with Ms Morris your lack of past attempts to address your issues.
35 Ms Morris conceded a number of the protective factors that she had relied upon had existed prior to these breaches and under the previous supervision orders, and despite these protective factors you nevertheless continued to breach. Those supposed protective factors included you living at home, where you had lived in recent years, and that you had been employed at the time you committed these breaches and the last breach of the supervision order.
36 Ms Morris relied upon your plea of guilty at an early opportunity, and as I have said, I accept that is so, although I note with some concern your denial of use of drugs and your explanation for breaching the curfew conditions.
37 Ms Martin, who appeared on behalf of the prosecution, submitted an immediate custodial sentence was the only appropriate disposition. Ms Martin referred to your concerning history regarding non-compliance with supervision orders, having breached supervision orders been dealt with on two occasions previously.
38 Ms Martin also referred to you having breached the supervision order by these offences just a short time after your release from prison following the last sentence I imposed on 11 November 2015.
39 It was, however conceded, and appropriately so, by Ms Martin that your breaching offences before me, in particular your drug use relevant to Charge 2, was not a prelude to further sexual offending. Of course I previously stated that occurred in the context of alcohol. I accept that is so and as such is a relevant sentencing consideration that is in your favour, that is, it was not a prelude to further sexual offending.
40 Ms Martin submitted there was a need for general deterrence and specific deterrence when sentencing you. I agree.
41 Turning to your rehabilitation prospects, I have grave concerns, particularly given your history on the supervision order and the mentions before me to discuss concerning aspects of your compliance with the order.
42 The importance of compliance with supervision orders has been referred to in the decision of Acting Secretary to the Department of Justice v McKane[1], in which her Honour Williams J stated:
“It is essential to the effectiveness of the statutory scheme that offenders subject to supervision orders be aware of the significance of their obligations under the conditions of those orders and the seriousness with which breaches will be viewed by the courts.”
[1] [2012] VSC 459 at paragraph 21
43 I am in no doubt you were aware of the risk you ran of a further term of imprisonment from the various mentions and my concerns with your compliance with the supervision order and also of course the sentences that had been imposed on the previous breaches.
44 Ms Martin conceded your plea of guilty was made at the earliest opportunity and, as I said, I accept that to be the case.
45 As well as matters personal to you, to which I have referred, and your rehabilitation prospects as I find them to be, of which I have concern, I must also take into account matters such as deterrence, especially general deterrence which is of considerable importance in a case such as this.
46 There is also the need for specific deterrence when sentencing you, given your repeated breaching of a supervision order.
47 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. This continues to concern me, in particular, given your history of breaching the supervision order and your offending, albeit, I again note this offending was not a prelude to sexual offending.
48 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
49 In my opinion a term of imprisonment is the only appropriate disposition for these breaches. I have taken into account the principle of totality when determining the appropriate sentence.
50 On Charge 1, you are convicted and sentenced to 5 months’ imprisonment.
51 On Charge 2, you are convicted and sentenced to 5 months’ imprisonment.
52 Charge 1 is the base sentence and I direct that 2 months of Charge 2 be served cumulatively upon Charge 1.
53 That results in a total effective sentence of 7 months’ imprisonment.
54 Pursuant to s.11 Sentencing Act 1991 I do not propose to order a non-parole period, that is, this is a straight sentence.
55 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them at trial, I would have sentenced you to a term of imprisonment of 14 months and set a non-parole period of 8 months.
56 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 51 days in custody by way of pre-sentence detention, up to and including yesterday being 10 February 2016, and I direct that that be entered into the records of the court.
57 HER HONOUR: Now first of all PSD right?
58 MS MARTIN: Yes, that's correct.
59 HER HONOUR: Excellent. Anything further in this matter?
60 MS MARTIN?: No, Your Honour.
61 HER HONOUR: Thanks, Mr Ghebrat, would you mind going, please. Thank you.
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