Director of Public Prosecutions v Ahern
[2014] VCC 849
•5 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-02302
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK AHERN |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 April 2014 | |
DATE OF SENTENCE: | 5 June 2014 | |
CASE MAY BE CITED AS: | DPP v Ahern | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 849 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Robbery – threats to kill – stalking – contravene family violence intervention order – intellectual disability
Legislation Cited: Crimes Act 1958 (Vic) – Family Violence Protection Act 2008 (Vic)
Cases Cited:Verdins [2007] 16 VR 269 – R v Taing [2009] VSCA 8 – Saltalamacchia v R [2010] VSCA 83 – R v Robazzini [2010] VSCA 8 – Arthars v The Queen; Plater v The Queen [2013] VSCA 258 – R v Yaldiz [1998] 2 VR 376
Sentence:3 year Community Corrections Order with conditions
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Churchill | OPP |
| For the Accused | Mr J McQuillan | Tait Lawyers |
HER HONOUR:
1 Mark Ahern, you have pleaded guilty to one count of robbery contrary to s.75 of the Crimes Act 1958 (Vic), one count of stalking contrary to s.21A of the Crimes Act 1958 (Vic) and a rolled up charge of making threats to kill contrary to s.20 of the Crimes Act 1958 (Vic) and the related summary offence of contravening a family violence intervention order contrary to s.123A(2) of the Family Violence Protection Act 2008 (Vic). The maximum penalty for robbery is 15 years’ imprisonment, the maximum penalty for stalking is 10 years’ imprisonment, the maximum penalty for making threats to kill is 10 years’ imprisonment and the maximum penalty for contravening a family violence intervention order is imprisonment of up to 5 years and/or a fine of 600 penalty units. I sentence on the basis of the maximum as set out in the Act and outlined previously.
2 Ms Churchill, for the prosecution, read out a summary of the case that is brought against you that was Exhibit 1. Through your counsel you have admitted the accuracy of that statement and I sentence you on the facts as set out in that document.
3 As referred to below, your counsel tendered a number of documents on the plea. Due to some deficiencies in the report of Mr Healy which was tendered on your behalf, I caused the court to reconvene earlier today to request that a further report be obtained which clearly addresses the Verdins factors which may be enlivened in this case due to your intellectual disability. Mr Healy provided a further report dated 5 June 2014 which I have marked Exhibit B on the plea. In addition, since the plea hearing, I have been supplied with a Statement of Intellectual Disability dated 10 February 2010 from the Department of Human Services. I have also been provided with a Community Correction Order Assessment Outcome Report dated 7 May 2014 to which is attached your consent, dated 4 June 2014, to the making of such an order. Finally, I have received a Client Overview Report and Justice Plan from Emily Piggott dated 2 June 2014. I will refer to these reports below.
4 It is convenient to briefly outline the circumstances surrounding your offending.
5 You and the complainant in this matter, Ms Sherry-Dee MacKay, had previously been in a domestic relationship which commenced in approximately mid-2011. While the relationship ended some time in 2012 you remained in contact. At the time of the offences a family violence intervention order was in place which prohibited you from committing any family violence against her. The terms of this order included that you were not to: damage her property; keep her under surveillance; attempt to locate or follow her; approach or remain within 5 metres of her; or to go or remain within 200 metres of her home. On 6 May 2013 you attended the complainant’s property in breach of this order. This is the basis of the related summary offence of breaching a family violence intervention order.
6 Also, on the 6th May 2013, the complainant left her apartment in the afternoon and saw you outside her neighbour’s apartment. She walked towards the lift. You followed her into the lift and down to the car park. She told you that you were not allowed to be in the building. You followed her into her car and sat in the passenger seat. She told you to get out but you refused.
7 She then drove to Brunswick St in Fitzroy. Upon her arrival at Brunswick St she parked her car and went to the bank. You exited the car and watched her while she was in the bank. While she was inside the bank she met an acquaintance named Donna. She asked Donna to accompany her so that she would not be alone with you. She then returned to her car with Donna. You presumably got back into the car although this is not clearly spelt out in the prosecution opening. The complainant then drove to the Ministry of Housing flats on Racecourse Rd in Flemington. You and Donna purchased some drugs and used them in the complainant’s car.
8 The complainant then dropped Donna at the Olympic Hotel in Preston and continued on towards her home. You were still in the vehicle at this stage. She told you that were not allowed to come back with her to her apartment. Upon arriving at her address you both got out of the car. The complainant was yelling at you that you were not to come to her apartment. You ignored her and followed her into the building and then into the lift. Once on the complainant’s floor you followed her out of the lift towards her front door. You then began to argue with one another. You grabbed her by the hair and dragged her into the hallway, threatening to slit her throat. You then ripped a gold chain from her neck. This is the basis for Charge 1 – Robbery. It was only at this point that you left the building.
9 Following the incident on the 6th May you continued to contact her by telephone. Between the 7th May and the 13th May you telephoned the complainant 533 times. This is the basis for Charge 2 – Stalking.
10 Sometimes the complainant would answer these calls. On the occasions when she answered these calls you threatened to kill her. These threats are the basis for the rolled up charge of Charge 3 – Making Threats to Kill.
11 You were represented on the plea hearing by Mr McQuillan of counsel. He tendered a psychological report of Mr Bernard Healy dated 8 March 2014, which was marked as Exhibit A. He also called Ms Emily Piggett, your Department of Human Services case worker.
12 Your personal details are set out in the report of Mr Healy and were part of some of the submissions made on the plea and it is appropriate that I summarise them briefly.
13 You are now 32 years old and you were 31 years old at the time of the offending. You were born and raised in Melbourne and live with your parents. Your father is a Council worker and your mother works with disabled children. You have three brothers, aged 34, 36 and 38, two of whom are in custody on drug related matters. Your other brother has never been involved in the justice system and lives with his de facto partner and 4 children. You had a happy childhood, and enjoyed spending time with your grandparents in Rye. However, you had trouble coping in mainstream schools and adapted better when you began attending Croxton Special School. You stayed there for 3 years before completing 2 years of a cabinet making apprenticeship. You had difficulties with the measurements and mathematics required in this apprenticeship and did not complete it. For the next 2 years you stacked shelves and worked as a cleaner at a supermarket and did some process work. You were placed on the Disability Support Pension in 2002 when you were about 20 because of intellectual deficiency and learning difficulties. It was at this age that you began smoking cannabis which eventually developed into a daily habit of up to 1gram a day.
14 You began a relationship with your former partner, Ms Mavis Binge, in approximately 2003 when you were aged 21. Over the next 6 years you had 3 sons with Ms Binge. They are now aged 9, 7 and 5. In approximately 2010 you began to use ice. On 5 March 2010 you had your first appearance at the Heidelberg Magistrates’ Court. You faced charges of unlawful assault, making a threat to kill and intentionally damaging property. These offences were committed against Ms Binge. You were placed, without conviction, on a 12 month CBO with a Justice Plan attached.
15 You separated from Ms Binge at some point and in mid-2011 started a relationship with Ms McKay, the complainant in this matter. Mr Healy’s reports were that you indicated that it was Ms McKay who introduced you to heroin, which you began to inject at some point in 2011.
16 On 22 August 2011 Ms McKay took out a family violence intervention order against you, which you breached on a number of occasions. I will return to this shortly.
17 On 5 September 2011 you again appeared in the Heidelberg Magistrates’ Court where you were found to have failed to comply with the CBO from 5 March 2011. You were also convicted of unlawful assault and reckless cause injury for which you were placed on a 24 month CBO with a Justice Plan attached. This was the second Justice Plan on which you have been placed.
18 On 3 March 2012 Ms McKay gave birth to your child. The infant died shortly after its birth. You were upset by the death of your child. Ms McKay blamed you for the death of your child which she said was due to your violence towards her during her pregnancy.
19 On 21 August 2012 you were back before the Heidelberg Magistrates’ Court for failing to comply with the CBO of 5 September 2011. You were also convicted of unlawful assault, contravening a family violence intervention order and theft. You were sentenced to a 12 month CCO with 75hrs of community work.
20 On 26 February 2013 your former partner and the mother of your three sons, Ms Binge, was found dead. The cause of death was suicide. Your three sons and your step-son were placed in the care of your parents by the Department of Human Services following the death of their mother.
21 On 4 April 2013 Ms McKay took a second intervention order out against you. You breached this only 2 days later when you attended at her address.
22 As set out above the offending for which you stand to be sentenced occurred between the 6 May and 13 May 2013. You were arrested on 15 May 2013 and remained on remand until 1 July 2013. During your time on remand you did not use any illicit substances. When you were bailed on 1 July 2013 you made contact with Ms McKay and began smoking ‘ice’. You were arrested on fresh matters on 7 August 2013 and returned to custody. There are 48 days pre-sentence detention relevant to the period before you obtained bail, and 137 days of pre-sentence detention since the day the case resolved at the committal. You have been prescribed Avanza because of symptoms of depression. You are currently held in the Chilwell Special Unit of the prison and have duties as a unit billet. Whilst on remand you have completed a conflict management course and are on a waiting list for drug education and general rehabilitation training.
23 You have lived with your parents the majority of your life except for occasions when you stayed with Ms McKay. She was not allowed at your parents house. Your parents have visited you in custody and arrangements have been made for your sons to visit you.
24 Mr Healy reported that intellectual testing revealed that you have a full scale IQ of 65 and that your impaired intellect was inferred to be congenital in origin. He reported that personality testing was indicative of depression and that you are currently being prescribed Avanza. He noted that through your drug use you have contracted Hepatitis C. He said that you have feelings of uselessness and that your sleep is fitful and disturbed because you are constantly thinking about the problems you have encountered.
25 Your counsel, Mr McQuillan, made a number of comments regarding your relationship with Ms McKay. He submitted that she had been in and out of gaol for most of her life, that she is a chronic drug abuser with most of her criminal history relating to dishonesty and drug offences. He submitted that your relationship with Ms McKay was extremely volatile and that phone calls between the two of you were abusive on both sides and that it was after his cross-examination of Ms McKay at the committal that the matter resolved into a plea. I note that Mr Healy reported that it was Ms McKay who introduced you to heroin by injection, that your relationship with her was fraught, and was compounded by the effects of drugs and alcohol on you and by your limited intellectual capacity, and that you seemed unable to extricate yourself from the unhappy relationship.
26 Your case worker Ms Emily Piggott from the Department of Human Services gave evidence at the plea hearing. She told the court that she had been working with you since May 2013. She said that you have a mild intellectual disability. She said that this label can often be misleading in that someone who is labelled as having such a disability can have very poor skills. She said that you have significant adaptive functioning deficits, that you lack living skills due in some ways to the fact that you have never lived independently, that you are socially naïve especially with relationships in that you are instantly trusting of people and are very easily led and taken advantage of, are eager to please and will often say yes to questions when in fact you do not understand the question. She said that your major deficit are your problems associated with your relationships with women. Your prior criminal history relates almost exclusively, except for a few theft shop-steals, to your relationships with Ms Binge and Ms McKay.
27 Ms Piggott stated that anger management programs had been tried on previous Justice Plans without success and that there was a need for you to engage in programs that tackle your broader problems with relationships such as how to manage relationships and feelings associated with them. She noted that there was no evidence of aggression with your parents or brothers. She said that it is likely that recommendations for the Justice Plan would involve programs in relation to your offending, organising appropriate supported accommodation where you could learn living skills and drug and alcohol abuse treatment. She said in the past you had found it helpful to engage in culturally appropriate services where you were able to talk with other Aboriginal men about your problems. In cross-examination Ms Piggott acknowledged that in light of the fact that your prior offending and this offending occurred in the context of your relationships, that if you were to start another relationship you could pose a risk. In re-examination she commented that you have engaged very well with DHS and that up to the date of the plea hearing you had been telephoning her weekly from prison and had made a huge effort to remain substance free.
28 At the plea hearing, Mr McQuillan submitted that all limbs of Verdins were enlivened but did not make any submissions as to their precise application. He said that both you and the community would benefit from your release from custody. He ultimately submitted that the most appropriate disposition was a Community Corrections Order with an attached Justice Plan.
29 In response the Crown submitted that there was no evidential basis in the report of Mr Healy for the application of the principles in Verdins. Ms Churchill said that while the report of Mr Healy establishes that you do indeed have an intellectual disability it does not deal with the application of the six limbs of Verdins. She also submitted that the report does not deal with the risk of re-offending. The Crown ultimately submitted that an immediate custodial sentence was the appropriate disposition.
30 Since the plea hearing, I have received the reports listed in paragraph 3 above.
31 Ms Piggott’s report first deals with your level of disability, and the various psychological assessments you have undergone. In 1995, a department of education psychologist Keith Bailey found that your cognitive abilities fell within the mild range of intellectual disability but also found that you had “significant maladaptive skills”.
32 In 2009, provisional psychologist Jamie O’Donahoo found that you have problems with interpreting complex information, remembering instructions and interpreting visual information.
33 A further psychological report by Mr Bob Ives in 2009 was to the effect that your impaired cognition has “pervasive and detrimental effects on your perception, memory, understanding and behaviour”. He found that you have “a restricted capacity to foresee the consequences of your actions, learn from experience or cope with complex situations”. After interviewing you, Mr Ives concluded that you do not possess the insight required to resolve emotional conflicts, or to plan and organise your activities, that you are unable to formulate construction solutions to personal problems and that it is likely that you are easily manipulated and unable to resist the influence of others.
34 In 2010, psychologist Ms Lisa Thepvongsa found that you had significant difficulties in your cognitive abilities and adaptive functioning, falling in the mild range of intellectual disability.
35 Ms Piggott noted that over time you have learned to disguise your intellectual impairment by often answering yes to questions. She noted that while you are able to manage most activities of daily living, you have trouble planning and managing your time and have difficulties attending appointments alone. You have some cooking and cleaning skills but have not managed to live independently. You can manage your finances with help, but at times will spend money inappropriately and then will have no funds to buy basic items required for daily life. She noted that you often do not recollect what you have previously discussed with her, and often repeat incorrect information you have obtained from others. She stated that in remand you have sought reassurance from older prisoners and friendship with other Aboriginal prisoners. Upon release, you will be supported to source appropriate accommodation. You have had a long association with Aunty Bev Hanly at the Victorian Aboriginal Health Service and will resume working with her on your substance abuse issues. You have stated you wish to engage in the programs that service offers, including a men’s group, domestic violence prevention counselling and, grief counselling. Your children are permanently living with your mother and her partner in a stable environment, and you will be able to reinvolve yourself with them. Ms Piggott stated that your DHS file shows that you have successfully completed many treatment programs, gained certificates and qualifications and have been an active and eager participant in a variety of services. While you do not always succeed, you are very aware of the areas in which you need help and are keen to engage with services to get that help. In particular, she noted, that while you struggle with substance abuse and interpersonal relationships, you continually show your commitment to making changes, and feel you have benefited greatly from involvement with services, particularly Aboriginal agencies.
36 Your mother told Ms Piggott that in your early 20’s you became involved with peers who used substances and this led to your substance abuse and difficult behaviour. After finishing special school you attended a day program for young people with disabilities, and commenced an apprenticeship in cabinet making, but could not find work in that area. You have had some jobs shelf stacking, labouring, cleaning and pallet packing, but have not been formally employed since 2008, because you had trouble coping at work, frequently took time off, and lacked confidence. During your last period of time in the community in 2013 you maintained contact with Ms Piggott and lived in a disability services accommodation service; you maintained contact with your parents and children. While in custody you have also kept in contact with Ms Piggott and have identified with her appropriate programs to which you can be referred after your release.
37 In the proposed Justice Plan, Ms Piggott recommended that you engage in case management, that you commence regular drug and alcohol counselling, and therapeutic groups and sessions either with the Victorian Aboriginal Health Service or with another appropriate service, and that you engage in psychological counselling. She notes that as an adult you are polite, softly spoken and have had calm, appropriate and non-aggressive relations with most people. However you have had relationships with two women which were characterised by mutual substance abuse, chaotic lifestyle and tumultuous interpersonal interactions. You are aware of your problems in managing complicated personal situations and problematic emotions. You have always had trouble as an adult choosing the right people to relate to, and have gravitated towards substance abusers because it is has been easy for you to be accepted into their circle. You will benefit from psychological treatment and programs that help you identify appropriate individuals for friendship.
38 The CCO assessment report assessed you as suitable for a Community Corrections Order and recommended a number of program conditions: a Justice Plan; unpaid community work; treatment for drug abuse as directed; mental health assessment and treatment as directed – noting that although you have been diagnosed with anxiety and depression by a general practitioner and are prescribed Avanza, you have never participated in treatment with a psychologist or psychiatrist; programs aimed at reducing offending as directed; and supervision, in the light of the fact that you are assessed as a moderate risk of reoffending; and finally judicial monitoring, to allow the Court to keep track of your progress in the light of your previous non-compliance with community based dispositions.
39 On 16 April 2014 Ms Churchill provided a number of comparable cases via email which I have considered.[1] She also referred to the case of Arthars v The Queen; Plater v The Queen [2013] VSCA 258. She submitted that on the authorities in order for limb 1 of Verdins to be engaged, and for the Court to find that your moral culpability for your offending is reduced by your impaired mental functioning, there must be evidence of a real connection between the mental impairment and the offending. Even if that connection is made, general deterrence is not eliminated but still operates, “sensibly moderated” in the words of Batt JA in R v Yaldiz [1998] 2 VR 376 at 383.
[1]R v Taing [2009] VSCA 8; Saltalamacchia v R [2010] VSCA 83; R v Robazzini [2010] VSCA 8; Verdins [2007] 16 VR 269
40 There is no doubt that you suffer from an intellectual disability. You have been assessed as having an IQ of 65, and there is no need to repeat what I have already summarised above as the findings of the psychologists as to what specific difficulties characterise your intellectual disability. Verdins principle 1 will be enlivened if it is established that your disability had the effect of impairing your ability to exercise appropriate judgment, or impaired your ability to make calm and rational choices or to think clearly at the time of the offence.
41 In this regard, Mr Healy’s second report states the following: that a person such as yourself with Intellectual Disability and Raised Depression “would not be able to exercise the same judgment or controls expected of a normal person in the specific circumstances of the offending” that brings you before the Court. Mr Healy concluded that your impairments place you at a very considerable disadvantage compared with a normal functioning individual.
42 In an email submission accompanying the report Mr McQuillan submitted that this additional report by Mr Healey evidences the necessary causal link between your intellectual disability and the offending you stand to be sentenced for, such as to properly invoke the principles in Verdins. I am still in the position that Mr McQuillan did not precisely articulate how each of the Verdins principles is enlivened. However, on the material before me, I am satisfied that at least the first five principles of Verdins are engaged. In relation to the first principle, I am satisfied that by reason of your intellectual disability at the time of your offending you had an impaired ability to exercise appropriate judgment, or make calm and rational choices, and I am satisfied that there was a realistic connection between your disability and your offending, such that your moral culpability is somewhat reduced as a result. However, this does not mean that your conduct should not be denounced. I therefore consider that the sentencing principles of general and specific deterrence should be appropriately moderated, although not completely eliminated, as any form of family violence is unacceptable. I accept the possibility if you are imprisoned in the general prison population your intellectual disability will make any time served weigh more heavily on you.
43 You have shown yourself to have trouble managing your personal relationships with women, and your offending in this regard got worse since 2010 when you first appeared at the Heidelberg Magistrates’ Court. However, I accept that these two relationships were chaotic, affected by your mutual use of drugs, an unstable lifestyle, and the problems you have by virtue of your intellectual disability in managing complex interpersonal relationships.
44 Your plea of guilty has utilitarian value and demonstrates some remorse and you get the benefit of this. I note that there is some other specific evidence of remorse in Mr Healey’s comment, in his first report, that you presented as self-reproachful and as having come to the realisation that you must abstain from drugs in order to play a positive role in the upbringing of your children. I also note that apart from your difficulties in the domestic relationship with these two women, you are a calm and polite person who interacts well with people generally, including female psychologists and case workers.
45 In spite of some non-compliance in the past with Justice Plans, and the current assessment that you are at moderate risk of reoffending, you have shown eagerness to engage with relevant services thus far while on remand, and over the years have shown a capacity to attend and complete programs. You also understand that you have a specific problem managing relationships with women. In the light of all of these factors, I consider that protection of the community in the long term is best served by your having as much support as possible in addressing the specific problems that you have and which have been documented above. The sentencing principle of just punishment can, I consider, be satisfied by imposing a community corrections order with an attached justice plan to last for a period of three years. I propose to impose the following conditions:
(1) Pursuant to s 48C I impose 200 hours of community work;
(2) Pursuant to s 48D(3)(a) I order that you attend for assessment and treatment for drug abuse or dependency as directed;
(3) Pursuant to s 48D(3)(e) I order that you attend for mental health assessment and treatment as directed;
(4) Pursuant to s 48D(3)(f) I order that you attend other programs aimed to reduce reoffending as directed;
(5) Pursuant to s 48E I order that you be subject to Supervision from a Community Corrections Officer; and
(6) Pursuant to s 48K I order that you be subject to judicial monitoring. This will mean that you will be required to come back before me at specified times during the life of the order so that I can follow your progress. I have set the first review date as Friday 5th September at 10.30.
(7) Pursuant to s 80 I order that you abide by the attached Justice Plan
46 In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Corrections Orders. These are that you must not commit any other offences during the period of the order being in force, that is 3 years from today, any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Community Corrections officer.
47 For the moment, I have put in that he must report to Reservoir because of its proximity to Bundoora although I note on the report that his actual reporting office will be determined when suitable accommodation is organised so that may change.
48 Thus, you must report to the Community Corrections Centre at Reservoir within two clear working days of his release. Also, you must not leave Victoria without first getting permission from a Community Corrections officer and you must inform the Community Corrections office of any change of address of where you live or where you work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Community Corrections officers. Do you understand the conditions I have imposed and the general terms that apply?
49 Now Mr McQuillan do you want to approach and read those matters through just so that when I ask him whether he understands he's had the chance to just read through them?
50MR MCQUILLAN: Yes of course Your Honour. There's only one problem with it though ‑ ‑ ‑
51HER HONOUR: Yes?
52MR MCQUILLAN: ‑ ‑ ‑ and that is the reporting within two days.
53HER HONOUR: Yes.
54MR MCQUILLAN: He's still remanded in custody til next Wednesday ‑ ‑ ‑
55HER HONOUR: So we'll ‑ ‑ ‑
56MR MCQUILLAN: ‑ ‑ ‑ on some summary matters.
57HER HONOUR: All right so we can adjust that, that doesn't have to be two days does it?
58MS CHURCHILL: I think it does Your Honour unless Your Honour otherwise orders.
59HER HONOUR: I otherwise order.
60MS CHURCHILL: Yes perhaps if Your Honour ‑ ‑ ‑
61HER HONOUR: I have to otherwise order.
62MS CHURCHILL: ‑ ‑ ‑ indicates within two days upon his release?
63HER HONOUR: All right, so I'll just change that to ‑ ‑ ‑
64MR MCQUILLAN: Might I approach him Your Honour?
65HER HONOUR: Absolutely, thank you.
66MR MCQUILLAN: Thank you Your Honour.
67HER HONOUR: All right. So do you understand the conditions that I have imposed and the general terms that apply Mr Ahern?
68OFFENDER: Yes Your Honour.
69HER HONOUR: Thank you, just take a seat. CLMS wanted to allow us to make an order because effectively it's a self-executing order that has no finite date so it's probably better for us to make within two days of Wednesday so it'll be Friday 13 June.
70MR MCQUILLAN: Thirteenth Your Honour yes.
71HER HONOUR: All right? That way - is that his release date? Wednesday?
72MR MCQUILLAN: Well it - well no it's an assumption that I'm ‑ ‑ ‑
73HER HONOUR: I see.
74MR MCQUILLAN: ‑ ‑ ‑ making Your Honour I must say. He's back in front of a magistrate on a console plea ‑ ‑ ‑
75HER HONOUR: Right.
76MR MCQUILLAN: ‑ ‑ ‑ on some summary matters, again to ‑ ‑ ‑
77HER HONOUR: Right. Well if you let us know and there's no opposition we can make fresh orders can't we?
78MS CHURCHILL: Your Honour can certainly ‑ ‑ ‑
79HER HONOUR: I can vary the order that's made for the reporting date I would've thought?
80MS CHURCHILL: Well Your Honour can certainly impose a Community Corrections Order to commence in the future.
81HER HONOUR: Yes.
82MS CHURCHILL: I guess if Your Honour at this juncture imposes it to commence, presumably all going well, on Wednesday. Commence Wednesday and has to report within two days of Wednesday. If that doesn't eventuate then perhaps we can revisit it at that point I think.
83HER HONOUR: All right.
84MS CHURCHILL: Yes?
85MR MCQUILLAN: That's a good idea.
86HER HONOUR: All right so I'll ‑ ‑ ‑
87MS CHURCHILL: So the order would be due to commence on Wednesday the 12th?
88MR MCQUILLAN: Eleventh.
89MS CHURCHILL: Eleventh.
90HER HONOUR: Yes so declare the ‑ ‑ ‑
91MS CHURCHILL: Yes the 11th, so Wednesday the 11th.
92HER HONOUR: All right.
93MS CHURCHILL: If the order commences on that date.
94HER HONOUR: Yes.
95MS CHURCHILL: And then he would need to report within two working days of that, and then if that all does not go well on Wednesday then ‑ ‑ ‑
96HER HONOUR: So the Community Correction Order will commence on 11 June and you must report et cetera by 13 June and I'll simply reserve liberty to apply in relation to that.
97MS CHURCHILL: Yes.
98MR MCQUILLAN: Yes.
99HER HONOUR: In case the dates turn out to be incorrect. Having got that far I decline to give any indication pursuant to s.6AAA of the Sentencing Act. I note that a disposal order for a clump of hair was sought and isn't opposed and therefore I make that order. Finally I propose to order, pursuant to s.464ZF(2) of the Crimes Act, that you undergo a forensic procedure for the taking of a sample by scraping from the mouth or a blood sample.
100I warn you, as I must, that if you resist the taking of that sample police will be authorised to use reasonable force to take it from you and the sample will be a blood sample. I make this order because the seriousness of the offending warrants it, the granting of the order is in the public interest and the order is not opposed.
101No doubt you've already explained the terms of that order to Mr Ahern?
102MR MCQUILLAN: Yes Your Honour, I will again when I see him this afternoon.
103HER HONOUR: All right. The police station to which Mr Ahern needs to attend also has to be filled in to the order so ‑ ‑ ‑
104MS CHURCHILL: Perhaps if we just pop Reservoir down for now Your Honour and ‑ ‑ ‑
105HER HONOUR: All right. So I'll sign that order with Reservoir in it for now and if necessary we can make the changes. Can one vary the date - if the release on remans doesn't occur as anticipated there is nothing to prevent me from altering the date of the commencement of the order is there?
106MS CHURCHILL: Not that I'm aware of Your Honour but ‑ ‑ ‑
107HER HONOUR: No. So that could be done administratively on your notification to me?
108MS CHURCHILL: I would agree with that Your Honour.
109HER HONOUR: Yes, all right.
110MS CHURCHILL: It would ultimately depend on whether ‑ ‑ ‑
111HER HONOUR: So what we might do is we'll make one of those CLMS other notes saying that the - Mr Ahern is currently remanded on other matters and in the event that for some reason he doesn't get released as anticipated to commence the order on 11 June you'll contact us and a variation order will be made ‑ ‑ ‑
112MS CHURCHILL: Yes Your Honour.
113MR MCQUILLAN: Yes Your Honour.
114HER HONOUR: ‑ ‑ ‑ in relation to the commencement date just to make sure that that doesn't cause any difficulties. All right those are the side orders.
115Mr Ahern I just want to address you to remind you of the seriousness of the offending that has brought you here today, to remind you of the need that you engage seriously with all the programs that are recommended to you, and that you take whatever steps are necessary to learn the skills that will allow you to avoid getting into the difficulties that you have thus far because this opportunity - I can't say what will happen in the future but obviously if you offend again in this way the consequences may be very serious for you in terms of the options that the court has when coming to look upon your conduct. So you must take this opportunity very seriously to do whatever it takes to avoid getting into the same kind of trouble again with anybody. All right? Take a seat. Are there any other matters?
116MS CHURCHILL: No Your Honour.
117MR MCQUILLAN: No Your Honour.
118HER HONOUR: No? All right, thank you. In that case we'll adjourn thank you.
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