Director of Public Prosecutions v Bir

[2015] VCC 285

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01356

DIRECTOR OF PUBLIC PROSECUTIONS

v

JANG BIR

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 November 2014, 22 December 2014, 2 March 2015, 6 March 2015
DATE OF SENTENCE:	12 March 2015
CASE MAY BE CITED AS:	DPP v Bir
MEDIUM NEUTRAL CITATION:	[2015] VCC 285

REASONS FOR SENTENCE
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Subject:  Sentencing - criminal law – plea of guilty

Catchwords:             Recklessly causing serious injury; serious offending in company; intoxicated;- Intellectual disability – eligible for Justice Plan.

Legislation Cited:      Sentencing Act 1991 ss 80(3)

Cases Cited:R v Verdins (2007) 16 VR 269

Sentence:322 days imprisonment (PSD reckoned served) + CCO for 18 months including Justice Plan

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek (on plea) Mr G. Martin (on sentence)	Office of Public Prosecutions
For the Offender	Ms J. Munster (on plea) Ms R. Sleeth (on sentence)	Victorian Legal Aid

HER HONOUR: 

1Jang Bir, you have pleaded guilty to a charge of recklessly causing serious injury. 

2The maximum penalty for this offence is 15 years' imprisonment which reflects how seriously offences of this nature are regarded by Parliament on behalf of the community.  I must and do take that penalty into account when deciding on your sentence. 

3You have also admitted prior offences about which I shall say more later. 

4This charge arises from an incident very early on the morning of Friday 15 March 2013, in Lonsdale Street Dandenong.  The victim of your offence, Ms Crystal Elliott, had earlier walked along Lonsdale Street, Dandenong and having seen a woman lying on the footpath, had tried to go to her assistance.  However, she had been told by a man in the vicinity that the woman was fine and to leave. Ms Elliott was with a male companion at the time and did walk away.

5A couple of hours later, she was walking back along the same street, this time alone.  The girl was still lying on the footpath so Ms Elliott again approached, intending to assist.  She was then approached by the same other man and also by you and another female called Monica Gathouth.  The other man swore at her to leave, but she insisted on checking the girl's vital signs as she was a trained nurse. She was prevented from doing so by being punched in the face by the other man, causing her to fall to the ground and then she was repeatedly kicked and had her head stomped upon.  She estimates that she was kicked 40 to 50 times and although most of the kicks were by the other man, when she tried to crawl away, it was you who grabbed her by the hair and dragged her back.  You also joined in the kicking of her whilst she was on the ground.

6She pleaded to the young woman with you, Ms Gathouth, to make the kicking stop, but Ms Gathouth abused her, screaming that it was her fault for interfering.  In the factual summary put before me, Ms Gathouth then jumped on the victim's right leg and lay across her legs holding her down while the kicking continued from you and the other man, although I am told that Ms Gathouth was sentenced on a different version of her participation.

7Two passing motorists witnessed this assault and called the police.  When the police arrived, they found you sitting on the footpath next to the intoxicated female.  The victim, Ms Elliott, was about 40 metres away and she identified you to police as the secondary attacker.  You smelled of alcohol, behaved erratically and were arrested but police considered that you were unfit to be interviewed due to your level of intoxication.  Your clothes and shoes were seized by police and later blood located on the front of your left shoe was identified as belonging to the victim.

8You were interviewed by police almost 9 hours after your arrest. During that interview, you denied any involvement in the offending, stating that you had been drinking and smoking cannabis since about 3 pm the previous afternoon, that you were not aware that any person was assaulted, or not until after you were put in a police car, and you said you had never seen the victim when shown her photograph.

9You said to police that when you were drunk, you "Don't fight but I just friendly to people and talk to them".  You described yourself as having been “a little bit tipsy” but not drunk that night.  Both of those estimates by you of your behaviour were clearly very wrong.

10Ms Elliott sustained serious injuries in this attack.  She was taken by ambulance to Dandenong Hospital where she was found to have sustained a fractured left eye socket, two broken front teeth, a fractured little finger, a laceration to the right upper lip and bruising, and swelling and tenderness to her right lower leg, face and body. Photographs of her injuries are graphic and reflect that this was a sustained and brutal attack on her to a number of parts of her body. 

11Ms Elliott provided a written Victim Impact Statement which she chose to read out in court.  It clearly took considerable emotional strength for her to do that, and for her to face you. She said that as well as the initial injuries and their treatment in hospital, she has required ongoing treatment of several types.  There were complications with temporary teeth repairs which often fell out, and she had to repeatedly go to the Dental Hospital for further dental treatment. She required ongoing chiropractic treatment for spinal injuries, and has been left with permanent disfigurement of the little finger on her left hand which interferes with daily living activities. Her face bore visual signs of her injuries for a long time and that was a constant reminder to her of the incident. 

12In addition, she has suffered considerable emotional and psychological consequences.  She had a pre-existing mental health condition which deteriorated as a result of this incident, with increased anxiety about going out and being near people, and fear of another attack.  Her self confidence was hugely damaged.

13She was in very vulnerable personal circumstances at the time which led to further hardship including, she says, homelessness and loss of physical independence for a while.  Her resultant anxiety also impeded her efforts to find employment.  She blames this attack for her failure to renew her registration as a nurse which she had held for 20 years, as a result of which she has lost that registration.

14At the time of her statement, she had enrolled in a program hoping to work on many of the unresolved issues she had experienced since the assault, and it is to be hoped that, through that program and with the passage of time and other treatment, she will be able to re-establish her confidence and independence.

15I must assess your role in this offence and its seriousness.  This was undoubtedly a very serious attack on Ms Elliott.  It occurred late at night, was on a defenceless woman who was alone and doing nothing other than trying to assist someone who appeared in need of medical attention because she was lying apparently unconscious on the footpath.

16I take into account that you did not initiate - that is start - this attack on her, but you joined in making the attack a total of three people against her one, and you alone were very much larger physically than her.  You joined in kicking her when she was already on the ground, which of itself was cowardly.  You dragged her back by the hair when she tried to get away.

17Ms Elliott suffered considerable physical injuries at the time and has been left with ongoing physical and emotional consequences as I have outlined.  As she pointed out when she read her statement and had heard during the plea hearing that your background included that you had previously been assaulted, that that information caused her to question even more why you would inflict those consequences on her.  There is really no answer presented here to that question.

18You claim to have no memory of participating in this assault and denied it throughout your interview with police.  Even if you had no recollection of it through intoxication from alcohol and cannabis use, that could in no way be an excuse for your participation. 

19I do take into account in mitigation that you have pleaded guilty to this charge.  You did not do so originally but on the contrary, as I have said, denied to police having participated in the assault, and claimed to have no memory of doing so.  Nevertheless with the statement of Ms Elliott identifying you and then the DNA match for her blood on your shoe, you indicated a plea of guilty to this charge at the committal hearing when witnesses were available but had not yet been called. That has the utilitarian value of saving the community the time and cost of disputed hearings and saved witnesses, especially Ms Elliott herself, from having to give evidence and relive these events.  It shows that you have accepted responsibility for your actions, even if you do not recall them. In all of the circumstances now outlined to me, I also accept that you do feel some remorse, and that your plea of guilty is consistent with that. 

20Having been assaulted yourself, you should have some understanding of the impact on the victim.  Further your mother has certainly indicated her disapproval and her own remorse for what you did, and I take into account that you are now being reminded of the consequences and do express remorse for them.

21You are entitled to some leniency for your plea of guilty for the reasons I have outlined, and I shall tell you, after I tell you what your sentence is, what it would have been if you had not pleaded guilty.

22I turn now to your personal circumstances.  You are now 23 years old and were 21 at the time of this offence.  I am told that you were born in Khartoum, Sudan, your parents being from southern Sudan and your early life placing you amongst tribal conflict.  Your father left to fight but did not return and subsequently was discovered to be alive and living in Sudan with a new wife.  I infer that you have not had further close contact with him although I do not have specific information about that.

23Your mother took you and your siblings to safety in Egypt but when you were aged 7 or 8 your mother and your younger sister moved to Australia, joining an older brother here and leaving you and a younger brother to be raised by an older sister in Egypt.  I am told that you were 15 or 16 when you and your younger brother were able to come to Australia to join your mother and other siblings here.  You have continued to live with them, except for the time you have spent in prison.

24You apparently had very limited schooling in Sudan and Egypt.  After arriving in Australia, you attended school from Years 9 to 12 where you learnt to speak some English and completed Year 12 VCAL.  You started a pre-apprenticeship course at Dandenong High School and worked with a car mechanic but did not proceed with the apprenticeship.  You then worked as a packer and cleaner in supermarkets after leaving school. It is unclear to me how much of the time you worked between leaving school and these events. 

25Although your mother would not allow alcohol in her house, you clearly started drinking to excess when out of the house and have also said that you used cannabis but not often.

26I am told that you yourself were the victim of an assault in December 2012 and admitted to Monash Medical Centre as a result.  You were intoxicated at that time.  That was about three months before this incident, that is the incident for which I sentence you, but it apparently did not stop you from resuming excessive alcohol consumption. On the day before the assault on Ms Elliott, you had been out with others drinking alcohol in Dandenong Park from about 3 pm, and you also told police that you had smoked “dope” that day.

27Although released after this incident having been questioned by police but not yet charged, you subsequently became involved in another assault in which you sustained head injuries and were admitted to the Alfred Hospital.  Further, in December 2013, you were hit by a motor vehicle whilst you were walking drunk on a road. You were admitted to the Alfred Hospital for about a week, and then in in-patient rehabilitative care for a further two weeks. 

28This sequence of incidents indicates that you had not learnt your lesson about the consequences of drinking excessive alcohol, and continued to engage in behaviour that put you in harm's way, as to your own and other people's safety.

29You had previously been at Magistrates' Courts on three occasions facing charges of drunkenness in public places, thefts from shops, and burglary, all reflecting that drinking alcohol had gotten you into trouble previously, and that you had not learnt your lesson from either the fines that were imposed or a community corrections order that was imposed for one set of charges.

30You were charged with this offence on 3 February 2014.  Bail was refused and subsequent application to the Supreme Court for bail was also refused.  You remained in custody until 22 December 2014 the hearings before me.  I granted bail on 22 December 2014 because of the time I was told it would take from then or after then for reports I had requested. As a result of your remand in custody, you spent 322 days in prison in respect of this offending. It was your first time in prison, you were relatively young to be in adult prison and I am told, and accept, that the experience made a very serious impression on you.

31While in prison, as well as abstaining from alcohol, you also abstained from drugs.  You also undertook what work you could obtain, and completed some basic certificates through Kangan Institute.  I accept that you showed whilst in custody some determination to turn your life towards a more responsible future.

32I take into account that you come before this court still young although not strictly a “young offender”.  As I have already said, you have several prior offences but none of those was for violence.  These prior offences were probably all related to your alcohol abuse.  While you cannot claim leniency for a first offence, I take into account that at only just 23 years of age, your rehabilitation should remain an important purpose of your sentence.  It is not only in your best interests and your family's, but also the community's best interests that you  have the chance and assistance to establish a responsible and law abiding lifestyle.

33I must also take into account that one of your co-offenders, Ms Gathouth, received a non-custodial sentence after she pleaded guilty earlier than you but to the same charge.  She was sentenced in the Magistrates' Court last February to a Community Corrections Order of 18 months, with 250 hours of unpaid community work.  I am told that she was aged 20 at the time but had some prior offences of violence.  I am told that she was sentenced on a factual basis that she aided and abetted, that is assisted you and the other male offender but did not herself physically assault the victim.  As I have already said, that is different from the facts summarised to me.

34That seems to me to create a real distinction or disparity with your situation as you took an active although not leading role in the kicking of the victim on the ground, and it was you who dragged her by the hair back to the others when she tried to escape.  Both of those aspects of your role in my view make them more serious than Ms Gathouth's, although her prior offences were for violence which makes that a more serious aspect of her background. I do not overlook that she was given a wholly non-custodial sentence and have moderated your sentence to take that into account. 

35I am told that the other male who seems to have been the instigator and main attacker has not been charged so far.

36The prosecution argues that even though a sentence combining imprisonment and a community corrections order on release as was urged by your barrister would be appropriate, but that the period of imprisonment should be longer than the ten and a half months that you have spent in prison for this offence so far.  That is submitted to be on the basis that a longer term of imprisonment is required to adequately reflect the seriousness of this offence, to apply just punishment, as well as general and specific deterrence.

37Relevant to the weight to be given to both general and specific deterrence, as well as my assessment of your overall blameworthiness in this offence, are the results of a neuropsychological assessment of you conducted last October by Dr Rachel O'Meara.  After taking an extensive history with the assistance of an interpreter in your Nuer language, she conducted testing of your cognitive abilities and ability to function in general life.  The history included three hospital admissions for head injuries and possible loss of consciousness over the preceding two years.  I have already outlined that one of those assaults was before this offence, and the second assault and the motor accident followed it.

38Dr O'Meara noted that an attempt at a neuropsychological assessment had been started at the end of 2013, and your performance was in the extremely low range on testing, but that without the assistance of an interpreter, it was felt that it could not be satisfactorily completed or ultimately assessed.

39The history Dr O'Meara took from you seems to include that you rate some of your abilities higher than they have been explained to me, both in relation to your academic ability in school once you reached Australia, and in relation to independent personal and domestic living skills with which you say you cope with but which apparently your mother has told others, including hospitals, that she assists.

40With some modification of testing due to translation difficulties, Dr O'Meara concluded that your general intellectual functioning was within the extremely low range.  I will not detail all the specific results of testing as she sets them out but I have read through all of those aspects. Overall your performances across almost all aspects of general intellectual functioning fell within the extremely low range, with visual construction skills a relative strength.  She found your immediate listening attention span and working memory span and sequencing span all in the extremely low range.  Your performance, she felt, was severely impaired when compared with expectations of other young men of your age.

41In relation to new learning and memory, you demonstrated a reasonable ability to learn from repetition relative to your general functioning and this fell within the borderline range with some confusion with memory recognition at chance levels.  Executive functioning was also assessed as extremely low or in the extremely low range with severe impairment in multiple aspects of higher order attention.  Your responses reflected a very concrete thinking style. 

42Dr O'Meara's opinion was that the testing results were consistent with an intellectual disability of mild to moderate severity, and your relatively stronger ability to learn from repetition and to retain that learnt information over time was, she thought, highly characteristic of male intellectual disability.

43She considered it clear that you had sustained a traumatic brain injury as a result of the alleged assault in December 2012, but such an injury could not fully account for your cognitive profile on testing which was consistent with an intellectual disability. She thought the subsequent head injuries were unlikely to have contributed to the results she found or the deficits she found on cognitive testing.

44Your excessive alcohol consumption, from what was said to be a young age, although you claim not to have started drinking alcohol until aged 19, was noted to be prior to completion of brain development.  I find it a bit difficult to put much reliance on that conclusion, given you say you did not start drinking alcohol till the age of 19, but it does not alter the overall assessment by Dr O'Meara.

45I accept that your extended abstinence from alcohol whilst on remand in prison for these charges leading up to the testing by Dr O'Meara, meant that alcohol was unlikely to have been a contributing factor to the deficits you showed on testing.

46Dr O'Meara was of the view that your extremely low level of general intellectual functioning, in conjunction with your excessive alcohol abuse, contributed to your offending because your extremely poor reasoning and problem solving ability, as well as your slowed speed of information processing, she felt would have impacted on your ability to perceive and comprehend situations and to make calm reasoned decisions and appropriate judgments about them.

47She considered you highly vulnerable to being influenced by others and although you could be taken to be aware of the wrongfulness of your actions in clear cut situations, she felt that in a situation of assaulting someone you were likely to struggle to understand the wrongfulness of your actions in more abstract and complex and fast paced situations.  All of your cognitive deficits she felt would have been exacerbated or increased by your excessive alcohol consumption at the time of the offending. 

48Based on Dr O'Meara's overall assessment, I have moderated, that is lessened, to a medium extent, the application of both general and specific deterrence in accordance with Verdins principles.  I have also to a similar extent moderated the level of blameworthiness I attach to you, although, as I have already described, I regard the incident and your participation in it as serious.

49When I say I have moderated the application of both general and specific deterrence, that means that because I accept that your intellectual limitations contributed to you joining in this offence, you are less suitable to be used as an example to others by the imposition of a very severe sentence.  It also means that it is less suitable in trying to deter you from further offending to do so by imposing a more severe sentence.

50Dr O'Meara was also of the opinion that you would struggle with multiple aspects of a prison environment as a result of your intellectual disability.  Specifically she thought you would have difficulty understanding and following basic instructions, regardless of language, and you would be highly vulnerable to the influence of others and struggle to determine how to respond to unfamiliar situations.  She thought you susceptible to being targeted by other prisoners.

51I note that there is no indication, or there was no indication to me on the various occasions when this plea hearing has been before me and when you were still in custody, that that had in fact occurred during your ten months in custody.

52Dr O'Meara also considered that you had lowered mood, or at least you did whilst in custody, and that some psychological therapy would be of assistance to help you develop coping strategies for avoiding the negative influence of peers or friends.  You appear now to recognise that your alcohol use was a serious problem for you and you have told Dr O'Meara and others that you are motivated to remain off alcohol on your release from prison, and are agreeable to participate in counselling.

53Dr O'Meara finally considered that your ability to independently comply with conditions of a non-custodial sentence, that is a sentence leaving you in the community, would be impaired but you would be able to learn and remember simple information with repetition.

54As a result of Dr O'Meara's report, I requested a pre-sentence assessment of you for a Community Corrections Order and also for a Justice Plan.  Subsequently I was advised that the justice plan was estimated to take more than two further months to prepare and in an application on 22 December last year, I granted you bail.

55That was on strict reporting conditions and a curfew and with a condition of abstinence from alcohol.  I am told that you appear to have complied with all of those bail conditions.  I am told that your mother has been pleased by your behaviour since your release on bail.  She has noticed no alcohol consumption by you and you apparently decided to stay home on New Year's Eve which shows some determination by you to avoid potential trouble.

56You have been assessed as suitable for a Community Corrections Order notwithstanding having previously failed to comply with one.  Given that you are now three years older and have also experienced the sterner alternative of prison, you will hopefully be better motivated to comply with the Community Corrections Order if given another opportunity.

57Further, you have been found eligible for a justice plan and part of its purpose is to assist you to comply with a community corrections order.  In that light, it is to be hoped that you will have better chance to succeed in completing a Community Corrections Order.

58I have read the report and also heard oral evidence from Mr Chamwapiwa who would be your case manager from Disability Client Services if you are placed on a justice plan.  He seems to have established reasonable communication and rapport with you, so hopefully you will feel that you can talk with him and comply with his requirements for you.

59I note that he had you assessed and accepted into the Positive Lifestyle Program run by Salvo Care, and specifically you are recommended for five counselling sessions relating to your alcohol abuse.  Those will be funded through Disability Client Services. That counselling will also be specifically adapted to your cognitive limitations so should be particularly suitable for you.  It is also said that if further counselling of this type is recommended it will be funded for you.

60I also heard evidence from Ms Matthews, the team manager who will supervise you from Disability Client Services.  I told her and Mr Chamwapiwa in court that I do not expect that five counselling sessions will be sufficient to teach you to overcome what seems to have been an entrenched, that is longstanding, alcohol problem, and one which led you into not only the offending that brings you here but prior offences, even if not violent, and was also connected with the three episodes in which you yourself were hurt.  If Dr O'Meara's assessment is correct, then it seems to me that you require considerably more in the way of rehabilitative programs than just five counselling sessions about alcohol abuse.

61Taking into account all of these matters, I am of the view that, even allowing for your limited intellectual capacities making you less likely to have thought of the consequences and more likely to have acted impulsively under the influence of others, the seriousness of the circumstances and the brutality of the attack on your victim mean that no sentence other than one requiring some time to be served in prison would be appropriate.

62Owing to your age, background and intellectual disability, and that you have acknowledged your wrong doing by pleading guilty, it is also a case where a sentence allowing for rehabilitation prospects is well warranted, both for your own best interests and in the best interests of the community. 

63I have considered whether longer than the 322 days you have already spent in custody is required to achieve these purposes.  I have decided that to require you to spend further time in prison at this stage would not only risk destroying your current determination to address your problems and establish a better lifestyle for yourself, including trying to obtain work, but in my view it would also risk wasting community resources that have recently been used productively to engage with you and your circumstances and addressing getting you some supportive and rehabilitative services. For this reason, I am satisfied that sentencing purposes can be best achieved in your case by allowing you to stay out of prison at this stage but requiring you to comply with conditions of a Community Corrections Order and a Justice Plan. 

64In setting the length of the Community Corrections Order, which will start from today, I have taken into account that you have spent more than two months since your release from prison on relatively strict bail conditions, which have provided a form of supervision, and with which you have complied, so I have reduced the length of the community corrections order to take that into account.

65I will shortly announce the details of the whole sentence, including the conditions on the Community Corrections Order.  I want to make clear from my remark about believing that both through the Community Corrections Order and with the support of a Justice Plan, I regard you as requiring further rehabilitative and behaviour correction or modification programs than simply five further counselling sessions through SalvoCare in relation to your alcohol abuse. To keep that as part of the focus of your sentence, I am going to impose a judicial monitoring condition so that the matter can be brought back in front of me in six months' time. Then I can obtain information about what further programs have been arranged, as well as what progress you are making on the Community Corrections Order I intend to impose.

66I now come to the details of the sentence.  Would you stand up now please, Mr Bir. 

67Jang Bir, on the charge of recklessly causing serious injury, you are convicted and sentenced to 322 days imprisonment, to be followed by a Community Corrections Order to last 18 months.

68I am about to tell you the conditions and terms of the Community Corrections Order but first I declare the 322 days you have already spent in custody in respect of this offence as reckoned served, and that of course means that no further time in prison will be required.

69As a result, the Community Corrections Order starts today and as I have said, will last for 18 months.  The conditions I impose are that there be assessment and treatment for alcohol addiction with testing as directed; there be assessment and treatment for drug abuse because I am told you have at times used cannabis; there be assessment and treatment for mental health conditions; that there be programs to reduce re-offending; there be supervision; that you comply with the justice plan that has been proposed in conjunction with this order.

70As I have already explained, I am going to add a condition of judicial monitoring and I am going to set a review date six months from today, being Friday 11 September 2015.  In addition to these conditions, all the usual terms of a community corrections order apply.  I know they have been explained to you when you were assessed but I am going to repeat them briefly here.

71First, you are to report within two working days and the order is going to say, by 4 pm next Monday 16 March, to Dandenong Corrections Office and the address is on the form that you will receive.  For the whole of the 18 months of the community corrections order you are to submit to visits if required from community corrections officers.  You are to advise community corrections officers of any change of the address where you are living and if you get employment, of where you are working.  You are not to leave Victoria without first obtaining the permission of community corrections officers.  You are to comply with all lawful directions of community corrections officers.  And it should go without saying but must be said, most importantly you are not to commit any other offences during the 18 months of the community corrections order.

72If you breach this order, either by failing to comply with any of the directions or requirements of community corrections officers, or by committing any further offences, you can expect to be brought back in front of me and depending on all of the circumstances it might be that I re-sentence you for this offence, that is the offence of recklessly causing serious injury to Ms Elliott.  Mr Bir, do you understand all of these conditions?

73OFFENDER:  Yes.

74HER HONOUR:  Do you agree to comply with them?

75OFFENDER:  Yes.

76HER HONOUR: All right. I state for the purposes of s.6AAA of the Sentencing Act that if you had not pleaded guilty to this charge but been found guilty of the same charge by a jury, and although it is highly artificial if all other circumstances has been the same including your assessment as intellectually disabled, I would have imposed a sentence of three years' imprisonment with a non-parole period of two years.

77I do not think any other orders were sought, Mr Martin, there was no ‑ ‑ ‑

78MR MARTIN:  No, Your Honour.  Mr Bir has already been profiled.

79HER HONOUR:  Take a seat then, Mr Bir, while the orders are prepared and the community corrections order has to be produced on the computer and checked and signed.  Is there anything else I omitted?

80MR MARTIN:  I don't believe so, Your Honour.

81HER HONOUR:  It was 322 days, wasn't it?

82MR MARTIN:  Your Honour, we had calculated it as being 323 including the day that bail was granted, both myself and (indistinct) believe that date gets included with the PSD.

83HER HONOUR:  If I leave it at 322, there is no ‑ ‑ ‑

84MR MARTIN:  He still has a plus 1.  If in the event that we are correct, which we may not be, it wouldn't change the situation, Mr Bir would not be going back.

85HER HONOUR:  There may be one day that has not been taken into account but I had noted it as 322 and I had not noted whether that included the day - all right, I will leave it as 322, it has been produced that way, and that is the amount declared that he served.  I will have a copy of the community corrections order handed down.  As usual we are not allowed to delete a space to make it all appear on one page so we have the nonsense of only my signature on the back page.  I will ask my associate to show that to both counsel and if correct to then take it to - if the concerns about the condition about assessment and treatment if directed for mental health issues and it churns out "hospitalisation" which we can't get rid of here, but that would only be if recommended and it is unlikely to be on what I have heard ‑ ‑ ‑

86MS SLEETH:  Your Honour, I was just noting that Your Honour did not read out the condition for participation in programs that reduce offending.

87HER HONOUR:  Did I not?  I did intend to impose that, it was recommended.  I think what was recommended was anger management.  I have explored that no one is going to be prepared to pay for that ‑ ‑ ‑

88MS SLEETH:  No difficulty with the condition, I just ‑ ‑ ‑

89HER HONOUR:  I am sorry if I didn't read it out, that will be my - I do intend to impose that as well although the chances of anyone funding any programs is, I am told at present, very very low.  All right, I will have my associate then take the community corrections order to Mr Bir.

90Mr Bir, this is a document that, with the assistance of the interpreter, I would like you to look through and then you are asked to sign it.  Mr Martin, you can perhaps enlighten me or seek some instructions on this.  I do not think there is separate documentation for a justice plan but do you know if there is or ‑ ‑ ‑

91MR MARTIN:  I am not aware that there is, no.  If the assessment has then been made and Your Honour then orders that it complies with that assessment, that is what is then on the file.

92HER HONOUR:  That is my understanding.  Part of the conditions of the community corrections order are that Mr Bir comply with the justice plan.

93MR MARTIN:  Yes, Your Honour, and if Your Honour then attaches the justice plan to the order to go on the file ‑ ‑ ‑

94HER HONOUR:  I see.

95MR MARTIN:  There is a record then put on the court file as to what that plan is.

96HER HONOUR:  All right.  Thank you, we will find that letter.  I will sign the community corrections order which will be copied and one copy given to - you had better produce three copies.  One for the prosecution, one for the defence lawyer and one for Mr Bir to take away.  And the original for the file.

97MS SLEETH:  Your Honour, can I just approach Mr Bir, and make sure he doesn't have any questions.

98HER HONOUR:  Yes.

99Ms SLEETH:  Your Honour, Mr Bir's concern was that he wasn't sure if he was doing one order or two orders, as in the justice plan as well as the community corrections order so obviously I have explained ‑ ‑ ‑

100HER HONOUR:  He is doing both.

101MS SLEETH:  It's both.

102HER HONOUR:  The justice plan is a condition of the community corrections order.  Mr Bir, you are doing both.  You have to - the justice plan should assist you to complete the community corrections order.  If there are further questions, it had better be clarified now rather than the wrong attitude ‑ ‑ ‑

103MS SLEETH:  Yes.  I think he wanted to just have explained to him what the components of the justice plan were.

104HER HONOUR:  The components of the justice plan - as I understand it the components of the justice plan are to follow the recommendations of his case manager which at the moment are to attend five more counselling sessions with Salvo Care and also to engage in any other programs that his case manager, who is here in court, recommends.

105Now, the meaning of a justice plan is it assists someone who is in trouble with the Correctional Services, who has committed offences and is undergoing a sentence, is to assist that person to comply with the community corrections order but Mr Bir will have to follow the recommendations of his case manager under the justice plan and also follow the lawful directions and requirements of community corrections officers under the community corrections order.

106MS SLEETH:  I will take him through it again, Your Honour, once ‑ ‑ ‑

107HER HONOUR:  All right.  Do you want to do that before we leave?

108MS SLEETH:  I might just explain the justice plan.  I think he is clear on the other conditions ‑ ‑ ‑

109HER HONOUR:  I have left my copy downstairs but it is able to be copied ‑ ‑ ‑

110MR MARTIN:  I have provided a copy, Your Honour.

111MS SLEETH:  The DHS worker has explained to me that they will be meeting about twice a week and it will be clear to Mr Bir what his obligations are.

112HER HONOUR:  Good. They may vary over the course of the Justice Plan and my understanding is it is to assist Mr Bir to comply with his CCO but also at the same time hopefully assist him to establish himself in a more productive and promising way, be it assistance in trying to find employment and to attend for programs that assist him with that, or agencies that will assist him looking for employment ,and any other programs that are thought suitable for him.

113MS SLEETH:  Your Honour, I don't think the clarification was an indication of resistance.  Rather just he wanted to be clear about his obligations.

114HER HONOUR:  All right.  It is important that he understand what he has to comply with.  It is the community corrections order but a condition of the community corrections order is that he comply with the justice plan.  I think there should be copies ‑ ‑ ‑

115MR MARTIN:  Yes, Your Honour, thank you.

116HER HONOUR:  They have been given.  And has Mr Bir been given a copy?  Yes, thank you.  That is of the community corrections order.

117MS SLEETH:  Yes.

118HER HONOUR:  In that case Mr Bir can be released from the dock.

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