Director of Public Prosecutions v Cutajar
[2022] VCC 960
•23 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01485
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW CUTAJAR |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 April 2022; 23 June 2022 | |
DATE OF SENTENCE: | 23 June 2022 | |
CASE MAY BE CITED AS: | DPP v Cutajar | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 960 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Burglary; Attempted Burglary; Theft; Handling Stolen Goods; Committing and Indictable Offence Whilst on Bail
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v R (2013) 249 CLR 571; Muldrock v The Queen (2011) 244 CLR 120; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; Worboyes v The Queen [2021] VSCA 169; Akoka v The Queen [2017] VSCA 214.
Sentence: 473 days Imprisonment; 18 month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Goodenough | Office of Public Prosecutions |
| For the Accused | Mr J. Moore | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1Andrew Cutajar, you have pleaded guilty to eight charges of burglary, which carries a maximum penalty of 10 years' imprisonment; one charge of attempted burglary, which carries a maximum penalty of 5 years' imprisonment; six charges of theft, which carries a maximum penalty of 10 years' imprisonment; and one charge of handling stolen goods, which carries a maximum penalty of 15 years' imprisonment. You have also pleaded guilty to one related summary offence of committing an indictable offence whilst on bail, which carries a maximum penalty of three months' imprisonment.
2You have also admitted your criminal record.
Circumstances of offending
3The circumstances of your offending were set out in the Summary of Prosecution Opening for Plea dated 15 June 2022, Exhibit 1 at your plea hearing. That document sets out the agreed factual basis of your offending for which you now fall to be sentenced. Your offending can be briefly summarised.
4In the months of July and November 2020, you took part in a series of commercial burglaries and thefts in company with other persons, the focus of the burglaries being the theft of cigarettes. In total, you were involved in nine incidents involving burglaries or an attempted burglary, together with associated theft and handle stolen goods charges. Following your involvement in the first five incidents, you were arrested, interviewed and bailed. The final four incidents therefore were committed by you whilst you were subject to bail.
5Charges 1 and 2 on the indictment, burglary and theft, relate to the first incident on 8 July 2020 at the Cignall Store in South Yarra. At about 2.30 am on this day, CCTV footage captured a sedan with one headlight pull up in front of the store, and two men enter the store. Cigarette cabinets were forced open and cigarettes to the value of $4,486.96 were stolen. You were one of the two men involved in this incident.
6The second incident took place some 35 minutes later, at 3.10 am on 8 July 2020, when there was an attempted burglary at a business known as TSG at 164 Acland Street, St Kilda, Charge 3 on the indictment. CCTV footage showed the same vehicle with one headlight in the area, and the same two offenders as those involved in the Cignall burglary in the area of the shop with a trolley, one of whom was you. Efforts were made using a crowbar to enter the shop. However, an alarm was triggered and you and the other offender left. You had been observed by a witness attempting to break in and then flee. Police followed the vehicle containing you for a period of time, observing it to be speeding as it went over the West Gate Bridge at approximately 200 kilometres per hour. The repair bill with regard to the attempted burglary on this shop was $2,000.
7The third incident took place approximately 28 minutes after the second incident, at 3.38 am on 8 July 2020, and involved a burglary and theft at a business known as CTC at 229 Bay Street, Port Melbourne, Charges 4 and 5 on the indictment. CCTV footage revealed two offenders in identical clothing to the previous two incidents break into the store, carrying an angle grinder and a large bag or similar. After an unsuccessful attempt to jemmy the front door open, one of the offenders threw a rock through a window, and both offenders forced their way in. You were one of these offenders. You went to the back of the store and jemmied open a storage area where you then stole a large number of cigarettes, the value of which has not been confirmed. The angle grinder brought into the store was left behind. One of the offenders was caught on CCTV wearing a Remixx jumper. A witness heard an alarm and saw the offenders, and she called Tripe 0. DNA analysis of the angle grinder left at the scene implicated you in connection with this item.
8The fourth incident took place two weeks later, at 1.41 am on 22 July 2020 at the Coles store at Hoppers Crossing, Charges 6 and 7 on the indictment, burglary and theft. CCTV footage revealed two offenders jemmying their way into the store, with clothing visible, along with a jemmy and a crowbar. One of those men was you. You and the other offender opened a number of boxes and stole cigarettes to the value of $19,068.76, which were placed in a large green bag. Damage to the value of $4,367.75 was caused to the store through your offending. An employee of the store was present and called police.
9The fifth incident took place approximately 90 minutes later, at 3.15 am on 22 July 2020 at the Coles store in Gisborne, Charges 8 and 9 on the indictment, burglary and theft. At approximately 2.45 am, a black Cherokee with registration number 1EX 5G1 passed through a COVID-19 checkpoint on the Western Highway at Bacchus Marsh despite indications by police to stop. Thirty minutes later, at 3.15 am, CCTV footage from the Coles at Gisborne showed two offenders, including yourself, jemmy open the glass doors before going to the cigarette cabinets carrying a large green bag, where cigarettes to the value of $24,663.06 were placed into the bag and stolen. You and the other offender then left in the Jeep Cherokee. A number of employees were in the store at the time of the incident and observed the burglary and theft. Police arrived at the scene and observed a black Jeep travelling fast through a roundabout. The vehicle was kept under observation for a period of time, and followed by the police Air Wing. The Jeep stopped and three people ran from it. You were the driver at this time, and you were arrested by police and detained, with the other two offenders escaping. You were photographed wearing various items, including a black and white Brooklyn jumper, black and white shoes, a New York Yankees cap and black gloves. The Jeep Cherokee was seized.
10Further investigations showed the vehicle to contain various items, including false number plates from a stolen vehicle, an angle grinder, spare angle grinder blades, a jemmy bar, a screwdriver, a handheld radio, a sledgehammer, various cigarette packs and cigarette shelving pieces. Whilst a subsequent police warrant at your residential address at 107 Copernicus Way, Keilor Downs revealed nothing of relevance, a search warrant also executed on an address at 63 Hillcrest Drive in Hillside revealed various items in your bedroom, including Makita tools, electrical tape, blue painter's tape, and empty registration plate covers.
11You were interviewed by police and made partial admissions, before ultimately being bailed.
12The sixth incident took place some months later on 20 November 2020 at 4.26 am at the IGA store in Westmeadows, Charges 10 and 11 on the indictment, burglary and theft. CCTV footage from this incident showed two offenders breaking into this store, having arrived initially in a Ford Mustang. Entry was gained by jemmying open the rear door and then going to the cigarette cabinet. Clothing can be clearly seen on each of the offenders, including a Remixx jumper in relation to one of the offenders. One offender carried a jemmy bar and a battery-powered angle grinder. A large black bag or similar can also be seen. The amount of $2,000 was stolen by one of the offenders in coins. The cigarette cabinet was then opened and the two offenders put the cigarettes into the bag. The value of cigarettes stolen was $12,998, together with $1,400 cash. The value of damage to the store amounted to $7,443.44. At 4.30 am, a black Mustang entered the carpark and the bag containing the cigarettes was loaded into the car and the offenders, including yourself, left in that car. Subsequent arrival and investigation by police revealed a large screwdriver and jemmy bar left behind.
13The seventh incident took place three days later at 2.51 am on 23 November 2020 at the Coles store in Lalor, Charge 12 on the indictment, burglary. CCTV footage from council cameras in the area showed a black Ford Mustang arriving with two offenders getting out, one from the passenger seat and one from the rear, wearing clearly visible clothing. These two offenders walked to the Coles store and then returned to speak to the driver of the Mustang, the driver being yourself. The two offenders then took a large green waste bag from the rear of the Mustang and broke the front door of the Coles store with the jemmy bar they had with them. CCTV footage from inside the store and from Liquorland showed the efforts made to open a self-service register inside Coles without success. Attempts were made to access the register in the Liquorland area. Nothing was stolen and the offenders left, picked up by the Mustang. The value of damage to the store has not been confirmed.
14The eighth incident took place approximately 90 minutes later at 4.18 am on 23 November 2020 at the Woolworths store in St Albans, Charge 13 on the indictment, burglary. Similar to the previous incident, CCTV footage from Woolworths showed a black Mustang arriving, two offenders entering the store wearing clearly visible clothing, one carrying a jemmy bar and a large green waste bag. The two offenders go into the cigarette cabinets but smoke security is deployed and the offenders leave without removing any items, re-entering the Mustang and leaving. You were the driver of the Mustang and did not enter the store. Damage of $562.10 was caused to the store.
15The ninth and final incident took place two days later on 25 November 2020 at 4.15 am at the IGA store in Fraser Rise, Charges 14, 15 and 16 on the indictment, burglary, theft and handling stolen goods. Police surveillance commenced at around 8.10 pm on the evening of 24 November 2020. This surveillance involved observations of a number of vehicles, a black Audi, a blue Commodore, and a black Mustang, together with various individuals connected with these vehicles. At 4.12 am on 25 November 2020, police observed two occupants of the Mustang get out of the car, go to the boot and then go to the rear of the IGA at Fraser Rise. CCTV footage from the IGA store showed the two offenders take tools and a green bag from the Mustang, while the driver remains. It is accepted by the prosecution that you were the driver and did not enter the store.
16The two offenders can be seen from the CCTV footage wearing clearly visible clothing, and also in possession of a red-handled jemmy bar, an angle grinder and a large green bag. The two offenders broke into the store and broke open the cigarette cabinet, stealing a large quantity of cigarettes before placing them in a green bag and exiting the store. The Mustang, with plates ZSD 157 then left the area.
17Further police surveillance occurred with regard to the Mustang, the blue Commodore and the Audi, with the blue Commodore ultimately being driven to a property in Cardigan Street, Carlton. The Audi attended outside the property and you entered the apartment complex, having earlier been involved in the burglary and theft from the IGA at Fraser Rise. Having been observed by police removing some black garbage bags, and returning back into the apartment, upon your subsequent exit from the apartment at 7.30 am and walking towards the Audi with another man, you were arrested by police. Found in your possession were various items including a Mustang car key. Car keys to the Audi were dropped to the ground by you. Two black bin bags were located near the apartment complex containing cigarettes.
18A subsequent police search of the property at Cardigan Street, Carlton revealed cigarettes and a black duffel bag containing a large green bag, red hammer, red jemmy bar and black clothing and gloves. The total known value of the theft of cigarettes is $61,216.78, and the total known value of cash stolen is $3,400. The total value of known repairs to the premises is $14,373.29.
19Up to, but not including, the date of sentence, you have been in custody for 473 days in respect of these matters. Having been remanded in custody on 25 November 2020, I granted you bail on 5 August 2021, before bail was revoked on 11 November 2021 and you were remanded in custody. With the consent of the prosecution, and due to extenuating circumstances, the details of which I will shortly outline, you have also had two periods of five days' bail in April and May this year. By agreement, therefore, there are 473 days' pre-sentence detention attributable to this matter.
Nature and seriousness of your offending
20As conceded by your counsel in written and oral submissions, your offending must be seen as representing objectively serious examples of the offence of burglary. There was clearly a degree of organisation and planning. Commercial premises were targeted and there was a component of coordination in the sense that cigarettes were primarily sought as opposed to simply targeting random property. The total value of the thefts was significant. Likewise, the associated damage to the commercial properties was also not insignificant. You were an active participant in these commercial burglaries and thefts.
21Whilst it is accepted in relation to Charges 12, 13, 14 and 15 that you did not personally enter the premises, you were the driver of the vehicle used in the offending and, accordingly in my view, were an integral participant in the burglaries and thefts. For the final four incidents, Charges 10, 11, 12, 13, 14, 15 and 16, you were subject to bail, and your continued involvement in this serious criminality in these circumstances represents an aggravating feature of your offending with regard to these charges.
Personal circumstances
22Turning now to your personal circumstances, you are now 43 years of age. You grew up in Melbourne with your two older sisters, Vicky and Frances. You are close to your sister, Vicky. It is fair to say that your upbringing was substantially deprived. Although subsequently clean for a period of some 20 years, your mother, Rose, apparently struggled with drug addiction for some time. Your father was physically abusive. Your parents separated when you were aged between 10 and 15, and you have apparently not spoken to your father now for many years. You spent significant portions of your childhood in foster care. You suffer from an intellectual disability, though this was not diagnosed until 2012, when you were in your early thirties. Throughout your childhood and younger years, you have struggled with concentration, reading and writing. You had to repeat Year 7 twice, and ultimately did not pass this level, your highest academic milestone. Subsequent to your education, you have undertaken some training including to obtain a forklift licence, and some adult literacy courses, resulting in an improved level of literacy on your part now.
23Unsurprisingly, you have a limited employment history, working in a variety of manual roles including irrigation at Melbourne Water, as a painter, a general labourer and packing. For in excess of 10 years you have been in receipt of a disability support pension.
24You have a considerable substance abuse history dating back to when you were 16, when you started drinking alcohol to excess and smoking cannabis. You started using heroin at the age of 18, and you were a daily user of that drug until you were about 22. You have used speed and methamphetamine from the age of 17, then ceasing for a period, but from the age of 27 you began using methamphetamine regularly, and you have used that drug regularly since, punctuated with periods of abstinence. You have also used Xanax and GHB to excess regularly throughout your twenties and thirties.
25You have an extremely substantial and concerning criminal history, running to some 34 pages. Your criminal history commences in 1995 in the Children's Court, when you were aged 15. Illicit drug use and dishonesty offending features heavily in your criminal history. You have an extensive history with community correctional services, having received 10 previous orders including Community Based Orders, Community Correction Orders and parole.
26Between the years 2007 and 2022, approximately 60 per cent of your time has been spent in custody. In 2018, you received a Drug Treatment Order in the Magistrates' Court and, to your credit, you successfully completed this extremely intensive and onerous order. As the exit report with respect to this order makes clear, there were considerable periods of drug abstinence on your part, mainly during your stay The Cottage in Shepparton. However, it is clear that drug usage has been a significant problem for you throughout most of your adult life.
27You have four sons to your partner, Charmaine: Noah, aged seven; Elijah, aged six; Xavier, aged four; and Jacob, aged two. The children have all had involvement with the Department of Health and Human Services, partly due to your episodes of incarceration and partly due to problems their mother has had with drugs. Sadly, it seems that both you and Charmaine have struggled with drug addiction and the associated problems, and your relationship has tended to fluctuate from loving and functional to quite toxic.
28I was informed that in the lead-up to the offending period you were struggling again with drug addiction in the form of methamphetamine use following a breakdown in your relationship, and falling back in with old peer associations which led to further drug use and ultimately criminality.
Level of responsibility and culpability for your offending
29The Sentencing Act 1991 requires me to have regard to your level of responsibility and moral culpability for your offending in the formulation of an appropriate sentence in your case. In my view, your offending in the face of your extremely extensive criminal history accentuates your culpability for the serious criminality for which you now fall to be sentenced.
30As I have previously stated, I regard your involvement in this offending as being integral. Whether you entered the stores or not, you played an essential part in the commission of these commercial burglaries. For the final four incidents, you were subject to a grant of bail, increasing your level of culpability for your offending.
31As accepted by the prosecution, your socially deprived upbringing is relevant to an assessment with regard to your moral culpability for your offending. Pursuant to the well-known Bugmy[1] principles, your history of social deprivation means that your moral culpability for the offending is reduced.
[1]Bugmy v R (2013) 249 CLR 571.
32In my view, your intellectual disability is also relevant with regard to an assessment as to your moral culpability for your offending. According to the neuropsychological report of Dr Linda Borg, dated 7 August 2012, Exhibit B at your plea hearing, you demonstrated a pattern of globally reduced cognitive skills, with a full scale IQ of 69, placing you within the range of an intellectual disability. You are prone to impulsive behaviour. According to Dr Borg, you are quite vulnerable and would more than likely be easily influenced or swayed given your impaired insight and judgment. You often rush into things without truly considering the consequences, and your memory performances suggest that you will be slow in your ability to learn from mistakes. Your capacity to make reasoned and informed choices and to have the foresight to consider the consequences of your actions is impaired, and these impairments are likely to be heightened when you are under the influence of drugs and your inhibitions are diminished even further.
33Whilst the report of Dr Borg clearly predates your offending, and it seems was commissioned generally with regard to an assessment as to whether or not you have an intellectual disability, in my view, the matters referred to by Dr Borg with regard to your level of functioning are relevant as to an assessment of your moral culpability for your offending.
34Furthermore, on the topic of your intellectual disability, pursuant to the well-known Muldrock principles,[2] the need for any sentence to reflect the principles of retribution and denunciation is reduced due to your intellectual disability.
[2]Muldrock v The Queen (2011) 244 CLR 120 at [54].
Sentencing factors, principles and purposes
35The Sentencing Act 1991 requires me to have regard to various factors, principles and purposes when formulating an appropriate sentence in your case. I have already referred to the maximum penalties, the nature and seriousness of your offending, your level of responsibility and culpability, and your previous character and matters personal to you. I have also considered current sentencing practices for the offences for which you now fall to be sentenced. While sentences of other courts are not binding precedents but are merely historical statements of what has happened in the past,[3] and current sentencing practices represent just one of the relevant sentencing factors to be considered, clearly, sentences for burglaries of this nature have on occasion involved significant sentences of imprisonment.
[3] Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 at paragraph [83]
36As conceded by the prosecution, a significant mitigatory factor in this case relates to your plea of guilty. Your matter resolved to a plea of guilty before me following a sentence indication on 8 April 2022, after the matter had been referred to case management in the context of the COVID-19 pandemic and the extraordinary impacts upon the administration of criminal justice in this Court. As was clear from the sentence indication hearing, the scope of the prosecution case against you was significantly reduced through plea negotiations, as you originally faced allegations regarding 18 burglaries as opposed to the eight burglaries now before me by way of example.
37Your plea of guilty in these circumstances, which must, given the reduced scope of the prosecution case against you, be seen as a relatively early plea of guilty in the circumstances, has a very significant utilitarian value. Had this matter proceeded to trial, a significant amount of court time would have been required, and a significant amount of preparation work by the prosecution would have been required. Multiple witnesses would have been required to give evidence. As is now well-known, this Court is grappling with massive backlogs of trials caused by the COVID-19 pandemic.
38As emphasised in the decision of Worboyes,[4] a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic. A significant sentencing discount is therefore required due to your plea of guilty.
[4]Worboyes v The Queen [2021] VSCA 169 at [39]
39As is clear from the chronology attached to the Summary of Prosecution Opening, you spent some 90 days on bail between 5 August and 11 November 2021, where, for a significant period of time, you resided pursuant to your bail conditions at The Cottage, a drug and alcohol residential facility in Shepparton. Ultimately, you were exited from The Cottage due to some behavioural and compliance issues, which resulted in your bail being revoked by me on 11 November 2021. However, I accept that whilst residing at The Cottage you were in a fairly restrictive environment where your freedom of movement was heavily limited, warranting a mitigatory allowance pursuant to the decision of Akoka.[5] Furthermore, your time at The Cottage demonstrated to me your desire, and to some degree, ability to engage in rehabilitative and therapeutic activities, and in combination with your previous successful completion of an Intensive Drug and Alcohol Treatment Order between 2018 and 2020, these matters are relevant as to an assessment regarding your prospects of rehabilitation.
[5]Akoka v The Queen [2017] VSCA 214.
40You have spent a significant period of time in custody in relation to these matters, between November 2020 and August 2021, and then from November 2021 until today, save for two short periods of bail. I accept that in the context of the COVID‑19 pandemic, your time in custody has been arduous, warranting a further sentencing discount. As is now well-known, the impacts of the pandemic have been keenly felt in the custodial setting, with reduced freedom of movement, significant restrictions upon family visits and contact, and restrictions with regard to access to employment and access to therapeutic activities. Furthermore, those in prison have had to live with the anxieties associated with the consequences of COVID-19 entering the prison environment, with the compromised demographic. You have been unable to have in-person visits, and you have been subject to random lockdowns within the prison system. In all the circumstances, I accept that your experiences so far in prison have been more burdensome as a result of the pandemic, resulting in a further mitigatory allowance.
41In particular, earlier this year you learned of your mother's diagnosis of terminal pancreatic cancer. I have no doubt that your mother's diagnosis caused you great stress and anxiety, particularly given your incarceration and therefore inability to meaningfully support your mother, and have contact with her during this critical time.
42Between the period of February to May this year, your mother deteriorated quickly. Due to these extenuating circumstances, and with the consent of the prosecution, I bailed you on 26 April 2022 for a period of five days, essentially so that you could say goodbye to your mother. Following the passing of your mother in May 2022, I again bailed you for a period of five days, again with the consent of the prosecution, on 18 May 2022, so that you could attend your mother's funeral. Particularly given your level of functioning and other personal challenges, I accept that the circumstances of your mother's illness and ultimate passing would have significantly increased the hardship of your custodial circumstances, warranting a further mitigatory allowance.
43Notwithstanding your extremely difficult history, your extensive and troubling criminal history, and the nature and seriousness of your current offending, your prospects of rehabilitation are certainly not extinguished. Indeed, in all the circumstances, I have some hope that you have both the ability and desire to grasp the rehabilitative opportunity about to be given to you.
44As I have said, you have demonstrated your rehabilitative ability through your completion of the Drug Treatment Order in 2018. You have also demonstrated whilst on bail for this matter an ability to engage in a relatively sustained period of rehabilitation in a structured environment at The Cottage. I accept that your desire to have contact with your four children remains a significant motivating factor for you with regard to your rehabilitation. Significantly, I regard your compliance with the two recent brief periods of bail in the context of your mother's illness and passing, no doubt in highly stressful personal circumstances, to represent a significant and positive factor with regard to your prospects of rehabilitation. That you would comply with these bail periods, and voluntarily surrender yourself into custody, very much stands to your credit and will be reflected in the sentence I am shortly to impose.
45Furthermore, as highlighted in the recent Disability Overview Report dated 8 June 2022 from the Department of Families, Fairness and Housing, you have been in receipt of NDIS funding and a plan since November 2021, with a support coordinator, Ms Tracey Barbara, from Phoenix Specialised Youth and Disability Service. Ms Barbara's role is to ensure that you are well-linked with informal mainstream and community supports, planning implementation to facilitate social and economic participation, to maximise opportunities for capacity building, skill development and independence and assistance with any points of crisis.
46According to the Disability Overview Report authored by Carmen Rembold, you plan to move in with the youngest of your two older sisters upon your release from custody. Since the death of your mother, you have rekindled your relationship with your other sister and her husband, and her husband apparently spoke with you at your mother's funeral and offered to assist you with potential employment in traffic control in the future. Apparently, you met up with cousins, uncles and aunts from your mother's side of the family at your mother's funeral, and you have indicated that these people are all good role models and you are hoping to continue your association with them.
47You reported to Ms Rembold a strong motivation to work with Child Protection with regard to future contact and re-engagement with your children. Ms Rembold also indicated that you “expressed a strong desire to change (your) life around” and that you “mentioned (you) made (your) mother a promise (you) would stop using drugs and maintain healthy family relationships and (you) are determined to keep this promise”.
Parties' submissions
48Your counsel submitted, in all the circumstances, that a combination sentence involving a term of imprisonment followed by a Community Correction Order, noting your considerable period of pre-sentence detention to date, was warranted. The prosecution in this case submitted that a combination sentence involving a term of imprisonment followed by a Community Correction Order would be within range.
49In light of those submissions, I ordered that you be assessed as to your suitability for a Community Correction Order with a Justice Plan condition, given your intellectual disability. The assessment report with regards to your suitability for a Community Correction Order is authored by Tessa Barbari. The relevant reports have subsequently been provided by the Department of Justice and Community Safety and the Department of Families, Fairness and Housing.
50Whilst the Community Correction Order Pre-Sentence Report notes some concerns with regard to whether or not a community-based disposition would be a sufficient deterrent for you to mitigate your risk of re-offending, and the report does not specifically indicate whether or not you are suitable for a Community Correction Order, various conditions are recommended by the author of that report with regard to a Community Correction Order. I have already referred to the Disability Overview Report, which I find generally to be positive in nature. In addition to providing the statement of intellectual disability, Ms Rembold also provided a Justice Plan with various recommendations given your intellectual disability. I have read and considered those documents carefully.
51Yes, thanks, Mr Cutajar. Could you please stand? Just bear with me for one moment please.
Conclusion
52The offending in which you engaged, Mr Cutajar, as I have stated, was extremely serious and concerning. Given your extensive criminal history, there is a need for any penalty to specifically deter you from future misconduct of this nature. Notwithstanding your intellectual disability, there is also a need for any penalty to deter others in the community from engaging in such conduct.
53However, in all the circumstances, and in particular given the significant sentencing discount applicable due to your plea of guilty in the COVID environment, I am satisfied that a combination sentence involving a term of imprisonment not exceeding time served, together with an appropriately constructed Community Correction Order, will best meet the various sentencing factors, purposes and principles in your case. What that means, Mr Cutajar, is you will be released today.
54Given your substantial period on remand, I have decided not to impose a punitive condition with regard to community work. However, the order will be extensive and the obligations upon you will be significant.
55In relation to all charges on the indictment, together with the related offence of committing an indictable offence whilst on bail, you are convicted and sentenced to 473 days' imprisonment.
56Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 473 days has been served by way of pre-sentence detention.
57Furthermore, in relation to all charges, I order that you undergo and complete a Community Correction Order. That order will commence today upon your release from custody. The order will run for 18 months.
58The mandatory conditions attaching to all Community Correction Orders are that:
·You must not commit another offence for which you could be imprisoned during the time that the order is in force;
·You must comply with any relevant obligations or requirements;
·You must report to, and receive visits from Corrections;
·You must report to the Community Corrections Centre nearest to you, that centre being in Sunshine, within two clear working days of the order starting;
·You must let a community corrections officer know within two clear working days of you changing your address or job;
· You must not leave Victoria without first getting permission to do so;
· You must obey all lawful instructions and directions.
59In addition to the mandatory conditions attaching to all Community Correction Orders, you will be subject to the following conditions:
· You must be under the supervision of a community correction officer for a period of 18 months;
· You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager;
· You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager;
· You must participate in the services specified in a Justice Plan for the duration of the order;
· You must comply with judicial monitoring. You must reappear at this court before me for a review of your compliance with the order as directed by the court. You must attend for your first review hearing on Thursday 22 September this year at 9.30 am.
60Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty at trial, I would have imposed a total effective sentence of three years' imprisonment with a non-parole period of two years.
61Finally, I will make the Disposal Order as amended by the Prosecution, the making of that order not being opposed by you.
62Before I turn to Mr Cutajar directly with regard to the Community Corrections Order, firstly, Mr Goodenough, any ambiguities or has anything been missed with regards to the sentence?
63MR GOODENOUGH: Not that I see, Your Honour, no.
64HIS HONOUR: Mr Moore, same question to you.
65MR MOORE: Nothing, Your Honour, no.
66HIS HONOUR: All right. Now, Mr Cutajar, you've had one of these orders before so you know what's involved but I'm going to make this as clear as possible. This order starts today the moment you're released from custody. It's going to run for 18 months. The only way that I can impose this order is if you agree to it. The only way you can agree to it is if you understand what your obligations are and what the consequences are should you breach it. Your obligations are that you comply with each and every one of these mandatory and other conditions attaching to the order. So it's 18 months. For the entirety of that 18-month period, you will be subject to supervision; treatment and rehabilitation conditions; offender behaviour management condition; importantly, a justice plan, given your intellectual disability. And I'm going to monitor you on this order regularly.
67OFFENDER: Yep.
68HIS HONOUR: Your first review hearing will be before me on 22 September. If you breach any of these conditions without reasonable excuse, so by way of example, you commit an offence punishable by gaol, you don't turn up to your appointments, you don't turn up to a judicial monitoring hearing, you don't comply with drug testing, you can be prosecuted for breaching this order. The maximum penalty for breaching an order of this nature is three months' imprisonment but importantly, I have other powers under the Sentencing Act 1991 which include cancellation of the order and re-sentencing. And as you know, the powers that I have on sentencing given the maximum penalties are significant. Do you understand what's required of you on this order or would you like the opportunity to speak with Mr Moore briefly?
69OFFENDER: No, I understand. Yep.
70HIS HONOUR: All right. Knowing all of that, do you agree to comply with this order?
71OFFENDER: Yes, I do.
72HIS HONOUR: Yes. Mr Moore, are you content that your client has indicated informed consent to - - -
73MR MOORE: I am.
74HIS HONOUR: Yes. All right. Thanks. The order will be taken down to you for signing. Mr Moore, perhaps if you could accompany my associate down to the back of the court.
75HIS HONOUR: I've signed that order. Mr Cutajar, you may or may not have had this explained to you already but you will need to go back downstairs for the process of being released.
76OFFENDER: Yep.
77HIS HONOUR: That will happen fairly quickly. My associate will process the paperwork immediately. I'm not exactly sure of the logistics downstairs, but I would expect that it wouldn't take long for this process to occur and you will, it is my expectation, be released from the cells area into the community to commence your Community Corrections Order.
78OFFENDER: Yep.
79HIS HONOUR: I want to say this to you. You've had these orders before, and indeed, you've had court orders before that you've breached including my order when I bailed you to The Cottage. Can I implore you, can I stress to you in the strongest possible terms the way for you to stay out of gaol is for you to follow this order to the letter?
80OFFENDER: Yep.
81HIS HONOUR: If you're having troubles, if you're stressed, if you're feeling like you're about to fall off the wagon so to speak, you need to make contact with people. You have a number of people that are in your corner now to try and help you stay in the community. Please speak up. Don't just let things ride because you'll end up - if you don't talk about it - back precisely where you are.
82OFFENDER: Yep.
83HIS HONOUR: You've got a very long pattern of serious criminal offending behind you. I suspect it's related to the people that you've been hanging around with. Perhaps it's time to make new friends so to speak. Keep it simple. Maybe write it down or have someone write it down and put it somewhere prominent where you're living.
84OFFENDER: Yeah.
85HIS HONOUR: You made a promise to your mum.
86OFFENDER: M'mm.
87HIS HONOUR: Keep that promise.
88OFFENDER: Yep.
89HIS HONOUR: I do not want to get reports, and I'll get them. I'll know pretty quickly if you're mucking up. I don't want to get reports saying that there's problems.
90OFFENDER: Yep.
91HIS HONOUR: Don't think that the leniency that I'm show you today will continue if you muck up.
92OFFENDER: No. Yep.
93HIS HONOUR: I won't hesitate. So the ball's in your court. Yes?
94OFFENDER: Yep. Thank you, Your Honour. I just want to say thanks for letting me out for five days to see Mum. It meant a lot, yeah.
95HIS HONOUR: All right. Well, hopefully you'll repay that favour so to speak by doing the right thing on this order.
96OFFENDER: Yeah, thank you.
97HIS HONOUR: Yes. Thanks. Mr Cutajar can be removed and hopefully that process will commence pretty quickly. Thanks again to both of you. Thanks.
98MR MOORE: As Your Honour pleases.
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