Director of Public Prosecutions v Gholikhani

[2020] VCC 751

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01638

DIRECTOR OF PUBLIC PROSECUTIONS

v

FARAZ GHOLIKHANI

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2020
DATE OF SENTENCE:	21 April 2020
CASE MAY BE CITED AS:	DPP v Gholikhani
MEDIUM NEUTRAL CITATION:	[2020] VCC 751

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Contravention Community Corrections Order – Contravention by way of re-offending and non-compliance – Contravention proven – Community Corrections Order expired

Sentence:Sentenced on the Contravention charge to 54 days’ imprisonment – 40 days’ imprisonment declared as having already been served

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Webster	Solicitor for Public Prosecutions
For the Accused	Mr S. Kenny	Pica Criminal Lawyers

HER HONOUR:

1Faraz Gholikhani, you have pleaded guilty to contravening a Community Corrections Order which I imposed on 21 December 2016 in combination with 19 months' imprisonment.  The Community Corrections Order commenced on 24 January 2018 and was to run for two years.  Its expiry date was therefore 23 January this year.

2You have breached the Community Corrections Order by non-compliance with conditions and by further offending.  You face a penalty for breaching the Community Corrections Order which carries a maximum penalty of 3 months’ imprisonment and it is open to me to resentence you in respect of the original offending.

3You commenced on the Community Corrections Order fairly-well and were apparently motivated to comply with the order, however you did not maintain your resolve.  Having said this, it appears that more could have been done by Community Correctional Services in order to have you engage in the mental health and drug rehabilitation aspects of the order which is most regrettable.

4Perhaps your alleged hostile manner with Community Correctional Services’ workers is partly the reason for this.  They should not be treated poorly as you allegedly did, however on any view of things the lack of follow-up with you is most regrettable.

5I note that this matter had been adjourned to 10 December last year but on that date your counsel informed the court that you did not intend to appear and you knew that a warrant would be issued and that you would be arrested as a result of this. 

6The matter had previously been adjourned in a bid to gather further material in respect of your progress on the Community Corrections Order.  In particular, your level of attendance for mental health treatment.

7A letter from Dr Tee, psychologist, indicated this had been minimal, albeit that he said that when you saw him on 23 March 2018, you were in good mental health and appeared motivated to abstain from drugs.  No mention was made of the Community Corrections Order although he was told that you were engaged with Community Correctional Services Victoria at Broadmeadows, so I am not sure what he thought this meant.

8He did tell you about the availability of a ten- session mental health plan but you told him that you could manage without this and would let him know if you needed help.  You reported back to your GP.

9It is a shame that you did not take advantage of the help that you were offered at this time.  It appears that you were only caught up with on 12 March this year and there was a hearing which was attempted on 31 March this year. Ultimately you refused to take part in the hearing and so the matter was adjourned, as I thought it was best that you be present to hear those proceedings rather than deal with the matter in your absence.

10In dealing with you, I have taken into account the original offending, the details of which are set out in my sentencing remarks.  I am most mindful of the factual basis for the original offending.  I have also taken into account once more your criminal history which is set out at paragraphs 20 through to 32 of my sentencing remarks.

11I have also born in mind your background and the matters in mitigation which were placed before me at the original plea hearing, but I must factor in that you have yet again been unable to comply with the Community Corrections Order. 

12In view of all the relevant matters, I must be concerned for your ability to rehabilitate and protection of the community.  Having said this there were and are some encouraging signs.  There have been from time to time, with your response to the Community Corrections Order that I imposed, and there are in respect of your methadone treatment in gaol and your resolution to deal with your substance abuse.  So I hope that you will finally decide to overcome your setbacks and difficulties and stick to this.

13You are a grown man and it is time to take full responsibility for your actions and for your rehabilitation.  It will be harder for you to do so in the community than in a structured environment in gaol, and I hope that you appreciate that and stick to your decision once you are released.  If you do not, then you will be facing ever-increasing periods in gaol.

14I have also born in mind that the terms of the Community Corrections Order were largely to treat and rehabilitate you rather than impose further punishment.  The punishment aspect was largely addressed by the period of imprisonment.

15You have been in custody for 40 days now.  I have taken that into account.  In circumstances where the COVID-19 restrictions have made that time harsher than it might otherwise have been.

16I will just go back to where I think the link dropped out.  I just said you have been in custody for 40 days now. I have taken into account the extent to which you have complied with the Community Corrections Order which could be described as fairly solid initially, but this fell away fairly quickly as I have previously said.

17I find the breach proven and you are convicted with the breaching offence, and in all the circumstances you are sentenced to 54 days’ imprisonment for the breaching offence.  I declare that 40 days’ imprisonment have already been served.

18In all of the circumstances, I intend to confirm the community correction order previously imposed and which has now expired.  I hope and trust that in the days leading up to your release that you will prepare yourself to live as a law-abiding citizen in the community and to immediately put in train steps towards your rehabilitation so as to avoid any further periods of imprisonment.

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