Director of Public Prosecutions v Di Cello
[2024] VCC 1936
•19 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00590
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA DI CELLO |
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JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 July 2024; 1 November 2024; 19 November 2024 | |
DATE OF SENTENCE: | 19 November 2024 | |
CASE MAY BE CITED AS: | DPP v Di Cello | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1936 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Burglary-low-mid-range – theft-mid-range – theft-motor-vehicle-serious - trafficking drug of dependence-low-range – unlicenced driving – possess controlled weapon – proceeds of crime – substance abuse – extensive criminal record - bipolar disorder - ADHD - intellectual disability- justice plan – treatment and rehabilitation programs – supervision – judicial monitoring - parity.
Legislation Cited: Crimes Act 1958 (Vic); Drugs Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic); Disability Act 2006 (Vic); Road Safety Act 1986 (Vic); Control of Weapons Act 1990 (Vic);
Cases Cited:R v Verdins [2007] VSCA 102; Romero v The Queen [2011] VSCA 258; Stevens v The Queen [2021] VSCA 218; Muldrock v The Queen (2011) 244 CLR 120; Clifton v The King [2024] VSCA 82; DPP v Newman [2024] VCC 1787; Bugmy v The Queen (2013) 249 CLR 571.
Sentence: 1 year 5 months’ imprisonment – 18 months’ community correction order – 322 pre-sentence detention – s 6AAA – 2 years’ 8 months’ – NPP 2 years’.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Office of Public Prosecutions |
| For the Accused | Ms N Giorgianni | Giorgianni & Liang |
HIS HONOUR:
1Joshua Di Cello, you have pleaded guilty to the following offences:
(a) One charge of burglary, contrary to s 76(1) of the Crimes Act 1958 (Vic) (the ‘Crimes Act’) which carries a maximum penalty of 10 years’ imprisonment.
(b) Three charges of theft, contrary to s 74(1) of the Crimes Act which each carry a maximum penalty of 10 years’ imprisonment.
(c) One charge of trafficking in a drug of dependence contrary to s 71AC(1) of the Drugs Poisons and Controlled Substances Act 1981 (Vic) which carries a maximum penalty of 15 years’ imprisonment.
2You have also pleaded guilty to the following related summary offences:
(a) One charge of unlicensed driving, contrary to s 18(1)(a) of the Road Safety Act 1986 (Vic) which carries a maximum penalty of 6 months’ imprisonment.
(b) One charge of possessing a controlled weapon without lawful excuse contrary to s 6(1) Control of Weapons Act 1990 (Vic) which carries a maximum penalty of 2 years’ imprisonment.
(c) One charge of dealing with property suspected of being the proceeds of crime contrary to s 198 of the Crimes Act which carries a maximum penalty of 12 months’ imprisonment.
3You are to be sentenced based on the Summary of Prosecution Opening for Plea dated 12 June 2024.[1] This is an agreed document upon which the following summary is in turn based.
[1] Exhibit P1.
Circumstances of Offending
4At the time of the offending you were 34 years old and resided in Parker Street, Templestowe.
5On 11 December 2023 at 4:00 pm, your friend, Amber Newman drove a black 2011 Mercedes Sedan in Hannan Street, Williamstown with you in the passenger seat.
6At 5:00 pm, you entered a property in Hannan Street, Williamstown and turned off the power. You and Ms Newman waited to see if the owners were home. As no one exited the house, the two of you assumed that it was empty and entered the property with the intention of stealing (Charge 1 – Burglary).
7You stole a number of expensive items including two watches and a number of handbags.
8You drove away in the victim’s Black 2023 Porsche 911 valued at $395,000, registered number plate VTGM, which had been parked outside the front of the house (Charge 2 – Theft). You were not licensed to drive a motor vehicle (related summary offence 4 - unlicensed driving).
9Ms Newman drove away in the Mercedes in convoy with you.
10In total, you and Ms Newman stole:
(a) Two gold Rolex watches, valued at $52,850 and $53,800;
(b) Three Chanel handbags, valued at $2780, $4400 and $7270;
(c) One silver Bulgari ring, valued at $4700; and
(d) One black and silver Hermes bracelet, valued at $935 (Charge 3 – Theft).
11Later that evening, you drove the stolen Porsche to Astron Fuel at 781 Geelong Road, Brooklyn. You filled up the Porsche with petrol worth $98.99 but drove off without paying (Charge 4 - Theft).
Arrest and Interview
12On 13 December 2023 at 10:15 AM, police attended Sebel Hotel Carpark and located the stolen Porsche. CCTV shows that you had driven into the hotel carpark at approximately 03:06 AM.
13You were staying in a hotel room at the Sebel Hotel, under the name of ‘Anica Dimovski’.
14Police located you hiding behind the air conditioning unit on the balcony. You were located with the following items:
(a) Multiple sets of car keys;
(b) $215 cash;
(c) Licences, bank and Medicare cards in various names (related summary offence 10 – deal with proceeds of crime);
(d) A black and blue folding knife (related summary offence 9 – possess controlled weapon);
(e) 3 zip lock bags of methylamphetamine, weighing a total of 15g (Charge 5 – trafficking a drug of dependence).
15You were arrested, and during your record of interview you made partial admissions to the theft of the Porsche.
16Ms Newman was arrested on 27 December 2023, at which time police recovered photographs, text and social media messages from her mobile phone showing her attempting to sell the stolen Rolex watches and Chanel handbags.
Objective Gravity
17It is necessary to make an assessment of the objective gravity of your offending.
18In relation to Charge 1, this burglary was quite brazen, happening in broad daylight and involved some degree of planning. You were in company, which is an aggravating matter in relation to a burglary, but I note that you were unarmed and no one was harmed when the burglary was committed. In the circumstances, I would assess the objective gravity of the burglary as being a low-medium range example.
19In relation to Charge 3, the value of the items stolen is a very important consideration in assessing the gravity of a theft. Here, the total value was a little over $126,000, which is not a trivial amount. I would assess the theft as a medium range example.
20Charge 2 concerns the theft of a very expensive motor vehicle. Although the value of what is stolen is not the sole determinant of the objective gravity of a theft, it is very important. This was serious offending.
21Charge 4 is a minor theft.
22In relation to Charge 5, drug trafficking, this is a very serious offence as is made clear by the maximum penalty of 15 years’ imprisonment. However, there is very little evidence before the court which would indicate what type of involvement you had in relation to the trafficking of the drugs. Compared to many drug trafficking cases in this court, the quantities involved were quite small. I would therefore consider the drug trafficking offending to be a low range example.
23The most concerning of the summary offences is Charge 9, possessing a knife.
Personal Circumstances
24You are currently 35 years’ old.
25You were raised in Coburg, Doncaster and Templestowe. Your parents separated when you were young due to frequent arguments. Your mother received full custody of you and your siblings. During this time, you felt that your mother was taking you away from your father, therefore, you would frequently run away from home to live with him. This caused your father to violate the custody orders.
26The police were frequently involved in your family life due to these custody issues, even though there was no violence perpetrated.
27You were resentful towards your mother due to the separation of your parents, however, your relationship has improved over the years and you now maintain a good relationship where you speak once a week. You also maintain a good relationship with your father.
28You have six siblings, including both biological and stepsiblings, whom you only speak to when you are out of jail. No one in your family has any history of substance abuse or legal issues.
29You have had three significant relationships. Your most recent relationship was with Ruby, who you were with for two and a half years.
Education and Employment
30You completed your schooling at St Joseph’s College, however you struggled throughout. You had a teacher’s aide in order to assist with your ADHD for subjects like Mathematics and English. You were able to engage and participate in practical subjects such as Food Technology and Art.
31You had poor academic performance in subjects except for Art, and you frequently arrived late, missed classes, or left early. You demonstrated daily erratic behaviour, such as kicking soccer balls into windows, throwing objects, and bullying other students, resulting in frequent detentions and several suspensions.
32You tried to further your education at RMIT and Oceania Polytechnic Institute of Education, but were only able to complete a few months in each program.
33You began working at 18 on and off at Footscray Market in the fruit and vegetable section. You have had various other jobs ranging from working at your father’s freight forwarding company to working at a cocktail bar. Your longest employment period was at LaManna where you worked for 6 months. You left that job due to substance abuse.
34Your last period of employment was in mid-2012 and you have been receiving Centrelink benefits during the subsequent period of unemployment.
Criminal Record
35You have an extensive and relevant criminal history dating back to 2014 when you were 25 years old. You have been sentenced on a number of occasions for dishonesty, driving and drug possession offences. On a number of occasions you have been sentenced to community-based sentences which you have contravened. The overwhelming bulk of your court appearances have been in the Magistrates’ Court.
Medical History and Drug Dependency
36You began using cannabis at the age of 11 after being influenced by older friends when you would run away from home. Using cannabis would become a daily habit until you turned 18, when you switched to methamphetamine and start taking 1 gram daily.
37You began using MDMA recreationally from the age of 14 or 15, and ketamine occasionally at age 18. You began smoking cocaine heavily in sporadic periods. You were using GHB daily from the age of 18 which has led to several overdoses.
38While using drugs, you reported experiencing both auditory and visual hallucinations.
39You have previously engaged in drug and alcohol counselling. When you were 22, you were sent to live in Tasmania and Wangaratta for eight months to curb your drug use, which worked temporarily until you relapsed. You competed four months of rehabilitation at The Cottage in 2022.
40You report that your relapses typically occur immediately or within a few weeks after custody release each time.
41You have suffered from several medical issues. You were involved in an accident at Metropolitan Remand Centre, where an exercise bike gave way underneath you. This resulted in a cortisone spine injection and back surgery. You also suffered a head injury from being struck with a dinner plate whilst in custody in 2022. You believe your judgement has been affected since this incident.
Mental Health History
42You were diagnosed with ADHD around the age of 12 to 14 and were prescribed medication. You did not consistently take the medication due to experiencing side effects. However, you told psychologist Ms Cidoni in July 2024 that you have been taking Atomozetine for 8 weeks, which has assisted you in sitting still and being able to ‘wind down’ better. You were diagnosed with bipolar disorder at age 20, and were prescribed Olanzapine and Miratazapine.
43You have reported that your mental health is deteriorating, marked by severe depression, self-doubt, and a fear of death due to your history of extensive drug use. You have been admitted to psychiatric units in prison, with your most recent stay being the longest, lasting a month and a half.
Mental Health – Relevance to Sentencing
44After reading the report of Ms Cidoni, I was concerned to investigate whether you suffer from an intellectual disability. The case was adjourned so that you could be examined by Forensicare. I also requested that a Justice Plan be prepared if appropriate.[2]
[2] Sentencing Act 1991 (Vic) s 80 (‘Sentencing Act’).
45The court was subsequently provided with a ‘Statement of Intellectual Disability’ dated 21 August 2024, issued under the Disability Act 2006 (Vic) in relation to you. Joe Spalliera, Manager at Forensic Disability Statewide Access Service, Department of Families, Fairness and Housing, states that he is satisfied that you have an intellectual disability within the meaning of that Act as you are over 5 years of age and have the concurrent existence of:
(a) significant sub-average general intellectual functioning; and
(b) significant deficits in adaptive behaviour
each of which became manifest before the age of 18 years.[3]
[3] Department of Families, Fairness and House, Statement of Intellectual Disability dated 21 August 2024 (‘Exhibit D3’).
46It is well established that an offender’s moral culpability, as contrasted with their legal responsibility, may be diminished due to the effect of a mental disorder from which they suffer either at the time of their offending or at the time sentence is to be imposed. In Verdins, the Court of Appeal explained that impaired mental functioning ‘may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility’.[4]
[4] R v Verdins [2007] VSCA 102, [32].
47In such a situation, the condition will affect the punishment that is just in all the circumstances, and ‘denunciation is less likely to be a relevant sentencing objective’.[5] The impairment of mental functioning must contribute to, but need not have caused, the offending behaviour. This means that it must be established that the offender’s disablement had the effect of ‘impairing [their] ability to exercise appropriate judgment or impairing [their] ability to make calm and rational choices, or to think clearly at the time of the offence’.[6]
[5] Ibid.
[6] Romero v The Queen [2011] VSCA 258, [13].
48The relevance to the sentencing process of an accused having a diagnosed intellectual disability was explained by Priest and Kennedy JJA in the case of Stevens v The Queen[7] as follows:
As Muldrock makes clear, an intellectually disabled offender’s moral culpability will in most cases be lessened — although not necessarily eliminated — due to a reduced capacity to reason as to the wrongfulness of his or her conduct. The aspects of denunciation and just punishment in a sentence appropriate for a person of ordinary capacity will often — but, presumably, not always — be inappropriate for an intellectually disabled offender (and the needs of the community). So much is consistent with what had earlier been said in Verdins.
Moreover, in the case of an intellectually disabled offender, general and specific deterrence may — depending upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender — be moderated or eliminated as sentencing considerations.[8]
[7] [2021] VSCA 218 (‘Stevens’).
[8] Ibid, [32] (citations omitted).
49In the case of Muldrock v The Queen,[9] the High Court had explained that, unlike cases in which an offender relies on a mental illness in mitigation of her or his moral culpability where it will generally be necessary to discern a causal relation between the illness and the offending:
… [s]uch a question is less likely to arise in sentencing a mentally retarded[10] offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence.[11]
[9] (2011) 244 CLR 120 (‘Muldrock’).
[10] The Court used the terms ‘mentally retarded’ and ‘intellectually disabled’ interchangeably.
[11] Muldrock (n 9) [54].
50The Court went on to explain that:
… [t]he retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[12]
[12] Ibid.
51Where both Verdins and Muldrock are relevant, a sentencing court must assess both. Specific consideration must be given to an offender’s intellectual deficit ‘whether or not the evidence establishe[s] a distinct causal pathway to the offending, as is usually required for the application of Verdins principles’.[13]
[13] Clifton v The King [2024] VSCA 82, [51] (‘Clifton’).
The Evidence
52The Disability Act 2006 (Vic) provides that "intellectual disability", in relation to a person over the age of 5 years, means the concurrent existence of:
(a) significant sub-average general intellectual functioning; and
(b) significant deficits in adaptive behaviour—
each of which became manifest before the age of 18 years.[14]
[14] Disability Act 2006 (Vic) s 3.
53The statement of Mr Spalliera referred to earlier evidences that you satisfy these criteria. As noted earlier, Ms Cidoni expressed serious concerns about your cognitive capacity. Although the Forensicare Report dated 7 October 2024 prepared by Dr Vincenzi does not explicitly address the issue of intellectual disability, no challenge was made to the submission by your counsel that you have an intellectual disability.
54In support of these submissions, your counsel tendered a Psychological Report prepared by Psychologist, Ms Gina Cidoni,[15] and the Forensicare Psychological Court Report.[16]
[15] Psychologist Report of Ms Gina Cidoni dated 9 July 2024 (‘Exhibit D1’).
[16] Forensicare Psychological Court Report written by Dr Simon Vincenzi (‘Exhibit D5’).
55Ms Cidoni’s report is comprehensive, detailing your upbringing, personal circumstances, medical and psychological history and makes recommendations for your future treatment. I note that Ms Cidoni’s evidence was not challenged by the prosecution.
56Dr Vicenzi of Forensicare opines that ‘diagnoses of ADHD and possible bipolar affective disorder suggest neurobiological factors that may contribute to impulsivity and poor decision-making’.[17]
[17] Ibid 5 [42].
57Dr Vincenzi is of the opinion that you ‘appear to meet the criteria for persistent depressive disorder, ADHD, social anxiety disorder and components of posttraumatic stress disorder’. He states that these conditions ‘around the time of the offending likely had an indirect impact on [your] offending behaviour via contributing to [your] substance abuse’.[18]
[18] Ibid 6 [49].
58Dr Vincenzi states that your mental health condition ‘has not exacerbated the burden of … incarceration beyond what would be typical for an individual without such challenges’. This is because custody has enabled you to be substance free.
59Turning to the assessment of future risk of offending, Dr Vincenzi assesses you as High Risk based on your lengthy criminal history, long-standing poly-substance abuse, mental health issues, lack of stable employment and housing and history of non-compliance with bail conditions and community-based orders.[19]
[19] Ibid 6 [51].
60Dr Vincenzi recommends a comprehensive and intensive treatment approach including:
(a) Psychiatric and psychological treatment;
(b) Substance abuse treatment;
(c) Vocational training and employment support;
(d) Supported housing; and
(e) Ongoing case management.[20]
[20] Ibid 6-7 [52]-[59].
61Dr Vincenzi considers that the provision of these interventions in a co-ordinated manner ‘will be crucial to managing [your] risk of reoffending and supporting [your] rehabilitation efforts’.[21]
[21] Ibid 7 [60].
Consideration
62I will start with the question of parity with your co-accused, Ms Newman. On 25 September 2024, I sentenced her to an 18 month CCO.[22] For the reasons I explained in imposing that sentence, your circumstances are very different to Ms Newman’s.[23] In summary, your offending is more serious, your criminal history is far more extensive and your personal circumstances differ considerably compared to hers. Therefore, the principle of parity has little work to do in your case.
[22] DPP v Newman [2024] VCC 1787.
[23] Ibid, 12 [58]-[59].
63Your plea of guilty is an important matter of mitigation. It saves the court and the prosecution time and resources. Importantly, it spares your victims the anxiety of giving evidence. It is also an indication of your acceptance of responsibility and some evidence of your remorse.
64Your depraved childhood enlivens the general Bugmy principle and your moral culpability is reduced to a moderate extent.[24]
[24]Bugmy v The Queen (2013) 249 CLR 571.
65Turning to other matters, the distinct causal pathway that is generally required to enliven limbs 1, 3 and 4 of Verdins is, in my view, not clearly established on the evidence.
66However, it is common ground that you suffer from an intellectual disability. In accordance with the evidence discussed above, this impairs your ability to reason as a person without such a disability does. It also impairs your ability to learn from experience.
67Your disability means that your moral culpability is reduced but not eliminated. You are thus a ‘less suitable vehicle for general deterrence, punishment and denunciation’.[25] I have taken this into account in determining the appropriate sentence in your case.
[25] Clifton (n 13) [54].
Risk of Future Offending
68Dr Vincenzi considers that despite your numerous risk factors which were discussed earlier, you ‘demonstrate some protective factors that could be leveraged to reduce [your] offending risk’.[26] The factors he identifies are:
(a) Your expressed willingness to engage in treatment;
(b) Your past ability to maintain periods of abstinence;
(c) Some family support; and
(d) Your interest in drawing.
[26] Exhibit D5 (n 16) 6 [47].
69Ms Cidoni assessed your recidivism risks as high on the basis of your criminal history, issues with emotional regulation and impulsivity, drug abuse and lack of employment.[27]
[27] Ibid [84].
70The protective factors identified in Ms Cidoni’s report include ‘having a stable housing situation upon release’, having future plans and ‘having a support network in the form of his family and a family friend’.[28]
[28] Ibid.
71This was based on your report to Ms Cidoni that you intend, upon your release from custody, to ‘reside with a family friend in Doncaster’ and that The Bridge Centre is assisting you to find housing.[29]
[29] Exhibit D1 (n 15) 3 [32].
72When Ms Cidoni asked you about social supports you referred to Ruby, a family friend and your family.[30]
[30] Ibid 3 [33].
73In your interview with Forensicare in August, you said that you had broken up with Ruby shortly before the offending presently before the court. According to the Disability Overview Report dated 21 October 2024, you received an offer of public housing while in custody in 2024 which was accepted by Ruby, Ruby has since removed you from the application and tenancy.[31]
[31] Disability Overview Report dated 21 October 2024, 3 (‘Exhibit D4’).
74You told Disability Services that you intend to live with a family friend, Nanette Metallo, in Doncaster.
75When the court was informed of this plan on 24 July 2024, the prosecutor informed the court that according to information provided by the informant, Ms Metallo’s house may not be an appropriate place for you to live from the point of view of your rehabilitation.
76As noted your case was adjourned so that your mental health could be further explored. The court also asked your lawyers to clarify where you would be living upon your release from custody as housing is identified in the reports of both Ms Cidoni and Dr Vincenzi as crucial to your future prospects of rehabilitation.
77Ultimately, the court received an email dated 11 November 2024 sent by your mother, Kim Mooney, to your solicitor. Ms Mooney informs the court that on your release ‘Joshua can stay at our home [in] Connell Street, Glenroy’ where Ms Mooney lives with her husband and two adult children.
78You were assessed for suitability for a community correction order on 31 October 2024.[32] Corrections describe your history with CCS as ‘dismal’ noting that you have only completed one of the seven orders that have been imposed on you. Corrections endorse the assessment of you as a high risk of general offending.
[32] CCO Outcome Report dated 31 October 2024 (‘Exhibit D6’).
79Despite this history, you have been ‘narrowly assessed as a suitable candidate for a CCO’.[33] What appears to have counted in your favour is the existence of the Justice Plan to which I have previously referred. In the Disability Overview Report, Ms Anastasia Pascoe refers to your ‘deep desire to be abstinent from methamphetamine use’ and your openness to mental health treatment.[34]
[33] Ibid 2.
[34] Exhibit D4 (n 31) 4.
80After anxious consideration, I accept the CCS recommendation and will order that you are to be released onto a CCO. It is in your interests and those of the community that you have every support available to promote your rehabilitation and reduce your risk of future offending.
81The CCO will be therapeutic in character. The punitive component of your sentence is satisfied by the time you have spent in custody. Then you will be required to comply with the Justice Plan and I note that under that plan, a process of accessing the NDIS is proposed. If this is successful, it may operate as a circuit-breaker for you by providing a level of support that has been absent on the previous occasions that you have been sentenced to community-based orders. I will also accede to the recommendation to judicially monitor you.
82Ultimately, it will be up to you Mr Di Cello whether you want to turn your life around as you have stated you are keen to do. The supports are there if you wish to take advantage of them.
Orders
83Having regard to the maximum penalties for the offences and my assessment of the objective gravity of your offending, together with your personal circumstances as listed, and the other matters of mitigation that I have referred to, I consider that an appropriate sentence in this case is an aggregate sentence of imprisonment for 1 years and 5 months to be followed on your release from custody by a community correction order of 18 months’ duration.
84I cannot impose a community correction order without your agreement for me to do so and I am not going to ask you to indicate whether you agree to such an order, without explaining to you what the conditions are, both the general conditions and the conditions that I am proposing to order.
85The general conditions are as follows:
a)You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
b)You must comply with any obligation or requirement prescribed by the regulations;
c)You must report to and receive visits from the Secretary or their delegate during the period of the order;
d)You must report to the Community Corrections Centre specified within the order within two clear working days after the order comes into force;
e)You must notify the Secretary of any change of address or employment within two clear working days after the change;
f)You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary; and
g)You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
86In addition, the special conditions that I will impose in the order that I have in mind is that:
a)You must participate in treatment and rehabilitation programs as directed for mental health, drugs and alcohol abuse and programs to reduce offending.
b)You must comply with any recommendations made under the Justice Plan.
c)You will be under supervision for the duration of the order.
d)You will be judicially monitored by me. The first session will be 3 months after you are released from custody on Wednesday 17 September 2025 at 9.15 am.
87If you breach any condition of the order, you can be brought back to court and sentenced to up to three months in gaol for breaching the order, and you may be resentenced on the original offending.
88Finally, if you are having difficulty complying with the order you can apply to the court for a variation of a condition.
89Mr Di Cello, do you understand the conditions of the order that I am proposing? Do you agree to the court imposing that order on you?
90I will also make the Disposal Order and the Forfeiture Order that are sought by the Prosecution, noting that they are not opposed.
91The court has a discretion to make a further order disqualifying you from obtaining a driver's licence. In the circumstances of this case I do not propose to make such an order for three reasons:
a)The driving offence is very much peripheral in the context of your offending before the court;
b)Imposing such an order on you preventing you from being able to drive could be counterproductive in terms of your rehabilitation and your ability to comply with the order that the court is imposing; and
c)Relatedly, you have indicated a willingness to pursue employment opportunities, and not having a driver's licence would also impinge on your ability to do that, which is related to your rehabilitation. So in the circumstances of this case I decline to make any further order in relation to your licence.
92Pursuant to s 18 of the Sentencing Act 1991 (Vic) (‘Sentencing Act’), the period of 322 days that you have spent in custody (not including today) in respect of this offending is to be reckoned as time served in respect of the sentence I am imposing and the records of the court are to reflect this. When this period is deducted from the period of 1 year and 5 months, the time ‘to be serve’ will be less than one year.[35]
[35]Sentencing Act (n 2) s 44(1).
93Finally, pursuant to s 6AAA of the Sentencing Act, I indicate that but for your pleas of guilty, I would have sentenced you to 2 years 8 months’ in custody with a non-parole period of 2 years.
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