Director of Public Prosecutions v Mourad

[2016] VCC 357

Pages 1 - 6   IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00371

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAHAMED MOURAD

---

JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 April 2016
CASE MAY BE CITED AS:	DPP v Mourad
MEDIUM NEUTRAL CITATION:	[2016] VCC 357

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S. Macdougall
For the Offender	Mr D. Cronin

HIS HONOUR:

1Mr Mourad, can you stand up please, sir?  Mahamed Mourad, you have pleaded guilty to one charge of indecent assault.  The facts of the matter are contained in the prosecution summary, which is not disputed by your counsel.  It has been tendered as Exhibit 1.  Any reader of these reasons can refer to that summary to place the sentence in its factual context.

2On your behalf Mr Cronin filed written submissions and supplemented them with oral submissions.  He also tendered a report from Dr Aaron Cunningham, a forensic psychologist, dated 7 September 2015.  In that report your intelligence was assessed in the extremely low range, and in
Dr Cunningham's view you presented as a low risk of sexual re-offending.

3At the time of the offending you were aged 19.  You have pleaded guilty at the first reasonable opportunity.  You have no prior convictions or subsequent matters.  You have shown remorse.  You have family support and he submitted you have prospects of rehabilitation.  He also in the written submissions referred to the principles of Verdins, but as I recall after discussion with me that was not pressed.

4As a result of his submission and reading the report of Dr Cunningham I asked for a pre-sentence report in relation to yourself and also I asked for a justice plan report.  The pre-sentence report sets out your social history and background and health, as does the report from Dr Cunningham and I will not repeat those here.

5Your education and employment history are also set out.  In the pre-sentence report in the section headed "Offender risk need assessment" it is stated the precursors to your offending behaviour have been identified as negative peers, unstructured lifestyle and intellectual functioning in the extremely low range.

6It was recommended that a justice plan be attached to any community correction order that I should consider.  He said there were no factors that would inhibit you from participating in unpaid community work.  It was also suggested that you be referred to the Specialised Offender's Advice and Treatment Service to engage in offence specific programs.

7A justice report was subsequently obtained. It issued a statement confirming you had an intellectual disability in accordance with the Disability Act 2006. That statement was issued on 25 January 2016 after an assessment of your cognitive abilities by Dr Cunningham.

8The writer of that report said, "Despite the various difficulties aforementioned Mr Mourad appears to compensate well for his intellectual disability, particularly when taking into account his very limited contact with support services to date.  The overall pattern of Mr Mourad's adaptive skills however suggest that he would be a suitable candidate for support and assistance to function in and continue to access the community."

9It set out your current circumstances and noted that you remained vulnerable to negative peer influence and a lack of meaningful structure in your current lifestyle.  It said that you were agreeable to the continuing support of the justice plan and attached to that was the justice plan that was recommended.  That in essence requires you to maintain contact with the disability justice practitioner for the duration of the order, to participate in further assessment and planning as required, and follow recommendations when made.

10So the recommendation under the justice plan was that you participate in interpersonal relationship counselling as recommended by your disability justice practitioner.  That was recommended so as to reduce the likelihood of re-offending, and Disability Justice will monitor your participation in the justice plan.

11In considering a sentencing judge has a number of factors to consider.  The basic purposes for which a court may impose sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.

12In sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

13Considering all the matters placed before me and taking into account all those sentencing principles I have decided to place you on a community corrections order.  I consider after a re-reading of the case of Bolton which deals with a community corrections order that this is the appropriate sentencing disposition in your case, not only on general principles but in a consideration of your specific circumstances.

14So in relation to the charge that you have pleaded guilty to, taking into account all the matters that your counsel mentioned in mitigation, you are placed on a community corrections order for a period of two years.  You must attend at the Broadmeadows Community Correctional Services.  The address is noted on the order.

15In addition to the normal orders you must perform one hundred hours of unpaid community work over a period of two years.  You must be under the supervision of a community corrections officer for a period of two years.  You must undergo any mental health assessment treatment that my include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.

16You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager. That includes specialised offender treatment services, and you must under s.80 of the Sentencing Act participate in the justice plan services that I have referred to.

17I take it you have spoken to your client about all of those matters, Mr Cronin?

18MR CRONIN:  Yes, Your Honour.

19HIS HONOUR:  I will give you the order.

20MR CRONIN:  Thank you.

21HIS HONOUR:  And given your client's cognitive defects are you of the view that he understands the conditions and effects of the order?

22MR CRONIN:  Yes, Your Honour.

23HIS HONOUR:  And consents to it being made?

24MR CRONIN:  Yes.

25HIS HONOUR:  If you would just like to go through that with him again and ask him to sign it if he will?  I have already signed a disposal order.

26MS MACDOUGALL:  Thank you for that, Your Honour.  There is only one outstanding matter.

27HIS HONOUR:  What is that?

28MS MACDOUGALL:  That is the issue of the Sex Offender's Registration Act.

29HIS HONOUR:  Just remind me of that after I sign this.  Mr Mourad, you have signed this community correction order saying you understand the effect and conditions of the order and consent to it being made.  Is that correct?

30OFFENDER:  Yes.

31HIS HONOUR:  Thank you.  Sex Offender's, is that compulsory or not?

32MS MACDOUGALL:  Sex Offender's Registration Act.  It is, Your Honour, in as much as this was a class two offence committed against a child, because the complainant was 16 at the time.

33HIS HONOUR:  So what is the effect of that?

34MS MACDOUGALL:  The effect of that is that registration is mandatory whenever there is a class one or class two offence involving a child.

35HIS HONOUR:  For how long?

36MS MACDOUGALL:  Eight years.

37HIS HONOUR:  Is that right?

38MR CRONIN:  Regrettably, yes, it is mandatory and it seems there is ‑ ‑ ‑

39HIS HONOUR:  I am not the legislation so I have no say in it.  You also are to be registered as a sex offender under the Act for a period of eight years.  We have to serve documents on him in respect of that?

40MR CRONIN:  Yes, Your Honour.

41MS MACDOUGALL:  Yes, Your Honour, (indistinct).

42HIS HONOUR:  Have you gone through that with him?

43MR CRONIN:  I certainly explained it to him as part of the resolution of this.

44HIS HONOUR:  Can I ask you to do that again because as you know some of the conditions are extremely onerous in so far as changing internet sites or ‑ ‑ ‑

45MR CRONIN:  Yes, emails, Facebook and all those things, yes.

46HIS HONOUR:  Mr Mourad, you are going to be served some documents in relation to being on the Sex Offender's Registration.  Your counsel will give them to you.  You do not have to accept service, but if you want to accept service we will ask you to sign something.

47If you do not accept service they will go in the mail to you I suppose.  Anything else I have to sign?

48MISS MACDOUGALL:  No, Your Honour.

49HIS HONOUR:  Mr Mourad, you can come out of there, thanks.  You must understand if you breach those conditions or any of the orders I have just made you come back before me and I have got to think of something else to do with you which might involve gaol.  Do you understand that?

50It is pretty easy to avoid that.  Just do what you are meant to do. Thank you.

51MISS MACDOUGALL: Your Honour, there is one remaining matter. I am grateful to the instructor for reminding me. There is the issue of s.6AAA of the Sentencing Act, the sentence that would have been imposed but for the plea of guilty.

52HIS HONOUR:  I do not believe I have to do that in relation to a community corrections order.

53MISS MACDOUGALL:  Thank you, Your Honour.

54HIS HONOUR:  Thank you.  Nothing else?

55MR CRONIN:  No, Your Honour.

56HIS HONOUR:  You can all go.

‑ ‑ ‑