Director of Public Prosecutions v Carroll
[2017] VCC 12
•31 January 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-15-1341
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Nathan Carroll |
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JUDGE: | Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2017 | |
DATE OF SENTENCE: | 31 January 2017 | |
CASE MAY BE CITED AS: | DPP v Carroll | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 12 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Contravention of Community Corrections Order – Contravention by non-compliance and further offending
Legislation cited: Sentencing Act 1991
Sentence:Contravention proven and fined $200 - Community Corrections Order cancelled - Convicted on charges 1 and 3 - Sentenced to an aggregate term of imprisonment of 2 months to be cumulatively on any term of uncompleted sentence of imprisonment imposed prior to this day
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Lee | Office of public prosecutions |
| For the Accused | Ms E Turnbull | Emma Turnbull Lawyers |
HER HONOUR:
1 On 3 August 2015 at the Melbourne County Court of Victoria the following orders were made:
Charges 1 and 3
Convicted and ordered to serve a Community Correction Order for a period of 18 months. The order commenced on 3 August 2015 and ended on 2 February 2017.
2 You contravened the order and on 3 June 2016 the County Court found the contravention proven and varied the original order. You were convicted of charges 1 and 3 and ordered to serve a Community Correction Order for a period of 12 months.
3 You were arrested and remanded on 29 July 2016 for a significant number of serious further offences (the further offences) committed during the operational period of the order which included possess cocaine on 23 July 2016, possess methylamphetamine on 23 July 2016, go equipped to steal/cheat on 23 July 2016, fraudulently alter plate uniquely on 23 July 2016, negligently deal with proceeds of crime on 23 July 2016, go equipped to steal or cheat on 23 July 2016, theft of a motor vehicle on 29 July 2016, theft of a motor vehicle on 29 July 2016, attempt burglary on 29 July 2016, 4 charges of burglary on 29 July 2016, 3 charges of theft on 29 July 2016, intentionally destroy property on 29 July 2016, commit indictable offence whilst on bail on 29 July 2016, possess methylamphetamine on 29 July 2016, possess prohibited weapon without exemption/App on 29 July 2016, 2 charges of burglary on 17 July 2016 and 2 charges of handle/receive/dispose of stolen goods on 17 July 2016.
4 You pleaded guilty to the further offences at the Broadmeadows Magistrates Court on 19 December 2016 and were sentenced to 12 months imprisonment with 142 days in custody reckoned as already served.
5 It is now alleged pursuant to s83AD(1) of the Sentencing Act 1991 that you have contravened the Community Correction Order without reasonable excuse as follows:
1. That you failed to report as directed on 5 July 2016.
2. That on 19 December 2016 you were convicted of further offences during the operational period of the Community Correction Order.
6 Section 83AD of the Sentencing Act 1991 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.
7 I find that you have contravened the Community Correction Order imposed by this Court on 3 August 2015 as varied on 3 June 2016. You are convicted of breach of the Community Correction Order and fined $200.
8 Section 83AS of the Sentencing Act 1991 sets out the powers of the court on a finding of guilt for contravention of 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.
9 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.
10 In a report dated 12 January 2017 Ms Kwan Nga Li, advanced case manager stated that your compliance towards the Community Correction Order was unsatisfactory. She said:
“ Whilst his engagement with this service was relatively positive, it is now apparent that he has been less than forthright with his circumstances, having committed a significant number of serious offences approximately six weeks after the commencement of his Order. It is noted this is Mr Carroll’s second opportunity at completed his Order [sic] in relation to the original offences, having contravened the original Order imposed by the Melbourne County Court on 3 August 2015 by both non-compliance and further offences. In light of the above information, it is recommenced that Mr Carroll’s Order be cancelled and he be re-sentenced in relation to the original charges.”
11 The original charges were theft of a motor vehicle and possess methylamphetamine.
12 Your counsel submitted that the Court should cancel the CCO and sentence you for the original offences of theft of motor vehicle and possess a drug of dependence. She submitted that the appropriate sentence was a term of imprisonment.
13 I have taken into account the submissions made by your counsel and, in particular, your pleas of guilty and the principles of totality. I propose to cancel the Community Correction Order. I propose to order that you be convicted of each of charges 1 and 3 and sentence you to an aggregate term of imprisonment of 2 months. This sentence is to be served cumulatively on any uncompleted sentence of imprisonment imposed prior to this day .
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