Director of Public Prosecutions v Curic

[2018] VCC 497

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00606

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW CURIC

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2018
DATE OF SENTENCE:	17 April 2018
CASE MAY BE CITED AS:	DPP v Curic
MEDIUM NEUTRAL CITATION:	[2018] VCC 497

REASONS FOR SENTENCE
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Catchwords:  Indecent Act (x3), sexual penetration of a child under 16, committed by a child.

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Bye	OPP
For the Accused	Mr T. Sullivan	C. Marshall & Associates

HIS HONOUR:

1Mr Curic, you come before me today yet again for a breach of a community corrections order, and it is conceded by your counsel that the only option open to the court today is to cancel the order and to resentence. That is, to act pursuant to s.83AS(1)(c) of the Sentencing Act.

2It is further conceded by your counsel Mr Sullivan that a term of imprisonment is, in those circumstances inevitable, but he has made submissions as to the varying ways that might be served, if at all.

3The facts upon which I will ultimately resentence are set out at some length in my sentencing remarks from 22 June of 2016.  The charges that were laid against you were related to the first and the last pieces of conduct committed upon the young girl, as she was.  She was eight, I think, at the time.  You were a child yourself of course.  But the facts are set out in my reasons in paragraph 3, so that sets out, really, the essence of what the trial allegations were, because the verdicts followed a trial.  There were three charges of indecent act that you were convicted of, and one charge of sexual penetration of a child under the age of 16. 

4As I say, she was eight.  You were 14 by the end.  There was some doubt as to whether you were 13 or 14 for the first of the two charges, and on that basis the jury were told to proceed on the basis that you were 14, and therefore to import into the whole process that additional element of doli incapax.

5The trial was conducted between 27 April 2016 and
6 May 2016.  The verdict was delivered on that last date.  The plea was conducted on 21 June of 2016, and I was requested, I should say, to place you on a community corrections order.  The Crown did not take issue with that as the appropriate disposition, given the particular matters in mitigation, the principal of those being your age at the time of course, and I placed you on that community corrections order.

6There is really no useful purpose in me going further into the factual setting here.  As I say, it is set out in my original sentencing reasons, it has not changed, at least the facts of the offence have not, nor has the impact of the offending, as set out in the reasons as well.  There was a victim impact statement that had been filed here.

7Nor for that matter have the matters raised in mitigation altered.  They are set out in paragraph 10 on p.5 of my reasons.  They are the things that were relied upon by Mr Anger, who appeared for you at the time of the trial and the plea.  And Mr Sullivan, really, has said as much.  He relies upon the same matters, though he concedes that there is perhaps a differing approach to be taken to your prospects of rehabilitation given what has occurred since.

8So in a way I am going through the chronology, because I have to, I am afraid, for anyone else to understand why I am ultimately going to do what I am doing in this case, and for that matter, why the concessions are made as they have been.

9Having placed you on that community corrections order on 22 June 2016, the very disposition that your own counsel was asking me to place you on, you then breached that order quite comprehensively by way of non-compliance.  Now, non-compliance was the only alleged particular of that breach.  I was told that there were a number of outstanding offences that had been alleged, to have been committed in the period of the order, but they had not been dealt with, it was not clear how they would be dealt with, and it was not appropriate then for me to take them into account at the time of that first breach proceeding that was brought before me in July of last year.

10Even that had a story to it in the sense that the breach was originally listed on, I think, 16 May, but you failed to appear on that date, and there were then, I think, two other appearance in June leading up to the first contravention proceeding on 18 July. 

11On 18 July 2017, I heard from your then-counsel - it was not Mr Sullivan, it was not Mr Anger either, but ultimately I was asked to admit you to a fresh community corrections order, and indeed I think the original suggestion was I could simply make no order and confirm the order.  Well, I was not going to do that.  Or to cancel it and do nothing, well that was unthinkable. 

12But ultimately I admitted you to a fresh community corrections order.  That is on 18 July of last year.  I did so with reservations, I spelt out again some of those reservations.  I spelt out again the certainty that Corrections would be looking closely at you, given your lack of performance on the earlier order, and the reservations that they were themselves expressing.

13Regrettably, though, I said at the time that I hoped I would never see you again, and no doubt you hoped you would never see me again, here we all are again in breach of that second order.  Again, it has been a relatively comprehensive breaching by both offending on 4 August of 2017, though I note that that is a very different style of offending.  I am not saying anything to suggest that it is not serious, that is, to not comply with the provisions of the Sex Offender Registration Act, and that is the character of those offences.  But they were offences, really, by omission in circumstances where you had moved from, I think, Riverside Clinic to another premises, and not notified the appropriate body.

14But it was not just breached by those offences of course, this fresh order was breached also by the non-compliance spoken of in the report.  Some pretty silly stuff really, in terms of your ducking and weaving away from testing.  The only tests that you did turn up for you had a positive reading either for cannabis or methamphetamine.  You denied ever having used methamphetamine in the past, which of course was nonsense.  I mean, you had been in Riverside, and the plea had proceeded before me on both occasions as to the way in which you had been using such drugs.

15There were a litany of excuses and reasons, none of them adequate, as to non-attendance at various other tests.  Anyway, I am not going to rehash the second of the reports, other than to say that the whole chronology, when you piece it together, is a pretty unhappy one.  An unhappy one for a judge to be faced with a person who has breached two of his orders, but an unhappy one in terms of making favourable judgments about your future prospects of rehabilitation.

16I was prepared to reach the views that I expressed in my original reasons, but that was a different timeframe with a very different chronology, a person with very limited offending, but there is a lot that has occurred since then of course, as the chronology attached to the breach package makes plain enough.

17Of course, I am dealing now with the breach of the second of the orders, but I am able to look back now upon the reality of what occurred, of course, on the first of the orders, because a lot of those outstanding matters - all of them have now been dealt with at a consolidated plea, so the chronology sets out the way in which you have breached the law in the currency of the first order, and it sets out chapter and verse the various non-compliances with the orders across the board.

18To complete the chronology, another judge of this court, Wischusen J, placed you on a suspended term of imprisonment.  He gave you a suspended sentence of imprisonment back on 24 February 2017, and that related to what had been a trial, but it obviously resolved into a plea, of maintaining a sexual relationship with a child under the age of 16.  He gave you an 18-month term of imprisonment.  He wholly suspended that for a period of two years.  He made orders under the Sex Offender Registration Act, the omissions which found the breach by offence particularised in this breach.  Those offences related to a similar timeframe from memory, and another member of the extended family, I think a cousin.  So we are not dealing with fresh offending in that sense.

19To further round out the chronology, you were brought before this court on 27 February of this year for the breach of that suspended sentence, because of course it had been breached by various other offences, and His Honour made an order simply confirming that sentence.

20A further rounding out of the chronology would require me to insert into it the fact that all of that outstanding offending that I was told about when I first had you before me for the breach last July was dealt with at the Magistrates' Court sitting out at Broadmeadows on 8 December, and you were placed on yet another community corrections order, an 18-month order on that occasion, by the learned magistrate on that large consolidation.

21Mr Sullivan, though he was never suggesting that it was open to me to even contemplate a variation of this existing order, or to resentence and place you on a community corrections order, that is not what he was submitting at all, but he had instructions from you that that current order was going quite well.

22I was encouraged to ask questions of Ms MacDougall, who is the supervising order who sits off on the video link here today, and she did not confirm that all, indeed quite the opposite.  It seems to be a very similar attitude for that new order as there was for the order that I am currently dealing with, and indeed for what it is worth, even the bare chronology on this breach package here describes you being placed on the order on 8 December, but then there are non-compliances, two of them on 3 January, one on the 24th, and
Ms MacDougall started to tell me about some of the other non-compliance on the fresh order until I stopped her at that point.  Anyway, I had that discussion with her, I was encouraged to have it by Mr Sullivan, and it simply confirms that you are not doing too well on the current order either, which is hardly surprising.

23All right, anyway, that is perhaps enough of the chronology.  I do not see any utility in rehashing all of what I have been told in the past about your background.  I do not see any utility in me going through chapter and verse the various matters that were placed before me at the time of the original sentence being imposed in June of 2016.  The various mitigatory matters, they have not just miraculously abated, they still exist.  I mentioned them in my reasons because they were quite significant to the exercise of my discretion.  They still are, they are not being washed away just by virtue of your having made fairly faint efforts on these two orders.  They are brought to bear yet again in the resentencing exercise that I am engaged in here today, because they are matters of significance.  I am speaking, obviously, of the significant importance of your age at the time of this offending.  You were a child, you were not an adult, you were a child, and one acting, it seems to me at least, with some level of exploration of your own sexuality.  Doing it, obviously, quite inappropriately with an eight-year-old child, but I cannot treat you as an adult at the time of the offending, even though you are an adult now.

24It was those very matters that I have spoken of in my reasons for sentence that caused me to give you what your counsel was asking me for, that is, a community corrections order.  It is not a usual disposition for someone found guilty after trial for a charge of sexual penetration of a child under the age of 16, I can tell you, and indeed I did tell you.  And it was flowing directly from the particular circumstances of this offending - of your status at the time, and the various other matters in mitigation raised.

25Anyway, the point I am making is that I am not going to rehash all those principles and the cases that underpin them that are spoken of in my reasons.  They still have equal force here today in this resentencing exercise.  Now, as I have said, Mr Sullivan conceded the inevitability of a term of imprisonment, but he was raising the possibility of a suspended term being engaged here, either a wholly suspended term, he said was at least a possibility.  He addressed, I think, perhaps more attention to the partial suspension of a term of imprisonment, or as he put it, a short, sharp straight sentence, and the fourth and final of the options, he suggested, was a fixing of a head sentence with a non-parole period.

26Now he, likewise - there has been some economy in his effort for good reason.  There is no point him restating to me what has been stated to me previously, and I have taken into account, as is borne out by my sentencing remarks, so he can see that they are very much the same matters that were raised were being relied upon again.

27He was arguing essentially that you have done what might these days be referred to as a combination sentence, but in reverse order.  That is, you started off by doing the community corrections order, and now you are heading into the custodial portion of it, having failed that test, rather than being released having served a term of imprisonment, then onto a community corrections order.  It was about face here, by virtue of your own efforts, but he said that what was important is that I not lose sight of the need to take into account the extent of your compliance, the impact of having an order such as this over your head, the fact that there is a punitive aspect to that, to turning up at court, to turning up at Corrections, at testing.  He conceded that you had not done well - well, he could hardly say otherwise, but said by way of explanation, you were living in Broadford, you were not mobile, you were required to travel to Seymour for various aspects of the order, and there was a difficulty in that.

28That might be so, but it is plain enough from the report that you really have not put your best foot forward here.  You have not given the order the priority that it needed to be given. 

29I said I had completed the chronology, I do not think I have actually, because another aspect of the chronology - it is not significant for my purposes because these are outstanding matters still, and I am making no judgment as to the outcome of them, but there are some matters spoken of in the second of the reports, that is, the breach report prepared for today's proceeding, on p.3, dealing with various outstanding matters both now in the County Court and one in the Magistrates' Court.

30There had been a committal, I think, in the Magistrates' Court on 9 April.  You have been committed to this court for a trial listed in December of this year.  They are historical sexual matters arising out of alleged conduct in the same timeframe, as I understand it in the same circle.  Not the same victims, I should make that plain.  There is also an outstanding contest listed in the Magistrates' Court in July of this year relating to a road rage incident, involving allegations of assault, intentionally causing injury and conduct endangering serious injury, so they are outstanding as well.

31But as I say, I do not take those into account in any way at all, there is just that fact.  But taking into account the various submissions made by your counsel in his sensibly-pitched plea - I mean, there is hardly much point in him jumping up and down and making noises about your fantastic prospects of rehabilitation when the material does not bear it out, so he's not wasted his time, your time or my time dealing with those sorts of submissions.  He has made realistic submissions about the ultimate outcome, that is there being a term of imprisonment coming your way, and he has made submissions about the way perhaps it might be approached. 

32So I take into account the various submissions made by Mr Sullivan.  I do take into account also the various material within the breach package, which includes the second of the breach reports.  That is authored by Sheree Cochrane and Craig Kelly, and is dated 16 February 2018.  Again, I just do not see utility in me descending to the full detail of that.

33The fact is, you have been given warning after warning.  There have been compliance review hearing outcomes, and that followed on from the very strong warning I gave you at the time.  Indeed, you will recall - and I do, because I have reviewed the footage of the sentence being imposed in July of last year when I resentenced you, but the thrust of the plea, and what I hoped was that there had been something of a lightbulb moment in your life, going to Riverside, seeking out that treatment, having seen the inside of a prison for the period that you had in the lead-in to my sentencing you, there was the hope that that would cause you to reflect on your ways and to mend your hand.  Well, you have not.  I am not suggesting it is easy, but for someone in your position with the sort of history that you had had with the history of drug use, and you have not really put your best foot forward, so I take into account all that material, that report, and also the earlier report, and of course the full chronology that gives me a much better ability to look at you and what has been happening over the last couple of years.

34As I said in the course of the plea on the breach, I repeat, I was probably quite upbeat in my findings as to your prospects of rehabilitation in my original reasons.  That was owing to the fact that you were a child at the time, the lack of any other significant history at all, but of course what I have now got is outstanding offending that occurred after I had placed you on the order, offences that have now been dealt with.  They were outstanding on the last occasion when I saw you, but they are now matters that, I can conclude, have taken place, offences that you have committed back in 2016 in the currency of my first order, and of course in August of last year after the second, there were those two particular matters quite aside from that. 

35I have got the various non-compliances spoken of in the two reports and drawn into that chronology as well, so I really cannot reach the same relatively favourable view that I reached as to your prospects of rehabilitation, so that really is a matter of some significance at least in the alteration to my views.

36The fact is, as I told you at the time of your first order, you just needed to comply and we would never meet again.  I told you that at the time of the second order.  I warned you very explicitly as to the risks of breaching this, and none of those warnings seem to have done much good.  Seeing the inside of a prison has not impeded you from either offending or from choosing not to comply with an order, and that is all that you needed to do to avoid this day, to avoid this resentencing exercise, was to comply, and you did not.

37So again, I am not going to delve down to the detail of the sentencing purposes, they are, I believe, more than adequately covered in the reasons. They were very complete, they were 21-page reasons that were published at the time of the first sentence in June of 2016, and again, I made strong reference to the importance of your age at the time, and the way in which that was a very sizeable factor.

38How the useful focus on specific and general deterrence could be, and should be, modified, and I referred off to cases such as Sherrit, Better, and Miller & Boland at p.9 of the reasons. 

39So I think there can be that reduced weight given to specific deterrence given the age of the crimes, but more significantly your age at the time of the commission of them.  You were a child.  There can be reduced weight given to specific deterrence and the general deterrence, and the community protection, and to punishment.  I mean, they are matters that still have to be reflected, but not in the way in which they would be reflected if you were an adult committing this style of offence.

40Denunciation is obviously important, and I must give it some weight in my task.  Rehabilitation, well I was very much awake to that as a prospect at the time when I first sentenced you - I still am, it is not something that goes away just because you have breached these two orders, but as I have said, my conclusions as to your prospects of rehabilitation are less upbeat than they were at the time I originally dealt with you.

41And that is owing, very obviously, to the fact that since I saw you in June of 2016, I have the chronology that has arisen since, of offending and of non-compliance.  Punishment is still a purpose and still has a role to play, but again, it is a complex task, as it was on the first occasion I saw you, and it was on the second.  It still is.  I am dealing with you, an adult in your 30s, for offending committed by you when you were a child.  It was committed upon a child, true it is, but you were a child yourself, and so there is, I think, a significant moderation of many of the purposes of sentencing, including punishment and general and specific deterrence, owing to this reduction in your culpability that is derived from the fact that you were a child.  It seems to me, from looking at the nature of the actual conduct, a child most likely exploring his own developing sexuality. 

42So then, I have spent perhaps far too long dealing with this, but I placed you on the first community corrections order, I thought that I could, I was asked to do so, and I did.  You breached it, I had warned you in terms of breaching the first, I told you what might likely happen if you did that is you would be sent to prison.  I did not follow through on that, what I did is I listened to the submissions made on the last occasion in July, and those submissions ultimately led to me placing you on a second such order, where you breached that as well.

43The concession made now - I think correctly made is that the only appropriate disposition, is a term of imprisonment.  It is confused further, the whole task, because it is not an easy task sentencing in this sort of case - that is, of an adult who was a child at the time of offending.  It is never easy, and it is further complicated by the fact that as I am now going to be sentencing you to terms of imprisonment, that the serious offender provisions come into play.  And by the time I pass sentence for the third event, not necessarily by order of chronology by the way, I will make that plain in a moment, but by the time of my third sentence being imposed, you then fall to be sentenced as a serious sexual offender under the Sentencing Act regime.

44The presumption in favour of concurrency is therefore swept aside for those two matters, and for those two matters the principal purpose for which sentence is to be imposed is the protection of the community.

45A court must regard the protection of the community as the principal purpose for which the sentence is imposed.  The court has at its disposal the ability to impose a disproportionate sentence.  I make it plain that no one is suggesting that that is even open, and of course it is not, and I will not act in relation to s.6D(b), there is no question of any disproportionate sentence being imposed here.

46But in terms of the primacy of community protection, I am not free to just ignore these provisions, they exist for a reason - as indeed do the provisions dealing with the presumption in favour of cumulation, but I cannot ignore the principal of totality of sentence, and nor in making judgments about the risk to the community can I ignore the fact of these matters occurring when they did, all those years ago by a child at the time.  So I do not lose sight of those matters when I bring to bear the serious offender provisions in this task.

47Well, ultimately and regrettably you have left me really with no choice in this case. You have had the choice yourself to avoid this day, and you have not taken it. I have had the ability on the past occasions to deal with you in the way that I have, and it has not been successful. It is conceded that the only available disposition then is to cancel the order and then to resentence under the provisions of s.83AS(1)(c) of the Act, and that is what I am going to do.

48I will have you still remain seated, I think.  It will still take a bit of time to get through this.

49On the actual offence of contravening this community corrections order, you have admitted that offence obviously.  That itself is a separate offence.  That matter is proven, I convict you of that offence and I sentence you to a term of one month's imprisonment on that particular offence.

50I then am required to deal with you under s.83AS of the Sentencing Act.  I have only the four matters set out in sub-s.(1) - and only (1) is raised as a possibility - that is, the cancellation of the order.  There is no question of there being a further order or variation, or cancellation and making no order, or confirming.  Mr Sullivan concedes that the only available disposition is to cancel and then resentence, and he said what he said in terms of the way in which I should embark upon that task, taking into account the extent of your compliance, which though it has been hardly perfect, has still involved some level of effort on your behalf, and some level of inconvenience, and it has been over your head, and I accept all of those submissions.  I have had people who had not turned up for their induction sessions, having had the speech from me, they are never seen again.

51That is not what we are dealing with here.  You have taken some steps, you have made some efforts, so I am not able just to ignore those.  Indeed, I am required to take into account the extent of your compliance, and it has been over your head.  I would have hope that it being over your head might have caused you actually to comply, but it has not.  But nonetheless, I do take into account, as I am required to, the extent to which you have complied with the order.

52Ultimately though, as your counsel concedes, I am really left with no option but to pass terms of imprisonment, and that is what I am going to do.  I have already passed the individual one-month term on the charge of contravention.  Let me now deal with the charges on the indictment, I will just have a look at this.

53I am going to resentence on Charge 3 first.  That is because it is the most serious of the charges, it is the sentence that will be the base sentence, and it just seems to me that there are practical and logistical difficulties of doing otherwise.  If I get to that sentence by the third sentence, if I follow the order of the indictment, I am passing what will be the base sentence but then being obliged to express levels of concurrency with the earlier sentences imposed.  I find it a confusing approach.  Anyway, this is the way I am going to deal with it, it amounts to the same end result, but I am going to sentence on Charge 3 first, which is the charge of sexual penetration.

54Having taken into account all the matters that have been raised by your counsel on that charge, I convict and sentence you to a period of nine months' imprisonment. 

55Turning then to Charge 1 on the indictment, on that charge - this is the charge, really, of kissing.  On that charge I am going to convict and sentence you to a period of seven days' imprisonment.

56On Charge 2 on the indictment, and by this stage you now fall to be sentenced as a serious sexual offender on Charge 2 and on Charge 4.  Charge 2 being summarised in paragraph 3, that is the moving of your hand down from her breast to her vaginal area and touching her over her clothing.  On that charge, you are convicted and sentenced to three months' imprisonment.

57Charge 4 is the act of simulated sex that followed on from the sexual penetration the subject of Charge 3, and on Charge 4 likewise I convict and sentence you to three months' imprisonment.

58Now, firstly as to orders for concurrency, the base sentence therefore is the nine months imposed on Charge 3.  Charge 1 I have given you a seven-day term in relation to that act of kissing.  I am going to run that concurrently with all other sentences imposed today. 

59On the sentences passed on Charges 2 and 4, unless I otherwise direct, those three month terms would be served cumulatively upon each other and upon all other sentences.  Now, I do not ignore the provisions of the Act dealing with the presumption in favour of cumulation, I act on the serious offender provisions.  But what they do not do is oust totality here.  I still have to have strong regard, it seems to me, to totality in this case.

60What I am going to do is I am going to make orders that effect cumulation in each of those sentences of one month, so one month of the sentenced imposed on Charge 2, one month of the sentenced imposed on Charge 4 are going to be served cumulatively upon the base sentence and upon the other part-cumulative sentences.  I am sorry to have to do it this way, but that is not the way I am meant to express this though.  What I am meant to be doing is expressing amounts of concurrency.  So therefore in each case, those three-month terms of imprisonment, two months of each will be concurrent upon the base and other sentences.

61To round the matter out, the one-month imposed on the offence of breaching the community corrections order will be served cumulatively upon the base and part-cumulative sentences.  Let me just make sure that everyone is with me in terms of the mathematics of that, and the mathematics as I perceive it:

62It is a total effective sentence of 12 months' imprisonment.  I am sorry to have been moving between concurrency and cumulation Mr Sullivan and Ms Bye, but I have to really do it each way so all of you understand, but the legislative framework requires me to announce the extent of concurrency on the one hand, and then the extent of cumulation on the other.  Anyway, that is where we are.

63So do you agree that those orders produce that outcome?

64MR SULLIVAN:  Yes Your Honour.

65HIS HONOUR:  The 12-month term?  Yes, all right.  The issue then, to me, is how you should serve that term of imprisonment.  It would not be an issue that I would have to be honing in on if this was more recent offending, because as you will be aware, I am sure, suspended sentences have been abolished in this state in a series of amendments that took place from - really from November of 2006 through to September of 2014, and so it was done in stages, including one stage abolishing it for series or significant offences, and sexual penetration I think would have been a ‑ ‑ ‑

66MS BYE:  That is correct, Your Honour.

67HIS HONOUR:  Would have been a serious offence under those provisions.  But the abolition though only relates to offending occurring after the particular dates in question, and of course none of this does, all of this offending predates that, so as a matter of theory, a suspended sentence, either wholly or partially, is still on the books as an available disposition in your case.  It is a matter as to whether it is open to me to approach my task in that way here.

68So to do that, you have almost got to go back and relearn the law, because these are so many things that have gone out not just of fashion, but out of the statute books for more recent offending.

69A court back in the day - and it applies to this task, so a court can suspend the whole or part of a sentence if satisfied it is desirable to do so in the circumstances of s.27 as it was of the Sentencing Act.  But in considering whether it is desirable to make an order suspending a sentence, a court must have regard to the need to adequately manifest denunciation of the type of conduct, to adequately deter the offender or other persons, and to adequately reflect the gravity of the offence.  The court was required to have regard to any previous suspended sentences of imprisonment, and whether the offending was in the operational period of a suspended sentence, and the degree of risk of your committing another offence punishable by imprisonment during the operational period.

70So there was a framework in the then existing legislation that applies here by virtue of the age of your offending.  The court had to have regard to, in your case - as I say I am passing a term after those orders for cumulation and concurrency of 12 months.

71That would give rise to the ability to provide for your release on licence, whether you would be released by the Adult Parole Board or not would not be for a court to determine, the Adult Parole Board would determine that.  But I believe that it is open to proceed by way of suspension of this sentence. 

72When I say this sentence, I am speaking of a portion of it, but I am going to require you to serve a period of imprisonment.  I am going to make an order for partial suspension of the sentence.  The period to be served by you immediately will be a period of three months.  Then the balance of the sentence, that is, the nine-month period, will be hanging over your head for an operational period of two years.  That is from today's date.

73So it is an order for partial suspension.  That is, you serve three months, you are then released with nine months over your head.  The view I take of your presentence detention is it is something I can actually declare, and I intend to declare it.  The fact is that you were in custody for 25 days.  That was for the period from 22 May to 15 June of last year, and that was as a result of the warrant that I issued for your apprehension being executed. 

74Ms Bye, on behalf of the Director, suggests that I should not be making a s.18 declaration here, and you serve that period that you have then come before me for the breach in July and been dealt with, and that that is in the past, but I can have regard to it broadly. I do not think that is the right way of approaching it, but look, I stand to be corrected, I have been corrected often enough in other places. But the fact is that 25 days is 25 days that you have served. No doubt there was an aspect of that leading me to conclude it was open to place you on the fresh community corrections order that I am now counselling. I am sure that is so, and indeed I said it was so. But you have still served that 25 days, and it is not a direct parallel, but I have looked at a case of Luu, a decision of the Court of Appeal from the last few days dealing with the resentencing approach in a combination-type disposition.  I know there are differences there, but here you have served 25 days' imprisonment.  The only reason you have served it is because of the order that I have imposed upon you, the offences that were the subject of that order, and there has not been a previous time for anyone to declare it, because of course I did not sentence you to a term of imprisonment on the last occasion.

75Had I done so, I think it is inevitable that the parties would have suggested that I should declare it. In those circumstances, I am going to make a formal s.18 declaration. So I have given you a 12-month term. I am having you serve a period of three months before your release, and then you have over your head a suspended sentence, with the balance of that sentence of nine months suspended over your head for the next two years. You need to understand these things have been explained to you in the past. They have not really stopped you from offending in the past, but if in the next two years you commit any offence punishable by imprisonment, you will breach this order.

76And I can say, perhaps with more confidence than I have said on the previous occasions, and for good reason, that if you do that, you should expect to receive the balance of that term, it is nine months.  And the reason I can say that with greater confidence is in the absence of exceptional circumstances, that is what I am duty-bound to restore upon you.  So if you breach this suspended sentence in the next two years, what you should expect is you will come to court, and you will have the balance of that sentence of nine months restored for you to serve every day of.

77But I will make that s.18 declaration, so you have got that three months to serve. You have already served 25 days of it, so I will make a declaration pursuant to s.18 of the Sentencing Act that you have already served 25 days.

78Now, let me just see, is there anything else I need to - I am just not going to make a s.6AAA declaration, I think it is impossible to even contemplate making one in these sort of circumstances.  Are there any other matters that I need to ‑ ‑ ‑

79MS BYE:  The only other matter is, Your Honour, that in relation to that one month of the breach charge, that cannot be incorporated in the suspended sentence because of the date of commission of the offence.

80HIS HONOUR:  All right, yes, thank you for raising that.  All right.  Well, you are spelling out some of the dangers of moving to deliver ex tempore - or virtually ex tempore, reasons.  Let me just see how I deal with that. 

81MR SULLIVAN:  May I approach the prisoner, Your Honour?

82HIS HONOUR:  Yes, of course.

83MR SULLIVAN:  Yes Your Honour.

84HIS HONOUR:  So Ms Bye, are you saying I am not - there is no impediment to be imposing a term of imprisonment - obviously there is a maximum of three months.  The impediment is for me to run that into a - to cumulate that into an order that then is the subject of an order for partial suspension.

85MS BYE:  That is the complication.

86HIS HONOUR:  Yes, it is not something that I had factored in at all, but I should have.  I think you are right to raise it.  That must be right I think, Mr Sullivan, must it not? 

87MR SULLIVAN:  I am pretty sure it is, Your Honour.

88HIS HONOUR:  Yes.  It cannot even be addressed, Ms Bye, by - I have expressed a term of one-month in relation to that, but I cannot sever that out from the other sentence, can I?  In reality.  I cannot say "Here is one, but here is 11".

89MS BYE:  Unless you made it one plus 12, or you made a different order in relation to the breach charge.

90HIS HONOUR:  I am inclined to - it was not the direction I was heading in obviously enough - I have pronounced the direction I was heading in, but I am inclined to vacate my order in relation to the breach offence, and to impose a monetary penalty.  But to retain the other orders that I have imposed, I do not think it is appropriate that I, by sleight of hand, alter figures as I am sitting on the Bench.  I do not think it is appropriate to do that, I have passed what I have judged to be the appropriate sentences on those other matters.  I have made orders as to appropriate levels of cumulation.  True it is some of those driven by the intention to cumulate the one month.

91But my inclination - I will provide it to you at least by provisional view - yes?

92MR SULLIVAN:  Sorry, you are talking to somebody, Your Honour, I am standing up ‑ ‑ ‑

93HIS HONOUR:  No, no, that is fine.  No.

94MR SULLIVAN:  But in my submission, I could not think which way that Your Honour might have altered it, but the way that Your Honour is proposing, in my submission, it is the most effective way.  I would not have thought of it, but that would seem, from my perspective, to be a clear way of dealing with it without touching the integrity of the head sentence.

95HIS HONOUR:  Yes, but the head sentence in those circumstances would come down though, would it not?

96MR SULLIVAN:  It would reduce.

97HIS HONOUR:  Yes, well look ‑ ‑ ‑

98MR SULLIVAN:  On the other hand Your Honour, it would be considered artificial if you reduced it any other way, in my submission.  I could not think of it, Your Honour.  I did not think of it.

99MS BYE:  So Your Honour is still thinking of three months' imprisonment and then suspending eight months rather than nine months?

100HIS HONOUR:  Correct, correct, yes.  Look, Mr Sullivan said what he said.  Again, it probably illustrates the danger of doing this sort of thing.  I am not doing it on the run, I have thought deeply about the matter, because I have had a fair sense of what was coming here today overnight, and there has been no surprises in the way the plea was conducted.  I think I would be entitled to pronounce that the fresh sentence, arriving at the same total effective sentence - because of course I have been factoring in extent of cumulation and extent of concurrency, and that is not affecting the individual sentences, that is driven by the fact that I am cumulating a month from the breach.

101But look, rather than muck around with that, I think what I will do is I will simply impose a monetary penalty on the breach offence.  I will convict and fine the sum of $1,000 on the breach.  I pronounce the same orders in terms of the individual sentences that I have imposed, so nine months, seven days, three months, three months.  I pronounce the same level of cumulation - or of concurrency, being an additional one month for each of Charges 2 and 4.  So it gets us to a total effective sentence of 11 months if I approach it in that way, does it not?

102MR SULLIVAN:  Yes Your Honour.

103MS BYE:  That is correct, Your Honour.

104HIS HONOUR:  And the term to be served is unaltered, that is the three-month term, the term held in suspense is altered.  That will be now an eight-month term.  That will be held in suspense for an operational period of the same period - so for two years.  Now, does anyone see any difficulty with the structure of that order, or not?

105COUNSEL:  No Your Honour.

106HIS HONOUR: Yes, all right. And I repeat the s.18 declaration that I have already made. He has done 25 days already.

107MR SULLIVAN:  As it please Your Honour.

108HIS HONOUR:  All right.  You probably do not want a stay on the fine I would not have thought, do you?  Or ‑ ‑ ‑

109MR SULLIVAN:  No.

110HIS HONOUR:  No, no stay sought.  All right.  Any other orders for me to make?

111MS BYE:  No Your Honour.

112HIS HONOUR:  All right, I am sorry to have taken so long doing that and sat into lunch, but anyway - you will go down and explain all this to Mr Curic?

113MR SULLIVAN:  I will Your Honour.

114HIS HONOUR:  Well thanks very much Mr Sullivan, all right.

115MR SULLIVAN:  May it please Your Honour.

116HIS HONOUR:  And thanks for your input Ms MacDougall, I am sorry we had that video link dropping in and out, but so as you understand, I have cancelled the order, I have resentenced, and so that particular order is now at an end.  Yes, all right.  I will disconnect the video link then, thank you.  I will sign that downstairs I think.  So if Mr Curic can be removed, thank you.

117Yes, tomorrow, 10.30 please.

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