Director of Public Prosecutions v Yehia
[2015] VCC 106
•3 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No. CR-09-01020
CR-13-02250
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUSTAFA YEHIA |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 January and 3 February 2015 |
| DATE OF SENTENCE: | 3 February 2015 |
| CASE MAY BE CITED AS: | DPP v Yehia |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 106 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – contravention of suspended sentence – dangerous driving causing serious injury – reckless conduct endangering persons
Legislation Cited: Crimes Act 1958 (Vic), s18, s23, s83AB, s83AR, s89, s319(1A), Sentencing Act 1991, s6AAA
Sentence:Convicted and sentenced to an aggregate sentence of three years and six months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C Teague | Craig Hyland Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C Nikakis | Haines & Polites |
HIS HONOUR:
1In this matter, I sentenced Mr Yehia on 27 February 2012, and the full details relevant to that sentence are set out in my sentencing remarks of that date.[1]
[1]Director of Public Prosecutions v Yehia [2012] VCC 409
2The nature and the seriousness of the offences is evidenced by the fact that a maximum penalty that was imposed for such offence was one of ten years, and for the assault matter, one of five years.
3The sentence imposed was such that the total effective sentence was six months, albeit a serious offence, with an operational period of two years by way of the suspended sentence; however, the reasons for such, were set out fully by me at the time.
4I, in particular, took into account what I saw, in the circumstances, as a valuable plea. Unfortunately, despite that leniency by the Court, some eight months later, Mr Yehia thought it fit, if he thought anything, to be involved in these particular offences.
5The circumstances surrounding these offences are set out in the prosecution statement, tendered as Exhibit A. The first offence, which is a breach of s319(1A) of the Crimes Act 1958 (Vic) ‘the Act’, involves a maximum sentence of five years; causing serious injury by way of driving in a manner dangerous.
6The second offence comes under s23; reckless conduct placing persons at risk of injury. In this particular instance, they were the people in the yellow Falcon, and they were placed, in fact, in danger of serious injury.
7As I said at the time of the plea, a proposition to which Mr Nikakis and no person with any commonsense could not appreciate, how you did not kill yourself or anyone else was absolutely remarkable. The combination of Exhibit B, that is the photographs and the direction plan, shows what happens when you drive through a T-intersection, in a 60-kilometre zone, at 122 kilometres. Suffice to say, your car was launched into the air. The damage, as I said, is demonstrated dramatically in the photographs, and one only has to observe those photographs, and the circumstances, to see why I use the phrase “amazing”.
8Unfortunately, as a result of your driving, serious injury was caused to Michael Suckling. Exhibit D showed those injuries. As I say, fortuitously – and I am certain he would probably agree – he was able to get out the other side, or get out of the car, albeit that he had pain to his spine. He had a vertebral fracture in the thoracic region, as the extent of the impact had caused a burst fracture. He required a brace thereafter. He had a subdural haematoma which, fortunately, with conservative treatment, healed itself. He also suffered from pulmonary collapse.
9Insofar as Charge 2, while no injuries were effected, obviously the risk to those was quite obvious. Insofar as the suspended sentence, which by your plea you have breached, clearly, as a result of these circumstances, there is nothing exceptional at all that has occurred in your life that would otherwise than result in the imposition of the original period of imprisonment. I stress again how fortunate you were originally, to get a suspended sentence, and I warned you what would happen if you came back.
10Clearly, in regard to that matter, pursuant to the provisions of s83AB and s83AR, it is necessary for me to reimpose that six months for the Charge 1 kidnapping charge, that must be served immediately.
11Insofar as the charges in the Indictment D11927825, the Crown stressed the objective seriousness of those, and that is demonstrated clearly from the matters that I have referred to. The fact is that this behaviour took place at 10.00pm at night on a very busy, well known, Melbourne road, when you were travelling at double the speed limit.
12Mr Nikakis, in his usual manner, made an incisive plea on your behalf. He stressed – which is obvious by this driving – the lack of maturity. It is a matter that I had referred to in the original sentencing remarks. However, I also appreciate, and we all appreciate from experience, that some men in their lives learn from one episode in a Court such as this. Others take a bit longer. You seem to be in that position. I indeed referred to that issue of immaturity in your makeup in my earlier sentence, and clearly one hoped that you would have learnt.
13Mr Nikakis stressed the discount that must be given in regard to both these charges, despite the circumstances, for your plea of guilty. He stressed the impact upon you of the loss of your business, and the financial loss. However, against that, of course, must be put the fact of the substantial number of serious priors you have for driving offences. In particular, five prior matters for exceeding the speed limit – three of those by over 30 kilometres per hour – and in addition, you have two offences for driving when your licence has been suspended.
14In those circumstances, it is necessary for me to balance all of those factors put on your behalf by Mr Nikakis – in particular, your immaturity – against the fact that you have been given significant chances and you do have a very bad history in regard to driving matters.
15Insofar as the offence to which you have pleaded guilty – that is the offence under s83AB – a breach of a suspended sentence – the Act requires me to sentence you to a period of imprisonment of three months, and I intend to do that.
16Mr Yehia, firstly, on the matter of the breach of suspended sentence, you will be sentenced to a period of three (3) months’ imprisonment.
17Pursuant to s83AR, there being no exceptional circumstances, I reimpose the imprisonment of six months for the kidnapping charge. I will order that the breach of suspended sentence be served – that is the three months – concurrently with that.
18Insofar as the new Indictment is concerned, in regard to Count 1 – the charge of dangerous driving causing serious injury – I impose a period of imprisonment upon you of two-and-a-half (2½) years.
19In regard to the second count – reckless conduct endangering persons – I impose a period of two (2) years’ imprisonment upon you.
20Using, insofar as that Indictment is concerned, Charge 1 as the head sentence, to that two-and-a-half years, I will add six months of the period of imprisonment for Charge 2 to be served cumulatively, making a total effective period of imprisonment to be imposed upon you in regard to the indictable matters of three (3) years.
21It is necessary for you, insofar as the reimposed period of suspended sentence, for that to be served immediately, and the period of three years will be served on top of that.
22It is necessary to add that to the immediate term of six months, so that that has to be served after the period of six months, making a total period of imprisonment that you are going to have to serve – being the suspended period of six months plus the three years – of three (3) years and six (6) months. That is the effective period of imprisonment that you will have to serve.
23I order that the minimum period that you have to serve before being eligible for parole is a period of two years and six months.
24Pursuant to s18, I order the 65 days that you have already served be deemed as service of this sentence, and I make a declaration that without the plea of guilty to the indictable matters, pursuant to s6AAA I would have sentenced you on those matters to a period of imprisonment of four years. I think that is all I have to ‑ ‑ ‑
25MR NIKAKIS: Your Honour, I don’t like to interfere, however it’s not exactly clear. On Count 1 on the new presentment ‑ ‑ ‑
26HIS HONOUR: Yes?
27MR NIKAKIS: Your Honour’s ‑ ‑ ‑
28HIS HONOUR: Two and a half years.
29MR NIKAKIS: Two and a half, yes. On Count 2, two years.
30HIS HONOUR: Two years.
31MR NIKAKIS: Six months of Count 2 cumulative on Count 1.
32HIS HONOUR: Making three.
33MR NIKAKIS: Yes, that’s the way. It didn’t come out that way.
34HIS HONOUR: And then the suspended sentence of six months having to be served first, add to that three makes it three years and six months, of which I’ve given him a minimum of two years and six months, and made the declaration as to 65 days.
35MS TEAGUE: That’s right, Your Honour, in relation to the original sentence.
36HIS HONOUR: Yes. I don’t think there is anything else I have to do is there?
37MS TEAGUE: There is one matter, Your Honour.
38HIS HONOUR: Yes?
39MS TEAGUE: The licence cancellation.
40HIS HONOUR: The licence cancellation, yes. I’ve got to – what’s the minimum period of that? Three months isn’t it?
41MS TEAGUE: Eighteen months, Your Honour.
42HIS HONOUR: Eighteen months. I’ll make that minimum pursuant to s28 isn’t it? Sorry.
43MS TEAGUE: Eighty-nine, Your Honour.
44HIS HONOUR: Eighty-nine, that’s right. Pursuant to s89, I will impose what is now a mandatory minimum cancellation for 18 months. I will order that that begin as of today, so that as far as you are concerned, by the time you have served your period, Mr Yehia, there will be no issue upon your licence. Either party need any other clarification?
45MR NIKAKIS: No, Your Honour.
46MS TEAGUE: No, Your Honour.
47HIS HONOUR: Yes, thank you. All the best. You can take the prisoner away.
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