Director of Public Prosecutions (Cth) v Whittle
[2022] VCC 2297
•12 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-17-02357
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| WHITTLE, NATHAN |
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JUDGE: | HER HONOUR DEPUTY CHIEF JUDGE M. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 December 2022 | |
DATE OF SENTENCE: | 12 December 2022 | |
CASE MAY BE CITED AS: | DPP (Cth) v Whittle | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2297 | |
REASONS FOR SENTENCE
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Catchwords: Contravention of Community Correction Order
Sentence: Community Correction Order for 18 months on original charges and $300 fine on the contravention charge.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Addams | CDPP |
| For the Accused | Mr K. Reynolds | James Dowsley and Associates |
HER HONOUR:
1
Mr Whittle, I am just going to go through a few things that I need to go through. First of all is to indicate that this morning you pleaded guilty through your lawyer to the charge of contravention of the community correction order. I take your plea into account. I note that this is the second time you have breached the
community correction order which I first placed you on in November 2018. The first breach was heard in March of 2020 and I at that point again ordered you to complete a two-year community correction order which was the part of the first order, in combination with some imprisonment.
2 The basis for the non‑compliance this time began immediately after your release from custody, in September 2020. In October 2020 you failed to attend for supervision and treatment. Ultimately, between October 2020 and October 2021, there were 19 occasions you did not attend for supervision and, in combination, nine occasions in which you did not attend for treatment and rehabilitation at the mental health assessment or the offending behaviour program, and you failed to attend to see me on a judicial monitoring hearing on one occasion.
3 You started off well in the first three months of that order, I have to say. Then you had the first of many transfers to different Community Correction Services because you moved houses. You did complete the Links Program in 2020 and you began the Better Lives Program and did eight sessions of that before things went downhill.
4 After a break of about two months after that initial three months you re‑engaged in February 2021, but then at one point - in fact, most of the time of this period after the beginning of 2021 you were living at your mother's in Frankston and you transferred to the different Community Correction Services as I have said, but living at your mother's was, as we all know, not ideal. Your engagement went down at that point and Mr Reynolds has put in his written submissions all the reasons why that was not the right place for you, but I can understand it was still better than being on the streets, to have a roof over your head, perhaps only marginally though given all of the bad influences.
5 So just confirming that the other aspects were that there was no mental health care plan produced at that time and there was a bit of toing and froing about whether you needed one, and you did not attend for the drug treatment and rehabilitation at two different places and the service was discontinued.
6 I need to put, of course, all of that in the context of COVID. You were in prison during COVID and then you were released during COVID and attempting many of these programs online, which I know is not ideal. However, things have improved, with you making a number of changes for yourself. You moved out into what is now stable housing and you had employment and you now have new employment. The report that I received this afternoon shows that you have voluntarily decreased your drug use and, seemingly, you also are now on prescribed medication for your mental health, which is also a positive step forward.
7 There is a clear incentive, of course, for you to get your life in order and that is the hope to gain access to your now five children with three partners, although two of them now live interstate. Your current partner of two years - is with you here in court this afternoon and together you have a boy aged about five months. Because of your situation, he is living with his aunt, and his mother has to attend there every day to care for him. That shows strong commitment to her relationship with you, but also strong incentive as I said, for you at least in respect of Mahana, as well as the other children, to do what you can to make some changes that might enable you to gain some sort of access.
8
So obviously being drug free, having your mental health stable and completing the Better Lives program, which you have acknowledged you want to do, will increase your chances of being able to take some steps towards seeing your children, together, of course, with stable housing, stable relationship and
full-time employment. The report writer also most helpfully says that
there could be a combined approach between Corrections and the
Department of Fairness, Families and Housing. This is an excellent suggestion. I cannot promise that that is what is going to happen, but it is something that I endorse with my full judicial support.
9 So, Mr Whittle, I am going to give you another chance. There are lots of things going your way for a change, but the responsibility is still with you. That is, doing the right things, complying with the community correction order and then getting on with your life. You are 28 now?
10 OFFENDER: Twenty six, Your Honour.
11 HER HONOUR: You were 20 when you committed these offences.
12 OFFENDER: Yes.
13 HER HONOUR: So you really want to get this out of your life.
14 OFFENDER: Yes, please.
15 HER HONOUR: I have previously outlined your background and, in particular, your childhood and I will not go through all of that again, other than to indicate that I still accept those disadvantages in your childhood and upbringing that continue to make your life difficult. The Court understand, and I in particular understand, from the research that those things can have an impact throughout your life. So it is not easy, but at least if you recognise that there are these things that you need to work on in order to say, 'That is not going to define me for the rest of my life what happened to me as a child'. Not easy, but there is assistance available.
16 You have done prison time for the offending that I first sentenced you for. So, as things currently stand, this part of the sentence is about your rehabilitation, getting you to a better life, because that will not only help you, but it will protect the community if you do not commit further offences and that is, of course, a better life for you, for your partner and for your children. So it is up to you, but you do have a lot of assistance available, make use of it.
17 OFFENDER: Of course.
18 HER HONOUR: There is no problem so great that it is not going to get worse by not sharing it. So if a blip appears on the horizon tell your corrections officer. They will always look at other options to avoid that blip getting closer and closer and not being on the horizon, but right in front of your face. So I have indicated what I am going to do. I now need to structure that proposal into a community correction order for 18 months. Just pausing for a moment with speaking to you, Mr Whittle.
19 Because the previous order had expired I think I have to make just a new order commencing from today.
20 MS ADDAMS: That's right, Your Honour.
21 MR REYNOLDS: Yes.
22
HER HONOUR: Yes. All right. So I will order that on Charges 4 and 5
the - Mr Whittle be convicted and released on a community correction order for 18 months on the core conditions and on the conditions as previously. That is, of treatment and rehabilitation, being both drug and alcohol, mental health and programs to reduce reoffending. There will also be supervision and I will set a date in a minute for you to come back and see me and let me know how you are getting on, which is, as you know, called judicial monitoring.
23 Just going to what I said right at the end, Mr Whittle, it is called supervision, which sounds a bit like, the all seeing eye looking over you, but that is just what it is called. But, as I have said, it is actually a port of call for you to go if you need assistance. Corrections have so many people that they can go to, to point you back on the right path if you are starting to look like you are going to fall off the order. So please do yourself a favour and always let them know if there is something coming up that is a problem.
24 OFFENDER: Of course.
25
HER HONOUR: Now, as always, I cannot release you on a
community correction order with those conditions unless you agree to it. So do you agree to being released onto an order with the same conditions as you had before?
26 OFFENDER: Yes, I do, Your Honour.
27 HER HONOUR: All right. That will be to the Melbourne Justice Service Centre. So that is in Franklin Street, Melbourne. That is the closest one to where you are living. So that will be within two working days of today.
28 OFFENDER: Yes.
29 HER HONOUR: Now, I know you have got full-time employment, but what is the first thing you are going to do within the next two days?
30 OFFENDER: Go straight to Corrections.
31 HER HONOUR: Thank you.
32 OFFENDER: If it's open when we're finished here I'm going to go there now.
33 HER HONOUR: Well, by the time we finish here they might be closed, but you need to do it before 4 pm on Wednesday.
34 OFFENDER: Of course.
35 HER HONOUR: Now, that is for 18 months, as has been suggested by Corrections but also that was contemplated this morning by counsel's submissions, but it seems to me that if you get everything going you can complete the order. Now, in terms of the contravention, I sentenced you to a month's imprisonment on the last occasion. This form of contravention, what you did to breach the order, is not as serious and I take into account what you did do when you were able to so - and also the fact that it was all during COVID. So I will this time impose a fine for the contravention.
36 You will be convicted and fined $300 and that is something that will be worked out through Funds Victoria as to you being able to pay it off in instalments if you wish to do so. They will be in touch with you.
37 Now, any other orders required, Ms Addams?
38 MS ADDAMS: No, Your Honour.
39 HER HONOUR: All right. So Mr Whittle, in terms of the judicial monitoring day, I want to give you a chance to get going on this so - things are usually quiet, of course, over the Christmas and January period and so you probably really will not get into it until February. So I am thinking that perhaps I will have you come back and see me at the beginning of March. I am hoping that that will be a conversation where I can congratulate you on the work you have done so far and encourage you to keep on the good path. If it is not, as Mr Reynolds puts it, will be a wake-up call. I would call it a rocket I will be giving you if you have not done what you are supposed to be doing. So do you understand that?
40 OFFENDER: Yes, I do, Your Honour.
41 HER HONOUR: All right. So is there a particular day that would be more suitable for you to come in and see me? It would be 9 o'clock or 9.30, whatever suited you.
42 OFFENDER: Whenever the courts are suited, Your Honour.
43 HER HONOUR: Would it be preferable though - I should have asked you this, would you prefer the end of the day? You have an early working hour and an early finish?
44 OFFENDER: I start at 7.30 and finish at 4, but I can finish a little bit earlier so I can come into court.
45 HER HONOUR: All right. Well, let us make it in the afternoon then so that you do not have as much of a disrupted day. Whereabouts are you working, what suburb?
46 OFFENDER: Kensington.
47 HER HONOUR: I see. So that is not too bad. So if I said 4.30 you are not going to miss much work time if any.
48 OFFENDER: No, of course not. I'll have - - -
49 HER HONOUR: All right. Let us say 4.30 on 8 March. And if there is any problem, any reason why you may not be able to attend that, then - you, I think, were given some details about how to contact the court on a previous occasion. So just let the court know and we will see what we can do about rearranging it.
50 OFFENDER: Of course.
51 HER HONOUR: As I said before, talking about what might be a problem helps. Not talking about it just makes it worse. All right. So I think we can finalise that order now. Yes. All right. Mr Whittle, you can come out of the dock now and sit next to Mr Reynolds. And I am going to ask you that - if you still agree to the conditions of the order. Any issues or - - -
52 MR REYNOLDS: No. It was just in regard to an old filing, Your Honour.
53 HER HONOUR: All right. Yes. So, Mr Whittle, I should have asked you if you had any other questions about this order.
54 OFFENDER: No, I don't, Your Honour.
55 HER HONOUR: All right. So if you agree then I'll ask you to sign it where indicated and just - yes. Yes, we'll just put your correct new address on there. That's why we're just pausing. Thank you. All right. So we'll have a copy of that made before you leave, Mr Whittle.
56 OFFENDER: Yes.
57 HER HONOUR: Now, you know all of this but I still have to tell you that if you do not complete the order we'll be back here again. And although there are many, many things to take into account in your favour, eventually things - depending on what you do to not complete the order, things may look bad and you're heading towards gaol again. I said to you a number of times now about if there's an issue tell someone about it, but you can vary the order by coming back to court and if I agree that there needs to be some changes - so again just do that if you need to do so. And if you are unwell or some other reason then let people know and with Corrections you need to have documentation to indicate that.
58 OFFENDER: Yes.
59 HER HONOUR: All right. So any other questions or any questions?
60 OFFENDER: No.
61 HER HONOUR: Nothing further from counsel?
62 MS ADDAMS: No, Your Honour.
63 HER HONOUR: All right. Well, thank you once again, as I said, for coming back at this end of the day. And, Mr Whittle, I will see you on 8 March next year and I want to hear a good report.
64 OFFENDER: Okay. You will.
65 HER HONOUR: Yes, thank you. We'll adjourn sine die. Thank you.
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