Director of Public Prosecutions v Bellette

[2013] VCC 1977

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00612

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN BELLETTE

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 December 2013
CASE MAY BE CITED AS:	DPP v BELLETTE
MEDIUM NEUTRAL CITATION:	[2013] VCC 1977

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R Sharp
For the Accused	Ms P Murphy

HIS HONOUR:

1John Michael Bellette, you have pleaded guilty to an indictment charging you with seven separate offences of arson which took place in June, July and August of 2012 and also the one offence of theft of a mobile telephone between 1 - 2 December 2012.  You have admitted one other court appearance, although I note that save in respect of that theft charge, that it is not a prior conviction and I note that you were dealt with quite leniently for those offences.   That must say something about the nature of that offending conduct.

2The maximum term of imprisonment for arson is 15 years imprisonment and for theft is 10 years imprisonment.  The prosecution tendered and relied upon a written prosecution opening, which was read to the court and that is Exhibit A.  I am not going to repeat that.  It was read in open court this morning and it catalogues a history of incredibly stupid behaviour does it not?

3OFFENDER:  Yes.

4HIS HONOUR:  It also catalogues eight, seven in particular, very serious offences.  Arson is a very serious offence.  It can cause damage way beyond what was originally intended.  Ordinarily, arson carries a term of imprisonment. 

5Turning to matters personal to you.  Your counsel provided me with an outline which is Exhibit 1, a report of Mr Cunningham the psychologist which is Exhibit 2, the report of Ms Janev which is Exhibit 3, various reports from the court integrated services program authored by Ms Spanos who attended court this morning which are collectively Exhibit 4 and a letter from Mr Vaganiance. He speaks highly of you, even though I think you must have tested his patience.

6The net effect of these reports show that you have a condition which is sometimes referred to as aspergers syndrome and also to autism spectrum disorder.   Both Mr Cunningham and Ms Janev are of the opinion that this condition has been a significant contributor to your offending conduct.  You also have developed a substance abuse disorder, which to some extent is self-inflicted, alcohol, cannabis and I think you have also dabbled in amphetamine. 

7The combination of the drugs and the disorder might well have led you to a situation where you would have had to have been sent to prison, simply because your prospects of rehabilitation were poor and you represented a danger to the community.  However, it seems that once you were arrested for these matters and held in custody for a short period of time, you turned things around.   Ms Spanos speaks well of you and I think it is fair to say that you have responded to the opportunities that have been offered through the CISP Program and through your contact with Dr Janev, the forensic psychologist who has been treating you over a period of I think seven or eight sessions up to now.

8It is a happy circumstance for you that you have had the period between your arrest towards the end of last year and today to demonstrate that you are capable of turning your life around.   That has made all the difference to the prospects of rehabilitation and to the sentencing exercise in which we are engaged to today.  Had it not been for that, then I would have been looking to custodial sentences and quite substantial custodial sentences.

9As it is, all of the reports pointed to the utility, not just from your point of view, but from the community's point of view of putting some work into you now and helping you with your rehabilitation which you have already started.  Whether that proves to be well founded and whether it proves to be successful, will depend very much upon your willingness to continue along the line that you have taken in the last 12 months or so.

10For that reason, I adjourned the court this morning so that you could be assessed for a community correction order.  The prosecution indicated that having regard to all of the information provided to them, that a community correction order was within the range of sentences available to me.   The report that has just been provided indicates that you are suitable for an order and I propose to make such an order. 

11It is necessary for me to express the denunciation of this court for offending conduct of this kind and to punish you adequately and for that reason, I do propose to incorporate a period of unpaid community work into the order and that will be a punitive element or perhaps an additional punitive element to the order itself.   I have in mind 200 hours which you will have to perform during the period of two years, during which the order is in place.

12The community correction order that I have in mind will have a number of conditions.  There are, what are referred to as core conditions and the first of those is that you must not commit another offence during the period of the order.  That is an offence punishable by imprisonment.  If you do, then firstly you get punished for that offence, secondly you get brought back to this court and you get punished for breaching a community correction order that carries a term of imprisonment of up to three months, and then the court has the option to re-sentence you for these offences and probably if the offence was serious, it would result in you receiving a term of imprisonment for these offences. 

13So there is a fair bit of incentive not to breach the other, by committing any further offences during the period of the order, which will as I say be two years.  It is a bit like having a suspended sentence hanging over your head for a period of two years, because even if it is not me, another Judge is very likely to impose a term of imprisonment for these offences, if you breach the order.

14You have to comply with any regulations that apply and that will all be explained to you in due course.  You must report to and receive visits from the secretary of the department of Corrections or his/her delegate.  You must report to the Community Corrections Centre which will be - I think it will probably be in the report is it not?

15MS MURPHY:  Its at Dandenong Your Honour.

16HIS HONOUR:  Dandenong yes.  Well that went in two clear working days of today.  I think that will probably be Thursday, is that right, or is it Friday?

17MS MURPHY:  The report has said that there's an appointment at 4 p.m. on 11 December, which is tomorrow.

18HIS HONOUR:  This Wednesday, all right, well yes I would keep that appointment if I were you and that will be the commencement of your obligations under the order to keep that appointment.  You must not leave Victoria, except with the permission, either generally or in relation to a particular case of the secretary of the department, or his/her delegate and you must comply with any direction given by the secretary that is necessary to give to ensure that you comply with the order.

19In addition, there will be a condition that you submit to assessment and treatment, including testing for drug and alcohol abuse.  You will also be required to submit to mental health assessment and treatment.  You will be required to participate in any offending behaviour programs that are recommended and ordered for you to participate in and you will be subject to supervision during that period and you will have to keep all your appointments under the supervision component of the order.

20As I say, you will have to do 200 hours of community work during that period and you will also be required to obey a judicial monitoring condition.  I have in mind a date perhaps four months hence, which will be to allow me to see how you are getting on and a report will be prepared to show me that you are complying with the order.  So I am going to keep an eye on you, during the period of the order and make sure that you stay on the straight and narrow.  We will find a date four months hence - Monday 14 April 2104 at 9.30 a.m. all right.  So you will be required to attend on that day, 14 April 2014 at 9.30 a.m. and there will be a report prepared for me for that particular occasion. 

21Now it is not going to be terribly easy for you to comply with all of those conditions, all right and you can be in breach of the order and subject to a possible term of imprisonment of up to three months for failing to keep appointments, for failing to do the work that has been allocated to you, as well as of course committing any further offence during that period.  Now given what I have told you, are you still willing to participate in that order?

22OFFENDER:  Yes Your Honour.

23HIS HONOUR:  All right, well the order will be drawn up and I'll give you an opportunity of going through it with Ms Murphy and making sure that you are comfortable with its terms and if you are, then you can sign it, I'll counter sign it and the deal is done, all right - but for your pleas of guilty to these matters, I would have sentenced you to a term of imprisonment of two years and six months, with a non-parole period of 15 months.

24I have been asked to make an order for the retention of a forensic sample that you had already provided and I understand there is no objection to that.  I have signed the order and that is available.  Are there any other orders I need make?

25MS SHARP:  Does Your Honour propose to make any order in relation to the 16 days of pre-sentence detention that was served ‑ ‑ ‑?

26HIS HONOUR:  I think I should say that pre-sentence detention of 16 days is taken into account and should the need arise, it should be deducted from any sentence that you might have to serve in the future.  I think that is all I need to say at the present time isn't it?

27MS SHARP:  Yes Your Honour, I'm just thinking of a situation - - -

28HIS HONOUR:  I cannot deduct it from his community correction order can I?

29MS SHARP:  No it can't be deducted from the community corrections order, but if there was a situation in which he was sentenced in relation to other offences, then the 16 days would still be available as pre-sentence detention having not been otherwise assigned to a sentence, I'd have to work through the provisions, but that's my background recollection of that.

30HIS HONOUR:  Yes.

31MS SHARP:  That it sits there in credit as it were.

32HIS HONOUR:  Well it does, it does sit there in credit for these offences does it not.  Now so far as the other offences are concerned, it may be that it is not strictly taken into account on a pro rata basis, but what is it Renzella isn't it?

33MS SHARP:  Yes Your Honour.

34HIS HONOUR:  Is the case I think which indicates that nevertheless it's a matter that a Judge should take into account in assessing sentence, if the need arises.  Now hopefully of course it won't arise ‑ ‑ ‑

35MS SHARP:  That's correct, hopefully it won't Your Honour.

36HIS HONOUR:  In this particular case, but have I said enough about that, do you think?

37MS SHARP:  Thank you Your Honour, yes.

38HIS HONOUR:  Yes I think so, all right.

39MS MURPHY:  Yes Your Honour thank you.

40HIS HONOUR:  All right.  Yes we need to make a note that the compensation application is adjourned sine die, or for a date to be fixed and I do not think any other order needs to be made at this stage, does it?

41MS SHARP:  No Your Honour.  Your Honour's already denied the - - -

42HIS HONOUR:  Thank you.

43MS SHARP:  Destruction order and that was - they were the only orders.

44HIS HONOUR:  Yes, thank you.  Ms Murphy if you'd just like to approach your client with the order.

45MS MURPHY:  Yes Your Honour.

46HIS HONOUR:  Thank you very much.  I have signed that order now Mr Bellette, so the order is now in force and you may leave the dock.  To Mr Bellette's father, you may well have to play a little part here I suspect in ensuring that your son keeps his appointments and constantly realises the need to comply with the terms of the order because if he does not, then he is going to leave the court with pretty little room for manoeuvre I think and the next stage will not be a terribly happy one I think, if he has to come back for the sentencing. 

47MS SHARP:  Your Honour one further question.

48HIS HONOUR:  Yes.

49MS SHARP:  Would Your Honour be assisted by the presence of the prosecution on the return date of 14 April?

50HIS HONOUR:  Look I think so, yes I think it would be a good thing for the prosecution to be represented.  From the defence point of view, I know that Legal Aid are a little ambivalent about funding these things ‑ ‑ ‑

51MS MURPHY:  Yes.

52HIS HONOUR:  Ms Murphy, but if they can be prevailed upon to pay you even a pittance to turn up, it would be a good thing perhaps, to have somebody in his corner. 

53MS MURPHY:  That's what they pay, the pittance ‑ ‑ ‑

54HIS HONOUR:  Well, yes.

55MS MURPHY:  So I'll speak to them about that Your Honour.  I will - I'll speak to my instructor, we'll make sure that between us there's someone here on that date.

56HIS HONOUR:  All right, thank you very much.

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