Director of Public Prosecutions v Wasif
[2019] VCC 1775
•30 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
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: | 29, 30 October 2019 | |
DATE OF SENTENCE: | 30 October 2019 | |
CASE MAY BE CITED AS: | DPP v Wasif | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1775 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – stalking – theft – damage to property – attempt to pervert the course of justice – intimate partner relationship – coercive behaviour – drug abuse – importance of general deterrence – limited remorse – importance of structured release into the community – combination sentence
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Webster | Office of Public Prosecutions |
| For the Accused | Ms B. Smallwood | Stary Norton Halphen |
HER HONOUR:
1 Fady Wasif, in December 2018, you were arrested, questioned and charged in relation to allegations of stalking a woman who had recently terminated a relationship with you. She had apparently been unaware, when the relationship started, that you were married and, when she confronted you after discovering you were married, you told her that you were separated and in the process of getting a divorce. She later discovered that was not true and that you were not intending to divorce your wife. It was following that last discovery that apparently she brought the relationship to an end.
2 When you were interviewed by the police, you admitted the extramarital relationship and engaging in a range of behaviours after the woman had terminated the relationship which amounted to stalking.
3 As a result of the arrest and interview, your wife found out about the relationship with the other woman. On the agreed facts before me, you and your wife decided to remain together and work on continuing the marriage.
4
Again, on the agreed facts, in late January or early February of this year, your wife discovered sexually explicit messages on your telephone from another woman. She confronted you and left the marriage and the marital home. On your plea I was told that you instructed that the messages that your wife had found and that led to her departure were no more than messages from a woman who had supplied you with methamphetamine. When taken to the reference in the agreed summary to the sexually explicit nature of the messages,
Ms Smallwood confirmed that you accepted the accuracy of the prosecution summary and could not take the matter any further other than reiterating that your instructions were that the messages were about amphetamine supplies from a supplier.
5 Not long after your wife left, you contacted her by telephone and by text in an abusive fashion. When you spoke to her, you yelled at her. You blamed her for breaking up the marriage.
6 Shortly after that, on 5 and 6 March of this year, you engaged in a persistent and terrifying course of conduct which together amounts to a serious example of the offence of stalking.
7 As was later discovered, you had placed an iPhone in the boot of your wife's car, attached to a charging cable connected to the car's power system, so as to be able to track her movements. Using that device to track the car, on 5 March you went to the street where she was staying and where she had parked her car.
8 In the evening of 5 March 2019, you sent her a text, telling her you knew where she was, that you had left a surprise in her car and directing her to answer her phone. The messages were couched in abusive, threatening and pejorative language. Following that first message, over a two and a half hour period that evening, you attempted to call her 93 times.
9 At her request, a friend of your wife's drove down the street. He saw you and was able to confirm that you were there, in your car. At one stage, you were seen, on your phone, pacing and looking agitated near your car. At another stage, you had moved your car, parking it closer to the property where your wife was actually staying. On that occasion you were seen, seated in your car, looking around. Your wife was terrified and she decided to leave and seek refuge somewhere else. Before she left, you were seen to smash the window of her car and rip the wiper off. The smashing generated a loud sound that she could hear inside the property. You sent more texts to her. In one of them, you warned or threatened that you were on the way to her place and you would make trouble. In another, that you would traduce her to her family. You threatened her dog and you threatened that you would throw her stuff into the street.
10 Your wife escaped out a back entry and through an alley and went and took refuge at her parents’ home.
11 After you had smashed the car, she rang 000, but by the time police arrived you had left the scene.
12 The following day, 6 March at 6:30am, you sent her an email with a threatening and manipulative choice: the more she avoided you, the harder you were going to go. On that day, you made 25 calls or attempts to call her phone. You left a voicemail on her phone, threatening that if she did not return your calls, 'It was just going to get worse'.
13 That same day, you were seen driving your wife’s damaged car. Your wife reported what you had done and the sighting of the car to the police. They went to your home and arrested you. You were interviewed and denied engaging in any of the conduct that she had alleged.
14 Nonetheless you were charged and remanded in custody.
15 The following day, police were able to establish that your phone was in the area where your wife’s car was at the time it was damaged. They also discovered that you had another phone registered under your name. Using the 'find my phone' app, they traced the phone to an address in Caroline Springs, not far from where you lived and there they found your wife’s car, with the mobile phone attached to a charger, concealed in the boot.
16 It is the combination of the placing of the tracking device in the car, the use of it to track your wife to where she was staying, your attendance there, the making of the threats by text, voicemail and email and the volume of phone calls made to her phone on 5 and 6 March, that give rise to the charge of stalking, to which you have pleaded guilty. Your conduct in smashing the car and ripping off the wiper gives rise to the charge of criminal damage. The taking of the car from the street where your wife had parked it and being seen driving it, before it was found near your home in Caroline Springs gives rise to a charge of theft. You have pleaded guilty to these charges of criminal damage and theft.
17 The day after your arrest, that is 7 March, a family violence intervention order was made in favour of your wife. It was served on you at court, when you appeared and were remanded. By that order you were prohibited from contacting your wife, directly or indirectly.
18 You remained in custody and in late April 2019 you spoke to your mother by phone. In the course of the call you said to her,
And also I was thinking about the car. The only way I can be cleared from stealing the car, you have to talk to [my wife] and get her to say, "Look, I - he let me use the car to repair the damage I had done the night before".
19 Your mother, acting on your request, contacted your wife’s mother, passing on the request to drop the charge. Your wife found out about the communication from your mother to her mother and notified the police. As you were speaking to your mother from prison, the phone call was recorded on the Arunta system.
20 As a result, you were charged with, and have now also pleaded guilty to, a charge of attempt to pervert the course of justice. Somewhat surprisingly and perhaps mercifully for her, your mother was not also charged.
21 Finally, you have consented to a summary charge of failing to appear on bail being dealt with. As I have noted at the start of this narrative, in December 2018, you were charged with offences relating to stalking the woman you had been having the extra marital relationship with after she had terminated it. You were, at the time of the offending before me, on bail in respect of charges relating to that. And in fact, you were due to appear in the Magistrates' Court on 5 March, the day before you embarked on the course of conduct which gives rise to this stalking charge, for a plea and sentencing hearing in respect of the stalking and related charges in respect of the other woman. However, on 5 March, you did not appear in the Magistrates' Court. And so it is that you have now pleaded guilty to that charge of fail to appear on that day in respect to the summary charges.
22 It follows from this last part of the narrative that the stalking, criminal damage and theft charges before me were committed the day after you were due to answer your bail in respect of the other stalking charges. And the attempt to pervert the course of justice charge was committed after the family violence intervention order had been made and served on you and which prohibited you from contacting your wife.
23 The charges of stalking, theft and criminal damage are all punishable by a maximum of 10 years' imprisonment, attempt to pervert the course of justice is punishable by a maximum 25 years' imprisonment and fail to answer bail, by two years' imprisonment
24 It was common ground between Ms Smallwood, who appeared on your behalf, and Ms Webster for the prosecution, that of the five charges before me, the most serious were stalking and attempt to pervert the course of justice.
25 I am satisfied that the stalking is a serious example of its type. Electronic tracking was used, which shows a level of sophistication and planning. The sheer number of calls, the threats made by you, the abusive and manipulative tone of the messages and the pejorative and misogynistic language used by you to a woman you were married to and who you had professed to want to remain married to, are simply appalling. They were clearly an attempt to exert control over your wife and subject her to your will.
26 Such behaviour must be roundly denounced. She had decided to end the relationship. That was her right. On the materials before the court she certainly had cause.
27 It was put on your behalf that you had come to feel unhappy in the marriage and when, after being charged with stalking the other woman, your wife had become aware of the relationship and had decided to try and save the marriage rather than bring it to an end, you felt trapped because you wanted out. If that is the case, it does not sit comfortably with the anger, abuse and threats you made to your wife when she brought the marriage to an end after she discovered the sexually explicit texts in January or February of this year. It seems to me that the only rational explanation for your conduct, in respect of these offences, is that you were attempting to exert control, or what is often now called coercive control, over her. You were outraged because she was the one who had taken the steps to bring the relationship to an end, even though that was an outcome you apparently wanted.
28 You were not prepared to accept her decision and showed yourself intent on pursuing her, despite her making it clear she wanted to have nothing to do with you. It must always be remembered that she has autonomy. She was entitled to make her decision to end the relationship. Having done so, she was entitled to have her autonomy, her right to bring the relationship to an end, her right to decide after that when and in what circumstances she saw you and what contact she had with you respected by you.
29 The attempt to pervert the course of justice charge relates to that single request made to your mother in the recorded prison conversation. I agree that it falls at the lower end of the scale of seriousness for offences of this type. However, that you were subject to a family violence intervention order prohibiting you from having any contact with your wife and that you used your mother as a means to make indirect contact and put pressure on your wife are aggravating features that mark the gravamen of this offending.
30 Attempt to pervert the course of justice as an offence is serious because it challenges or undermines an essential feature of our criminal justice system: that witnesses feel free to give truthful evidence, that they are not prevailed on by threats or coercion to give a false account or to decline to give evidence and that they are safe from reprisals for giving evidence. Unless there is confidence witnesses are giving their account of events uninfluenced by threats or pressure from others, confidence in the ability of courts to properly determine disputes and to do justice to all parties is undermined. A legal system that citizens trust to administer fair and impartial justice is essential in a free society that respects the rights of all.
31 It is clear therefore that, subject considerations personal to you, denunciation, deterrence, both general and specific, and just punishment are important sentencing factors.
32 Dealing then with matters personal to you. You come before the court as a man of 33. You have no previous convictions. You came to Australia as a three year old, your family leaving the civil war in Lebanon to come to Australia for a safer place and a better life. I am told that you struggled in your early years here, found it very difficult to settle to school, to make friends and to master English and basic literacy skills. By the middle of your secondary schooling you seemed to have settled a bit. You found subjects of a scientific and engineering or mechanical bent that interested you and suited your way of thinking and learning. You improved your literacy skills and you ended up successfully completing your VCAL.
33 You then completed a two year advanced diploma in mechanical engineering, showing that you had academic aptitude and an ability to stick at things. And given the difficulties of your early school years and your early years in Australia, that is more than just an expected achievement. It is one that you could rightly be proud of and one that your mother was rightly proud of.
34 You then completed an electrician's pre-apprenticeship and, by 2007, had decided to join the Australian Army and were accepted into it. You commenced a plumbing apprenticeship through combat engineering and you remained in the army for three or four years. During that time, you took a six month voluntary deployment to Afghanistan where you engaged, not only in plumbing work, but also in surveillance and patrols. One cannot underestimate the effect of going to a war torn country as part of Australia's deployed forces and the impact that can have on someone. It is a very different life than the life that we are privileged to lead here. You were exposed to life in a war torn country, something your parents chose to remove you from when they left Lebanon to come to Australia.
35 Your deployment to Afghanistan was cut short by the death of your father. He had been ill for two years and, before your deployment finished, it was clear that he was in the terminal stages of his illness. You came home to say your farewells and support your mother.
36 You decided not to return to the army and re-entered civilian life, completing your plumbing apprenticeship without any difficulty and obtained employment for some years at Melbourne Airport. By 2016, you were working as a skilled tradesman with a real estate company.
37 In 2010, you met the woman who became your wife and who is the subject of these charges. The relationship soon turned into what appeared to be a steady, stable and loving relationship and you married in 2017. All of that sounded as if matters were going well. But by 2017 or 2018, things were perhaps not as good as this picture would present. I was told that you started using methylamphetamine upon your return to Australia in 2010 and that had become a feature of your life thereafter. It clearly had not stopped you working or engaging in other ordinary social and community activities.
38 However, as Ms Smallwood put, this offending has to be seen in the context of a chain of events that started, really, in 2018 with the, if not commencement, at least the termination of that extramarital relationship. Ms Smallwood described an escalation from what she had called a relatively routine summary stalking charge as a result of your conduct towards the other woman to the dramatically more serious events that ended up bringing you before this court.
39 Two things stand out. First, that your amphetamine use appeared to have increased over the years and increased significantly during that six month period from the stalking charge, in respect of the other woman, to the events that led to your being remanded in custody in respect of the offences involving your wife. And the second is a fixed determination to impose your will on your wife and on the other woman, that is on women you were having relationships with once they, having discovered the lies that you told about your commitment to them, took steps themselves to end the relationship.
40 Your amphetamine use may provide a context for the offending but it is no mitigator.
41 Of greater concern, in my view, is the behaviours as evidenced here, and the similarity between them and on those revealed in the agreed summary that was provided to me yesterday in respect to the summary charges you face relating to the other woman. Having said that, of course I understand that I am sentencing you for the offences before me and not for the summary matter. The circumstances surrounding the summary charges are only relevant to an assessment of your prospects for rehabilitation and to the weight to be given to specific deterrence and protection of the community.
42 It was acknowledged that both specific deterrence and protection of the community need weight here, having regard to the circumstance of these offences, seen against the context of the other charges that were then pending against you. You committed these offences whilst you were on bail for a similar course of conduct; stalking offences against the other woman and in context where they too sprang from your determination to pursue her, despite her express wishes to the contrary. It is clear that being charged with the original offences, being bailed on them, acknowledging the criminality of your conduct and facing a sentencing hearing did not have a deterrent effect on you when it came to your conduct with your wife, the conduct that is before me.
43 Although you now, on what was put to me, acknowledge the frightening impact that you behaviour must have had on your wife and, for that matter, on the other woman, you appear to be focused on your unhappiness and distress about being incarcerated and the manner of imprisonment rather than acknowledging that this is the inevitable outcome of your own behaviour and a just punishment for it.
44 It is clear that general deterrence and denunciation must also carry weight. I have already spoken about the importance of honouring and valuing the autonomy of your wife in your relationship. People cannot act in the way you did when a relationship has come to an end and stalk somebody, destroy their property, steal their property, threaten them and try and get them to withdraw charges.
45 And so the sentence must act as a deterrent to others who think this is acceptable behaviour and show the denunciation of the court and of the community for possessive behaviour and coercive control of the sort that you engaged in towards your wife.
46 As to your prospects for rehabilitation there are some very positive factors. You have no previous convictions. You reached the age of 33 without being in any trouble. You have strong support from your mother and sister. You have a good work history and you have good employment and vocational skills. Although you clearly are finding the experience of incarceration distressing, and there is anxiety related to that, there is no evidence before me of any mental illness or psychiatric or psychological condition that would impede your rehabilitation.
47 You have been in custody since been charged with the original offending directed towards your wife. At the time you made the phone call which constitutes the attempt to pervert the course of justice charge, your lawyers were preparing a bail application. Not surprisingly, that did not proceed. Your lack of insight showed that you posed a continuing risk of further offending.
48 You have had the opportunity to physically detox from the methamphetamine that you had been taking. The eight months in custody has given you, or should have given you, time to reflect and to appreciate that this is where you will end up, and for longer periods, if you repeat behaviour like this. And as it would appear you have chafed so much under imprisonment, the knowledge that if you do this again you will go back to gaol should count as a very powerful specific deterrent.
49 I note that, having said that, the attempt to pervert the course of justice charge occurred after you had spent nearly two months in custody. That amount of time therefore was clearly not sufficient to give you insight or to act as a deterrent. One can only hope the six months after that have changed your attitude.
50 But I do take the fact that you have been in custody for so long as a factor counting towards your prospects for rehabilitation because of the very strong desire you expressed not to be there.
51 Balancing the ledger, in terms of your prospects for rehabilitation, are these things. After you were charged with the first offences in relation to the other woman, at Ms Smallwood's suggestion, you enrolled in a men's behaviour change program. You did not complete it. It was after embarking on that men's behaviour change course that you committed these offences. You have not engaged in any drug rehabilitation.
52 It would appear that your amphetamine use had continued unchecked and escalating for seven or eight years before this offending. I am told that you have not done any drug awareness, behaviour change or drug rehabilitation programs in custody. On enquiry, I was told by Ms Smallwood that you had applied but you were at the bottom of the waiting list. I find that a little surprising given my general experience that remandees, including remandees at Fulham, have often produced bundles of certificates of courses they have been able to do during similar periods on remand. But maybe you were unlucky, maybe things have just changed or maybe you just had not come far enough up the waiting list by the time the matter came on for hearing. In any event, what that means is there has not been any successful participation in a men's behaviour change program and there has been no participation to date in any drug rehabilitation counselling or programs.
53 I accept that you have expressed some remorse and some appreciation of the impact on your wife, but the remorse is, in my view, at this stage still limited and more directed towards your unhappiness with your plight finding yourself in prison. However, I accept the combination of your plea of guilty and the remorse that you have expressed point towards some positive weighing in your prospects for rehabilitation.
54 You have pleaded guilty to these charges and did so at a relatively early stage. You are entitled to the full benefit of that plea of guilty for its utilitarian value, for advancing the interests of justice and most significantly, for sparing your wife, the victim of these offences, the ordeal of having to relive what happened and being questioned and challenged about what she said occurred.
55 So overall, I consider your prospects of rehabilitation to be fair, in the absence of successful participation in a men's behaviour change program or drug rehabilitation program. Your prospects should improve if you successfully engage in such programs.
56 It was put by Ms Smallwood that a combination sentence was the appropriate outcome. Ms Webster, for the prosecution, agreed that that was within range and there were strong factors pointing towards the significance of a structured, supervised regime around you upon your inevitable release from prison. I agree with the submissions of both counsel. 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 in 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.
57 You have been assessed for suitability for a community correction order and have been found to be suitable.
58 I propose to impose terms of imprisonment in respect of all charges and in addition, in respect of Charge 2, the stalking charge and Charge 4, the attempt to pervert the course of justice charge, to impose a community correction order to commence upon your release from imprisonment.
59 Could you now please stand.
60 Fady Wasif, on the four indictable charges and the one related summary offence to which you have pleaded guilty, you are convicted.
61 On Charge 1, of criminal damage, you are sentenced to be imprisoned for a period of three months.
62 On Charge 2, of stalking, you are sentenced to be imprisoned for a period of nine months.
63 On Charge 3, of theft, you are sentenced to be imprisoned for a period of three months.
64 Those three sentences are totally concurrently upon each other.
65 On Charge 4, of attempt to pervert the course of justice, you are sentenced to be imprisoned for a period of six months and I direct that two months of that sentence be served cumulatively upon the sentence on Charge 2, the stalking charge.
66 And on the related summary offence of fail to appear, you are sentenced to a term of imprisonment of one month and I direct that 14 days of that sentence be served cumulatively upon Charge 2 and the partial cumulation order I have made in respect of Charge 4.
67 That makes a total effective sentence of 11 months and 14 days.
68 In addition, in respect of Charge 2 and 4, you are to be sentenced to a two year community correction order, commencing upon completion of your term of imprisonment.
69 Before I take you through the terms of that order, I declare that you have spent 238 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
70 And I declare, pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty, I would have sentenced you to a term of imprisonment of three years with a two year non-parole period.
71 I note that the forfeiture and forensic sample orders that have been sought have been consented to and I make each of those.
72 So far as the forensic sample order is concerned that is a taking, not retention, isn't it, Ms Webster?
73 MS WEBSTER: It's taking, your Honour.
74 HER HONOUR: Yes. I am directing that that forensic sample be provided by way of a buccal swab. That means you need to rub a swab, like a cotton bud, on the inside of your mouth until a sufficient sample has been provided. If you do not cooperate in that provision of that sample the police are authorised to use reasonable force and they will use the more intrusive means available, namely taking a blood sample. Do you understand that?
75 And all licenses held by you are suspended for a period of three months, commencing today. That is in respect of Charge 3, the theft charge.
76 Now, so far as the community correction order that follows on from your term of imprisonment, in respect of Charge 2 and 4, that is to run for a period of two years, commencing upon the completion of your term of imprisonment.
77 There are mandatory terms that apply to all community correction orders. They are that you must not commit another offence for which you could be imprisoned during the time the order is in force and that includes, specifically for you, driving without a licence, breach of a family violence intervention order or stalking.
78
You must comply with any obligation or requirement prescribed by
regulation 17 of the Sentencing Regulations 2011. That means you must not be impaired by drugs or alcohol when you attend upon Corrections for any visits or any visits they direct you to go as part of this order. And you must submit to drug or alcohol testing if required to do so.
79
You must report to and receive visits from the Secretary or delegate. You must report to the Sunshine Community Correctional Services Centre at
10 Foundry Road in Sunshine within two clear working days of your release from custody. You must let a community corrections officer know within two clear working days if you change your address or your job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate.
80 In addition to the mandatory terms, you must be under supervision of a community corrections officer for the period of the order, that is for two years. You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager and you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
81 Do you understand the effect and conditions of this order?
82 OFFENDER: Yes, your Honour.
83 HER HONOUR: And do you consent to it being made?
84 OFFENDER: Yes, your Honour.
85
HER HONOUR: All right, I will have that brought down to you. Thank you,
Ms Smallwood, if you could take that down to your client.
86 Now, have the orders I pronounced reflect what I said I intended to do? Arithmetic correct? Everything within power? Ms Smallwood, I will have the copy of the community correction order provided to you rather than to your client in the circumstances, if that is convenient?
87 MS SMALLWOOD: Yes, certainly, thank you, your Honour.
88 HER HONOUR: Thank you. Any further orders required to be made?
89 MS WEBSTER: No, your Honour.
90 HER HONOUR: Could you please remove Mr Wasif. I will stand down. A copy of that will be made and provided to you. Keep in touch if you need any further information from us in relation to the other matters.
91 MS SMALLWOOD: Thank you.
92 HER HONOUR: And I will just stand down briefly while we do the interchange.
93 MS WEBSTER: Yes, thank you, your Honour.
94 HER HONOUR: If that is convenient.
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