Director of Public Prosecutions v Calabrese
[2015] VCC 553
•4 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-12-01569
CR-12-01580
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROCCO CALABRESE |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7, 10, 11, 17 November and 11 December 2014, 20 February, 27 March and 27 April 2015 |
| DATE OF SENTENCE: | 4 May 2015 |
| CASE MAY BE CITED AS: | DPP v Calabrese |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 553 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Obtaining financial advantage by deception - obtaining property by deception - attempting to obtain a financial advantage by deception
Legislation Cited: Sentencing Act 1991
Cases Cited: Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
McAleer v The Queen [2015] VSCA 4, Sherritt v The Queen [2015] VSCA 1
Marocchini v The Queen [2015] VSCA 29, Verdins v The Queen (2007) VSCA 102
Cole (a Pseudonym) v The Queen [2015] VSCA 44
Charles v The Queen [2011] VSCA 399, R v Tsiaras [1996] 1 VR 398
Sentence:18 months’ imprisonment plus 2-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Crown on all dates except For the Crown on 11 December 2014 and 4 May 2015 | Mr D. Porceddu Ms T. Russell | Office of Public Prosecutions |
| For the Accused on all dates except 27 March, 27 April and 4 May 2015 For the Accused on 27 March 2015 For the Accused on 27 April and 4 May 2015 | Mr R. Barry Mr N. Papas Q.C. Mr J. Valos | Valos Black & Associates |
HIS HONOUR:
1Rocco Calabrese, you have pleaded guilty to one charge of obtaining a financial advantage by deception, three charges of obtaining property by deception and one charge of attempting to obtain a financial advantage by deception.
- Obtaining a financial advantage by deception and obtaining property by deception each carries a maximum penalty of ten years' imprisonment.
- Attempting to obtain a financial advantage by deception carries a maximum penalty of five years' imprisonment.
2You are presently 55 years of age having been born on 10 March 1960. You were aged between 50 and 52 when this offending occurred between 2010 and 2012.
3You have a criminal record to which I will refer in greater detail later.
4The circumstances of your offending are as follows.
Charge 1
5On an unknown date in 2010, you registered on the Sydney-based website "Drive My Car Rentals." This website enables people to privately hire their own vehicles to other people registered on the site. You registered on this website as a person wanting to hire a vehicle using a false name of Rocco Biagioni, with your date of birth, address and the driver's licence number which is recorded by VicRoads for you under the name Rocco Calabrese.
6The victim, Daniel Correia, registered on the “Drive My Car Rentals” website in November 2010. Through this website, the victim advertised his black Maserati GT Quattro sedan with registration number UKF470 for hire at $425 per day.
7You contacted the victim via the website and made an arrangement to hire the vehicle for approximately one month at a negotiated rate of $2,287 per week.
8. On 10 December 2010, you met the victim at the victim's mother's residence in Reservoir. This meeting was in order for you to pay for one week’s initial hire of the vehicle and to collect the vehicle from the victim. You produced an ANZ chequebook linked to the account number 438903909 in the name of Ms Josephine Biagioni, who was your wife.
9You requested the victim to write out the particulars of the cheque, being the victim's name in the payee section and the amount of $2,287. The victim filled out these details on a cheque from the ANZ chequebook given to him by you. You then signed the cheque using your wife's name of “J Biagioni” and gave this to the victim. You gave the victim this cheque in order to evade the debt owed for the hire of the Maserati vehicle. The victim gave you the keys to the Maserati. You took custody and control of the vehicle from this date.
10The victim deposited the cheque you gave him into his bank account. The cheque was declined by the bank. The victim contacted you regarding the cheque being declined. You instructed the victim to re-bank the cheque, knowing that the cheque would not be honoured. You did this in order to evade the debt owed to the victim for the hire of the vehicle. The victim attempted to re-bank the same cheque but the cheque was again declined by the bank due to insufficient funds.
Charge 4
11Sometime during January 2011, you and the victim made a verbal agreement that you would purchase the vehicle from the victim at $5,000 per month, paid until the money owed to BMW Finance was paid out. You agreed to take responsibility for the monthly direct debit commitments to BMW Finance at $3,095.29 per month and pay a balance of approximately $1,900 per month in cash to the victim. The victim and you further agreed that the vehicle would remain in the victim's name and that the finance with BMW Finance would remain in the name of the victim until the money was paid by you in full. You had no intention of honouring this agreement made with the victim.
12The victim received a Direct Debit Authority form from BMW Finance and forwarded it to you for you to record your bank account details on. You, without consent from the victim, filled in the Direct Debit Authority using the fictitious name of Daniel Correia of Danmel Tranz Pty Ltd, which is the company name of the victim. This authority was to release funds from a fictitious ANZ bank account with BSB 013-006 account number 29931597 in the name of Daniel Correia. This authority was signed and dated on 24 January 2011. On 1 February 2011, you faxed this form directly to BMW Finance with the intention to deceive a representative of BMW Finance into believing that the name and account were genuine and in order to evade the debt owed for the purchase of the Maserati. You had recorded the details of this fictitious person and account in your personal diary.
13On 28 February 2011, BMW Finance attempted to withdraw funds of $3,095.29 from the account provided by you; however this transaction was declined due to it being an invalid account. This represents Charge 4 on the indictment.
14Over the succeeding months, various representations were made by you or by somebody on your behalf in relation to the agreement of unpaid instalments. On or before 6 May 2011, you caused to be delivered to BMW Finance an ANZ receipt as proof of payment; however the receipt was false.
15During April through to July 2011, the victim made several attempts to retrieve the moneys owed to him by you for the vehicle. The victim was also in contact with members of your family in an attempt to retrieve money for the vehicle. The victim was told that he was able to come to collect the vehicle. However, when the victim attended at your address, he was informed by your relatives that the vehicle was being repaired or otherwise not currently at the address and he would have to return at a later date. You did not enable the vehicle to be returned to the victim.
16Since 10 December 2010 you had paid the victim a total of approximately $8,000 in cash in various amounts, firstly as hire of the vehicle and then as payment for the vehicle. You had no intention to pay the victim the amount as agreed for the Maserati. You kept full possession and control of the vehicle from 10 December 2010.
17On 5 September 2011 you were located by police on Queens Road Melbourne in the Maserati. You were subsequently arrested at this location and taken to the Melbourne West police station where a video record of interview was conducted.
18During the record of interview you claimed to be good friends with the victim. In regards to the vehicle, you claimed to have a “long term association” with the victim where you paid the victim cash from time to time in exchange for the vehicle. However, you were vague as to how much money you had paid and the actual terms of the agreement.
19When asked about the cheque given to the victim for the initial hire of the vehicle, you stated that you gave the victim the cheque, but the victim preferred to be paid in cash so you paid the victim cash a few days later. You could not explain why the victim had possession of the cheque or why he would have attempted to bank it. Further, you stated that your wife controlled the finances and that she signed the cheque given to the victim. You could not recall giving the victim the second cheque.
20You stated that the direct debit given to BMW Finance in January 2011 was signed by your wife, as the money was due to come out of her account; however you admitted that you faxed the document to BMW Finance. You denied all wrongdoing in regards to allegations of deceptions and claimed that the agreement with the victim regarding the vehicle was still ongoing. Further, you stated that the victim had been able to collect the vehicle whenever he wished, but had chosen not to. You confirmed that the vehicle had been stored at your home address in a locked garage.
21The Maserati has since been returned to BMW Finance as security for the unpaid loan.
22I now turn to Charges 2, 3, and 5. The Gourmet Produce Pantry Pty Ltd is an Australian proprietary company registered under Australian Company Number 144978567. Its listed directors include Josephine Biagioni, Toto Germanto and Djoni Rahagio. Josephine Biagioni is your ex-wife.
23At 9.30 am on 16 December 2010, Debbie Herbst, the executive director of Gold Coast Marine Aquaculture in Queensland, received a phone call from you stating that you were calling on behalf of Gourmet Produce Pantry Pty Ltd and were interested in purchasing prawns. Debbie Herbst referred you to a sales representative, Scott Walter, who works in Victoria. You made two orders for prawns with Scott Walter.
Charge 2
24On 20 December 2010, you advised Scott Walter that you were interested in purchasing more stock. An invoice was generated for an additional two pallets of prawns valued at $16,930. You banked a cheque in the amount of $16,930 under the name Gourmet Produce Pantry into the bank account of Gold Coast Marine Aquaculture. On Tuesday 21 December 2010, a payment slip was received from Westpac Bank totalling the amount of $65,120. This was deposited into a Westpac branch via cheque number 000046. Eight pallets were released even though the payment was short by $6,560. On the same day, a person from Gourmet Produce Pantry collected the eight pallets from Dockside Cold Storage. Cheque number 000046 totalling $65,120 was dishonoured.
25
On 20 December 2010, the two pallets of prawns were collected from Dockside Coldstore on behalf of the Gourmet Produce Pantry business.
26On 21 December 2010, Westpac Bank sent a letter to Gold Coast Marine Aquaculture Pty Ltd stating that the amount of $16,930 had been reversed from their account as the cheque deposited by Gourmet Produce Pantry Pty Ltd had no funds available as the account was closed. The total value of the items was $82,050. This conduct represents Charge 2 on the indictment.
Charge 3
27On 22 December 2010, you asked a business associate, George Milonas, of ‘George Fishmonger’ Shop 35 Queen Victoria Market, Melbourne if you could borrow his van. George Milonas agreed to this request after you offered to leave your new Maserati as “security”.
28You drove the van to FQP food service, 18-28 Flockhart Street Abbotsford. The manager of FQP, a Ms Han, agreed to deal with you as she had spoken to Milonas earlier in the day and was told by him that he was sending someone to collect the prawns on his behalf. You collected 33 boxes of prawns valued at $6,165, and later that day returned and collected a further 71 boxes of prawns valued at $12,770.
29Ms Han contacted George Milonas who stated that he had never given permission for you to directly collect the prawns and they should bill you for the prawns you had taken. You never paid for the goods totalling $12,770. This conduct represents Charge 3 on the indictment.
Charge 5
30On 7 April 2011, you made an order for kitchenware items at E&S Trading. On 9 April 2011, you placed an $11,695 cheque into the account of E&S Trading and then called the sales representative, Donna Ramsdale, letting her know that the funds had been placed into their account. The sales representative believed that an electronic funds transfer had been completed and so released the goods to you. The goods collected by you included a Siemens Universal Plus oven, a Siemens Steam Combination oven, a Siemens induction cooktop, a Siemens rangehood and a Siemens dishwasher.
31On 9 April 2011, you attended E&S Trading, 215 Barnes Road Noble Park, and wrote out a cheque in the amount of $2,606 for the purchase of a Zip hydro tap. This cheque in the name of Gourmet Produce Pantry was linked to a closed Suncorp Bank account.
32On 12 and 13 April 2011, E&S Trading were contacted by their bank informing them that the cheques had bounced as the account was closed. The total value of the goods was $13,901. This conduct represents Charge 5 on the indictment.
33At the Melbourne Custody Centre on 7 July 2011, you gave a “no comment” record of interview to police.
34A victim impact statement was received from Mr Scott Walter, the sales agent for the company Gold Coast Marine Aquaculture associated with Charge 2. Your acts caused much stress and anxiety within his family and the company, as the stock not paid for impacted particularly at a time when cash flow was tight due to the seasonal nature of the business. The company was forced to borrow to keep operational. The experience has made the victim fearful, sceptical and less trusting of others.
35I now turn to your personal circumstances.
36As I noted earlier, you are presently 55 years of age and you were aged between 50 and 52 when this offending occurred from 2010 to 2012. You have been described as self-employed.
37Again as I noted earlier, you have a criminal history. Your first court appearance was at the Frankston Magistrates' Court in 1992 where you were put on a good behaviour bond for obtaining a financial advantage by deception and failing to answer bail. In 1998, you appeared twice at Magistrates' Courts being put on an intensive correction order for obtaining a financial advantage by deception and obtaining property by deception in the first instance and being fined for selling liquor whilst unlicensed in the second.
38In 2002, you appeared in the County Court and were gaoled for three years and six months with a non-parole period of 24 months for obtaining a financial advantage by deception and obtaining property by deception. You were gaoled again in 2010, this time for eight months and being released after four months on recognizance for offences against the Corporations Law.
39You were born into a hardworking migrant family and did not progress well at school. You left early and commenced working for Euro Meats at around age 14. You had not completed Year 9. You worked with Euro for 13 or so years until at the age of 28 you owned and operated your own butcher shops. Thereafter, you have worked variously in partnership with others in a meat processing business, a La Porchetta Italian Restaurant business and other businesses. Both the meat processing business and the La Porchetta business ended in you being declared bankrupt.
40In more recent times, you have operated a business trading as Gourmet Produce Pantry Pty Ltd with your wife, which acted as an intermediary in the wholesale grocery and fresh produce marketplace.
41You married your now ex-wife when you were 19. You have three sons. The marriage ended in 2010 after years of frustration for your wife and she now effectively has no contact with you. You have achieved a partial reconciliation with your eldest son, now 31, but your twin boys, aged 29, are refusing to have any contact with you.
42Psychological reports from Mr Ian Mackinnon and Mr Jeffrey Cummins were tendered on your plea. Mr Cummins had also assessed you in 1999 and had treated you through 17 consultations until February 2002 when you were sentenced by this court for very similar offending to the present charges involving the dishonour of various cheques.
43The psychological assessments present various attempts to diagnose a psychological disorder which might explain your repeated offending. Mr Mackinnon opined that at the time that he assessed you at his rooms on 17 September 2014 you were suffering from a depressed mood disorder. At that time you were facing a plea hearing in relation to these charges. In addition to reactive depression, Mr Mackinnon considered that your depression was partially fuelled by your father's death at 81 of age-related symptoms in 2011, several business failures with disastrous financial consequences, the breakdown of your marriage and other personal issues. Based upon what you told Mr Mackinnon of your failed business dealings, threats and bashings by underworld identities, fears for the safety of your family and that your offences were motivated by a desire to get your family out of financial trouble, Mr Mackinnon also concluded that at the time of the offences, you were probably suffering from a Depressed Mood Disorder, which significantly degraded your ability to reason and make sound judgment.
44In 2002, when you were facing charges of obtaining financial advantage by deception, Mr Cummins diagnosed you as suffering from a Reactive Agitated Depressive Disorder and a Post-Traumatic Stress Disorder. Further, that you had an Avoidant Personality Disorder or at least an avoidant personality style and at times appeared to engage in encapsulated delusional thinking concerning financial matters. You attended some 17 assessment treatment consultations from February 1999 to February 2002. I note that it was on 15 February 2002 that you were sentenced by this court to three and a half years' imprisonment.
45In his most recent report in February this year, Mr Cummins opined that you still have some difficulty, in a psychological sense, in coming to terms with your offending behaviour. You engage in very rigid thinking concerning the psychological need to perceive yourself as a successful businessman in spite of your history of failed businesses and two bankruptcies. You have a need to impress yourself and others regarding your business success and prowess.
46In his more recent assessment, Mr Cummins prefers the diagnosis of Narcissistic Personality Disorder with depressive symptomatology reflective of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Mr Cummins also opines that your personality disorders have played a pivotal role in your offending history as well as in the offending to which you have now pleaded guilty in the context also of the breakdown of your marriage and your sons' rejection of you.
47In summary, in Mr Cummins' opinion you were suffering symptoms of anxiety and depression at the time of the offending as part of the Adjustment Disorder, which was then chronic in type. You were not suffering from a Major Depressive Order, but your perception, judgment and problem-solving ability and ability to think clearly were to some degree clouded by your symptoms of anxiety and depression.
48I have also read and considered the character references from your former wife, Josephine Biagioni, and current partner, Jacqueline Rossi. Ms Rossi has been with you in a formal relationship for the past year and a half. Ms Rossi is very supportive of you and speaks well of your attachment to your sons, grandchildren and to her own child through a previous relationship. Ms Rossi also speaks of the reflection you have given to the circumstances that have led you to your present position and describes you as remorseful.
49Your ex-wife Ms Biagioni's detailed testimonial is significant for the insight it gives to your personality traits as she has observed them over several decades. She describes your perception of looking after the family as being distorted and unacceptable and how you are obsessed with gaining money and appeared to want to prove yourself better than everybody else. Years ago, she believed, you had what she described as an “obsessive compulsive destructive disorder” which was never treated despite her urging you to see a doctor. Ms Biagioni also suggests that your ability to think things through and consider actions and consequences is compromised and you live in a “fantasy world”.
50Ms Biagioni acknowledges the fact that you have a love for your family, but your inability to differentiate between reality and fantasy has been a source of your disappointments in maintaining harmony within the family as well as in your business life.
51The offending does represent serious examples of repeated deception. It involves significant amounts of money, it was considered, calculated, brazen and protracted. It represented the same modus operandi of the majority of offending for which you were imprisoned in 2002, that is, the passing of worthless cheques. The passing of worthless cheques and representations that electronic transfers have been made strikes at the confidence the commercial world can have in the worth and legitimacy of such transactions.
52In mitigation, I take into account the matters urged upon me by your counsel, including:
· Your plea of guilty, for its utilitarian effect. It has save the community both time and money from what may have involved a protracted trial bringing further anxiety to witnesses and victims. It was initially entered into at an early stage, but then delayed by applications to change the plea and by other adjournments.
· Your expressions of remorse and intended desire to change your ways, evidenced by your letter to this court and the expressions of your current partner. I consider that your expressions have to be viewed, however, in the context of your past history of many promises which have been unfulfilled and your condition which compromises your intentions. In this respect, I regard your ex-wife's statement as significant. It is apparent that much of what she has said parallels Mr Cummins' findings as to your personality disorders.
· The compensation, significantly, that you have made to your victims in respect of Charges 2, 3 and 5: $82,050 to Gold Coast Marine Aquaculture, $12,770 to FQP Pty Ltd and $13,901 to E&S Trading.
· Your mental health as assessed by Mr Cummins. Mr Cummins has had the benefit of assessing and counselling you in detail between 1999 and 2002, and then again assessing you in February 2015 in the context of the current offending. I accept that you have a proclivity to engage in delusional and grandiose thinking and behaviour, which impaired your ability to make calm and rational choices or to think clearly at the time of offending. The manner of your offending, the history of similar offending, the assessment by Mr Cummins and the consistency of that assessment with the experiences illustrated by Ms Biagioni satisfy me that there is some realistic connection of your psychological condition with the offending. At the same time, you are not unintelligent, you know right from wrong, you have shown that you can effectively rationalise your mistakes in life and if you care to reflect on the consequences, you are capable of avoiding the type of conduct that has placed you before this court. I accept that your psychological condition moderates but does not eliminate the need for the application of the principles of specific and general deterrence.
53I also accept that some slight consideration should be given for the delay that has occurred in bringing this case to a close. I accept that some aspects, such as financial considerations, have played a part and cannot be attributed to your acts. A significant part, however, was caused through your own actions.
54Overall, I am guarded concerning your prospects of rehabilitation, but I accept they are not eliminated despite the fact of your repetitive offending. They will be enhanced if you have treatment and if you are prepared to commit yourself to treatment.
55The basic purpose for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and the protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
56In his submissions on your behalf, your counsel gave specific emphasis to the recent decision of the Court of Appeal in Boulton[1] and on other authorities. I have given close consideration to the principles expressed in that decision of Boulton and the further expressions from the Court of Appeal in subsequent decisions including McAleer[2], Sherritt[3], Marocchini[4] and Cole[5]. I have also carefully considered the provisions of the Sentencing Act 1991, in particular s.5(4C), and the authorities of Charles[6], Verdins[7], and Tsiaras[8].
[1] Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
[2] McAleer v The Queen [2015] VSCA 4
[3]Sherritt v The Queen [2015] VSCA 1
[4] Marocchini v The Queen [2015] VSCA 29
[5] Cole (a Pseudonym) v The Queen [2015] VSCA 44
[6] Charles v The Queen [2011] VSCA 399
[7] Verdins v The Queen (2007) VSCA 102
[8] R v Tsiaras [1996] 1 VR 398
57On balance, in the particular circumstances of this case I am not persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your confinement in prison for some further period. In my view the objective gravity of your offending, together with your previous history for similar offending, requires it. Both general and specific deterrence remain prominent despite some moderation for your personality disorders and, indeed, for the fact that you have made considerable compensation to the victims.
58In that context, I do accept that your moral culpability and the weight to be placed on general and specific deterrence should be reduced to some degree, but less so for specific deterrence. On the last occasion you were brought before this court for very similar offending and were aware of your personality issues through your counselling with Mr Cummins for a significant period up to the date of that sentencing. There is no evidence that you addressed those issues following your release. You have repeated that same type of offending again.
59However, I also consider that if you are to have any real hope of rehabilitating yourself to the advantage of the community as well as to yourself, you will need help to help yourself. You will need specific psychological counselling, possible medication and structures placed in your life to assist you in giving real effect to your stated intentions. It remains open for you to obtain that structure through the process of an appropriately directed Community Correction Order commencing upon your release from prison. The prospect of you being resentenced by the courts to serve further time in prison if you should breach such order will be an added incentive to comply.
60On Charge 1 of obtaining a financial advantage by deception, you are convicted and sentenced to 6 months' imprisonment.
61On Charge 2 of obtaining property by deception, you are convicted and sentenced to 12 months' imprisonment.
62On Charge 3 of obtaining property by deception, you are convicted and sentenced to 6 months' imprisonment.
63On Charge 4 of attempting to obtain a financial advantage by deception, you are convicted and sentenced to 6 months' imprisonment.
64On Charge 5 of obtaining property by deception, you are convicted and sentenced to 6 months' imprisonment.
65Charge 2 is the base sentence. I direct that 2 months of the sentences imposed on Charges 1, 3 and 5 be served cumulatively on the sentence imposed on Charge 2 and upon each other.
66I make no order for cumulation on Charge 4, as the culpability of that charge is mostly subsumed by being part of payment avoidance commenced by the acts represented by Charge 1 and by a continuing process.
67The total effective sentence is 18 months' imprisonment.
68Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 175 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
69On Charges 1, 2, 3, 4 and 5 you are also ordered to serve a Community Correction Order for a period of two years.
70The Community Correction Order will commence immediately upon your release from prison and will end two years from that date. The correction centre you will attend is the Lilydale Community Correction Service at 1/18 Clarke Street Lilydale and you must attend within two clear working days after the completion of your imprisonment term.
71All the mandatory terms of a community corrections order apply and the additional conditions I impose are that:
· you be under the supervision of a Community Corrections Officer,
· you perform 200 hours of unpaid community work, and
· you undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility as directed by the regional manager.
72Now, I believe you understand that you have been assessed as being suitable for the Community Correction Order. I believe from the pre-sentence report that you have had the mandatory terms of the Community Correction Order explained to you, however it is appropriate that I briefly summarise them here.
73The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during that the order is in force;
· you must report to and receive visits from a Community Corrections officer;
· you must report to the Community Corrections Centre, that is the Lilydale centre, within two clear working days of the order starting, and as I have already indicated, the order commences immediately upon your release from prison;
· you must notify a Community Corrections Officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a Community Corrections Officer; and
· you must obey all lawful instructions from and directions of Community Corrections officers. Such directions may be given orally or in writing.
74Do you understand and agree to those conditions, Mr Calabrese?
75OFFENDER: Yes, Your Honour.
76HIS HONOUR: If you are ill or if there are exceptional circumstances, the order may be suspended for a period of time and if your circumstances materially alter, you may apply for a variation or cancellation of the order. In either case, you must notify the Lilydale Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen.
77However, I must warn you, and I understand you do appreciate this, that if you breach any condition of this order, you will be brought back before me. One of the options open to me is to cancel the Community Correction Order and resentence you on the original charges and I can also deal with you for the breach by sending you to prison for up to three months. Mr Calabrese, do you understand the consequences of breaching your Community Correction Order?
78OFFENDER: Yes, Your Honour.
79HIS HONOUR: All right, just take a seat for a moment. There is just something else I need to attend to.
80Pursuant to s.6AAA of the Sentencing Act, but for your pleas of guilty, the total effective sentence over all charges that would have been imposed is four years' imprisonment with a minimum period of three years to be served before eligibility for parole.
81Now, the Community Correction Order will be passed to you via your counsel and if you agree to it, you sign it and I will countersign it.
82MS RUSSELL: Your Honour, did you intend to impose a minimum non-parole period? I note that the court is not obliged to.
83HIS HONOUR: No, I am not obliged.
84MS RUSSELL: No.
85HIS HONOUR: And in order to manage these offences with the Community Correction Order, it would make it very difficult, if not impossible.
86MS RUSSELL: It does make it difficult, yes.
87HIS HONOUR: So that is the way it stands.
88MS RUSSELL: Thank you, Your Honour.
89HIS HONOUR: Thank you. There is an assumption there that the Parole Board will act at that time.
90MS RUSSELL: Yes.
91HIS HONOUR: Then it makes the date to serving the Community Correction Order problematic, although it is not a defined state for starters, so perhaps it is possible.
92MS RUSSELL: It does, Your Honour. Yes. Yes, Your Honour.
93HIS HONOUR: But the 18 months is effectively the minimum term.
94MS RUSSELL: Thank you.
95HIS HONOUR: Mr Calabrese, I have thought long and hard about giving you that opportunity instead of a longer gaol term with a minimum term. I am doing that because I am satisfied, as I have indicated in the sentence, that there are serious issues in your life which affect you to the point that keeps making you reoffend. The fact is those matters can be treated, according to Mr Cummins. If you apply yourself conscientiously, then you will be able to get over those personality matters and you may find yourself not spending further periods of the rest of your life in prison. But only you can do that, and the Community Correction Order will provide you the means of getting some structure to be able to do that.
96If you breach that order, then you will be brought back before me and it would be very unlikely, if there were deliberate breaches of this order, that the order will continue - you will likely find yourself going back to prison for a long time. Do you understand that?
97OFFENDER: Yes, Your Honour.
98HIS HONOUR: All right.
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