Director of Public Prosecutions v Wasif
[2022] VCC 1172
•21 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 19-01297
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FADY WASIF |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 July 2022 | |
DATE OF SENTENCE: | 21 July 2022 | |
CASE MAY BE CITED AS: | DPP v Wasif | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1172 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Davison | Office of Public Prosecutions |
| For the Accused | Mr S. Parker | Theo Magazis & Associates |
HER HONOUR:
1Fady Wasif on 30 October 2019, I sentenced you to a total effective sentence of nine months and fourteen days. In respect of two charges, namely Charge 2 and Charge 4, in addition to the term of imprisonment you were to be released on a Community Correction Order for a period of two years.
2You were not released from custody until 18 April 2020 and so the two year Community Correction Order commenced on that day and ran to and expired on 17 April 2022. You have now been brought before me for breach of that Community Correction Order. That breach being evidenced both by non-compliance with the conditions of the Community Correction Order and by further offending.
3The non-compliance breaches were failure to attend for supervision on seven occasions and failure to provide samples for drug testing as directed on five occasions.
4The further offence was, disturbingly, one related to the circumstances that had brought you before me for sentencing in the first place. That was a charge of a contravention of a family violence intervention order made in favour of your former partner. That breach offence occurred within a month of your release from custody and within a month therefore of you embarking upon your Community Correction Order.
5It wasn't until December 2021, that is 18 months after the breach event that you were sentenced in the Magistrates' Court for that offence and fined a sum of $600.
6In the breach report in addition to identifying formal non-compliances and the breach offending, Corrections noted that your engagement with the Community Correction Order, in particular with the treatment and program conditions had been superficial. That is in offence specific discussions they considered your engagement was superficial and that you were not forthcoming with information despite frequent promptings.
7Following Corrections being notified of the breach offence the report noted that Corrections utilised supervision sessions to explore the relationship between you and the affected family member and they noted there that your engagement mirrored your presentation during offence specific discussions.
8Corrections said your engagement was considered superficial and you were not overly forthcoming to discuss the dynamics between yourself and your ex-partner. Further adding:
“This service held concerns regarding the limited level of information he was providing regarding offending. Supervision sessions also focussed on building his self-efficacy and accountability in demonstrating consistent attendance. Strategies and plans were discussed to support him in balancing his conflicting priorities, however these appeared to have little impact as he continued to demonstrate sporadic attendance at times.
Mr Wasif engaged in goal setting discussions which primarily related to obtaining employment and bettering his overall circumstances. He demonstrated motivation to achieve his goals and desist from pro-criminal behaviour, evidenced by him securing full-time employment as an after-hours plumber in December 2021 and building a positive support network.
Mr Wasif's overall compliance towards this condition is considered sporadic at times and he incurred a total of seven unacceptable absences. However to his credit he did remain engaged with this service until the expiry of his order on
17 April 2022.”
9So as far as engagement in drug rehabilitation or treatment, covid clearly interfered with the capacity for that treatment to be delivered. You were referred to a Kickstart program through Odyssey but there were delays in treatment because of covid and remote access service delivery. You were offered bridging support by Odyssey House which you declined.
10You did remain engaged with the service and you were forthcoming about reported abstinence. You engaged with management approaches to target your drug use and corrections noted that you demonstrated insight into the consequences of the previous substance use and the links to your offending pathway. You were ultimately asked to undergo a further assessment and you were re-referred after covid delays had abated and you were again considered eligible for participation in a program.
11However, you failed to attend two scheduled assessments with Australian Community Support Organisation (ACSO) in November and December 2020, and rescheduled another assessment which may well have been due to work commitments. Ultimately you did participate in assessment in March 2021 and you were referred to Footscray Odyssey House to focus on relapse prevention.
12
You have successfully completed a standard episode of drug counselling. However, as Corrections noted in November 2021, having been turned away because of clinic overcrowding at a testing site on 20 November 2021, you failed to attend testing when directed on 21 December 2021, 12 January 2022 and
9 February 2022.
13During that period, Corrections was notified that you had tested positive for methylamphetamine at a roadside oral fluid test resulting in an immediate driving suspension. As a result of that Corrections understandably expressed the concern that you may not have been forthcoming about your drug use during the order and treatment.
14Participation in a men's behavioural change program which I had considered to be important did not occur. You were found suitable for the men's behaviour change program and the links in families programs. Covid related delays meant that by the time a place was available for you in the men's behavioural change program there was insufficient time on your order for you to undertake it and so you were removed from the waitlist for that.
15You did successfully complete a one day program, the links in families program on 14 December 2021. Positive feedback was reported there regarding your participation, the insight that you displayed and your ability to identify your values and strengths.
16However, Corrections ultimate conclusion and recommendation is that the order which has now expired be cancelled and that you be re-sentenced on the original matters.
17Corrections rely on the conviction for the further offence of breach of a family violence intervention order. That was in May 2020 well before you had completed the links program but only a month after your release on the Community Correction Order. In addition, it relies on the non-compliance with the program conditions and your superficial engagement in respect of supervision and the concerns about your lack of frankness in relation to your substance abuse.
18In my sentencing reasons in 2019, having detailed the circumstances of the original offending and your personal circumstances, I concluded that I considered your prospects of rehabilitation to be fair in the absence of successful participation in a men's behaviour change program and a drug rehabilitation program. And I noted that your prospects should improve if you successfully engaged in such programs.
19Both the Prosecutor and the Defence counsel at the time of the original sentencing agreed that there were strong factors pointing towards the significance of a structured supervised regime around you upon your inevitable release from prison. It was acknowledged by your own counsel as well as by the Prosecution that a term of imprisonment was warranted for the original offending. However, she submitted the Community Correction Order rather than a non-parole period after that was going to better encourage you to engage in rehabilitation.
20I said this:
“It is essential in my view that there be a term of imprisonment to mark the gravity of the offending and to serve the needs of deterrence both general and specific denunciation and just punishment. However it is also very much in your interests, the community's interests and your specific victim's interests that you participate in a tightly structured rehabilitative program upon your release into the community. And in my view that can be better done in your circumstances by directing your release on a Community Correction Order after completion of your sentence.”
21You were found to be suitable and I released you on a Community Correction Order in respect of Charge 2, the charge of stalking of your victim and Charge 4 the charge of attempting to pervert the course of justice with those program conditions.
22Given not just the fact that you have breached by non-compliance and by further offending, but also the reports of your superficial engagement, I consider that the only appropriate way to deal with this breach now is to convict you for the breach, to cancel the order and to re-sentence you for the original offences, Charge 2 of stalking and Charge 4 of attempt to pervert the course of justice.
23I do not consider that a further Community Correction Order is appropriate in the circumstances. You had your chance and you showed your attitude to it and I see no reason why you should be given another chance where you do not demonstrate a genuine commitment.
24I must take into account the compliance you had on the Community Correction Order and that was significant. However if you want to deal with your drug use it is up to you. If you want to engage in any further programs in relation to men's behaviour in relationships that is up to you. But I do not see absent any evidence of motivation and commitment any purpose in directing you do that.
25Therefore on Charge 2 in respect of which you were originally sentenced to be imprisoned for a period of nine months and a 2 year Community Correction Order and Charge 4 in respect of which you were originally sentenced to be imprisoned for a period of six months, two months of that to be cumulative upon the sentence on Charge 2 and the two year Community Correction Order, I re-sentence you as follows. Can you now please stand?
26
On Charge 2 of stalking, you are re-sentenced to a term of imprisonment of
18 months.
27On Charge 4 you are re-sentenced to a term of imprisonment of 12 months and I direct that three months of the sentence on Charge 4 be served cumulatively upon the sentence on Charge 2.
28On the breach of the Community Correction Order you are convicted and sentenced to be imprisoned for a period of one month and I direct that that be served cumulatively upon the sentence on Charge 2 and the partial cumulation order I have made on Charge 4.
29That makes a total effective sentence of 22 months and I direct that you serve a period of 16 months before being eligible for parole.
30I declare that you have spent 337 days in pre-sentence detention attributable to Charges 2 and 4 and direct that that be counted and reckoned as part of the sentence already served.
31That leaves unaffected the allowance for pre-sentence detention in respect of all other matters for which I sentenced you back on 13 October and all other sentences imposed by the Magistrates' Court.
32Any further orders required to be made Mr Davison?
33MR DAVISON: Your Honour - - -
34HER HONOUR: The original CCO is cancelled.
35MR DAVISON: Yes, Your Honour, yes. Just an abundance of caution a s6AAA declaration given that he pleaded guilty on these matters.
36HER HONOUR: No, I decline to make a s6AAA declaration, I made one at the time of the original sentencing and I'm not going to make another.
37Mr DAVISON: As Your Honour pleases. Yes, nothing further Your Honour.
38MR PARKER: Nothing, Your Honour.
39
HER HONOUR: Thank you, can you please remove Mr Wasif? Thank you
Mr Davison and Mr Parker.
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