Director of Public Prosecutions v Borg

[2019] VCC 646

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00259

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN BORG

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 April 2019
CASE MAY BE CITED AS:	DPP v Borg
MEDIUM NEUTRAL CITATION:	[2019] VCC 646

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	Mr S. Davison
For the Accused	Mr S. Kennedy

HER HONOUR:

1All right, Mr Borg, can you stand up please?

2Now, it was sometime since I have seen you, Mr Borg, and when I saw you last time in October 2016, some two and a half years ago, you were before me on a very serious charge.  Armed robbery is a very serious charge. Your victim was terrified of what you did in the armed robbery and I told you at the time that you should expect to go to gaol if you committed an armed robbery.

3It was only because of the very good material that I had at the time that I did not send you to gaol. When I finished sentencing you to this community corrections order, what I said to you was this,

'It is all up to you now, Mr Borg.  I don't expect you'll be before a court again.  If you are, then you'll be in very big trouble indeed because the order I'm going to make today is for quite a long time.  If you breach this order, then you'll be back before me and I'll have to decide what to do.

'I want to give you a chance to show me that you can get away from drugs and lead a sensible life.  You have shown me that you can.  If you change your mind, if you are led into offending by any other people, then you'll be back before me in 2017, 2018, 2019 or 2020.'

4So that is what I said at the time.

5Now, you have not been in any further trouble.  That is good.  You have reorganised your life, you have started to build your life properly and that is a very good thing but it sounds to me as if it has all been about you.  It has all been about you and you getting ahead in life rather than complying with the orders that I made.

6I made these orders for community work for a very specific reason - so that you can put back into the community to give some comfort to the community that you are repaying your debt arising out of your armed robbery. Armed robbery is still a serious matter today as well it was in 2016.  You can go to gaol for committing an armed robbery.

7This disposition that I gave you was a very lenient one and it was given to give you the opportunity to show that you could comply with the conditions that I said to you.

8So I am extremely annoyed that you have not.

9Now, I have heard that you now in a position to deal with the orders and to get this community work behind you.

10I will give you that opportunity again but I am going to make the community corrections order a significantly lengthy one, because I am just not persuaded at the moment that you are going to complete the hours of community work.  You have only done 33 hours so far and that is an appalling situation to be in.

11So I am going to extend the order so that you have got plenty of time to complete the community work hours.

12I do not think there is any need for supervision any more.  It sounds as if you are back on track.  You do not need supervision and I do not think that you need rehabilitation.

13So I will note those matters as having been resolved.

14The community work must be done.  I will extend the community corrections order to 31 December 2021 to allow that to be done.

15Now, you can do the community work whenever you want but you are still going to be under the operation of the community corrections order till 31 December 2021 and there are certain conditions that apply to that and they are going to apply to you until that time.

16If you take the same lackadaisical view about the orders that I am making today as you took a view of the orders that were made in October 2016, then there is really no more room to move.  I have got nothing else that I can do to assist you to keep out of trouble than what I have already done.

17Now, I think you need to sign the forms again.  My associate will prepare those forms and I will need to explain them to you.  I am not sure whether I have got a note of the orders. 

18But the general orders that I made are for you to comply with all of the requirements of Community Corrections until that date, 31 December 2021, you are not leave Victoria without notifying the community corrections officer and also to notify community corrections officers of any change of address and also not to commit any further offences.

19In this case, you have committed three driving offences.  You do not sound as if you took those offences very seriously because you did it three times.  I am not impressed at all with the excuse that has been given for you driving whilst your licence was suspended on those three occasions.

20I trust that you will listen in the future.  You can go to gaol for a driving offence as you know.  You must not see these offences as just as being administrative issues.  They are very serious indications of your lack of respect for the criminal law.  So I will be putting the same condition on this community corrections order as I did before, that is that you not commit any criminal offence.

21If you do not take that seriously this time, then all of the good work that you have done in rebuilding your life is held to nothing.

22All right.  Now, do you need a break while I prepare the orders?  All right.

23All right.  Well, now I will leave the Bench and my associate has some things that have to be clarified.  I will come back on the Bench.  You can talk to Mr Kennedy about this order that I propose to make and then I will be asking you to sign the order indicating your consent.

24Yes, Mr Davison.

25MR DAVISON:  Your Honour has found the alleged offence is proved.  Is Your Honour minded to award any penalty for the breach?

26HER HONOUR:  I will find the offence proven.  I think the extension of the community corrections order for so long will be a penalty in itself.  I am not going to ‑ ‑ ‑

27MR DAVISON:  As the court pleases.

28HER HONOUR:  ‑ ‑ ‑ make any further order in relation to that.  Yes, I will leave the Bench while the documents are being prepared.

29MR KENNEDY:  Could I just keep the link going for a second, Your Honour?  I need to ‑ ‑ ‑

30HER HONOUR:  Yes, we will leave the link ‑ ‑ ‑

31MR KENNEDY:  Something administrative.

32HER HONOUR:  Yes.  Thank you.

33(Short adjournment.)

34MR DAVISON:  Your Honour, if I may address you briefly ‑ ‑ ‑

35HER HONOUR:  Yes.

36MR DAVISON:  ‑ ‑ ‑ in regard to the duration you have proposed of the ‑ ‑ ‑

37HER HONOUR:  Yes.

38MR DAVISON: ‑ ‑ ‑ by the variation of the community corrections order. Your Honour, you have proposed to go to 31 December 2021. Unfortunately, Your Honour is limited by s.38 of the Sentencing Act in that regard.

39The maximum period from commencement is five years.  That would make the maximum date 10 October 2021, Your Honour.

40HER HONOUR:  Yes.  Thank you.  I had some discussions with my associate about that and I understand that is the situation so instead of 31 December 2021, the order will go to 10 October 2021.  Thank you, Mr Davison.

41MR DAVISON:  As the court pleases.

42HER HONOUR:  All right.  If I can perhaps have the orders.  Thank you.

43Now, Mr Borg, the order have now been prepared.  As you have heard the completion date of the community corrections order will now be 10 October 2021 and not the end of the year.  It is necessary for you to sign this document again indicating your consent to some terms and I am going to read out the terms to make sure that you understand them.  All right?

44OFFENDER:  Yes, Your Honour.

45HER HONOUR:  So the first term that you must agree with is that you must not commit any other offence for which you can be imprisoned during the time the order is in force.  Do you understand that?

46OFFENDER:  Yes, Your Honour.

47HER HONOUR:  So that is up to the end - 10 October 2021.

48The second one that you must comply with any obligation or requirement that is imposed on you by the Secretary.  Do you understand that?  So the people that you are in contact with from Community Corrections, you must comply with any obligations or requirements that they impose on you.  All right?

49OFFENDER:  Yes, Your Honour.

50HER HONOUR:  You must report to and receive visits from the Secretary if that is required.  You must report to the community corrections centre at Seymour within two clear days of this order.  Do you understand that?

51OFFENDER:  Yes, Your Honour.

52HER HONOUR:  You must let a community corrections officer know within two clear working days if you are changing your address or your job.  Do you understand that?

53OFFENDER:  Yes, Your Honour.

54HER HONOUR:  You must not leave Victoria without first getting permission to do so from Community Corrections.  Do you understand that?

55OFFENDER:  Yes, Your Honour.

56HER HONOUR:  And you must obey all lawful instructions and directions from the Secretary.

57Now, I have deleted the requirement for treatment or supervision and that is because, in my view, you have shown a commendable approach to getting your life in order.  I do not think you need supervision or rehabilitation any more but I am going to order that you perform 300 hours of unpaid community work over that period and I will note on the order that the hours that you have already served will be deducted from that 300 hours.

58All right.  Now, if you are happy to enter into a community corrections order on that basis, I will have you now sign the document.  I presume, Mr Kennedy, you have explained this to Mr Borg but if you have got any more questions, Mr Kennedy can answer them for you.

59MR KENNEDY:  I didn't show them fairly, Your Honour, but I'm confident that he ‑ ‑ ‑

60HER HONOUR:  All right.

61MR KENNEDY:  I will.  Yes.

62HER HONOUR:  Well, I am happy to give you an opportunity to go through them ‑ ‑ ‑ 

63MR KENNEDY:  All right.

64HER HONOUR:  ‑ ‑ ‑ if there is any ‑ ‑ ‑

65MR KENNEDY:  Thank you, Your Honour.

66HER HONOUR:  Yes.  Thank you.  So I formally find the breach proven.  I will impose no sentence in respect of the breach.  I will reimpose the community corrections order in the manner that I have outlined to Mr Borg.  Are there any other matters that I need to deal with?

67MR DAVISON:  No, Your Honour.  Thank you.

68HER HONOUR:  All right.  Thank you.  I will now adjourn the court sine die, Mr Tipstaff.

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