Director of Public Prosecutions v Andre Star
[2015] VCC 2020
•16 December 2015
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted Suitable for Publication
AT MELBOURNE CRIMINAL JURISDICTION
CR 15-00194
DIRECTOR OF PUBLIC PROSECUTIONS
v
ANDRE STAR
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| JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
| WHERE HELD: | Melbourne |
| DATEOF HEARING: | |
| DATEOF RULING: | 16 December 2015 |
| CASE MAY BE CITEDAS: | DPP v Star |
| MEDIUM NEUTRAL CITATION: [2015] VCC 2020 | |
Subject: Catchwords: Legislation Cited: Cases Cited: Sentence:
REASONS FOR RULING
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APPEARANCES: Counsel Solicitors
For the Director of Public Prosecutions
Mr L. Cameron
For the Accused
For Corrections Victoria
Ms D. Price
Ms D. Coombes
HIS HONOUR:
1 On 25 August 2015 I ordered Andre Star to be imprisoned until 30 December
VICTORIAN GOVERNMENT REPORTING SERVICE
7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone 9603 9134 171455
2015 subject to presentence detention days and to be the subject of a Community Corrections Order from that day until 29 December 2017.
2The original plea had begun in Wodonga on 4 June and then continued on 12 and 13 August. The order which I made was with conviction, provided supervision for two years by Community Corrections and included provisions for assessment and treatment for drug abuse, mental health assessment and treatment including psychological, neuropsychological, psychiatric, hospital or residential treatment as well as participation in programs and course to address factors relating to the offending. Traditional monitoring was also provided for.
3I was told that Star is to be released on 30 December. In anticipation of this the Correctional authorities have brought an application to vary my order under s.48N of the Sentencing Act. The application was instituted by a document and a report. The document headed "Application for Variation of Community Corrections Order" recites that Clint Dalton makes the application being from the Wangaratta Community Correctional Services as a senior parole officer and his report dated 4 December 2015 is countersigned by the principal practitioner from the Wangaratta Community Correctional Services, Ms Katie Whitehouse.
4The application documents recites that the ground for the application is that the rehabilitation and re-integration of the offender would be advanced by the making of the decision to deal with the order.
5This ground, as expressed in these terms is based on s.48M(1)(d) of the Sentencing Act 1991. It is further stated that the applicant wants the order varied because the order needs to include interventions that allow Community Corrections Services "to better manage the risk factors presented by Mr Star".
6These interventions are said to be a prohibition from entering a proscribed area unless with written approval, electronic monitoring in relation to potential
entries into the proscribed area, a residential condition and engagement with ACSO Reconnect program.
7Section 48M is the first section in Division V of the Sentencing Act and enables, by sub-s.(2)(d) a court to vary the order or do a number of other things such as cancelling the order, (2)(b) or (c), cancel, suspend or vary or reduce a condition of the order, (e), attach a new condition, (f), impose a new program, (h), inter alia.
8Under sub-s.(2), the Court may decide "to deal with the order" in one or more of these ways if it is satisfied of a matter set out in sub-s.(1). Subsection (1) says that the court which made a Community Corrections Order may decide to deal with the order in a way set out in sub-s.(2) on an application made under s.48N if it is satisfied of one of five circumstances set out there under. Subsection (1)(d) describes one of these circumstances as the rehabilitation and re-integration of the offender would be advanced by the making of the decision to deal with the order, that is, by its variation in this case.
9The report of Mr Dalton and Ms Whitehouse outlined what are said to be significant concerns in relation to the most effective management of Mr Star in the community and note "a high degree of anxiety from a number of agencies involved".
10On behalf of Mr Star it was submitted that the application has no legal basis and is misconceived on the basis of an erroneous reading on the legislation. It was, in effect, put that, having heard and determined this matter, I had no jurisdiction to rehear the matter because I was functus officio. It was submitted that the Act does not permit the proposed variation, because applications made pursuant to s.48N of the Act provides that such application may be made at any time "while the order is in force". It was submitted that since the order does not commence until Mr Star's release from custody on 30 December 2015, the order cannot be varied before that date.
11As to whether I am functus officio, a matter which I do not need to decide, the defence submissions had three limbs, effectively. Firstly, it relied on some pronouncements on the guideline judgment of the Victorian Court of Appeal on community corrections orders, Boulton v The Queen; Clemens v The Queen; Fitzgerald v The Queen (2014) VSCA 342 and the appendix thereto.
12At paragraph 157, the court deals with the power to vary a community corrections order. It recites the provisions of s.48N(2), which confer on the court a range of powers enabling it to vary a community corrections order. The language which the court uses at paragraphs 159 to 161 suggest that such variation power is contemplated after the community correction has commenced.
13The Court of Appeal, at 159, speaks "of the continuation of the community corrections order" advancing the rehabilitation and reintegration of the offender. At paragraph 161, the Court states that the provisions, "recognise the reality that, over the period of any sentence", an offender's circumstances are likely to change and, "in the light of changing circumstances," it seems highly desirable there be a power to modify and revoke a community corrections order. These are the same concepts and words used in paragraphs 33 and following of Appendix 1 of the judgment.
14Whether these phrases are obiter dicta or not, they are persuasive and of an approach which would appear consistent with variation being contemplated during the course of the order, suggesting that "while the order is in force" means after its commencement. These sentences, however, are not said in response to a consideration of the specific issue to which this application gives rise, and though they suggest persuasively, as I have stated above, the court was not in that part of its judgement specifically dealing with the issue of the words "in force" in s.48N.
15In other words, the Court of Appeal's analysis appears predicated on a
variation sought once the order has commenced, and there has been a reconsideration of the ability or willingness of the offender to comply, or a significant change in circumstances during the life of the order has been recognised.
16The third limb in the defence submission is that nothing in the application is new material which was not known at the time of the sentence in substance, if not in precise form, with the possible exception of burglaries (which could relate to the prisoner back in 2012) and some suggestion that Star's Facebook profile includes some criminal connections. In my view, this submission, even if correct, does not assist me to determine if the application properly lies at law. If it is a lawful application, then those matters that are new, or enhanced by new information, may be relevant. If it does lie properly, then they may be developed further once the order commences.
17The second limb of the defence submission relies on the explanatory memorandum to the amending Act, the Sentencing Amendment (Community Corrections Reform) Act 2011, which inserted s.48M. The portion of the memorandum which deals with the new ss.48M and N closely mirrors the wording of the sections. It states at p.15, upon an application for a variation, the court has a range of options to re-tailor the order "based on the extent of the offender's compliance with the order".
18These latter words clearly suggest that such re-tailoring is designed to take place after the commencement of the order. More importantly, in my view, sub-s.3 and 4 of s.48M make clear that the court's decision under sub-s.2 of 48M must be made "on the basis of its assessment of the extent to which the offender has complied with the order". This assessment cannot, in my view, be a proper basis unless it is undertaken at a time after the compliance requirement has come into force. That is, after its commencement. Such an assessment of compliance could not be made practically or properly before the commencement of the order.
19Subsection 4 confirms this view in that it directs the Secretary to disclose to the court any lawful direction which has been given to the offender for the purpose of making the assessment under sub-s.3. This too could not be done before the commencement of the order.
20In my view, a reading of the sections involved lead to the conclusions that the expression, "while the order is in force" refers to any time after its commencement, and not to a period before its commencement when, for example, the offender undergoing a period of reclusion which is part of the sentence, as is the case here, and not from the time the sentence is passed by the court.
21Section 44(3) states that if a court makes a community corrections order, in addition to imposing a sentence of imprisonment in accordance with s.44, that is the section enabling imprisonment in addition to an order, the community correction order "commences on the release of the offender from imprisonment".
22Section 39, which deals with fixing intensive compliance periods as part of the community corrections states specifically that such a period is part of the period for which "the order is in force". Such intensive compliance periods could not be fixed practically, unless they were properly to be a period post- commencement, as is specifically provided in subs-s.3 of s.39 when dealing with cumulative orders. It would appear the use of the words "the order is in force" in s.39 is consistent with the interpretation of post-commencement.
23In my view, if the legislation in the context of powers to vary and applications to vary, s.48M and N, had intended that the application could be made any time after the initial sentence was passed, and before the commencement of the order, it would have used other words such as "after the order has been made".
24There are some legitimate concerns that if the words in s.48N mean post-
commencement, Corrections may be seriously constrained in the face of serious, credible and significant information, which mean the circumstances of the offender have materially altered - s.49M(a), or the circumstances of the offender were wrongly stated or were not accurately presented to the court - 49M(b).
25It is noteworthy in the context of altered circumstances that the Act refers to the relevant time as, "since the order was made". That is, presumably when the sentence was passed down, therefore highlighted that the legislators distinguished this point of time from the concept of "while the order is in force". This may be a case of minus dixit quam voluit. That is, less than intended or meant in relation to 48N. I do not have to decide that question.
26Clearly, if such variation were to made before the commencement of the order, s.48M(3) would appear to be a provision which could not assist the court in any way, because it simply refers to the extent of compliance with the order. So it is difficult to see how the kind of information presented here could be considered by the court, even if it was information which was significant in its content, and gave rise to legitimate and urgent concerns like in this case.
27If indeed the expression "While the order is in force" refers to any time after the order was made by the court at sentence, would the order be subject to the offender's consent under s.37? If so, and the offender does not consent, what are the consequences? The type of applications, if made before the commencement of an order, may multiply exponentially before the court, with further investigation undertaken and information gathered if a community correction order is seen to be a lenient option, or one which has displeased some of those involved in the process. These are interesting questions I do not have to decide, and about which I say nothing.
28The applicant augmented its court submissions by written submissions dated 14 December 2015. In these submissions, the applicant submitted that "in
force" means during the currency of the community corrections order from the time it is imposed by the court until it expires. It is said that although the community corrections only commences when the offender is released from prison, the order is in force during the time the offender is in prison, and is subject to an application for variation like the present.
29The submission goes on to state that "in force" is used throughout the Act 138 times as a term of art used to describe the aspect referred to as being in existence. Of itself, this does not advance the argument. Each of the six examples (about the use of the phrase "in force" in Part 3A of the Act) then provided seemed to me not to strengthen, but rather weaken the submission.
30Section 39(1), which concerns the fixing of an intensive compliance period I have already referred to, uses the phrase to describe such a period as part of the period for which the order is in force, and to my mind this must a priori be a reference to a period after the actual commencement of the order. Indeed, s.39(3), dealing with the court fixing cumulative intensive compliance orders, specifically provides that they are to run "from the commencement of the first order". To my mind, this validates the post-commencement meaning of the phrase "in force" in sub-s.1 of s.39.
31Similarly, ss.41(2) and 42(1), which deal with the presumption of concurrency of conditions imposed in separate orders, and the concurrency of unpaid community work where there are several orders, are amenable to the post- commencement meaning of "in force". Similarly, s.48K, which deals with judicial monitoring, contains the phrase, "remains in force" in sub-s.4 in relation to its specified period.
32It is noteworthy that, when describing the power of the court to monitor the offender, s.48K(1) refers to such a review "during the course of the order". Such a review as sub-s.1 says is to review the compliance of the offender with the order, and such a review would not be able to be done if "remains in force"
meant before the actual commencement of the order. Section 48O(2) in relation to the suspension of the community corrections order or condition for a period, and the calculation for which the order is to remain in force also, in my view, envisages the proper use of the section after the order's commencement.
33The submission refers to Boulton v The Queen, and I have dealt with that argument previously. I also sought submissions from the Office of Public Prosecutions, though the prosecutor who was present at the time of the application, out of courtesy to the court as the prosecuting agency, had no position to state at the time.
34The prosecution's position since is that the words "in force" require the relevant community corrections order to have actually commenced operation, which in the circumstances of a sentence which includes imprisonment and a community corrections order, occurs on the day that an offender is released from custody and begins serving the community corrections order. As I have indicated, in my view that submission is correct, and I accept it.
35In my view, a proper interpretation of the relevant section leads me to dismiss the application as a matter of law on the basis I have outlined. As things currently stand, I understand that some provisions for accommodation have been made for Mr Star in Wodonga. There is the potential for a community treatment order under the Mental Health Act, but that is only speculative at the moment.
36There is no doubt that the material presented on one view will mean a significant effort both from Corrections and the police primarily to monitor Mr Star upon release. Once the order commences, an application to vary for non-compliance, based on proper evidence and assessment could be promptly brought and determined.
37One is also prompted to ask in the context of an offender like Mr Star whether
the condition of supervision contained in the order under s.48E of the Act would not be sufficient to "supervise, monitor and manage the offender" as directed by the Secretary, even where specific orders as to residence, exclusion conditions or electronic monitoring have not been specifically ordered, at least sufficiently to be able to assist the court to determine whether Star is willing and capable of complying with the order, or whether other bases for variation have been made out.
38And I so rule.
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39MS PRICE: May it please the court.
40HIS HONOUR: Now in terms of the current order, there is an aspect of it which I need to amend, and that is the judicial monitoring date, which I have fixed for a time at which is Good Friday. I hadn't realised at the time, so I will fix that judicial monitoring hearing, for the moment, on February 23, being the second day of the circuit commencing on 22 February 2016, in Wangaratta at 9.30.
41MS PRICE: May it please the court. Your Honour, I'm instructed to apply for costs in respect of the, I suppose, fees incurred in the response to the application filed by Corrections. In my reading of it, it seems that the appropriate section upon which the court could consider at its discretion such an order would be under the County Court Act s.78A.
42HIS HONOUR: Are you legally aided, or is the matter privately funded?
43MS PRICE: It's legally aided.
44HIS HONOUR: Yes. Well this is a novel point, as I understand it, and I think that the subject matter is one which I think is fairly open for submissions to be made. The state of the legislation, I think, is somewhat difficult in terms of the wording that it uses, and I think that under those circumstances, I will not make an order for costs.
45MS PRICE: May it please the court.
46HIS HONOUR: Thank you. Are there are any other orders that are sought?
Ms Coombes?
47MS COOMBES: No, Your Honour.
48HIS HONOUR: Mr Cameron?
49MR CAMERON: No, Your Honour.
50HIS HONOUR: Yes, thank you. All right, Ms Whitehouse, Mr. Star, thank you for your attendance by video-link in relation to this matter. It's probably been a bit complicated to follow the ruling, but I'm sure that you'll be able to speak to Ms Coombes, perhaps, and go through it if need be. Thank you for your assistance.
51MS WHITEHOUSE: Thank you, Your Honour.
52HIS HONOUR: Sine die.
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