Director of Public Prosecutions v Deans

[2023] VCC 2331

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01362

DIRECTOR OF PUBLIC PROSECUTIONS

v

KELLY DEANS

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JUDGE:	HER HONOUR GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2023
DATE OF SENTENCE:	11 December 2023
CASE MAY BE CITED AS:	DPP V DEANS
MEDIUM NEUTRAL CITATION:	[2023] VCC 2331

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Intentionally Damage Property; Aggravated Burglary (Person Present); Common Law Assault; Unlawful Assault

Legislation Cited:      Sentencing Act 1991

Cases Cited:Bugmy V R (2013) 302 ALR 192; R vVerdins & Ors (2007) 16 VR 269

Sentence: Convicted and Sentenced to an aggregate sentence and placed on a 2 year Community Corrections Order – s6AAA: 20 months imprisonment with a non-parole period of 14 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr F. Cameron	Office of Public Prosecutions
For the Accused	Mr D. De Witt	Greg Thomas Barristers & Solicitors

HER HONOUR:

1Kelly Deans, you have pleaded guilty on indictment to charges of intentionally damage property, aggravated burglary (person present) and common law assault. You have also pleaded guilty to two related summary offences of unlawful assault. You prefer to be known as Kinta Zwar-Manu.

2In sentencing you for these crimes, I must have regard to the maximum penalties for the offences you have committed. Those maximum penalties are as follows:

·     Intentionally damage property – 10 years imprisonment

·     Aggravated burglary (person present) – 25 years imprisonment

·     Common Law assault – 5 years imprisonment

·     Unlawful assault – 3 months imprisonment

3These maximum penalties reflect the seriousness with which Parliament regards each of these offences.

4

The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening for Trial/For Sentence Indication Hearing' dated

28 October 2022. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

5I will not repeat the entire summary as it is a matter of record but in brief terms your offending that gives rise to these charges occurred on 11 June 2021. Your son, Tokarua Ioane-Kaitara has also been charged with offences arising from the same event.

6At the time of the offending, you had been residing with your son at Thompson Street, Clayton for approximately 18 months. The victims of your offending lived next door to your residence located at the rear of a sub divided block. The four victims were Maurice O’Reilly aged 78 years, Maria O’Reilly aged 71 years, Kathleen O’Reilly aged 48 years and Anthony Fara. Anthony is Kathleen O’Reilly’s son, was 23 years of age, and suffered from ADHD and autism.

The Offending

7On Friday 11 June 2021, at approximately 10:00 pm, the victims were in their address with Mr O’Reilly’s sister in law, Klethilda Shaw.

8Mr O’Reilly walked Ms Shaw out the front of the block to say goodbye to her. As she was pulling out of the driveway, you and Mr Ioane-Kaitara climbed onto the dividing fence between the properties and started abusing Mr O'Reilly. You kept yelling 'I want my fucking phone back'. Mr O'Reilly responded 'I don’t have your phone' and walked back into his house. You and Mr Ioane-Kaitara also claimed that Mr Fara had killed your dog.

9This scared Mrs Shaw into returning into the house with Mr O’Reilly and they called Triple 0.

10At approximately 10:20 pm, Senior Constable Mallory Inger and Constable Cian Hutter responded to the call. On arrival, they observed you and Mr Ioane-Kaitara verbally abusing the O'Reilly family over the fence.

11You presented as aggressive, hostile and alcohol affected. You continued to state that Mr Fara had killed your dog and stolen your phone.

12Police told you not to engage any further with the O'Reilly family and returned to Oakleigh police station. Constable Hutter proceeded to make a Personal Safety Intervention Order application and contacted Mr O'Reilly advising him of such.

13At approximately 11:05 pm, you and Mr Ioane-Kaitara presented at the gate of the O'Reilly's driveway rattling the gate and yelling out for Mr Fara. You then approached the house and began to smash the pot plants which were on the front porch.

14Mr Ioane-Kaitara then picked up an ornament from the front porch and threw it at the front lounge room window, causing it to break. At this time, Mr O'Reilly, Maria O'Reilly and Kathleen O'Reilly were present inside the lounge room.

15At the same time as Mr Ioane-Kaitara was breaking the window, you were at the front door trying to access the house, damaging the front security door grille.

16Mr Ioane-Kaitara began yelling 'Anthony where are you?' and began to rant about his dog being killed. He then stuck his upper body through the window, picked up a marble coffee table and threw it, cutting his head which bled significantly.

17Kathleen O'Reilly left the front lounge room and took Mr Fara into one of the rear rooms. Mr Fara was highly distressed.

18Mr Ioane-Kaitara began to make threats to Mr O'Reilly saying 'If you call the cops, I'll fucking kill all of you' and spat at him with the saliva landing on Mr O'Reilly's face.

19The Crown accept that you were not standing near Mr Ioane-Kaitara when he broke the window, threw items inside the house and spat on Mr O'Reilly as you had moved to the front door of the premises.

20You approached the front broken window and stood next to Mr Ioane-Kaitara and said to the victims 'We'll kill the whole fucking lot of you!' and 'We'll kill you, I know you called the cops'.

21By this stage, the lounge room curtain had been ripped off the rail and both you and Mr Ioane-Kaitara were leaning through the smashed front window and continued to make threats. Mr O'Reilly, fearing for his family's safety, called Triple 0.

22These facts form the basis of Charge 1 - intentionally damage property particularised as a window, coffee table and curtains, Charge 2 - aggravated burglary, Charges 3 & 4, the common law assault of Maurice & Maria O’Reilly and the two related summary offences encompassing the unlawful assault of both Kathleen O'Reilly and Anthony Fara.

Arrest and Record of Interview

23At approximately 11:16 pm, Senior Constable Inger and Constable Hutter re‑attended the address. They observed extensive damage to the front of the property, including the broken pot plants and smashed front windows. Police observed you and Mr Ioane-Kaitara standing next to each other and clearly leaning through the smashed front window, reaching in with your arms and still yelling at the victims.

24Police demanded that you and Mr Ioane-Kaitara step away from the window. Neither of you complied. Additional police were requested.  You were physically removed by police from the window and subsequently arrested.

25At approximately 11:45 pm, you were conveyed to Box Hill police station where you were lodged in the cells and given five hours to recover from intoxication.

26At approximately 5:24 am on 12 June 2021, you were interviewed by Police. You continued to re-iterate allegations in relation to your dog being poisoned two weeks prior, but otherwise made 'no comment' statements in relation to the offending.

Property Damage

27Allianz Insurance sent an assessor to the O'Reilly residence. The cost of repair and replacement was quoted as $23,704.74.

Offence gravity and victim impact

28The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crimes on them.

29Maurice O'Reilly, Maria O'Reilly and Kathleen O'Reilly have each provided a victim impact statement and I have had recourse to the admissible portions or contents of those documents.

30Maurice O'Reilly speaks of experiencing chest pain directly after the attack and needing to attend hospital. Since the attack he has had trouble sleeping and is therefore tired the following day, this affects his relationship with others. Loud noises make him edgy, and his general feeling of well-being and enjoyment of life has been diminished. He felt helpless being unable to protect his other family members.

31Maria O'Reilly was devastated by the damage caused to their home, particularly since they had only recently spent money upgrading the premises and had been happy with fixing up their home. With COVID restrictions and waiting for the insurance company to respond they spent a lengthy period waiting for the damage to be corrected. This increased her stress and anxiety. She found the attack itself terrifying.

32Kathleen O'Reilly found herself in a particularly difficult position. She was trying to care for her terrified son, Anthony, in the back room whilst at the same time being naturally concerned for her parents in the front of the house and being subject to attack. She felt powerless in the circumstances. After the attack she found herself to be depressed and crying and had difficulty returning to work for a lengthy period of time.

33The victim impact statements were read to the court so the effects of your offending on the O'Reilly’s is known to you.

34This is obviously serious offending.

35Whilst not said to be aware of Mr Fara's disabilities, his family were and it added to their distress. Mr Fara was clearly terrified. You would have had some awareness that two of the O'Reilly’s were elderly given they had been your next door neighbours for some 18 months. 

36You had created a nuisance of yourself over the day in question and had been warned off by Police, yet you persisted.

37You attended their premises in company late in the evening in an extremely aggressive fashion, which included threats to kill. Whilst those threats are not the subject of charge, they are part and parcel of your violent presentation at the O'Reilly premises and the assault-based charges.   

38Your attendance at the premises the subject of these charges was recorded and played to the court. Your behaviour was irrational and appalling.  Photos of the damage show a scene of devastation and destruction.

39Fortunately, your physical entry to the premises was limited to your upper body and there were no actual injuries caused to any of your victims – which of course would have been the subject of separate charge. Whatever dispute you say you had with your neighbours it appears to be entirely ill conceived and your actions on 11 June 2021 were not the way to resolve them.  This was a targeted attack on the home in which the O'Reilly's had resided for some 14 years and they were entitled to feel safe. You have destroyed the sanctity of their domain.

40Principles of general deterrence, specific deterrence, denunciation and protection of the community loom large in the sentencing task.

Plea of Guilty

41The Sentencing Act 1991 obliges me to take into account the stage at which you entered your guilty pleas.

42Your plea of guilty is conceded to be at a relatively early stage. Whilst listed for committal proceedings you did not ultimately seek to cross examine any witnesses and you were committed for trial. The matters have now ultimately resolved.

43Your plea was entered in August of this year and has saved the court the time and expense of contested proceedings as well as the victims having to relive what were obviously traumatic events.

44There is additional utilitarian value in your plea which was at a time when the court was still responding to the backlog created through the COVID‑19 pandemic.

45Remorse is somewhat harder to discern but I accept that you do take responsibility for your offending.

46These factors will be taken into account in your favour.

Criminal History

47Your prior criminal history does form part of your personal circumstances.

48You have what can only be described as an extensive criminal record spanning 11 pages, 30 years and approximately 24 court appearances. Your criminal history includes drug-related offending, dishonesty, violence, driving offences and an inability to comply with court orders which include bail, family violence intervention and sentencing orders.

49I do not intend to recite the entirety of that record, but of relevance to the sentencing exercise before me are several appearances.

50On 11 August 1994, at the Warrnambool Magistrates Court, you answered to charges to theft, intentionally or recklessly cause injury and make false report to police. You were convicted and sentenced to 2 months imprisonment, wholly suspended for 12 months.

51On 1 September 1999, you appeared before the Melbourne County Court for two charges of armed robbery, robbery and obtaining property by deception. You were convicted and sentenced to a total effective sentence of 2 years and 6 months imprisonment with a non-parole period of 1 year and 3 months imprisonment.

52On 13 February 2004, you appeared before the Ringwood Magistrates Court for three charges of obtain property by deception and one charge of wilfully damage property. You were convicted and sentenced to a nine month Community Corrections Order.

53On 19 October 2004, you appeared before the Dandenong Magistrates Court for charges relating to assault police, stalk another person, make threat to kill, breach intervention order, assault with a weapon and criminal damage. You were convicted and sentenced to 10 months imprisonment wholly suspended for 12 months.

54On 5 February 2007, you appeared before the Melbourne County Court for charges relating to reckless conduct endangering serious injury, aggravated burglary, criminal damage and intentionally cause injury. You were convicted and sentenced to 12 months imprisonment with a non-parole period of 6 months imprisonment.

55On 5 November 2007, you appeared before the Melbourne County Court for charges relating to intentionally threaten serious injury and recklessly cause serious injury. You were convicted and sentenced to five months imprisonment.

56Your last terms of immediate imprisonment were in 2007.

57There was then a gap in your offending between 2007 and 2011.

58On 21 February 2011, you appeared before the Dandenong Magistrates Court for charges relating to reckless conduct endanger serious injury, recklessly cause injury and contravene family violence intervention order. You were convicted and sentenced to 6 months imprisonment to be served by way of an Intensive Corrections Order.  You failed to comply with that order.

59There was a gap then in your offending between 2014 and 2019.

60On 20 June 2019, you appeared before the Moorabbin Magistrates Court in relation to one charge of use a carriage service to harass. You were convicted and released on a $100 recognisance release order for 6 months requiring you to be on good behaviour.

61Whilst not to be punished for your criminal history a second time, it is relevant to the assessment that needs to be undertaken by me as to the weight that should attach to specific deterrence, denunciation and protection of the community, all of which do carry importance in your sentencing exercise.  It is also relevant to the assessment as to your prospects for rehabilitation. 

62Your criminal history reflects relevant offending over an extended period of time.  There have however been periods of time when you have complied with the community's expectations.

Personal Circumstances

63Turning now to your personal circumstances - which have been outlined in Defence Submissions and the psychological assessments of Consulting Psychologist, Ms Gina Cidoni.

64You are now 48 years of age and are a Torres Strait Islander woman. You were born and raised in Warrnambool by your mother and stepfather. You never met your biological father as he left prior to your birth, however you commenced a relationship with him in your adult life.

65You have three maternal half-brothers, Paul, Anthony and Jarrod. You also have a sister, Kiera, who was five years younger than you but sadly passed away following a head injury.

66You report that your stepfather was extremely physically abusive towards you and that your mother never intervened. At age 12, you ran away from your parents due to the abuse you were suffering. You stayed with your maternal grandfather who was very supportive of you until he passed away in April 1988.

67Following your grandfather's death, Child Protection intervened causing you to return home. You escaped once again and stayed with an aunt in Warrnambool. This was unsuccessful, and thus you were placed in the Brophy Memorial Hostel, a group home for children.

68You recall living conditions to be extremely confronting and difficult, and you report to having been sexually abused whilst residing there. You often absconded and spent periods living in the street with peers. You were further exposed to violence and substance use during this period.

69Unfortunately, you also suffered sexual abuse by a maternal uncle and your stepfather from a young age. You could not recall how old you were when this happened but say it was before the age of 13 years. You also claim that your cousin sexually abused you. You spent time in a psychiatric ward after disclosing the abuse, and state that your claims were dismissed.

70In terms of drug and alcohol use, you claim to have commenced binge drinking at 12 years of age. However, you say your drinking reduced around the age of 25 years.

71You began to use cannabis at 14 years old and have relied on its usage later in life to self-medicate and manage the pain associated with your physical health.

72At age 18, you commenced cocaine and amphetamine use which, unfortunately, led to the use of heroin when you were 19 years of age.

73Between 24 and 31 years of age, you struggled with daily heroin addiction. The use decreased over time, although you do acknowledge having relapsed due to chronic pain. You were placed on a Methadone program in March of 2022.

74You background has been one of extreme trauma and disadvantage such that it is conceded that there should be application of the Bugmy principles.

75In “that decision the High Court said:

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision.”

76The application of these principles reduces your moral culpability for this offending but also raises issue as to how best to protect the community 

77With respect to your education and employment, you stopped attending school at 16 years.

78You commenced work as a kitchen hand in Warrnambool. You then worked at various sandwich bars and cafes. In 2012, you worked at and lived in a bed and breakfast. You said you were fired after three months when it was discovered that you were untruthful about your contract. More recently you have worked as an artist and have sold your works online.

79Turning now to your relationships, you met your former partner Troy when you were 20 years old and you were together for three months before having a daughter together, Kiera, who is now 28 years of age. You say that you daughter was two years of age when Jeff, Troy's brother, was murdered. You witnessed this and felt that your life was in danger as you had to testify in court.

80You then formed a relationship with someone by the name of Tay, whom you lived with in Clayton. You had a daughter with him who was born prematurely in December of 1997 after Tay had thrown you from a moving vehicle. You claim that your daughter was four months of age when he threw her against a wall, causing you to chase him down the street with a machete. You say you partially scalped him and were sent to prison for this and for an incident where you severed the hand of a male who sexually assaulted your daughter, and you reportedly fed his hand to your dog.

81You then met Willy and had a son with him in 6 June 2002. You were together for four years and lived in Clayton and then in Ballarat.

82In 2003, you state that your neighbour burnt your house down, leaving you homeless.

83You then formed a relationship with Joseph in 2003 and were together for four years. You separated when he fled to Western Australia to avoid police apprehension. He apparently passed away in 2022.

84You later moved to Cranbourne, and state that one of your daughters was the victim of an armed robbery. You pursued the perpetrator describing the events as a 'hostage situation' and were eventually imprisoned again around 2010.

85You met Jose in 2017 and later married. You did not have children with him. In 2019, Jose was murdered. You spent time locked away in a friend's garage to ensure your safety after this incident.

86You have further struggled with physical health issues over an extended period. In 2006, you were diagnosed with Chordoma, a slow-growing cancer of tissue found inside the spine. You have been in remission since 2007.

87You report constant back pain and attribute this to violent beatings given to you by your stepfather.

88In 2019, on Christmas Day, you were hit by a motor vehicle as a pedestrian at Mordialloc Beach. You say that it occurred in front of your children and grandchildren while you were crossing the street at the time. You sustained two fractured ribs and a fractured foot.

89You state that your mobility continues to deteriorate but you have not obtained required treatment due to your chaotic lifestyle and inadequate support. You also say you have multiple sclerosis but this has not appeared in medical material tendered on your behalf.

90You have struggled to disentangle yourself from a cycle of abusive partners, homelessness, mental health struggles and drug dependence.

Expert report

91On your behalf two reports authored by Ms Gina Cidoni, psychologist, were tendered.

92The first is dated 21 March 2023. In that assessment, Ms Cidoni surmises that you possess feelings of inadequacy and hopelessness, valuelessness and alienation. Your use of substances is a mechanism of self-medication.

93Ms Cidoni diagnoses you with Post-Traumatic Stress Disorder, Borderline Personality Disorder and Opiate Use Disorder.

94The Borderline Personality Disorder results in unstable mood. Ms Cidoni links your Post-Traumatic Stress Disorder from your traumatic experiences which commenced in childhood and continued through your formative years. This condition has led to almost constant feelings of being psychologically overwhelmed.

95Whilst Ms Cidoni opines that your lack of self-control in your offending links to your personality function and Post Traumatic Stress Disorder, affecting your ability to regulate and manage your emotional stress and impulses, it is difficult to see this as an explanation for your offending given your level of intoxication.  As already stated, I have reduced your moral culpability due to the Bugmy principles and accept that your traumatic background, and much of your life since, has fed in to the person you are today.

96Ms Cidoni's supplementary report of 24 August 2023 does not advance the matter.

97Ms Cidoni also finds that:

'While prison enforces drug abstinence, PTSD and BPD mean that she is easily activated which leads to higher tensions and distress in this setting that would weigh more heavily upon her. She would have difficulty managing symptoms in this setting due to situational variables that are not in her control. Certain events will act as triggers to earlier trauma that could further erode her deficient coping skills. In certain situations, there is no exit or escape, which will intensify hypervigilance for signs of threat or personal risk'.

It is accepted that there should be some application of Limb 5 referred to in the decision of R vVerdins & Ors[1].   That is the existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

I do apply limb 5 of that decision.

[1] R vVerdins & Ors (2007) 16 VR 269

98A patient health summary of Dr James Churchman has been tendered. As of 31 October 2022 he states that 'there is a strong indication of this patient [referencing you] has an alcohol dependency problem'. 

99A medical report from Dr Churchman dated 20 March 2023 indicates that he has been your treating practitioner since February 2017. Over that time, you have been treated for a lumbar laminectomy with ongoing lumbar pain, right shoulder bursitis, thoracic spine facet joint arthropathy, opiate dependence and anxiety. You are prescribed methadone -which is in part treatment for ongoing back pain, Panadeine Forte intermittently, and clonazepam for anxiety.  Dr Churchman comments that 'a term of imprisonment may make access to any appropriate treatment of exacerbations of back pain more difficult. It may aggravate her anxiety'.

100The Crown submitted that this opinion was of minimal weight in the sentencing exercise. I agree with that submission.

101A letter from your treating doctor, still Dr Churchman, dated 27 November 2023 has been tendered on your behalf. That indicates that you regularly attend upon your practitioner.

102You receive medicinal marijuana from another practitioner and are otherwise prescribed methadone, Panadeine Forte and anti-nausea medication. You presently require daily help from your son to safely shower and to leave the house. You are subject to frequent falls. You have, as already outlined, a history of lumbar back surgery and are described as having significant impairment due to pain.

103You currently use a TENS machine which delivers a small electrical current to the body through electrodes attached to the skin. TENS is a form of pain relief without medicine.

104A letter from Justice Health dated 30 November 2023 appears to indicate that you would be assessed on any reception into the prison services. It is not clear from that correspondence that you would be able to access medicinal cannabis or a TENS machine. It does indicate that the Department of Justice and Community Safety are of the view that they can otherwise manage your established conditions. I do accept that you would be stressed in not accessing your current treatment regime or treatment practitioner and take this into account in a general sense. 

Prospects of Rehabilitation

105You agreed to a Personal Safety Intervention Order being made protecting the O’Reilly's and it is not suggested that you have breached that order. Not surprisingly you were asked to leave the premises next door and experienced difficulty finding new accommodation.  To your credit you have had stable accommodation in Balwyn for some six months. 

106As referred to earlier you are in receipt of methadone. You do have an established therapeutic relationship with your treating practitioner.

107You remain on a Disability Support Pension and have made an application to access the National Disability Insurance Scheme.

108Your son continues to reside with you and plays a role as a carer.

109Until these matters in June of 2021 you had a two year gap in your offending and I understand that there have been no further matters in over two years since.

110Overall, your future prospects appear mixed. Much of your life has been somewhat chaotic. You have again had a lengthy period without any intersection with the criminal justice system and seem to have some stability at the present time. Your physical condition I accept limits your ability to experience an active lifestyle.

Sentencing submissions

111The Crown submit that the overall gravity of your offending in the context of relevant prior convictions demands a term of imprisonment in the proper consideration of all relevant sentencing principles. It is submitted that a combination sentence would be within range, this term reflects a combination of a period of imprisonment in combination with a community corrections order and is limited by the provisions of s44 of the Sentencing Act 1991.

112Your counsel contends that a proper assessment of your offending, your plea of guilty, your current stability and your general health warrants the imposition of a community corrections order without the need for a term of imprisonment to be imposed.  I have been provided with three cases said to be comparable and have had recourse to those decisions.

113In order to be better informed, I have had you assessed as to your suitability for a community corrections order.

114This assessment was undertaken in late August 2023 and the matter returned before me on 22 September 2023 when your hearing was further adjourned until today's date, 11 December 2023. This was in order that further medical material could be obtained as well as information from the relevant authorities as to their ability to cope with your medical problems within the prison system.

115An updated report from the Mental Health Advice and Response Service (MHARS) dated 8 December 2023 has been provided. Whilst you were to be assessed by this service in August 2023 you declined to participate.

116The current report details you have had contact with area mental health services in 1992 and 1995 but have not been subject to any compulsory assessment or treatment.

117It was recommended that there be a mental health component to any community corrections order imposed.

118An assessment outcome report dated 8 December 2023 finds you suitable for a community corrections order. You had been assessed by that service in August 2023 prior to the adjournment, at which time you were also found suitable for a community corrections order.

Sentencing Principles

119The basic purposes for which a court may impose sentence they include just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims. 

120I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure where possible that offenders are rehabilitated and reintegrated into society.

121I have taken into account the sentencing purposes referred to in s5 of the Sentencing Act where relevant to your case.  I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the important principles of totality and proportionality.

122For the offences on the indictment I propose to impose an aggregate sentence as I am satisfied that these offences are founded on the same facts, or form, or are part of, a series of offences of same or similar character.

123On balance, and marginally so, I am prepared to place you on a community correction order for a period of two years, this period partially taking into account the delay between you being charged and the matter finalising some two and a half years later.

124The conditions of that order will be those as recommended to me largely, and that is:

(a)   you are to complete 150 hours of community work.

(b)   You are to submit for treatment and rehabilitation for your mental health.

(c)   you are to be assessed for participation in the Forensic Intervention Services Branch to identify programs designed to reduce your risk of reoffending and then to participate in such identify programs.

(d)   you are to be supervised by the Office of Corrections.

125Whilst it was not recommended that you submit for alcohol or drug treatment, I do make this condition, given you are said to have been alcohol affected at the time of the offending.

126I direct that 75 hours of treatment are to be offset against the community work condition. Given your health concerns it is hoped that the Office of Corrections can locate some form of community work that will not exacerbate your condition. The assessment report before me indicates that this is likely.

127For the two summary charges you are also convicted and placed on a community corrections order.  The duration of that order is one of 6 months and requires you to complete 50 hours of community work, 25 hours of the community work component is made cumulative on the order I made for the offences on the indictment.

128In addition to the conditions that I have imposed there are standard conditions. The first and foremost of those is that you must not commit any other offences during the 24 month period which could be punished by imprisonment. You must report within two working days to your nearest corrections office. You are also required to advise your corrections office of any change of address of where you are living or working and must do so within two clear working days. It is a term of all community corrections order that you must submit to visits as directed and you must obey all of the instructions and directions of corrections officer. You are not able to leave the State of Victoria without the prior permission of your supervising community corrections office.

129In my view this order presents you with a chance to change your life in a positive fashion should you choose to take up that opportunity and the supports that I intend be made available. The order can be breached if you do not comply with it in terms of the conditions or reoffend with an offence punishable by imprisonment whilst it is in place.  If you do so, you will have to appear before me for contravening the order and I may have to resentence you on the original charges, as well as a separate charge of contravening a community corrections order.

130Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty you would have been sentenced to  20 months' imprisonment with a minimum of  14 months  before being eligible for parole.

131Now I cannot place you on this order unless you agree to do so.  Mr De Witt, I will have you provided with a copy of the order and you can speak to your client about that.  I will stand down temporarily.

132MR DE WITT:  Thank you, Your Honour.

133(Short adjournment.)

134HER HONOUR:  Thank you.  Mr De Witt, you have been through the proposed order with your client?

135MR DE WITT:  I have, Your Honour.

136HER HONOUR:  And is she prepared to sign a document to that?

137MR DE WITT:  She is, Your Honour, and she has signed that document, thank you.

138HER HONOUR:  All right, well there should be two.

139MR DE WITT:  Both of those, Your Honour, yes, yes.

140HER HONOUR:  Yes, thank you very much.  I forget to check with you, it is a bit late now, whether there were any factual difficulties during the sentencing, but as I said I have done it now, so a bit late. 

141Ms Deans, you do understand - well from your history with corrections orders but also from the conversation you would have had with Mr De Witt, that if you do not do this order, or you re-offend whilst it is in place with an offence punishable by imprisonment, you will come back here?

142OFFENDER:  Yes, I do.

143HER HONOUR:  In the nicest possible way, I don't want to see you again.  If for whatever reason you have difficulty with the order, speak to your legal representatives.  You can always seek to vary it.  Any questions for me?  No, all right.

144Mr Cameron, thank you very much for your assistance and that of your instructor, very much appreciated.

145MR CAMERON:  Thank you, Your Honour.

146HER HONOUR:  Mr De Witt, thank you for yours.

147MR DE WITT:  Thank you, as the court pleases.

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