Director of Public Prosecutions v Defrenza

[2017] VCC 908

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02069

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINCENT DEFRENZA

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 28 June 2017 respectively
DATE OF SENTENCE:	4 July 2017
CASE MAY BE CITED AS:	DPP v Defrenza
MEDIUM NEUTRAL CITATION:	[2017] VCC 908

CONTRAVENTION OF A COMMUNITY CORRECTION ORDER
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Subject:  CRIMINAL LAW

Catchwords:  Contravention CCO – Contravention CCO proven and order cancelled – Sentenced on contravention and re-sentenced on original charges

Sentence:Convicted and sentenced to Total Effective Sentence of 12 months’ imprisonment with a non-parole period of 6 months’ imprisonment – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr J. Barrington	Solicitor for Public Prosecutions
For the Accused	Ms D. Caruso	Patrick Dwyer and Associates

HER HONOUR:

1Vincent Defrenza, on 11 July 2016, I give you a chance to avoid a gaol term by imposing a community corrections order for a serious offence, that of possessing a substance and equipment for the purpose of trafficking in a drug of dependence.  The offence carrying a maximum penalty of ten years' imprisonment.

2At the time I told you these things, amongst others, at paragraph 42 of my sentencing remarks:

"You have behaved very foolishly and wilfully on the occasion of the offending before me.  Had the scale of what you were doing been any larger or more organised, I would have had no hesitation in sending you to gaol for a significant period.  However, in view of the Crown's attitude, the matters in mitigation, the age of the relevant prior matters, and the fact that you seem to have finally reached a stage perhaps where you are prepared to live a responsible, good life, I will give you one chance.  It is going to be very difficult for you as you will have to finally address your drug issues as these are very much linked to your offending.  Make no mistake, if you put a foot wrong, you will be very hard pressed to avoid going to gaol".

3At paragraph 61 to 65 I said:

"I should tell you that if you do not comply with all of the requirements of this order" -

4that being the community corrections order that I was proposing at the time -

"then you will face breach proceedings before me.  You will then be sentenced in relation to the breach and you will be re-sentenced in relation to the charge, in which case you may well be sentenced to a period of imprisonment.  I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order".

5I then said to you, Mr Defrenza,

"Do you understand this Mr Defrenza?"

6You said,

"I do".

7I said,

"Do you maintain your consent to the order?"

8And you said,

"Yes, I do".

9Mr Defrenza, I have considered the breach report from Community Corrections and your Counsel’s submissions as well as your GP’s letter with respect to your mental state.

10I am afraid that it has now reached a stage where, despite the matters put in support of you remaining in the community, you have forfeited that privilege by what you have failed to do in respect of the community corrections order. The fact of the matter is that Community Corrections bent over backwards to keep you on the order but you chose not to respond in a positive fashion. You were warned about being breached on two occasions, but this did not seem to impact on you.

11In re-sentencing you, I have taken into account all matters which I factored in at the original plea hearing, the matters put to me by your Counsel last Wednesday, and I have factored in the extent to which you complied with the community corrections order.

12I note that at the hearing last Wednesday I was eventually told that your parents are both living at home and are in a position to look after your children, who are now having some contact with their mother.  Your brother, who is suffering the aftermath of meningitis, can also be cared for by your parents. Exceptional hardship was not raised as a sentencing consideration. However, I have factored in that concern for these people whilst you are in gaol will make time in gaol harder for you than would otherwise be the case.

13I have also factored in your GP’s letter, which was tendered to the court, and have made some allowance for his opinion as to your mental state, which will also make time in gaol more onerous for you.

14Would you please stand up.

I find the breach proven and the community corrections order is cancelled;

In respect of the charge for breaching the order you are convicted and sentenced to one month’s imprisonment; and

In respect of the original charge you are convicted and sentenced to
11 months’ imprisonment.

15I direct that the one month imposed for the breach of the community corrections order offence is to be served cumulatively with the sentence for the original charge, producing a total effective sentence of 12 months' imprisonment, and I direct that you serve six months' imprisonment before becoming eligible for parole.

16Would you please take a seat for a moment?  Is there anything further?

17MS CARUSO:  I was thinking of 6AAA, Your Honour, but you did that last time.

18HER HONOUR:  I was considering that too in relation to these sorts of proceedings.  I will give a 6AAA indication.

19MS CARUSO:  You did that in paragraph 67, whether that - - -

20HER HONOUR:  Yes.  Well, it is just that because there has been some compliance with the - anyway, not a lot - with the community corrections order, I am just not sure whether that would still hold.  Taking into account the extent of compliance in these proceedings being somewhat different than the original proceeding, but that I am now actually dealing with two offences, the one of breach and re-sentencing, I would be inclined to indicate the same 6AAA in any event, but if not for the pleas of guilty I would have sentenced Mr De Frenza to three years' imprisonment with a non-parole period of two years.

21MS CARUSO:  If Your Honour pleases.

22HER HONOUR:  Is there anything further?

23MS CARUSO:  No, Your Honour.

24HER HONOUR:  All right, thank you.  Could you please remove Mr Defrenza?

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