Director of Public Prosecutions v Cameron Powell
[2017] VCC 1978
•17 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted |
Case No. AP-16-2123
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Cameron Powell |
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JUDGE: | Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 December 2017, 22 January, 16 March and 17 August 2018 | |
DATE OF SENTENCE: | 17 August 2018 | |
CASE MAY BE CITED AS: | DPP v Cameron Powell | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1978 | |
REASONS FOR SENTENCE
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Subject:Breach of Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Bye | Office of Public Prosecutions |
| For the Accused | Ms Geneva | Fitzroy Legal Service |
HER HONOUR:
1 On 27 September 2016 the County Court convicted you of commit indictable offence whilst on bail, dishonestly assist in realisation stolen goods, fail to comply with reporting obligations (2 charges), fail to answer bail (5 charges), possess prohibited weapon without exemption/approval, theft from shop (shop steal) and threat to inflict serious injury. You were sentenced to an aggregate sentence of 4 months imprisonment. The Court also imposed a 12 month Community Correction Order commencing 20 November 2016 and expiring on 19 November 2017.
2 It is now alleged pursuant to s83AD(1) of the Sentencing Act 1991 (Sentencing Act) that you have contravened the Community Correction Order without reasonable excuse as follows:
(1) You failed to report to the specified Community Corrections Centre within two clear working days after the Order came into force.
(2) You failed to notify a change of address or employment within two clear working days after the change.
(3) You failed to be supervised, monitored and managed as directed on 7 occasions.
(4) You were convicted of further offences committed during the operational period of the Community Correction Order. These offences were 5 charges of fail to report each residential address, possess methylamphetamine, possess controlled weapon without excuse, dishonestly receive stolen goods, 2 charges of obtain property by deception and one charge of commit indictable offence whilst on bail.
3 Section 83AD of the Sentencing Act provides:
(1)An offender who is subject to a community correction order must not contravene that order, unless the offender has a reasonable excuse.
Penalty:3 months imprisonment.
4 I find that you have contravened the Community Correction Order imposed by this Court on 27 September 2016. You are convicted and fined $100.
5 Section 83AS of the Sentencing Act sets out the powers of the court on a finding of guilt for contravention of a Community Correction Order in the following terms:
(1) If a court finds a person guilty of an offence under section 83AD (in addition to sentencing the offender for the offence) the court must –
(a)vary the order in any manner set out in section 48M(2)(d),(e), (f), (g) or (h); or
(b)confirm the order originally made; or
(c)cancel the order (if it is still in force) and, whether or not it is still in force, subject to subsection (2), deal with the offender for the offence with respect to which the order was made in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence; or
(d)cancel the order and make no further order with respect to the offence with respect to which the order was originally made.
6 Section 83AS(2) provides that in determining how to deal with a person who has breached a Community Correction Order, the Court must take into account the extent to which the offender has complied with the order.
7 The Community Correction Order required you to undergo assessment and treatment (including testing) for drug abuse or dependency as directed and mental health assessment treatment as directed, as well as to participate in programs and/or courses consistent with the purpose of treatment and rehabilitation.
Assessment and treatment (including testing) for drug abuse or dependency as directed
8 You were directed to receive drug assessment and treatment as necessary. However due to your failure to engage with this service, this condition has not commenced and remains unfulfilled.
Mental Health Assessment and Treatment as Directed
9 You were directed to obtain mental health assessment and treatment as necessary. However due to your failure to engage with this service, this condition has not commenced and remains unfulfilled.
Offender behaviour program as directed
10 You were directed to participate in programs and/or courses that are consistent with achieving the purpose of treatment and rehabilitation. However due to your failure to engage with this service this condition has not commenced and this condition remains unfulfilled.
11 A report dated 5 December 2012 by Kirra Dickie and Peter Bain states:
Mr Powell has demonstrated poor compliance against the conditions of his Order, having accrued a total of nine unacceptable absences. It is also of concern that Mr Powell ceased contact with this service early into the Order meaning that he has made no progress towards any of the conditions of this Order.
This service has attempted to reengage Mr Powell on multiple occasions to no avail. Further to this, Mr Powell has failed to take advantage of the opportunity afforded to him and has demonstrated little regard for the completion of his Community Corrections Order.
This service has been unable to assist Mr Powell with his treatment needs and as such, it is concerning that he is not currently engaged with any mental health professionals nor is he addressing his offending behaviour. As noted above, Mr Powell suffers from drug induced schizophrenia and has been charged with drug related offences. This indicates that Mr Powell’s mental health is unstable and has prevented him from complying with his CCO.
Although Mr Powell’s current Community Corrections Order has not served as a deterrent for Mr Powell, as he has allegedly further offended during the operational period of the Order, this service respectfully recommends that Mr Powell’s Order be Varied and he be given more time to engage with the treatment and rehabilitation a Community Corrections Order offers. It is also respectfully recommended that Mr Powell is assessed by a mental health professional prior to continuing on this Order to ensure he will be managed appropriately and that his mental health needs are met. This service also respectfully recommends adding a Judicial Monitoring condition to Mr Powell’s order as it may act as an incentive to comply with the conditions of the Order and act as motivation for Mr Powell.
12 The defence tendered a report by the Court Integrated Services Program (CISP). That report indicated that you had not demonstrated commitment to your stated treatment goals and that minimal progress had been made due to a lack of attendance at scheduled meetings. You were formally exited from that program.
13 The prosecutor submitted that the Community Correction Order should not be varied.
14 Your counsel referred to a report dated 9 July 2018 by Jeffrey Cummins, psychologist. In that report Mr Cummins stated:
In my opinion Mr Powell needs to be linked in with a community mental health service and should be required to undergo regular, and ideally supervised, urine analysis to ascertain what illicit drugs and what prescribed drugs (possibly obtained via the black market) he is using.
15 Your counsel tendered a letter by your aunt, Carol Legg and submitted that you had previously failed to comply with the conditions of the Community Correction Order and the Court Integrated Services Program because you did not have adequate support to assist you to comply with the terms of the Community Correction Order and CISP. Your counsel submitted that you now have the support required to comply with the terms of a Community Correction Order. You are now residing in a caravan at 257 Nepean Highway Seaford. In her letter Ms Legg stated:
Cameron is living right near me, so I will always be available to help him get to his appointments, and have plenty to keep him occupied, so I will always be available to him anytime of day & night.
16 I have taken into account the submissions made by your counsel and in particular the support that you will receive from your aunt, Ms Legg.
17 I propose to give you a further opportunity to comply with the terms of the Community Correction Order. I propose to vary the terms of the community correction Order.
18 Could you please stand, Mr Powell, thank you.
19
As you know, I have sought and received a pre-sentence report in this matter. That report indicates that you are considered a suitable candidate for
the variation of the Community Correction Order. I am only able to make such an order if you consent to my taking such a course. So that you are in a position to make an informed decision in the matter, I should tell you something about the terms of the community correction order as varied.
20 First, I propose to vary the Community Correction Order by extending the length of the order for 12 months from this day to 17 August 2019.
21 Every community corrections order, including the one I propose in this case, contains certain core conditions. They are:-
(1) You must not commit another offence punishable by imprisonment during the period of the order.
(2) You must comply with any obligation or requirement prescribed by the regulations.
(3) You must report to or receive visits from the Secretary during the period of the order.
(4) You must report to the Frankston Community Correctional Service within two working from today.
(5) You must notify the Secretary of any change of address or employment within two clear working days after the change.
(6) You must not leave Victoria, except with the permission of the Secretary.
(7) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
22 The conditions that apply in addition to the mandatory terms are:
(1) You must be under the supervision of a Community Corrections officer for a period of 12 months from this day.
(2)You must undergo assessment and treatment (including testing) for drug abuse or dependency, as directed by the Regional Manager.
(3)You must 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.
(4)You must undergo programs consistent with the purpose of treatment and rehabilitation, which may include but is not limited to, employment, educational, cultural and personal development programs, as directed by the Regional Manager.
(5)You must undergo programs that address factors relating to your offending behaviour.
(6)You must undergo monthly urinalyses, as directed by the Regional Manager.
(7) You must attend for review of your progress and compliance or otherwise with conditions of the order and you have to come back before me within eight weeks of the commencement of the Community Correction Order, namely on 26 October 2018 at 10 am. (s.48K).
(8) You must use your best efforts to obtain a neuropsychological report from Arbias.
(9) I direct that the Frankston Community Corrections Service make and file
a progress report by 4pm on 22 October 2018.
(10) I direct that any non-compliance of these conditions is to be notified to me immediately. (s.48(1) I will then determine if the matter should be mentioned before me.
(11)You must realise that if you breach the order, you should expect to be brought back to court and dealt with for such breach. You should expect to be imprisoned, perhaps be fined and perhaps other sorts of orders would be made, if that occurs.
23 Do you consent to the making of such an order?
24 Upon Mr Powell’s consent to the making of the order, the Court varied the community corrections order made by this Court on 27 September 2016 by extending the duration of the order for a period of 12 months and containing all the conditions contained in the above paragraphs 20 to 22.
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