Director of Public Prosecutions v Boyack

[2019] VCC 1614

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00717

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES BOYACK

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2019
DATE OF SENTENCE:	3 October 2019
CASE MAY BE CITED AS:	DPP v Boyack
MEDIUM NEUTRAL CITATION:	[2019] VCC 1614

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 S. Holmes	Office of Public Prosecutions
For the Accused	Ms J. Willard	Nicholas Rolfe Lawyers

HIS HONOUR: 

1Even taking into account everything for you, there is a need for me to send a message to young people who effectively take the law into their own hands. 
If you are owed money, you should take it up with the person and if he is not paying you, go and see a lawyer.  I know that is easy to say and hard to do.  You go if you can to the union, if you have got one, or try and take it up with him in a civil way, not going to his door and kicking out his laundry with your mates.

2So you have taken the law into your own hands in that sense, and I have got to send a message of deterrence to people who might go armed, break in and really terrorise people, and that is a serious crime.  You did not commit that, but it had the potential to go wrong, and people get hurt.  So there is a need for deterrence.

3So I intend to impose a conviction.  The community corrections order that I will impose will be less in length and in requirements upon you than that on
Mr Williams.  I can see you as a 21-year-old with a lot ahead of you, so I think just having you under general supervision to know that if you break the law again, you come back to see me.  And you do not want to do that.

4So it will be for 12 months, all right?  But in that time, you have got to do
75 hours of community work.  Now, for someone like you, working six days a week with the hours that you work, that should be done quickly and put it behind you.  All right?  But in the same breath, you are someone who does have a job and commitments to your employer, and they value you significantly from the letters that I have read.  You cannot put your job at risk, so get this done by informing them and the Office of Corrections of all the arrangements that you have.  So get the job, the community work done as soon as you can, and that will be put behind you.

5I have taken into account your plea of guilty, which is a matter of moment, because there were some aspects of this that you may have been able to put to the jury, that you never had an intention to do anything, but you have pleaded guilty, and it is a valuable plea.  You are only 21 and a young person, and therefore, your rehabilitation is the most prominent sentencing consideration.

6You have good support, and you do, from time to time, have difficulties with mental health, and you have got to manage that.  You heard what I said: 
that there is something about a mental health plan that you should take up.  Think about it in a number of ways:  young men do not do enough for themselves and their mental health, usually because no-one brings it up. 
But it has been brought up here, and this should be a turning point for that.

7The other side of it is:  do not let your family down again by getting depressed and doing something that you otherwise should not have done.  They should not be dragged back into this court after all they have done for you.  So keep that in mind when you are on this order, and beyond that.

8So they are the sentencing matters that are of importance.  I do not for a moment want you to walk away thinking the crime was not a serious one. 
You are here in the County Court.  We have got robes on and so on and so forth.  It is a serious crime to go to a person's house, where they are entitled to feel safe, and it is taken seriously enough that the example here of what you did is at the lower end and allows me to contemplate the sentence that I have imposed of a community corrections order, just as it did the judge who dealt with Mr Williams back in Bendigo a couple of months ago.

9Had you pleaded not guilty to the offences and been found guilty of them,
I am not required by law to tell you what would have happened, but it more than likely would have ended up in some period of gaol.  So the plea of guilty is a valuable one following your sentence indication.

10I do not propose to have separate penalties for the two offences.  They were connected by all the circumstances and separated by not that much time, really, in the overall scheme of things.  So it will be one single penalty of one 12 month community corrections order, with the 75 hours.  That is permitted over indictment and summary offence, I take it?

11MS HOLMES:  Yes, Your Honour. 

12HIS HONOUR:  Yes, thank you.  Mr Boyack, that is a sentence imposed upon you with the formalities that sometimes attend to these things.  I just need to discuss with the lawyers whether there is anything that has been overlooked.

13MS HOLMES:  The forensic sample order, Your Honour.

14HIS HONOUR:  Yes, I have not overlooked that.  I am going to ask about that.

15MS HOLMES:  Yes. 

16HIS HONOUR:  But there is nothing else that needs to be done in terms of the sentencing?

17MS HOLMES:  No, Your Honour. 

18HIS HONOUR:  Thank you.  Ms Willard, I have not said anything about this forensic sample.  What do you say about that?

19MS WILLARD:  I sought instructions, Your Honour.  He consents to it being made.

20HIS HONOUR:  But why I should impose upon a 21-year-old a forensic sample for something like this?

21MS WILLARD:  Your Honour, he's young, and it wasn't his DNA that led to the detection of this matter, so it would be my submission that Your Honour doesn't make it.

22HIS HONOUR:  Thank you. 

23MS WILLARD:  Thank you. 

24HIS HONOUR:  Why do you want it?

25MS HOLMES:  Your Honour, I was instructed to make the application.

26HIS HONOUR:  Yes, I understand that.

27MS HOLMES:  But I hear what Your Honour's had to say, and I ‑ ‑ ‑

28HIS HONOUR:  So what is behind the instructions?  Let us give them value.

29MS HOLMES:  Well, given the seriousness of the offending, the seriousness of the offence, it's in and of itself that's been charged, the fact that it is an indictable offence, and that it is a matter that is dealt with in the County Court, it is an application that is made as a matter of course.  I hear what Your Honour has to say in relation to all of the issues that have been raised. 

30HIS HONOUR:  I think I will give him one chance on that as well.

31MS HOLMES:  Yes, Your Honour. 

32HIS HONOUR:  Mr Boyack, what has been asked of you, and something apparently you do not have any trouble with, but it is nonetheless a big step - that the prosecution ask, because of the seriousness of the crime, that you provide a forensic sample and that your DNA go on a database that is held for the rest of time.  Now, it is a simple process of a swab of your mouth. 
I understand that.  But nonetheless, it is an order of the court that you undergo a procedure.  I can only do that if I consider the seriousness of the offending, your prior history, if there is any, and there is not in your case, and whether it is in the interests of justice that you provide this sample. 

33On balance, I intend to allow you to sign the application for the - or consent to the community corrections order, go and do your order, and put this behind you.  And I am not going to order that you go and provide a forensic sample in addition to that, so I decline that application.

34All right.  We will get a document printed and we will bring the matter to an end.  Where is the community corrections centre?  Echuca?

35MS WILLARD:  Echuca, yes.

36HIS HONOUR:  Thank you.  Mr Boyack, this community corrections order will last for 12 months.  It starts on 3 October, that is today, and finishes on
2 October next year.  So the conditions that apply to a community corrections order, the first of these I am going to explain to you.  These apply to everyone on these orders.  The first one is perhaps the most important for you, and it is this:  that you must not commit another offence for which you could be imprisoned during the time the order is in force.

37Now, that means that during the course of this 12 months, should you commit an offence punishable by imprisonment, and almost every offence you can think of is punishable by imprisonment, you will come back before me and you will have exhausted your chances.  I would have to resentence you for this crime, and it is likely to involve some imprisonment.  So do not commit any offences during the 12 months; in fact , do not commit any offences full stop.  But if you do within the 12 months, there is trouble.

38The next lot of conditions really are about cooperation.  So you must comply with obligations and requirements under the sentencing regulations, and I am told that is:  when you go there, they will need to take a photograph of you to know who you are and so on.  You must report to and receive visits from the Office of Corrections.  You must report to the community corrections centre there in Echuca within two clear working days, so go tomorrow if you can. 

39You must let the community corrections officer know within two clear working days if you change your address, or your job.  You must not leave Victoria without first getting permission to do so, and you must obey all lawful instructions from the Office of Corrections.  So that is mandatory, that is everything.  Have you got a question?

40OFFENDER:  Yeah.  Um, with me work, 'cause I'm in Echuca and we do a lot over the border in Moama which is New South Wales.  And so what do I ‑ ‑ ‑

41HIS HONOUR:  Yes, I will explain that.  The folk at the Echuca community corrections centre know of this issue for people like you who may have to work or go over the border to do things, and they make general arrangements that you can go, you know, to Moama without having to be in touch.  You will explain that all to them, just as you have to me, and I am sure they have got an answer to it.  But it is plain as the burning daylight that I do not expect this to mean that you have to pull the car up at the river and give them a telephone call just to go to work, but you do have to put them in the picture in advance.

42OFFENDER:  Yep.  Yeah.

43HIS HONOUR:  You must obey all lawful instructions from and directions of the Office of Corrections.  All right.  Apart from those mandatory conditions, the conditions that apply to you are:  you must perform 75 hours of unpaid community work over that time.  That is not a voluntary thing, 'I will do it when
I get around to it.'  It is just when you are required.  But you must make good arrangements in discussions with them about all of that.  Do you follow?

44OFFENDER:  Yep.

45HIS HONOUR:  All right.  If you sign that, then the matter comes to an end. 
Just come out of the dock and come and sign this.  You will get a copy of that, and once you have, you are free to go.  Mr Boyack, thank you very much. 
Ms Willard, this was a comprehensively prepared application and plea and I am very grateful for that.  Ms Holmes, thank you very much.  Some things are more straightforward than others.

46MS HOLMES:  Yes, Your Honour. 

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