Director of Public Prosecutions v Sidiqi
[2020] VCC 1942
•4 December 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-19-00788
CR-19-00789
CR-19-00790
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ATAWALA SIDIQI |
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| JUDGE: | HER HONOUR JUDGE GWYNN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 September, 25 & 26 November 2020 |
| DATE OF SENTENCE: | 4 December 2020 |
| CASE MAY BE CITED AS: | DPP v Sidiqi & Ors |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1942 |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Aggravated burglary; affray; causing injury intentionally; common law assault
Legislation Cited: Sentencing Act 1991;
Cases Cited:DPP v Meyers (2014) 44 VR 486;
Sentence:Sidiqi: CCO (2 years) with 175 hours community work, programs; $400 fine.
Shaheed:CCO (1 year) with 100 hours community work, programs.
Mohmand:$4,500 fine.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Office of Public Prosecutions |
| For Offender Sidiqi | Mr S. Anger | Marcevski Lawyers |
| For Offender Shaheed | Mr C. Pearson | Marcevski Lawyers |
| For Offender Mohmand | Mr R. de Kretser | Pica Crime |
HER HONOUR:
1Bilah Shaheed and Faisal Mohmand, you have each pleaded guilty on indictment C1811903.1B to a charge of affray and intentionally cause injury to Mohammed Ali, arising from an incident which occurred on 11 June 2018.
2On a separate indictment, J11536478, and after a sentence indication, you, Atawala Sidiqi, have pleaded to charges of common law assault, aggravated burglary and intentionally causing injury arising from the same incident.
3In sentencing each of you for your crimes I must have regard to the maximum penalties for the offences with which you are charged. The maximum penalty for the charge of affray and common law assault is five years imprisonment; the maximum penalty for intentionally causing injury is ten years imprisonment; and for aggravated burglary the maximum penalty is 25 years imprisonment. These maximum penalties reflect the seriousness with which Parliament regards these offences.
4The circumstances of your respective offending, Mr Shaheed and
Mr Mohmand, are set out in a document entitled “Summary of Prosecution Plea Opening” dated 6 November 2020 and for you, Mr Sidiqi, in a document entitled “Summary of Prosecution Opening for Plea” dated 26 November 2020. Each was an agreed document confirming your acceptance of the elements of the offences and the factual basis on which I am to sentence. They are each detailed documents and will not be repeated in full in my sentencing reasons.5You do have an additional co-accused in the events which transpired on
11 June 2018, being Mohammad Nawabi. Mr Nawabi is proceeding to trial.6By way of background, all four of you are of Afghani descent and are well known to each other. You, Mr Shaheed and Mr Sidiqi, are in fact brothers-in-law. I understand that you all adhere to the Islamic faith.
7The victim, Mohammad Ali, owned and ran Fresh Point Kebab in Somerville Road, Hampton Park. At the time of your offending he had only operated that business for a period of some six weeks.
8At approximately 4:00 pm on 11 June 2018 you, Atawala Sidiqi, and your father, Shah Sidiqi, attended at Fresh Point Kebab, as you had done regularly prior to Mr Ali's ownership. This date was during Ramadan, a period of religious significance in the Islamic calendar, during which fasting is required during the hours of daylight.
9Unfortunately, a dispute arose between Mr Ali and Shah Sidiqi when Shah Sidiqi entered the kitchen area of the shop, as had been his previous habit, but one which was not to the liking of the new owner, Mr Ali. Indeed there was a sign on the shop counter informing customers that they were not allowed to enter the kitchen area.
10On entering the kitchen, tensions increased as Shah Sidiqi became angry at Mr Ali as he believed that he, Mr Ali, was eating bread during Ramadan. Mr Ali was not a practising Muslim and could eat as he pleased.
11Shah Sidiqi was asked by Mr Ali to leave the kitchen area, telling him that he would bring bread out to him. Shah Sidiqi refused to leave the area. Mr Ali picked up bread to take it to a customer waiting at the counter and, as he did so, Shah Sidiqi grabbed the bread and it tore apart. He began to shout at Mr Ali. You then, Mr Atawala Sidiqi, came from the front of the store into the kitchen. You attempted to punch Mr Ali but he was able to get out of your way. The two of you have then grappled with each other, forming the basis for Charge 1 on your indictment, common law assault. Observationally, this is a relatively low level assault.
12Mr Ali has managed to push you from the kitchen with the aid of some other customers. You, Mr Sidiqi, and your father then left the kebab shop. You both continued to verbally abuse Mr Ali from the front of the store. You, Mr Sidiqi, then returned to your car and took from it a peeling knife and began to walk back towards the kebab shop. Your father stopped you, at which time you yelled out words to the effect “I'll come back for you”. You and your father then left.
13What I have already described seems an out-of-proportion reaction to a perceived slight and should not have occurred at all. It certainly should have been the end of the matter. However, it was this event and your response to it, Mr Sidiqi, that led directly to the events which followed and to the then involvement of your co-accused.
14Later that same evening you, Atawala Sidiqi, met up with Mohammad Nawabi, Bilah Shaheed and Faisal Mohmand. You told your co-accused and another friend, Hamid Surkhodi, that you planned to go to the kebab shop to get bread and then go to your home to have dinner together. At approximately 6:20 pm Mr Surkhodi drove you all to the kebab shop.
15You, Mr Sidiqi, and Mr Nawabi entered the store first, comprising the charge of aggravated burglary, which is particularised as entry as a trespasser with an intention to assault. Mr Nawabi was armed with a metal pole concealed under his clothing. The kebab shop was open for business and there were a number of customers inside at the time that you entered.
16Bilah Shaheed followed Mr Nawabi and Mr Sidiqi shortly thereafter. You, Mr Mohmand, entered the kebab shop last, approximately two seconds after the other three co-accused. All of you were wearing hoodies covering your heads as you entered.
17Mr Nawabi immediately approached Mr Ali, who was behind the shop counter making a kebab. He struck Mr Ali over the counter with the metal pole. Mr Ali was hit across his back and left shoulder. Mr Nawabi and you, Mr Sidiqi, began abusing Mr Ali and threated to kill him. Mr Nawabi continued to swing the pole whilst you, Mr Sidiqi, were yelling “I'll kill you, I'll kill you”. These threats are not the subject of charge and you will not be punished for them. They are put as context in order to understand the gravity of your offending overall.
18You, Mr Sidiqi, and some of the other accused picked up a number of items from the counter including an EFTPOS machine, bottles of water and drinking cups and threw them at Mr Ali. At one stage you, Mr Sidiqi, also picked up a chair and threw it.
19These actions are part and parcel of the affray charge to which you, Mr Shaheed and Mr Mohmand, have entered your pleas of guilty.
20Mr Nawabi then jumped on top of the counter and continued to strike out at
Mr Ali with the pole. The three of you then pushed through so that Mr Ali was in effect “blocked in”. Some of the four accused were punching Mr Ali. At one point Mr Nawabi dropped the pole but managed to retrieve it and continue his assault.21Shah Sidiqi then entered the store and yelled at all four of you to leave. You then left the store 46 seconds after you had entered.
22When Mr Nawabi left the store, CCTV footage tendered shows him carrying the metal pole in full view. You, Mr Shaheed, were a few steps behind. As all four of you were walking away, Shah Sidiqi began yelling at the victim and the four of you then turned and inexplicably re-entered the shop for another 35 seconds. You, Mr Mohmand, followed the others approximately three seconds after their entry.
23Shah Sidiqi then again intervened and the conduct finally stopped.
24You all got into Mr Sidiqi's car and left. You were arrested by police nearby and each subsequently subjected to police interview.
25Whilst relatively short-lived events, they were not without their impact. An employee of the kebab shop, Ms Ramandeep, became very scared and ran and hid in a restroom.
26Mr Ali was taken to Dandenong Hospital by ambulance. As a result of the attack upon him he received bruising and a muscle tear on his left shoulder and both his right ring finger and little finger were fractured. He suffered cuts to his lips and loose front teeth.
27Mr Ali has also provided a victim impact statement dated 19 February 2020 which is relevant to all three of you.
28The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
29In his victim impact statement, Mr Ali describes how he is “a bit scared for his family”. He is reluctant to go out with his children and family because he does not want to be seen or recognised by any of his attackers. He has been unable to return to the kebab shop where, as he describes, “this horrible incident happened”. The effects on him, given the date of his victim impact statement, have continued well past 11 June 2018.
30Your actions on 11 June 2018 are an absolute disgrace. You, Mr Sidiqi, overreacted to whatever had offended you earlier in that day. You had the opportunity for quiet reflection but instead your anger remained inflamed and you chose to involve three others in what then transpired.
31Four on one automatically placed Mr Ali at a disadvantage, as did the fact that he was caught by surprise and had limited, if any, ability to defend himself. Your attack was cowardly.
32Your actions have obviously affected Mr Ali and undoubtedly his employees, other innocent bystanders within the store and its precincts who were unfortunate to also be exposed to and witness your violence.
33In addition, Fresh Point Kebab was a premises in which the owner, his employees, customers and nearby observers were entitled to go about their business and feel safe in doing so. Each of you shattered that entitlement by your actions on 11 June 2018.
34As was revealed through your respective plea hearings, your decision-making on that day has also impacted on your own immediate families. It can only be hoped that these impacts continue to deter you into the future.
35The objective gravity of your offending is relevant to the sentencing task. In terms of the Crown case, it is put against each of you as follows:
a.Firstly, it is not alleged that any of you were aware that Mr Nawabi was carrying a metal pole at the time of his initial entry to Fresh Point Kebab.
b.The intentionally cause injury charge is put on a complicity basis against each of you but specifically excludes the actions of Mr Nawabi using the weapon and the injuries (fractures) associated with weapon use. The injuries for which you are responsible include pain, bruising and abrasions associated with punches directed at Mr Ali. It is more good fortune than good management that, even in terms of the role you did play, the outcome was not more severe. It does otherwise reflect a relatively low-level instance of intentionally cause injury.
c.Mr Mohmand is specifically excluded from being said to have punched Mr Ali. His complicity is based on his presence and encouraging the commission of the intentionally cause injury charge by punches delivered by others. This, in my view, lowers the gravity of his charge of intentionally cause injury.
d.The charge of aggravated burglary is based on your entry to the shop area, Mr Sidiqi, and going behind the service counter area. It covers both entries to the kebab shop but not in circumstances where you were aware Mr Nawabi had a weapon. The trespass element of the charge reflects the fact that you had been ejected from the shop earlier that afternoon, yet returned and were immediately involved in the attack on Mr Ali. Again, for an offence of its type it is not at the higher end. I am assisted by the decision in DPP v Meyers (2014) 44 VR 486, which includes a non-exhaustive range of factors to be considered in assessing the objective gravity of an aggravated burglary.
36Before I turn to each of you as individuals, I note the following matters which apply to each of you and will be taken into account accordingly:
a.None of you have any identified mental health issues or problems with drugs and/or alcohol. This adds to your respective prospects for rehabilitation.
b.Each of you had charges resulting from the events of 11 June 2018 listed for trial on 24 August this year. The COVID-19 pandemic saw a suspension of all trials from March 2020 and your trial had no prospect of proceeding in August of 2020. At the time of your plea, its relisting was uncertain
c.Each of your pleas of guilty, to lesser charges than those on the original trial indictment, have arisen during the court's response to the COVID-19 pandemic through active case management.
d.In that sense, the settlement reached represents an early plea.
e.The real benefit from your plea of guilty comes in its utilitarian value in sparing the need for witnesses, particularly Mr Ali, to relive the traumatic events suffered and in saving the time and resources of the court. Your respective pleas of guilty in the dynamic of the pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and trial dates remain as yet unfixed.
f.Each of you have also been subject to bail conditions since your arrests on or about 11 June 2018. This represents a period of some two and a half years during which there has been no further offending.
g.In my view, that two and a half years does represent a burden of uncertainty before the matter has been in a position to be finalised. That same time period represents one in which I can assess your relative future prospects.
37Your bail compliance, the impact of delay and your pleas of guilty will all be taken into account in your favour.
38General deterrence, however, remains important in order to send a clear message that this sort of behaviour should not and will not be tolerated.
39I now turn to your respective personal circumstances, starting with Atawala Sidiqi.
Atawala Sidiqi
40You, Sir, are presently 32 years of age, having been born in Afghanistan in January of 1988. You came to Australia as a refugee in 2005 and only 17 years of age. Your father, mother, three sisters and a brother also reside in Australia.
41You are married and are the father of five children under six years. You live with your wife, children and parents. You are the sole breadwinner.
42You are self-employed and own your delivery truck which works under contract. You have a consistent employment history and you are currently working towards buying your own home.
43Your youngest child, a son, was born on 12 October 2020 and was seven weeks premature. He has only recently been discharged from intensive care. This has been a considerable source of stress and destress for you and your wife.
44Your wife faces her own difficulties. She suffers from anxiety and depression as well as a urinary tract and kidney condition for which she has been hospitalised three times this year alone.
45In addition, she has a limited command of English and is unable to drive. Her physical and mental health and relative isolation due to her lack of English and unlicensed status means she relies heavily upon you emotionally, physically and financially. Your actions on 11 June 2018 put all of this, and the welfare of your children, at risk.
46You have a limited, but relevant, prior criminal history in the Magistrates' Court. The dispositions imposed would indicate that your prior offending was relatively low-level.
47On 19 October 2006 you appeared at the Dandenong Magistrates' Court in relation to a single charge of carrying a controlled weapon without excuse. You were placed on an adjourned undertaking without conviction for a period of 12 months.
48Your next court appearance was some nine years later at the Dandenong Magistrates' Court on 19 February 2015, at which time you were again placed on an adjourned undertaking without conviction for a period of 12 months in relation to charges of assault with a weapon and criminal damage.
I understand that the victim of this offending was in fact your brother-in-law and co-accused, Bilah Shaheed, in response to an assault he had committed upon his wife, who is also your sister.49Whilst not to be punished for your prior history a second time, it remains relevant to the weight that needs to attach to specific deterrence, denunciation and protection of the community.
50In your case there has been no further offending since the events of 11 June 2018. However, your offending in 2015 and 2018 has an air of you seeking retribution. This is of obvious concern.
51As a direct consequence of your actions on 11 June 2018 you spent some 16 to 17 days on remand before being released on bail. It does appear since that time you have used your time wisely and that augurs well for your prospects of rehabilitation.
52You have been in full-time employment as an owner driver. A reference from Brent Ham, dispatch manager, confirms that you have been subcontracted by Allied Transport for the past ten months. You are described as a hard worker, very reliable and “pleasant to deal with”.
53Importantly, given your previous criminal charges and the matters subject of this indictment, you have commenced anger management treatment. A letter authored by Robert McInnes, family therapy counsellor, confirms that you have completed four sessions of an anger management course and successfully completed that program.
54I also take into account other reference materials tendered on your behalf which include a letter authored by Said Mirranay, Rokhan Akbar and Bakhtyar Hatamzada. These materials would indicate that you are well regarded within your Afghan community and are well supported by it. At various stages you have been involved in voluntary community work. The man described in the reference material is vastly different from the man entering First Point Kebab on 11 June 2018.
55In a letter dated 27 October 2020 Dr Meredith Rawson confirms your wife's anxiety and depression, isolation and kidney infection which, as referred to earlier, required your wife to be hospitalised three times this year. Dr Rawson's letter also confirms your son's birth in October at only 33 weeks gestation.
56Through your period on remand, your work ethic, community supports, anger management treatment and significant family responsibilities, it appears that you have substantial motivators to stay out of further trouble. It would appear at this point in time that your prospects for rehabilitation are very good.
57I have had you assessed as to your suitability for a community corrections order. In an assessment report dated 27 November 2020 you were described as being at low risk of reoffending. You were cooperative and polite during the interview process. You were found suitable for a community corrections order. I will return to this in due course.
Bilah Shaheed
58Bilah Shaheed, you appear to have become involved in the events of 11 June 2018 at least partly due to your familial relationship with Atawala Sidiqi. By virtue of the charges to which you have now pleaded guilty, I am satisfied that you played a lesser role than Mr Sidiqi. Your decision however to be involved was an extremely poor one. In so saying, I cannot be satisfied that your decision to be involved occurred at any earlier stage than shortly after your arrival at First Point Kebab.
59However, this dispute was not yours and, as your counsel says, you should have exercised a greater level of self-control.
60Concerns for your self-control are further evidenced in your admitted, albeit limited, criminal history. Whilst there is only one appearance, it was for a charge of recklessly cause injury, which proceeded at the Dandenong Magistrates' Court on 19 March 2015, at which time you were convicted and placed on a community corrections order for a period of 18 months. The victim of this offending was your wife. I am told that you successfully completed the corrections order imposed at that time.
61You were born and raised in Afghanistan and came to Australia with other members of your family as a refugee in 2008 when aged 26 years. You have worked consistently since arriving in Australia and presently work full-time as a plasterer.
62You are now 38 years of age and have considerable responsibilities too, given you are the father of six young daughters. It is a shame that your relationship with your wife and children was not in the forefront of your mind on 11 June 2018. This comment obviously has equal application to each of your co-accused.
63The single day you spent in custody as a result should serve as a stark reminder of what you put at risk. The fact that there has been no further offending since 11 June 2018 hopefully indicates that is the case.
64Your prospects of rehabilitation would also appear to be very good.
65Materials tendered on your behalf would support that conclusion.
66I have received a reference from your employer of the last few years who has not observed you to fight or argue and describes you as being very regretful for your actions.
67In addition, I have received reference material from Rokhan Akbar, Said Mirranay and Mohammad Ahmadi, in which you are variously described as a decent family man with excellent moral character, calm and respectful and heavily involved in your contribution to the local Afghani community. I place less weight on the reference provided by your wife for obvious reasons, but overall there is a positive reflection of your more recent character, and one which is also in stark contrast to your behaviour in June of 2018.
68The submission made on your behalf initially was that the relevant sentencing considerations would lead me towards the imposition of a community corrections order. The prosecution do not challenge this submission. I have had you assessed as to your suitability for a community corrections order and note that you have been assessed as suitable. The assessor described you as being at low risk of general reoffending and recommends minimal conditions. You expressed to the assessor your regret and sadness for your actions.
Faisal Mohmand
69Faisal Mohmand, as outlined in the Crown opening, you would appear to have been more reticent than your co-accused in the events which transpired at First Point Kebab on 11 June 2018. You were the last to enter on each occasion and are not said to have been physically responsible for the injuries suffered by Mr Ali. As with Mr Shaheed, I could not be satisfied that your intention was formed any earlier than also shortly after your arrival at First Point Kebab. I put your role in the offending as being far more limited than that of your three co-accused.
70However, you also had simply no reason to be there. As I said to Mr Shaheed, this was not your fight or slight - you should never have been involved.
71There is good reason for me to form the view that such involvement is indeed never likely to be repeated.
72You have no prior court appearances and no further involvement in criminal behaviour in the two and a half years since June of 2018. The single day you spent in custody as a direct consequence seems, in combination with the event itself and resulting court proceedings, to have acted as both a sanction and as a deterrent into the future.
73At the time of the offending you were 26 years of age and are now aged 29.
74You were also born in Afghanistan, where your father worked for the Customs Department and your mother was responsible for home duties. Bearing in mind you had two sisters and five brothers, those duties would have been considerable. You are the second oldest child. Your brothers, one sister and parents still reside in Afghanistan.
75You received your education in Afghanistan, where you completed your primary and secondary schooling and learnt English.
76You married your wife, Marya, in 2012 before emigrating to Australia that same year. Your wife was in fact born in Australia.
77You initially lived with your wife's parents for a year before moving into rental accommodation. Your first child was born in December of 2013, your second in May of 2017 and your third in July of 2019.
78You were granted permanent residency in 2014 and became an Australian citizen in 2017.
79In 2015 you commenced an advanced diploma in mechanical engineering through RMIT which took you two years to complete. You then transferred to a mechanical engineering degree through Swinburne University.
80Apart from spending a day in custody, as a result of your offending behaviour you missed two exams and failed both of those subjects. You also lost your ability to work as a security guard, having had your security licence suspended. Perhaps these events will also assist you to learn the far-reaching implications of a split second decision.
81Having recently completed your final exams in mechanical engineering, you are essentially on the cusp of your career beginning after years of study. You have completed a placement with a local company earlier this year and have been encouraged to apply for a graduate job giving you good reason for your hope to gain employment in your chosen field in 2021. I accept that this is likely to involve a criminal history check by any potential employer.
82Whilst studying, you have sought to provide for your family as the sole income earner by working as a security guard and as a courier driver.
83Material to which I have had recourse and which you rely are as follows:
a.A letter of apology to the victim. He is aware of this letter but has chosen not to read it;
b.Substantial reference material from Bakhtyar Hatamzada, your wife and Mian Qamar speaks of your contribution to family and the Afghan community; and
c.References from two employers, Said Najibi and Damian Hibbert. Mr Najibi described you as a valued asset and a good role model for others.
84The submission on your behalf as to an appropriate sentence is that I should impose a financial penalty and one that is without a conviction being recorded. The prosecution do not seek to challenge this submission either.
85That does however require me to consider s.8 of the Sentencing Act and I have done so.
86I am satisfied in terms of the nature of the offence your role was limited, as I have already outlined. Further, your character and past history is in your favour. I see your involvement in the events of 11 June 2018 as being out of character, as time has demonstrated. There is limited, if any, need to give weight to specific deterrence and community protection. I accept that the impact of recording a conviction as you commence your professional life is likely to place at risk your economic or social wellbeing and/or impact your employment prospects in your chosen field.
87The basic purposes for which a court may impose a sentence are, firstly punishment; general deterrence - that is, sending a message into the community; specific deterrence - that is, sending a message to the offender; rehabilitation; denunciation; and protection of the community.
88In sentencing each of you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim. I must also balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as is possible, that offenders are rehabilitated and reintegrated into society.
89I have also taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, as well as the principles of totality, proportionality and, importantly, parsimony.
90I now turn to sentence.
91Faisal Mohmand, for the two charges on the indictment you are fined the amount of $4,500. This fine is made without a conviction being recorded.
92Atawala Sidiqi:
a.Charge 1 – assault - you are convicted and fined the amount of $400.
b.Charges 2 and 3 - aggravated burglary and intentionally causing injury - I propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts, or form, or are part of, a series of offences of the same or similar character. In so doing, I also bear in mind the principles of totality and proportionality.
c.You are placed on a community corrections order for a period of two years. This relatively limited duration reflects the period of time you have been on bail, the delay in these proceedings being finalised due to the COVID-19 pandemic, and the fact that you spent 17 days in custody as a direct consequence for your offending.
d.During the period of the corrections order you are to perform 175 hours of community work, those work hours being reduced partly due to the inability of the Office of Corrections to provide community work at this point in time due to the COVID-19 pandemic. You are also required to be assessed for programs consistent with achieving the purpose of treatment and rehabilitation. If you are asked to do those programs, 50 hours of the program work will be offset against the community work.
93In terms of you, Bilah Shaheed, I also intend imposing an aggregate sentence and for the same reasons. The corrections order which I impose upon you must also reflect that your plea of guilty has been entered to less serious offences than was on the trial indictment and those that were faced by
Mr Sidiqi, and that you played a lesser role than Mr Sidiqi. I also take into account the fact that you spent a day in custody.94Accordingly, in relation to the two charges on the indictment you are convicted and placed on a corrections order for a period of 12 months. During this period of time you are to perform 100 hours of community work and also to be assessed for programs consistent with achieving the purpose of treatment and rehabilitation. In your case 50 hours will also be offset.
95For each of you the subject of community corrections orders, in addition to the conditions that I have imposed there are standard conditions. The first and foremost of those is that you must not commit any other offences during the period of the order which could be punished by imprisonment. You must also report within two working days to the nearest community corrections office which in your case, Mr Shaheed, I understand is in Dandenong and in your case, Mr Sidiqi, is in Cranbourne. You are required to advise your corrections office of any change of address of where you are living or working and you must do so within two clear working days. It is a term of all community corrections orders that you must submit to visits as directed and must obey all of the instructions and directions of a corrections officer. You cannot leave the State of Victoria without prior permission of your corrections office.
96In my view, these orders present you with a chance to continue to change your life in the positive fashion which you have displayed for the last two and a half years, as long as you take up that opportunity and the supports that may be made available. Your corrections order can be breached if you do not comply with it in terms of the conditions or if you re-offend whilst it is in place. If you do so, you will have to appear before me for breaching the order and I may have to resentence you on the original charges and to sentence you for breaching the order.
97Section 6AAA of the Sentencing Act requires me to state the sentences that I would have imposed if you had not pleaded guilty. This is a somewhat artificial process in this particular case given the significant factors I have otherwise taken into account.
98If not for your plea of guilty, Mr Mohmand, I would have sentenced you to a community corrections order of at least 12 months duration. With the order I have imposed on Mr Shaheed I am not required to make a s.6AAA declaration, but if not for your pleas of guilty, Mr Sidiqi, I would have sentenced you to 18 months imprisonment with a non-parole period of 10 months.
99For those with corrections orders, I can only place you on those orders if you agree to be placed on those orders. Mr Sidiqi, do you agree to being placed on the corrections order that I have outlined?
100OFFENDER SIDIQI: Yes, Your Honour.
101HIS HONOUR: Mr Shaheed, do you agree to be placed on the corrections order that I have outlined?
102OFFENDER SHAHEED: Yes, Your Honour.
103HER HONOUR: Thank you very much. You have each verbally consented to those corrections orders which under the legislation is enough to represent your consent. The orders themselves will be emailed through which can be done to the gentlemen directly or through their legal representatives.
104Mr Devlin, anything I missed?
105MR DEVLIN: Can I just raise two relatively minor matters, Your Honour? Just in relation to Your Honour's sentencing remarks to Mr Mohmand, you referred to the apology that has been forwarded to the victim.
106HER HONOUR: Yes.
107MR DEVLIN: What I heard was you said that the victim had chosen not to read it.
108HER HONOUR: That is what I said.
109MR DEVLIN: The situation is - and hopefully I said it at the right time - but the apology letter was forwarded to Mr Ali. He indicated to my solicitor he would read it. We have got no confirmation so it is not quite right to say he has chosen not to read it.
110HER HONOUR: I must admit, Mr Devlin, I apologise. I thought that is what you told me previously. I am happy to stand corrected.
111MR DEVLIN: Yes, and the other matter, Your Honour, and this will come down to my hearing I am sure: when Your Honour was going through the details of the offending you reached the point where you referred to threats to kill being made.
112HER HONOUR: Yes.
113MR DEVLIN: Can I ask Your Honour just to go back in relation to who said the threats to kill?
114HER HONOUR: I will double check my notes but I believe I referred to
Mr Sidiqi.115MR DEVLIN: That is correct, Your Honour. I just wanted to make sure that - I think there might have been - you went on to refer to another person, but I just wanted to make sure that it is only alleged that Mr Nawabi and Mr Sidiqi made threats to kill, nobody else.
116HER HONOUR: I said Mr Nawabi continued to swing the pole whilst you,
Mr Sidiqi, were yelling, 'I'll kill you, I'll kill you'.117MR DEVLIN: That is correct, Your Honour. It is my hearing and I apologise for my hearing.
118HER HONOUR: There is no need to apologise. Same as I said to
Mr Pearson, it is right to raise the matters.119MR DEVLIN: Yes, Your Honour. In that case Your Honour's sentencing remarks are perfectly fine, correct.
120HER HONOUR: Mr Anger, anything I missed in terms of your client or that you wanted to raise in terms of your client?
121MR ANGER: No, Your Honour.
122HER HONOUR: Mr Pearson?
123MR PEARSON: No, Your Honour, thank you.
124HER HONOUR: Mr De Kretser, I have not forgotten you are there.
125MR DE KRETSER: No, Your Honour. It is all understood, thank you.
126HER HONOUR: Thank you very much. I will close the court.
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1
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