Two charges of conduct endangering persons - licence suspended for a period of 6 months
Source
Original judgment source is linked above.
Catchwords
Two charges of conduct endangering persons - licence suspended for a period of 6 months
Judgment (8 paragraphs)
[1]
Engin Ofli, on 19 April 24 a jury found you guilty by majority verdict of two charges of conduct endangering persons contrary to s23 of the Crimes Act. The two charges arise from the same incident which occurred on 14 November 2019.
In short, on that day two Hume City Council workers, the victims of the two charges, were tasked with taking photographs of any vehicles parked outside your home of 2 Hakea Place, Meadow Heights. As it happened there were some vehicles parked outside your home on that day, including a caravan parked on the nature strip. The council workers, who were in an unmarked car, drove past your place on a number of occasions to take their photographs and confirm their observations. You saw them taking photographs from within your home, became enraged and decided to chase them in your car. As they were slowly driving away you came up very quickly from behind and pulled alongside them in your car. One of the council workers, Mr Burns, who was driving, described hearing loud revving, like a V8, and you suddenly coming right up beside him forcing him to pull over to the side and come to a stop. He said if he had not done that, you were coming so hard and aggressively towards them that you would have hit their car and that you were clearly trying to push their car over.
You then started yelling at Mr Burns and the other council worker, Mr Eggins, who was in the passenger seat, through your open window, 'What the fuck are you doing taking photographs?'. You continued yelling for a while before the council workers drove slowly away and continued with other duties.
Consistent with the jury verdict I am satisfied that you did drive in the manner described by Mr Burns and Mr Eggins in evidence. It is that conduct which forms the basis of the two charges. By their verdict the jury must have found that that driving created, or possibly created, an appreciable risk of serious injury to each of Mr Burns and Mr Eggins and that you foresaw that risk as a probable consequence of your actions.
Explaining it that way, it is immediately obvious that what you did was serious. If not for the evasive action taken by Mr Burns there may have been a car accident and one or other of the council workers may have suffered serious injury and you may also have been injured.
Fortunately, however, no-one was injured and whilst it must have been scary and unpleasant for the two council workers, who were just doing their job, it does not appear they have suffered any lasting consequences.
A plea on your behalf was conducted before me on the 21 January 2025 at which you were represented by Mr Vuu of counsel. You were not represented by counsel during your trial.
In determining your sentence, the law requires me to have regard to a variety of factors which often pull in different directions. Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
The maximum penalty for your two charges is five years' imprisonment. That maximum penalty is reserved for the worst-case scenario, which yours is not. Indeed, as I have already said, I do not consider the objective gravity of your offending is such as to warrant a term of imprisonment, although it would normally warrant more than a fine. I also note that but for the fact you elected to have these two charges determined by a jury, this matter would have been dealt with in the Magistrates Court.
Anticipating that you would not agree to a community corrections order or participate in an assessment for a Justice plan, Mr Vuu submitted that a financial penalty was appropriate and within range. You are in receipt of a disability pension for mental health reasons, and you own your own home which is not mortgaged. Mr Vuu informed me today that it is possible that there is some sort of claim in relation to your house, but he does not know the details. Nevertheless, you do not expend any money in living at that address. Mr Vuu submitted you do have the capacity to pay from your pension which is about $1,800 a fortnight.
On the plea, the prosecutor, Ms Martin, who was not the trial prosecutor, submitted that any disposition less than a community corrections order would be inadequate given the circumstances of the offending and your lack of remorse. She submitted the court should not be held to ransom by your refusal to co-operate and that a term of imprisonment may be appropriate if you do not consent to a Corrections order.
In the end I decided to take a cautious approach and to explore all options before deciding how to deal with you. Accordingly, I ordered that you be assessed for a Corrections order and investigated your eligibility for a Justice plan. I encouraged you to engage with a Corrections assessor and the Justice plan assessor as they may help you.
Before coming back to what happened during those assessments I will briefly touch on your personal circumstances and some other relevant sentencing considerations.
[2]
Your personal circumstances were outlined in plea submissions that were filed on 20 January 2025 and elaborated upon by Mr Vuu at the plea hearing and also today. They were also outlined in a neuropsychological report prepared by
[3]
Mr Benjamin Leslie dated 7 March 2025.
2. In short, you are now 43 years old. You were born in Melbourne and had three older siblings, one of whom has since died. An older sister has terminal cancer.
3. You did have some difficulties when you were growing up. Your parents separated when you were quite young, and you lived mostly with your mother who you found to be a strict disciplinarian. Your mother now lives overseas, and your father is now deceased.
4. You completed Year 10 at school and were apparently expelled in Year 11.
5. You have not had any employment throughout your life and have survived on a disability support pension for mental health reasons. You have lived mostly an isolated existence, but you have been able to form and maintain a relationship because you married Ms Arslan, from whom you are now separated. Despite your separation, Ms Arslan remains a constant support to you. She supported you throughout your trial before me and she is present in court with you today. Ms Arslan apparently lives in an adjoining premises to yours.
6. You occupy yourself, according to the report of Mr Leslie, by tinkering on gadgets.
7. You have received a number of mental health diagnoses throughout your life, or at least I should say you report that you have received a number of mental health diagnoses, and those diagnoses include bipolar affective disorder, attention deficit hyperactivity disorder, borderline personality disorder, dissocial personality disorder and also dyslexia.
8. Mr Leslie formed the opinion that you have autism spectrum disorder, Level 1, with accompanying mild intellectual impairment. In his opinion that diagnosis more appropriately accounts for any mental health issues that you have experienced, rather than those other reported diagnoses.
[4]
I turn now to current sentencing practices for your offences, as that is something to which I am required to have regard. Current sentencing practices can be gleaned from statistics, meaning statistics as to what sentences are imposed on people who commit your offences, and also from actual sentences imposed in other cases.
I was not referred to any cases or any statistics by either counsel, but I have had regard to the most recent Sentencing Advisory Council statistics of the higher courts and the Magistrates Court in relation to your offences. Suffice to say that in both jurisdictions by far the most common penalty was a term of imprisonment with a Corrections order the next most common.
Statistics are of limited assistance, however, because they do not tell you anything about the circumstances of the case or the circumstances of the offender.
[5]
I am turning now to your character and your risk of re-offending.
You have limited prior convictions, and I do not consider your prior criminal history to be particularly relevant.
Your denial of the offending and the attitude that you displayed at various times during the trial is certainly worrying in terms of your prospects of rehabilitation. However, the fact that you have no prior matters of violence or even of threatening conduct is somewhat reassuring.
All up, considering the age you have reached without having any prior criminal matters of a similar nature, I consider your prospects of rehabilitation to be reasonable, and possibly even good.
[6]
I return now to the reports that I received after the plea hearing.
Mr Leslie's report is one such report, and I have already explained the diagnosis that Mr Leslie reached.
I also received a pre-sentence assessment, and that was in relation to your suitability for a Corrections order. Unfortunately, you were assessed as unsuitable. The reason was that you would not meet the Corrections assessor in person, and that was required to do the assessment, and further, you indicated that you would not be prepared to do a Corrections order in any event, essentially because you were afraid of meeting other people throughout that process who might endanger your life.
I also received a report from the Department of Families, Fairness and Housing which indicated that you were not suitable for a Justice plan, and that was because you had not been diagnosed with an intellectual disability during your developmental period. The author of that report did indicate that she considered your neuro-developmental profile to be consistent with autism spectrum disorder.
Mr Leslie gave an opinion about the likely causal relationship between your autism spectrum disorder and the offences with respect to which he prepared the report, and that was essentially a refusal to undergo an oral fluid test, but he did not consider the relationship between the offending that I am dealing with and your mental health, or your psychological profile.
That said, I am prepared to accept that you have a general level of paranoia and that contributed to the way that you conducted yourself on this day. That paranoia was apparent at various times throughout the trial, as well as in how you conducted yourself with those two council workers.
[7]
Following the assessment from the Department of Justice and Community Safety that you were not suitable for a Corrections order, Ms Martin confirmed the submissions that she made at the plea hearing and that is that the system of justice should not be held to ransom because of your lack of co-operation.
Now, whilst that proposition is undoubtedly correct, in my view it is also correct to say that the objective gravity of your offending is not elevated by your refusal to co-operate with an appropriate sentence such as a Corrections order. In other words, you should not now get a term of imprisonment if it was not warranted in the first place, and in my view, for reasons I have already said, it was not.
I would have liked you to have been on a Corrections order to have some level of supervision over you - but that is not going to happen.
Mr Vuu indicated that because you have now been accepted by the National Disability Insurance Agency, that you will ultimately have an NDIS plan and that I should derive some comfort from that because there will be some sort of ongoing supervision of you.
Ms Martin, on the other hand, submitted that that proposition was speculative, essentially because no matter what the NDIA may do, you may continue to refuse to engage.
I do think that whether you will have supervision in the community is speculative to some degree. However, as I said, given your lack of priors for anything similar, I still consider your prospects of rehabilitation to be reasonable to good and I do not consider that you should receive a term of imprisonment.
I also take into account Mr Leslie's opinion, which, although it was prepared for another matter, is relevant insofar as it concerns the likely effect of a term of imprisonment on you, and that is that you are likely to suffer more than a person without your mental health profile if you were sentenced to a term of imprisonment and also that there is a risk that your psychological health will deteriorate in prison. Even without that opinion, as I said, objectively I do not think your offending warranted a term of imprisonment, as serious as it was.
In all the circumstances I am satisfied that I can sentence you to an appropriate disposition by way of a financial penalty and also with a period of loss of licence. The loss of licence in itself will amount to a form of punishment, especially as it seems that you love your cars, and no doubt want to drive as soon as you can.
Can I just ask, Mr Vuu, is he still suspended or cancelled, or whatever, in relation to that other matter.
MR VUU: I haven't taken updated instructions. He is suspended for four years, he says.
HER HONOUR: I am going to impose an aggregate fine given that the two offences arise from the same circumstances.
[8]
Mr Ofli, just stand up please. I convict and fine you an aggregate of $5,000. I also will suspend your licence under s89A of the Sentencing Act 1991.
On the last occasion Mr Vuu submitted I should keep any period of suspension to the minimum default period of three months, particularly since your licence had already been suspended by the police in relation to your other driving offences which are yet to be determined. He did not urge upon me any particular hardship you will suffer. It appears that you are still subject to a suspension in relation to those other matters. I consider it is appropriate given the dangerousness of your driving to make an order against your licence and to exceed the presumptive minimum of three months. I am suspending your licence for a total of six months which is effective from today.
In relation to the fine, if you do not pay that fine to the registrar of the County Court today, which I imagine you will not, it will be referred to Fines Victoria for recovery.
So, Mr Ofli, do you understand that sentence, it is $5,000 fine plus a suspension of your licence for six months effective from today.
Now, in relation to the forfeiture order, given there is no opposition I will make that forfeiture order.
MR VUU: As the court pleases.
MS MARTIN: As Your Honour pleases.
HER HONOUR: Now is there anything that I have missed.