Director of Public Prosecutions v Hadis
[2012] VCC 971
•12 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUSTAFA HADIS |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 11 July 2012 | |
DATE OF SENTENCE: | 12 July 2012 | |
CASE MAY BE CITED AS: | DPP v Hadis | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 971 | |
REASONS FOR SENTENCE
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Catchwords: one charge each of theft, aggravated burglary, recklessly causing serious injury, handling stolen goods; two co-accused; victim 58 year old partner of accused’s father; victim dragged into her house, punched, hit and kicked by all accused; taped around wrists and face; accused aged 20, no prior convictions, spent 27 days in adult prison; carer for mother with multiple health problems, and for younger siblings; accused rejected by father. YJC only appropriate sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Jones | |
| For the Accused | Mr A. Chernok |
HER HONOUR:
1 Mustafa Hadis, you have pleaded guilty to one charge each of theft, aggravated burglary, recklessly causing serious injury, and handling stolen goods. The maximum penalties for these offences are five years for theft, 25 years' imprisonment for aggravated burglary, 15 years for causing serious injury recklessly, and for handling stolen goods.
2 The circumstances of these offences should be described in the context of the dysfunctional relationship between you and your father, Ahmet Hadis. He and your mother separated when you were aged two, and your mother raised you and your older sister alone, later joined by two other children, now aged 14 and 12, from a second relationship, which only lasted a short time. Apparently that man was not a father figure for you. The four of you live together now in Melbourne in ministry of housing accommodation. Your older sister lives independently, and has three small children of her own. You mother suffers very poor health, and since you left school at the age of 14 you have been employed as her full-time carer, taking her to appointments, helping her to cook and generally running the household. You drive the younger children to and from school and make their school lunches.
3 In January this year you tried to make contact with your father, as you missed having contact with him, and as your mother put it in her letter to the court, you thought he might teach you fishing and you wanted him to acknowledge you as his son. He did not answer your text messages, and so on 15 January you and one of the co-accused, Fawaz Akkari, aged 16, drove to Echuca to see him. You went to his house, and he told you he didn't want anything to do with you, and told you to leave. On the way back to Melbourne you and Akkari filled the car with petrol to the value of $54.88, and drove off without paying. This is the charge of theft.
4 The next day the two of you again drove to Echuca and spoke to your father's partner, Ms Dianne Formosa, who told you she would speak to him and try and sort something out. You then left and returned to Melbourne.
5 Two days later, on 18 January, the two of you and a third co-accused, Volkam Ozalp, drove to Echuca in a car bearing stolen number plates, which during the journey you attached in order to disguise the ownership of the car. That is the basis for the charge of handling stolen goods.
6 At 7 am you approached your father's house and tried to gain entry via the bedroom window. It seems from what you told the police that you did not know Ms Formosa, who was aged 58, would be alone in the house, and that you were expecting your father to be there. In fact she was alone, and she came outside and asked what you were doing. You grabbed her by the shoulders and struggled to get her into the house. She screamed for help, and was heard by neighbours who called the police. You called for the two co-accused who came and assisted you to drag her into the house, punching and hitting her with a rubber mallet which had been brought from the car.
7 Inside the house you wrapped tape around her wrists and face, resulting in her having trouble breathing, and you pulled the tape down so she could breath. The three of you then dragged her from the hallway to the kitchen area, hitting and kicking her a number of times.
8 At this point the other co-accused stole jewellery, a video camera and two mobile phones from various parts of the house. You yourself looked fruitlessly in other rooms of the house for something little of your father's that you could take, reasoning that he had never given you anything. You and Ms Formosa argued, with you telling her that you just wanted to see your dad. Akkari obtained a large kitchen knife and held it to your throat, telling you to be quiet or you would get what she was going to get. This led Ms Formosa to believe that she was going to be killed. The police arrived and the three of you ran from the house, but were apprehended a short distance away.
9 Ms Formosa sustained injuries to her face and head, and was later treated in hospital for a laceration to the back of her head, requiring sutures, as well as severe swelling to her left hand, and grazes and bruises to her face, neck, arms and legs. She suffered severe trauma, and was unable to return to live in the house.
10 In her victim statement she said she no longer lives with your father and the house is being sold. She doesn't know what the future holds for her. She is now living with a relative who herself is suffering from the burden that that entails. Ms Formosa and her extended family fear that you and the others may resume the attack, and so her grandchildren are no longer left in her care as they once were. Ms Formosa is being treated for depression, and she still bears the physical scars of the injuries on her legs, as well as numbness on her head and the area of the laceration.
11 The attack had wide-reaching effects on the family, as described in the other victim impact statements provided. It has ended the 15-year relationship between your father and Ms Formosa, and affected the lives of her children and grandchildren.
12 According to the report of Mr Cummins, the psychologist who saw recently, you understand the effect it is also going to have upon your family, with your mother, and brother and sister so dependent upon you. You say you don't know how they are going to cope. You realise that you will now probably never have any ongoing contact with your father, and you are angry with yourself and remorseful for committing the crimes. You told the police that as well, when they interviewed you. Mr Cummins said, however, that he considers you are at an early stage in understanding the seriousness of the offences.
13 You are aged 20. You left school very early at 14. You have no skills or qualifications, and have never been employed outside your home. In the recent past you used cannabis and amphetamines, or ice, and indeed you told Mr Cummins that you and the other co-accused had been using ice and were under its influence when you went to Echuca on the third occasion. Mr Cummins said this would probably have had a disinhibiting effect upon you, and I make the comment that it serves as a reminder of the harm that can be caused by drugs in contributing to criminal behaviour.
14 Mr Cummins noted that your below average intelligence may also have contributed to the offending. It was not put to me that these matters brought what is known as the Verdins principle of reduced criminal culpability into play, only that they should be taken into account in a general way, and I do that.
15 In the same way, I also take into account that you suffer from an adjustment disorder, with mixed anxiety and depressed mood, and that you have done so for many years according to Mr Cummins. He said it was triggered by your growing realisation that your father was not going to make contact with you, and he also said that you need psychological treatment for this, which he described as unresolved grief. It is a very sad matter, and indeed you told the police that you were very hurt, and indeed heartbroken.
16 You spent 27 days in adult prison, and on your release you took steps to deal with the drug problem, ceasing their use altogether, and you have now been tested and found to be drug-free. You also pleaded guilty to the charges at an early stage, at least at the committal hearing, and maybe gave an indication earlier. As a result, the case has progressed very quickly through the stages of the criminal justice system, and you have avoided the need for a trial, at which witnesses would have been required to give evidence. That experience may well have caused the victim and her family further trauma, and so you are entitled to a discount on your sentence for the benefits brought about by your plea.
17 Your prospects for rehabilitation are enhanced by the fact that you have a stable relationship with your girlfriend, Sarah Beljulji, and you get on well with her small son. She has her own accommodation, but spends a considerable amount of time with you. You appear to have a strong sense of commitment to your family, and this is confirmed by Ms Beljulji, and by your mother in the letters that they have written in support of you.
18 The most serious of these charges is that of aggravated burglary, and in this case it is associated, of course, with the fact that you also recklessly caused serious injury to a person. I take into account that the serious aspect of the injury is said to arise from the combination of injuries the victims suffered. Usually a term of imprisonment would be imposed for such offences, and I note that both are significant offences as defined by the Sentencing Act, and therefore under s.27(2B) of the Act, a term of imprisonment cannot be suspended unless there are exceptional circumstances.
19 Mr Chernok, who appeared on your behalf submitted that the hardship that is likely to be caused to your family, if you are placed in custody, amounts to exceptional circumstances. I agree that they are exceptional, but in any event, Mr Chernok submitted that a community corrections order would be appropriate, and would satisfy the need for both general and specific deterrence. He further submitted that if a term of imprisonment or a period of detention in a youth justice centre was necessary, a very short sentence of three months would permit a suspended sentence to apply in the case of each of the other charges. By contrast, it was submitted on behalf of the prosecution that immediate custody was warranted, with youth detention being appropriate due to the mitigating circumstances, bringing the sentence within the range of three years, which is the maximum possible for a sentence of detention. I make the observation at this stage that parity is not a consideration, as the co-accused have not yet been sentenced. Akkari has been before the Children's Court, but his sentence has been adjourned, and Ozalp is facing his committal hearing shortly.
20 I have given very careful consideration to the appropriate sentence, taking into account the seriousness of the offences, and the mitigating factors to which I have already referred. I have reached the conclusion that the only proper sentence is one of detention, as a lesser sentence would not adequately satisfy the principle of general deterrence. While in this case there needs to be less focus on specific deterrence, the nature of the offending means greater weight should be given to the importance of denouncing such crimes, and of sending a message to others that they will be severely dealt with by the courts. Would you stand now please, Mr Hadis.
21 You have been assessed as suitable for a youth justice order, and I have modified the length of the sentence, taking into account the effect upon your family, and the need for you to undertake treatment as recommended by Mr Cummins, sooner rather than later, as well as the other mitigating factors. I sentence you as follows.
22 For Charge 2, aggravated burglary, 12 months' detention in a youth justice centre.
23 For Charge 3, recklessly causing serious injury, eight months.
24 For Charge 4, handling stolen goods, three months, and for Charge 1, theft, one month.
25 All these sentences are to be served concurrently, for two reasons. First, that the offences occurred in close proximity and connection, and second, that a longer sentence brought about by cumulation would carry the risk of being disproportionate and crushing upon you. Because of the way a sentence of detention is administered, it is possible that you will be released before the expiration of 12 months, but that is not a matter for me.
26 You spent 27 days in adult custody before being released on bail, and undoubtedly that must count as some degree of punishment. I have taken into account as time to be reckoned as already served in accordance with s.35 of the Sentencing Act.
27 The prosecution seeks an order for a forensic sample of saliva to be obtained from you, and through your counsel you do not oppose that. I must advise you that the police have the power to use reasonable force to obtain the sample but I trust that that will not be necessary.
28 If you had pleaded not guilty to these charges I would have sentenced you to two years in a Youth justice centre. Mr Chernok, have I omitted anything?
29 MR CHERNOK: Not that I can see, Your Honour.
30 HER HONOUR: No. Your comment about the alcohol versus the drug attention that he will be given, I don't think what happens will depend on whatever the assessment was yesterday.
31 MR CHERNOK: Yes. As I understand it they're re-assessed on entry.
32 HER HONOUR: That's right, yes.
33 MR CHERNOK: Thank you, Your Honour.
34 HER HONOUR: Mr Jones, anything further?
35 MR JONES: No, Your Honour.
36 HER HONOUR: Thank you. I will wait here while Mr Hadis is taken by the officer, thank you.
37 MR CHERNOK: Certainly, Your Honour.
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