Director of Public Prosecutions v Cowton
[2019] VCC 1818
•1 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCowton: CR-18-01485
Morse: CR-18-01486 & CR-19-02007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK COWTON NICHOLAS MORSE |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 July 2019 (Cowton) and 30 October 2019 (Morse) |
| DATE OF SENTENCE: | 1 November 2019 |
| CASE MAY BE CITED AS: | DPP v Cowton & Anor |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1818 |
REASONS FOR SENTENCE
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Subject: Trial - plea - sentencing
Catchwords: (Cowton) Sexual assault
(Morse) Sexual assault - being armed with criminal intent -
non-prohibited person possess general category handgun -
possess prohibited weapon without exemption or approval - possess cartridge ammunition without a licence - theft of firearm - theft
Legislation Cited: Sentencing Act 1991, Sex Offenders' Registration Act 2004
Cases Cited:
Sentence: (Cowton) 24-month CCO
(Morse) 4 months’ imprisonment + 24-month CCO + $7500 fine
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing 11/07/19 For the DPP at hearing 30/10/19 For the DPP at sentence | Mr G. Hevey Ms K. Churchill Ms V. Mellios | Office of Public Prosecutions |
| For Accused Cowton at hearing For Accused Cowton at sentence | Mr M. Page Ms E. Strugnell | Victoria Legal Aid |
| For Accused Morse at hearing For Accused Morse at sentence | Mr S. Kennedy Mr S. Kuan | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1Mr Cowton and Mr Morse, you are being sentenced today because the circumstances of your offending in the major charges of sexual assault coincide, you understand that. I ask you to remain seated until I ask you respectively to stand.
2Jack Cowton, you have pleaded guilty to two charges of sexual assault on Indictment No. H12117128.
3Nicholas Morse, you have been found guilty by jury verdict of two charges of sexual assault and one charge of being armed with criminal intent on Indictment No. H12113032.2.
4Further to Indictment H12113032.2 you, Mr Morse, have also pleaded guilty to one charge of being a non-prohibited person possess general category handgun and to two transferred summary charges of possess prohibited weapon without exemption or approval and possess cartridge ammunition without a licence.
5As to Indictment No. K12147232, you have also pleaded guilty to one charge of theft of a firearm and one charge of theft (being cartridge ammunition).
6The maximum penalties for all these offences are as follows:
- Each of sexual assault and theft: 10 years’ imprisonment
- Being armed with criminal intent: 5 years’ imprisonment
- Theft of firearm: 15 years’ imprisonment or 1800 penalty units.
- Non-prohibited person possess general category handgun:
4 years’ imprisonment or 240 penalty units.- Possess prohibited weapon without exemption or approval:
2 years’ imprisonment or 240 penalty units.- Possess cartridge ammunition without a licence: 40 penalty units.
7Mr Cowton, you are currently 23 years of age, having been born on 3 May 1996. At the time of the offending in July two years ago you were aged 21.
8Mr Morse, you were born on 28 June 1996 and are currently 23 years of age. At the time of your offending you were aged 20 - 21.
9Neither of you has any criminal record.
10The victim of the sexual assaults was aged 25 at the time of the offending.
The background to the offending
11The victim is now and was at the relevant time an enrolled nurse.
12Mr Morse's sister (“the sister”) worked with the victim and had known her for about 10 or 11 months before July 2017.
13The victim regarded the sister as a friend.
The circumstances of the offending
14On Saturday, 15 July 2017, the victim worked from 7 am to 3 pm. After finishing work she attended an appointment and then went home.
15An arrangement had been made during the week that because the victim's mother and son would not be at home, the sister would go to the victim's house and they would have what they described as a “girls' night in” watching television.
16The sister arrived at the victim's home at around 5.45 pm on 15 July 2017.
17While at that house the sister was in contact with her brother, you, Mr Morse, and it was arranged that the two women would go around to your house nearby. Another young man also lived at that house with you.
18On the way to your house, the victim and the sister stopped at a McDonald's restaurant and purchased some takeaway food which they took with them to your house.
19The victim had been to your house once before, about two weeks before the offending, to collect the sister, but on that occasion she had not gone inside the house.
20Prior to 15 July 2017, the victim had not met any of the three men at the house.
The circumstances of the sexual assault offending in which you were each involved are as follows:
21When the victim and the sister arrived at the house, the three of you were present.
22You had stubbies and were drinking, and had been drinking before that time.
23Once at the house, the victim and the sister sat at a table and commenced eating their takeaway food. At that time you two commenced to wrestle. You, Mr Morse, directing your conversation towards the victim, then said to her words to the effect, “I haven't had sex in a month and a half” and “my balls are about to blow.”
24The victim continued to eat her food when she observed you, Mr Morse, pick up your sister's hamburger and lick it, saying words to the effect of, “I bet this bitch would eat it still after this.”
25Shortly after finishing their food the victim and the sister stood up from the table. At that time you both stood on either side of the sister, took out your penises and thrust them back and forth in the direction of the victim. This is an uncharged act.
26While the victim and the sister were in the house and as they were walking out of the back door towards the garage, there were various comments made by you two referring to the victim as a “bitch”, a “slut”, a “cunt”, that she had “a nice arse under all them clothes” and that “she's not as classy as she looks”, referring to her as “Mary Magdalene”. The victim said it was like a nightmare, it was revolting and emotionally aggressive.
27While in the garage of the house, the victim and the sister sat on the sofa. You both were standing in front of them. You both were continuing to say insulting and disgusting comments to the victim and at one stage she replied to you, Mr Morse, asking you whether you said those things to make you feel better about yourself. At that stage you made disparaging comments about your own father and said to the victim words to the effect, “So you fuckin' bitch, don't you ever pull that fucking card on me, you worthless piece of pig shit” and/or, “your Dad fucked up [the sister]” and that you “didn't give a shit” and “people like you run through her house.” Both you and the sister were laughing at this.
28All present then returned inside. They sat on the couch and had their drinks. At that stage the victim noted knuckledusters and a butterfly knife on the coffee table. You, Mr Morse, and the other young man present showed her how the butterfly knife operated. The possession of the knuckledusters is represented by Summary Charge 14: possession of a prohibited weapon.
29Discussion followed about the victim's hair still being up as it had been worn at work. When one or either of you asked the victim to let her hair down, words were said like, “Worthless bitch … your hair looks like pig shit.” You were both laughing as this was said. The victim let her hair out and you, Mr Morse, said words to the effect, “I don't fuckin' usually say this all right, but you are 10 out of 10. I swear on my mum, you’re fuckable now.” You, Mr Cowton, agreed.
30You, Mr Morse, then took a photograph using your phone and indicated that you were going to send it to your ex-girlfriend. The victim got up and ran into the kitchen. You said that you had “got her in it” (the photo) and called the victim a “bitch”.
31The two of you and the other young man then came inside where there was music playing. All three of you put on leather jackets and were singing along. Some of the lyrics included, “You fuck like a whore.” As you three were singing these lyrics, you were looking directly at the victim and pointing at her.
32You, Mr Morse, kept coming to the victim and saying sexual things to her. You said words to the effect of that all three of you males were going to “fuck you tonight” and you, Mr Cowton, then said you were going to be first.
33The victim, now back inside the house, commenced messaging her cousin on her phone, at which time you, Mr Morse, kept coming up behind her, grabbing both her breasts and squeezing her buttocks, both over her clothing, while thrusting up against her with your exposed penis. This is represented by Charges 1 and 2: two counts of sexual assault.
34The victim moved away from you. You, Mr Cowton, then commenced to touch her breasts and grabbed her backside, both over her clothing, while thrusting up against her with your exposed penis. This is represented by Charges 1 and 2 relating to you: two counts of sexual assault.
35The victim sat down at the table at that stage and you both grabbed her mobile phone from her. You, Mr Cowton, were holding the phone and you, Mr Morse, asked the name of her ex-partner. When she asked why, you said, “Because I want to fuckin' kill him.” Mr Cowton then said, “Let's fucking kill him.” Again, they are uncharged acts.
36You two were then saying words to the effect of, “Aww look at her.” Then you, Mr Cowton, said words to the effect of, “Yeah, her pussy juice would taste so sweet, that whole innocent thing she has going turns me on.”
37The victim asked the sister to accompany her outside, which she did. The victim realised that the men still had her telephone.
38The victim went inside and could see that the men were lighting pieces of paper and setting them on fire. She poured water on the paper and said she wanted to go home.
39The victim left the house and the sister followed and caught up with her. The sister had the victim's phone with her. The phone screen, which had previously had a small crack in it, was now smashed.
40At some time during the night, one or either of you said that they were members of motorcycle gang the Bandidos, and the victim believed this to be true and was afraid of what you were capable of.
41At some stage during the evening you, Mr Morse, went down the hall and came back with the sawn-off shotgun. You began to intimidate the victim by brandishing it about, and cocking it back and partly showing the cartridge. By your own admission you turned and for a short time pointed it at the victim. You aimed it at her side, only centimetres from her ribs.
42The victim eventually found an excuse to leave the house and made her way home.
43The victim has made two victim impact statements, respectively dated 11 July 2019 and 30 October 2019.
44In her statements she has described how her life has been altered by your respective acts. She has experienced constant fear and humiliation, loss of trust in people generally, loss of happiness, anxiety, breakdown of relationships, loss of independence and sleep paralysis. She has suffered repercussions in her workplace because your sister, Mr Morse, was a co-worker and rumours were spread that the victim was fabricating allegations. The emotional issues have exacerbated her physical health conditions and caused financial loss through loss of work and professional healthcare.
45Mr Cowton, you were arrested on 27 July 2017 and released on bail on 28 July 2017, so you have served two days of pre-sentence detention in relation to this matter. Your matter proceeded as a contest at the committal and subsequently resolved on 10 July 2019.
46Mr Cowton, I will now deal with your personal circumstances first and then I will deal with Mr Morse.
47As to your personal circumstances Mr Cowton, as I noted earlier, you are now
23 years of age and at the time of offending you were aged 21 and you have no prior criminal record.48You are the youngest of four children, with three elder sisters in a close and supportive family.
49You were educated to Year 11 and have thereafter worked in a bakery, then in a remote Aboriginal community in the Northern Territory from when you were 19 before returning in 2017 and working as a labourer.
50A considerable number of character references were also exhibited on your plea. Your parents, friends and siblings speak of how your behaviour on the day of the offending was entirely out of character and that you are ordinarily respectful, kind, considerate of others, caring and decent in your interaction with females. They also refer to how you have reflected on your acts, your embarrassment and remorse and how you have lived a much quieter life since the incident.
51I note that in some of the character references, mention is made of the fact that you were intoxicated at the time of offending. I will refer again to this aspect later.
52In mitigation Mr Cowton, I accept the submissions of your counsel including:
· your plea of guilty both for its practical effect and expression of remorse;
· your youthfulness, being 21 at time of offending and 23 now at time of sentence;
· the absence of any prior offending or any further offending in the subsequent two years;
· the reflection and remorse you have shown as evidenced by persons who know you well, have spoken with you, and who have observed your subsequent reaction to the charges;
· your close family support and your otherwise excellent character as reflected in the references provided.
53In all the circumstances I regard your prospects of rehabilitation as high and it is unlikely that you offend in like manner again.
54Returning to you Mr Morse: you were arrested on 27 July 2017 and released on bail on 9 August 2017. You have 14 days of pre-sentence detention in relation to the offences committed on 15 July 2017.
55As to the charges on indictment K12147232 relating to the theft charges of the shotgun and the cartridges: between 1 April 2017 and 30 April 2017, you were camping in rural Victoria.
56On one of the nights between those dates you have attended at different people's campsites. At one of the campsites you have observed a sawn-off shotgun and five shotgun cartridges outside a tent.
57You took the shotgun and ammunition and you explained that you did not feel quite safe, knowing that you were hanging around with people who had that kind of thing.
58On the 27 July 2017, police located the sawn-off shotgun and the shotgun cartridges.
59On Tuesday, 23 July 2019, you gave evidence in your own trial on the matters relating to the incident, which also involved Mr Cowton and your use of the firearm.
60In cross-examination you stated that you were aware that the shotgun was an illegal firearm and it was a sawn-off shotgun. You admitted that you had stolen the firearm and the cartridges located at your house. You stated that you had fired the shotgun once elsewhere. You stated in court that you had shot it into the sky and never told another person about this. You stated to the court that you had left the fired cartridge in the firearm.
61On 11 July 2019, you pleaded guilty to Charge 6 on indictment H12113032.2 and to three transferred summary charges, one of which has now been withdrawn.
62On 30 October 2019, you pleaded guilty to Charges 1 and 2 on indictment K12147232 upon the filing of that indictment.
63I now turn to your personal circumstances.
64As I noted earlier you are 23 years old now, at the time of this offending you were aged between 20 and 21 and you have no criminal record.
65You were raised in rural Victoria and attended school to Year 12.
66You have a supportive family, despite differences between you and your father. There is some evidence that you had experienced a 'rough upbringing', however no detail has been provided.
67You have been in a relationship with your partner for some 18 months and together you are expecting your first child in March next year.
68After leaving school you initially worked in a supermarket and subsequently commenced an apprenticeship as a bricklayer, and you have maintained that work through the past five years to completion and are now fully qualified. You have maintained employment with the same company throughout your apprenticeship and you are regarded highly by your employer.
69In mitigation Mr Morse, I have taken into account the submissions of your counsel, including:
· your early pleas of guilty to some of these charges, both for their practical effect and as expression of remorse;
· your otherwise good character, as indicated by the lack of any previous offending or any further offending in the period since these current crimes;
· your immaturity reflected by your youth and youthfulness at the times of offending;
· your stable relationship and the support you have from your family;
· in particular, your stable employment record and its circumstances - you have maintained your work, you are highly respected by your employer and you have obviously been prepared to work hard and under difficult circumstances of living remotely from work sites;
· your otherwise good character as expressed by the character references and the awards you have received for past community service.
70As mentioned earlier in these remarks, some references were noted in Mr Cowton's character reports mentioning that he was intoxicated at the time of offending. It is clear on the evidence that both of you were intoxicated at the time of offending at Mr Morse's house.
71Every day, sentencing courts see examples of serious offending occurring - often out of character - when offenders are intoxicated by alcohol or by the consumption of illicit drugs. While self-induced intoxication might provide an explanation for out-of-character behaviour, any reasonable person will understand that the taking of mind and personality altering substances can never excuse criminal behaviour, including sexual assaults, and the law relating to sentencing reflects that understanding. It should be well appreciated what terrible damage being drunk and drug-affected can do. It is no excuse for crime.
72Whilst I accept that the type of physical sexual conduct made by each of you can reasonably be regarded as less extreme of this type of offending, its culpability must also be considered in the context in which it was performed in the circumstances of this case. That context was repeated and sustained vulgar verbal abuse of a vulnerable young woman, which extended throughout the evening. From the moment she arrived, the victim was exposed to disgusting acts and verbal intimidation and degrading abuse. She was at various times referred to as a “cunt”, a “bitch”, “worthless” and a “whore”. The conduct was calculated to be demeaning and humiliating and amounted to quite horrid psychological abuse, aggravated by the physical act of sexual groping and molesting by each of you in turn, with your penises exposed. And in your case Mr Morse, a cheap and pathetic exercise of your own bravado through the production and brandishing of a sawn-off shotgun - a frightful weapon - which included you pointing the barrel to within centimetres of her body with the stated intention by you, as you gave on your oath, in your own words, of “Fucking her up.”
73The public is understandably and appropriately sensitive to the extent of sexually oppressive behaviour, overwhelmingly committed by males, in our community. Whilst your youthfulness and lack of previous criminal conduct should be afforded strong consideration in moderating specific and general deterrence, the serious nature of the context of your acts of sexual assault must reflect appropriate punishment and the denunciation of this type of totally unacceptable behaviour in the community.
74In your case Mr Morse, your overall conduct involves the theft and possession of the sawn-off shotgun, a weapon modified and capable of being used for criminal activity. Such weapons should never be at large in the community.
75The basic purposes for which a court may impose a sentence are punishment, deterrence (that is both specific to you to deter you from offending again and general, which is designed to make you an example to deter others who might be like-minded to commit offending), 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 victim. 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.
76Mr Cowton, would you please now stand.
77In light of your pleas of guilty, the lesser charges you face and your personal circumstances, I have determined that a sentence can be achieved that satisfies the purpose or purposes of punishment without requiring you to spend time in imprisonment.
78On Charges 1 and 2 of sexual assault, you are ordered with conviction to serve a Community Correction Order for a period of 24 months.
79The Community Correction Order commences today and ends on 31 October 2021.
80The corrections centre you will attend is the Ballarat Community Correctional Service at 206 Mair Street, Ballarat, and you must attend there within two clear working days after the commencement of the order, that is by Wednesday, 6 November at 4 pm.
81All the mandatory terms of a Community Correction Order apply and the program conditions I impose are that:
· you be under the supervision of a community corrections officer;
· you perform 200 hours of unpaid community work as directed by the regional manager;
· you undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager;
· you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager, with a recommendation for referral to the Specialised Offender Assessment & Treatment Services (SOATS).
82I will now go over the mandatory terms of the Community Correction Order, which are what you must and must not do. The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the Order is in force;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the Community Correctional Centre - such things as not attending drug- or alcohol-affected;
· you must report to and receive visits from a community corrections officer;
· you must report to the community corrections centre, that is the Ballarat centre, within 2 clear working days of the order starting, and as I have already indicated, that is by next Wednesday 6 November at 4 pm;
· you must notify a Community Corrections Officer of any change of address or employment within 2 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 either orally or in writing.
83Do you understand and agree to those conditions, Mr Cowton?
84ACCUSED COWTON: Yes I do.
85HIS HONOUR: Now if you get sick 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 a cancellation of the order. In either case you must notify the Community Corrections Centre, that is the Ballarat Centre, and I would recommend that you obtain legal advice if any of these things happen.
86However I must warn you that if you breach any condition of this order you will be brought back to court and that will be back before me. One of the options open to me then is to cancel the Community Correction Order and resentence you on the original charges, and I may also deal with you for the breach itself, which carries with it a sentence of imprisonment for a maximum of three months.
87So Mr Cowton, do you understand the consequences of breaching your Community Correction Order?
88ACCUSED COWTON: Yes I do.
89HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the total effective sentence that would have been imposed is three months’ imprisonment together with a Community Correction Order.
90At the plea hearing the Crown sought an order to which you consented for the taking of a forensic sample, and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest.
91I must inform you that if at the time of the request for the forensic sample, you do not consent of the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Cowton?
92ACCUSED COWTON: Yes.
93HIS HONOUR: Mr Cowton may leave the dock and come down to his counsel for the purpose of signing the Community Correction Order. When that is agreed to and signed I will countersign it. I ask you to still remain in court for the time being, Mr Cowton.
94And now I will turn to your sentence, Mr Morse.
95In your case there are a number of distinctions which militate against parity with your co-offender Mr Cowton. They are that you faced further charges including possession of a prohibited weapon, theft and being armed with criminal intent and further, significantly, that Mr Cowton entered a plea of guilty to the sexual assault charges and is entitled to consideration for the remorse and utilitarian benefit that that disposition allows.
96I have given careful and anxious consideration as to what the final disposition of the court should be to properly reflect the appropriate balance between the gravity of the respective offending in your case and your moral culpability for it, in the context of your personal circumstances and the undesirability of impacting adversely upon your prospects of rehabilitation.
97Your counsel has submitted that I should take into account that you have already been in custody for 14 days by way of pre-trial detention, half of which was spent in police cells, and that that time is sufficient penalty of incarceration if combined with your release on a suitably punitive Community Correction Order.
98The prosecution has submitted that a combination sentence is open, however 14 days is insufficient to reflect the gravity of the offending notwithstanding your youth and other personal circumstances, and that the appropriate balance can only be achieved by you spending further time in custody.
99Pursuant to the Sentencing Act, a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
100Authority from the Court of Appeal has provided elaborate guidance on the availability of a Community Correction Order as a punitive as well as rehabilitative option even in the case of objectively serious offending. The consideration of such a disposition is particularly appropriate in the case of a young or youthful offender with no previous criminal history.
101After assessing the objective nature and gravity of the offending and the moral culpability of the offender, the court should consider whether the offending is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment, or a Community Correction Order, either alone or in conjunction with a sentence of imprisonment, would satisfy the requirements of just punishment.
102In the circumstances I consider that the totality of your offending, in particular the context and surrounding circumstances of the sexual assault and the subsequent circumstances when armed with the shotgun, is so serious that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve a term of imprisonment as part of a combined sentence.
103Mr Morse, as to the charges on indictment H12113032.2:
104On Charge 1 of sexual assault, you are convicted and sentenced to three months’ imprisonment.
105On Charge 2 of sexual assault, you are convicted and sentenced to three months’ imprisonment.
106On Charge 4 of being armed with criminal intent, you are convicted and sentenced to three months’ imprisonment.
107On Charge 6 of non-prohibited person possess general category handgun, you are convicted and fined $250.
108Charge 1 on indictment H12113032.2 is the base sentence.
109I direct that one month of the sentence imposed on Charge 4 be served cumulatively on the sentence imposed on Charge 1. The sentences are otherwise concurrent.
110The total effective sentence over all charges is four months’ imprisonment.
111The sentence starts today.
112As to the transferred summary charges:
113On Summary Charge 14 of possess a prohibited weapon without exemption or approval, you are convicted and fined $250.
114On Summary Charge 15 of possess cartridge ammunition without a licence you are convicted and fined $250.
115Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 14 days 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.
116On Charges 1, 2 and 4 you are further ordered, with conviction, to serve a Community Correction Order for a period of 24 months.
117The Community Correction Order commences upon the completion of your imprisonment term and ends two years thereafter. The corrections centre you will attend is the Ballarat Community Corrections Service at 206 Mair Street, Ballarat and you must attend there within two clear working days after the completion of your imprisonment term.
118All the mandatory terms of a Community Correction Order apply and the program conditions I impose are that:
· you be under the supervision of a community corrections officer;
· you perform 200 hours of unpaid community work as directed by the regional manager;
· you undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager;
· you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager, with a recommendation for referral to the Specialised Offender Assessment & Treatment Services (SOATS).
119Again, in your case I will now go over the mandatory terms of the Community Correction Order, which are what you must and must not do. And those mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the Order is in force;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the Community Correctional Centre – as I have said, such things as not attending drug- or alcohol-affected;
· you must report to and receive visits from a community corrections officer;
· you must report to the community corrections centre, that is, the Ballarat centre, within 2 clear working days of the order starting, and, as I have already indicated, that is on the completion of your prison term;
· you must notify a Community Corrections Officer of any change of address or employment within 2 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 either orally or in writing.
120Do you understand and agree to those conditions, Mr Morse?
121ACCUSED MORSE: I do, Your Honour.
122HIS HONOUR: If you get sick 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 a cancellation of the order. In either case you must notify the Community Corrections Centre, that is the Ballarat Centre, and I recommend that you obtain legal advice if any of these things happen.
123However I must warn you that if you breach any condition of this order you will be brought back to court and that will be back before me. One of the options open to me is to cancel the Community Correction Order and then resentence you on the original charges, and I may also deal with you for the breach itself by sending you to prison for up to three months.
124Mr Morse, do you understand the consequences of breaching your Community Correction Order?
125ACCUSED MORSE: I do, Your Honour.
126HIS HONOUR: I will ask you to sign the Community Correction Order shortly. Now, as to the charges on indictment K12147232:
127On Charge 1 of theft of a firearm, you are convicted and fined $600.
128On Charge 2 of theft, that is the cartridges, you are convicted and fined $200.
129At the plea hearing the Crown sought an order to which you consented for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness to the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest.
130I must inform you also that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that Mr Morse?
131ACCUSED MORSE: I do, Your Honour.
132HIS HONOUR: At the plea hearing the Crown also sought orders to which you consented for the forfeiture and the disposal of specified items and I have also made those orders today. Are there any other matters from either counsel?
133MS MELLIOS: No, Your Honour.
134MR KUAN: Your Honour, in terms of custody management I'd like the court to note that he is vulnerable due to his age and appearance.
135HIS HONOUR: All right, so as to custody management issues: the offender may be vulnerable due to age and appearance.
136MR KUAN: Thank you, Your Honour.
137HIS HONOUR: The Community Correction Order will be passed to you now to take down to Mr Morse for his signature if he agrees with the terms and conditions.
138According to the procedure which now must follow, Mr Morse can now be taken away. Thank you.
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