Director of Public Prosecutions v Younis
[2023] VCC 692
•2 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01683
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DIA YOUNIS |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 February 2023 |
DATE OF SENTENCE: | 2 May 2023 |
CASE MAY BE CITED AS: | DPP v Younis |
MEDIUM NEUTRAL CITATION: | [2023] VCC 692 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Make threat to kill, threaten to damage property, contravene a family violence intervention order.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Mercer (a pseudonym) v The Queen [2015] VSCA 257
Sentence:Term of imprisonment of 120 days, 16 month community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Office of Public Prosecutions |
For the Accused | Mr P. Pathmaraj | Stary Norton Halphen |
HER HONOUR:
1Dia Younis, you have pleaded guilty on indictment to a charge of make threat to kill and threaten to damage property. You have also pleaded guilty to a related summary offence of contravening a family violence intervention order. Each of these offences took place on 21 June 2022.
2In sentencing you for your crimes I am obliged to consider the maximum penalty for the offences you have committed. The maximum penalty for make threat to kill is 10 years imprisonment, for threaten to damage property is five years imprisonment, and for contravening a family violence intervention order the maximum penalty is two years imprisonment. These maximum penalties reflect the seriousness with which Parliament regards these offences.
3The circumstances of your offending were set out in a document entitled 'Summary of Prosecution Opening' dated 19 December 2022. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
The Offending
4I have had recourse to the complete document, but in short compass, as of June 2022 you were separated from your wife, Tanya Eslefoa. She resided at an address in Craigieburn with her mother and your two children; Leo, then aged three years, and Leah, then aged three months.
5On 20 June 2022 you made numerous phone calls to Ms Eslefoa, asking for money. You were told that she did not have the money you wanted. You replied that you would come around the next day to collect money anyway. At this time you were subject to a family violence intervention order protecting Ms Eslefoa and your son, Leo, from you. Conditions of that order included that you were not permitted to attend at the home address.
6At 7.55 am on 21 June 2022, Ms Eslefoa did not answer a mobile phone call received from you. You then made a further 25 mobile phone calls to her number, which also went unanswered. You then sent a text message, detailed in the Crown opening, but which included the words:
'Coming back with petrol and fucking burning this house, and I don't give a single fuck how long I'll be in gaol she talks to me like that, okay?'
7This text formed the basis for charge 2; threat to damage property.
8At 9.55 am on the same day, you called Ms Eslefoa via a video call. She could see that you were outside her home. This fact forms the basis for the related summary charge of contravening a family violence intervention order. You poured petrol from a jerry can onto the ground in front of the garage and sent a text message to Ms Eslefoa, saying:
'If I see police coming near my house I will kill you. I swear to God, that was just a warning. I didn't light it up because my kids are inside. Better watch out'.
9This communication forms the basis for charge 1; threat to kill.
10Ms Eslefoa contacted police but you left before they arrived. Police then attended at your address and you were arrested and taken to Broadmeadows Police Station for interview. To your credit, you made full admissions in that interview.
Offence Gravity and Victim Impact
11This is obviously serious offending. Charge 2 seems to have occurred first in time and to involve your threat to burn the house down using petrol. Very shortly afterwards, you are at the premises at which Ms Eslefoa resided, in breach of a court order not to do so; the subject of a summary charge of contravening a family violence order.
12Not only are you at the premises, but you are at the premises with petrol, as you had earlier threatened you would do. You poured that petrol from a jerry can in what would appear to be an effort to show Ms Eslefoa that you meant what you said. At that stage you issued your threat to kill, the subject of charge 1. Whilst there is no evidence you had the means to light the petrol, that fact would have not been known to your victim and the others inside the premises.
13I accept that in terms of the offences for which you fall to be sentenced, there was limited, albeit some planning, and that your actions would appear to be out of character. Nevertheless, your offending has clearly occurred in a domestic violence context. General deterrence is a primary sentencing objective.
14The Court of Appeal said in Mercer (a pseudonym) v The Queen [2015] VSCA 257:
'This Court has said on many occasions that domestic violence will not be tolerated and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts. To borrow from what this Court said recently in Filiz v The Queen, offending of this nature is too often perpetrated by men whose response to conflict with a partner is one of violent rage. Such a response is utterly unacceptable. This court has made it clear, and will continue to make it plain, that offending of this kind will attract serious consequences'.
15Obviously charge 1 and the summary offence have occurred at the family home; an environment in which Ms Eslefoa, her mother and your two children were entitled to feel both safe and secure.
16Whilst no victim impact statements have been provided I have little doubt that Ms Eslefoa and her mother would have been frightened by your actions.
17I accept that the offending has all occurred in close proximity, time wise. This must also be reflected in the penalty to be imposed. Your offending did occur over a relatively short-lived period.
Plea of Guilty
18In terms of your plea of guilty the Sentencing Act 1991 obliges me to take into account the stage at which you entered your guilty plea. You entered your plea at committal mention proceedings on 9 September 2022. This does represent a plea of guilty at the earliest stage.
19In addition, your plea has utilitarian value in saving the court the time and expense of contested proceedings. This is an important factor, as your decision to plead guilty has saved the witnesses – in this case, some of whom are family members – from the trauma of having to give evidence, to be cross-examined, and to relive what would clearly be distressing events.
20In the context of the COVID-19 pandemic there is an additional utilitarian value in providing certainty and finality to all parties in circumstances where the court's operations have been disrupted by the pandemic.
21On the materials before me, I do accept that your plea is one of remorse. All of these factors will be taken into account in your favour. I turn now to your personal circumstances.
Personal Circumstances
22You are 30 years of age, having been born in July 1992. You were born in Baghdad, Iraq. Your father was a Sunni Muslim and your mother was of the Catholic faith. You have little memory of your father. You have a younger brother, Matthew, now aged 27 years.
23In 2001 your mother smuggled herself, you and your brother into Syria. This was a difficult journey. Within eight months of arriving in Syria, your family was discovered and deported back to Iraq. Your family was initially homeless upon return to Iraq. Whilst the family ultimately made its way back to Baghdad, they were again displaced upon the 2003 invasion and war which followed.
24Your mother applied successfully to migrate to Syria soon thereafter. She commenced a new relationship with a man named Nehad. You describe this man as being physically violent towards you, your mother and your brother. Your education had already been disrupted and you were unable to attend school in Syria, as you lacked citizenship. You instead began work at the age of 12 in Nehad's family business, but he would take your earnings. Whilst at work you were subject to a sexual assault by Nehad's brother.
25Your family home was not a happy or comfortable one and you were largely unsupported. Your mother left Nehad and came to Australia with you and your brother in 2007, settling in Sydney, as your mother had relatives in the area. Given your limited education you found adjusting to school in Australia difficult. You did manage to complete a Year 10 education at Fairfield High School.
26Upon leaving school you commenced work in the cleaning industry before later gaining employment as an interstate truck driver. You are the oldest male in your family home and were expected to provide financially. It was during your time as a truck driver that you accumulated convictions for driving offences.
27In 2016 you moved with your family to Melbourne after a romantic relationship of yours failed. You had hoped to marry that person.
28Upon arriving in Melbourne you developed an addiction to the drugs ice and cannabis, which you used as a means of coping. You would also gamble, primarily poker machines, in an effort to supplement your income.
29In 2019 you moved in with Tanya Eslefoa. Ms Eslefoa is also of Iraqi heritage. You became unemployed in the context of the COVID-19 pandemic and your drug use increased.
30In 2020 Ms Eslefoa became pregnant with your son, Leo. Leo was born in January of 2021. This pregnancy was unexpected and you both felt pressure from family to marry. You married shortly after Leo's birth.
31By May of 2021 your marriage had irretrievably broken down. Ms Eslefoa moved in with her mother, taking Leo with her. Your daughter, Leah, was born in February of 2022. You were prevented from seeing your children, which is perhaps understandable given the reported acrimony between you, Ms Eslefoa, and her mother, and the fact that your illegal drug use continued.
32Whilst providing no excuse, your offending occurred in the context of relationship breakdown, your unemployment, and serious drug addiction.
Prior Criminal History
33You do have a history for driving offences in New South Wales between 2010 and 2015, but have no criminal history in Victoria and no history for violence. Your criminal history therefore has limited relevance to the sentencing exercise.
Prospects for Rehabilitation
34In terms of your prospects for rehabilitation, as has been outlined, you have no relevant criminal history.
35You have spent 120 days in custody directly relevant to this offending. Apparently, five weeks of this period was in solitary confinement due to the Corrections response to the COVID-19 pandemic.
36In your case, the period of 120 days does appear capable of acting as both a sanction and a deterrent into the future.
37You were released onto bail by me on 19 October 2022 with the assistance of the Court Integrated Services Program, known as CISP. CISP offers a coordinated approach to the assessment and treatment of accused persons, providing case management and linking program participants to services with expertise, and which benefit the needs of the particular accused person.
38You have been required to appear regularly for review of your compliance on bail with the CISP program. You have been the subject of review on
15 November 2022, 14 December 2022, 30 January 2023, and as part of your plea hearing on 16 February 2023, and reports as to your progress have been provided on each occasion, as they have in advance of today's hearing, 2 May 2023.39At the time of your first review on 15 November 2022, you had attended all scheduled counselling appointments and had engaged well with alcohol and drug counselling. You had maintained abstinence from drugs. You required assistance to deal with a gambling problem and were also referred for psychiatric assessment. You had commenced a trial working as a barber.
40By the next review on 14 December 2022, you had continued to attend weekly appointments with your CISP case manager. You had several phone counselling sessions with a men's behavioural change program and were awaiting a formal commencement date. You had continued to engage well, with regular alcohol and drug counselling, and were described as being 'open and forthcoming'. You had continued casual employment as a barber, working four days a week, and had continued telephone appointments with a men's behavioural change program.
41You had also attended upon Dr Roth Trisno, psychiatrist, who provided a report dated 24 November 2022. To Dr Trisno you expressed negative ruminations about yourself, your life, and your current circumstances, including themes of both guilt and regret. You showed insight. In Dr Trisno's opinion you have a substance use disorder. In the past you have used anger to discharge your negative pent-up emotions or illicit substances to manage and cope with distress. He was of the opinion that your risk of harm to self or others was low due to the stability of your mental state, the presence of numerous personal strengths and desire to improve and engage with professional services.
42At CISP review held 30 January 2023, there had been a decline in your mental health and engagement with CISP. You had become depressed and stopped working. In the new year you had a brief relapse into drug use. At that point in time, apart from one blip on an otherwise positive radar over the Christmas period, you had otherwise done exceptionally well on the program.
43The CISP progress reports provided in advance of your plea hearing on
16 February 2023 indicated that you were trying to put your lapse over the new year period behind you and had again attended as required. You had also commenced antidepressant medication and were trying to keep physically active. It was suggested at that time by your CISP case manager, that you continue on CISP and that I defer sentence. This was also the course submitted by your counsel, with no issue taken by the prosecution. Both parties were submitting at that time that any sentence would consider the imposition of a community-based order. The Crown submitted that this should be in combination with a term of imprisonment, noting the 120 days you had served on remand.44Pursuant to s83A of the Sentencing Act you were released on a deferral of sentence in order to allow for your capacity for, and prospects of rehabilitation, to be assessed. I ordered an additional CISP review and a further update in advance of your further plea and sentence listed today, 2 May 2023. It was intended over the deferral period, that you would commence a men's behavioural change program, would follow through on a psychological referral under a mental health care plan and seek assistance for your recognised gambling problem. I also ordered an assessment as to your suitability for a community correction order (CCO). The matter was duly adjourned to today's date.
45Updated reports have been received from the CISP program. You have largely disengaged with that service. None of the intentions have come to fruition. It is an understatement to suggest that your disengagement is extremely disappointing. You had done very well prior to the Christmas break, but there was more work to be done in terms of accessing psychological assistance and with a men's behavioural change program. The primary purpose of the deferral period was to give you the opportunity to do so; you failed to take up that opportunity. The two treaters express concern for your wellbeing. I am told that you have been focused on your employment – indeed, prioritised your employment, working six days a week and providing financially for family members.
CCO Assessment
46In terms of the other assessments, a report authored by Gregory Lane of the Mental Health Advice and Response Service (MHARS), dated 28 April 2023, describes you as polite and cooperative. You told Mr Lane that you had engaged private psychological assistance. I simply do not know whether that information is accurate or not. You also reported twice weekly cannabis use and regular alcohol usage. Mr Lane recommends ongoing assessment and treatment for your mental wellbeing.
47An assessment outcome report from the Department of Justice dated 28 April 2023 was supplemented by a report of today's date. That assesses you as suitable for a community correction order. You are described as being polite with the assessor and expressed insight as to your time on remand giving you the impetus to seek assistance for your drug use and mental health. There was some concern about minimisation but you otherwise expressed shame, embarrassment, as well as remorse towards your victim.
48On the material presently before me there, is limited need for either specific deterrence or protection of the community. Your prospects for rehabilitation appear good, but they are contingent on you staying away from drugs and some continued emotional and psychological support. I am of the view that it would decrease any future risk of re-offending that you manage this and have access to a men's behavioural change program.
49It is appropriate that I take into account the length of time that you had been on a supported bail program, as well as your level of participation in the CISP program, in determining the appropriate sentence.
Sentencing
50The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing 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 am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.
51I have taken into account the relevant sentencing guidelines referred to in s5 of the Sentencing Act. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of both totality and proportionality.
52In relation to the charges on the indictment I do propose to impose an aggregate sentence, as I am satisfied that the offences are founded on the same facts or form, or are a part of a series of offences of same or a similar character. In so doing, I again bear in mind the principles of both totality and proportionality.
53On the summary charge of contravene family violence intervention order you are convicted and fined the amount of $800.
54On the charges on the indictment you are convicted and sentenced to 120 days imprisonment, reckoned as already served. In addition, you are placed on a community correction order for a period of 16 months; that period being ameliorated to take into account the period with which you were compliant with the CISP program and bail orders.
55During the 16 month period you are to be supervised by the Department of Justice, to be assessed and treated for drug and alcohol abuse, to be assessed and treated for your mental health, to be assessed for programs designed to reduce offending, including a men's behavioural change program, and you are to complete 100 hours of community work. These hours can be offset in their entirety by treatment conditions, therefore, more treatment, less community work.
56Initially, you are to attend for judicial monitoring, so I can keep a continued eye on you, Mr Younis, and also make sure that the programs I do intend are taking place.
57In addition to the conditions I have imposed there are standard conditions. The first and foremost of those is you must not commit any other offences during the 16 month period which could be punished by imprisonment. You must report within two working days to the nearest Corrections office. You are required to advise your supervising 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 correction orders that you must submit to visits, as directed, and you must obey all of the instructions and directions of a Corrections officer. You are not able to leave the State of Victoria without the prior permission of your supervising Community Corrections office.
58In my view, this order presents you with a chance to continue to change your life in a positive fashion, should you choose to take up that opportunity and the supports that should be made available. The order can be breached if you do not comply with it, in terms of the conditions, or reoffend whilst it is in place. If you do, you will have to appear before me for breaching the order. I may have to re-sentence you on the original charges and to sentence you for a separate charge of contravening a community correction order.
59I can only place you on a correction order if you agree to be so placed, and in a moment I will invite Mr Pathmaraj to take you through a copy of the order.
60Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty. If not for your plea of guilty you would have been sentenced to 18 months imprisonment with a minimum of 12 months before being eligible for parole.
61So I'll just have a copy in a moment provided, Mr Pathmaraj, and we'll fix a date for judicial monitoring. I agree with Mr Pickering that even though not much may have necessarily happened I'm going to have that in short compass, so that he can prove to me that he's starting to comply with court orders.
62MR PATHMARAJ: As Your Honour pleases.
63HER HONOUR: There weren't any ancillary orders, were there, Mr Pickering?
64MR PICKERING: No, Your Honour.
65HER HONOUR: No. Judicial monitoring will be 27 July. I'll list it at 9.30.
Mr Younis is welcome to physically attend for judicial monitoring, otherwise sometimes the Office of Corrections do now let them appear from the office, which is sometimes easier.66MR PATHMARAJ: Yes, Your Honour.
67HER HONOUR: He should understand that I get a report from the Office of Corrections in advance of judicial monitoring, which will update me as to what has or hasn't happened in that period. As indicated, I'll be judicially monitoring Mr Younis so that I can see how he is progressing, but also to ensure that what I intend is actually occurring in terms of the Office of Corrections.
68MR PATHMARAJ: Yes, Your Honour.
69HER HONOUR: If he does well on judicial monitoring at some stage that part of the Corrections order will fall away.
70MR PATHMARAJ: Yes, Your Honour. I'll explain that to him.
71MR PICKERING: Does Your Honour want counsel to attend that day?
72HER HONOUR: I don't require counsel but then if counsel wish, they can.
73MR PICKERING: The reason I ask is most judges, in my experience, don't require it.
74HER HONOUR: No.
75MR PICKERING: Unless there is a problem that comes up in the reports.
76HER HONOUR: No, I don't require counsel, but then they're not shut out.
77MR PICKERING: No.
78HER HONOUR: It's usually me and the judicial monitoree until such stage that I am having to deal with the contravention.
79MR PICKERING: Yes, Your Honour.
80HER HONOUR: Which I don't want to do in Mr Younis' case, if I haven't made that palpably clear. Thank you, I will get you to approach.
81MR PATHMARAJ: Yes, Your Honour.
82HER HONOUR: Mr Younis is happy to do that order?
83MR PATHMARAJ: Yes, Your Honour. Indeed.
84HER HONOUR: Now, Mr Younis, very unhappy with you today. I don't want to be unhappy on the return date.
85OFFENDER: Okay.
86HER HONOUR: Understood?
87OFFENDER: Yes.
88HER HONOUR: All right. Anything further, Mr Pickering?
89MR PICKERING: No, Your Honour.
90HER HONOUR: Thank you for your assistance today. As always, it's appreciated. Mr Pathmaraj, anything further from you?
91MR PATHMARAJ: Nothing from me, Your Honour.
92HER HONOUR: Thank you also for your assistance.
93MR PATHMARAJ: Thank you.
94HER HONOUR: Thank you. I'll close the court till 9 o'clock tomorrow, thanks.
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