Director of Public Prosecutions v Baker

[2018] VCC 1798

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00431

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS BAKER

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JUDGE:	HIS HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2018
DATE OF SENTENCE:	2 November 2018
CASE MAY BE CITED AS:	DPP v BAKER
MEDIUM NEUTRAL CITATION:	[2018] VCC 1798

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms S. MacDougall	OPP
For the Accused	Mr D. Sheales	Milides Lawyers

HIS HONOUR:

1Thomas Baker, you have pleaded guilty to an indictment containing one charge of armed robbery which carries a maximum penalty of 25 years imprisonment.  The circumstances in which you came to commit that offence are set out in the amended summary of prosecution opening dated 29 October 2018, which was read into evidence at your hearing and tendered and marked Exhibit A.  I will confine my remarks here to a summary.

Circumstances of Offending

2On Saturday evening 15 July 2017, the victim in this matter James Cozzani went to visit James McDonald at his apartment in Stud Road, Wantirna South.  He parked his BMW X3 Sports Utility vehicle in a nearby carpark at Swinburne University.  There was a social gathering at the apartment of James McDonald and shortly after Mr Cozzani arrived, you and your co-accused Grady Weinberg, who I am told has a plea hearing in relation to this matter in early 2019, arrived.  After engaging in a discussion with Mr Cozzani in relation to drugs and other matters, you and your co-accused told Mr Cozzani that you could take him to get some Xanax and the three of you left the Wantirna South apartment at
4.23 am on 16 July 2017.

3You initially drove the others in your motor vehicle, but shortly afterwards, you all transferred into Mr Cozzani's BMW X3 which had been parked at the Swinburne University carpark.  You sat in the rear of this vehicle with your co-accused seated in the front passenger's seat, while Mr Cozzani drove.  Upon arrival at an address where it was said that Xanax could be purchased, the three of you waited inside the vehicle.  At this point, Mr Cozzani used his mobile phone to access his bank application to transfer money to you, in relation to the Xanax which was never acquired.  When Mr Cozzani used his telephone banking application for this purpose, you and your co-accused saw the balance in Mr Cozzani's bank account being $25,000, which was an inheritance from
Mr Cozzani's mother's estate. 

4At this point, your co-accused Mr Weinberg produced a knife and held it against Mr Cozzani's neck whilst you removed Mr Cozzani's phone and both you and your co-accused demanded the pin number to the bank application on
Mr Cozzani's phone.  When Mr Cozzani provided his pin number, you then transferred funds from his account into your account and an affiliated account in the name Millross.  Your co-accused then got into the driver's side while
Mr Cozzani moved to the front passenger's seat and you remained in the backseat.

5Your co-accused then drove to several ATMs where your co-accused unsuccessfully tried to withdraw cash.  However, at one ATM Mr Cozzani withdrew $500.  In total the money withdrawn from Mr Cozzani's account amounted to $26,650 by way of four NAB Bank transfers into the Milross account, one transfer into your bank account in the abovementioned ATM withdrawal.  Mr Cozzani was then driven by your co-accused, with you still present in the vehicle, to a location in Ferntree Gully.  There, threats were made to Mr Cozzani that if he contacted police, he would have bigger problems to deal with.  With the victim outside the vehicle, you then moved into the front passenger's seat and your co-accused drove off, leaving Mr Cozzani stranded without his vehicle or his mobile phone.

6The value of Mr Cozzani's BMW X3 motor vehicle stolen by yourself and your co-accused was $23,500.  The value of Mr Cozzani's mobile phone was $1,200.  This amounts to a total value of items taken during the commission of the armed robbery being $51,350.  Eventually Mr Cozzani went to a nearby resident’s house and asked for help and the matter was reported to police.  Later that morning, you contacted the host of the social gathering at Wantirna South the previous evening and provided a pin drop map being the GPS coordinates as to the location of Mr Cozzani's car.  You were arrested on
27 July 2017.  When interviewed by police, whilst you predominantly gave a “no comment” interview, you denied any involvement in this offence, stating amongst other things that you had dropped the victim back to his vehicle on the night and went home and maintained that CCTV footage would confirm this.

7The motor vehicle and mobile phone were subsequently recovered and returned to Mr Cozzani.  The monetary amounts stolen were reimbursed to
Mr Cozzani and his sister Stephanie (noting that the account was a joint account), but I was informed at the plea hearing that it took some four or five months for the funds to be reimbursed in circumstances which no doubt would have been most stressful to Mr Cozzani and his sister. 

Victim Impact Statements

8Victim impact statements were provided by James Cozzani and his sister Stephanie Cozzani who I note was present at court for the plea hearing.  Both statements were read by the prosecutor at the plea hearing and tendered as Exhibits B and C respectively.  I have carefully considered the contents of both statements for the purposes of sentencing.

9In his victim impact statement, Mr Cozzani indicated that he had only purchased the motor vehicle a few months prior to this incident and the funds in his account represented a shared inheritance with his sister, following the death of their mother.  Mr Cozzani indicated that "All of my independence was taken from me for no reason.  I was so furious".  Mr Cozzani indicated he had difficulties getting to work, his routine was all messed up and he started drinking more often, sometimes during the day.  He also indicated that the incident had put stress on his relationships with people around him.  He also indicated that the incident had a negative impact on his ability to find employment and his ability to spend time with his children.

10He indicated that he started getting counselling following this incident and that his general practitioner had prescribed anti-anxiety and depression medication.  He indicated "I often feel overwhelmed by life and just getting through the day, but I am really looking forward to one day feeling normal again and having a clear mind and feeling genuinely happy".

11According to Stephanie Cozzani in her victim impact statement, "Ultimately, this incident was the catalyst to watching my brother fall back into a downward spiral of darkness and depression".  She also indicated that as a result of the incident, she had also started seeing a therapist and had invested so much mentally and emotionally into supporting her brother that she felt that her own life and mental and physical health had suffered.

12She indicated that she and her brother were "just so exhausted".  Ms Cozzani also referred to the significant financial impost as a result of the incident, including time off work to help transport her brother around and time spent dealing with the police, insurance companies, banks and a financial ombudsmen and the court.  I have taken into account both victim impact statements in relation to this matter.  In combination, they represent a powerful example of the adverse effects of crimes of this nature, which can be long lasting and far reaching.

Procedural Chronology

13As indicated, you were arrested on 27 July 2017 and have been in custody since this date.  As at 2 November 2018, you have been in custody for 463 days.  I was informed that both you and your co-accused conducted a contested committal on 28 February 2018 where witnesses including Mr Cozzani were cross-examined.  The matter subsequently resolved in April 2018.  I agree with the prosecution that this is an early plea of guilty, but not the earliest.  I was informed by your counsel that the matter initially proceeded to committal due to a lack of clarity in relation to which of you actually held the knife that was held to the neck of Mr Cozzani.  I accept that this was a legitimate forensic exercise.  However, as indicated, this cannot be considered to be a plea of guilty at the earliest opportunity.  Nevertheless, you will receive a sentencing discount for the fact that you have pleaded guilty, together with the timing of the plea of guilty itself.

Nature and Gravity of Offending

14The gravity of the offence of armed robbery is reflected in the maximum penalty being 25 years imprisonment.  In making submissions regarding the objective seriousness of this particular manifestation of armed robbery, the prosecution drew to my attention the decision of DPP v Porter, a sentence of Her Honour Judge Campton on 2 June 2017.  That matter involved an armed robbery in company, where the victim had been lured away on the false premise of sexual services in return for money. 

15The victim was subsequently robbed while the male offender held a syringe to his head.  He made a demand for his wallet and threatened to stab the victim with the needle.  A wallet and a mobile phone was taken amidst ongoing threats that the victim will be stabbed and killed and the victim was driven to an ATM where there were unsuccessful attempts to withdraw money from the victim's account.

16The offender in that case was said to have offended in the context of a longstanding poly-substance dependence issue, in sentencing Mr Porter to a term of imprisonment of two years and six months, with a non-parole period of sixteen months.  Her Honour described the offending as being "At the lower of the middle range".  Miss MacDougall on behalf of the Director of Public Prosecutions indicated that this decision was provided on the basis that it had factual similarities to your offending.  Those similarities included a single charge of armed robbery, an armed robbery in company at night with a weapon, held to the body of the victim and subsequent efforts to extract money from the victim's bank account via an ATM.

17Miss MacDougall submitted that your case was higher on the spectrum of armed robbery offences than the armed robbery in Porter's case.  Which as I have stated was described as being "At the lower end of the middle range".  Miss MacDougall initially submitted inter alia that this was so, due to the fact that your offending was arguably more protracted, and in contrast to the decision of Porter, there were some injuries to the victim in your case.

18When it was later clarified that it was not part of the prosecution case that the victim in this matter sustained injuries, Miss MacDougall nevertheless maintained her submission that your offending was higher on the spectrum of offences, than the decision of Porter.  There are obvious pitfalls in attempting to correlate and compare the factual circumstances of different offences.  However, I am unable to agree that the factual circumstances of your case are clearly more serious than Porter's.

19In Porter, the offender was almost ten years older than you and appears to have had a more significant criminal history than you - for drugs, dishonesty and assault police, dating back at least five years before the offending in that case.  Porter was described as having a longstanding poly-substance dependence, using drugs such as cannabis, heroin, amphetamines, methamphetamines and GHB.  There was clearly a level of planning in that case, which is absent from your case.  In Porter, there appears to have been ongoing and very nasty threats made to the victim.  However, the value of items taken in your case certainly exceeds the value of items stolen in Porter.  In my view, there is insufficient information in relation to the duration of both sets of offences to enable me to form a conclusion that your offending was more protracted than in Porter's case.

20Nevertheless, I am of the view that your offending represents a serious and concerning example of the crime of armed robbery.  Whilst in company with another, you took advantage of a vulnerable victim whilst he had been isolated from the others with whom he had been socialising.  A knife was held to his neck, whilst the relevant demands were made.  Your conduct in transferring funds into your account, and an affiliated account and accompanying the victim for multiple attempts at withdrawals of funds from ATMs represents sustained offending and shows a degree of determination on your part.  After veiled threats were made to the victim, he was left abandoned in the early hours of
16 July 2017, without his car, mobile phone or money.

21I do accept, however, that there is no basis upon which I could be satisfied beyond reasonable doubt that your offending was planned or premeditated.  The prosecution opening referred to yourself and your co-accused observing the bank balance of the victim on his mobile phone whilst in the car and it would appear that the genesis of your criminal conduct occurred then.  I also accept that the prosecution case against you does not include an allegation of physical injuries to the victim.  Further, all property has been recovered, though I note the understandable frustration, stress and trauma which has been caused to
Mr Cozzani and his sister in relation to the delays associated with the returns of the funds in question.

22In all the circumstances, it is my view that the description of Her Honour Judge Campton in Porter's case, in relation to the level of seriousness of Porter's offending, is appropriate to your offending.  That is, offending at the lower end of the middle range.  Whilst neither the prosecution nor defence provided much by way of detail, in relation to your single prior court matter, I note that approximately six weeks before the commission of the armed robbery, you appeared at Ringwood Magistrates' Court and received an aggregate fine for numerous offences which could be described as drug related and dishonesty conduct.

23In my view, the conduct for which you fall to be sentenced, occurring so soon after your attendance at Ringwood Magistrates' Court, both contextualises and accentuates the gravity of your criminal conduct on 16 July 2017. 

Factors in Mitigation

24There are a number of mitigatory factors which are relevant to the sentencing exercise in your case.  Your counsel Mr Sheales spent some time outlining each of them and I accept that in combination, they constitute powerful mitigatory factors in your case.

(i) Death of father and resulting drug problem

25Somewhat unusually, this offending occurs in the context of you having reached the age of 30 years, with only one prior appearance at court for criminality.  As I have earlier indicated, whilst I was told little in relation to the details of that offending, the relatively low level penalty imposed, that being an aggregate fine of $1,500, indicates the likely lack of gravity of the criminal conduct involved.  Your counsel indicated that your problematic behaviour can be traced to the death of your father, which was described as a "defining moment" for you.  Your father died at the age of 57 on 30 January 2015 from motor neurone disease.  Prior to his death, and for some three years, you had been living at home with your parents and playing an important role in the care of your ailing father.

26I was told that your father's chronic illness and ultimate passing, was a devastating blow for you.  The references provided by your family and others, which I shall turn to later in my reasons for sentence, describe in some detail your relationship with your father, your efforts in relation to his care and the impact his death had on you.  Up to the point of your father's illness, you had completed schooling and had obtained qualifications in the area of motor mechanics, completed an apprenticeship in this area and worked as a motor mechanic until working in the family waterproofing business with your father and your brother.  As I have said, it is to your credit that until May 2017, at the age of 30, you had an absence of a prior criminal history.

27According to the consulting clinical and forensic psychologist Mr Jeffery Cummins, in his report dated 25 July 2018, and marked Exhibit 1 on the plea;

"Mr Baker provided a history which indicated he became depressed when his father was diagnosed with motor neurone disease in late 2015.  He then became more depressed and turned to experimenting with methamphetamine and GHB, immediately following his father's death.  His usage of those drugs then steadily increased and after nine to twelve months, he became a daily intravenous user of methamphetamine.

He was on CISP in early 2017 and for some of the time he was on CISP, he was not using methamphetamine or GHB, but he subsequently relapsed prior to committing the armed robbery on the evening of 15 July 2017".

28That reference is contained in paragraph 33 of Mr Cummins' report.

29According to Mr Cummins, at paragraph 37.  In my opinion;

"It is probable that at the time of committing the armed robbery, his illicit drug use was in part reflective of him self-medicating in relation to experiencing symptoms of both acute and chronic grief, relating to his father's death".

30I accept that, but for the advent of your father's illness and the subsequent passing of him.  You had a productive background, absent of any criminality.  I am satisfied that your father's illness and passing caused a degradation in your behaviour, in the context of escalating poly-substance abuse.  Mr Cummins, at paragraph 24 indicates that you told him, in relation to the offending, that you would have been under the influence of Xanax and quite possibly also methamphetamine and/or GHB.  I am satisfied that your offending was committed in the context of your poly-substance abuse issues.

31A bundle of references was tendered on your plea and marked Exhibit 5.  One of those references was from Gary McMahon, the managing director of Bravada Waterproofing, dated 18 June 2018.  Mr McMahon indicated that you commenced working with Bravada in March 2016 as a casual employee and then as a permanent employee in June of 2016.  In August 2016, you introduced your brother Steve to the business and I note that he is now in a senior position with that company.

32Mr McMahon indicated that due to your mental health issues and the context of your father's illness and passing, you abandoned your employment with Bravada in April 2017, before having a short lived return to Bravada in May 2017.  It is clear from the letter from Mr McMahon that your behaviour in every sense was degrading, in the lead up to the commission of the armed robbery.  Whilst personal difficulties and associated behavioural issues in no way excuse your criminal behaviour, they serve to contextualise the fact that you engaged in such serious criminality at the age of 30, notwithstanding your otherwise generally productive background. 

(ii) Remorse

33In my view there are multiple evidentiary sources of remorse on your part.  According to Mr Cummins, you were an insightful interviewee and at paragraph 24 he states;

"He apologised regarding his offending behaviour and stated he was taking responsibility for his offending, which he regarded as totally unacceptable behaviour".

34Further, Mr Cummins opined at paragraph 30;

"He spoke in a responsible manner and specifically stated he felt ashamed, guilty and remorseful concerning his offending behaviour".

35Likewise, some of your character references reflected the degree to which you were remorseful for your criminality.  Of particular importance, you took the most unusual step of giving evidence before me during the plea hearing.  You read out a letter which you said you had written in July of this year, on the understanding that it would be provided to the victim Mr Cozzani, through your then legal representatives.  I understand that this did not however occur.  That letter was tendered and is marked Exhibit A on the plea. 

36In that letter, you said that you were truly sorry for putting the victim Mr Cozzani through the pain which he never deserved.  You articulated the adverse impact on his family and said;

"After putting myself in your shoes, I know the hatred you would have towards me and I totally get it.  I have never experienced this much remorse in anything I have ever done and words can't really express how sorry I am".

37In evidence before me, you expanded on your feelings of remorse and articulated your appreciation of the impact of your crime on Mr Cozzani and his sister.  As I have indicated, it is unusual for an accused to give evidence on a plea hearing, to give evidence on the issue of remorse.  I note that your evidence was not challenged in any respect by the learned prosecutor.  Having had the opportunity to observe you giving evidence, I am satisfied that your expressions of remorse are genuine and heartfelt.

38In all the circumstances, I am satisfied you are deserving of a sentencing discount, not only due to the utilitarian value that comes from a relatively early plea of guilty, which has saved the court and community the cost and time of a trial, together with the witnesses the trauma of being cross-examined, but also due to your genuine expression of remorse.  In my view, your plea of guilty is consistent with such an expression of remorse and accordingly, a significant sentencing discount is warranted in this case.

(iii) Progress in Custody

39As indicated by Mr Cummins at paragraph 5 of his report, whilst on remand you have obtained certificates in eight courses, including three six hour drug and alcohol courses, the 24 hour Drug and Alcohol course, a Managing Loss course, an Anger Management course, the Change on the Inside course and an Ice and Me course.  You have also completed three personal training and fitness courses.

40Tendered on your plea and marked Exhibit 4 was a bundle of certificates documenting your achievements in prison.  I have read each of these certificates carefully.  Further, I was provided with a series of drug analysis results dating from between 5 December 2017 and 17 September 2018.  All of those results indicate a negative finding in relation to testing for various illicit substances.  Save for an initial positive test result in relation to Buprenorphine shortly after you were remanded in custody in July 2017, I am satisfied that you have remained drug free within the prison environment.

41You have been working as a unit billet in the kitchen.  You have also received regular visits from your loved ones.  In all the circumstances, I am satisfied that you have used your 463 days on remand productively and this bodes well in terms of your rehabilitative prospects. 

(iv) Ongoing Supports

42You were supported in court and at the plea hearing by your mother, brother, sister and three aunts.  In addition, I have taken into consideration the impressive body of character material contained in Exhibit 5, the various character references tendered on your behalf.  Again, the existence of a strong support network is in my view imperative to your rehabilitative prospects. 

(v) Imminent Plans Post-Release

43According to Mr Cummins at paragraph 26 of his report, you plan to reside with your mother after release from prison.  Further, as evidenced by the letter from Mr Patrick O'Sullivan from Bitumend Asphalt Repairers dated 30 October 2018 and marked Exhibit 6 on the plea, you have employment available upon your release.  Mr O'Sullivan indicated that he had known you for many years and;

"I'm able to help Tom manage his transition from prison to daily life.  I would be willing to employ Tom in my successful civil contracting business, as well as provide him with some mentoring to help him adjust and reform his life going forward".

44That letter is to be read in conjunction with an earlier letter written by Mr Richard Eden from the same company, dated 23 February 2018, which was one of the letters tendered as part of Exhibit 5 on the plea.  It is clear that you have fulltime employment awaiting you upon your release from prison.  In my view, this is a significant matter, extenuating your good rehabilitative prospects at this time.  Perhaps most importantly, however, you have residential drug rehabilitation available to you post release.  At your plea hearing, considerable reliance was placed upon the availability of a place at the Wellbeing Planet, as set out in the letter dated 29 October 2018 from the Director of Residential and Community Services, Denise Abadee and marked as Exhibit 2 on the plea.  Ms Abadee gave evidence before me in relation to the proposed arrangement.

45In the course of giving evidence, it was extremely clear to me that Ms Abadee is a woman of considerable experience in the area of drug rehabilitation, having previously been involved at a management level with organisations such as Windana, Odyssey House, Turning Point and the Magistrates' Court, Credit Bail Program.  Ms Abadee confirmed that she has had some thirteen teleconferences, each of one hour duration with you, whilst you have been on remand.

46Through that extensive contact, Ms Abadee indicated that she had gained insight into you and informed me that you presented as being very motivated. 
Ms Abadee also indicated that you had expressed remorse for your conduct.  According to Ms Abadee, you are a suitable candidate to become a resident in the Reintegration Program within this facility.  As outlined in Ms Abadee's letter, the program is an abstinence based program demonstrated by twice weekly and random supervised urine analysis.

47You would reside at the facility in Elsternwick, but be able to leave the facility to work and/or to engage in any other activities which could include those mandated under the parole regime or pursuant to a community corrections order.  There is a curfew of 8 pm.  There are various other house rules and
Ms Abadee gave an undertaking that any breach of any of the rules of the program would be reported to the relevant authorities forthwith.  Ms Abadee indicated in evidence that you would be able to reside at the program for as long as required.  According to Ms Abadee she was quite optimistic in terms of your prospects of rehabilitation, should you reside at the program.  I was impressed with Ms Abadee and I have formed the view that the holistic drug rehabilitation program envisaged by her, would be of great benefit to you in terms of your rehabilitation and ultimately therefore, of great benefit to the community, in terms of minimising your risks of reoffending.  Of particular importance, this rehabilitation placement is available now.  It is not speculative or dependent on some future set of circumstances.

Sentencing Submissions

48The prosecution submitted that in all the circumstances of this case, a term of imprisonment with a non-parole period was the appropriate disposition.  Further, it was submitted that a sentence of imprisonment combined with a community corrections order would be "outstanding the range". 
Miss MacDougall on behalf of the Director of Public Prosecutions confirmed that this was the position following receipt of the report from Denise Abadee.  In the course of articulating the prosecution position, I raised with
Miss MacDougall the tension that would appear to exist as between the prosecution position regarding sentence and the sentence imposed on the DPP v Porter, which was a decision relied upon by the prosecution in this case as being somewhat similar to this matter.  As I indicated, pursuant to the sentence of Her Honour Judge Campton in Porter, the offender received a sixteen month non-parole period.  In this case, you have served over 15 months on remand.  Miss MacDougall indicated that her sentencing instructions had been received in the absence of any consideration by those providing the instructions of the DPP v Porter.

49Your counsel Mr Sheales submitted that I should impose a term of imprisonment coupled with a community corrections order, which would allow your release forthwith, given the 463 days served on remand to date. 
Mr Sheales relied upon all of the mitigatory circumstances which I have outlined and also highlighted the apparent tension between the sentence in Porter, which according to Mr Sheales would suggest your imminent release.

Sentencing Purposes

50Section 5(1) of the Sentencing Act provides that the only purposes for which a sentence may be imposed are general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.  General deterrence, denunciation and just punishment have particular application in relation to the offence of armed robbery, particularly in the circumstances of this case.  This is a crime of particular gravity and prevalence, such that general deterrence is an important sentencing purpose.  Your conduct must be denounced and the community protected from such serious criminality.

51Given your proximate prior conviction, there is also a need for the sentence I impose to reflect the purpose of specific deterrence.  It is often said that there is a link between the protection of the community and rehabilitation.  Moreover, the community is better protected if ultimately, you are successful in remaining abstinent from illicit substances and its attendant effect on your behaviour.

52I am obliged to have regard to current sentencing practices in determining the sentence, though in this regard I note the guidance of the High Court in the DPP v Dalgliesh which has been applied numerous times in subsequent cases, to highlight that current sentencing practices are one of the many factors that must be taken into account in sentencing and should not predominate.  I have read and considered the Sentencing Advisory Council's sentencing snapshot number 202 of June 2018.  That was provided to me by your counsel in the course of the plea in relation to the offence of armed robbery. 

Sentence

53I have carefully considered all of the relevant matters in this case, including the submissions regarding disposition made on your behalf by Mr Sheales and the sentencing submissions advanced by the prosecution.

54In my view, balancing all of the relevant factors, the appropriate disposition in your case is a term of imprisonment, coupled with a community corrections order.  As to the appropriateness of a community corrections order in relation to the serious offence of armed robbery, I note the sentiments of the Court of Appeal in Williams v R, 2018, VSCA 171 at paragraph 47, where the court said;

"As was made clear in Boulton, in an appropriate case, a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously.  A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending and to minimise the risk of reoffending, by promoting the offender's rehabilitation.  And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes.  A CCO may remain open, even in cases of very serious offending".

55I also note the persuasive sentiments of Her Honour Judge Campton in DPP v Klestadt, 2016, VCC 188.  When imposing a three year community corrections order for an armed robbery offence, Her Honour said as follows at paragraph 33;

"I believe that both general and specific deterrence can be achieved in imposing a community corrections order.  As the Court of Appeal said in the guideline judgment in Boulton, the community corrections order is intrinsically punitive and depending on the length of the order and the nature and extent of the conditions imposed, it is capable of being highly punitive.  Mandatory conditions to the order effect the offender's liberty.  Contravention of any condition is an offence punishable by three months' imprisonment.  Contravention of a community corrections order also carries with it the prospect that the offender will be resentenced on their original offence".

56In this case, you have already served over 15 months in custody on remand.  Having carefully considered the circumstances of your case, in my view the availability now, of what I perceive to be intensive residential rehabilitation, means that your released forthwith under the comprehensive supervision of a community corrections order, monitored by the court, best reflects the community's interest in your rehabilitation, coupled with the community's protection from any reoffending by you.

57The order I will impose is by its very nature, a punitive one. Moreover, it will be targeted in relation to the underlying causes of your offending and will allow the court to monitor your progress in a way which ultimately, in my view, best protects the community. On the charge of armed robbery, you are convicted and sentenced to 463 days imprisonment. Pursuant to s.18 of the Sentencing Act, I declare 463 days reckoned as served. Further, in accordance with s.44 of the Sentencing Act, in addition to the term of imprisonment, I order that you undertake and complete a two year community corrections order. 

58I order that you undertake and complete 250 hours of unpaid community work during the period of the community corrections order, that you be subject to supervision, that you undergo treatment and rehabilitation for drug use and dependency and that you complete any program that addresses factors related to your offending behaviour. I order that 100 hours of the treatment and rehabilitation component of the order, may be counted towards unpaid community work, pursuant to s.48(c)(a)(2) of the Sentencing Act. Further, pursuant to s.48K of the Sentencing Act, I order that your compliance with the order be monitored by the court.  To that end, I order that you attend before me at 10.30 am on 18 March 2019 for a review of your compliance with this order.

59For the sake of clarity, it is my intention that you be released today, having served 463 days in prison, so that you can commence your community corrections order forthwith.  Mr Baker before I finalise my sentence on you, I need to satisfy myself that you are giving informed consent in relation to the imposition of a community corrections order.  The order itself, as I have indicated, will run for two years.  Do you understand that?

60OFFENDER:  Yes.

61HIS HONOUR:  The order will require you to attend on Ringwood Community Correctional Services and be supervised by Correctional Services.  Do you understand that?

62OFFENDER:  Yes sir.

63HIS HONOUR:  There are a number of mandatory terms to the community corrections order which include matters such as you must not commit any other offence for which you could be imprisoned during the time that the order is in force.  You must comply with any obligation or requirement prescribed by the relevant regulations.  You must report to and receive visits from the Secretary or a delegate.  You must report within two clear working days of this order starting. 

64You must let a community corrections officer know within two clear working days of you changing your address or employment.  You must not leave Victoria without getting permission firstly from the Secretary or a delegate and you must obey all lawful instructions and directions of the Secretary or any delegate.  Do you understand those mandatory conditions?

65OFFENDER:  Yes sir.

66HIS HONOUR:  In addition to those mandatory conditions, as I have indicated, imposing conditions as follows.  You must perform 250 hours of unpaid community work over that two year period.  One hundred hours of treatment component of the order can be counted towards that 250 hours.  Do you understand that?

67OFFENDER:  Yes sir.

68HIS HONOUR:  Now I am ordering that you comply with assessment and treatment in relation to drug abuse or dependency, as well as participating in any other programs or courses that address underlying causes of the offending.  Do you understand that?

69OFFENDER:  Yes sir.

70HIS HONOUR:  And I am order that you be supervised by Corrections for that period of two years.  Do you understand that condition?

71OFFENDER:  Yes, yes.

72HIS HONOUR:  And I am imposing judicial monitoring, which essentially means that this court will monitor your progress on this community corrections order, as evidenced by the requirement that you attend at the court on 18 March next year at 10.30 am to report on your progress.  Do you understand that?

73OFFENDER:  Yes.

74HIS HONOUR:  Do you understand that if you do not comply with the terms of the community corrections order, you will be in breach of the order?

75OFFENDER:  Yes sir.

76HIS HONOUR:  If the breach is constituted by reoffending, you can be sentenced in relation to the reoffending, as well as in relation to the breach.

77OFFENDER:  Yes.

78HIS HONOUR:  Understanding the conditions of the community corrections order, do you agree to undertake the community corrections order as I have stipulated?

79OFFENDER:  Yes sir.

80HIS HONOUR:  I will ask my associate to print out a copy of the order and
Mr Sheales, if you could perhaps take the order down ‑ ‑ ‑

81MR SHEALES:  Yes, Your Honour.

82HIS HONOUR:  ‑ ‑ ‑ to your client for signing.

83MR SHEALES:  Thank you.

Section 6AAA Declaration

84HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act, I declare that had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to four years imprisonment, with a non-parole period of two years and ten months. 

Ancillary Orders – 464ZF

85Having considered the seriousness of the circumstances of the armed robbery, which is a forensic sample offence, I am satisfied that in all the circumstances, the making of the order sought pursuant to s.464ZF(2) of the Crimes Act is justified.

86I note that the application was not opposed by you and in my view, the granting of that order is in the public interest.  Accordingly, I propose to make the 464ZF order.  Miss MacDougall is there a copy dated today of that?

87MISS MacDOUGALL:  Your Honour, I understand it's been emailed ‑ ‑ ‑

88HIS HONOUR:  Yes.

89MISS MacDOUGALL:  ‑ ‑ ‑ to the court.

90HIS HONOUR:  Yes, I will have that printed out and I will sign that order forthwith.  Are there any matters arising from either counsel in relation to the sentence that I have just imposed?

91MR SHEALES:  No, Your Honour.

92MISS MacDOUGALL:  No, Your Honour.

93HIS HONOUR:  Any matters I have missed Miss MacDougall?

94MISS MacDOUGALL:  No, Your Honour.

95MR SHEALES:  You'll get the President's opinion on that.

96HIS HONOUR:  Say that again Mr Sheales?

97MR SHEALES:  The President will tell us.

98HIS HONOUR:  Mr Baker, it is my expectation that you will attend upon
Ms Abadee or those working with her forthwith.

99MR SHEALES:  Can I indicate Your Honour?

100HIS HONOUR:  Yes.

101MR SHEALES:  Obviously we couldn't pre-empt what Your Honour's sentence would be.

102HIS HONOUR:  Yes.

103MR SHEALES:  But those arrangements were made in the event ‑ ‑ ‑

104HIS HONOUR:  Yes.

105MR SHEALES:  ‑ ‑ ‑ that his release was from here, today.  So that's - I can assure Your Honour, that is what's intended.

106HIS HONOUR:  Yes, thank you Mr Sheales.  You've heard what's just transpired Mr Baker.  As I say, it is my expectation that you will be residing at the Wellbeing Planet and that you will be complying with the fairly comprehensive regime that is in place there, in addition to the rigors of the community corrections order.

107I can assure you that this court will be monitoring your progress on the community corrections order and will certainly be expecting a comprehensive update in terms of your progress in the early part of next year.  Do you understand that?

108OFFENDER:  Yes sir.

109HIS HONOUR:  Yes.  Mr Sheales, I understand that due to logistics, your client will most likely need to be processed downstairs.

110MR SHEALES:  I would've thought so, yes.

111HIS HONOUR:  And released from there at some stage fairly soon.

112MR SHEALES:  The dramatic leaving of the dock seems to be a thing in the past.

113HIS HONOUR:  Yes, indeed.

114MR SHEALES:  Yes Ms Abadee was spoken to - she knew the sentence was obviously on because she was here the other day.

115HIS HONOUR:  Yes.

116MR SHEALES:  And I've had a phone call from my instructor saying that in the event that he is released, he can be taken straight there.

117HIS HONOUR:  Excellent, all right.  Yes Mr Baker can be removed, thank you.

118MR SHEALES:  Thank you, Your Honour.

119OFFENDER:  Thanks, Your Honour.

120HIS HONOUR:  I thank both counsel for your assistance in relation to this matter and I'll briefly stand down. 

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