Director of Public Prosecutions v Boehm

[2018] VCC 935

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-14-01115
CR-14-01120

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL BOEHM

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JUDGE:	HIS HONOUR JUDGE C RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2018
DATE OF SENTENCE:	15 June 2018
CASE MAY BE CITED AS:	DPP v Boehm
MEDIUM NEUTRAL CITATION:	[2020] VCC 935

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW
Catchwords:            Contravention – Community Correction order -

Legislation Cited:     Sentencing Act 1991
Cases Cited: DPP v Boehm [2016] VCC 536

Sentence:12 months’ imprisonment; Fine; 22 days pre-sentence detention; Section 6AAA declaration: 2 years’ imprisonment with a non-parole period of 12 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms F. Shand	Office of Public Prosecutions
For the Accused	Ms I. Bolger	Ann Valos Criminal Law

HIS HONOUR:

1       Paul Boehm, on 28 January 2016 you pleaded to guilty to Indictment Number D12382673 containing three charges being:

·     Charge 1 trafficking in a drug of dependence between 21 December 2012 and 15 December 2013, the drug being methylamphetamine;

·     Charge 2 dangerous driving whilst being pursued by police; and

·     Charge 3 possession of unregistered general category hand gun. 

2       In addition, you pleaded guilty to a number of related summary offences, being:

·     four charges of possess a prohibited weapon, being a double edged dagger, a ninja hand claw, a sword and a belt buckle containing a knife;

·     possession of cartridge ammunition;

·     resist police;

·     use amphetamine; and

·     deal with property suspected of being the proceeds of crime.

3       On 29 April 2016, on each of the charges on the indictment, together with all of the related summary offences, I sentenced you to a community correction order for a period of three years with conditions:

I.    that you perform 300 hours of unpaid community work;

II.    that you be supervised, monitored and managed as directed by the secretary of the department;

III.    that you undergo treatment and rehabilitation by way of drug assessment and treatment, mental health assessment and treatment and offending behaviour programs directed at reducing your risk of reoffending.

4       On Friday, 25 May 2018, you came before me for plea in respect of your admitted breach of the community correction order.

5       The summons issued 11 April 2018 that alleged your breach of the community correction order sets out in summary form your breaches.  You failed to attend to undergo treatment and rehabilitation on three occasions, the first of which occurred on 30 May 2016, one month after you were released on the community correction order.

6       You failed to attend for supervision on six occasions, the first being on 5 July 2016, something in excess of two months after you were released on the community correction order.  You failed to perform unpaid community work as required on 20 occasions, the first instance of which occurred within six months of you being released on the community correction order.  Further, according to the breach report, you tested positive for the presence of amphetamine and benzodiazepine type substances on 26 June 2017, 26 October 2017, 18 November 2017 and 24 November 2017. 

7       In addition, you committed a series of offences on 4 May 2017, 12 June 2017 and 28 July 2017.  On each of these occasions, you were found in possession of methylamphetamine, the drug you were convicted and sentenced for trafficking in when you first came before me.

8       Tendered as Exhibit A, was a report from the Department of Justice and Regulation in respect of your contravention of the community correction order.  The recommendation of the authors of the report is that your order be cancelled and that you be resentenced in respect to the original charges.  Tendered as Exhibit B on your plea were the police summaries in respect to your further offending, together with the certified extract of your convictions and sentences. 

9 Your breaching offending includes dishonesty; drug driving; resisting emergencies workers and bail offences. In respect to this further offending, you were sentenced on 7 March 2018 to a community correction order for a period of 18 months with conditions. At the time of my original sentence, the reasons for which I incorporate into this sentence, see [2016] VCC 536, I considered the sentenced to be merciful because of the nature of your offending, your antecedence and that you had previously breached community correction orders on three occasions. Despite this, I resolved to give you a further chance of rehabilitation within the community.

10      By reference to Exhibit 2, two letters from Stephen Bowes of the Victorian Aboriginal Services Cooperative Ltd, (VAHS), you have reconnected with that service and your general practitioner referred you to see Mr Gibbons, psychiatry registrar, with your first consultation having occurred on 20 April 2018.  As at 23 April 2018, you were homeless, as was the mother of your children.  It appears for some time you lived together at your mother's home, but presently your relationship can best be described as being in a state of flux. 

11      As at 23 April 2018, you were seeking housing support and in dispute with the mother of your children.  As at 21 May 2018, you had attended various appointments arranged by VAHS in respect to your housing, psychiatric wellbeing and alcohol issues. 

12      Exhibit 1 is the report of Dr Gibbons, psychiatry registrar, dated 16 May 2018.  Doctor Gibbons saw you on a weekly basis from 20 April 2018.  You exhibited ongoing depressive symptoms for which you were medication.  You undertook counselling.  According to Dr Gibbons you are apprehensive of the consequences of a term of imprisonment being imposed on you because of the effect, it would have in respect of your goals, being your drug rehabilitation program, (see Exhibit 3), and reconciliation with your former partner and your children.

13      Prior to consulting with Dr Gibbons, you had the opportunity of residential drug rehabilitation at Windana but only lasted 11 days at that place.  It was put that residential drug rehabilitation did not suit you.  I do not regard this as an adequate reason for failing to take up the opportunity of stable accommodation in a therapeutic setting which was designed to assist you in ridding yourself of your addiction to methylamphetamine. 

14      Prior to your sentence on 7 March 2018, you had spent 82 days on remand and during that time you undertook a number of courses, (see Exhibit 5).  I take into account your limited compliance with my order and in particular the 41.25 hours of unpaid work completed by you as part of your obligation to perform 300 hours of that work.  As well, I must take into account the time that you spent on remand and your compliance with the sentence of the Magistrates' Court of 7 March 2018.  Would you please stand.

15      Doing the best I can, taking into account the circumstances of your offending together with your personal circumstances and applying sentencing principle, I sentence you as follows:

(1) I cancel the community correction order imposed on you on 29 April 2016.

(2) I sentence you to an aggregate sentence of 12 months' imprisonment in respect of all charges, save the summary offence of possess cartridge ammunition, for which I convict and sentence you to a fine of $200.

(3) In respect to your breach of the community correction order, I sentence you to a term of imprisonment of one month, which sentence is to be served concurrently with the sentences I have imposed this day. 

16 I declare that you have spent 26 days by way of pre-sentence detention, not including today. Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to two years imprisonment with a non-parole period of 12 months.

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HER HONOUR:  Are there any other matters?

MS SHAND:  No.

HIS HONOUR:  Remove the prisoner.

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