Director of Public Prosecutions v Soulton
[2018] VCC 874
•30 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 18-00063
Indictment No. G12176977
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAWAA SOULTON |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 May 2018 | |
DATE OF SENTENCE: | 30 May 2018 | |
CASE MAY BE CITED AS: | DPP v Soulton | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 874 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of attempting to pervert the course of justice – one summary offence uplifted from the Magistrate’s Court, having a controlled weapon without lawful excuse
Legislation Cited: Crimes Act 1958; Criminal Procedure Act 2009, s214; Control of Weapons Act 1990, s6(1); Confiscation Act 1997; Sentencing Act 1991; Confiscation Act 1997
Cases Cited:
Sentence: Fine and Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms H.A. Bate | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms S. Parsons | Doogue O’Brien & George |
HIS HONOUR:
1 Rawaa Soulton, you have pleaded guilty to the offence that you at Brunswick in Victoria, between 17 June 2016 and 22 June 2016 with intent to pervert the course of justice committed a series of acts which had the tendency to pervert the course of justice in that you attempted to persuade Malek Sayour to withdraw the charges against Mustafa Sayour.
2 The offence of attempting to pervert the course of justice carries a maximum penalty pursuant to s.320 of the Crimes Act 1958 of 25 years' imprisonment.
3 Pursuant to s.145 of the Criminal Procedure Act 2009, the following charge was transferred to this court.
Charge 3- that you, at Glenroy in Victoria on 2 June 2016, did carry a controlled weapon without lawful excuse.
On 22 May you agreed to have this matter determined in the County Court and pleaded guilty to such charge. The offence of carrying a controlled weapon without lawful excuse was contrary to s.6(1) of the Control of Weapons Act 1990 and carries a maximum penalty of one year's imprisonment or 120 penalty points. The value of one penalty point at the relevant time was $151.67.
The circumstances of the offending
4 Counsel for the prosecution tendered a document headed, "Summary of Prosecution Opening upon Plea" setting out the circumstances surrounding your offending in relation to the charges. Such summary has been marked as an exhibit, (exhibit 1) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such a summary are:
· On 1 June 2016 Mustafa Sayour committed an aggravated burglary and intentionally caused injury to his brother Malek Sayour at his home. You are married to Mustafa Sayour.
· On 2 June 2016 you attended at the location in Glenroy where your husband was being arrested for the offending committed on 1 June 2016. You approached police and were physically searched. When police enquired whether you were carrying an item which may cause injury, you removed a fold out pocket knife from your chest area and dropped it to the ground. (Summary Charge 3, carry a controlled weapon). A photo of the pocket knife was tendered and marked exhibit 2.
· Your husband was charged on 2 June 2016 with offences including attempted murder, aggravated burglary and intentionally causing serious injury. At that he was remanded in custody.
· On 17 June 2016, Malek Sayour’s uncle, Marwan Elasmar received a phone call on his mobile phone from Ziyad Allouche, who is your brother-in-law - he is married to your older sister. You requested Mr Allouche to make the phone call to discuss her husband and his innocence. Mr Allouche recalls that you requested that he convince Mr Elasmar to speak with Malek Sayour and convince him to drop the charges against your husband.
· During the phone call Mr Allouche and Mr Elasmar discussed the pending court case concerning the charges that your husband faced and Malek Sayour was present at his uncle's house and could hear the conversation as the phone was on speaker phone.
· In particular Mr Allouche said the following to Mr Elasmar,
“How are we going to solve this problem, how are we going to deal with it. As for compensation, see what Malek wants. We’re willing to give him what he wants. We’ll give him the boat and the jet ski if he drops the charges.”
· Mr Allouche and Mr Elasmar spoke further for a short time before you took the phone from Mr Allouche. You were initially calm when you spoke to Mr Elasmar and then raised your tone and began to blame Malek Sayour for the position that your husband was in. You said that Malek Sayour had assaulted and caused injury to himself and that your husband was with you the morning that the offending occurred. You also told Mr Elasmar that you wanted to tow away the boat and jet ski that your husband had left at his brother's house.
·
On 22 June 2016, you called Mr Aloush on his mobile phone. You asked
Mr Allouche to telephone Malek Sayour and convey to him that he could keep the boat and jet ski that were in the house in return for dropping the charges against your husband. You provided Malek Sayour mobile number to Mr Allouche in order that he make the call.
· Mr Allouche did as you requested and made the call to Malek Sayour, and the following conversation occurred between them:
“ZA: How are we going to fix this?
MS: What do you mean by that?
ZA: He is still your brother.
MS: He is not my brother, my brother doesn’t do things like this to me. He didn’t smash me, he was trying to kill me.
ZA: I’m just the messenger, what about if you take the boat and jet ski and drop the charges?
MS: All the money in the world doesn’t mean anything, I need to be safe.
ZA: Up to you but you’re still brothers. I may call you later.”
· On 29 June, Malek Sayour reported these matters to police.
· On 27 July 2016 you were arrested by police and were interviewed at the Broadmeadows Police Station. You said that you asked Mr Allouche to enquire about the return of the boat and jet ski, and you may have asked him to drop the charges, but you only said this because you loved your husband (see Q/A 220 – 221). You told police you did not make a direct demand of Malek Sayour to drop the charges but may have incidentally raised it in conversation (See Q/A 222). You otherwise denied the offending.
5 The prosecution accepts that you pleaded guilty to the charges at a committal hearing on 8 September 2017 and such plea should be characterised as having been entered at the earliest opportunity.
6 Furthermore you have no prior criminal history.
7 You were charged on 27 July 2016 and have remained on bail since that date. There is no pre-sentence detention to declare.
8 Counsel for the prosecution also made application for
(a) a forensic sample pursuant to s464ZF of the Crimes Act 1958 (instructions were given that such application would not be opposed);
(b)a disposal order pursuant to s77(1) of the Confiscation Act 1997 in relation to the pocket knife seized from you.
Your employment and social background.
9 Your counsel tendered the following material.
(a) A document headed, "Defence submissions on plea", see Exhibit A.
(b) A report of consultant psychiatrist Dr Arthur Kokkinias dated 18 May 2018, see Exhibit B.
(c) A medical report from the general practitioner Dr Anthony Diamantaras dated 18 May 2018. See Exhibit C.
10 Based on such material and the various submissions made by your counsel, I note the following.
· you are now twenty-nine years of age and were twenty-seven years of age at the time of the subject offending.
· you were born in Lebanon in 1989 and raised in Tripoli, being the second youngest of ten children. You describe having a "good upbringing" in Lebanon, attending school and completing Year 12. Your father and brother ran small businesses, providing financial support for the family.
· some of your older siblings had moved to Australia, and in 2007 you moved to Australia seeking a quieter stable life, without the political troubles that you were experiencing in Lebanon. On arriving in Australia, you studied English, and secured work as a waitress in a restaurant in Brunswick. You met your husband – Mustafa Sayour – and married in 2009.
· you gained qualifications in child care and obtained employment in the childcare industry from about 2010 to late 2014, when you had to cease work due to a wrist injury. The nature of the injury was a bilateral carpal tunnel syndrome, for which you underwent surgery in June 2015. Since then, you have continued to receive treatment for ongoing pain and discomfort, for which you have received psychiatric treatment. Furthermore your husband Mustafa Sayour, suffered injury to his feet and also ceased work around this time.
· you and your husband have no children and your husband has been diagnosed with infertility issues, preventing you from having children, despite your strong desire to do so. This issue has also compounded your problems in being unable to return to your previous employment in child care.
11
Reference was made to the medical report of the general practitioner,
Dr Diamantaras, wherein he asserts that he has been your local medical officer for over ten years. In particular he describes three ongoing significant problems for you.
(a) you have been suffering from severe and intractable pain in your right wrist, right elbow, right shoulder, cervical spine, left shoulder and left wrist which has been extensively investigated by a hand surgeon, rheumatologist, pain management specialist and physiotherapists, all to no avail. You are apparently waiting further surgery to your left wrist and are on a high dose of medication including analgesics, Panadeine Forte, Celebrex, Tramal and Lyrica.
(b) you have also developed a "profoundly severe and refractory depressive illness" that has affected your cognition, attention span, short and long term memory and capacity to formulate reasoned judgment. Again, you have undergone psychiatric and psychological treatments and are on a high dose of psychotropic medication, but have shown minimal improvement. You are currently on Cymbalta, 90 milligrams daily, Antenex, 5 milligrams bd, and Seroquel 50 milligrams nocte. Furthermore, Dr Diamantaras notes that notwithstanding your strong religious beliefs that prohibit alcohol, you have commenced some drinking, your self-esteem and self-worth are very low and you have feelings of profound hopelessness and some active suicidal ideation.
(c) Dr Diamantaras also reports the added difficulty of you and your husband not being able to have children which has caused your husband to have consulted both medical specialists in Australia and overseas which has caused what little finances you have to be depleted. Dr Diamantaras opines that the realisation that your husband will not be able to father children has been a profoundly significant problem both in not having children and also the cultural consequences of that problem.
12 Dr Diamantaras describes you as always presenting as an “honest and straight forward individual of the highest moral values”. He notes that you appear to be an empathetic individual who has exhibited compassion at all times. Although such report is addressed to the Presiding Judge, it is not clear as to whether Dr Diamantaras was aware of the charges to which you have pleaded guilty.
13 I also refer to the report of the psychiatrist Dr Kokkinias wherein he reports that he commenced to treat you in November 2016.
14 Dr Kokkinias has been of the opinion that you have developed a Major Depressive Illness secondary to your medical conditions, with significant somatising features, which have manifested as a chronic pain syndrome. He has continued to see you intermittently during 2017, and in late 2017 Dr Kokkinias was informed of the details of the subject offending. Dr Kokkinias noted that at that time you became particularly anxious and stressed. He has only reviewed you on two occasions in 2018 and on both occasions you had presented in a relatively distressed state with ongoing pain and anxiety issues and very occupied with the forthcoming legal issues.
The circumstances of the offending
15 Your counsel submits that, of course, the conduct undertaken by you was in the context of seeking to assist your husband who had been arrested and charged for offences relating to his brother, Malek Sayour, on 2 June 2016. In this respect Malek Sayour and another brother, Mounzer Sayour, had lived with you and your husband from 2011 to about 2014 and were supported by you and your husband while students. Seemingly, your husband had been at odds with his brother Malek Sayour for a period of time, since he had left your house and the conflict and resentment had spread throughout the wider family, becoming worse in the lead up to June 2016.
16 In relation to the summary offence, your counsel submitted that you had made immediate admissions to the police, explaining that the controlled weapon - the knife - had been kept in the car you shared with your husband and that prior to your husband's arrest he had told you to put the folding knife down your top. You explained to the police that you had followed your husband's instruction without really knowing why. In those circumstances, your counsel noted that the offending was relatively spontaneous, with limited planning and you had cooperated with police and made admissions.
17 Furthermore your counsel submitted that the subject offending occurred during the time when you have had ongoing physical and mental problems arising from your own injuries, the injury to your husband and the realisation that you and your husband would not be able to have children.
The mitigating circumstances relied on by your counsel.
18 It was submitted by your counsel that the following matters are relevant in mitigation of sentence:
(a) Your early plea of guilty to both the charge on the indictment and the summary charge. Such a plea of guilty, so it was submitted, had utilitarian value in that a trial was not necessary and there was no need for any witnesses to give evidence.
(b) That prior to such offending you had no criminal record and, indeed, was a person of good character.
(c) That although the crime of attempting to pervert the course of justice is a serious offence, as is manifest by the penalty, the circumstances of your offending were at the lower end and in particular it was highlighted that:
(i)you made no direct threats;
(ii)that the two phone calls did not involve significant planning;
(iii)the approach was largely unsophisticated and limited in scope – two phone calls within six days – which showed some element of persistence;
(iv) the dispute which gave rise to your husband being charged with offences was in a family setting;
(v) that you had no appreciation that the nature of the requesting phone call could be seen as attempting to pervert the course of justice. Indeed, it was suggested that given the family background, it was thought that such criminal matters could be dealt with by some sort of payment – in this case, taking the boat and jet ski – in return for not persisting with the criminal charges;
(d) in relation to the offence of carrying a controlled weapon without lawful excuse, it was submitted that such offence must be seen in the context of you responding to a request from your husband to put the pocket knife down the top of your clothing and as has already been recorded, you acted on your husband's instructions "without really knowing why."
19 Your counsel submitted that because of the nature of the offence of attempting to pervert the course of justice, principles of deterrence, in particular general deterrence - and denunciation are important factors in considering appropriate sentence.
20 In that context your counsel submitted that the offending maybe seen as an "aberration in an otherwise positive and productive life," and that in consideration the matters referred to in mitigation, an appropriate disposition would be a community correction order, which will allow to remain in the community and further your rehabilitation.
21 In respect of the summary charge, it was submitted by your counsel that given the circumstances surrounding such offending, and, indeed, your lack of prior criminal history, it would be appropriate to impose an undertaking to be of good behaviour for the offence.
The response of the prosecution
22 Counsel for the prosecution submitted that although the offence of attempting to pervert the course of justice is a serious offence, the circumstances of your offending was at the lower end of that type of offending. However, as counsel stressed, it is still a serious matter as it goes to the undermining of the administration of justice in this State.
23 Counsel for the prosecution accepted that prior to the offending you had been a person of previous excellent character and supported the submission that a non-custodial sentence would be within an appropriate sentence range. Counsel did submit, consistent with the submissions of your own counsel, that given the nature of the offence, general deterrence and specific deterrence are relevant to the sentencing matrix.
Community Correction Order
24 The court directed that you be assessed to determine your suitability for a community correction order. Such assessment was undertaken on 22 May 2018.
25 In a report from Community Corrections headed, "Assessment outcome report" dated 22 May 2018, the court was informed that:
(a) you had been assessed as being a "low risk of re-offending" according to the Level of Service Risk Assessment Tool; and
(b) that you were "unsuitable" for a community correction order on the basis that any such order would have "limited utility" as you will be unable to perform unpaid community work because of your ongoing physical and mental injuries.
26 Both your counsel and counsel for the prosecution made further submissions in relation to such report. Of course the court can order a community correction order notwithstanding the comments from the Corrections officer.
27 The difficulty is, in this case, it cannot really be said that any of the physical or mental conditions have any relation to the offending other than by way of background, and of course, given the nature and extent of your injuries, no particular work could be identified for you to pursue.
28 Notwithstanding, both counsel submitted that a community correction order would still be appropriate even if, essentially it was limited to supervision of you over the term of the order. In this sense, it does give some force to the concept that the offending, although at the lower end, must be specifically and generally deterred.
Conclusion
29 Clearly enough, the offence of attempting to pervert the course of justice is a serious offence, as is made manifest by the maximum penalty of twenty-five years' imprisonment. However, I largely accept the submissions of your counsel that your attempt to pervert the course of justice is very much at the lower end of this type of offending. In particular, I tend to the view that probably you did not even consider such actions to be wrong but, rather, something to be pursued within the family to try and sort out the charges laid against your husband.
30 Be that as it may, in considering an appropriate sentence, deterrence both specific and general, and denunciation of the crime, are important considerations. I consider that your chances of rehabilitation are good and your chance of re-offending is small.
31 I intend to convict you of the offence and sentence you to a fine, followed by a community correction order, which will involve supervision of you over the term of such order.
32 In relation to the summary offence of carrying a controlled weapon without lawful excuse, I again generally accept the submissions of your counsel that your possession of such weapon was an immediate response to a request by your husband. Furthermore, when queried by the police to whether you had any item on you that may afford an injury, you immediately informed and showed the police the knife, and made full admissions as to the circumstances as to why you were carrying such weapon.
33 However, I do note that such weapon was seemingly left in the car shared by both you and your husband.
34 In all the circumstances, I intend to convict you and sentence you to a fine for that offence.
Please be upstanding.
(a)in relation to the offence of attempting to pervert the course of justice, you are convicted and sentenced to a fine of $2,200. Furthermore, you are sentenced to a community correction order for a period of nine months. You must attend the Ballarat Community Corrections Service situated at 206 – 208 Mair Street, Ballarat, within two clear working days from today. In addition to the mandatory terms, there will be the following orders:
(b)pursuant to s48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary for the Department of Justice and Regulation for the length of the community correction order;
(c)in relation to the uplifted summary offence of carrying a controlled weapon without lawful excuse, you are convicted and sentenced to a fine of $300;
(d)I further order pursuant to s464ZF(2) of the Crimes Act 1958, that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with the Act until a sample of sufficient standard is obtained for placement on the database. I must inform you that, at the time of request, if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, the sample taken will be a blood sample, and police may use reasonable force to enforce the forensic procedure to be conducted;
(e)I further order that there be a disposal order pursuant to s77(1) of the Confiscation Act 1997 in relation to the pocket knife seized from you;
(f)pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have ordered that you serve a period of imprisonment of three months.
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MS BATE: As Your Honour pleases.
MS PARSONS: As Your Honour pleases.
HIS HONOUR: Yes. Mrs Soulton, do you understand what I said?
OFFENDER: Yes sort of so - - -
HIS HONOUR: Yes look - - -
OFFENDER: - - - it's fine and CCO.
HIS HONOUR: I don't think you're a bad person at all, I think you've made a very bad mistake thought.
OFFENDER: Yeah I did.
HIS HONOUR: And that may have been brought about by your background. You can't do that in Australia, that's what it boils down to. And indeed, as you probably heard me say, for this sort of offence you can get up to 25 years' imprisonment. Now no way did I think you should go to prison for this but on the other hand you must walk away understanding that you just can't do this sort of thing. Do you understand?
OFFENDER: I will, yeah I will.
HIS HONOUR: All right thank you very much.
OFFENDER: Thank you.
HIS HONOUR: We will adjourn temporarily.
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