R v Atar
[2018] VCC 451
•12 April 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-02316
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DHAL ATAR |
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JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2018 | |
DATE OF SENTENCE: | 12 April 2018 | |
CASE MAY BE CITED AS: | R v Atar | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 451 | |
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Warren | OPP |
| For the Accused | Ms P. Smith |
HIS HONOUR:
1
Dhal Atar, you have pleaded guilty to one count of intentionally cause injury and one count of theft. Both these charges have a maximum penalty of
ten years' imprisonment.
2
You have also pleaded guilty to six related summary offences, namely two counts of drive whilst disqualified; two counts of contravening conduct conditions of bail; and two counts of committing an indictable offence whilst on bail. Because you have a prior conviction for drive whilst disqualified, the maximum penalty for those two offences is 240 penalty units or two years' imprisonment. The maximum penalty for each of the bail offences is
30 penalty units or three months' imprisonment.
3 The prosecutor has provided a summary of your offending. It is not my intention to repeat that summary. It will be attached to these sentencing remarks as Appendix A.
4
The following matters are relevant to my assessment of the gravity of your offending. First, whatever grievance Mr Jeng may have had with the victim, it was not your grievance. Secondly, you initiated the assault that occurred in the early hours of 27 May 2017. It was a cowardly assault. You punched the victim to the face and Mr Jeng then joined the assault by kicking the victim to the head. There were two of you and your co-offender was armed with a steel rod. He used that rod to strike the victim to his head, face, arms and hands. The victim lost consciousness for a period of time and when he came to, you had your arm around his neck, choking him. It was only because of the intervention of another person that the assault stopped. Thirdly, the assault occurred in the home where the victim was staying. Fourthly, as a result of the assault, the victim spent two days in hospital. He sustained a fracture to his nasal bone, a fracture to his right wrist extending to the 5th metacarpal,
a haematoma above the left ear and visible bruising and swelling to his face. Fifthly, after the assault, you and Jeng stole the victim’s car and one of his mobile phones. The car has not been recovered. And finally, you committed these offences whilst on bail and in breach of conditions of that bail.
5 Mr Atar, this is a serious matter. General deterrence, just punishment and denunciation are all highly relevant sentencing considerations.
6
You have a number of prior convictions. Almost all of your prior appearances have been at the Sunshine Magistrates’ Court. Some relate to offences of violence. On 16 June 2011, you were convicted and placed on a 12 month Community Corrections Order (CCO) for offences that included recklessly cause injury, affray and failing to answer bail. You subsequently breached that order. In July 2015, you were sentenced to 77 days' imprisonment and
a 12 month CCO for offences that included traffick cannabis, robbery, theft of a motor vehicle, driving whilst disqualified, commit an indictable offence whilst on bail, possess prohibited weapon and fail to answer bail. You breached that CCO by committing further offences on 2 May 2016. Your prior history means that the principles of specific deterrence and protection of the community are relevant sentencing considerations.
7 I now move to matters pertinent to your background. You are 30 years old. You are the second eldest in a family of eight children. You were born in Sudan. When you were four years old, your family fled to Egypt, where you spent some seven years in very difficult circumstances. When you were 11 years old, the family came to Australia as refugees. The transition from Egypt to Australia cannot have been easy. It was made harder when your mother and father separated. I was told that you have had limited contact with your father since the time of that separation.
8
You attended St Augustine’s Primary School in Yarraville and, although you had some difficulties in your secondary schooling, you managed to complete Year 12 at the Christian Brothers College in St. Kilda. Given your background, this a matter to your credit. You then completed an apprenticeship in wood machinery and cabinet making and this is also to your credit. In November 2006, you suffered a workplace injury which resulted in the loss of half of your right index finger. This had a profound impact on your life. Various reports, dated 2009 and 2010 from Mary Fitzgerald, psychologist, confirm that as well as well as your physical injury, you suffered
a psychological injury, which she diagnosed as an Adjustment Disorder with Mixed Anxiety and Depressed Mood. I was told that you were on WorkCover for a period of four years. You have not had any significant periods of employment since that accident in November 2006.
9 After your workplace injury, you started to use alcohol and then drugs. Your use of drugs became problematic. This is confirmed by your criminal history.
10
Dr Aaron Cunningham, a Forensic Psychologist who assessed you, opines that you currently suffer from a major depressive disorder and post-traumatic stress disorder. He states that there is not a clear connection between your disorders and the offending. He says that whilst your drug abuse and anti-social peers present “as the main contributors” to your
anti-social behaviour, your depression and trauma help explain this
self-destructive behaviour.
11 I now move to matters in mitigation.
12 You have pleaded guilty to the offences. Your plea is an acceptance of responsibility. It has also meant that the victim has not had to suffer the trauma associated with giving evidence in a criminal trial and it has saved the community the cost and expense associated with such a trial. You will be given credit for all these matters.
13
You have been on remand for these offences since 30 May 2017. This is
a total of 317 days and this time will be recognised as pre-sentence detention. In addition, you spent 87 days on remand from 22 November 2016 to
17 February 2017 for alleged offending that was subsequently withdrawn.
I take this period into account in a general way in determining your sentence. It has had the effect of reducing the sentence I would have otherwise imposed.
14
I am guarded about your prospects for rehabilitation. I will explain why. You have been abusing drugs in a destructive way for many years and attempts to support you in the community have failed to break this behaviour. I was told that you are to appear for sentence at the Sunshine Magistrates' Court on
10 May 2018, in relation to offences that occurred in April 2015, May 2016 and August 2016. The offences in May 2016 breached a community corrections order. You have subsequently had periods on remand, followed by periods on bail. You failed to comply with bail orders. You were most recently bailed on 22 May 2017. Within days you had committed the offences on the current indictment. You failed to comply with conditions of bail that required you not to drive a motor vehicle. In doing so, you also committed two offences of drive whilst disqualified. You also failed to comply with curfew conditions of bail. This pattern of treating court orders with disdain has been
a feature of your behaviour over the past two years and it has happened, even though your mother and your siblings have offered you their support.
15 Mr Atar, I should say this. It cannot have been easy for your mother coming to Australia and raising eight children on her own. Your inability to stop the drug use and stop the criminal offending must break her heart.
16 I am told that you are not an Australian citizen. The prosecutor conceded that, should you be given a sentence of more than 12 months' imprisonment, there was a real likelihood that you would be deported. In these circumstances, I take into account the fact that the burden of imprisonment will be greater for you than it would be for someone who did not face the prospect of deportation. I also take into account the hardship that would flow from you losing the opportunity of settling permanently in Australia. In this regard, it is significant that you have not lived in Sudan since you were four years old; that you have lived in Australia for 19 years; and that all your family are in Australia. Your sentence will be moderated for these reasons.
17 Finally, in sentencing you, I take account of the principle of totality. In other words, I must ensure that the total effective sentence I impose is just and proportionate to the totality of your offending.
18 Mr Atar, will you stand please.
19 You will be sentenced to the following periods of imprisonment:
20 On the charge of intentionally cause injury, 21 months' imprisonment.
21 On the charge of theft, 12 months' imprisonment. Three months of this sentence to be served cumulatively upon the sentence imposed on Charge 1.
22
On each of the summary offences, you are sentenced to be imprisoned for
a period of one month. The periods to be concurrent with each other and concurrent upon the sentences imposed on the two charges on the indictment.
23
This makes a total effective sentence of 24 months' imprisonment. I fix
a minimum term of 16 months before you will be eligible for release on parole.
24 I declare 317 days served by way of pre-sentence detention.
25
Had you pleaded not guilty to these matters and been found guilty after trial,
I would have sentenced you to a total effective sentence of 36 months' imprisonment, with a minimum term of 24 months before you would be eligible for release on parole.
26 You can be seated there for the moment.
27 Are there any other matters?
28 COUNSEL: No, Your Honour.
29 HIS HONOUR: Mr Atar can be removed, thank you.
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