R v Elhaj
[2018] VCC 856
•8 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-01231
AP-18-0510
AP-18-0511
| THE QUEEN |
| v |
| NAJAT ELHAJ |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 22 May 2018 | |
DATE OF SENTENCE: | 8 June 2018 | |
CASE MAY BE CITED AS: | R v Elhaj | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 856 | |
REASONS FOR SENTENCE
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Catchwords: Sentence –
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M Latham | Office of Public Prosecutions |
| For the Accused | Ms O Thompson | VLA |
HIS HONOUR:
Introduction
1 Ms Elhaj, you now fall to be sentenced for one charge of contravention of a community correction order and to be re-sentenced for the offences for which you were originally placed on that order by this Court on 18 July 2017. The order was part of a combination sentence imposed for one charge of armed robbery and two charges of theft of a motor vehicle. That offending occurred on 27 December 2015.
2 In addition, you fall to be sentenced in respect of a large number of other offences for which you were originally sentenced in the Melbourne Magistrates’ Court on 6 March 2018. You have appealed those sentences by way of two appeal notices numbered AP-18-0510 and AP-18-0511, respectively.
3 I will outline the relevant circumstances of the contravention of community correction order charge first and then turn to consider the matters the subject of your appeals against sentence.
Contravention of CCO imposed on 18 July 2017
4 On 18 July 2017, following a plea hearing, this Court convicted you of one charge of armed robbery and two charges of theft of a motor vehicle. For those offences, you were sentenced to a combination sentence as follows. The custodial component involved a sentence of 230 days’ imprisonment. You had already served 250 days in custody by way of pre-sentence detention, which was formally declared at the time you were sentenced. You were also placed on a suitably conditioned community correction order for 2 years which was to commence on your release from custody immediately following the sentence hearing. You were warned very clearly as to the potential consequences for you if you went on to breach the order in any way.
5 As the charge and summons and the contravention report of 12 February 2018 make clear, you have breached the order in the following terms:
· By failing to undergo treatment and rehabilitation as required on 4, 16 and 18 October 2017;
· By failing to attend for supervision and monitoring on 14 and 31 August, 7, 27 and 31 September and 1, 10 and 15 November 2017; and
· By committing a number of further offences on 20 and 21 November 2017, to which I will refer later.
6 In the contravention report, the authors note, inter alia, that you struggled to maintain your commitment to the supervision condition and were cautious of professionals. You were candid as to your drug use and acknowledged your increased risk of offending while using methylamphetamine and alcohol. You were unperturbed by your continuing daily use of cannabis. Part of your unwillingness to pursue a mental health care plan was the shame that you felt in relation to your offending. You were uninterested in engaging in offender behaviour programs as you believed that such treatment was unnecessary given you had already made decisions to change your behaviours with the support of monitoring from other services. Your ability to engage in the various conditions, including judicial monitoring was curtailed by your arrest and remand for the subsequent offending in November of 2017. In the short space of time between being placed on the order and that remand, a period of 4 months or so, you managed to accrue a significant number of unacceptable absences. While you attended six supervision appointments, you did not engage in the Court ordered treatment and rehabilitation conditions.
7 Also of note is the fact that you believed you were harshly dealt with for the offending for which you received this combination sentence, you struggled to engage in consequential thinking and you demonstrated a high sense of entitlement.
8 It is unsurprising that the authors of the report recommend cancellation of the community correction order and a re-sentencing on the original charges.
Circumstances of the offences for which CCO was imposed
9 I do not propose to canvass the circumstances of the offending for which you received the combination sentence on 18 July 2017. They are fully set out in my revised sentencing reasons of that date. That offending was clearly serious, especially the offence of armed robbery which was carried out against a vulnerable female victim, in company, and in frightening circumstances.
County Court Appeal AP-18-0510
10 In respect of the appeal numbered AP-18-0510, you fall to be sentenced in respect of the following offences.
11 Charge 1 involves an offence of theft of a motor vehicle and carries a maximum penalty of ten years’ imprisonment.
12 Charge 2 relates to an offence of reckless conduct endanger serious injury and carries a maximum penalty of 5 years’ imprisonment.
13 Charge 4 relates to an offence of trafficking in the drug cannabis and carries a maximum penalty of 15 years’ imprisonment.
14 Charge 5 relates to an offence of unlicensed driving and carries a maximum penalty of 3 months’ imprisonment or 25 penalty units.
15 Charge 6 relates to an offence of fail to stop vehicle on police direction and carries a maximum penalty of 6 months’ imprisonment or 60 penalty units.
16 Charge 7 relates to an offence of exceeding a 40 km/h speed sign and carries a maximum penalty of 10 penalty units.
17 Charge 8 relates to an offence of deal with property suspected of being proceeds of crime and carries a maximum penalty of 2 years’ imprisonment.
18 Charge 10 relates to an offence of resist a police officer and carries a maximum penalty of 6 months’ imprisonment or 60 penalty units.
19 Charge 11 relates to an offence of failing to obey a stop sign located at an intersection controlled by traffic lights and carries a maximum penalty of 10 penalty units.
20 Charge 12 relates to an offence of failing to obey a red light signal and carries a maximum penalty of 10 penalty units.
21 Charge 13 relates to an offence of turning left without appropriately signalling such change of direction and carries a maximum penalty of 3 penalty units.
22 The offence alleged in charge 1 was committed on 20 November 2017.
23 The offences alleged in the remaining charges were all committed on 21 November 2017.
24 I note that under the relevant legislation, a County Court judge hearing an appeal against sentence, cannot impose a custodial sentence greater than 2 years for any individual offence or a custodial sentence exceeding 5 years for any combination of offences.[1]
[1] As to which, see sections 113, 113A and 113B of the Sentencing Act 1991.
25 The circumstances in which you committed the offences the subject of this appeal notice are contained in the relevant police summaries which were admitted by you as accurately reflecting what occurred. It is unnecessary for me to recite those circumstances in such detail now. The following outline will suffice.
26 Late in the evening of 20 November 2017, a Ford Focus sedan was stolen from outside a residential address in Brunswick.
27 At approximately 9.00am on the following morning, police observed you driving that stolen vehicle in Rathdowne Street, Carlton. You had a male passenger. Your alleged speed was 58 km/h in a 40 zone. You were seen to travel through a stop sign and red light at an intersection without stopping. You continued driving and failed to signal when changing lanes. When you were stopped in traffic, police requested you to wind down your window. You refused and instead, reversed the vehicle into the police vehicle parked behind yours. You then drove the vehicle backwards and forwards multiple times, ramming vehicles and causing extensive damage in an attempt to evade police. In doing so, you narrowly missed police standing around the vehicle.
28 In the end, police smashed the driver’s side window and grabbed the keys of the vehicle you were driving. Police had to resort to force to get you out of the vehicle. Once out of the vehicle, you resisted police attempts to handcuff you. Ultimately, you were placed under arrest and taken to the Melbourne West police station. A search of your handbag located a passport in the name of Peter Greco.
29 I note that you have never held a Victorian drivers licence.
30 When interviewed, you told police that you had purchased the vehicle you were driving from a woman at about 6.00am by paying her with cannabis. You said you did so even though you believed it may have been stolen. You admitted to the driving episode involving police and to being in possession of the passport.
31 I note that this offending occurred while you were on a community correction order which was imposed, for multiple offences, at the Melbourne Magistrates’ Court on 11 October 2017.
32 I note that when you were sentenced for these offences in the Melbourne Magistrates’ Court on 6 March 2018, you received an effective 9 month sentence of imprisonment and an aggregate fine of $850. Any licences held by you were cancelled and a disqualification period of 12 months was ordered.
County Court Appeal AP-18-0511
33 In respect of the appeal numbered AP-17-3301, you fall to be sentenced in respect of the following offences.
34 Charge 18 alleges an offence of contravene a community correction order, namely the one on which you were placed on 11 October 2017. The basis and circumstances of the breach are set out in the charge and summons and in the contravention report dated 12 February 2018. In summary, you failed to comply with the requirements of that order as follows:
· By failing to report within 2 days of being placed on the order;
· By failing to attend for supervision on 31 October and 1, 10 and 15 November 2017;
· By failing to undergo treatment and rehabilitation as required on 16 and 18 October 2017; and
· By re-offending as you did in November 2017;
35 When you did ultimately attend for the first time at the community corrections centre on 17 October 2017, you complained about the harshness of the penalty and minimised your offending. You attended no supervision appointments after that date.
36 You attended a single counselling session in relation to drug dependency, on 25 October. You engaged well but expressed concern about confidentiality and privacy issues. At that appointment, you indicated you saw no problem with engaging in daily cannabis use. You had earlier failed to attend for random drug testing on 18 October.
37 You failed to engage in the mental health treatment condition of the order.
38 You were on a wait list for the offender behaviour program of the order when breached.
39 Unsurprisingly, the authors of the contravention report considered you a high risk of general offending and recommended cancelling the order and re-sentencing you for the original offences.
40 As can be readily appreciated from that overview, your non-compliance with the order commenced very early and continued up until you were breached.
41 In my view, this community correction order should be cancelled and you should be re-sentenced for the offences for which you were originally placed on that order. Those offences are as follows.
42 Charge 1 relates to an offence of theft from shop committed on 8 November 2015.
43 Charge 2 relates to an offence of negligently deal with proceeds of crime committed on 17 March 2017. It carries a maximum penalty of 5 years’ imprisonment.
44 Charge 3 relates to an offence of resist emergency worker on duty and was also committed on 17 March 2017. It also carries a maximum penalty of five years’ imprisonment.
45 Charges 4 and 5 involve two other offences of theft from a shop, this time committed on 15 and 14 February 2017, respectively.
46 Charge 6 relates to an offence of theft of a motor vehicle committed on 12 December 2016.
47 Charge 7 relates to an offence of reputed thief loiter in a public place also committed on 8 November 2015. It carries a maximum penalty of 2 years’ imprisonment.
48 Charge 8 relates to an offence of theft committed on 6 May 2015.
49 Charge 12 relates to an offence of theft of a motor vehicle.
50 Charge 13 relates to an offence of learner driver driving without experienced driver present. It carries a maximum penalty of 20 penalty units.
51 Charge 14 relates to an offence of commit indictable offence whilst on bail. It carries a maximum penalty of 3 months’ imprisonment or 30 penalty units.
52 I note that the offences alleged in charges 12, 13 and 14 were all committed on 13 January 2017.
53 Charge 15 relates to an offence of theft committed on 24 September 2016.
54 And, finally, charge 16 relates to an offence of trespass committed on the same date and attracts a maximum penalty of 6 months’ imprisonment or 25 penalty units.
55 I note that the maximum penalty of ten years’ imprisonment applies to each of the offences alleged in charges 1, 4, 5, 6, 8, 12 and 15.
56 The circumstances in which you committed those offences are contained in the relevant police summaries from the police informants Dienjes, Maguire, Price, Shahpoor, and Stutterd. Those circumstances can be very briefly summarised as follows.
57 On 8 November 2015, you stole a number of shirts from the Dangerfield store in Fitzroy, valued at $298. You were later identified from in-store CCTV footage.
58 On 14 February 2017, you and an unknown male stole a quantity of liquor from a Dan Murphy’s store in Essendon, valued at $1,126.
59 On 15 February 2017, you and two unknown males stole a quantity of liquor from a different wine store, valued at $824. When interviewed, you denied offending as alleged.
60 On 17 March 2017, police attempted to arrest and handcuff you at Punter’s Palace in Collingwood. You resisted their efforts by thrashing and later, by refusing to move. They ultimately succeeded in placing you in a police divisional van. Again, you denied offending when interviewed by police.
61 On 12 December 2016, you drove a stolen vehicle to a service station and attempted to fill the vehicle with petrol. An alert attendant recognised you and took steps to prevent you from doing so. You remonstrated with the attendant before driving off at a fast rate of speed. Your actions were captured by CCTV cameras. The stolen vehicle was recovered the following day. You were arrested on 17 March 2017 and later interviewed. You denied the allegations. When your property was searched, two credit cards in other people’s names were located. You refused to comment in respect of police questions relating to those cards.
62 At approximately 5.00am on 24 September 2016, you entered a residential dwelling in Ascot Vale via an unlocked front door, together with four unknown males. Your group were confronted by one of the two occupants who had been awoken by the sound of knocking. He was told to ‘shut up’. The second male occupant was then woken by the group who then ransacked his room, taking a set of keys for his vehicle which was parked outside. That vehicle was then stolen, together with a TV. The owner of the vehicle then went in search of it using a taxi. He located it parked outside an address in Fitzroy. Police were called. When they arrived, they observed a female seated in the driver’s seat. A police pursuit commenced but was terminated shortly afterwards. A short time later, they located the abandoned vehicle, which still contained the TV, in Collingwood. On examination, police found your fingerprints on both the vehicle and TV. You were arrested on 18 March 2017, at which time you made a ‘no comment’ interview, as was your legal right.
63 I note that you were sentenced for these offences at the same time as those the subject of the other appeal notice, on 6 March 2018. For these offences, you received an aggregate sentence of 6 months’ imprisonment and a fine of $150. No cancelation and disqualification order as to your licence appears to have been made.
Global sentence imposed on 6 March 2018
64 When viewed globally, it appears that you were sentenced in the Melbourne Magistrates’ Court on 6 March 2018 to a total effective sentence of 15 months’ imprisonment for which a non-parole period of 9 months was fixed.
65 On that date, a period of 106 days pre-sentence was declared as having already been served in respect of that sentence. You have remained in custody since that date, which amounts to a further period of 93 days pre-sentence detention, not including today’s date. As such, the total period of pre-sentence detention to date for the offences for which you were originally remanded on 21 November last year, is 199 days.
Total period of pre-sentence detention
66 When regard is had to the 250 days pre-sentence detention that was declared at the time this Court sentenced you on 18 July 2017, the total period of pre-sentence detention to be declared in this case today is 449 days, not including today’s date.
Personal Circumstances
67 I do not propose to describe Ms Elhaj’s personal circumstances now. Again, they were fully canvassed by me when I sentenced her last year. On any view, she experienced an extremely difficult upbringing and a horrifying acid attack when she was a young girl. She has been dislocated from her country of birth and has, unsurprisingly struggled with alcohol abuse and drug use from an early age.
68 Her counsel in these proceedings addressed the Court further as to her personal circumstances and offending. I have had regard to the matters urged on her behalf.
69 Clearly, Ms Elhaj is yet to grapple with the complex issues which underlie her resort to alcohol and drugs and the criminal behaviour that results.
70 But, she is still a relatively young woman who has not yet become entrenched in a criminal lifestyle. There is still time to turn things around if that is what she truly wants to do. I accept that she does have some motivation in that regard, but I do not underestimate the difficulty of the task that confronts her. Clearly, her prospects of rehabilitation are not as favourable as when I assessed them in July of last year.[2] I would currently describe them as fair.
Prior Criminal History
[2] They were found to be guarded, but ‘moderate to reasonable’.
71 Ms Elhaj had a limited but none the less relevant criminal history when this Court sentenced her last year. That record included offences of dishonesty in various forms, as well as some offences for violence and street related misconduct. Obviously, the offences for which she received the combination sentence from this Court represent prior convictions for some of her later offending.
Pleas of guilty
72 It is to the credit of Ms Elhaj's that she has admitted the contraventions and pleaded guilty to the offences for which she must now be sentenced. She will receive a commensurate discount in her sentence on account off the course that she has taken
73 While she has admitted personal responsibility for her offending, she has also sought to minimise some of it to a degree. That shows a lack of a full appreciation of the gravity of her offending and renders her remorse somewhat qualified in nature.
Gravity of the Offending
74 Of course, I must have regard to the gravity of this offending.
75 Viewed globally, it demonstrates a persistent disregard for the law and the rights and safety of other citizens, including those whose task it is to uphold the law. It also demonstrates a reluctance to take full advantage of the Court initiated opportunities she has been given to address the underlying causes for her offending to date.
Relevant sentencing principles
76 In this case, general and specific deterrence are important sentencing considerations. So too is that of denunciation.
77 Ms Elhaj must be justly punished for her offending which is, on any view, extensive and troubling. She must be punished to an extent and in a manner that is just in all the circumstances. In order to recognise and appropriately weight the relevant sentencing considerations that arise in this case, and notwithstanding the matters in mitigation here present, the punishment must necessarily involve a custodial sentence which will necessitate her spending some further time in custody.
78 As the various offences demonstrate, there is, to some extent, also a need to protect the community from Ms Elhaj. She has a proven capacity, particularly in the context of her drug addiction and alcohol abuse, to commit serious offences against innocent and vulnerable members of the community.
79 Totality considerations also arise for consideration in this sentencing exercise. Whilst Ms Elhaj faces sentencing for a number of separate offending episodes, encompassing multiple victims, some of that offending is compressed in time and has some overlapping factual features in the offences charged. Care must obviously be taken so as to ensure that the total punishment imposed on her is commensurate with her total level of criminality, no more and no less.
80 Of course, this Court must also have regard to her age and prospects of rehabilitation.
Sentencing submissions
81 In a realistic submission on sentence, defence counsel ultimately submitted that any sentence imposed on Ms Elhaj should allow for a relatively lengthy and targeted period of supervised release on parole so as to give her the opportunity to receive the assistance that she clearly needs.
82 For their part, the prosecution submitted that nothing short of a sentence comprising a head sentence and non-parole period would be sufficient to adequately reflect the nature and seriousness of this offending.
Analysis
83 For the reasons that I have already endeavoured to make clear, this offending must be viewed as serious. It warrants a relatively significant custodial sentence. To do otherwise would fail to adequately reflect the importance of a number of sentencing considerations and provide an inadequate and unjust measure of punishment for that offending.
Sentence
84 I have had regard to the nature and extent to which Ms Elhaj complied with the conditions of her community correction orders in fixing the appropriate sentences.
85 After balancing and weighing the various sentencing considerations as best I can, I have decided to sentence Ms Elhaj as follows. I will have those documents now provided to counsel.
86 I find the breach of the community correction order imposed on 18 July 2017 proven and the order is hereby cancelled.
87 In respect of the charge of having contravened that community correction order, Ms Elhaj is convicted and sentenced to 21 days’ imprisonment.
88 Ms Elhaj is re-sentenced[3] for the three offences for which she was originally placed on that order as part of a combination sentence, to an aggregate sentence of 900 days’ imprisonment.
[3] See Luu v The Queen [2018] VSCA 92, [23] (The Court).
89 As for the first appeal against sentence, AP-18-0510, I formally set aside the orders made by the Magistrate on 6 March 2018 and find the charges proven. For those offences, I impose the following sentences of imprisonment.
90 Charge 1, theft of a motor vehicle, 30 days.
91 Charge 2, reckless conduct endanger serious injury, 180 days.
92 Charge 4, trafficking in the drug cannabis, 60 days.
93 Charge 5, unlicensed driving, a fine of $500 with conviction.
94 Charge 6, fail to stop vehicle on police direction, 7 days’ imprisonment.
95 Charge 7, exceeding a 40 km/h speed sign, a fine of $250 with conviction.
96 Charge 8, deal with property suspected of being proceeds of crime, 14 days’ imprisonment.
97 Charge 10, resist a police officer, 21 days’ imprisonment.
98 Charge 11, failing to obey a stop sign located at an intersection, a fine of $250 with conviction.
99 Charge 12, fail to obey a red light signal, a fine of $250 with conviction.
100 Charge 13, turning left without appropriately signalling such change of direction, a fine of $100 with conviction.
101 As for the second appeal against sentence, AP-18-0511, I also formally set aside the orders made by the Magistrate on 6 March 2018 and find the charges proven.
102 I find the charge of contravention of community correction order (charge 18) proven. That community correction order is cancelled. For the contravention offence, Ms Elhaj will be sentenced to a term of 30 days' imprisonment.
103 In respect of the original offences for which she was placed on that community correction order, she will be re-sentenced as follows.
104 Charge 1, theft from shop, 14 days’ imprisonment.
105 Charge 2, negligently deal with proceeds of crime, 7 days’ imprisonment.
106 Charge 3, resist emergency worker on duty, 60 days’ imprisonment.
107 Charges 4, theft from shop, 14 days’ imprisonment.
108 Charge 5, theft from shop, 14 days’ imprisonment.
109 Charge 6, theft of a motor vehicle, 30 days’ imprisonment.
110 Charge 7, reputed thief loiter in a public place, 7 days’ imprisonment.
111 Charge 8, theft, 14 days’ imprisonment.
112 Charge 12, theft of a motor vehicle, 30 days’ imprisonment.
113 Charge 13, learner driver without experienced driver present, a fine of $250 with conviction.
114 Charge 14, commit indictable offence whilst on bail, 7 days’ imprisonment.
115 Charge 15, theft, 14 days’ imprisonment.
116 Charge 16, trespass, 90 days’ imprisonment.
117 The sentence of 900 days’ imprisonment imposed for the original offences of armed robbery and theft of motor vehicle (x2) will be the base sentence.
118 I make orders as to cumulation as follows. The following periods are to be served cumulatively on that base sentence and on each other.
119 In relation to the first appeal against sentence, AP-18-0510:
120 Charge 1, theft of a motor vehicle, 7 days.
121 Charge 2, reckless conduct endanger serious injury, 60 days.
122 Charge 10, resist a police officer, 7 days.
123 In relation to the second appeal against sentence, AP-18-0511
124 Charge 18, contravention of a community correction order, 21 days.
125 Charge 3, resist emergency worker on duty, 20 days.
126 Charge 6, theft of a motor vehicle, 14 days.
127 Charge 12, theft of a motor vehicle, 14 days.
128 Charge 16, trespass, 45 days.
129 After allowing for those cumulation orders, the total effective sentence is 1088 days, or just over 3 years and 2 months.
130 In respect of that head sentence, I fix a non-parole period of 18 months (which equates to approximately 540 days).
Pre-Sentence Detention
131 Pursuant to s.18(1) of the Sentencing Act, I declare that Ms Elhaj has already served a total period of 449 days pre-sentence detention, not including today's date, in respect of this sentence, and I further order that such declaration and its details be entered in the records of this court.
Section 6 AAA Indication
132 Pursuant to s.6AAA of the Sentencing Act, I indicate that but for Ms Elhaj's pleas of guilty to the offences for which she has been sentenced to imprisonment by me today, I would have sentenced her to a total effective sentence of 4 ½ years and fixed a non-parole period of 2 ½ years.
Orders as to Licence Cancellation and Disqualification
133 As Ms Elhaj has been convicted of a number of charges of theft of a motor vehicle, this Court must cancel any driving licences and permits held by her and disqualify her from obtaining any others for a period that it considers appropriate.[4]
[4] See section 89(4) of the Sentencing Act 1991.
134 In respect of any other offence, this Court has a discretion as to whether to make such an order and, if so, as to the period.[5] In my view, it is appropriate to do so in relation to the charge of reckless conduct endanger serious injury.
[5] As to which, see section 89A of the Sentencing Act 1991.
135 Accordingly, in respect of each of those charges, I order that any driving licences or permits held by Ms Elhaj are cancelled and that she is disqualified from obtaining any other licences or permits for a period of 18 months.
136 Those periods are to commence on the day on which Ms Elhaj is released from custody in respect of this sentence, whether on parole or at the expiration of her sentence, and are to run concurrently. Thus, the practical effect of these orders is that she will not be permitted to drive or obtain any driving licence or permit for a period of 18 months following her release from custody.
137 Of course, she will not be lawfully permitted to drive even after that period expires until such time as she obtains a driving licence or permit which authorises her to do so.
138 Counsel, what I will do at this stage, just leave the Bench briefly and allow you to check the sentences I have imposed. I have done so by reference to days rather than months, so it takes a bit more analysis perhaps than what would otherwise be the case. There is a calculator present in court if you need to use it. Just let my associate know when you are ready. Thank you.
139 (Short adjournment.)
140 HIS HONOUR: Yes, counsel has the opportunity to check all of that?
141 MS THOMPSON: Yes.
142 MR LATHAM: Yes, Your Honour.
143 MS THOMPSON: Looks to be in order, Your Honour.
144 HIS HONOUR: Is there any problem with any of it?
145 COUNSEL: No, Your Honour.
146 HIS HONOUR: No? All right. Anything else either counsel wishes to raise at this stage?
147 MR LATHAM: Your Honour, I foreshadowed last time before you in this matter that we would seek a forensic sample order and the accused indicated that she believed she had already had one in the past.
148 HIS HONOUR: Yes.
149 MR LATHAM: In the interim, between when we were last here and today, I have the extract of Your Honour's orders made last year. I have combed through all the other orders and my friend has seen them as well. There is no record of a forensic sample order having been made in the past. So on that basis, I would make the application. I have got some copies of the form to hand up to Your Honour.
150 HIS HONOUR: What do you say about that?
151 MS THOMPSON: Your Honour, my instructions that it is not opposed.
152 HIS HONOUR: Yes, all right. Well do you have a copy of the order?
153 MR LATHAM: Yes, I have four copies here, Your Honour.
154 HIS HONOUR: Yes. Well I am prepared to make the order in the terms proposed and I do so because the seriousness of the circumstances of the offending warrant the order, the prior convictions of the respondent are such as to warrant the making of the order, the order is not opposed and the granting of the order is in the public interest.
155 Ms Elhaj, I must tell you that if at the time you are requested to provide this forensic sample, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. You understand that?
156 OFFENDER: Yep.
157 HIS HONOUR: I will hand those orders back to you, Mr Prosecutor. They should be completed in terms of what can be inserted in the blank spaces. Once that is done, I will sign it.
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