Director of Public Prosecutions v Merheby

[2015] VCC 469

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00384

DIRECTOR OF PUBLIC PROSECUTIONS

v

AHMAD MERHEBY

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 April 2015
CASE MAY BE CITED AS:	DPP v Merheby
MEDIUM NEUTRAL CITATION:	[2015] VCC 469

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Offender	Mr A. Halphen

HER HONOUR:

1Mr Merheby, you come before this court charged with a single count of theft.  The maximum penalty for that offence is ten years' imprisonment.  The circumstances of that offending are set out in the prosecution opening which has been tendered upon your plea and marked as Exhibit A.  I do not propose to recite those facts now, noting that it is an agreed factual basis upon which you have pleaded.

2In terms of seriousness in my view this is a serious example of the charge of theft given the surrounding circumstances.  The reality was that there was a man who was having his property appropriated from him dishonestly in circumstances where he was present and, indeed, had no idea why that was to occur.

3

In terms of your prior history I have noted the matters in the criminal record. 

I have been taken to two prior breaches of court orders.  However I note the dispositions imposed in relation to those breach proceedings indicate that no further action was ultimately taken.  You have a range of prior matters including prior convictions for matters of violence, drug matters, what might broadly be described as "street" type offences as well as offences of dishonesty. 

4There has been some delay in this matter being disposed of, nothing outside the range of what might be expected in relation to a matter listed for trial in this court.  However the reality of your rehabilitation in the intervening period is a relevant matter which must be taken into account in any disposition I will impose this day. 

5As regards your personal circumstances you are now aged 29 having been born on 8 December 1985.  You are a single man and you have always resided with your parents.  I have been told that you are the youngest of five siblings and that your other family members have been law-abiding citizens. 

6You completed VCE in 2003 before briefly commencing tertiary studies at RMIT.  In 2004 you discontinued and entered the workforce, initially obtaining a security licence and working for AGC for some four years.  You subsequently obtained other certificate and in recent time it has been indicated to me that you have an offer of employment available, to you in commercial paving and form work.  You are due to commence work this week with Jim Janakis, commercial paving and formwork.  You continue to reside with your parents. 

7I have received a number of references and testimonials.  It is fair to say that the man described therein is at significant odds with the person who committed this offences.  They are, however, demonstrative of the support you enjoy.  I note that some of the authors have attended court upon your plea.  Those matters clearly bode well in terms of your rehabilitation.

8

In relation to matters of this type there are necessarily a number of sentencing considerations which must be taken into account.  General deterrence, in my view, is of significant importance in relation to offences of this type.  That is,

I must seek to deter not only you but others who would engage in like conduct.  Given your prior history I'm also concerned in relation to matters of specific deterrence.  That is I must seek to deter you from future offending. 

9I have had regard to your rehabilitation, which, in my view is at least, to some extent, manifest at this time and despite your prior history I do regard your prospects of rehabilitation as good.  I note that you have disassociated yourself from whatever motorcycle group you had been engaging with at that time.  It appears that that will be to your benefit and the benefit of the community in terms of your ongoing rehabilitation.  I suspect that that was not an entirely easy thing to achieve and I encourage you to continue down that path and to engage in the employment which is now being offered to you.

10Clearly in relation to this matter any sentence must reflect just punishment.  Your counsel submits in relation to this matter that a suspended sentence is open.  The prosecution specifically submit that the disposition of such a sentence would not lead me to fall into appellable error.

11In relation to this matter you are convicted and sentenced to be imprisoned for seven months.  That sentence is wholly suspended for a period of 12 months. 

12In relation the question of licence I am actually going to hear some submissions because no-one has addressed me in relation to that.  I am just going to hear some submissions in relation to a licence order. 

13I make the disposal order. I make an order requiring you to go undergo a procedure for the taking of a scraping of the mouth in accordance with s.30A of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.  For that purpose you must report to the officer in charge of the Broadmeadows police station at 15 Dimboola Road, Broadmeadows, during the period of four weeks which commences 28 days after the date of this sentence or once an instituted conviction appeal is finally determined and the conviction for the forensic sample offence is upheld, whichever is later.  I must inform you that police may use reasonable force to enable the procedure to be conducted.  I can put that more simply.  Twenty-eight days from today, a period of four weeks starts.  During that period of four weeks you have to go to the police station and they're going to take a scraping from the inside of your mouth and they can use reasonable force to enable that to occur.  It is your responsibility to make sure that you present yourself and Mr Halphen will explain all of that to you. 

14Do you want to be heard about licence?  You do not have to, Mr Halphen, I just thought I would give you an opportunity.

15MR HALPHEN:  No, Your Honour.

16HER HONOUR:  I think your client wants to see you.

17MR HALPHEN:  May I be excused, Your Honour.

18ACCUSED:  Excuse me, Your Honour ‑ ‑ ‑ 

19HER HONOUR:  No, don't speak to me directly. 

20MR HALPHEN:  Only to say, Your Honour, that any period that Your Honour was contemplating, taking into account the fact that he needs his licence to get various work sites as part of his employment.

21HER HONOUR:  Licence cancelled.  Disqualified two months effective today.

22MR HALPHEN:  As Your Honour pleases. 

23HER HONOUR:  Pursuant to s.6AAA I direct that it be noted in the records of the court that were it not for the plea of guilty I would have imposed a sentence of 12 months and suspended it for 24. 

24MR HALPHEN:  As Your Honour pleases.

25HER HONOUR:  Counsel, is there any matter that I have missed or need to address given that I have delivered these reasons ex-tempore?

26MR ALBERT:  No, Your Honour, my instructor queries that - the disposal order was made.  Also I think Your Honour said the order's made.

27HER HONOUR:  I do.  In the terms sought.

28MR ALBERT:  Yes. 

29HER HONOUR:  Thank you.

30MR ALBERT:  I think that's all, Your Honour.

31HER HONOUR:  The parties are excused.

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