Director of Public Prosecutions v Hafda
[2023] VCC 653
•28 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01277
Indictment No. M12435060.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AHMED HAFDA |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 April 2023 | |
DATE OF SENTENCE: | 28 April 2023 | |
CASE MAY BE CITED AS: | DPP v Hafda | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 653 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Aggravated offence of recklessly exposing an emergency worker to risk by driving – Damaging an emergency service vehicle by reckless driving – Theft – Possession of a drug of dependence – Dealing with property suspected of being proceeds of crime – Serious offending – High moral culpability – Drug abuse – Problematic prospects of rehabilitation – Substantial prior criminal history
Legislation Cited: Crimes Act 1958 – Drugs, Poisons and Controlled Substances Act 1981 – Sentencing Act 1991
Cases Cited:Chamma v The Queen [2020] VSCA 232 – DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428 – R v Shafik-Eid [2009] VSCA 217 Worboyes v The Queen (2021) 96 MVR 344
Sentence: 18 months’ imprisonment – 3 year Community Correction Order with 400 hours unpaid community work and program and treatment conditions
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Cookson | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Mortley | McNally & Gleeson Lawyers |
HIS HONOUR:
1Ahmed Hafda, you have pleaded guilty to an indictment containing fourteen charges of theft (Charges 1 to 14),[1] two charges of the aggravated offence of recklessly exposing an emergency worker to risk by driving – (Charges 15 to 16),[2] one charge of damaging an emergency service vehicle by reckless driving (Charge 17)[3] and one charge of possession of a drug of dependence (Charge 18).[4]
[1] Contrary to the Crimes Act 1958 (‘CA’) s 74.
[2] Contrary to CA s 317AF.
[3] Contrary to CA s 317AG.
[4] Contrary to the Drugs, Poisons and Controlled Substances Act 1981 s 73.
2You have also consented to have this Court deal with one transferred related summary offence of dealing with property suspected of being proceeds of crime (Summary Charge 1).[5]
[5] Contrary to CA s 195.
3The maximum penalty for theft is 10 years’ imprisonment. The maximum penalty for the aggravated offence of recklessly exposing an emergency worker to risk by driving is also 10 years’ imprisonment. The maximum penalty for damaging an emergency service vehicle by reckless driving is 5 years’ imprisonment. The maximum penalty for possession of a drug of dependence is 30 penalty units and/or 1 year’s imprisonment. The maximum penalty for dealing with property suspected of being proceeds of crime is 2 years’ imprisonment.
The Facts
4The prosecution filed a Summary of Prosecution Opening for Sentence Indication dated 17 February 2023, which was adopted for the purposes of the plea hearing, which I am told by your counsel I can treat as a statement of agreed facts.
Background
5You were born on 16 March 1988. You were aged 33 years and resided at your family home in Craigieburn at the time of the offending. You have a partner, Chrystal Carvill, who lived in Greenvale. You would also spend time at Ms Carvill’s address throughout your offending.
6Your offending conduct involves two phases.
7The first phase is a series of thefts of motor vehicles, being predominantly Ford Falcons with a model year of between 1993 to 1999. You entered these vehicles very quickly and without causing any damage to them. The prosecution believes this is either due to possession of a universal key or intimate knowledge of that vehicle type. Following entry, you stripped the cars for parts, including centre consoles, exhausts, catalytic converters, rims and boots, before dumping the vehicles.
8The second phase of your offending is the incident in which you were arrested on 25 November 2021, which involved you ramming two police vehicles in an attempt to escape apprehension.
Phase one – thefts of motor vehicles
9On 2 October 2021 at 12:03am, you stole a 1999 Ford Ghia sedan belonging to Joshua Jackel. The vehicle was stolen from an address in Pascoe Vale. It was later discovered in Peacock Street in Brunswick, stripped of its registration plates and ignition housing (Charge 1).
10Between 6:00pm on 16 October 2021 and 8:00am on 17 October 2021, you stole a 1998 Ford Futura sedan belonging to Harmel Kaur from an address in Craigieburn. The vehicle was later discovered in Vaynor Street in Niddrie with its steering wheel missing (Charge 2).
11On 18 October 2021 at 1:46am, you stole a 1998 Ford XR6 utility belonging to Matthew Breasley from an address in Essendon. The vehicle was later discovered in River Rose St, Greenvale (Charge 3).
12Between 5:30pm on 23 October 2021 and 8:24am on 24 October 2021, you stole a 1998 Ford Falcon sedan belonging to Bruno Daniele from an address in Greenvale, The vehicle was later discovered in Gunthrie St, Brunswick with its registration plates missing (Charge 4).
13On 27 October 2021 at 3:55am, you stole a 1997 Ford Falcon utility belonging to Damianos Hermes, from an address in Brunswick. The vehicle was later found in Rodda St, Coburg with the registration plates missing (Charge 5).
14On 29 October 2021 at 11:29pm, you stole a 1998 Ford Falcon sedan belonging to Joshua Delaney from an address in Essendon. This vehicle has not been recovered (Charge 6).
15On 1 November 2021 at 2:17pm, you stole a 1997 Ford Falcon utility belonging to Giovanni Tittoni from an address in Brunswick. This vehicle has not been recovered (Charge 7).
16Between 5:30pm on 5 November 2021 and 4:00pm on 6 November 2021, you stole a 2006 Ford Falcon station wagon belonging to Ae-Lee Thao from an address in Brunswick. This vehicle has not been recovered (Charge 8).
17On 9 November 2021 at 3:57am, you stole a 1999 Ford Falcon sedan belonging to John Koullas from an address in Pascoe Vale South. It was later discovered a short distance from that location with its registration plates and exhaust missing (Charge 9).
18On 9 November 2021 between 5:42am and 5:44am, you stole a 2017 box trailer belonging to Brent Young from an address in Thornbury. The trailer was found at 172 Railway Cres, Dallas (Charge 10).
19Between 7:30pm on 12 November 2021 and 9:45am on 13 November 2021, you stole a 1999 Ford Falcon Sedan and box trailer belonging to Nikolaos Karagiannis from an address in Pascoe Vale. The vehicle was discovered at 176 Parer Rd, Airport West but the box trailer remains missing (Charge 11).
20On 13 November 2021 between 8:00am and 2:00pm, you stole a 1996 Ford Falcon sedan belonging to Niko Aunedi from an address in Airport West. The vehicle was later discovered at Airport West Shopping Centre with its centre console missing (Charge 12).
21Between 9:00pm on 23 November 2021 and 3:00pm on 24 November 2021, you stole a 1999 Ford Futura station wagon belonging to Michael Owen from an address in Brunswick. The vehicle was later discovered at Ms Carvill’s premises in Greenvale (Charge 13).
22On 24 November 2021 between 3:00pm and 5:55pm, you stole a 1999 Ford Falcon sedan belonging to Fillitsa Evangelakos from an address in Moonee Ponds. The vehicle was later discovered at Ms Carvill’s premises in Greenvale (Charge 14).
Phase Two – arrest and ramming
23At approximately 6:40am on 25 November 2021, police observed Mr Evangelakos’s vehicle outside Ms Carvill’s premises. You were found to be asleep in the stationary vehicle, which had its engine off.
24At 9:02am police arrived at the premises in three vehicles. In police vehicle 1 were Senior Constable Cotterill, Acting Detective Sergeant Solomon and Senior Constable De Mel. In police vehicle 2 were Detective Sergeant Beadle with Detective Sergeant Todorov and Acting Detective Sergeant Abson. Police Vehicle 3 contained Detective Senior Constable O’Neill and Senior Constable Duddington.
25Police vehicle 1 entered Modena Alley, which is an alleyway used to access the premises from the east. Police vehicle 2 also entered Moderna Alley from the northern entrance. Police vehicle 3 followed police vehicle 1.
26Police vehicle 1 was positioned as close to the front bumper of your vehicle as possible. Police vehicle 2 was positioned as close to the rear bumper as possible. Police made no contact with your vehicle.
27A number of police officers approached you on foot and identified themselves as police. They were all wearing police issued ballistics vests and Victoria Police lanyards. You were directed to get out of your vehicle. The driver’s side of your vehicle was inaccessible because the vehicle was parked flush against the property’s garage. A witness, Chantelle Matutini, heard a group of men screaming ‘get out the car’ and the word ‘police’ numerous times.
28After police challenged you to get out of the vehicle, you woke up and started the engine. You drove forwards, rammed into the front of police vehicle 1, which was occupied by the driver, Senior Constable Cotterill. You thereby exposed Senior Cotterill to a risk to his safety (Charge 16).
29You then reversed, ramming into the front of police vehicle 2, which was occupied by the driver, Detective Sergeant Beadle. This conduct continued for approximately 30 seconds. You were unable to dislodge the police vehicles which were boxing you in.
30At one stage during this ramming, you raised your hands as if to indicate that you were giving up, but then recommenced ramming the police vehicles.
31Senior Constable De Mel smashed the passenger window during the ramming conduct and was talking with you. OC spray was deployed. You said, ‘It’s burning, ok ok I will stop, I’m so sorry’. Senior Constable De Mel then reached over the broken window to unlock the passenger door. Whilst Senior Constable De Mel’s head was still inside your vehicle, you again accelerated and rammed police vehicle 1, thereby exposing Senior Constable De Mel to a risk to his safety (Charge 15).
32As a result of damage caused by the ramming, police vehicle 1 was rendered undrivable and police vehicle 2 sustained damage to its front, but it remained drivable (Charge 17). As a result of your conduct, Mr Evangelakos’s vehicle was considered not economical to repair and was an insurance write off.
33Police forcibly removed you through the passenger window and dragged you from the vehicle. You were administered a caution and told your rights, to which you responded ‘yea yea I know, I don’t care’. Overall, the ramming incident lasted approximately 30 seconds.
34A search warrant was executed at Ms Carvill’s home. In the garage a large number of Ford motor vehicle parts was located, together with the motor vehicle stolen from Mr Owen. Within that vehicle another large cache of Ford motor vehicle parts was located. These items are the subject of Summary Charge 1, which also includes a large number of other items suspected of being proceeds of crime.
35Additionally, a zip lock bag containing methylamphetamine was located in the vehicle you were found in by police (Charge 18).
36You were transported to Broadmeadows police station and were assessed as being unfit for interview.
37You have been in custody since your arrest on 25 November 2021. Accordingly, you have 519 days[6] pre-sentence detention to be declared, not including today.
[6] Equivalent to 17 months and 3 days.
Victim Impact
38None of your victims prepared a victim impact statement (‘VIS’). Nonetheless, in the absence of a VIS a sentencing judge can draw reasonable inferences from the known facts regarding the likely effect of the crime on any victim of it.[7]
[7] R v Miller [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Dowlan [1998] 1 VR 123, 139 (Charles JA, Phillips CJ and Nathan AJA agreeing); R v Rankin [2001] VSCA 158 [7]–[10] (Winneke P, Vincent JA and O'Bryan AJA agreeing); Stalio v The Queen (2012) A Crim R 261, 281 [69]–[70] (Neave, Osborne JJA and King AJA).
39Undoubtedly, the victims of your driving related offending would have suffered considerable distress as a result of the unnecessary risk you exposed them to. Moreover, police are entitled to perform their lawful duties without fear of harm or injury. The victims of your thefts would have suffered from both financial and physical inconvenience as a result of your offending conduct.
Offence Seriousness
40The aggravated offence of recklessly exposing an emergency worker to risk by driving is an inherently serious offence, as indicated by maximum penalty of ten years’ imprisonment and Parliament’s intention that an immediate term of imprisonment must ordinarily be imposed. The circumstance of aggravation in your case is that the vehicle you were driving at the time was stolen.
41This offence was inserted into the Crimes Act1958 in 2017 by s 3 of the Crimes Legislation Amendment (Protection of Emergency Workers and Others) Act 2017. The overall purpose of the legislation which created these crimes was described as being ‘to specifically address incidents where offenders use motor vehicles to harm police and emergency workers’.[8] In the second reading speech to the Bill, the then Minister for Police said:
Violence towards police and emergency workers in the line of duty is unacceptable and will not be tolerated. These reforms reflect the government's commitment to cracking down on offenders who harm, or seek to harm, a police officer or emergency worker.
Through the design of these offences and penalties the government’s expectation and intention is clear — charges for the offences of exposing an emergency worker to risk offence and the damage to an emergency services vehicle charges can and should (where appropriate) be laid and prosecuted simultaneously, thereby requiring the imposition of a custodial sentence.
The government shares the concerns of police officers when offences involving violent behaviour towards police are the subject of plea deals by police prosecutors. If an offender, intentionally or recklessly exposes an emergency worker to risk by driving and the offence is committed in certain aggravating circumstances, the offender should go to prison.[9]
[8] Victoria, Parliamentary Debates, Legislative Assembly, 2 November 2017, 3668 (Hon Lisa Neville, Minister for Police).
[9] Ibid 3668.
42I accept you were asleep in the car when the police vehicles boxed you in and that your initial reaction when you woke up was driven by panic. However, you continued to ram the police vehicles for over 30 seconds in an attempt to avoid apprehension, causing extensive damage to one police vehicle and significant enough damage to another in the process, the subject of charge 17.
43You appeared to surrender twice, creating an opportunity for you to desist offending, however you then continued to ram the police vehicles. In particular, your conduct endangered Senior Constable De Mel whose head was still inside the vehicle you were driving when you began accelerating again. While no one was injured as a result of your driving, your conduct exposed two police officers to an unnecessary risk to their safety.
44You told Ms Cidoni, a psychologist engaged by your legal representatives who prepared a report dated 18 April 2023,[10] that at the time of your arrest you were under the influence of methamphetamine (‘ice’) and you had been awake for four days. You said you wanted to sell the stolen cars and car parts to fund your drug use.
[10] Ex D2.
45I do not accept your explanation that at the time of committing the offences in charges 15, 16 and 17 you thought you were the victim of a carjacking. I accept the matters raised by the prosecution in their submissions on the sentence indication hearing[11] make this an unconvincing assertion. Viewing the mobile telephone video footage played by your legal representatives at the sentence indication hearing[12] did not change my view, as it only depicts the final seconds of the incident when you are being removed from the car and arrested.
[11] Ex P3 [6]–[7].
[12] Ex D3.
46The fourteen charges of theft and the related summary offence of dealing with proceeds of crime are serious enough. At the sentence indication hearing your counsel submitted the thefts were opportunistic. I reject this submission. While it is clear your offending conduct is distinguished from a highly sophisticated operation conducted by an organised criminal syndicate,[13] your offending clearly involved a level of planning with you targeting Ford make models. Moreover, your offending was repetitious, persistent and lasted for nearly two months. In my view it possesses a relatively serious level of criminality. However, I accept the thefts mostly involved relatively low levels of monetary value, although, significantly, three vehicles you stole have not been recovered.
[13] Cf Chamma v The Queen [2020] VSCA 232.
47I assess your moral culpability for the offending conduct comprised in charges 15, 16 and 17 as being very high. The fact you were drug affected at the time does not in any way excuse your dangerous conduct or reduce your culpability for it.[14] The risk your driving created for the safety of Senior Constable De Mel, whose head was inside your vehicle through the broken side window when you accelerated the car forward, was particularly serious. The risk to the safety of Senior Constable Cotterill, whilst not inconsequential, was nowhere near as great. The police vehicle was damaged enough to need towing. There were a number of opportunities where you could have deescalated the incident.
[14] R v Redenbach (1991) 52 A Crim R 95, 99 (Young CJ, Brooking and Marks JJ); Hasan v The Queen (2010) 31 VR 28, 33–37 [20]–[34] (Maxwell P, Redlich and Harper JJA); Morrison v The Queen [2012] VSCA 222 [17]–[19] (Buchanan JA, Redlich JA and T Forrest AJA agreeing), [25] (Redlich JA, T Forrest AJA agreeing).
48Finally, I observe possession of a drug of dependence is a serious enough criminal offence.
49Clearly, with offences of this type just punishment, general deterrence and denunciation must be given significant weight.
Personal Circumstances
50You were born on 16 March 1988 and are 35 years old. You were aged 33 at the time of this offending. You are married to Chrystal whom you met in 2015 and married in 2016. She works as a hairdresser and studies law. You are trying to start a family. She remains supportive of you and you have daily telephone contact with her whilst being in custody.
51You were raised in Coburg and had a very good and loving but strictly religious upbringing. Your parents were born in Lebanon and are Sunni Islamic. They moved to Australia before any children were born and have been happily married for 40 years. You have one older brother and two older sisters, who are all married with children.
52You lived in Coburg until the end of Year 10 when your family relocated to Westmeadows, where they have since remained. During this time you ceased schooling to commence an apprenticeship in motor mechanics at Kangan TAFE for four years. You partially completed the apprenticeship but left prior to obtaining a formal qualification.
53In 2008, you ran away from home to be romantically involved with a woman named ‘Kathy’ who you were in an on-again, off-again relationship for three years. You have a daughter together, who lives with her mother.
54Despite being 20 years old at the time, your strict religious family would not permit unmarried relationships which adversely affected your relationship with your parents. You remain in contact with them and, while you generally get along well with them, you struggle to communicate effectively.
55In 2008, you stopped your apprenticeship because your family were looking for you. Running away led you to live on the streets. You slept at a drug-dealer’s house and began smoking cannabis and stealing cars to impress new-found associates with your knowledge of cars.
56You commenced smoking ‘ice’ in early 2009 and your criminal offending subsequently worsened. In 2011 you were sentenced to a total effective sentence of 8 months’ imprisonment, with two months suspended. You served six months of this sentence before being released. After your release, you managed to abstain from drugs for four years. During this time you worked on-and-off as a motor mechanic and then in the security industry.
57In 2016, after experiencing a bad day at work, you drove via an old associate’s house on the way home and purchased a gram of cannabis in a vain attempt to relieve stress. You smoked this cannabis for a few weeks before realising your quality of work was negatively impacted. You decided that if you combined ‘ice’ with cannabis, you would be able to work and remain motivated.
58This decision appears to have had disastrous consequences and you understatedly refer to this as being a ‘huge mistake’. Eventually, your ice use evolved into a cycle of drug binges, whereby you would desist form taking ice for two weeks and then relapse into drug abuse.
59By 2020, your mental health had deteriorated and you had no motivation for work. You did not want to steal from or ask your family for money, so you commenced stealing cars.
60You are a non-drinker but you have been a problem gambler in past.
61Six months ago, Chrystal moved to Echuca to live with her parents in their large house on a four acre property. On release from custody, you plan to live with Chrystal and end your negative associations in Melbourne. There is a large shed on the property where you hope to use your motor mechanic skills to work on cars. You also plan to become a tow truck driver.
Mental health
62You have been diagnosed with depression and anxiety by your general practitioner which you consider is related to your drug use and feelings of low self-esteem. You are not taking any medications. You received counselling during a previous community correction order (‘CCO’). You told Ms Cidoni you are coping well whilst in custody.
63Ms Cidoni submitted you to psychological testing. On the Millon Clinical Multiaxial Inventory-IV you were found to have ‘symptoms consistent with dependent and avoidant personality traits characterised by a persistent pattern [of] feeling[s] of inadequacy, and sensitivity to criticism or rejection.’ Additionally, you demonstrated ‘symptoms of anxiety and unstable mood states.’ Other responses indicated you ‘experienced a traumatic event in the past that continues to impact [your] current emotional state.’ You exhibit symptoms including ‘avoidance of reminders of the traumatic event, and hyperarousal’. Ms Cidoni opined, ‘Scales of drug use were elevated, along with ongoing vulnerability.’
64Ms Cidoni diagnosed you as suffering from the following conditions:
(a) bipolar disorder;
(b) generalised anxiety disorder;
(c) dependent personality disorder with avoidant traits;
(d) stimulant use disorder; and
(e) gambling disorder.
65Ms Cidoni opined: ‘Methamphetamine tends to exacerbate his paranoid tendencies. It can also cause psychosis which further exacerbates paranoid thinking.’
66Ms Cidoni considers you will need psychotropic medication and psychotherapy and ‘lifestyle changes to manage [your] symptoms and reduce the risk of relapse.’ To this end, she says ‘it is crucial [you receive] resources and support to develop independent life skills and coping strategies’ if you are to successfully reintegrate into society.
67At the time of the offending you were drug affected and Ms Cidoni considered this, together with your ‘underlying unstable mood’ were major contributing factors to your offending conduct in relation to charges 15, 16 and 17. She considers this combination could cause a ‘loss of control and erratic behaviour’ and lead you to ‘react impulsively and irrationally in stressful situations’. Your hypervigilance and drug abuse would have exacerbated these symptoms. To this extent, your moral culpability is reduced to a minor degree. However, your voluntary ingestion of methylamphetamines, which appears to be unconnected with your mental health conditions, played the major role in your offending[15] and, as I earlier observed, being affected by illicit drugs at the time of the offending is not a mitigating circumstance in your case.[16]
[15] See R v Shafik-Eid [2009] VSCA 217, [22]–[27] (Lasry AJA, Nettle and Redlich JJA agreeing); DPP v O’Neill (2015) 47 VR 395, 413–417 [70]–[83] (Warren CJ, Redlich and Kaye JJA); Harmon (a pseudonym) v The Queen [2017] VSCA 169 [58]–[66] (Ashley JA, Redlich and Tate JJA agreeing).
[16] Above at para [47].
68Ms Cidoni also conducted a Violent Risk Assessment incorporating the Hare Psychopathy Checklist Revised. She assessed you as having a ‘moderate risk of reoffending violently’. She noted you have a history of drug use, which is a known risk factor for violent behaviour. Additionally, your ‘diagnosis of a personality disorder suggests that [you] may have difficulties with impulse control, emotional regulation, and interpersonal relationships, which can also contribute to [your] risk of reoffending. Finally, [your] history of breaching orders in the past may indicate risk.’ Clearly, your risk of reoffending will be significantly reduced if you can remain drug free after your release from custody.
69Finally, Ms Cidoni opines that your ‘personality dysfunction may exacerbate the challenges of prison life for you’ contributing to ‘your feelings of anxiety and helplessness’. She observes: ‘As prison requires little decision making it encourages dependency and life skills remain reduced.’
70However, against this, I note you have apparently remained drug free in prison and you have successfully completed a number of programs whilst you have been in custody and you are employed 42 hours per week in horticulture as head groundskeeper and also on bin collection. You work Monday to Friday and overtime on weekends. You told Ms Cidoni you were ‘coping OK’ whilst on remand. You told Mr Mohinudeen that whilst in prison you have reconnected with your Islamic faith and you often lead the scheduled prayers for other inmates.
71Accordingly, I am not satisfied that any Verdins principles are engaged in your case.[17] Nonetheless, based on Ms Cidoni’s report, I consider you will require significant support in the community upon your release from custody if you are to be fully rehabilitated and remain offence free in the future. Fortunately, you have a supportive wife, a home to go to and a supportive family environment, which are significant protective factors.
[17] See R v Verdins (2007) 16 VR 269, 276 [32.5] (Maxwell P, Buchanan and Vincent JJA).
Prior Criminal History
72You have a substantial criminal history dating back to 1 April 2009 when you were convicted in the Broadmeadows Magistrates’ Court of one charge of use unregistered motor vehicle, one charge of fraudulently use registered label/plate, two charges of drive whilst authorisation suspended, and one charge of theft of motor vehicle. You received an aggregate fine of $1000.00 on all of these charges.
73Since then you have committed a large number of driving and dishonesty offences, including two charges of driving in a manner dangerous, one charge of driving at a speed dangerous, five charges of driving whilst disqualified, three charges of driving whilst authorisation suspended, two charges of failing to stop on police request, one charge of dealing with property suspected of being proceeds of crime, four charges of theft of a motor vehicle, two charges of go equipped to steal/cheat and one charge of dishonestly undertake in retention of stolen goods.
74Additionally, you have been convicted of a number of offences against the person and property offences, including four charges of recklessly causing injury, two charges of unlawful assault, two charges of reckless conduct endanger serious injury, one charge of make threat to kill, two charges of intentionally damaging property and one charge of intentionally destroying property.
75The remainder of your prior criminal history includes, drug offences and weapon offences, offences against the Bail Act 1977 and a number of offences involving disobedience of court orders, including breaching suspended sentences, breaching intensive correction orders and contravening family violence intervention orders.
76There are also a number of outstanding summary matters which are listed for plea and contravention hearing at the Broadmeadows Magistrates’ Court on 4 May 2023. These alleged offences include dealing with property suspected of being proceeds of crime, theft, possess drug of dependence, handle stolen goods, burglary, contravene final family violence intervention order and contravention of CCO. These alleged offences are not relevant for present purposes.
77Given your prior criminal history, specific deterrence and protection of the community are significant sentencing considerations in your case.
78Following your arraignment and plea of guilty, I ordered the preparation of a pre-sentence report as to your suitability for another CCO. I received a report dated 26 April 2023,[18] to which I have had regard.
[18] Ex C1.
79In the report, Mr Rizwan Mohinudeen assessed you as having a high risk of reoffending according to the Level of Service Risk Assessment Tool. This was largely due to your substance abuse and association with negative peers.
80Stable accommodation, family support and the ability to impose a mental health condition on the order were identified as protective factors reducing your risk of reoffending.
81Supervision, treatment and rehabilitation for drug use, mental health assessment and treatment and other offending program conditions, including a road trauma awareness course, were recommended.
Mitigating Circumstances
82This matter resolved following a sentence indication hearing which was conducted by me on 23 February 2023. You pleaded guilty to the indictment on 9 March 2023. While this is a relatively late plea, I accept it has significant utilitarian benefit, particularly in the COVID-19 environment.[19] Your plea also indicates a willingness to facilitate the course of justice and an acceptance of responsibility for your offending conduct.
[19] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [39] (Priest, Kaye and T Forrest JJA), [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
83I accept you demonstrate some remorse and insight into your offending conduct. In your conversation with Mr Mohinudeen, who assessed you for suitability for a CCO at my request, you also appeared to demonstrate genuine remorse for your actions and a degree of victim empathy. Mr Mohinudeen observed you demonstrate ‘reasonable insight’ into your offending and possess ‘a sound understanding of precipitating factors behind [your] offending behaviour’.
84I accept your time spent in custody for this offending has been burdensome because your visiting rights have been restricted and you have spent weeks at a time in 24-hour lockdown. The effects of the COVID-19 pandemic are relevant to sentencing because:
(a) An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[20]
[20] The Queen v Madex [2020] VSC 145 [52] (Incerti J); R v Kelso [2020] NSWDC 157 [45] (Norrish QC DCJ)
(b) As I earlier observed, the inherent utilitarian value of a guilty plea is greater during the pandemic.[21]
(c) The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[22]
(d) The pandemic can impact on visits, work and educational opportunities depending on the number of cases of COVID-19 in the community at any given time.[23]
[21] See above [78].
[22] Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA).
[23] Astbury v The Queen (No 2) [2020] VSCA 158 [33] (Kaye, Niall and Weinberg JJA).
85Your counsel told me your time on remand has been particularly burdensome because you and your wife became the second couple in Victoria to obtain permission to engage in IVF therapy whilst you have been in prison. As a result, your wife became pregnant but she tragically miscarried at 11 weeks gestation. You found this extremely difficult because you were unable to support your wife at this difficult time in your lives together.
86Moreover, in January 2022 at Ravenhall, you were locked down for 24-hours for 18 days straight. There were other times when you were locked down for a week without leaving your cell. You are currently at Marngoneet where because of understaffing you are locked down nightly commencing at 5pm instead of the usual 7.30pm. This reduces your ability to have telephone contact with your wife. Whilst on remand, you have had no contact visits with your wife, initially due to restrictions and now due to her unvaccinated status.
87Whilst you say you are ‘coping OK’ in prison, you do not associate with other prisoners. You are wholly focussed upon the future.
88I will take the particularly burdensome manner in which you have served you time on remand into account as a mitigating circumstance.
89The effect of delay is a mitigating circumstance in your case. These offences were committed 30 months ago. Some of this delay has been the result of the COVID-19 pandemic. While not inordinate delay it remains relevant.
90As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[24]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[25]
[24] (2013) 40 VR 436.
[25] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
91Material was placed before me regarding the efforts you have made towards your rehabilitation whilst remanded in custody. You have successfully completed the eight module ATLAS remand program[26] during which ‘you developed some valuable insights into [your] offending’ and you have ‘begun to set goals for [your] successful reintegration back into the community’. You have also completed a 24-hour drug and alcohol program which is an eight week structured psycho-educational program that aims to generate thinking and explore issues that underlie participants’ substance use.
[26] See Ex D4.
92Mr Mohinudeen in his report opines:
Mr Hafda demonstrates good insight and has a solid grasp of the underlying factors that perpetuate his offending behaviour. He is motivated to change and understands that should he continue to offend he will continue to face long periods of incarnation as well as run the real risk of losing that core family support that is instrumental in furthering his prospects towards rehabilitation. He has also demonstrated good treatment readiness having completed some courses whilst in custody as well as being amenable to treatment should he afforded a further opportunity at a CCO.
93Whilst I am of the view your prospects for rehabilitation are somewhat problematic, I accept you have some prospects for rehabilitation in light of your strong family support and your willingness to address your drug addiction and become a law-abiding member of the community. Moreover, there have been periods in your past where you have managed to remain offence free for some years. On your release from custody much will depend on your ability to remain abstinent from illicit drug use. You supportive wife and in-laws, and your intention to start a family and a new life in Echuca, are significant protective factors for you.
94So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the prospect of a sentence of imprisonment hanging over your head. Undoubtedly, this would has caused you anxiety and stress. I take the punitive effects of delay into account in your favour.
Application of Sentencing Principles
95I have had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic[27] and DPP (Vic) v Dalgliesh (a Pseudonym)[28] and the Victorian Court of Appeal decisions in DPP v Zhuang[29] and DPP (Cth) v Thomas.[30]
[27] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[28] (2017) 262 CLR 428,444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[29] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[30] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
96While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[31]
[31] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
97Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
98The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the effect of your offences on the victims and your personal circumstances.
99Denunciation, general deterrence and just punishment must be given weight in sentencing you for these offences. Moreover, I consider weight also needs to be given to specific deterrence and protection of the community, given the nature of your offending conduct and your prior criminal history. As I observed earlier, I assess your prospects for rehabilitation as being somewhat problematic.
100After balancing all relevant sentencing considerations in your case, I consider that you may be turning a corner in your life and that a relatively lenient sentence imposed at this stage may lead to your eventual reformation.[32]
[32] See R v Osenkowski (1982) 30 SASR 212, 212–13 (King CJ, White J agreeing) approved in Markovic v The Queen (2010) 30 VR 589, 590 [1] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).
101The standard sentencing regime does not apply in this case. However, the aggravated offence of recklessly exposing an emergency worker to risk by driving is a ‘category 2’ offence under the Sentencing Act 1991 (‘the Sentencing Act’).[33] Accordingly, a court must impose a sentence of imprisonment to be immediately served unless the exceptions specified in s 5(2H) of the Sentencing Act apply. It was accepted by your counsel that no exception applies in your case.
[33] See Sentencing Act 1991 (‘SA’) s 3(1) definition of ‘category 2’ offence at para (k).
102Moreover, s 16(3D) of the Sentencing Act is enlivened and the normal presumption of concurrency does not apply in sentencing you on charges 15, 16 and 17. However, totality remains a relevant consideration and I will order only partial cumulation between those charges.
103I consider it is appropriate to impose an aggregate sentence of imprisonment[34] together with a CCO[35] on charges 1 to 14 (both inclusive) and summary charge 1. These charges all relate to a series of offences of the same or a similar character and which are all dishonesty offences committed by you to obtain funds to purchase methylamphetamine.
[34] See SA s 9(1).
[35] See SA ss 44(1) and 40(1).
104I must explain to you the effect of this sentence.[36] You will receive one sentence for all of those offences rather than separate sentences for each offence. However, the aggregate sentence I impose is no more and no less than what the total effective sentence would have been had I imposed separate sentences and made orders for cumulation.
[36] SA s 9(3)(a).
Mr Hafda
On charge 15, the aggravated offence of recklessly exposing an emergency worker to risk by driving (Senior Constable De Mel), you are convicted and sentenced to 12 months’ imprisonment.
On Charge 16, the aggravated offence of recklessly exposing an emergency worker to risk by driving (Senior Constable Cotterill), you are convicted and sentenced to 6 months’ imprisonment.
On Charge 17, damaging an emergency service vehicle by reckless driving, you are convicted and sentenced to 3 months’ imprisonment.
On Charges 1 to 14 (both inclusive), theft, and summary charge 1, dealing with property suspected of being proceeds of crime, you are sentenced to an aggregate sentence of 3 months’ imprisonment and a CCO for three years commencing upon your release from custody, with the conditions I will shortly elaborate.
On Charge 18, possession of a drug of dependence, you are convicted and sentenced to 7 days’ imprisonment.
I direct that 2 months of the aggregate sentence of imprisonment imposed on Charges 1 to 14 and Summary Charge 1, 3 months of the sentence imposed on Charge 16 and 1 month of the sentence imposed on Charge 17 be served cumulatively on the sentence imposed on Charge 15 and on each other.
I direct the sentence imposed on Charge 18 be served concurrently with all other sentences of imprisonment imposed in this case.
This makes a total effective sentence of 18 months’ imprisonment and the CCO.
In all the circumstances, I consider it is not appropriate for me to fix a non-parole period in respect of that total effective sentence.
I declare that pre-sentence detention in your case is 519 days (not including this day) and I direct that declaration be entered into the records of the Court.
On Charges 1 to 14 on the indictment and related Summary Charge 1, I further order you are sentenced to serve a CCO for three years commencing upon your release from custody, with the following program and treatment conditions:
Under the Sentencing Act s 48C you are to perform 400 hours of unpaid community work over three years.
Under Sentencing Act s 48CA I determine up to 150 hours satisfactorily completed under the treatment and rehabilitation conditions of the order are to be counted as hours of unpaid community work.
Under Sentencing Act s 48D(3)(a) you are to undergo any assessment and treatment (including testing) for drug abuse or dependency.
Under Sentencing Act s 48D(3)(e) you are to undergo any mental health assessment and treatment.
Under Sentencing Act s 48D(3)(f) you are to undergo any program that addresses factors related to your offending behaviour.
Under Sentencing Act s 48D(3)(g) – other treatment and rehabilitation – you are to successfully complete a road trauma awareness program.
Under Sentencing Act s 48E you are to be under supervision for three years.
Under Sentencing Act s 48K I impose a judicial monitoring condition. A judicial monitoring hearing will be conducted in Melbourne on 4 October 2023 at 9.45 am. You may appear remotely at that hearing.
In accordance with s 6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence on all charges of five years’ imprisonment with a minimum non-parole period of three years.
On Charges 15 and 16, I order all licences and permits you hold under the Road Safety Act 1986 are cancelled and you are disqualified from obtaining any such licence or permit for two years from today.
On Charges 1 to 14 (both inclusive), I order all licences and permits you hold under the Road Safety Act 1986 are cancelled and you are disqualified from obtaining any such licence or permit for one year from today.
The licence cancellation orders are to run concurrently.
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