Director of Public Prosecutions v Curry

[2017] VCC 1805

IN THE COUNTY COURT OF VICTORIA Revised
Not restricted
Suitable for publication

AT MELBOURNE
 CRIMINAL JURISDICTION

CR-17-01380

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAY CURRY

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2017
DATE OF SENTENCE:	1 December 2017
CASE MAY BE CITED AS:	DPP v Curry
MEDIUM NEUTRAL CITATION:	[2017] VCC 1805

REASONS FOR SENTENCE
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Subject:theft of firearm, prohibited person in possession of firearm. Two summary offences; deal with property suspected of being proceeds of crime

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Harrold	Office of Public Prosecutions
For the Offender	Ms A. Salter	Paul Vale Criminal Law

HIS HONOUR:

1Shay Curry, yesterday you pleaded guilty to two charges on the indictment that has been filed before me.  There is one charge of theft of a firearm and one charge of being a prohibited person in possession of a firearm.  Additionally there were two summary offences pertaining to dealing with property suspected of being the proceeds of crime.  

2You have a short but undoubtedly relevant prior criminal history.  The chronology of offending is very much relevant as well.  You were on a community corrections order at the time of all of the offences and on an adjourned undertaking as well for the second of the indictment charges.  You had also previously been on a community corrections order which had been breached.  The maximum penalties are correctly spelt out in the summary.

3The matter was opened to me yesterday by Ms Harrold, who appeared on behalf of the Director of Public Prosecutions.  She opened the matter in accordance with a written opening.  That opening and some of the photos in this case were tendered on the plea and they were marked as Exhibit A. 

4Your counsel, who appeared yesterday, Ms Bate, told me that this was an agreed statement of facts.  However, she then, in the course of discussion,  advanced some account of the timing of the theft of the firearm, which struck me at least as being quite inconsistent with what was the agreed summary. That issue was not a large one at all and it really would not in any way influence the ultimate penalty at all.  Whatever the timing of the theft, whether it occurred as you left the house, or after that point following a return to the house, it matters little, it obviously was not a spontaneous act.  You know that.  

5I think It is unnecessary to repeat now in my sentencing reasons, the full factual basis of sentencing.  That is because Exhibit A, the agreed summary, will remain available for inspection on the court file and I am not going to stray beyond those facts. 

6By way of very brief outline, that is all this is, you stole a firearm from someone who had been good enough to offer you and your partner accommodation.  It was a relative, I think a second cousin of your partner, in fact.  You then possessed that weapon and you did so with the hope of swapping it for drugs. You were prohibited from possessing any firearm.  You were on a community corrections order at the time of this serious crime.

7Now the summary goes into far more detail, but I will not.  This was serious offending and your counsel yesterday correctly conceded that the firearm charge, that is, the prohibited person in possession charge, falls into the more serious category, discussed in the case of Berichon v The Queen.  You were hoping to swap it for drugs and that would have placed the weapon into the hands of criminals.  Of course ultimately that did not happen.

8In your police interview, you made an admission in relation to the gun, but not much else actually and that was your absolute right.  You pleaded guilty at the earliest opportunity and you have been doing very well indeed since release on bail in July of this year.  You have spent 139 days in custody already, prior to that release and it just may have been the best and most valuable 139 days you have ever spent.  Perhaps it has brought your life into perspective.

Victim Impact

9There is no victim impact material filed in this case.  

In Mitigation

10In a persistent, but excellent plea conducted on your behalf yesterday, your counsel, Ms Bate, relied upon a number of matters in mitigation.  Chiefly she relied upon: 

·Your guilty plea and the early stage of that plea;

·The presence of remorse;

·Your background and strong efforts that you have made in custody and on the current community corrections order since your release;

·She relied upon a number of personal references and work references; 

·She was arguing that you had very good, if not excellent, prospects of rehabilitation and that those prospects might be dented upon a return to prison;

·She filed a report from a psychologist, Ms Ferrari, but made plain enough that she was not placing any reliance at all on any of the principles from the case of Verdins v R;

·She accepted that the offending was serious, but she was arguing that you could be dealt with by way of a term of imprisonment, hopefully one equating with your pre-sentence detention and that that would then produce immediate release back into the community on a community corrections order.  That would be your fourth such order.

Prosecution

11Ms Harrold, on behalf of the Director of Public Prosecutions of this State, conceded that a term of imprisonment and a community corrections order was open in the exercise of the court's discretion.  As serious as the offending was, she made plain that the Director of Public Prosecutions of this State, was not calling for any further immediate term of imprisonment to be served by you, very much for the reasons advanced on the plea.  Mainly, the release onto the community corrections order in July and the very strong efforts disclosed in the materials, efforts that you have made since.

12That was the submission made on behalf of the Director, but I am not bound to accept submissions made by either counsel appearing in front of me.  They do not pass sentence.  I have to exercise my sentencing discretion, I have to pass sentence.  Though, of course, I do not ignore any submission made to me by either of the parties, it is just a matter as to whether I accept them or not.

Background

13I will deal only very briefly with your personal background, before turning to some of the submissions that have been made on your behalf.  Your personal background was referred to in the written and oral submissions of your counsel. It was also set out in further detail still in the report of Ms Ferrari.  I have no reason not to accept the family background that has been placed before me and I do not see any need to sit up here now, re-stating to you your own background.  You know what it is. 

14Briefly, you are 25 years of age, born back in 1992.  You are still a young man.  You had the misfortune to have a violent father who abused both your mother and drugs.  He may have had other good characteristics, but he had some real problems.  You did not choose that background.  Your mother was sensible enough to take steps to shield you from it and to separate.  But all of this has had significant impact upon you, at least in your developmental years.  It has you sitting there now as a 25 year old, vowing not to be like your father to your own child and that is a good thing.

15You are one of two children.  You were the youngest, I think.  Your parents separated when you were quite young.  Your father then went on to have two other children and you have maintained a valuable relationship with those two.  I think they are 14 and ten now.  They represent an important part of your life and you are not proud of them seeing you before the courts and in fact, as I understand it, you prohibited them from visiting you in custody.  You did not think it was appropriate.

16You have a very strong bond with your mother.  You had some serious issues as a child and adolescent, issues serious enough to require long-term counselling.  You had anxiety and depression, as well as, it would seem, attention deficit hyperactivity disorder and also a post-traumatic stress disorder.

17You started drug use when you were very young and it became increasingly problematic, though you may not have even recognised that.  

18You left school at a relatively young age, but you then later went on to start and then complete a bricklayer’s apprenticeship.  So in that aspect of your life, you thrived.  It is no mean achievement qualifying in any trade.  It would seem then though that you lost your way when you were in your 20s and it is mainly owing to the impact of drugs upon your life.  There really is no such thing as
a recreational drug user.  People think there is.  People think there are recreational drugs and recreational drug users, but your drug use, very clearly, took a very heavy toll on your family relationships and your job.  

19There was some offending for which you were given a first and then a second and chance on a community corrections order and ultimately you were placed on a third such order.  You did not take the first two chances at all, you have breached them by your offence and non-compliance, as the assessment report makes plain.  But the third community corrections order was imposed in July of this year, at the same time as you were released on bail for the matters that
I am dealing with.  And from that point, you really, it seems to me, have done everything you could to change aspects of your life.  

20In fact it had probably started earlier with the efforts that you had made in custody.  That prison time perhaps gave you the ability to reflect on how low you had sunk and the sort of paths that lay ahead for you, heading in two different directions, more of the same or a different life.  You may very well be one of those persons who really needed to see the alternative, that is, prison and you saw that for 139 days following on from your arrest in February of this year. 

21Since release, you have complied with some onerous bail conditions.  You have fully complied with the most recent community corrections order and you also became a father.  

22The thrust of the plea conducted on your behalf, really was that you have greatly changed since these events earlier in the year.  But you are back at home, you have a job to go to as well and there were some excellent references speaking of these changes.

23Your criminal record and the chronology of offending is of clear relevance, of course it is, but so too is your conduct since July.  I cannot just ignore that.

Guilty plea

24I turn then to those matters raised on your behalf by Ms Bate in the plea conducted yesterday.  You have pleaded guilty, you have done that at the earliest stage.  That is important.  I take into account the fact of your guilty plea and the early stage of that plea and what I must do is reward you for it.  You have facilitated the course of justice.  Witnesses have been spared the experience of coming to this court to give evidence, or to give evidence at a committal hearing and that is because you have accepted responsibility.  So the community has been saved the time, the cost and the effort associated with a trial up in this court, or a committal in the Magistrates' Court.  And I tell you that, but for your guilty plea, I would have imposed a far more significant term upon you.  I also take into account the admissions that you made to the police.

Remorse

25I do not think I need to spend too long dealing with the issue of remorse.  I have your earliest of guilty pleas and that is ordinarily, at least, some indication of  remorse.  Remorse is mentioned also I think in the report of Ms Ferrari and in some of the letters placed before me from your relatives.

26I am prepared to find in your favour the existence of remorse in this case and
I will take that into account in mitigation, as your counsel urges me to do.

Rehabilitation 

27I turn now then to your prospects of rehabilitation.  If I was to base my view on your performance on the first two community corrections orders you were placed on, well it would be a pretty negative view, obviously.  Being placed on a community corrections order, breaching it, being paced on another and on an undertaking to be of good behaviour and then committing these offences on those orders, or at least some of them, well that would not greatly encourage anyone, but then you went into custody.  That was earlier this year.  You needed to and I think your mother recognises that and I think you do, yourself, in your discussions with the expert.

28You did courses, you worked and it would seem to me at least, that you started to engage in a process of change there.  What you could see is perhaps what you could not see when you were on the outside.  You could see the impact of your absence upon others, you could see the impact of your absence on your mother when she lost her mother and you were not there for her.  You could see your partner, still a young woman herself, I think she was only 23 or so, going through her pregnancy and doing that on her own, because you were not there. 

29You had time, no doubt, to reflect on your crimes and the life that lay ahead. You probably also had time to look around you in prison and look at other lives and the way in which they might be headed.  Did you want to head in that direction?  Did you want to head in a difficulty direction? 

30You were then released on bail and as I said, on the same day, a new community corrections order and whilst it is still early days, you really have done remarkably well to this point.  You have attended, you have engaged, you have stayed off the drugs.  You seem, to me at least, to be a very different person from the person committing these crimes earlier this year.  You are also now a father, one with responsibilities and one looking forward to re-joining the workforce and making a better fist of fatherhood than your own father did. 

31What then are your prospects of rehabilitation?  Well I cannot ignore the past, including your past offending, I cannot ignore the chronology of offending and nor can I ignore the fact that you have had long-term issues with drugs.  But you are still young, you enjoy strong family support, as is evidenced by those who were here yesterday and again today and I think you have got the very real prospects of a good career.  I mean, you have got that behind you.  You have qualified.  As I say, that is not easy, but you have not just qualified, there is a very strong reference from your past employer, speaking of your high level of proficiency.  So you have got something that many people sitting in the dock do not have, that is, a useful career ahead of you.    

32You also, I think, are remorseful.  You have pleaded guilty at the earliest juncture.  You are still young and your criminal record is not extensive.  I take into account then the excellent character references and letters placed before me.  I do not see no need to quote from them or descend to the further detail of them, I have read them all again overnight.  I think you probably have changed a great deal since earlier this year when you were committing these crimes.

33You have been arrested, you have been interviewed, you have been charged, you have then been imprisoned, you have been bailed and then you have been awaiting finalisation of this matter.  You have not been in a position to know and you still do not, sitting there at the moment, one way or the other, how this is going to pan out, whether you are to be returned to prison today or not.  So this whole process is none too easy and it will surely serve to further deter you, to some extent, in the future and so too the sentence that I will soon pronounce.

34I am prepared, on the materials placed before me, to find, as your counsel urges me to, that you have very good prospects of rehabilitation and I would say
a reasonably low risk of re-offending.  But that is all conditional and it is all conditional on your remaining drug-free and dealing with the issues that underpin that drug use.  If you do not, if you resume use of drugs, you have no prospects of rehabilitation .    

Ms Ferrari

35I take into account also the report of Ms Ferrari, but not as in any way engaging any principles from a Court of Appeal decision of Verdins v R.

36Your counsel was not suggesting that case had any role to play and she was undoubtedly right.  That report is of use to me, setting out, as it does in detail, your background.  It sets out some useful material as to the conditions that you are diagnosed with, though regrettably the report also contains much by way of improper advice to the court as to the sentence to impose.  That sort of material, I simply put aside.  I will not act on that.  I will make decisions as to sentence, not Ms Ferrari.  Still, I do have regard to the relevant portions of the report in mitigation. 

General remarks

37I turn now to some general remarks in relation to sentencing.  I think you need to understand, so much of this is focussing on you and why would it not?  You are sitting in the dock, you want to know what is going to happen to you.  But sentencing involves a lot more than just looking at the accused in the dock. It involves a balancing of a number of purposes or principles.  I am required to manifest the court's denunciation of your criminal conduct and I do.  This was serious criminal conduct.  Make no mistake about that and your counsel conceded that.  

38As to the theft, I mean, it is a pretty low act to do that, to be stealing a gun from someone who had actually housed you and your partner.  You must be punished for your crimes, though I am required to do that justly and proportionately.  I am required to also consider the need to deter you, that is, to dissuade you, as well as others, from committing these sorts of offences in the future.  And of course, a court is required to consider the protection of the community as well. 

39I have to also take into account your prospects of rehabilitation and your risk of
re-offence and that risk is, I believe, relatively low, as I have said, subject to your continued treatment and abstinence.  When I am considering the weight that should be given to specific deterrence, that is, deterring you from future offending, well I cannot just focus on the unhappy chronology leading up to the offences and then ignore your excellent efforts since July.  They are important and they should not be and cannot be ignored.  You are still young, you have got family support and there have been many changes in your life, including one obvious one, that is, fatherhood and hopefully a job available to you upon your ultimate release.  

40Your criminal history is not overly long, nor is it suggestive to me of someone who is not reclaimable.  I repeat, I think you have very good prospects of rehabilitation if you can stay away from drugs and your drug associates.  If you do not, well your prospects will dip dramatically, if not, disappear. 

41So these conclusions, it seems to me, lead to some moderation of the need to give weight to the protection of the community and moderation of the need to deter you.  I am not saying that specific deterrence is irrelevant, it is plainly relevant, given the chronology, but it can be moderated here, to a degree.  
I suspect it has been achieved to an extent already.  It is always hard making these judgments as to what might happen in the future, terribly hard, but I do not believe the community needs to be protected from you.  I hope I am right in that respect.  You have, as I have said, a reasonably short criminal history and very good prospects of rehabilitation.  

42General deterrence, on the other hand, is still a very significant sentencing purpose in a case such as this.  That is, the need for the courts to deter others.  So this court is required to send a loud and clear message to others who might be minded to commit these sorts of serious offences.  We are, as a community, sick and tired of guns making their way into the hands of wrong people.  When that occurs, it is a menace.  You had no business possessing any firearm.  You were, after all, a prohibited person, yet you stole one and you possessed it. 

Nature and gravity

43I have to pay regard to the nature and the gravity of the particular offences before the court.  Your counsel conceded the offending was serious and that was correct.  The theft is serious and so too the prohibited person charge.  You have heard the maximum penalties read out in court.  This was not just some gun obtained years previously and lying all but forgotten in the bottom of
a wardrobe or cupboard.  That would be, by the way, serious enough, but that is not the setting here.  You have decided to steal this firearm and to do so with a view to dealing with it commercially, that is, swapping it for drugs and that is a sure way for a dangerous weapon to go directly into the hands of a member of the criminal underworld where it will be used criminally.  

44So it is not a low level offence at all and as your counsel correctly concedes, it falls into the second Berichon category.  Not too long ago, in this very court, dealing with a person with a lesser criminal history than yours for an offence of prohibited person in possession of two firearms, in each instance I gave that person two years' imprisonment.  There is, however, in your case, no suggestion that the weapon was to be used in any imminent criminal act.  That is not the setting.  The dealing in property suspected of being proceeds of crime charges, well they are what they.  They are nowhere near as serious as the indictment charges before me, but the importance of general deterrence is very plain here.  There is a particular charge of theft of a firearm and it exists for the very reasons that I have spelt out, the concern about firearms making their way into the hands of criminal members.  You are stealing
a firearm, you are then a person who is prohibited from possessing it, so general deterrence is a very plain purpose here.  It must be given significant weight.     

Totality

45I have to and have given consideration to the overall effect of the sentences imposed by me and I have given regard to the principle of totality of sentence.  That requires me to engage in a last look at the overall effect of the sentence, to ensure it is consistent with your overall criminality.

Current sentencing practice

46I must pay regard to current sentencing practices.  Well I have been taken to another sentence of another judge.  That tells me nothing and it is of no utility to me at all.  What another judge does in another case does not dictate what
I do in your case and the reason for that is obvious.  Every judge is exercising a judicial discretion, their own. Every case is very different, including personal circumstances and features and including the nature of the offending.  Of course, you were on a community corrections order at the time of these events.  That is a significant aggravating feature.  Other cases will never have all the features of the instant case before the court and there was some unusual features of your case that go in the other direction, that is, your relative youth, your relatively short criminal history and the very strong evidence of reformation or rehabilitation that has been occurring since July at the very latest.  So no cases are ever the same, no result in any other case dictates the result in the particular case.   So other decisions, statistics, where they are held and they are, they do not drive the sentencing task either.  What I have got to do is pass an appropriate sentence in your case and I know all about your case. 

Boulton

47Ms Bate was arguing that it was open to impose a prison term, equivalent to the time that you have served and then to place you therefore immediately onto a community corrections order, which would permit you to leave court under your own steam.  She was submitting that your offending did not demand any return to prison and really was suggesting that any such return to prison would in fact potentially be counterproductive to you and to the community.  Ms Bate argued that such a combined disposition, that is, 139 days, plus a community corrections order would achieve the various purposes of sentencing.  The Director of Public Prosecutions was not suggesting there was any need for your return to prison and accepted that the disposition advanced by your counsel was within my sentencing discretion.  I say again though, the Director does not decide the sentence, I do.

48Sending any person to prison is always a matter of last resort for any court.  It always has been and unless something pretty dramatic happens, it always will be. 

49I was taken by your counsel to the decision of Boulton v R.  That was a decision of the Court of Appeal back in late-2014, where the Court of Appeal of this State told judicial officers throughout the State that sometimes it would be open to place a person on a community corrections order, even for offending that previously would have been met with a substantial or even medium term of imprisonment.  Well that was back in December of 2014.  There has been a lot of water under the bridge since that decision.  There have been suggestions from the Court of Appeal in other cases since that the particular community corrections order disposition was being significantly misused by judges in this State.  See the case of Basic.  There had been a call for legislative interventions and in fact there has been legislative amendment since that limits and alters the use of a disposition.

50The Court of Appeal have told us on a number of occasions since December 2014 that the community corrections order disposition is not some "get out of gaol free card".  It never was. 

51It is obvious that not every offender for every crime can or should be admitted to such an order.  That is because, of course, there are some crimes where the purposes of sentencing cannot be given adequate weight by the use of such an order.  I have had you assessed for your suitability for a community corrections order.  I called for that report yesterday and you have been assessed this morning and I admitted you to bail so that you could leave yesterday and come back today.  I told you not to be in any way comforted from the fact that I was calling for the assessment report, or for the fact that I was extending your bail, that those things meant nothing at all as to the ultimate outcome in this case and that is exactly the truth.  I meant what I said.  I wanted to go off and read all the materials again overnight, which is what I have done and then see the report and then make some judgment as to whether it was open to me to adopt the submissions of your counsel and deal with you in that way.  Unsurprisingly, you have been assessed as suitable.  It would have been amazing if you were not, given the compliance on the current order.  So I am not surprised that you are suitable.  You are judged, I think, to be a medium risk of re-offending. 

52Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement, unless the court concludes that the purposes of sentencing cannot be achieved by a community corrections order with specified conditions attached to it.  So a court obviously needs to pay careful attention to the purposes for which sentence is to be imposed and then to consider whether they can actually be achieved by a stand-alone community corrections order.  There are some crimes that are just too serious for such an order.  That much is obvious and has been recognised in their many decisions since and indeed was recognised in Boulton itself.      

53The Court of Appeal in that case suggested that judges ask the following question:

"Given that a community corrections order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment, with all its disadvantages, is the only option?"

Well that is the question that they suggest we, as judges, pose and the answer in this case is simple enough.  Yes, there are such features which require me to impose a prison term here.  There is no question about that and indeed your own counsel concedes as much.  But, of course, that is not the end of the matter.  You have served a prison term already, though it is true, it is only 139 days. So the question that has been exercising my mind since last I saw you, is whether that is enough, or whether must I return you to prison to serve a further period. 

Sentence

54Well I have done as I have said.  Well, I have read all the materials overnight.  When I have regard to all that has been placed before me in the course of this plea, it is my view that it is open to give adequate weight to the various purposes of sentence and to actually sentence you in the way that Ms Bate urged me to, that is, imposing an aggregate term of imprisonment, equating to the time that you have actually served already and then releasing you a community corrections order forthwith.  So you will be leaving court under your own steam, all right? 

55Now if you are picking up, in my reasons, the closeness of the shave you have had, you would be correctly making that judgment.  It is a line ball matter.  I have resolved it in your favour.  I want to make very plain that, but for the evidence of you efforts since July of this year, nothing would have saved you from a head sentence, measured not in months but in years.  However there has been that change and that most recent chronology of release on bail, considerable efforts made by you on the community corrections order and in the course of the strict bail as well. 

56It raises in my mind the appropriateness of responding to such positive efforts, by throwing you back into custody.  That sort of outcome just may very well be the worst step that a court could take in your case.  It obviously would not benefit you, it seldom does benefit any person being sent to prison, but how though would it benefit the community?  If you are in a state of change for the better, well returning you to prison may be a most counterproductive step available to a court from the community's position.  The prospect of those gains being lost really could be directly against the best interests of the community.  The community's best interests, it seems to me, is served if you can stay out of trouble, if you can stop offending, if you can reform and get on with being
a father and a son and an employee.  So I believe it is, by the barest whisker, open to me to do what your counsel was urging me to do. 

57So I am going to, on all these charges, when I say "all", I am speaking of the two charges on the indictment, together with the two summary offences, on all those charges, given that I am passing a combined order, I believe it is open and appropriate for me to pass an aggregate term of imprisonment and that aggregate is going to be - it was definitely 139 days, was it not?

58MS SALTER:  Yes, Your Honour.

59HIS HONOUR:  It will be 139 days' imprisonment across all of those charges on the indictment and the summary offences.  In addition, on all charges, I am going to convict you and place you on a community corrections order.  

60I want to make one thing very plain and perhaps it is pertinent for me to make it plain, because I have had another judge's decision of this court thrown in my direction today, to try and influence my task today.  I am not saying Ms Bate is doing anything wrong in doing that, but I want to make one thing very plain to you and plain to others, including other members of the legal profession who might somehow seek to rely upon the sentencing outcome in this case in the future before me or any other judge that it is the sort of disposition open in this sort of case, that is, a prohibited person in possession of a firearm. 

61I want to make very plain that, but for your strong efforts since July, this disposition would not have been open to me at all.  I would have been dealing with a head sentence with a non-parole period.  It is just that those matters do exist in your case.  They will not exist in many, but they exist here and I think it would be a retrograde step to turn around now and respond to the efforts that you have made by simply bouncing you back into prison after all the effort that you have made and the evidence of gain that is placed before me and your mother, in her letter, speaks of that risk.  So in addition to the prison term, the aggregate term, equating to your 139 days of pre-sentence detention, I am going to admit you to a community corrections order on all of these as well.  So it is 139 days plus a community corrections order and it is going to be for a two year period.  All right?  And that order is going to commence today. 

62Well, you have had a few people explain a few of these orders before.  Do you need another person to - well - you may not, but I have got to, all right?  And I am going to explain it, because the last thing I ever want is someone coming back in front of me saying, "I didn't know what could happen."  You will know because I am telling you.  You would know even without me telling you, because you have been in this position before. 

63But I have got to satisfy myself that you understand the order and that you consent to it, because I can only put you on one of these orders if you do consent.  So it will take a little bit of time, so bear with me.  You will get a copy of this order, as you have in the past.  No, just remain seated.  This is going to take a bit of time.  And at the end of all this explanation, I will get your counsel to go down and have a chat to you to make sure that you understand and that you are entering into this order and what it involves, because I do not want you to consent to it lightly. 

64So it is a two year order, all right?  And so it starts today.  So part of it, obviously, will be running concurrently with the order that you are presently on.    

Mandatoryterms

65Now, the broad nature of these orders has been explained to you by the assessment officer in this case.  I have got a document saying as much, you have signed it.  It has also been explained to you in the past.  Maybe you have not spent too much time listening, at least for the first couple of orders anyway.  But I am going to go through it and explain this and then I will ask you whether you consent. 

66As you understand, every one of these orders, whoever is sitting in the dock, whoever is getting it, there are mandatory terms that apply to every person who gets them.  So they apply to you.  You are getting an order, they apply to you.  You know what they are, you have seen them before and I am not going to spend too much time dealing with them, but you must not commit another offence for which you could be imprisoned during the time the order is in force.  These days, almost every offence is punishable by imprisonment, all right? 

67So, as an example, I probably do not need to, but if you are possessing drugs, that is punishable by imprisonment.  If you are using drugs, that is punishable by imprisonment.  If you are committing a host of - I could pick up the Crimes Act, turn it up at a page, hit an offence, it is not going to matter what it is, that offence will be punishable by imprisonment.  Virtually every offence you have committed is punishable by imprisonment and it does not require another court to send you to prison for you to breach this order. If you commit an offence, which in theory could have been punishable by imprisonment, that is enough to breach the order, all right?  So what it means is pretty straightforward.  You stay out of trouble.  You do not commit any offences and that is in the currency of this order, so two years.

68You have got to comply with your obligations under the sentencing regulations, just turning up totally unaffected by alcohol and drugs, on time, in a fit state to comply with any of the obligations under the order, whether it is supervision or unpaid work or whatever. 

69You have got to report to and receive visits from the Community Corrections officer.

70You have got to report within two clear working days of the order starting.  Well you know where to go there, you have been going there and doing well there.  That is the Broadmeadows  Community Corrections Services and the address is on the form. 

71As you know, you have got to let them know within two clear working days of changing your address or job.  So if you change your address, let them know.  Do not do what so many people do and just go missing, or just lose contact with your officer, or you will breach this order. 

72You are not to leave Victoria without first getting permission to do so.  And that is not to say you would not be able to leave, but just ask and get permission, all right?  If you just get up and skedaddle out of the State, you will breach the order.  If you have got some good reason to be wanting to travel interstate, maybe it is a holiday for a week, I have got no doubt they would give you permission, but if you just get up and leave, you will find yourself in strife. 

73You must also obey all their lawful instructions.  If they tell you to go and rob
a bank, you do not do it, but if they give you lawful instructions, you obey them.           

74All right, well they are the mandatory terms.  You breach any of those, you breach this order. 

Conditions

75Then there are the tailored conditions.  We have had these in the past and you have had three of these orders in the past.  Some had unpaid work.  The one you are on currently is a therapeutic order and I am going to impose some unpaid work on you.  It is unmistakably by way of punishment, no question about that.  You need to be punished.  This order, in combination with the term of imprisonment that you have served, goes to punish you.  It deals with all the purposes of sentencing, including deterring and protecting the community and punishment and rehabilitation.  So I am going to keep the number of hours to
a reasonably manageable level, in recognition of the fact that you have got other obligations, obviously.  You are getting back into the workforce.  

·You must perform 250 hours of unpaid work.  That is over the two year period of the order, all right?  It is not that much.  It seems a lot when you say 250, but it really is not that much.  So that is as directed by the Regional Manager.   

·You will be under supervision of a Community Corrections officer for the full period of this order.  So you are under supervision. 

Then there are treatment and rehabilitation conditions.  Well, drugs have obviously been an issue.  You are travelling well at the moment, but it is still early days.     

·You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the Regional Manager;

·You must also undergo any mental health assessment and treatment.  That may include psychological, neuropsychological, or other forms of treatment, as noted in the order, as directed by the Regional Manager.

So what are they going to do, in terms of the drug abuse and testing? 

I do not have a clue.  They may think you are tracking beautifully.  You probably are, by the looks of the current reports, but whatever they say, that is what you have got to do by way of testing, by way of assessment and treatment.  They will have a pretty decent idea as to what you require now and it may be, it will not be much.  But we have got these conditions in place to assist you if there is any sort of slip-up.

In terms of the mental health condition, again, they will deal with that. 
I do not know what they are going to direct you to do, but again, you will comply with their direction.

I am also going to have a special condition on the order and it replicates the condition on the order that you are currently on and it is this:     

·You must abstain from the use of any non-prescribed medication or drugs.  

Now, what does all that mean?  Well, you might have temptations, I do not know, I hope you do not.  But if you do, you understand that if you are about to possess a drug of dependence, you are getting this order into your hands and almost crumpling it up, potentially, all right? 

You have got obligations, much greater obligations than you had prior to August of this year.  You have got a young bub.  There is no such thing as recreational drug use.  You would think of GHB, what you know is, it is almost a certainty, that you are not actually using GHB, you are using 1,4-Butanediol, which is what is being sold as GHB on the market.  You are drinking an industrial solvent.  It is diabolically dangerous.  It turns into GHB within the body, but it is a massively dangerous drug, especially in combination with other drugs. 

Anyway, it is pretty straightforward, it is a bit like a P-plater these days.  A P-plater does not get into a toss-up as to whether they have had one too many beers or not, they just cannot drink, zero, zero and you are the same.  You have got a specific condition of this order that you are not to use any non-prescribed medication or drugs, all right?     

76All right, well they are the suite of conditions that I had in mind.  So they are the tailored conditions.  

77So if you breach any of those, likewise, you will breach the order.

78You have had three orders in the past, two have been dismal failures and the current one is going very well.  There are many people who I place on these orders who then go on and breach them.  Do not be one of them.  I do not want to see you in that position.

79I have had people who have breached these orders in almost every imaginable way, including not even turning up for the assessment appointment within two clear working days.  You have breached two orders and you have done it both by offending and by non-compliance.  So you probably know what I am talking about, but people probably go along to court, I do not know, it might be just normal to go along and to breathe a sigh of relief when you are not being locked up.  Off you go, the case is finished, or so you think.  But it is not.  That is the reality. 

80People come to court, they have been worried about coming to court, worried about going to prison, they get an order, it is a community corrections order, it does not sound too bad, they head out the door with their family and there is
a sense of relief, a sense that the case is finished.  It will be finished in two years when you have complied with this order and not a day before.  And very many of the people that breach these orders, they leave court, they have consented to the order, they are happy to get it, relieved to get it, but they are out in the community.  Once they are out there, they realise that actually the order is not that easy.  It is a bit inconvenient having to do this, that and the other, a bit of unpaid work on the weekends, who wants to do that?  But you will have to.   

81So people fall out of contact with their Community Corrections officer, they resent the intrusion in their life of the order, they think there is something more important to get on with.  You will have a job, you will have a child.  Well, I am not saying you are not to assign priority to you job or your family, of course you will, just do not lose sight of how important this order is, because you will not get a second chance from me.  You understand?  It is very straightforward.  This is a single chance that you are getting from me. 

82Until I actually announced the fact that you are going home today, you did not know whether you were or you were not.  You probably thought you were not.  Well, how did you feel last night thinking about coming to court, or the night before, for that matter?  Were you to be undergoing a two year sentence of imprisonment?  Were you going to be going home?  When would you next see your child?  How were you feeling?  Probably not too chipper, all right?  Do not lost sight of the way you felt, because that is the way you will feel if you find your way back before me, by way of breach.  You do not want to do that and
I do not want you to put yourself in that position or to put me in that position, all right?    

83So, do what you are doing at the moment and you will not go wrong, because you are doing as well as you can do on the current order.  Just maintain that conduct with this order and we will never meet again.  Get on with your case officer, they are there to assist you and you are doing well with them at the moment and keep that going.  If you need assistance, seek it out.  Do not be hiding stuff from them, you just seek it out if you need to get some treatment or some counselling, or you fear that there might be some slide back into drugs, get on top of it, go and get some help.  They are not going to - they are not policemen, they are not going to run off and report you or anything like that, you get assistance from the order. 

84You have got some unpaid work.  The last unpaid work was not a great hit, by the looks of it, but you are not afraid of hard work.  If you have qualified in the trade that you have qualified in, I suspect you could do 250 hours standing on your head. 

85If you have got things that are coming up that make the unpaid work or any of the supervision or obligations under the order, impossible for you to attend,        let them know, all right?  Do not just - a lot of people put their heads in the sand and just say, "Oh well, I just won't tell them" and then before you know it, you have got some - you probably did that on the last occasion, you end up getting absences and absences and absences and you say, "Oh look, I'll give you
a medical certificate" or whatever it is and people dream up reasons and they try and give explanations after the event and it never works, all right?  Do that and you will find yourself breached.  

86If you have got a good reason for not being able to attend at work or an appointment, get on the phone and let them know, there and then.  Even if it arises on the day, let them know.  They will not be silly about it.  If you have got a good reason, no doubt they will reschedule.  But do not just bury your head in the sand and not turn up, because if you do that, we will meet again.   

87You know what happens if you breach this order, because you have breached orders in the past.  It then potentially turns into a re-sentencing exercise for you.  Again it has been explained to you though and I am going to explain it very explicitly to you.  I do not want to see you again.  But you will breach this order by breaching any of the mandatory terms or any of the special conditions.  And if you do that, that itself is a criminal offence of contravening a community corrections order and that can be punished, I think, by up to a three month term of imprisonment.  But that is not the major sting for you if you breach this order. 

88The sting to it is this, you will find your way back into the dock of this court, because it will not be the Magistrates' Court, you will be brought back to the County Court and I do not imagine you would be looking forward to that, but you would be sitting in the dock, there would be a knock on the door and in through the door would come a judge and it is going to be me, because we deal with our breaches.  We do not give them off to another judge, we deal with our own breaches. 

89You would not have been looking forward at any stage over the last period of time to yesterday, to coming to court.  You did not know what would lie ahead until right now.  And I did not know until late last night and really in the very early hours of the morning, as to whether I would be returning you to prison or not, all right?  So you had a close shave.  I have reached the decision I have reached in the early hours, having reread all the materials and for the reasons that I have announced.  But get this into your head.  I have said it already, but this is your one chance.  Do not come back in breach of this order, looking for another, all right?  I am giving you, right here and right now, the chance to avoid a return to prison. 

90It is up to you as to whether you take it, but if you breach this order, you will be brought back to this court.  As I say, it is not the Magistrates' Court and not any judge, it is in front of me and it will come swinging in with the notes that I have made of the plea from yesterday, with all the materials that have been placed before me, the materials that have persuaded me to do what I am doing and then I will have to deal with you on the breach.  

91It is impossible for me to know exactly what I would do upon a breach of this order and that is because my duty as a judge, is to listen to submissions that are made to me.  I cannot make a judgment ahead of time.  So I would need to understand the nature of the breach that was before me.  Is it a major breach, is it a less significant one?  Had you tried very hard on the order, had you just thrown it away?  Well, I cannot know that now, of course I cannot.   And what
I am hoping is, I will not ever see you again.  But if I see you again in breach, what I cannot do at the moment is forecast exactly what would occur to you.  But it is best that you work on this theory.  That is what it is, it is a theory, but it is best that this is what you keep at the forefront of you mind.  Because court is going to be a long distant event.  It will seem distant by this time next week.  The most commonly exercised power by a judge dealing with a breach of
a community corrections order, is to cancel the order, all right? 

92If the order is cancelled, the judge then has to re-sentence for the offences for which the offender was placed on the order.  So if you are re-sentenced in relation to these offences, all right, so the two offences of property suspected of being proceeds of crime, but more significantly, prohibited person possessing a firearm and theft of a firearm.  So, you should have no expectation of getting a second community corrections order from me.  That would be your fifth such order.  What you should have an expectation of, is that you breach this order and come back and the order is cancelled, you would be sent immediately back to prison.  All right?  And we are not talking about months.

93As I say, I sentenced someone in the not too distant past, to a term of two years' imprisonment for an offence not that dissimilar to this and the difference is the fact that you have had the good fortune to be admitted to bail and then to perform as well as you have in that interim and satisfy a Magistrate and Corrections that you are doing as well as you are.  So be under no illusions.  Work on that theory, that if you breach this order, you are going to go to prison.  So this represents your last chance.  Do not throw it away.  Think of your mother your partner, think of your child, think of yourself and what sort of future is all of that?  And we need never see each other ever again.  I hope we do not. 

94You comply with this order and we will not meet again and that would be a big win, I think, for both of us.  A win for me because it would demonstrate that my disposition was correct.  A win for you for very obvious reasons.  I think you have very good prospects of rehabilitation.  You have committed these undoubtedly serious offences, but I think you are a good bet, in terms of this order.  I have been wrong before and of course, I will be wrong in the future, I am sure of that.  If I am wrong here, I will see you again.  It is pretty straightforward.  But if I see you again, really you best look out.  Do not expect any further leniency. You have had it.  All right.   

95Ms Salter, are you satisfied I have adequately explained the order to your client?

96MS SALTER:  Yes, Your Honour, I am satisfied.

97HIS HONOUR:  All right.  Let me just look at the actual order and I will get him to come down out of the dock.  It is Rokeby Crescent in Craigieburn, is it not?  Rokeby? 

98ASSOCIATE:  Yes, Your Honour.

99HIS HONOUR:  Yes, thanks.  Yes, all right, well that seems to be in order.  Just have a look at that each of you and just satisfy yourself that it fits the bill. 

100Mr Curry, you can come out of the dock and come down and sit behind your counsel there in that front row.  Just grab a seat for a moment.  Yes, all right.  Well look I have signed that order.  Let me just look at these.  Look,
I have got just a litter of paper up here.  I have just gone from one case into the next, Ms Harrold.  Was there a disposal order as well, or not?

101MS HARROLD:  Yes, Your Honour.  That was for the exhibits during the investigation.   

102HIS HONOUR:  Did you hand that up - there we are.  Hold on, what is - - -

103MS HARROLD:  Yes, Your Honour, yesterday.

104HIS HONOUR:  All right, hold on.  I know I have seen it.  There we are.  I think that is it.

Disposal order

105Well, there are a couple of ancillary orders.  One is a disposal order, relating to the bits and pieces on the schedule, some duct tape and a gun case, the green case, a rifle bag, other bits and pieces on the schedule.  There is no issue, in terms of that disposal order being made.  I am satisfied it is open to me to make that order under the provisions of the Confiscation Act. I have signed that order. I direct that, pursuant to s.78 of the Confiscation Act the forfeiture to the State of the property in that schedule and that it be held and disposed of in accordance with the disposal order that I have signed. 

Forfeiture order

106There is likewise a forfeiture order and that has got the right gun.  All the other ones are crossed out and they are the wrong ones, this is the correct one, is it, the Sportco rifle, Serial No.SDB 012? 

107MS HARROLD:  Yes, Your Honour. 

108HIS HONOUR:  All right, well again, there is no opposition to that order being made.  I am satisfied that you are a prohibited person.  I am satisfied you have been found guilty under the Firearms Act and pursuant to s.151 of the Firearms Act, I order the forfeiture of the rifle referred to in that order. 

Section 18PSD

109I better not forget there is a s.18 declaration as well. You have served 139 days in custody, pursuant to these sentences. 

6AAA

110Let me just see.  I believe I am required then to make a s.6AAA declaration.  That is telling you what sentence would have been imposed, had you run a trial.  And the reason I think I have to tell you that, is I have, in part, imposed a prison term upon you.  You have received a very sizeable benefit, owing to your guilty plea and let me reveal to you the dimensions of that discount.  Had you pleaded not guilty and been found guilty by a jury, following a contested trial in relation to these matters, I would have sent you to prison for three and a half years. 
I would have fixed a non-parole period of two years.

111Let me just see if there are any other matters.  Ms Harrold, Ms Salter, are there any other matters that I need to deal with, or overlooked?

112MS HARROLD:  No, Your Honour.

113MS SALTER:  No, Your Honour.

114HIS HONOUR:  No?  All right.  All right, let me just - I might just have you - you will get a copy of this, Mr Curry, when I have left the Bench  If you just stand up, if you would.  

115Can you just confirm then that you have consented to entry into this community corrections order?

116OFFENDER:  Yes, Your Honour. 

117All right.  And you have signed the order and that signifies that you are consenting to it.  You have signed this order?

118OFFENDER:  Yes, Your Honour.  

119HIS HONOUR:  And you obviously consent and you have signed it under the words, "I understand the effect and the conditions of this order and consent to it being made" and that is the position?  You do consent to it?

120OFFENDER:  Yes, Your Honour.

121HIS HONOUR:  All right.  Well, I think you are a fair way down the track towards leaving courts behind, I hope.  I hope you are.  And if you get to the end of this order, if we do not clap eyes on each other again, you will be well and truly on your way in life.  You will be back on the rails that it looks like you left
a couple of years ago.  Make sure you do that, because you have got a lot to live for and you have seen the inside of a prison.  There is no joy there for anyone at all.  Do not talk your way back into that place ever again and the way to avoid that, is to comply with this order. 

122So, stay out of strife.  If you need assistance, get it.  But you have got a lot going for you, including hopefully a job to go to, starting in the not too distant future.  You have got just an infant child as well, a relationship and a supportive family.  You have got no idea how many people I have seen in this court that do not have anything like that, all right?  And you will have seen a fair few of those in your 139 days in custody, who have nothing and no one.  You are not one of them, so you put your best foot forward on this order and let us try and avoid ever meeting again, because if we meet again, it is going to have an unhappy ending, all right? 

123Grab a seat then for the moment and I will sign the order. 

124All right, I have signed that formal order, so that completes the matter then. 

125So we will adjourn then until 9.30 on Monday please.  Thank you. 

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