Director of Public Prosecutions v Austin
[2015] VCC 805
•11 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Unrestricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
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: | Plea : 11 June 2015 | |
DATE OF SENTENCE: | 11 June 2015 | |
CASE MAY BE CITED AS: | DPP v Austin | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 805 | |
REASONS FOR SENTENCE
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Catchwords: RCSI
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Nibbs | Office of Public Prosecutions |
| For the Accused | Ms Hurst | Doogue and O’brien |
HIS HONOUR:
1Braeden Lesley Austin, you have pleaded guilty to one charge of recklessly causing serious injury. The charge carries a maximum penalty of 15 years' imprisonment.
2You have admitted a very brief criminal history. You were 19 at the time of the offence but you are 21 now.
Facts
3The details of your offending are set out in Exhibit A, the written summary of prosecution opening. I was told by your counsel, Ms Hurst, that this was an agreed statement. In such circumstances, I see no need to fully recite the facts. The agreed statement will remain on the court file and will be available for inspection. Your offending was obviously serious as your own counsel correctly conceded. After all you used a knife to inflict serious injury on your own friend after what can only be described as a trifling dispute. You knew that your acts would probably cause serious injury. They did.
4
Your victim was taken to hospital by ambulance and hospitalised until the
12 November. It was a period of some five days. He had four stab wounds, three to the buttocks and one to the chest. The chest wound was serious indeed. It had collapsed his right lung. The wound had also lacerated the main muscle for respiration, as well as lacerating his liver. He underwent exploratory surgery being the laparotomy that was referred to.
5You were interviewed on 8 November and you declined to comment, which of course was your right.
6You spent 44 days in custody prior to being released on bail. Let me just interrupt the reasons. So that is from what date to what date then, Mr Nibbs? So he was arrested on the 8th, I think was it?
7MS HURST: The day after the offending.
8HIS HONOUR: Is it 8 November?
9MR NIBBS: It is the 7th.
10HIS HONOUR: Sorry, the - - -
11MS HURST: Yes, the 7th.
12HIS HONOUR: The night of the 6th they are together having the alcohol and the drugs and - - -
13MS HURST: And then it was early morning - the next morning, I believe.
14HIS HONOUR: Was that when he was arrested though? At 6.30 am.
15MR NIBBS: Yes.
16MS HURST: That is my understanding.
17HIS HONOUR: So he is arrested on the - so it is 7 November. And bailed when? Everyone has done the calculations? It is definitely 44 days?
18MR NIBBS: Yes, Your Honour.
19MS HURST: 20 December he was bailed.
20MR NIBBS: Correct.
21HIS HONOUR: Yes, all right, no, it is definitely 44 days. All right. Just returning then to my reasons.
22You spent 44 days in custody, prior to being released on bail.
23A committal was conducted last year at which point you were committed to this court. That was in May 2014. Most regrettably, in the interim, you have turned 21 years of age..
Victim impact
24Your victim has decided not to provide a victim impact statement. That was his right. In the absence of such material, I cannot guess or speculate as to any lasting physical or emotional impact. No doubt he will not forget your conduct in a hurry, but I am unable to find any long-term physical impacts.
Submissions in mitigation
25Ms Hurst, who appeared for you on the plea this morning, raised a number of matters in mitigation, relying primarily upon:
· Your guilty plea and what she said was the early stage at which it was entered in all of the circumstances of this case;
· The presence of remorse;
· Your difficult background, your youth and your relative lack of criminal history;
· The delay and the impact of that delay upon you;
· Your cognitive difficulties and the diagnosis of ADHD, as well as the other conditions referred to in the reports of Dr Vowels and Dr Grech.
· Your counsel argued that you had good prospects of rehabilitation and to an extent had rehabilitated in the period since this offending.
· She argued that it would be open to place you on a community corrections order, given that you had spent 44 days in custody and given your youth and the observations of the Court of Appeal in a recent decision of Boulton.
Crown Submissions
26Mr Nibbs appeared on behalf of the Director of Public Prosecutions and conceded on behalf of the Director that it would be open to release you forthwith on a community corrections order, given the pre-sentence detention served already, being 44 days. Well I have to exercise my discretion. Of course I take into account submissions that are made, but ultimately I have to make the decision as to what is open as a matter of law.
Background
27Before turning to further consider these various matters, I want to turn briefly to your background. I am going to turn only briefly to it, as I have no reason to doubt the personal background that has been placed before me. It is principally contained in the actual report of Dr Vowels and Dr Grech. There is a lot of detail in those reports. There is reference to it also in the written submissions of your counsel that have been marked as Exhibit 1. I really see no need to repeat your personal background to you now in great detail, you know what it is.
28You are now 21 years of age. Your parents separated when you were in primary school. Your father went to prison. You have an older brother in prison. You were one of three children. It seems to me, looking at the detail in those reports that your childhood was really far from ideal, with some exposure to domestic violence and to bullying at home and at school. That background is set out in detail in the reports.
29Part of your background is the fact that you were diagnosed as suffering from ADHD when in primary school, as a youngster. Unsurprisingly schooling was not smooth for you by any stretch of the imagination and it was probably a pretty rocky road for your mother as well. You left school without completing Year 10. You will forgive me for saying this and I hope you forgive me for having raised it in the course of the submissions. It was raised on your behalf as a mitigatory matter. You do not function at a particularly high level and you likely never have.
30You have had some part-time work as a landscape gardener since leaving school, but as I see it, life has been on hold for some time now, courtesy of this matter waiting in the wings and your waiting for it to be finalised. Well you did not choose your background, you certainly did not choose to have any sort of bullying going on at home or at school. You did not choose or have any choice in your level of cognitive functioning. We get what we get. But having got what you got, you have then chosen to abuse drugs and that has clearly had an impact on your functioning, there is no question about that. I take into account though your background and there has been a relative disadvantage in it. I am not speaking of lack of care or love from your mother of family or anything like that, but just the background that you have has been relatively disadvantaged in your case and I take that into account as far as I am able to. See Marrah.
Psychological material
31I have referred already to the reports of the experts placed before me, one from the neuropsychologist, Dr Vowels. That is a quite old report. She sets out your background, as I have said, in some detail and I have referred to that already. It is very difficult to summarise what she says. Anyone reading her report will understand why I say what I have just said, but she reaches a number of conclusions as to the diagnosis in your case. Her opinions are set out in the report. You have clearly been diagnosed in the past with ADHD. There is reference in Dr Grech's report of discussions that he has had with your mother about the course of your conditions over the journey of your life. You are also likely to have some form of acquired brain injury, courtesy either of car accidents or drug use, or maybe even both.
32
I really do not see any need to quote from the report of Dr Vowels or
Dr Grech for that matter. I do not doubt Dr Vowels’ or Dr Grech’s diagnosis. It is simply what I am to make of it all in the sentencing process. I certainly do not accept that this offending on this particular occasion can be put down to the impact of the various conditions referred to. Dr Vowels makes some comments in her report as to contribution of your various conditions to the offending, but they are not relied upon by your counsel. I think you put your own finger on the important contribution made to this offending by your use of alcohol and drugs when you were discussing the offending with the author of the Youth Junction report.
33No doubt alcohol and drugs would have disinhibited you, they often do, they are often present in the course of crimes of violence that lead young men to sit where you are sitting, but that is not a matter that is mitigatory.
34Your counsel very specifically disavowed any reliance on any of the principles from a case you heard discussed of Verdins v R. That is a case in the Court of Appeal, just so that you understand a case in the Court of Appeal that deals with the impact of conditions suffered by an accused person and the impact of those conditions on the sentencing process, that is, conditions existing either at the time of offence, or the time of sentence, or both. Your counsel, as I say, specifically disavowed any reliance on any of those principles. She could not have been more explicit.
35However that does not mean that those reports or your conditions are irrelevant, of course they are not. I have to sentence the person who has those raft of conditions. The reports are useful, though each stray into areas that were better left to the sentencing judge, it seems to me, but I do not doubt that you are impulsive, and probably more so than most, courtesy of the conditions spoken of and I do not doubt that you are not performing at a high level, far from it. In fact I think, having reviewed those two reports, I will in fact give some very limited weight to the 1st, the 3rd and the 4th principle from that decision of Verdins, but they do not absolve you of responsibility for your actions or remove the need to consider general and specific deterrence. Those principles still clearly operate, though sensibly moderated.
Criminal History
36I turn to your criminal history. You admitted a criminal history comprised of only a single appearance. It was for a relevant offence, but the history at least was entered to the court in that formal document is not a long one and you were much younger at the time of that earlier offence. Of far greater concern is the matter dealt with at the Magistrates Court on 2 October 2013, relating to offending in December 2012.
37For some reason that has not particularised as a prior conviction, it obviously should have been, but that is by the by. That summary, marked as Exhibit B, is disturbing, relating as it does to offending in December 2012, deal with at court on 2 October 2013. You were placed on an undertaking to be of good behaviour on those offences and they were of conduct endangering serious injury, threat to kill, and criminal damage. You committed the offence for which I must pass sentence, just over a month later, despite having previously completed the Youth Junction program. So that is a bit of a worry. Since then though, since the commission of this offence, you have been out of trouble, other than there being, I think, one allegation of driving whilst suspended.
38I accept that this offence for which I must pass sentence is by far the most serious you have committed. It is a serious offence.
Guilty Plea
39I turn to the other matters in mitigation raised by Ms Hurst, and the first of these is the fact of your guilty plea. Well you have pleaded guilty and I accept that your plea of guilty has a strong utilitarian value in this case. I accept also that it was entered at the earliest opportunity. You will be given the appropriate discount for that earliest of guilty pleas. Witnesses have been spared the experience of coming to this court and reliving the unpleasant event. Your victim has been spared that experience entirely. There was only a single witness called down below in the committal proceedings and it was not your direct victim. In fact you tried to settle this matter prior to the committal and on the day of the committal, upon the terms that it ultimately did settle upon. The community has been spared the time and the cost and the effort of a contested hearing in this court, and in this way you have facilitated the course of justice. So I will pass a lesser sentence because of your guilty plea and the early stage at which it was entered.
Remorse
40Your counsel argues that you are remorseful for this offending. Well I have your guilty plea and your plea offers, which are indicative of that fact, but as well as that, there was some phone calls that you made on the night itself referred to in the opening. I am prepared to find that you are remorseful for your crime and that you are sorry for what you have done to your victim. He was your friend and you know what you have done to him. You regret the conduct and the effect that it has no doubt had on him. I take that remorse and regret into account in mitigation.
Rehabilitation
41I turn to your rehabilitation. You are 21 years of age. You are very young.
42Your criminal history certainly does not signal to me that you are some person who is beyond hope. Far from it. In fact, as I have said, your life has not been easy and yet you have, at least relatively speaking, stayed out of trouble for a large part of your life. You are remorseful for this crime. You are lucky to have a supportive family. It is clear enough from that letter written by you mother, I am not sure if you have seen it or not, but that your mother has been your strong advocate and support. You are lucky to have her.
43You have done a plumbing pre-apprenticeship course in the period awaiting the finalisation of this matter. Your brother, who has given evidence before me, tells me that you are likely to find an apprenticeship, either with him when he gets his licence and forms his joint business with his friend, or with his friend.
44You have generally remained out of trouble in the period since committing this offence and I am told that you have abstained from alcohol, or problem alcohol use, and from drug use.
45You were in in custody, as I have said, for 44 days. That period of imprisonment was served moving from watch house to watch house in a most unpleasant setting.
46Ultimately I believe you have good prospects of rehabilitation if, and it is an if, if you deal with your drug use. If you maintain treatment for a range of conditions spoken of in the reports. It is a big if. If you cannot successfully deal with your drug use, then your prospects are very much dimmed, I can tell you that from my experience in the courts. But if you can leave drugs behind you, then I think you have some favourable things going on in your life. There was some favourable things in the Youth Junction and YSAS reports, but of course you disengaged in those services and did not maintain the treatment that I think so clearly you need. It is very naïve to think that you can have a long-term use of drugs and click your fingers and be rid of the issue, it does not work like that. Anyway, as I say, I believe you have favourable or good prospects of rehabilitation.
Youth
47I take into account also of course the fact that you are a youthful offender. You are a very young man and one with no significant history before the court. So I pay strong regard to the principles derived from the cases various cases that deal with the importance of youth in the sentencing process, including the decision of Mills and Azzopardi and indeed the more recent discussion of the importance of youth in the case of Boulton. Unquestionably youth is a very important factor. Rehabilitation is a very strong consideration when dealing with a young offender. If it can be avoided, then an adult gaol term should be avoided for any youthful offender. That is because adult gaols are notorious for the effect that they can have in potentially impairing a young offender's prospects.
48Young people generally are more prone to ill-considered decisions. The often do not think about the consequences and there is a very strong interest in the rehabilitation of a young person and that is an interest held both by the courts, but also by the community. Rehabilitation is, for these reasons, usually far more important than general deterrence when dealing with a youthful offender, as you are. But each case is different and sometimes rehabilitation must take a lesser role in the sentencing exercise. It has to give some ground to other purposes of sentencing. Here your youth is clearly an important factor, but it is not the only sentencing factor that I have to pay regard to. The fact is that very many crimes of violence are committed by young people, especially young men and often with knives or weapons employed.
Delay
49I turn to the delay here. This crime was committed in November 2013. You have, as I have said, essentially been out of trouble since. Your counsel relies upon the delay in two ways, as firstly providing a valuable insight into your prospects of rehabilitation by looking at what you have done in that period. That is, that you have been out of trouble for a not insignificant period and doing some useful things. Secondly the matter being outstanding is itself a form of penalty upon a young person. It has made it very difficult for you to live your life with any certainty as to what will be taking place beyond today's date. That makes it hard to get on with your life and there is an aspect of having your life on hold, waiting for the finalisation of the matter. Do you go and try and find a job when there is a chance of a job being interrupted by an immediate term. It casts doubt about every aspect of the life that you are trying to lead. That is not easy. So I accept each of the submissions made by your counsel about the aspect of delay here. Of course it would be very different indeed if in the period of the delay, you had been running off helter skelter committing offences, but that is not what has been happening.
Current sentencing practice and Offence gravity
50I take into account, as I have to, current sentencing practices.
51I have looked at the case of Winch [2010] VSCA 141. Now that is a case that relates to recklessly causing serious injury, but recklessly causing serious injury where it is produced by a glassing, if I can use that term. But some of the observations as to the seriousness of the crime of recklessly causing serious injury made in that case are relevant here. The Court of Appeal in that case, as well as in a case of Ashe [2010] VSCA 119, spelt out the essential seriousness of the offence by examining the required mental element. It is one which requires foresight of the probability of causing serious injury. The assessment then of the seriousness of an instance of the crime of recklessly causing serious injury would involve a consideration of the degree of probability that a serious injury will result and the degree of seriousness of the injury foreseen.
52The court went on to comment in that case of Winch on the obvious dangerousness of striking someone with a glass or a bottle. That is because it was something that could break, and upon breaking be transformed into a very dangerous item. Well you were not using a bottle or a glass which might or might not break. You used a knife. It did not depend on luck or bad luck to be converted into a dangerous object, it was a lethal weapon and you used it repeatedly to stab your unarmed victim. including once to the chest area.
53
There was then a real likelihood of producing the sort of injuries that actually were caused. I have also considered the Judicial College of Victoria sentencing manual, which has an overview of sentences imposed for this crime. Current sentencing practice is one of a large range of matters that
I must pay regard to. Consistency of sentencing is a fundamental objective of the criminal law. But there is never one correct sentence.
54Now the outcome in other cases, it can never be decisive or dictate the actual sentence to be imposed in this particular case. Other sentencing decisions are not precedents that have to be followed. Every case is very different and so too is every offender. What I have to do is pay regard to the various matters that have been raised before me and pass an appropriate sentence in your case.
Gravity of the offence
55I turn then to consider another matter I have to have regard to. That is the nature and the gravity of the offence. Well here there was no provocation in any true sense and none was in truth relied upon. There was a silly disagreement over a piece of a bong. You left your premises and ran towards the victim, who was heading back to the car. He stepped towards you. There was some yelling on each part and he even swung a blow which missed. Hardly surprising, given your conduct in running down the drive. There was a scuffle and you stabbed him.
56You had obviously left the premises armed with a knife. As to the injuries, they are certainly are not low-level serious injuries, they are sufficient to easily meet the new definition of serious injury under the Crimes Act. Your victim required surgery, that is, he was taken off, there was the exploratory surgery and then the repairing of the wounds. He required hospitalisation. So there was a significant short-term impact in that sense. They are clearly, though, a long way removed - these are the injuries, from the catastrophic serious injuries that unhappily we sometimes see in this court, but they are also far removed from the lowest examples of serious injury constituted by this crime.
57I have to pay regard to the nature and gravity of the offence before the court. I do not believe for one moment that this crime falls towards the lowest or lower level of offence seriousness. It does not. It falls closer in my mind to the middle of the range. But all this talk of the level of offence seriousness can be easily misunderstood by someone who happened into court. There is no suggestion that this offence was not serious. You stabbed your friend repeatedly. This was on any view of it, serious offending.
Sentencing considerations
58I have taken into account all of the submissions made and the exhibits that have been tendered before me. I have not descended to the detail of your mother’s letter, or the other letter tendered on the plea, but I take them into account. Nor have I actually said much in terms of the details of the letters from - the Youth Junction report, or the YSAS report, but I take them into account as well. Those reports and the letters, especially the letter from you mother, show to me that you are amenable to change, that you have actually taken some real steps along the road to rehabilitation since the commission of this serious crime, and that is significant.
59Now sentencing is always a relatively complicated task. Those who say it is not, have either never done it, or have stopped doing it. There are a large range of matters which must be taken into account by the court. I have to take into account the maximum penalty. I have to pay regard to current sentencing practices and to the impact of your crime. There are a host of other matters I have to take into account.
60Your prospects of rehabilitation are of course a highly relevant purpose for me to consider and I do not ignore them. I think they are likely, as I have said, to be good if you can remove drugs from your life. However, your prospects of rehabilitation are not the only matter that I have to consider. If they were, then sentencing would be far easier. You must be punished for your crime, though I must punish you justly and proportionately and this court also is required to denounce your conduct. I do. It was pretty extraordinary behaviour that you engaged in, to knife your friend and over what? Over nothing. Yet you so easily could have killed him and so easily wound up sitting in the dock in the Supreme Court and with your own life totally ruined. Very luckily that is not the position. Community protection is also a matter I have to have regard to and I have to give it some weight, but I think I can reduce the emphasis on that purpose, given your quite limited criminal history.
61I have to consider specific deterrence. That is the need to deter you from further offending. That is a relevant consideration, given the nature of the crime and your criminal record, short as it is. You must be deterred. You have got to get it into your head that you are not free to engage with others in a violent fashion. You must be dissuaded from ever committing such a crime as this again.
62I do though moderate that purpose as well. That is, specific deterrence. given the conclusions that I have pronounced as to your good prospects of rehabilitation and the Verdins consideration that I find available to me in this case.
63
I think you have a relatively low risk of re-offence. I hear and see what the authors say in the assessment report. They judge it to be a high risk, but sitting where I am sitting, looking out in a court and the various material that
I am paying regard to, I think it is a relatively low risk of re-offence if, if you are amenable to treatment. I say that because you are remorseful. In terms of the need to deter you, I think the process of your being charged, of brought before the court, of there being a delay in the finalisation of the matter and then serving the sentence that I will shortly pronounce, I think all those things will have a very strong deterrent effect upon you. There has already been a sizeable impact upon you, in the sense that you were locked up in an adult prison. That cannot have been easy. So the weight to be given to specific deterrence can, I think, be reduced here I believe.
64This court must also seek to deter others, not just you, but others who are minded to commit this type of serious offence. That is, a mindless serious acts of violence with a weapon. General deterrence is still a highly relevant purpose here despite my slight Verdins moderation in that area.
Sentence
65Your counsel suggests that it is open to place you on a community corrections order. She referred me to the case of Boulton. That is another decision of the Court of Appeal that was delivered in December of last year and it is said to have changed sentencing landscape very significantly in this State. The Court of Appeal said in that decision that the conflicts in sentencing purposes have been reduced, because a community corrections order can rehabilitate and punish at the same time, that is simultaneously. They say that a community corrections order can provide substantial general deterrent effect and very substantial specific deterrent effect.
66They go on to say that a community corrections order is intrinsically punitive and, with suitable conditions, is capable of being highly punitive indeed. It can punish because of its onerous nature. So the Court of Appeal in that case urge judged to reconsider accepted views about imprisonment and when it should be imposed. They say that opportunities for rehabilitation in prison are severely limited and prison can be seriously detrimental. But I need no convincing of those matters. They say that an immediate term involves a conclusion that retribution and deterrence must take precedence.
67You have already served an immediate term. True enough, it is not a large term, it is only 44 days, but it was not in an easy setting and I hope it will have given you some sense of life ahead for you, if you break the law in the future.
68The question though for me is whether I must further confine you. The only way I can is by the very blunt and crude implement of an adult prison term, as I have lost the ability to send you to a youth justice centre and that is very significant. Your 21st birthday has come and gone and so too with it the ability to consider a less harsh regime of confinement as exists in the youth justice facilities. The loss of the ability to even consider that disposition is, in my mind, a very significant factor here and it is through no fault of your own. Had the matter settled when you first made your plea offer, a court could have at least considered sending you to a youth justice centre, but that is now lost forever.
69So I consider how prison will assist you or the community? Well it very often does not assist a person sent there, but very often courts are required to send people to prison. There are other purposes of sentence. In your case though I have concluded that a return to prison would be very counterproductive for you, but as importantly, counterproductive for the community. I have a sense that It would likely seriously jeopardise the progress that you have made and both you and the community would be the poorer from such an outcome.
70So I believe that it is open to accede to the submissions made by your counsel, that it is open to me to convict and sentence you to a period of imprisonment, but it is going to be a period of 44 days, all right? So you have already served that. And to also place you on a community corrections order in relation to this offence of recklessly causing serious injury. So essentially it will mean you will be immediately released, then in a position to discharge your obligations under the community corrections order that has been urged upon me. I am going to tell you about the conditions of that and you better listen very carefully.
71So I am going to place you on such an order. I am doing so because I believe that the order, in conjunction with the term of imprisonment already served, can meet all of the needs of sentencing in this case, including provision for punishment and specific and general deterrence.
72Now you need to listen very carefully, here. I will just deal with perhaps the disposal order first. I will come back to the order in a moment. Firstly there is a disposal order that is sought. It just relates to forfeiture of some bits and pieces referred to in the schedule. There is no opposition to this order being made upon convicting Mr Austin of the charge of recklessly causing serious injury and satisfied of the matters referred to in that document, that is the material was of negligible value and was used, or intended to be used in or in connection with the commission of the offence.
73Pursuant to the provisions of the Confiscation Act, I forfeit the items referred to in the schedule to the State. Direct that it be placed in the custody of the Chief Commissioner of Police. Be held by him until 28 days from this date, or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. So I have simply ordered the disposal of those various items referred to in the schedule.
74All right, now, so just listen to me carefully. All right? And at the end of all this, I know there is a lot of language coming in your direction, but at the end of all of it I am going to ask your counsel to go down and to just confirm that you understand what I am saying, because if you breach any of these conditions, you will breach this order, all right? So I need to have an understanding that you understand what I am proposing and that you consent to this order, because I can only place you on this order if you consent. So it will be one chance and one chance alone for you. You breach this order at your own peril. If you do, you will be sitting back where you are sitting today.
75As to duration, as I have said a short time ago, I think you are a work in progress. You have got a range of issues. I think treatment is likely to be required for a significant period of time, measured in years, not months. The seriousness of the offence alone demands a long order in any event.
76So in addition to the 44 days' imprisonment, I intend to convict and sentence you to a community corrections order for a period of three years from today's date, all right?
77Now I know in broad terms the order has been explained to you by the assessment officer, that is, the sort of things you have to do and what you cannot do, but again I have to explain it to you, because I need to get your consent at the end of all this, all right? So listen carefully, please.
78The order is going to commence today. It is for a three year period from today. You must attend, you will get all this in the document, but you must attend at the Werribee Community Correctional Services Centre at 87 Synnot Street in Werribee. You have got to turn up there within two clear working days, all right? The address is on the document.
79Now, you have never had these orders before. Sometimes I have to explain them to peep that have had them ten times and it gets a bit dull for them and for me. But you have not had one. I want you really to understand what it involves.
80Each one of these orders have the same mandatory terms. They apply to everyone who gets one, whether it is you or whoever else happens to get it, they are the same mandatory terms and this is what they are:
81You must not commit another offence for which you could be imprisoned, during the time that the order is in force, all right? So that is pretty simple. For the next three years you cannot commit an offence punishable by imprisonment. If you do, you breach the order. All right? Do you understand?
82OFFENDER: I understand.
83HIS HONOUR: All right. And just so there is no doubt about that, there are - in this day and age, and your counsel will confirm this no doubt once I have left the Bench, but in this day and age, virtually every offence is - can be punished by a term of imprisonment. Often they are not, as you have learnt.
I mean you have committed offences in the past and not been sent to prison. But they were punishable by imprisonment. To illustrate it further, I am not suggesting you are going to do this, but if you went into a milk bar, if such a thing exists anymore. If you went into a milk bar and stole a 50 cent Freddo frog, right? I am not saying you are going to do it, of course you are not, but if you did, you put it in your pocket and out you went, you would be committing an offence of theft, and theft is punishable by imprisonment.84I do not think - I hope there is not a magistrate in their right mind who would send someone to prison for a 50 cent theft, but that sort of theft would be - could be punished, in theory, by a term of imprisonment. All right? And I was told something about there being an outstanding charge, for instance I think, of driving whilst suspended. If you were driving whilst suspended in the period of this order, you would breach this order, because that is punishable by imprisonment. Virtually every offence is. So pretty straightforward. For the next three years, you stay out of trouble.
85As another example, if you were to be using drugs, those sort of offences are punishable by a term of imprisonment. You have got to possess it to use it, and if you possess it, it is punishable by imprisonment. So any offence committed by you in the next three years and you would be breaching this order. All right.
86There is then a condition. It baffles me that it is put on the order. We have no say over this, but it is in these terms: You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011 - you will not have the foggiest idea what they are, most people do not, I do. You have got to turn up absolutely straight, all right? Not affected by any alcohol, obviously not affected by any drugs, for any of your unpaid work, for any of your supervision, for any of your treatment or assessments, all right? And you cannot have any alcohol within about eight hours, I think, of actually turning up. You will also have to make yourself available for a photograph for record keeping purposes. That is what that condition is all about.
87You must report to and receive visits from - and the document lapses, for it says, "The secretary or delegate". What we are dealing with there is the Community Corrections officer. So you have got to report to and receive visits from your Community Corrections officer, all right?
88You must, as I have told you, report to the Community Corrections Centre within two clear working days of the order starting, so within two days of today.
89You must let a Community Corrections officer know within two clear working days of changing any address or job. You are not to leave Victoria without first getting permission to do so from the secretary or delegate. That will be from the Community Corrections officer. And you must obey all lawful instructions from and directions of the secretary or the delegate, that is from the Community Corrections officer.
90So it is all a bit of a handful there, I am afraid. Lots of words, lots of sentences, but they are pretty straightforward. You stay out of trouble. You turn up when you are told to turn up. You report when you are told to report. You let them know if there is any change of address or job. You obey their lawful instructions.
91So they are the terms - the mandatory terms that apply to every order. So they apply to your order, they would apply to the next person I give an order to.
92Then there are tailored condition that I tailor to your particular individual needs. Now, the first of those, at least in the document itself, is it is a punitive condition. It is there to punish you. There is no - make no mistake about that. I am punishing you. That is part of the purpose of this order. It is unpaid community work, all right?
93You must perform 350 hours of unpaid community work. Now that is over the three year period of the order. And that is as directed by the regional manager. Well I do not know where you are going to be told to attend. I do not know what work you will be told to do. But what I know is this, whatever you are told to do, wherever you are told to go, you turn up and you do it. It is pretty straightforward. Attend where you are told, do what you are told to do. If you do not, you breach that order. So that is the first of the conditions.
94Now you are going to see, when you get the documents, and I will deal with it - that it says this, "If you fail to comply with that order", which is the unpaid work, it says, "The Secretary to the Department of Justice or delegate may give you a direction to perform additional hours of unpaid community work in accordance with s.83AU of the Sentencing Act 1991." Again it is a clause that has very limited use being on the document. What I do not want you to think is the worst that is going to happen if you fail to do your unpaid work is they are going to give you a direction to do a bit more. They do have the power, the Community Corrections people to - if you are failing to comply with the unpaid work, they can direct you to do, I think, another 16 hours. But I do not want you to see that condition and to be lulled into a sense of thinking, "Oh the worst that is going to happen is, if don't turn, they are going to get me to do some extra hours". It will not be the worst, they will breach you. All right? Do you understand? All right. So they are the first conditions relating to the unpaid work, so 350 hours over the term of the order.
95You are going to be under the supervision of a Community Corrections officer for the total period of this order, so for three years, all right? So you will form, hopefully, a relationship and a decent relationship and a useful relationship with that person. But that is for the period of the order. Well, if I go no further and just deal with those particular conditions, the unpaid work and the supervision - I know this because I sit up here every day of my working life, you do not, because you have not had much exposure to courts and no exposure to these orders.
96I place people on these orders quite frequently, all right? And I see many of the people that I put on these orders back, in breach of them. All right. I do not want to see you back, but if I do, I do. But I can tell you from my experience of these orders that so many of them are breached by people who just do not turn up or they lose contact with their Community Corrections officer. They do not turn up for supervision, they do not turn up for work, and they try to construct or provide some reason as to why they did not turn up. Or maybe even a reason that is not that good. I have had people talk about sleeping in or mislaying the appointment card, or the text that told them where to go or when to turn up.
97If you have got a good reason, if there is a pressing reason for not being able to attend work or supervision, for Heaven's sake, get on the phone and let them know. All right? That is the best way of avoiding any confusion about it, or any strife. They are not be silly about it. If there is a good reason for you not to able to be able to attend, of course they are going to reschedule it, but if you just do as many people do and just do not turn up and then when they chase you down say, "I didn't turn up because of this, that or the other" they will not believe you and they will breach you. So as I say, do not muck around with them. If you have got a good reason, let them know. But I can assure you, if you do what many people do that I see back before me, that is, not turn up, then after the event try and construct some reason, you will see me again. You will be breached on this order.
98Now the other special conditions that I have tailored really focus on treatment and your rehabilitation. And obviously enough, you know this, you do not need me to tell it. You put your finger on it yourself in your discussions with one of the authors of the report. You know that alcohol and drugs, at least had a role to play in this conduct that was unleashed on this particular day, so unsurprisingly there will be treatment and rehabilitation conditions. You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager, and you must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the regional manager.
99Further you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the regional manager. And finally there is a residual condition that you must participate in programs and/or courses that address factors relating to the offending, as directed by the regional manager.
100All right, now again there is a bit of mouthful there, but what it amounts to is this. I cannot know now exactly what they are going to direct you to do, in terms of assessment or treatment or testing for alcohol or drugs. But whatever they say, goes. All right? Pretty straightforward. And it is not voluntary, it is not you saying, "Oh I think I'm pretty right now and it's been months and months and I'll do what I did with the crowd at" - I keep forgetting their name, "at the Youth Junction or at YSAS." You make a decision that you are not going to do it, that is not a decision for you to make. If you are given directions to attend for assessment or treatment or testing, you do it. Ve3ry simple.
101In terms of the mental health assessment and treatment, do not be troubled by reference to hospital or residential facilities. I do not think there is any suggestion that is going to occur. It is simply - it is a residual - it is a condition that gives them the ability to maintain the treatment that you have been having. It has been useful, I suspect, and they will know about - and they do know about Grech, and may well use Grech in your ongoing treatment, which is probably as good thing that there is a relationship in place.
102The final condition is simply a residual one, giving them the ability to get you to attend programs and/or courses, relating to the offending, as they direct is appropriate. Now again, I do not know what they are going to say about that, but again, what they say goes. All right?
103So I have gone through then now the mandatory terms. I have gone through the special conditions that I have tailored in relation to this order. Do you understand the effect of these conditions?
104OFFENDER: Yes, Your Honour.
105HIS HONOUR: All right. Again I will get your counsel to come down shortly, but I want to tell this. I have told you a bit already, but so many of these orders are breached by people who, for obvious reasons, when they are sitting where you are sitting, they are happy enough to enter a community corrections order and head out the door to your left. So they are often happy, they are often relieved to enter the order. You will be relieved, I suspect. But then people leave court and their relief and their happiness evaporates. They are back out in the community, they are trying to live their lives. You will be having things you want to do. You are going to want to try and find work and employment as an apprentice plumber. You will have friends that you will want to catch up with, things you want to do.
106You will no longer have the black cloud on the horizon that court has been for the time that it has. And it is easy then to think, "Well I've got this order, court is behind me and I'll just get on with my life." And what people do, I see it all the time, as people sitting where you are sitting who have consented to entering these orders and done so with a sense of relief, leave court, got out into the community and then come face to face with the onerous nature of these order. They are onerous. And this is lengthy. It is three years. And I have found that people have a way of assigning priority to other parts of their life and putting the CCO down the list of priorities. And every person, every person who does that, winds up back sitting where they are sitting. And sitting where they are sitting, where they had previously sat and avoided an immediate term of imprisonment and could have continued to avoid that just by complying with the order.
107So they come back to court in breach. There is always something that they put ahead of the order, maybe it is work, maybe it is some other social interaction, but they do not turn up for work. They do not turn up for supervision. They lose track of their Community Corrections officer and before they know it, there they are back in the dock. And generally when that occurs, they head out the other door, the one to your right. A door that they had avoided and could have continued to avoid, just by complying. Do not put yourself in that position, please do not. Do not put your family in that position.
108So I have not explained what happens if you do place yourself in that position. And you need to understand this. There will be a knock on that door. You will be sitting down in that dock, whether it is one or two or three or four or five years from now, if you breach this order. There will be a knock and in through that door will come a judge. It will not be another judge, it will be me. I am not going anywhere. And I will come in and I will be carrying al the material in this matter. I will be carrying transcript of today's appearance, including my explanation of this order to you. I will be carrying all the notes that I have made today. And then I will have to deal with you on the breach.
109Now I have not told you precisely what would happen if you breach this order and of course I cannot, because I would be obliged to listen to anything that was said on your behalf at the time of the breach. Obviously I cannot just come in and pronounce sentence. But I want to give you some idea and I want to give you the sense of what you should expect if you breach this order. I do not want someone consenting to an order such as this and coming back in one or two or three or four years from now and saying, "I didn't know what could happen. You will know because I am telling you right now. All right? You breach this order by breaching any of those mandatory terms or any of those conditions, and that itself is a criminal offence, breaching one of these orders or contravening a community corrections order is itself a criminal offence. It is punishable by a term of imprisonment. But that is not the real sting. The sting to it is, this, If you breach this order, you will be brought back to this court before me and you will see me again. You really do not want to see me again. And believe it or not, I do not want to see you again.
110If I do not see you again, and I will not if you comply with this order in the next three years, then obviously my sentence will clearly have been the right decision. If I do not see you again it will show to me that the leniency I have exercised here was deserved, that you have taken up the offer and got on with your life, so my sentence would plainly have been the correct one. You would have succeeded on the order, you and the community would be better for it. But if I see you again, it will be because you have breached this order.
111As I have said, of course I would listen to anything that was said on your behalf, but you need to understand this. You have been given an opportunity here, a real opportunity. This is a serious crime that you have committed.
I have extended to you substantial leniency. Do not expect any more upon the breach of this order, if you breach it. You have been given the chance today to avoid the substantial term of imprisonment which ordinarily would be imposed for this sort of crime. Breach this order and what you are then doing is exposing yourself to the real risk of cancellation of this order and then
re-sentencing. All right? What I can tell you that re-sentencing would - you should work on the theory that it would likely lead to a very significant immediate prison term being imposed upon you, with a non-parole period as well. All right? So do you understand that?112OFFENDER: Yes, Your Honour.
113HIS HONOUR: Now you have seen the inside of a prison now. You do not want to return to the inside of one, and you have the ability not to, but it is all up to you. All of it is up to you. And you just need to take the chance that is being extended to you. All right.
114Now, Ms Hurst, the Court of Appeal have much to say in that decision of Boulton about obtaining informed consent. Are you satisfied that I have adequately explained the condition and the terms of the order, the ramification of breach of such and order and that your client understands these matters, on not?
115MS HURST: I think - it's very greatly appreciated that - what you've done.
116HIS HONOUR: Go down and see if he would like this - - -
117MS HURST: I think I should just pop down.
118HIS HONOUR: Yes, of course, yes.
119MS HURST: If I could. Thank you for that opportunity, Your Honour. As I indicated, I went through it with him before today and Your Honour's clearly explained it to him and he indicates he understands and consents to the order.
120HIS HONOUR: Yes, all right, thank you.
121Well I will have that order then printed out and - yes, I will just have that come to the Bar table. If you would just both look at it to make sure it mirrors my stated intention.
122MS HURST: Thank you, the - - -
123HIS HONOUR: Yes, all right, I will have that - if that can be taken down.
124Mr Austin, do you - you understand the order and its terms and conditions?
125OFFENDER: Yes, I do, Your Honour.
126HIS HONOUR: And do you consent to entering into such an order?
127OFFENDER: Yes, I do, Your Honour.
128HIS HONOUR: Yes, all right, we will just have that order signed by you then.
129Just grab a seat then for a moment. I will just sign it myself and we will get a copy of that and - all right, do not worry about standing up again, just do you acknowledge then that you have signed this community corrections order?
130OFFENDER: I do, Your Honour.
131HIS HONOUR: And you have signed it under the words "I understand the effect and the conditions of this order and consent to it being made"?
132OFFENDER: Yes, Your Honour.
133HIS HONOUR: Yes, all right. All right, well what is your understanding as to what is likely to happen if you breach this order and you come back before me?
134OFFENDER: Um, I get re-sentenced.
135HIS HONOUR: Yes, and what do you think that might involve?
136OFFENDER: Um, and instant gaol term.
137HIS HONOUR: Yes. All right. Well as I say, it is a long order. It is three years. It is not meant to be easy. Maybe it will not be. It is an onerous order and that is one of the reasons why I can actually impose it for this sort of matter. There might be some clashes along the way, in terms of things you would rather do, other than attending in relation to the unpaid work or the supervision or the treatment. But as I say, take the benefit of my wisdom, having seen lots of people who breach these orders. People who are very happy not to have been sent to prison, who are then very unhappy to wind their way back into the dock.
138You give the appropriate priority to this order. And if you start losing that priority and putting other things above it, just think back. You think back and remember the way you felt when you came before this court today, or yesterday before you came to court. You probably felt sick in the stomach,
I suspect, not knowing what was going to happen to you. And your mother probably did as well. Neither you nor your family knew what was going to happen to you, and nor did I. All right?139You did not know whether you were going to be going home or going to prison. So that is the state that you will be in if you come back before me on breach, though I suspect you will then have a much better sense then as to what will happen to you, because you will be coming back in breach of this order that gave you the chance of avoiding going to prison. So you bear all those things in mind. It would very likely have a - I think a very different ending for you if you breach this order than the ending that will occur today. So do not muck around with this order.
Section 18 declaration
140All right. Now I declare then that you have spent 44 days by way of
pre-sentence detention and that declaration is made pursuant to s.18 of the Sentencing Act and is to be entered in the records of the court.141So what I have done is, I am sure you will understand, is I have imposed the 44 days term, which equates with the pre-sentence detention that you have had. I have declared that you have already served that 44 days in custody and that then should lead to your immediate release, but because I have imposed a term of imprisonment, you are going to go out the door to your right at this point, all right? And then you will be processed downstairs and released, I would think, very swiftly. I think that is the position that I have to engage in, because I have actually imposed a term, Mr Nibbs.
142Let me just - does anyone have anything to say about that at all, or not.
I know I have declared the 44 days.143MR NIBBS: No, no, I've just never seen it happen.
144HIS HONOUR: Yes.
145MS HURST: Neither did I.
146HIS HONOUR: Yes. Well I think that is the position. I am imposing a term of imprisonment. I know he came in on bail, and generally when a person comes in on bail, they can head out the same door, but I suspect it might be different. I will just enquire of the officer down the back of the court. Is that the position then, that he has to go downstairs?
147PRISON OFFICER: In all the times that I've done it, Your Honour, because you've said there's time served, he's already served it.
148HIS HONOUR: Yes.
149PRISON OFFICER: It's only when they've normally been in custody that you take them back downstairs and they're released. And because he's come off the street from bail.
150HIS HONOUR: Yes. All right.
151PRISON OFFICER: I've just never had this situation myself, Your Honour, where someone - where a judge has actually said to do that.
152HIS HONOUR: Yes, all right. I think in the circumstances, I will cut out the middle man then, and let me just see if I am - yes, as I say, I think I will cut out the middle man. I am declaring 44 days. There is no issue about whether it equates to 44 or not, it does. I am making that declaration and in those circumstances. I would be different if he had come in from the back door, then he would need to go downstairs, I think.
153MR NIBBS: Yes.
154HIS HONOUR: But I think in the circumstances, there is - it is clear enough that he has served that sentence that I am declaring that he has. So in the circumstances, I think, given the time of the day and the presence of his family, I will have him free to leave the dock, in the circumstances, all right?
Section 6AAA
155Let me just see what else I need to say. I am sorry it has gone on for so long. Look, I should say this, I think. I have made plain that I have taken into account your guilty plea. I am required to tell you what I would have done had you pleaded not guilty. Had you pleaded not guilty and been found guilty, there would have been simply no question of your receiving a community corrections order. I could not have put you on one. In those circumstances, had a trial been conducted and had you pleaded not guilty and been found guilty of this offence, I would have sentenced you to four years’ imprisonment. I would have fixed a non-parole period of two and a half years. So that s.6AAA declaration is to be entered in the records of the court.
156Now, are there any other matters that I have overlooked at all, or not? Or any other orders that I need to pronounce?
157MR NIBBS: No, Your Honour.
158HIS HONOUR: No, all right.
159MS HURST: No, I don't believe so.
160HIS HONOUR: All right, well I am sorry I have had you all pinned down so late into the day, but it is better to I think finalise the matter.
161Now, sorry, I have got documents.
162You can come out of the dock, Mr Austin. Just come down near your mother please.
163Yes, all right, well I have signed that order. Just remain seated, Mr Austin. But you have got the option of - the alternative here of living a - I think a very decent life if you can go ahead and get your apprenticeship, that would be a great thing for you. You have had some - probably some reasonably tough breaks in your life, but you can still live a very useful life, it seems to me, and leave all this sort of business behind you. But as I say, you have had support from your mother. You have got support from others.
164You have received this disposition today as a result of the various mitigatory matters that have been raised, and one of those, of course, is your youth. But there is a limit to the mercy that a court can display. Do you understand? And you come back in breach of this order, well of course you would be letting your mother down and your family down. You would be letting yourself down, because you will be exposing yourself to the real risk of a term of imprisonment. And that is a risk that you do not have now if you just comply with this order. Do you understand?
165So you will be met, no doubt, with temptations. You are a young man. You have probably got friends who may be dabbling in drugs, but - you might have friends who are driving when they should not drive, and maybe you have done that in the past. I do not know and I do not much care, but for the next three years, those sort of bits of conduct that normally would not translate into much by way of penalty, when dealt with in the Magistrates' Court, would breach this order. Do you understand?
166OFFENDER: I understand that.
167HIS HONOUR: And back you come. And back you come in breach of this order. So do not place yourself in that position. Do not place your mother in that position and - but if you place me in that position, I will do what I have to do. All right?
168Yes, all right, well look that completes the matter. Thanks for your assistance, Mr Nibbs and Ms Hurst. I am sorry it has taken so long. 10.30 tomorrow then, thank you.
169MS HURST: Thank you, Your Honour.
170HIS HONOUR: Yes.
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