Director of Public Prosecutions v Haddara

[2018] VCC 1597

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00862; CR-18-00863 & AP-17-2767

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMMED HADDARA

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 July, 3 August & 17 August 2018.
DATE OF SENTENCE:	11 September 2018
CASE MAY BE CITED AS:	DPP v Haddara
MEDIUM NEUTRAL CITATION:	[2018] VCC 1597

REASONS FOR SENTENCE
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Subject:  Sentencing
Sentence:  TES 12 months imprisonment; NPP 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr I. Harrison	OPP
For the Accused	Mr A. Lewin	Emma Turnbull Lawyers Pty Ltd

HER HONOUR: 

1Mohammed Haddara, you are before me for sentencing on a combination of matters. 

2First, you have pleaded guilty to five charges on an indictment; three of theft of a vehicle, one of possessing an imitation firearm, and one of possessing a drug of dependence, namely methylamphetamine. These offences all occurred in early October 2016.  Associated with those charges is a summary charge of committing an indictable offence whilst on bail, which has been transferred to this court and to which you have also pleaded guilty.

3You are also before me for breaching a community corrections order, which was part of my sentencing of you late last year.

4On 21 December last year, I sentenced you on appeal from Magistrates' Court orders.  You had been sentenced in the Magistrates' Court last October on a number of offences, including burglary, theft, possession of methylamphetamine and cannabis, and for driving whilst suspended and driving an unregistered vehicle, as well as committing an indictable offence whilst on bail.  All of those offences breached a community corrections order which had been imposed in a Magistrates' Court previously for burglary and theft.

5On the appeal, I sentenced you for the breaching offences to eight months' imprisonment, and for the breach of the community corrections order I varied that order by extending its duration by one year so that it would resume when you had completed your prison sentence and would last a further year. It had conditions that you perform 100 hours of unpaid community work, undergo supervision and drug treatment, 40 hours of which treatment could count towards the unpaid community work.

6You completed the term of imprisonment in February of this year, and resumed the community corrections order, but contravened it by noncompliance and by further offending in May.

7I shall deal first with the offending which forms the charges on the indictment.  Those charges did not breach the community corrections order, because they arise from events, before the community corrections order was imposed.

8Initially these charges on the indictment were to be dealt with summarily in the Magistrates' Court.  Due to another more serious charge, for which the complainant apparently wavered on his willingness to give evidence, these charges were moved into the committal stream.  Then when that charge did not proceed, these could have been dealt with summarily, but a magistrate refused to do so.  That accounts for there having been delay in having these charges finally dealt with.

9There are three charges of theft, each of a vehicle, and each constituted by you being found using or otherwise in possession of a recently stolen vehicle and taken to have assumed the rights of the owner, rather than it being alleged that you directly stole it.

10On 4 October 2016 at approximately 3.30 pm you were driving a BMW car on the Princes Highway, Hoppers Crossing, this vehicle having been stolen some four days earlier.  While driving it, you pulled alongside another vehicle, beeped the car horn, and showed the driver what appeared to be a handgun.  It was in fact an imitation handgun. You then overtook another vehicle, and crossed lanes to reach an exit from the freeway, causing another driver to have to slow down to avoid a collision.  You then drove behind that vehicle and pointed the handgun at the vehicle.  You then stopped in the middle of an intersection, waving the handgun out of the window of the BMW and forcing other vehicles to stop to avoid it.  These events give rise to Charge 1 of theft of the BMW, and Charge 3 of being a prohibited person possessing an imitation firearm.

11Later the same day, you were driving a white Mazda van which had been previously stolen.  Charge 2 is of theft of this motor vehicle, again constituted by you driving it and thereby assuming the rights of the owner.  That vehicle was recovered the following day, from which I infer that you abandoned it somewhere.

12On 7 October 2016 you were observed standing next to the stolen BMW.  When police arrived you attempted to flee, but you were arrested a short distance away.  A search of the BMW found a small amount of methylamphetamine in a plastic bag in the centre console, that being the basis of Charge 4 of possession of a drug of dependence.

13You were arrested by police on 7 October 2016.  You made a “no comment” record of interview.  A search warrant was executed at your home, and police found there a stolen motorcycle, which had been stolen between 3 and 4 October 2016.  It was being stored by you in your garage, so you had assumed the rights of the owner, and that is the basis of Charge 5 of the theft of that motor vehicle.

14At the time of all of this offending, you were on bail.  All of the offences on the indictment constitute the summary charge that has been transferred to be heard in this court of committing an indictable offence whilst on bail.  I have taken into account that being on bail is an aggravating factor for the offences you committed during that time, but because I am also sentencing you on the summary charge of committing an indictable offence whilst on bail, I have been careful not to impose double punishment in that regard.

15In assessing the objective seriousness of these offences, I have taken into account that the maximum penalty for each charge of theft is ten years' imprisonment.  The maximum for being a prohibited person possessing an imitation firearm is two years' imprisonment; and for possessing a drug of dependence, if not for other than personal use, is one year's imprisonment.  For committing an indictable offence whilst on bail, the maximum is three months' imprisonment.

16In using three stolen vehicles during that three day period in October 2016, the BMW car and the motorcycle apparently being kept by you for more than one use, you were clearly acting dishonestly and with no respect for other peoples' property.  There is no explanation for why you were in possession of three stolen vehicles over those few days.  I have been told that you were abusing drugs at the time, but that is not only no excuse, it also does not explain the reason for having and using three recently stolen vehicles.

17In my view, however, the most serious part of your conduct was the reckless use of an imitation handgun to frighten other drivers.  Whether this was purely to frighten other drivers or some sort of fun for you, it was very dangerous.  The drivers who saw it were not to know that it was an imitation gun.  You pointed it at two different drivers while they were driving, and indeed were waving it out of the window at another stage.  While driving on a freeway, the fact that other drivers would have thought it was a real gun, could have caused them or others harm by their driving reactions out of fright or fear.

18Your conduct was immature, and again probably under the influence of drugs, but that does not make it less dangerous, nor does it excuse your thoughtlessness for the impact of your actions on other people.

19In my view, both general and specific deterrence must be important factors in the sentences for both the use of stolen vehicles and the use of the imitation gun by pretending to threaten to shoot drivers of other cars.  Both you and others who might be tempted to engage in this type of offending must be shown that such offences will attract serious punishment.  That is what I mean by both general, that is the message to others, and specific, the message to you, deterrence.

20In relation to the contravention of the CCO, you did report initially after release from prison, and you did attend supervision appointments.  However, it is clear that you did not seriously engage in the rehabilitation conditions under the order.  You failed to attend for drug treatment, and returned a positive drug screen on one occasion when you did undergo such a test and did not attend on others. You did not perform any unpaid community work until well after the contravention was on foot, and when you did attend for that work on one occasion, you did not complete the day there, leaving after three hours.  While this is not the worst performance on a CCO that has come before me, it was repeated noncompliance, indicating a lack of willingness to engage in rehabilitation, and also a lack of willingness to perform the unpaid work component. Further, within less than three months of being released from prison and resuming the CCO, you committed the even more serious breach of reoffending.  You admit these contraventions.

21As well as dealing with the offences for which the CCO was originally imposed, there is a separate offence of contravening a CCO, for which the maximum penalty is three months' imprisonment.

22You have pleaded guilty to each of the new charges and to the charge of contravening the CCO.  These pleas of guilty entitle you to some leniency on each sentence for the utilitarian value of saving the community the time and cost of disputed hearings, and also for accepting responsibility for your offending. I am not convinced that the pleas of guilty reflect fulsome remorse, but rather they probably reflect regret for the consequences to you and for the impact on your family. I shall state at the end of your sentence what it would have been, had you not pleaded guilty to these charges.

23I have given you the benefit of a relatively early plea of guilty because it seems that, although you made a “no comment” interview to police, you indicated a willingness to plead guilty to these charges from a relatively early stage. That process was delayed due to another charge, a more serious charge of armed robbery, being laid, withdrawn, then reinstated and causing these matters to be moved into the committal stream at the Magistrates' Court, and then when the armed robbery charge did not proceed, led to a refusal by a Magistrate to deal with the other charges summarily.

24I turn now to your personal circumstances.  You are now aged 23.  You were aged 21 when you committed the October 2016 offences.  At that stage your criminal history was limited to two sets of prior offending, both dealt with in 2014.

25In September 2014 in this court, on an appeal from orders made in the Melbourne Magistrates' Court, on charges of burglary and theft, theft of a motor vehicle, and theft from a shop, for which you had been initially sentenced to nine months' detention in a youth training centre. You were resentenced on appeal to a community corrections order to last for two years, and under which you were to perform 300 hours of unpaid community work.  You were also to undergo assessment and treatment, and not to associate with other persons with whom you had been offending. You apparently completed that community corrections order, and that is a significant amount of unpaid community work to have completed, which indicates that you are capable of compliance when you set your mind to it.

26However, in October 2014 you were also sentenced in Sunshine Children's Court for an armed robbery and false imprisonment, and were to be released on a youth supervision order.  I do not have details of those offences, but accept that your criminal history was relatively limited at the stage of the offending that occurred just on two years after you had last been before a court, and while you were still, as I have said, at the relatively young age of 21.

27Your criminal history, however, has grown very considerably since then.  You have also been the subject of a considerable number of court orders, and indeed have served more than one sentence in adult prison, where you are currently.

28In January 2017 you were sentenced to an aggregate of 90 days' imprisonment for a number of offences, including possessing amphetamine, committing an indictable offence whilst on bail, recklessly causing injury, and driving whilst suspended.

29In February 2017 you were sentenced to a community corrections order for burglary and theft, that being the community corrections order for the breach of which you came before me last December, and which is again before me now. At the same time you were dealt with for that breach in October 2017, you were dealt with for extensive other offences, for which on appeal I imposed a sentence of eight months' imprisonment.

30Since then, you have been dealt with by a Magistrates' Court for charges of stalking, using a carriage service to harass, and reckless conduct endangering life, unlicensed driving, and some other associated offending.  For all of that, on 16 August of this year, you were sentenced to seven[1] months' imprisonment with 60 days credited as pre-sentence detention, because you had in fact been in custody since mid-June of this year.

[1] Corrected on revision. Was said to be 6 months.

31The periods of time you have spent in custody, especially at your age, call for some moderation of the sentences I am to impose due to the principle of totality.  However, they also signal that specific deterrence so far as the earlier two sentences, that is one of 90 days, then one of eight months, which I imposed, and that was a reduction of what a magistrate had imposed, have not proved to be salutary enough lesson for you to resist engaging in further offending.

32I have, nevertheless, taken totality into account in determining both the individual sentences, the total effective sentences, and what degree of concurrency to allow on your current sentence.

33Your parents remain supportive of you, your mother having been in court on the last occasion, and I can see here again today.  I have read a reference from your mother, who clearly still feels deeply about the trouble you have been in, and wishes to support you.  I am satisfied that she will continue to do so on your release from prison.

34I accept that she suffered serious illness and treatment earlier this year, and that that was stressful for you.  It may have influenced you to resume drug abuse within a couple of months, if not sooner, after your release from your prison.  The stress of your mother being seriously ill puts your relapse into drug abuse into context, but it is no excuse, neither for relapsing into drug use, nor for the offending committed since.

35It is also no excuse for failing to engage properly with the community corrections order.  I just interpolate when I talk about the offending since, I am not taking it into account as breaching the CCO, but the fact that you relapsed into drug use and engaged in further offending is part of the overall picture when it comes to what prospects I consider you have of rehabilitation.

36I have also read a supportive reference from your uncle, for whom you were working after release from prison in February of this year.  I accept his view that you showed much change for the better in your attitude whilst working for him; had been quite aimless previously, and that the work for him gave you a lot more purpose, and also that purpose and your changes in attitude were very pleasing to your father. I note that your uncle thought he was giving you time off work to do community work under your CCO.  However, at the time he wrote that reference, which was in April of this year, you had completed zero hours of community work under the order. 

37Nevertheless, I accept that you want to resume working as a mechanic and panel-beater, and that such work is available through your uncle on your next release from prison.  It's also apparently likely to be available through your father, who operates a separate mechanic and panel-beating business.

38In June of this year, before being sentenced in the Magistrates' Court, you were referred under the Youth, Community and Law Program by the Magistrates' Court to the Youth Junction.  A report to the Magistrates' Court in July confirmed that you were engaging to a satisfactory standard with that organisation, and appeared motivated to address your substance abuse and to receive mental health support to assist you. Nevertheless, since then you have been sentenced to prison, and no further deferral was made to enable you to continue on that program.

39The report at that stage is indicative that you are capable of explaining your needs and committing to engagement in suitable rehabilitative programs.  The real issue, however, is whether, when put to the test, you follow through with that expressed commitment after release from prison.  You were not prepared to follow through under the CCO when released in February of this year, nor, I note, in mid-2017 when originally on the CCO.

40I have taken into account that the matters on the indictment come before me after some delay that, as I have explained, was not really your fault, and that you have not only had them hanging over you for almost two years, but have lost the opportunity to have them dealt with at the same time as more contemporaneous offending.  In the end, as you are serving another sentence now that was imposed in August, I can afford you some concurrency to deal with this aspect of the delay.  It cannot be said that you used the delay to embark constructively on rehabilitation.

41You are still aged 23.  You have supportive parents and work available for you as a panel beater on your release from prison.  You still need to show that you can commit to long-term abstention from drug abuse.  While your prospects for rehabilitation are by no means hopeless, and at your age should still be a significant factor in your sentencing, in my view, your conduct over the last 18 or more months does not reflect strong prospects of rehabilitation.  I put your prospects of rehabilitation as guarded, but at age 23 still to be encouraged.

42Having regard to the extent of offending and its circumstances, I am of the view that no sentence other than imprisonment is appropriate on the charges now before me.  I have considered whether to structure a sentence because of the other charges of breaching the CCO to give you a further opportunity to complete the CCO.  However, I have decided against that.

43In my view, ultimately a sentence of imprisonment should be imposed to adequately address the sentencing purposes I have mentioned[2]. 

[2] Reference to having no supervision on release from prison omitted due to fixing of non-parole period.

44Would you stand up now, please?

45Mohammed Haddara, dealing first with the matters on the indictment, you are convicted on each charge and sentenced as follows:

46On Charge 1 of theft of a motor vehicle, six months' imprisonment.

47On Charge 2 of theft of a motor vehicle, six months' imprisonment.

48On Charge 3 of possessing an imitation firearm being a prohibited person, you are sentenced to nine months' imprisonment.

49On Charge 4 of possessing a drug of dependence for personal use, you are sentenced to one month's imprisonment. 

50And On Charge 5 of theft of a motor vehicle, that is the motorcycle, you are sentenced to six months' imprisonment.

51On the summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to two months' imprisonment.  Sorry, one month imprisonment.

52The charge of possession of the imitation firearm becomes the base sentence.  I direct that one month of the sentence on each of Charges 1, 2 and 5 be served cumulatively on each other and on the sentence imposed on Charge 3.  I am sorry, I had them out of order before.  So one month on each of the three charges of theft be served cumulatively on each other and on the base sentence on Charge 3. That creates a total effective sentence on the indictment of 12 months' imprisonment.

53There is no cumulation of the sentence on the summary charge.

54On the charge of contravention of the community corrections order, I impose a sentence of one month's imprisonment.  I cancel the community corrections order and resentence you for the offences for which the community corrections order was originally imposed, namely burglary and theft, to the sentence originally imposed of two months' imprisonment.

55I direct that 14 days of the sentence imposed after the cancelation of the community corrections order, and 14 days of the sentence imposed for the contravention of the community corrections order, be served cumulatively on each other and on the sentence imposed on the indictment.  That produces a total effective sentence of what looks like 13 months, but is in fact 12 months and 28 days' imprisonment.

56I fix a non-parole period of - I am sorry, I have miscalculated this.  I have just got to pause.  Take a seat, Mr Haddara.

57I just need to check this with both of you, Mr Harrison, and with you, Mr Lewin.  I think where I forgot to come back to this is that there is 12 months on the charges on the indictment.  The cumulation from the other two matters are actually under two different proceedings.  So I do not know that I specify it as a total effective sentence.  I think what I do is explain to Mr Haddara that there is that extra 28 days.  But I am fixing a non-parole period on the sentence of 12 months on the indictment.  Is that correct?  Or do I specify a further total effective sentence?  I think I meant to come back to check this and forgot.

58MR LEWIN:  Just pardon me, Your Honour.

59HER HONOUR:  I am sorry, I am going to just think this through a little bit further and let you both think about that.  In reading out, I realise I have miscalculated something.

60MR LEWIN: In my submission, s.11(4) comes into play of the Sentencing Act. If a court sentences an offender to be imprisoned in respect of more than one offence, and in my submission that doesn't change if there are different proceeding numbers, it's more than one offence applies.  So essentially - and it goes on to say any period fixed under sub-s.1 or 2, which is the setting of non-parole, must be in respect of the aggregate period of imprisonment that the offender will be liable to be served under all the sentences then imposed.

61HER HONOUR:  All right, thank you.

62MR HARRISON:  I take no issue with that either, Your Honour.

63HER HONOUR:  All right.  Well in that case I come back to it, that it is an overall total sentence of 12 months and 28 days, for which I fix a non-parole period of six months' imprisonment.

64I direct that seven months of the total sentences - no.  What I intended is there be seven months of the new sentences that I am imposing cumulative on the sentence currently being served, but it may be that more than one month has passed since that was imposed.  I think it had some time reckoned served, didn't it?

65MR LEWIN:  It did.  I had 60 days at that time.

66HER HONOUR:  Yes, so that is not going to work either.

67MR LEWIN:  He has a sentence ‑ ‑ ‑

68HER HONOUR:  I am going to have to adjust it.  I am going to have to leave the Bench.  I apologise for this.  I know what I intended as an overall, and I have structured it wrongly.  I do apologise for holding the matter up and for the stress, the uncertainty that hangs over Mr Haddara.  I will stand the court down for - I will make it ten minutes so that I am sure I have got this right and before I go further with it.  I do apologise again.

(Short adjournment.)

69HER HONOUR: Before I go further, I just want to let both counsel be heard on this. My understanding under s.15 of the Sentencing Act is that - that is as to the order of sentences being served - that in the current situation because the current sentence that was imposed by the magistrate is a straight sentence, that will be served and completed before the start of either the head sentence or the non-parole period I fix.

70MR LEWIN:  Subject to any orders for concurrency as well, but yes, I accept that.

71HER HONOUR:  Yes, well then that becomes the issue.  Because three months' concurrency has effectively been - well, when I say "effectively been served", I mean that there is only three months of the current sentence that remains capable of ‑ ‑ ‑

72MR LEWIN:  No, there's four months.

73HER HONOUR:  There are four months remaining?

74MR LEWIN:  He tells me, my instruction are the sentence end date, according to central records, is January 14.

75HER HONOUR:  14 January.

76MR LEWIN:  Yes.  Which is four months and two days from today.

77HER HONOUR:  I thought 60 days was reckoned served, and that this was imposed a month ago.

78MR LEWIN:  Yes.  It was a seven month, I understand it.

79HER HONOUR:  It was a seven month sentence, was it?  I thought it was six.

80MR LEWIN:  I'm fairly confident it was, which is why I didn't want to correct Your Honour, but in the middle of sentence.

81HER HONOUR:  No, all right.  That explains it, then.  I just had in my mind it was six, or I had noted it was six.  I do not know why.  All right, I have announced what I had decided on each individual sentence, and the cumulation which led to 12 months and 28 days as the total overall sentence of imprisonment, and I fix a non-parole period of six months' imprisonment.

82I will ask you to stand again, Mr Haddara, and that is just a reminder of where I had got to.  Just under 13 months, or it is effectively like 13 months, but it is 12 months and 28 days' imprisonment overall; a non-parole period of six months.

83I direct that two months of that overall sentence, those sentences, be served concurrently with the sentences currently being served.

84That, on my calculation, and having been corrected that there is four months to go, means that it will be eight months from now before you could be eligible for parole, and the total time still to go is close to 15 months on the head - 15 months from now would bring to an end the head sentence I am imposing, but well before that, that is eight months from now, you would be eligible to be considered for parole.

85When I said earlier you would not be supervised, I should not have said that, in the sense that the Parole Board will have to decide when and if to release you on parole, and what conditions or supervision to impose for that.

86I declare four days of pre-sentence detention in respect of these charges as reckoned served, and direct that that be noted in court records.  It will be deducted administratively.

87I make the disposal order sought for the drugs.

88I was asked to make an order under s.464ZF, but has none been made in the past?

89MR LEWIN:  There's been an order, Your Honour.

90MR HARRISON:  There was in 2014, Your Honour.

91HER HONOUR:  It seemed to me the nature of previous offending meant it probably would have been.

92MR HARRISON:  Indeed, Your Honour.

93HER HONOUR: I state for the purposes of s.6AAA of the Sentencing Act that if you, Mr Haddara, had not pleaded guilty but had been found guilty by a jury trial of the charges - it is again very artificial, because there would not have been the summary charge brought to this court, but I have to make such - a statement of what the sentence would have been if you had not pleaded guilty but been found guilty of the equivalent offending. In those circumstances I would have imposed a total effective sentence of 21 months' imprisonment with a non-parole period of 14 months, and again would have, if it fell within the same timing, directed two months' concurrency.

94Take a seat while we sort out whether that does achieve what I have said I think it achieves.

95MR LEWIN:  Well, whether the stated intention of eight months until eligible for parole?

96HER HONOUR:  The eight months from now.  Eight months from now as to the first eligibility for potential release, and the head sentence goes six and almost seven months longer than that.

97MR LEWIN:  But that'll be up to the best of central records sentence calculation.  So I hear Your Honour's stated intention, and if it is - I'll find out the parole eligibility date when they calculate it, which will be in a few days' time, and if there's an issue I'll perhaps return it.  Otherwise it should all be in order.

98HER HONOUR:  All right.  Can I have that disposal order to sign?  I have signed that for the amphetamine. 

99I will ask that - sorry, I will start that again.  Mr Haddara can be kept in court for five minutes, no more, if his mother wants to talk to him, but no direct contact, otherwise he will be returned to - does she want that opportunity?  She is nodding.  I will ask that Mr Haddara be kept in the courtroom for a few more minutes, but no more than five, and his mother is to have no physical contact, but can approach to talk with him.  And of course Mr Lewin can also.

100I will stand the court down until 2.15, please.

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