Director of Public Prosecutions v Boyle

[2017] VCC 2048

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00740

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW BOYLE

---

JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2017
DATE OF SENTENCE:	1 August 2017
CASE MAY BE CITED AS:	DPP v Boyle
MEDIUM NEUTRAL CITATION:	[2017] VCC 2048

REASONS FOR SENTENCE
---

Subject:         Criminal Law
Catchwords:  Breach of Community Corrections Order
Sentence:      Extension of Community Correction Order for a further 12 months and fine of $750.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Atkinson	OPP
For the Offender	Mr M. Page	VLA

HER HONOUR:   

1I will to give you some information about the way that I am going to proceed with this.  When I sentenced you on 20 November 2015, at that stage you had not committed any further offences since you had been released on bail, and although there had been some relapse into drug use I considered that your efforts then at rehabilitation entitled you to that chance of a community correction order.  You were on that order for quite some time before you relapsed again, and the offending, which has not yet been dealt with, took place in May 2017.  Also, you did not comply with the conditions involving rehabilitation, unpaid work and supervision. 

2That would normally mean that you had used up your last chance, but just days before I was to hear the breach of that community correction order on 24 May you went into the RecoverOz program, and after I heard evidence from Mr George Thompson, the Director of RecoverOz, about the program, I adjourned until today to see how you would go. As I made it absolutely clear to you there would be very little option other than sending you back to gaol where you would spend a little over three months in respect of this charge, rather than continuing the community correction order. 

3Today I have received two reports from RecoverOz, which mostly are very positive and show improving progress.  I have also received very positive references from your partner, mother and sister about the transformation, as they describe it, in you since your time in RecoverOz, which is from 22 May this year. 

4If allowed to do so, you would continue with the RecoverOz program until at least 1 October, which means you would have undertaken about five months there.  Mr Thompson said on the last occasion that he thought that five to six months would be necessary. 

5He also explained to me on the last occasion that that would enable what is called "After care planning" which would involve assisting you to integrate back into the community by way of employment and stability.  You have ongoing family support and your partner and mother are in court today.  You have previously obtained employment whilst still struggling with your drug use, so you have the capacity to undertake further employment. 

6You are daily attending Narcotics Anonymous programs through the RecoverOz program, and it is expected a connection with Narcotics Anonymous would continue into the future, and perhaps in your mind the most important factor is the high motivation that you probably now have, in expecting your first child, to not be in gaol when that joyful event takes place.  That is only one factor for me to take into account, but I can understand that that does give you some real motivation if you really are fair dinkum about your rehabilitation. 

7I said on the last occasion that it is often that someone with your type of addiction takes three steps forward and two steps back, and you have shown that to be a truism.  On the other hand you are now progressing well.  I have also heard from Ms Cowley, the Community Corrections officer assigned to work with you on your community correction order, and she has indicated that she would be continuing to monitor your situation, and effectively if I were to extend the community correction order, she would put on hold the conditions that you cannot at the moment comply with while you are in the RecoverOz program, and continue to supervise you in that program, and then proceed to work with you after your release from RecoverOz. 

8Yes, if you could stand up, please, Mr Boyle. 

9I have decided to continue the community correction order and extend it by 12 months.  But I want to make it absolutely clear that this is a continuation of your last chance.  It is not another last chance.  It is still the same one.  In a moment, I will make the formal orders, and I will be including a condition that you do come back and tell me how you are getting on.  But I want to make it clear that if you do breach this extended community correction order, whether it is by reoffending or by not complying with any of the conditions, then you will see that I will probably ‑ I will not say definitely ‑ but probably have no option but to send you back to gaol.  And that will be some considerable time after you have spent that three months in custody.  But that is where you will be heading back again.  And in case there is any doubt about that, the day after the last hearing of yours, I sentenced your co‑offender. He had committed other offences as well as not complying with his community correction order, and you might remember that I said that your role was greater than his in the initial armed robbery. I sentenced him to six months' imprisonment, so that is double the time that you have already spent, and I cancelled his community correction order, and there was also seven days' imprisonment for his breach of the community correction order.  So you can see that if I was to resentence you, you would be looking at least at another three months and probably more because of your role in the initial offending.  So just keep that in mind if ever you think to go back to drug use. 

10So what I propose to do is, on the community correction order made on 20 November 2015, order that that be varied by extending it by 12 months and adding the condition that you attend court here for judicial monitoring, that is what it is called, but it is basically a chance for me to see if you are staying on the straight and narrow, and that will be on 4 December at 9.30 am.  So if you finish the program at RecoverOz on 1 October, that will give you a few weeks to come back and show me that you are continuing on that path.  If not, we might be back here with another outcome, and you understand that, I take it? 

11OFFENDER:  Yes, Your Honour. 

12HER HONOUR:  So that is in respect of community correction order, varied by extending by 12 months and adding a judicial monitoring condition to attend at 9.30 on 4 December. 

13On the breach of the community correction order you are convicted and fined $750, and I will grant you a stay of six months to pay that, so you do not need to pay that until ‑ I think that takes us to January.  You can make a further extension to have that paid on a subsequent date, but you need to let the court know if you need more time.  Do you understand the order today? 

14OFFENDER:  Yes, Your Honour.

15HER HONOUR:  So the community correction order, all of the other conditions remain in place, that is the 350 hours, or what you have left to do of that, of unpaid community work.  Obviously that cannot start until after you are out of RecoverOz.  If you do get employment, and I expect that you will, you will need to work your unpaid community work around it.  It is not a matter of either/or.  Do you understand that? 

16OFFENDER:  Yes, Your Honour. 

17HER HONOUR:  Plus the supervision, plus the rehabilitation.  The rehabilitation, the Community Corrections officer has indicated will be taken into account with what you are doing now, but there may still be other programs that you are required to do after RecoverOz.

18OFFENDER:  Yes, Your Honour.

19HER HONOUR:  And then as I said, that final additional condition of coming back for judicial monitoring.  Do you have any questions? 

20OFFENDER:  No, Your Honour.

21HER HONOUR:  All right.  Thank you.  Just take a seat, and I'll just have that varied order made and printed out, and then we will both sign it so that it is in force.  Ms Cowley, do you have any questions about that? 

22MS COWLEY:  No, Your Honour. 

23HER HONOUR:  Thank you.  Unfortunately there is some delay with the documentation because ‑ well, I don't need to tell you about the inner workings of the computer system of the County Court, but basically the computer says, no, we have to have it relisted so that the order can then be entered.  So my apologies for the delay. 

24Yes, perhaps, Mr Boyle, you can step out of the dock, as I am going to be continuing this community correction order, and take a seat behind Mr Page, as you will be asked to re-sign this document when we get it. 

25All right.  We now at least have the ability to enter the orders, but it is just going to take a little time.  Ms Cowley, I won't keep you any longer, and I might just leave the bench whilst all that is done.  So I hope Mr Atkinson, Mr Page, you don't need to be anywhere else? 

26COUNSEL:  No, Your Honour. 

27HER HONOUR:  Ms Cowley, thank you for your attendance, I will disconnect the video‑link, and I will just wait outside until the orders are ready.  And obviously Mr Boyle, you will wait until I have signed those orders and you have signed them.  Yes, thank you.        

28(Short adjournment.)

29HER HONOUR:  Yes, my apologies once again for the technical problems, but we are now ready with this order.  So Mr Boyle, if you can come forward, please, and stand next to Mr Page.  So this order has the same conditions, effectively starting on the same day, 20 November 2015.

30OFFENDER:  Yep.

31HER HONOUR:  But now extended for a further year.  So it is a four‑year order. 

32OFFENDER:  Okay. 

33HER HONOUR:  Going to 19 November 2019. 

34OFFENDER:  Yes, okay.

35HER HONOUR:  Plus the addition of coming back to see me, the judicial monitoring.  All the other conditions are the same. 

36OFFENDER:  Okay, no worries, thank you.

37HER HONOUR:  So if you are prepared to consent to that order, then please sign where indicated.

38OFFENDER:  Yep. 

39(Order signed.)

40HER HONOUR:  Yes, take a seat just there behind Mr Page.  Thank you.  All right.  I have now signed that order, and a copy will be given to you before you leave, and that order remains in force with those variations.  Do you have any questions? 

41OFFENDER:  No.

42HER HONOUR:  All right.  So the next time I see you is on 4 December at 9.30 to see how you are going. 

43OFFENDER:  Thank you, Your Honour.

44HER HONOUR:  And you better make sure it is a good progress report. 

45OFFENDER:  Thank you.

46HER HONOUR:  Yes, thank you.  I will excuse the parties and counsel. 

‑‑‑