Director of Public Prosecutions v Austin

[2016] VCC 2012

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00828

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRAEDEN AUSTIN

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 December 2016
DATE OF SENTENCE:	19 December 2016
CASE MAY BE CITED AS:	DPP v Austin
MEDIUM NEUTRAL CITATION:	[2016] VCC 2012

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hamill	Office of Public Prosecutions
For the Accused	Ms T. Vermezovic	James Dowsley & Associates

HIS HONOUR: 

1Just remain seated, Mr Austin.  Well, I hoped I would never see you again, and I said as much when I addressed you back in June of last year.  And the reason I hoped that I would never see you again is, if I did, I told you there was a pretty good chance I would be sending you to prison for a significant period of time, and I meant what I said.

2You has come before me for a serious offence.  It was recklessly causing serious injury.  It was not a joke.  It was a stabbing, one that caused serious injury.  It was all over nothing.

3You had a large body of material placed before me.  You had your mum present then.  You had one of your brothers, who gave evidence before me.  There were reports that were placed before me, and I was persuaded then to deal with you by way of a community corrections order.  Of course, you had done the 44 days as well of course, and it was also something that I could put into the mix, and indeed I did.

4At that stage, you were a young man.  You still are, of course.  And you were a young man with, I think, a raft of issues in your life.  And a critical factor for my consideration was the fact, I think you had offered to plead to the recklessly cause serious injury on a previous occasion and that offer had been rejected by the Crown.  I think the same offer was put again and ultimately was accepted, but in the interim you had turned 21 and so you had lost the ability to be sent to a youth justice facility, so I was faced with a choice either of sending you back to an adult prison or giving you a community corrections order.

5Prison is a last resort, obviously.  I do not send a person to prison unless it cannot be avoided, and I took the view that it could be avoided, so I did what I did:  Put you on the community corrections order, explained it in great detail to you.  Maybe in too much detail.  I do not know, but I have got to explain it.

6And I said at the time that I hoped I would never see you again.  I said at the time that if you came back before me, you would probably have the same feeling in the pit of your stomach as you had the last time you saw me, because you would not have known then what would happen to you, and I can tell you, I did not either, when I came onto the Bench on the last occasion.  That is because your crime was so serious.

7But I gave you the opportunity.  I told you not to expect any more leniency if you came back in breach.  I told you that you would be letting your mum down, your family down, and yourself down of course, and exposing yourself to the real risk of being led out the door to your left.  That is, down to a van downstairs and out to prison to commence a significant term of imprisonment.

8But I said all those things, and in a way I might have wasted my breath, because you have gone out and, about three-and-a-half weeks later committed, on any view of it, serious offending.

9Now, I accept that there might have been some issues in terms of that summary that has been placed before me, and there might have been an aspect of getting the matter behind you that caused you to settle the matter, but I can only act on the strength of the fact that you have pleaded guilty to recklessly cause injury, it is not serious injury, and conduct endangering serious injury.  It relates to the ramming of another motorist on the road, a motorbike rider, and then failing to render assistance.  And that is within less than a month of me placing you on a CCO for recklessly cause serious injury.

10The later offending is obviously less serious.  That is, a foolish decision taken to get behind the wheel of a car when you were suspended from driving, and that is just playing Russian roulette, really.  You took the risk, you were caught, but anyway, it is those matters that are before me by way of breach offences.

11There a handful of non-attendances, but the unusual aspect of this case is the fact that I reports and hear from your worker, Bianca Slovik, and there is a positive aspect in the reports.  And I can tell you, it is pretty rare to see a positive aspect in terms of breaches brought back before the court.  Often, it is people who have totally failed to comply with the order, and you are a long way removed from that.

12You have breached it.  You have not turned up, I think, on a handful of occasions.  But if it was just that alone, you would not be sitting where you are sitting.  You would not have been brought back in breach in a pink fit for that sort of conduct, because really, your conduct on the order has been otherwise extremely impressive, other than the offending.

13So you place the court in an extremely difficult position, I am afraid, and that it what you have done.  You have placed the court in the difficult position.  You have placed your mother in the difficult position, your girlfriend and yourself.  You have bought yourself back into that dock, staring down the barrel of a very significant term of imprisonment, I am afraid, and you have done it.  No one else.  It is you.

14You have seen your mother give evidence, and she should never have had to do that.  She should never have had to have been back at this court today, and you had it in your power to avoid that, just by complying with the order and by not offending.

15Ms Slovik obviously has a very decent relationship with you, which again is an unusual aspect of this case.  You are back before me in breach, but everyone who reflects on the actual order reflects on it with a level of positivity.  They are positive about what you have done.  That is good.

16And your mum, she has had some trials in her life.  You have got an older brother, who is in custody, who has been given chances, and he has found his way into adult custody, and your mum has fears that you are perhaps today putting yourself in the same frame, in the same position, to join the older brother for a lengthy term of imprisonment.

17And your mother speaks, as I say, very positively about the impact of the community corrections order; the fact that you have really engaged, that you are doing things that you enjoy on the order, probably also increasing your employability, I suspect, in the workforce generally as a result of doing what you are doing.  It is improving your self-esteem.  You have got a new girlfriend on the scene.  Again, there is an aspect of stability there, so your mother has obviously dreaded this day, the day that she might be seeing you led out the dock to commence a lengthy term of imprisonment, and she really implores the court not to engage in that stance.

18I said when I dealt with you back in June of last year that I could not predict what I would do if you breached this order, because of course my obligation would be to come onto the Bench and listen to what was said on your behalf.  I think if it was just a matter of hearing from Ms Vermezovic, the writing would be on the wall for you.  I am not being critical of her.  There is a limit to what she can say on your behalf, and that limit is as a result of the offending that you have committed.  She joins the chorus of people who say that you have done well in the order, that you are engaging well on the order, but at the background to all that is breach offending on these two occasions.  Ridiculous.  Ridiculous stuff to breach the order in the way that you have, and with the speed with which you did with that first set of offences.

19So I told you back in June that I would obviously have to listen to anything that was said on your behalf, that I could not predict exactly what I would do, but you should work on the theory that you would be looking at a significant term of imprisonment upon any breach, if you came back before me.  That is what you have done.

20I took this matter home over the weekend, just to read my way through the entries that I made on the last occasion when I saw you, when your brother was called to give evidence and when the plea was conducted on your behalf.  It was Ms Hurst back then who appeared for you, and Mr Nibbs prosecuting.  There were a raft of exhibits that were tendered before you.  Psychological reports and reports from YSAS and from Mr Grech and from Youth Junction.  And also, I think, a letter from your mum as well and a certificate that you had done.

21So I took it all home over the weekend.  I took the various breach reports home over the weekend as well, and the original summary and my sentencing remarks, just so I could place myself in the best position, in advance of today's plea of course, to inform myself of what had occurred in the past and since I last saw you.  And then it was a matter of coming onto the Bench and hearing what I could hear today.

22Well, I can tell you, until I heard from your mother, you were on the way to prison, all right?  But you are not.

23So what I am going to do is give you another chance.  And I am giving it to you because, as strange as it might seem, saying this to someone who is back in the dock in breach of an order, you have actually done pretty well in some key aspects.  If your performance on the order had been dismissive, if you had not been taking steps, and you had been committing offences, you would be out that door.  You would already be out there on the lift heading down, all right?

24But that is not the position.  You have committed offences in breach, but you have actually been doing pretty well on the order, and taking real steps to engage with it.  When I look at that and I look at your mother's evidence and her account of the improvements that you have made in your life as a result of this order, and the order being a good thing in her assessment, then I step back from the precipice.  Well, I think you are on the precipice, I suppose.  I am pulling you back from it.  I am not going to cancel the order in the circumstances.

25What I am going to do is extend to you another opportunity.  I am not going to go through and explain all this again.  You are going to be on the same order.  I am not going to explain the sort of things that can happen to you if you breach it.  You know what they are, and you are lucky indeed that they are not happening today.

26What I am going to do is, on the charge of contravening the actual order itself, that is the offence of contravening a community corrections order, I am going to convict you.  I am going to fine you, well it is a very small sum, actually.  I have the power to send you to prison for three months on that offence.  I am not going to do that.  I am going to convict and fine you the sum of $100.

27And otherwise, I am just going to confirm the order, all right?  So that means the order is confirmed.  You are still on that order.  You are not heading out that door to your left, which I had a sense I would probably be sending you through, at least when I was looking at the matter over the weekend, but I am not.  You are going to step out of that dock in a moment, and you will be heading out the other door with your mum and your girlfriend, and you will be hoping again, as I will be hoping, that we will not clap eyes on each other again.  Well, I hope we do not.  I hope you maintain your performance on that order and stay out of trouble.

28But if you do not, well I will be here.  Come back in breach again and do not expect any further leniency from me at all, all right?

29So do you understand then, that this order just continues.  You are on this order until, what is the date?  I will just find the actual order itself.

30MS HAMILL:  It's 10 June 2018, Your Honour.

31HIS HONOUR:  Yes, so it was a three year order from 11 June.  That order continues.  So you are on that order until 10 June of 2018.  I am just confirming the order.  The breach is proven, obviously, and I am fining you $100 on the offence of contravening the order.  Just hold on.  Do you need some time to pay that, Ms Vermezonic?

32MS VERMEZOVIC:  Your Honour, an initial stay of one month is sufficient, thank you.

33HIS HONOUR:  He gets that anyway, I think?  Anyway, you want a stay?

34MS VERMEZONIC:  No addition of time is necessary, Your Honour.

35HIS HONOUR:  I will grant a stay of one month.  Can we add that to the order?  And Ms Hamill, if you can provide up that bundle of documents which you described.

36MS HAMILL:  Yes, Your Honour.  I'll send it.

37HIS HONOUR:  I will have that marked as Exhibit A on the breach.

38MS HAMILL:  Yes, Your Honour.  I'll send that to Your Honour associate by email when I get back to chambers.

39HIS HONOUR:  Thank you.  Mr Austin, just stand up then.  Do you understand what I have done?  I have confirmed the order, all right?

40OFFENDER:  I understand.

41HIS HONOUR:  All right, so you are on that same order, all right?  Just keep performing on it.  You are doing excellently on it.  I said "pretty well"; it is better than pretty well.  You are actually doing very well on that order, but for the offending.  And that is long gone now.  The last offending was back in December of last year, so it is a year ago, all right?

42So things are actually looking up a great deal in your life, and as strange as it might seem for me to be congratulating you on doing well on the order, given that you are before me for a breach, you are actually doing well in the critical aspects of engaging on that order, and you have got a good relationship with Ms Slovik, and you are getting something out of it.  And I can see the reference to the way you actually do enjoy the unpaid work because of what you are being asked to do.  And that may lead on to something else for you.  So your life can really pick up a great deal over the period of this order, and it is unusual for me to see an order where there is such a positive engagement, and one that actually is improving your position in life, all right?

43So do not put yourself at risk again, all right?  Stay out of trouble.  Getting behind the wheel of a car when you are suspended, I mean, it is just ridiculous to put yourself at that risk, all right?

44Anyway, that is what I am doing.  I am confirming the order.  I am fining you a very modest sum in terms of the offence of breaching my order.  It probably does not seem that modest, it is $100, but you will get some time to pay that as well.

45But just keep up the good work, and just avoid the offending, and we will not see each other again.  And that is what I hope.  I hope we do not ever see each other again, at least in a court.

46Look, that completes the matter.  Grab a seat.  In fact, you can come out of there.  Come out of the dock.

47I will sign those orders in due course.  I am not in a position to sign them for the moment, but I have got another matter coming before me.  I will just leave the Bench, I think.  Yes, I will come back onto the Bench perhaps in about ten minutes, I think.

48(To Ms Slovik) So that is what I have done.  I have confirmed the order, consistent with your recommendation, and I have fined him $100 on the actual offence of breaching the order.  That is with conviction, I should say.  But hopefully things continue as positively as they are at the moment, all right?

49MS SLOVIK:  Yes, certainly.  Thank you, Your Honour.

50HIS HONOUR:  All right, I will disconnect the link.  Thanks for making yourself available, and as I say, I will come back onto the Bench in about ten minutes.  Yes, I will stand down then, thanks.

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