Director of Public Prosecutions v Casley
[2022] VSC 718
•4 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0127
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| LIAM CASLEY | Accused |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 October 2022 |
DATE OF SENTENCE: | 4 November 2022 |
CASE MAY BE CITED AS: | DPP v Casley |
MEDIUM NEUTRAL CITATION: | [2022] VSC 718 |
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CRIMINAL LAW – Sentence – Breach of Community Corrections Order (CCO) by non-compliance and further offending – Original offence of affray – Youth – Pleas of guilty to original charge and to breach of CCO – Positive prospects of rehabilitation – On breach of CCO, accused convicted and discharged – Pursuant to s 83AS(1), accused resentenced on the affray to eight months’ imprisonment time served combined with a further CCO of 12 months’ duration.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr W. Drent | Office of Public Prosecutions |
| For the Accused | Mr L. Cameron | Stary Norton Halphen |
HIS HONOUR:
Liam Casley, on 17 August 2021, Croucher J sentenced you to eight months’ imprisonment, to be followed by an eight month Community Corrections Order, [‘CCO’].[1] On 23 June 2021 you had been arraigned and pleaded guilty to a charge of affray.
[1]R v Casley [2021] VSC 503.
The circumstances of that offending were explained in detail by his Honour in his sentencing reasons given on 17 August 2021. For present purposes, it is unnecessary to repeat again the circumstances of your offending, other than to say you were involved in an attack on Cameron Smith in Station Street, Seaford, in which your victim received a fatal stab wound inflicted by one of your group that had attacked him. I have read his Honour’s reasons. Furthermore, I indicate that having presided in the trial of The Queen v Ledlin, I am very familiar with the circumstances surrounding your participation in the offending to which you pleaded guilty. I observe that whilst you were not held responsible for the fatal wound inflicted on Mr Smith, you were one of a group that had attacked him with punches and kicks, and for that activity you pleaded guilty.
A copy of the CCO that you signed and entered into on 17 August 2021 is attached to these reasons. The order imposed a series of standard terms, as well as additional conditions, which included a mandatory requirement to undergo assessment and treatment for drug and alcohol abuse or dependency; a mental health assessment and treatment; to undergo any program that addresses factors related to your offending behaviour; and, that you must be under the supervision of a Community Correctional officer for the duration of the order. Furthermore, one of the standard terms of an order made pursuant to the Sentencing Act for a CCO mandated that you must not commit an offence punishable by imprisonment during the period of the order.
The CCO expired on 25 April 2022.
On 1 April 2022 a charge was laid against you by Dandenong Community Correctional Services that you had without reasonable excuse failed to comply with the conditions of your CCO in the manner specified in the schedule attached to that charge. In short compass, it was alleged that during the term of your CCO you had contravened the order without reasonable excuse by failing to undergo treatment and rehabilitation as required on 3 September 2021 and 9 November 2021; that you failed to be supervised, monitored and managed as directed on 6 September 2021, 27 September 2021, and 8 April 2022; and that you had been convicted of further offences during the operational period of the order.
In respect of your further offending, on 18 February 2022, you were convicted in the Frankston Magistrates Court of a series of offences occurring between 7 November 2021 and 14 November 2021, the offending including a charge of theft of a motor vehicle, dishonestly receiving stolen goods, unlicensed driving, theft from a shop, contravening a conduct condition of bail, and to charges of committing an indictable offence whilst on bail.
The hearing of the breach proceedings was due to take place before me on 25 May 2022, but you failed to appear before the court on that occasion. On that day I declined to issue a warrant for your arrest as I was not satisfied that you had personally become aware of the listing of the hearing. The charge and summons had been provided to your solicitors, but it appeared to me that despite their efforts, they had not been able to contact you regarding the hearing of the charge. In these circumstances, I do not propose to take into account your failure to appear on that day for the purposes of the current proceeding to your disadvantage.
The hearing of the charge then proceeded before me on 8 August 2022. When the matter was called on for hearing, your Counsel applied for an adjournment on two bases. First, that the Gippsland Youth Residential Rehabilitation Centre (‘GYRRC’) was conducting a review to determine whether a bed could be provided for you within their program, and second, that there were a number of outstanding matters that were unresolved at that time, and further enquiries needed to be made in order to determine whether they would have any impact on the breach proceedings. It was envisaged that a bail application may be made in the Magistrates’ Court in respect of those matters which would then enable the GYRRC program to be considered.
In any event, the hearing proceeded on that day as far as it could before the matter further adjourned in order to enable the relevant enquiries to be made. When asked, your Counsel indicated on your behalf that you admitted the contraventions set out in the charge.
At this initial hearing, material was provided to the Court, and submissions were made regarding the circumstances of your initial offending, and also subsequent matters that occurred resulting in the breaching charge having been laid. As Counsel for the Director noted, the result is of these matters is that I have a ‘good picture of the offence, the offender, and the way in which the community corrections order was breached’. Notwithstanding the conclusions of Croucher J at the initial plea proceedings that you had reasonable prospects of rehabilitation, it was submitted by the prosecutor that as a result of your failure to take up the opportunities offered, your prospects of rehabilitation should be regarded as demonstrably poor. Further, the prosecutor set out the options the Court has in respect of the resolution of the breaching charge. In particular, the prosecutor noted that the informant, being from Dandenong Community Correctional Services, recommended that the order be cancelled.
The prosecutor submitted that given your role in the affray, coupled with your poor prospects of rehabilitation, you should receive a sentence of imprisonment. The prosecutor noted that one option for the Court would be to cancel the CCO, sentence you to a term of imprisonment to be imposed that equated with the sentence imposed previously, declare the time served, and order a CCO commence after the term of imprisonment.
Counsel on your behalf conceded you had made limited progress in relation to both the drug and mental health treatment, as well as offending behaviours program conditions. Nevertheless, your Counsel emphasised the fact you had spent further onerous time in custody, and that your personal circumstances including your youth and the continued support you received from both your grandmother and a youth worker from Jesuit Social Services were mitigating factors. In short, your Counsel argued that in all the circumstances your rehabilitation still remained an important sentencing purpose. Ultimately, it was submitted that a combination sentence was still open, and that the matter should be adjourned to provide you with an opportunity to participate in the proposed rehabilitation program in order to persuade the Court that you should be provided with another chance at a CCO.
In the event, I granted the application for an adjournment of this matter, and ordered that a CCO report be prepared for the further hearing of the proceedings. I also granted bail, in the expectation that if bail was to be granted by the Magistrates’ Court in respect of outstanding matters, that you be enabled to be bailed to facilitate your attendance at the GYRRC facility, should that organization find you suitable for inclusion within the program.
On 15 September 2022, you were granted bail in your own undertaking by the Melbourne Magistrates’ Court, which included a special condition that you reside at the GYRRC facility in Traralgon.
You then reappeared before this Court on 24 October 2022 for further plea. On that day your Counsel placed before me further submissions, including a supplementary written submission, and a letter dated 8 September 2022, authored by Kelly-Ann Faulkner, Team Leader from the GYRRC.
As requested, an updated pre-sentence report dated 21 October 2022 had been prepared and provided to the Court for consideration. At this hearing you were supported by Mr Russell Primrose, support worker from Jesuit Social Services, and a letter written by Mr Primrose, your grandmother, Janet Peile, and an email authored by your mother Megan Peile, were also tendered.
Counsel for the prosecution submitted that in all the circumstances, the CCO granted by Croucher J should be cancelled and you should be resentenced.
Counsel appearing on your behalf confirmed that since the matter was last before me, you had been granted bail in the Magistrates’ Court on 15 September and commenced your rehabilitation at the GYRRC facility in Traralgon. Further it was submitted that in contrast to previous pre-sentence reports, your most recent assessment was overwhelmingly positive and you had been assessed as being suitable for a CCO. The report referred to your positive engagement in the GYRRC program, as well as ongoing support from your mother, grandmother, and Mr Primrose from Jesuit Social Services. It was further pointed out that the author of the recent pre-sentence report had communicated with Ms Faulkner at GYRRC, and discussed your level of engagement in the program to date.
Ms Faulkner gave evidence at the hearing and described the nature of the program provided at the facility, and informed the Court of the positive level of your engagement in the program for the five to six weeks since you began at the facility. In short, you have been attending group sessions, and you have been abstinent from drugs. At the same time, it was noted that there have been some behavioural issues which have involved outbursts of yelling at staff on certain occasions. Thus it was submitted that whilst your time at the facility has not been completely smooth sailing, overwhelmingly it was submitted that your response has been positive in key aspects. Ms Faulkner outlined that you are having one-on-one counselling each week, which is aimed at addressing impulse control, emotional regulation and setting goals. Further, you have been referred to Headspace for a psychiatric assessment, and there was the prospect of a new medication program which would be directed towards your ADHD issues. A further factor is that Ms Faulkner informed the Court that you had recently approached her with a request to arrange some volunteer work for you in the Traralgon district. In broad terms, Ms Faulkner expressed the view that you were definitely improving, and a particular positive for you was your acknowledgement that you needed support and help.
Your Counsel submitted, given your positive engagement in the rehabilitation program, along with the positive assessment from the Department of Justice and Community Safety as to your suitability for a further CCO, that I should be persuaded to grant a further CCO to you despite your breaching failures in respect of the CCO granted to you by Croucher J. Counsel relied particularly on the matters set out in the five-page written submission filed with the Court.
The recent CCO assessment
Whilst the recent assessment concludes that your general risk of reoffending is high according to the level of service risk assessment tool, the assessment nevertheless confirms that in the opinion of the author you are suitable for a further CCO, attaching conditions for drug and alcohol treatment assessment, mental health assessment and treatment, supervision, non-association, judicial monitoring and an offending behaviours program. The report acknowledged your failures in respect of the first CCO as well as the fact you fell back into the abuse of substances and alcohol, and interactions with negative peers. Further, it was noted that your failure to address drug and alcohol abuse issues reflected a lack of motivation to change. On the other hand, the author confirmed contact with the GYRRC on 21 October 2022, confirming your positive engagement with the program, and your attendance at all group sessions. In discussing your future motivation to undertake further CCO, the author noted that you have indicated that you are now “treatment ready”, following your engagement with the GYRRC program. The report further noted that you are a young offender, presently undergoing residential rehabilitation to a satisfactory standard, and supported by Jesuit Social Services. Finally, the report indicates that the conditions and requirements of a CCO have been explained to you, and you have agreed to comply with the conditions.
Conclusions
It is to be acknowledged that you face up to six outstanding matters in the Magistrates’ Court, and that some of these are to proceed as pleas of guilty on 10 November 2022, and on dates following. For the purposes of this current proceeding, however, I should act on the basis that these matters are as yet unresolved. That said, I am informed that only one of these matters would have the effect of breaching the CCO that was in force up to the date of its expiration. All the remaining matters apparently would not breach the CCO that was in place at the time.
Your counsel advanced the submission that sentencing you to a straight term of imprisonment is not the only sentencing option to this Court. It was submitted that you ought be given a further opportunity to rehabilitate yourself within the supportive framework of a further CCO, including completion of your current residential rehabilitation program with GYRRC. In advancing these submissions, your counsel relied on a number of the same matters that were advanced before Croucher J, which included your deprived background and upbringing, your compromised mental health, your plea of guilty, various admissions you made, a degree of remorse, your youth and immaturity, the onerous conditions in which you have experienced your periods of custody, your reasonable prospects of rehabilitation, and the ongoing supports available to you.
Your counsel placed particular emphasis on the changed circumstances since you came before the Court in early August 2022 when the contravention proceedings began being heard. At that time, the Department of Community Correctional Services was not supportive of you undergoing a further CCO. It is of some significance that this position changed because of your efforts, and the efforts of those supporting you.
In the circumstances, I accept that you have taken strong forward steps and demonstrated some positive prospects of rehabilitation. This is in the context of your young age, and deprived background and upbringing.
Sentence
On the summary offence of breaching a CCO contrary to s 83AS(1) of the Sentencing Act, you are convicted and discharged.
Having found the breach proven, in my view, the appropriate course is to exercise the power under s 83AS(1)(c) of the Sentencing Act by resentencing you on the charge of affray. I note that as the original CCO is no longer in force it is not necessary to cancel that order.
On the offence of affray, you are convicted and sentenced to eight months’ imprisonment combined with a Community Corrections Order of 12 months’ duration. I declare that a period of pre-sentence detention being 264 days be reckoned as having been served as part of this sentence. I note that this period represents the original custodial term which is referable as pre-sentence detention for present purposes consistent with the approach preferred in Liu v The Queen.[2]
[2][2018] VSCA 92, [20]-[24].
The conditions of the CCO will include all mandatory conditions in addition to the following conditions as recommended by the Department of Justice and Community Safety:
(a)Supervision.
(b)Treatment and rehabilitation in respect of the following:
(i)assessment and treatment (including testing) for drug abuse or dependency;
(ii)assessment and treatment (including testing) for alcohol abuse or dependency;
(iii)mental health assessment at treatment that may include psychological, neuropsychological and psychiatric assessment and treatment; and
(iv)any program that addresses factors related to your offending behaviour.
Pursuant to s 6AAA of the Sentencing Act, I declare that but for the plea of guilty the Court would have otherwise imposed a sentence of 12 months’ imprisonment combined with a CCO for 12 months.