Director of Public Prosecutions v Andrew Strange
[2019] VSC 434
•14 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0176
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW STRANGE |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 June 2019 |
DATE OF SENTENCE: | 14 June 2019 |
CASE MAY BE CITED AS: | DPP v Andrew Strange |
MEDIUM NEUTRAL CITATION: | [2019] VSC 434 |
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CRIMINAL LAW — Sentence — Contravention of Community Correction Order (‘CCO’) — partial compliance with conditions of CCO — Substantial compliance with judicial monitoring condition of CCO — Some compliance with supervision and treatment — CCO confirmed — Sentence for Contravention 6 weeks’ imprisonment —Sentencing Act 1991 ss 83AD(1), 83AS(1), 83AS(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Ashleigh Harrold | Office of Public Prosecutions |
| For the Accused | Mr Bradley J Newton | James Dowsley & Associates |
HER HONOUR:
Introduction
Andrew Strange you have pleaded guilty to a charge of contravening a Community Correction Order (‘CCO’) laid on 25 January 2019 pursuant to s 83AD(1) of the Sentencing Act 1991 (‘Sentencing Act’) and I have found the offence proven. The maximum penalty for contravention of a CCO is three months’ imprisonment.
The CCO derived from a sentence I imposed on you on 12 February 2016 (‘the original sentence’) on the charge of recklessly causing serious injury on 8 July 2014.
The original sentence included a total effective sentence of 21 months’ imprisonment with 577 days of pre-sentence detention declared as served. A CCO of 24 months was imposed as part of a combination sentence, with the intention that the CCO commence upon your release from prison. The CCO which commenced on 18 May 2016 was varied on 17 June 2016, further varied on 19 September 2016 and then further varied, replaced and extended on 29 January 2018. The last-mentioned variation led to the CCO being extended to 18 August 2018 which means that the CCO has now expired.
A previous charge laid on 11 December 2017 also related to contravention of the CCO and was dealt with by me on 29 January 2018. At that contravention proceeding you pleaded guilty. You were in custody at that time, after being convicted and sentenced to three months’ imprisonment by the Dandenong Magistrates’ Court for unlawful assault, number plates not affixed to vehicle, use of unregistered motor vehicle, unlicensed driving and possess controlled weapon without excuse. Those offences had been committed on 20 November 2017.
At the conclusion of the contravention proceeding on 29 January 2018 the Court was urged to vary the CCO and extend it for a further three months from 18 May 2018 to 18 August 2018. The Crown agreed that this course was open at that time. I note here that, through oversight, a specific sentence was not ordered in respect of the offence of contravention on 29 January 2018. I will return to this matter later in these sentencing remarks.
The decision made on 29 January 2018, to extend the CCO for a further three months, was partly intended to ensure supervision of you and support for you upon your release from prison; after serving the sentence imposed by the Dandenong Magistrates’ Court. The CCO would otherwise have expired soon after your release from prison. The Court was also cognisant of the fact that, if your prison sentence was lengthened at that time by orders of this Court, in respect of the contravention proceeding, you were unlikely to be able to retain the rental property where you had been residing since 2016, creating additional impediments to your ultimate successful reintegration into the community. Although the Court was persuaded to extend the CCO until August 2018, it is in respect of breach of the conditions of the extended CCO that you are again before the Court to be dealt with for contravention and fall to be sentenced.
The current breach proceeding
The schedule attached to the current 29 January 2019 contravention charge alleges that you failed to undergo treatment and rehabilitation as required, failed to be supervised and managed as directed and on one occasion failed to be monitored by the Court as required.
The breach report dated 1 February 2019, indicates that, following your discharge from custody on 17 February 2018, you did report within two working days as required and attended for further induction on 19 February 2018. Throughout the period of the order following that date you were required to report on a weekly basis. Your attendance was deemed as ‘somewhat sporadic’, although it was noted that you attended the majority of your appointments. Your presentation at those appointments varied and whereas sometimes you presented in an ‘erratic and chaotic manner’, on other occasions you were willing and open to engaging in discussions. The service regularly monitored your risk management in relation to family violence scenarios, employment prospects and community engagement.[1] Significantly, you appeared to have had ongoing support from a social worker from Melbourne City Mission since your release from prison and you did successfully complete a white card course on 12 September 2018.
[1]The report of Ms McKie indicates that, following your non-appearance on 17 August 2018 the service was directed to internally suspend the order, to give you an opportunity to complete outstanding order conditions, however transcript from that appearance does not indicate that the Court directed that the order be internally suspended rather than that the matter be adjourned. However, it appears that Corrections imposed an internal suspension.
You attended some sessions for treatment with Ms Trewhella throughout 2018 and were reported as engaging in a positive manner in respect of relapse, prevention and harm reduction despite your attendance being sporadic. You disclosed ongoing cannabis use but denied engagement in methamphetamine use.
It appears that an internal suspension of your CCO was conducted by Corrections from 17 August 2018, at a time when your focus appeared to be on events in your personal life. However, your compliance did not substantially improve and by the end of 2018 a decision was made by Corrections to bring breach proceedings which were initiated in January 2019.
The breach report sets out many steps taken by Corrections to support you with monitoring and treatment for substance abuse and other mental health programs but Ms McKie, Advanced Case Manager at Werribee Community Correctional Services, commented that it appeared that you were seeking a ‘compliance focussed order’ and were avoiding any meaningful intervention aimed at reducing recidivism.
I take into account, in your favour, that you have admitted to breaching the conditions of the order and have pleaded guilty to that offence.
In addition to sentencing you for the charge of contravening a CCO, the Court must apply s 83AS of the Sentencing Act which provides as follows:
83AS Powers of the Court on finding of guilt for contravention of community correction order
(1)Subject to subsection (1A), if a court finds a person guilty of an offence under section 83AD (in addition to sentencing the offender for the offence) the court must—
(a)vary the order in any manner set out in section 48M(2)(d), (e), (f), (g) or (h); or
(b) confirm the order originally made; or
(c) cancel the order (if it is still in force) and, whether or not it is still in force, subject to subsection (2), deal with the offender for the offence with respect to which the order was made in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence; or
(d) cancel the order and make no further order with respect to the offence with respect to which the order was originally made.
The CCO has now expired. Therefore, as submitted by the prosecutor Ms Harrold, the only options are to deal with you under 83AS(1)(b) or (c).
The offending conduct which originally led to the imposition of the CCO for a period of 24 months is described in my reasons at the time of the original sentence and it is not necessary to repeat those reasons today, other than to note that the offending was serious and resulted from the infliction of a knife wound to a former associate of yours in the course of a scuffle.[2] The motive for the offence was a foolish grievance you held that your associate was interfering in your family affairs.
[2]DPP v Strange [2016] VSC 45.
Under s 83AS(2), when determining how to deal with an offender under subsection (1), the Court is obliged to take into account the extent to which the offender has complied with the order. In this case, because the order has been on foot for a lengthy period and has been intersected by a period of imprisonment and an earlier contravention proceeding, consideration of the extent of compliance involves a multiplicity of factors. I have taken those factors into account, including knowledge of your circumstances gained through ongoing written and oral reports during your appearances before me when arriving at the sentence in this matter.
The CCO imposed by this Court as part of a combination sentence was bound to be challenging for you, given your history of frequent court appearances and sentences of imprisonment prior to the offending in 2014. Prior to imposing the combination sentence the Court was in receipt of a report from Dr Aaron Cunningham who had diagnosed you with a Borderline Personality Disorder. He noted that your life had been marked by significant instability since your adolescence, partly as a result of your difficult and disrupted upbringing and your personality disorder.
After your release from custody on the original sentence, until the expiration of the CCO, you appeared on a regular basis before me for judicial monitoring. An exception to this was on 17 August 2018, which was to have been the last day of the CCO, when you failed to attend for judicial monitoring
As a result of your many court appearances before me in connection with the CCO, since the original sentence was imposed, I read regular detailed progress reports helpfully supplied by the Office of Corrections. I also heard updates from CCO officers appearing by video-link or in person. On most occasions of judicial monitoring you addressed the Court and sometimes your partner Jaymee Bartlett also spoke on your behalf. On occasions I also received updates verbally or in writing from social workers attached to Jesuit Social Services or Melbourne City Mission. I have no doubt that a great many steps were taken by Community Corrections officers to supervise you in the community as well as encouraging your compliance with conditions of the CCO and directing you to undergo monitoring and treatment.
Apart from the 17 August 2018 failure to attend for judicial monitoring, your attendance for judicial monitoring over the course of the CCO, was consistent and you also attended a great number of supervision appointments with Corrections Officers over the period between May 2014 and August 2018, although there were absences. Whilst you did attend various referrals to doctors, psychologists or other external service providers, at the direction of Corrections, whilst the CCO was on foot, it must be said that your willingness to follow through with sustained and ongoing psychological treatment or treatment for substance abuse was less successful than your attendance for supervision appointments. Therefore, despite being permitted to have treatment hours credited as part of your community work hours you did not complete those hours. That is unfortunate.
I note that in sentencing you for the breach of CCO, I am confined to the particulars in relation to those breaches that are in the schedule to the contravention charge and the breach report that indicates the background to the breach proceeding.
Nevertheless, my impression gained from the written reports from Corrections and from your appearances for judicial monitoring was that there was some degree of incremental progress in your lifestyle and outlook. I make that observation notwithstanding the offending conduct that occurred in November 2017 and the January 2018 contravention proceedings.
Prior criminal history, subsequent court outcomes and outstanding matters
Your criminal history includes the matters summarised by me when I sentenced you on 12 February 2016.
Four days after that sentence, you were further sentenced for outstanding charges of intentionally damage property, drive whilst disqualified, unlicensed driving and drive unregistered vehicle, which resulted in three months’ imprisonment along with financial penalties. You had also committed the offence of use a carriage service to harass a person by making harassing phone calls from prison prior to your release in 2016 and were dealt with for that at Sunshine Magistrates’ Court on 22 February 2017, with a 12-month CCO being imposed.
I have already referred to the charges dealt with at the Dandenong Magistrates’ Court on 4 December 2017, for which you were sentenced to three months’ imprisonment. On that date you were also dealt with for failing to comply with sentence/order made.[3]
[3]This was found proven.
It has been reported by Ms McKie[4] that you currently face further pending charges from police attendances, including on 5 May 2018[5] for driving offences and two charges of assault emergency worker which are to be heard at Sunshine Magistrates’ Court.[6] Additionally, you are charged with offences alleged to have occurred on 24 August 2018[7], contravene Family Violence Intervention Order and unlawful assault, and for another alleged breach of an Intervention Order on 31 December 2018 in relation to a person called Jay Smith.[8] Of course, you are entitled to the presumption of innocence in respect of those outstanding matters.
[4]Breach report by Ms Chrissie McKie dated 1 February 2019, 4.
[5]I note that the chronology tendered by the Crown referred to this further offending as having happened on 17 April 2018 and not 5 May 2018.
[6]Laid by informant Sutton.
[7]Date of charges unclear.
[8]Date of charge unclear but it is not alleged to have occurred within the operational period.
Sentencing purposes
In sentencing you today I take into account the requirement to give weight to general and specific deterrence, denunciation, just punishment, community protection and rehabilitation. Regarding current sentencing practices, the constellation of facts, founding the matters bringing you before the Court, make it difficult to gain much assistance from comparable cases.
The Court is obliged to apply the principle of parsimony in s 5(3) of the Sentencing Act, which provides that a court must not impose a sentence more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
Section 5(4) of the Sentencing Act provides that the Court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes of sentencing cannot be achieved by a sentence that does not involve the confinement of the offender.
Personal factors
You are now aged 37 and the offending that took place in 2014 has led to ongoing intervention by this Court and by Corrections since your release from prison in May 2016. Your counsel, Mr Newton, informed the Court, during a plea made on your behalf, that when you were released from prison in February 2016 you slept rough for the first few months until Jesuit Social Services helped you to find some rental accommodation in Hoppers Crossing.
I have been told by your counsel that you take great pride in maintaining the property in good order to the satisfaction of the agency involved. Stable residency has been a very important factor in your attempts to rehabilitate from a life of criminal offending. I did observe improvements in your presentation and apparent health and wellbeing over the course of 2016 and 2017 and there were some positive reports of your willingness to seek help or guidance from Corrections Officers or Social Workers attached to non-government organisations.
Unfortunately, your partner Jaymee Bartlett suffered late-term pregnancy loss in the latter part of 2017 which led to significant grief and loss issues for the pair of you, especially since it was Jaymee’s first pregnancy. It was against the background of those pressures that you committed the November 2017 offences. Ultimately, with Jaymee’s help, you were able to retain your rental property and return to it after your release from prison towards the end of February 2018. Since that time, Jaymee became pregnant again and your daughter was born five months ago. You do not live with Jaymee but according to your counsel you now have sufficient insight to recognise when it is necessary for there to be some space between the pair of you within that relationship. The relationship with Jaymee has obviously had many ups and downs but has been an ongoing feature of your life since sometime prior to the original sentence.
You face many ongoing challenges in your relationship with Jaymee and as a parent of a young baby but Mr Newton has submitted on your behalf that you are currently motivated to attempt to settle into a more family-oriented lifestyle with the imminent possibility of some future employment as a concreting labourer. This will require substantial effort by you if you are to avoid returning to prison again and again. However, there are a number of outstanding charges that you will need to face before you can properly commence a path of rehabilitation. Much depends on the outcome of those charges.
I observe that despite these proceedings and the previous breach proceedings brought by Corrections you were nevertheless subject to extensive oversight and interventions by Corrections and the Court for a lengthy period until the current breach proceedings were initiated. This has been a long-term consequence of the original offending which occurred in 2014. As a result of the current breach proceedings initiated in January 2019, Corrections and the Court interventions have continued. It is against the background of these ongoing interventions from May 2016 that I have arrived at the sentence to be imposed today.
Conclusion as to appropriate response to the contravention of CCO
I am not attracted to the submission that you should be sentenced afresh for the 2014 offending under s 83AS(1)(c), taking into account the nature of the combination sentence originally imposed, the passage of time since the original offending and the passage of time since the CCO was first imposed. Further, I take into account the extent of compliance with the CCO and the changes to your circumstances in the intervening years, including significant life events such as the loss of Jaymee’s first pregnancy at an advanced stage and the recent birth of a daughter.
I have closely considered submissions put by your counsel and the Crown on your plea hearing. Whilst Mr Newton made an enthusiastic plea submission to the effect that your insight is improving, there are some countervailing considerations.
Sentence for contravention of CCO
Although I am not inclined to apply s 83AS(1)(c) of the Sentencing Act, for the reasons already expressed, I nevertheless consider that a term of imprisonment is required for the charge of contravening a CCO.
I therefore sentence you to be imprisoned to six weeks’ imprisonment on that charge.
Pursuant to s 6AAA of the Sentencing Act I declare that, if not for your plea of guilty, I would have sentenced you on the contravention offence to 9 weeks’ imprisonment.
Action taken in response to the requirements of s 83AS of the Sentencing Act
Pursuant to s 83AS(1)(b), I confirm the order originally made on 12 February 2016.
Correction of earlier sentence pursuant to s 104B of the Sentencing Act
In respect of the outstanding requirement to announce a sentence in respect of the previous contravention charge, on the charge and summons dated 11 December 2019 which led to the appearance before me on 29 January 2018, I propose to adopt the parties’ oral submissions made at the plea hearing and convict and discharge you for the offence of contravention of the CCO.
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