Director of Public Prosecutions v Mustafa

[2015] VCC 1176

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00665

DIRECTOR OF PUBLIC PROSECUTIONS

v

VEDAT MUSTAFA

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2015
DATE OF SENTENCE:	20 August 2015
CASE MAY BE CITED AS:	DPP v Mustafa
MEDIUM NEUTRAL CITATION:	[2015] VCC 1176

REASONS FOR SENTENCE
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Subject:Contravention of Community Corrections Order;

Catchwords:                   Repeated non-compliance with community work condition; repeated failure to attend supervision meetings

Legislation Cited:     Sentencing Act 1991 (Vic)
Cases Cited:

Sentence:Variation of CCO to extend duration by 4 months; conviction and $250 fine for contravention.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett	OPP
For the Accused	Mr S. Johns	Tony Hargreaves and Partners Lawyers

HER HONOUR: 

1Mr Mustafa, I sentenced you to a community corrections order exactly a year ago, and you stood there and said you understood the terms of the order, and you agreed to comply with it.  Within three weeks, the reality of compliance seems to have got too much, or you simply did not treat it with enough seriousness to comply.  And to be blunt, I am not at all impressed with that.

2I was sentencing you for your involvement in an affray.  There were two co-accused here.  In that incident - I regarded that as a very serious incident - another young man had been seriously injured.  I know you were not facing a charge of directly injuring him, but I took the view that aspects of your involvement were of concern, but in all sorts of circumstances put before me, I gave you, as I did with the others, the chance to do a community corrections order without a conviction being recorded.

3I accept that 200 hours of unpaid community work is a relatively stern number of hours, although by no means the highest that can be imposed, and by no means unusual in being imposed, including on young men who are also trying to work for a living. That was the penalty.  The aspect of supervision was to keep some level of control, and also the attendance for the drug counselling was because of a condition that had arisen after this incident, but it seemed to me was part and parcel of your chances of getting on with a responsible life, if you could address that.

4I am not at all impressed that by mid-October there had been 12 absences, and whether or not some were explicable by medical certificate, you obviously had not produced that until the contravention meeting, where those issues were dealt with.  You must have been on notice from then that the Order had to be taken seriously, and you were already by then way behind with doing the community work.

5You apparently had an ankle injury after that, but it was not enough to stop you doing paid work; only enough to stop you doing the community work.  Again, I do not regard that as reflecting that you were taking this seriously enough, or that the remorse expressed at the time you were last before me, had lasted.

6It may well be that, at your age, you think something that happened in 2012 is in the past, and you have moved on.  But that is not the view taken in the justice system. You only came before me in August last year in relation to the offence, and this order was to last for two years. You should have complied with it.

7The Community Corrections officers from whom I have heard, and heard their reasons, including that they described the compliance as “dismal”, and your counsel on your behalf has accepted that description.  Although they do not recommend you as suitable for further time on a CCO, I do have the power to confirm the CCO or to vary it, and to leave you effectively in their hands.

8In the circumstances of this case, I am still not satisfied that imprisonment is the only appropriate sentence, even seeing your non-compliance.  For that reason, I am going to leave you on the CCO.

9But I do that making crystal clear to you, I hope, that you have to take it seriously; you have to give it first priority.  I understand you are running your own business, and that may take some particular priority in your mind. I can understand and accept that, and I am sure the Community Corrections officers would accept that.  But you are also apparently trying to engage in one other - well, there is rendering work, but also talking of some other work.  You are just going to have to leave that for so long as it takes to satisfactorily complete your CCO.

10The harsher alternative is a sentence of imprisonment, be it suspended or not. A sentence of imprisonment on your record would be something much more harsh than a community corrections order, and that is the only direction I have to go if you do not comply with your community corrections order more assiduously, and if you were brought back in front of me.

11What I am going to do is extend the duration of the community corrections order.  I am going to vary the order I made by extending its duration.  I was very tempted to add some more hours.  I am not going to do that.  I am going to extend its duration by four months, and that means it is 16 months.  I imposed it on 21 August 2014.  Today is 20 August 2015, so one year is left in it, but I will extend it by four months.

12You are going to have to make time to do the community work.  The sooner you do that, the more quickly that will be completed.  Not that the order will be completed; but the community work will be completed, leaving you free to do your other work, or whatever else it is you want to spend your time on.

13I was considering leaving the supervision condition to expire at the current period, but I think I will not.  I am going to extend it too.  The supervision condition will also remain for the duration, so it will be extended to expire on 20 December 2016.

14I am not going to increase the number of hours, but you have still got 182 of them to do, which I calculate to be 31 more full working days.  Now, you have got 16 months to do it in, and as I say, the sooner you set about doing that, the sooner they will be fulfilled.

15The supervision condition remains.  The drug counselling condition remains for the duration that I originally set it to be completed within, that is by 20 August 2016.  It is up to Community Corrections officers if they think it is worthwhile sending you back to another counsellor. You apparently did not engage well with the first counsellor.  You did with the next one, but not well enough to actually keep in contact.  Three attendances, and, as I read it, this counsellor Brad said you had decided to reduce your cannabis use.  It should be ceased. 

16What I am, however, going to do is find you guilty of a contravention of the community corrections order.  I am going to fine you $250 for that breach, with conviction.  I am not changing the fact that the community corrections order is without conviction, but you will now have a conviction for breaching the community corrections order.

17OFFENDER:  Yes, Your Honour.

18HER HONOUR:  And that should not, on my understanding, interfere too much with employment or visas.  You do have to declare it when you are asked about it.

19OFFENDER:  Yes.

20HER HONOUR:  It should not stop working with children, because it is a breach of a community corrections order, not for the primary offence, but it has got to be declared, and it is on your record now.

21OFFENDER:  Okay.

22HER HONOUR:  And you have got to understand that if you breach this, or fail to comply again, you can expect to be brought back in front of me, all the stress that that has caused you, and as I say, there is not much leeway if you breach it again.  I would have to take into account whatever the circumstances were then, of course, but you have not left yourself much wiggle room, to use the vernacular.

23OFFENDER:  Thank you.

24HER HONOUR:  Do you understand?

25OFFENDER:  Yes, Your Honour.

26HER HONOUR:  All right.  Well, to the Community Corrections officers, you have heard my reasons, and I am varying the community corrections order.  I think I have probably got to add a condition that Mr Mustafa contact the Sunshine Community Corrections.  I am going to make it by 4 pm next Monday.

27COMMUNITY CORRECTIONS OFFICER:  Yes, Your Honour.

28HER HONOUR:  All right.  Mr Mustafa, you will have to get in touch and make an appointment time to contact the Sunshine office.

29OFFENDER:  Should I contact the two people on the screen, or just ‑ ‑ ‑

30HER HONOUR:  Ms Fraser, are you the person to be contacted, or Ms White, or someone else from hereon?

31MS FRASER:  No, Your Honour, it will be allocated to a new case manager, but if Mr Mustafa reports, the new case manager will be allocated by then.

32OFFENDER:  Yes.

33HER HONOUR:  But if he wants to make an appointment time, does he just ring the office?

34MS FRASER:  Yes, ring the office, but as long as he reports by 4 pm Monday to make the induction appointment, that will be fine.  But if he wants to ring the office, that will be ‑ ‑ ‑

35OFFENDER:  There's nothing to it.  Easy.

36HER HONOUR:  All right.

37MR JOHNS:  Thank you, Your Honour.

38HER HONOUR:  You can take a seat, Mr Mustafa.

39OFFENDER:  Thank you.

40HER HONOUR:  The fine, do you want to - I think it takes a while for it to go into - do you need a stay on payment of the fine?

41MR JOHNS:  I don't think so.

42HER HONOUR:  I think there is at least 14 days' leeway.

43MR JOHNS:  Fourteen days.  He doesn't need more than 14 days.

44HER HONOUR:  All right, I will adjourn now until - next matter is 2 pm.

45MR JOHNS:  I think he's got to sign it.

46HER HONOUR:  He has got to sign it.  We have got to do the variation of the CCO.  All right.  I probably do not need the video link to remain.  We will have the copy of the signed variation of the community corrections order forwarded to the office.

47MS FRASER:  Thank you, Your Honour.

48MS WHITE:  Thank you, Your Honour.

49HER HONOUR:  Thank you for being available at the end of the video link.  We will now disconnect that.

50MS FRASER:  Thank you.

51MS WHITE:  Thank you.

52HER HONOUR:  All right, the community corrections order that gets produced is stated to be for 28 months commencing 21 August 2014, with the new expiry date.  All the other terms remain the same, and I said that the drug treatment to be confined to the first 12 months, but I do not know how we say that on this order.  Is that possible?

53All right, have that shown to counsel.  I will sign the CCO as well, so that that can be copied for everybody.

54

For some reason the order entered in our record system is still going to say, "Must report at" -really repeats all the earlier part, the reporting is by

25 August 2014.  We cannot get that to change.

55MR JOHNS:  He understands very clearly.

56HER HONOUR:  As long as Mr Mustafa understands, by Monday afternoon, you have got to report there, and they will give you an induction time.

57MR JOHNS:  Yes, Your Honour.

58HER HONOUR:  All right, signed.  Can we now adjourn, please, until 2 o'clock.

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