Director of Public Prosecutions v Dirbass

[2017] VCC 1190

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-01725

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON DIRBASS

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2017
DATE OF SENTENCE:	28 July 2017
CASE MAY BE CITED AS:	DPP v Dirbass
MEDIUM NEUTRAL CITATION:	[2017] VCC 1190

REASONS FOR SENTENCE
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Subject:  Theft
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Perry	Office of Public Prosecutions
For the Accused	Mr R. Thyssen	Tony Danos Lawyers

Pages 1 - 19

 

 

HIS HONOUR: 

1Jason Dirbass, you pleaded guilty the other day to one charge of theft that was on the filed over plea indictment in this matter, that is Indictment F12247907.2, the charge of theft committed on 5 June 2015.  That occurred in the setting of a matter being listed for trial, not that particular matter, there were other charges on the indictment as you well know, but pertaining to that car. But they were embraced by a very different style of charge including armed robbery, kidnapping and blackmail as well together with the charge of trafficking in drugs in a very small quantity.

2That was what was on the trial indictment and what I have got to deal with is what you have pleaded to which is on the indictment I mentioned a moment ago, the charge of theft of that vehicle. 

3You have admitted a very lengthy criminal history before the courts.  You have accumulated that history over many decades.  You are now 42 years of age.

4The maximum penalty for theft is, as you have heard, a ten year term of imprisonment, though of course, that sort of penalty is reserved for the worst category of offence if that phrase can even be used these days following the High Court decision of Kilic.  The maximum is ten years, but no one suggests that your offending comes even close to that level of offence seriousness.  It clearly does not.

5The prosecutor, Mr Perry, has opened this matter to me today in accordance with a written summary of prosecution opening on the plea, which is dated
27 July of this year.  It has been marked as Exhibit A and you have heard it read into the transcript.

6Mr Thyssen, who appears on your behalf, has told me that essentiall it is an agreed statement of facts and that being so, I do not see the utility in my going back through the summary of prosecution opening chapter and verse.  I am not going to.  It will remain on the court file and will disclose the factual basis of sentencing in this case.

7The theft involved, as you know, a 1996 BMW sedan.  You had come into contact with the owner of that car, a man of a similar age to you at the time,
Mr Scott Hillbridge.  He had been a truck driver, but he had fallen on some pretty hard times.  He had limited work capacity due to an injury that he sustained in a house fire back in 2012.  He had suffered very significant burns to 70 per cent or so of his body.  He had limited use of his hands and a number of other health concerns flowing from that injury.  It is in a way that event which befell him which caused him to meet you because he, as a result of the injury, used prescription drugs but also illegal drugs to try and manage his pain.  Hence, he spent some time in St Kilda and hence he met up with a friend of yours by the name of Shaun and then he met you.

8This was all in the immediate days leading up to 5 June.  You only met on about 1 June, I think it was.  Anyway, that is the setting.  You meet this man and you spend time together with this man and with others, including a woman by the name of Catherine Lyons, and on the day in question, it would seem that you meet up again by chance in Richmond.  You get in the car and in the way described in the summary, there is the discussion that is described, a discussion that obviously Hillbridge was not enjoying.  He had a level of apprehension and fear though it is not the suggestion that you were intending to convey that and of course I am not dealing with you for blackmail or for robbery for that matter.  It is a charge of theft simpliciter.

9In any event, such is the nature of the journey that he essentially transferred his car to you upon request.  There was a form filled out with a nominated consideration of $1,000, which had not been paid obviously.  There was no change of funds at all and it was taken up to VicRoads.

10I can go into further details both of the complainant's assertions and for that matter your own assertions in the police interview that was conducted.  I do not believe that I need to.  You have pleaded guilty to theft.  Theft necessarily carries with it the appropriation of property belonging to another, not your own property, that is what you have admitted and you have admitted that by your plea you had no claim of any legal right and that you were therefore acting dishonestly.

11In the circumstances, I think I used the term miserable in the course of the plea that finished a short time ago. I remained on the Bench and I am delivering these reasons on an ex tempore basis.  So I apologise for the inelegance of the reasons, but it was a pretty miserable theft, committed as it was upon a person who was clearly vulnerable. That the subject of the theft is a car, it is a valuable item.  I do accept the submission made by your counsel that there are differing assessments as to the valuation of that vehicle.  It is probably always the position. I think even the complainant himself in one of the earlier statements had described it as being valued at around $4,500.  So I do not set any particular store on the monetary value that is described in the summary.  It is no more than an estimate really, and estimates vary.

12It was his car and a car is very often either the most valuable or the second most valuable item of property that people have.  It was something that he needed.  He lived in Gippsland.  He could not even get home.  Well you have pleaded guilty to that theft and you have done that on what would have been the second day of the trial earlier this week in circumstances where as your counsel makes plain enough and it was plain to me, I was told directly that the Crown were having difficulties with one of their witnesses.  Ms Lyons had not attended court.  She had been in hospital I think on the Monday or over the weekend and it was looking very much like the matter might have to go off again.

13I say again, because there had been a false start, again no fault of yours, in April of this year when the matter was listed before Judge Brookes and it went off because of the recency of the service of the statement that had been taken from Ms Lyons and then difficulties imposed in terms of her cross-examination given the absence I think of a transcribed record of interview and other matters that I do not need to mention now.

14What is significant is you have pleaded guilty and as late as it might appear to be at least chronologically, it is on what would have been the second day of the trial, you have pleaded guilty to a charge that was, at best, one of the included allegations in one of the trial matters.  That is the armed robbery, includes the allegation of theft, obviously, and you have ultimately pleaded to that theft.

15What is critical and I made plain in the course of the brief submissions made to me is I have got to be very careful to avoid in dealing with you for the theft, dealing with you instead for the offending that had previously been laid against you.  That is the armed robbery, the kidnap or the blackmail.  I am not allowed and must not sentence you in relation to those crimes.  You have not pleaded to them.  You have pleaded to theft and the context is something I am entitled to have regard to and I do.  As I say, it is a pretty miserable crime.

16You have served no pre-sentence detention in this matter and that is because all of your time in custody, it has been sizeable to this point, has been taken up by way of declarations made by other courts on other occasions.  One in this court when you received a significant term of imprisonment not that long ago and another in the Magistrates' Court.  So there is no pre-sentence detention for me to reckon in this case.

17Nor is there any impact statement and I move now to other matters because I do not think I need to descend any further to the details of the offending.  There is no impact statement placed before me and I understand that at the start of the plea, Mr Perry did not know one way or the other whether one was going to be provided.  He flagged for me at least his understanding that he believed that the victim may wish to file a victim impact statement and that might have potentially posed difficulties though correctly, Mr Perry concluded that a victim impact statement filed in the circumstances or setting of a negotiated settlement such as this in the face of the trial indictment and the trial allegations, is very much a problematic exercise for someone like Mr Hillbridge to actually divorce from his mind what he says took place and of course, I cannot have regard to what he says took place, I have got to have regard to the crime that you have committed.  That is the one that you have pleaded guilty to.

18In any event, the informant arrived just as the plea was concluding and as I understand it, the attitude of the victim is that he is not possessed by any urgent need to make one.  He is happy to make one or happy not to make one as I perceive it and in the circumstances there is not one and nor do I see any need to stand the matter down to get one for the reasons that I have advanced a moment ago.  I would think that it is very difficult for him to make any sort of meaningful and admissible impact statement in the setting in which I am engaged here.

19So there is no victim impact statement.  The immediate impact is obviously enough just from the materials, the absence of a car and the difficulties in him even getting back to his home.

20Your counsel, Mr Thyssen, has raised a number of matters in mitigation in a compact but sensible plea conducted on your behalf.  You have heard those matters raised.  He was relying obviously upon the fact of your pleading guilty to this charge.  He did not labour the point in terms of the presence of remorse and for good reason, but he argued I think that there might be some at least implied from your guilty plea, but it certainly was not the major thrust of his plea.

21He spoke of your background as spelt out in the report that has been prepared by the author from the Salvation Army, who assessed you a couple of years ago.  So it is a little bit dated that report, but it is dealing with your past history, so that is not dated, that is before me.  He spoke of your having prospects of rehabilitation.  He did not sugar coat them.  He said you had some prospects.

22He spoke of the delay in this case.  There is a delay obviously and it cannot really be put at your feet.  You have been arrested and dealt with reasonably swiftly.  You have run a committed, which was your right.  You have gone to trial which was your right.  There had been some false starts in terms of that and of course there are the events that have occurred since with you going into custody for a very significant term of imprisonment for crimes that actually pre-date the matter that I am dealing with.  So the chronology is a pretty unhappy one from your perspective to be reclaimed now in terms of a related committed offence and to be then facing an individual term of imprisonment for it.

23Mr Thyssen made submissions as to the nature of the offending and the fact of it being opportunistic.  It is a spontaneous meeting and so it cannot be found against you that this was a planned activity.  He relied, as I say, upon the report from the Salvation Army.  He conceded the inevitability of a term of imprisonment, given the nature of the actual offence and of course the nature of your history and the relevance of specific deterrence and other purposes of sentencing.  But he argued that there really should be some level, some decent or significant measure of concurrency with the sentences that you are currently undergoing.

24He argued that your prospects of rehabilitation have to be viewed in light of the fact that you are to be held still for a significant period of time in relation to these other matters.

25Mr Perry who prosecuted, made some brief submissions and I do not really see the need to return to those now.  He was conceding that there had to be some room for rehabilitation despite the lengthy history that you have admitted.  But anyway, he did not make any particular submissions as to the seriousness of the offence.  He made plain that none of the material placed before me enlivened any of the principles from the case of Verdins, but nor had your own counsel suggested that they were enlivened here and they are not.

26Let me then turn briefly to these various matters.  The first of those is your guilty plea and you have done that earlier this week, it is true, in relation to an offence that took place on 5 June 2015.  I suppose it is always possible to say ‘well you could have done it earlier.’  Of course you could have or could have offered to do it earlier and that is the critical thing here.  The plea that you have offered this week has been accepted this week and no doubt it has been accepted this week for particular reasons that exist this week.  My suspicion is that if you offered this plea in the face of the handful of charges that you were facing down in the Magistrates' Court, you probably would have been told to take a running jump and I suspect it would have been rejected in the face of there being the armed robbery and other far more serious offences.  I am speculating there, but I am prepared to really, because it is in your favour that I do so.

27So I do not view the plea as late as it might otherwise appear on paper.  It is not.  You have pleaded guilty to this particular charge and the others have not proceeded with and that is the significance of what happened earlier this week.  So I take your guilty plea into account in mitigation of sentence.  You have taken responsibility for your offending.  You did not do that on the day of the police interview and by doing what you have done, that is by pleading guilty, then witnesses have been spared the experience of coming at least up to this court to give evidence.

28The community has been saved the time and the cost and the effort associated with a criminal trial conducted up in this court and you have in these ways facilitated the course of justice.  So what I must do is what I will do, I will reward you for your decision to plead guilty and to have done so.  I will not treat it as late a plea as the chronology would suggest.  It is not.

29You have taken responsibility and what I must do is pass a lesser sentence to reflect these matters, less than would have been the position, if you had actually run a trial. That is a fiction here because you did not have a trial running on the theft charge, but clearly I will be passing a lesser sentence than you would have received if you had been convicted of theft having run a trial before a jury, so I take into account your guilty plea.

30As I have said, not much was said about remorse and no doubt for good reason, given the nature of the interview and the nature of the suggested belief in some claim in relation to this vehicle, but you have pleaded guilty and I am prepared to at least treat your guilty plea as evidencing some level of remorse.

31I have dealt, I think already with the delay.  This is part of your recent background because this offence occurred, as I have said, back in June 2015 and you are being dealt with on 28 July 2017.  You have been sentenced recently in this court by Judge Davis for offending that occurred on 16 February 2015.  So it pre-dated the matter that I am dealing with, but it has hung around in the wings for as long as it has because of some difficulties in connecting you up to that crime.

32You pleaded guilty to charges of aggravated burglary and theft of a motor vehicle, a much more expensive motor vehicle than this by the sounds of it, a Mercedes.  With the aggravated burglary, the feature of aggravation was a person being present and the theft pertaining to the theft of the keys of the car that was actually associated with that property.  So it is a very serious event and was met with a pretty serious outcome.  You received three years, nine months' imprisonment with a two and a half year non-parole period.  That was only something like one and a half months ago and the judge at that stage declared the 375 days' PSD referable to that matter.

33You have been in custody for no doubt a variety of matters including my matter, but it is not open to me to make any further PSD declarations because they have been made on earlier occasions.  So there is that one for 375 days and the further declaration that was made in an earlier Magistrates' Court matter where you received a four month term of imprisonment for various offences.

34So I have these events.  I then have what is obviously the passage of time between the commission of the crime that I have to deal with and the passage of sentence and all these intervening events and the stop start nature of these proceedings where it was before this court earlier this year and it was for reasons not in any way connected to you, unable to then proceed.  So it has been a fairly unfortunate chronology and in circumstances where as a result of the way these things have all panned out, it has robbed you really of the ability to have all the matters dealt with at the one time that no doubt would have produced some level of concurrency just by reference to the principle of totality of sentence.

35Indeed, it is reasonable to think that had this matter been in a position ever to settle in this way,  it could have been maintained in the Magistrates' Court. 
You have been dealt with on many occasions for thefts and thefts of motor vehicles in the Magistrates' Court and there is nothing in the particular circumstances of this theft that would counter the suggestion that a magistrate would have the available sentencing powers down in that court.  They can pass sentences of up to two years for an indictable offence.

36Anyway, the delay is something that I do take into account.  There is a stop start nature.  You knew what you were facing in terms of Judge Davis' crimes but even today, even as I am speaking, you do not really know what your ultimate position is.  You know what your current earliest release date is no doubt and you are sentenced to that date, but how is it all going to change as a result of this matter.  So there is that uncertainty that is not pleasant for anyone to have.

37As to your personal background, I am just not going to go into that in detail. 
It has been referred to.  There is a mental health assessment report.  It is a detailed report from Samara Gray.  It is Exhibit 2 on the plea.  Mr Thyssen has told me some brief matters in terms of your personal background as well. 
You are a person who has had some real struggles in your life.  I take that into account.  You had some difficulties in your childhood, when you were a teenager and I have regard to those insofar as I am able to.  You have also the difficulty posed by your mother.  She had a very serious bout of illness and is still housed in a nursing home.

38I do not see the need to go further into your background other than to say part of it is an extensive history of drug use and an extensive history of criminal offending that has been dealt with before the courts.  There is no utility at all in my opening up your criminal record and tabulating or calculating the number of appearances and the number of individual offences that you have committed.  We would be here for a large part of the rest of the day, because there is a very significant criminal history even allowing for the duplication posed by appeals that have been sometimes taken by you.  Your criminal history spans something like 33 pages and you have been given opportunity time after time after time. You have breached very many court orders, you have been sent to prison often.  Indeed, the thrust of the plea recognises that fact, to quote your counsel's written outline, "You are tired of constantly being in trouble, homeless and reoffending and being gaoled."  You want to in the future keep out of trouble.

39I had mentioned that in terms of your background, you have had homelessness and it can hardly be ignored that at the time of these events, you were living down at The Gatwick private hotel down in Fitzroy Street.  I guess it is a roof over your head but it was not much more than that and on one view, homelessness is almost preferable to living in that place. 

40Well you have got a very significant criminal record, and for relevant offences.  Many instances of dishonesty offending, so the need for specific deterrence, that is deterring you from future offending is plain enough.  But I take the point made again by Mr Thyssen that I cannot ignore this fact that you are now serving a very sizable sentence of imprisonment, more sizeable than you have ever received, actually with a significant non-parole period and that fact, well the fact that you are serving that sentence in those other matters will have some role to play surely in deterring you in the future.  Hopefully it will.

41As to your prospects of rehabilitation, well you have heard the dialogue between the Bench and your counsel.  It is hard to be that upbeat about your prospects.  You probably are not yourself.  You are at an age where you are sick and tired of living the sort of life you have been living.  You have probably been sick and tired of it for many years though.  It reflects the fact that you have difficulties leading a life other than the life you have been leading, which involves drug use.  There were some mental health issues as well.  There might even be an interplay between those two things.  There is homelessness and there is offending.  They go hand in glove, these characteristics.  They are long term matters.

42So it is a bit difficult not to be guarded or even gloomy about your prospects, given that criminal history placed before me.  You do not fall to be sentenced a second time though.  You have been dealt with for those matters in the past.  I have to have regard to those matters in reaching some sensible conclusion as to your prospects of rehabilitation.

43The test will come for you as it probably always comes upon your release and it is not easy.  It has not been easy in the past.  You have failed that test in the past, and it will not be easy in the future.  What you have got to try and do is set yourself up for that release in the period that lies ahead for you in custody. 
So that is when the test will come.  Not now, but when you are released, but you have got to prepare for that appropriately.

44I am certainly not going to write you off.  I am prepared to find that you do have some prospects of rehabilitation.  I cannot really put it any higher than that given your age and lengthy history before the courts, but if you can abstain from the use of drugs, get your life in order, get a house or some form of accommodation, then you certainly have some prospects of rehabilitation, and the lengthy term of imprisonment that you are serving quite independent to anything I do is something of a circuit breaker from the life you have previously been leading.

45You are being held in custody.  Hopefully, you are remaining drug free in custody.  There is no evidence of that before me, but I hope you are.  You are taking Methadone though, I am told, and that would suggest that you probably are remaining drug free. 

46So I am prepared to find that you do have some prospects of rehabilitation and we have a non-parole period fixed by another judge.  That is not to say you will get parole.  In this day and age, you may well not.  To get it, you need to satisfy them that you should get it and if you are released on parole, you will be released therefore with very strict supervision, which again might assist you and improve your prospects of staying out of trouble and rehabilitating.

47So I take into account these various matters that have been raised on your behalf by your counsel, including of course the written report from Ms Gray that has been placed before me.  As dated, as it is, it still has currency in terms of matters of background. 

48The offence, I have already described, I do not see the need to really go back and further describe it.  I need to have regard to the nature and the gravity of the offence.  The offence is one of theft.  It is in this court almost by default.  If it had been charged and only in this form, it would never have seen the light of day in this court.  It came up to this court purely as a result of the nature of the other charges that have embraced that particular allegation of the vehicle being taken.

49But it is not a minor offence, you know that.  It is a theft of a motor vehicle not a theft of a packet of chewing gum and it is in the setting described in the prosecution summary.  A pretty miserable one.  Where a quite vulnerable victim has lost his vehicle.  I should have asked, Mr Perry, it was recovered as the summary made plain, it was recovered and restored, wasn’t it?

50MR PERRY:  The car has been recovered, Your Honour.

51HIS HONOUR:  Yes, all right.  Well the car had been recovered and I take that into account as well.

52But I do not see the need to further describe the nature of the offending. 
Your own counsel, I think sensibly, concedes that it is sufficiently serious to warrant an immediate term of imprisonment. I agree with that submission by the way.  But it was difficult for any alternative to sensibly be raised in any event given your current custodial exposure.

53As to the purposes of sentencing, you have probably heard these rattled off a few times by magistrates and judges over the course of your history before the courts.  But I have to consider a number of purposes, not just your rehabilitation.  That is something I do have to have regard to and I do.  I do not think your prospects of rehabilitation are particularly positive, but they are certainly not non-existent.  I think you have some prospects.  If things go well with you, and I hope they do, upon your release, then you will have some prospects of rehabilitation. 

54But I have to give weight to specific deterrence, that is the need to deter you.  Well that is obvious here.  Given your history and the nature of the offences you have committed in the past and the nature of this offence, you have committed dishonesty offences for very many years, including many instances of theft of a motor vehicle.

55So I have to give weight to specific deterrence. I have to give weight to general deterrence, that is the need to deter other people from this sort of offence. 
I have to give weight to the protection of the community.  To denunciation and also to punishing you for the crime that you have committed, though I must do that justly and proportionately. 

56In terms of your conduct, as I say, it must be denounced by the court and I do denounce it.  It was pretty miserable.  Specific deterrence is a significant matter here.  It would be more significant but for the fact of the very significant term being imposed upon you by another judge for other offending and that period lying ahead of you, but I still must give specific deterrence and general deterrence weight and also must give some weight to the protection of the community.

57I have to pay regard to current sentencing practices.  Well they cover a multitude when one comes to consider the charge of theft and most thefts that are dealt with on indictment in this court are on indictment because of their pure scale.  That is not the position here.  Your matter is here by virtue of being brought up here on the back of the other matters.  So there is no utility in me looking at, for instance, a Sentencing Advisory Council Snapshot dealing with the crime of theft.  It will not inform me at all.

58What I have got to do is I have got to look at your case, the individual circumstances of your offence, your individual personal circumstances, then make the judgments to be made as to the weight to be given to these various purposes of sentencing and intuitively synthesise these matters and impose an appropriate sentence.

59There is no PSD here and I have made that plain that it is the position that it has previously been declared, however I cannot just shut my eyes to your current custodial exposure or your past exposure over the last significant period of time.  You have been continuously in custody, I was told, since June 2016, with some journeys in and out of custody leading up to that date.  It is as a result of that that other judicial officers have made these significant declarations as to pre-sentence detention.

60Well I cannot ignore that.  That is the reality of your position.  You are the person I am sentencing.  You last saw the light of day figuratively in the community in June 2016.  You will not for some time in the future even without any further intervention by this court in passing sentence and in cumulating.  So I cannot ignore your custodial exposure.  Indeed I have got to have regard to it in engaging in the process of giving weight to the principles of totality of sentence.

61You have been in custody in the way it has been described and you will be in the future, independent of my sentence and I cannot ignore that.

62The relevance it seems to me, particularly, is the fact that you were dealt with by Judge Davis recently for offences that pre-dated the offence that I have to deal with and that were obviously more serious given the nature of those crimes charged against you and the sentence imposed.  So I have to pay regard to totality of sentence.

63But as is conceded, at the end of the day, there is just no alternative but to impose a term of actual imprisonment upon you and I accept that that is the position.  The issue then is the dimensions of the sentence, whether it requires or for that matter even permits the fixing of a non-parole period and if it does, and if it was my intention to fix one, then of course, I would need then to fix a new single non-parole period because you are still within the non-parole period of Judge Davis' sentence.

64Ultimately, when I consider all of these matters, as best as I can determine, I do not believe it is necessary for me to pass a sentence that requires the fixing of a non-parole period, so I am not going to fix a new single non-parole period obviously enough.  What I am going to do is I am going to pass a straight sentence upon you and then I am going to make an order for some measure of cumulation upon your existing sentence.  I am moderating that cumulation owing to the principles of totality that I have spoken to.  There is the significant term that you have in existence already and will continue to have.

65But the offence I am dealing with is still a serious criminal offence.  It is one that is deserving of a significant term of imprisonment.  So what I am going to do, if you would stand up please, Mr Dirbass, on the charge of theft, that is Charge 1, the only charge on this indictment, I convict and sentenced you to 12 months' imprisonment.  I direct that four months of the sentence imposed this day by me is to be served cumulatively, that is on top of the sentence that you are currently undergoing.  So eight months of the sentence is going to run concurrently with your existing sentence.

66There is a requirement for me to make an order against your licence. 
All licences held are cancelled and you are disqualified from driving for a period of six months and that is going to be effective from today's date.  Now that does not really then produce any actual penalty upon you but I do not regard it as appropriate to defer the commencement of that licence order to the point when you are released.  It seems to me when you are released, you will need everything going in your favour and if one of those things is the ability to get a licence, I do not know what your status is at the moment, but I do not want to impede that.  So I am dealing with that order effective from today, six months.

67There is no PSD declaration for me to make.  Of course as I have said, I have taken into account in the way in which I have described, the past period that you have spent in custody and the future exposure that you have.  I have also told you that I have taken into account your guilty plea and I have.  If you had pleaded not guilty to this charge and been found guilty of it by a jury following a trial, I would have imposed a greater sentence.  In those circumstances, I would have convicted and sentenced you to two and a half years' imprisonment.  I would have fixed a non-parole period of 18 months in those circumstances and that s.6AAA declaration is to be noted in the records of the court.

68Now, are there any other matters that I need to deal with?  There are matters.  Remain seated, Mr Dirbass.  There is an application for a disposal order. 
Mr Thyssen, there is no issue in terms of that, is there?

69MR THYSSEN:  Not opposed.

70HIS HONOUR: The disposal order is not opposed. It is an application made under the provisions of s.78 of the Confiscation Act for the disposal for what is now the single item in the schedule which is the VicRoads assorted registration and paperwork.  I am satisfied that it was used or intended to be used in connection with the commission of the offence.  That the conditions for its forfeiture and disposal are made out under the Act, and I forfeit that property to the state.  I direct that it be handled and dealt with in the manner contemplated by the order which I have signed.

71Secondly, there is an application for a s.464ZF sample to be taken. 
I order pursuant to the provisions of s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth.  That is what I am authorising, a mouth scraping, not a blood sample, and that is to be done in accordance with Subdivision 30A of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database.

72I have considered the making of this order.  I understand that you say that you believe you have had a sample taken in relation to this matter but there is no reference to that that I can see.  No doubt if it proves to be incorrect, then there would be no need for this sample ultimately to be taken but at this point, there is the application.  Your counsel has raised that issue, but there is not really an opposition to the making of the order as I perceive it.

73In any event, I take the view the making of the order is justified owing to the seriousness of the circumstance of this offence.  Your prior convictions are such as to warrant it and I am making the order in a non-opposed setting.  I judge it to also be in the public interest. 

74The authorities can use reasonable force to take this mouth scraping, that is what it will be.  It is not an invasive procedure, particularly.  If they encounter any resistance, no doubt they can use reasonable force.  I have not authorised a blood sample at this point.  No doubt if they are unable to obtain a sample with a swab, they will be back before me, the authorities making the application for a blood sample which to this point I have not authorised.  I have signed that order and I have now pronounced that.

75Are there any other matters that I need to deal with, Mr Perry?

76MR PERRY:  No, Your Honour, no.

77HIS HONOUR:  All right.  Will you go down and see your client downstairs,
Mr Thyssen?

78MR THYSSEN:  I will, Your Honour.

79HIS HONOUR:  Yes, all right.  Well thank you very much.  I will just sign those formal orders and then Mr Dirbass will be removed.  The computer is giving me orders that are not appropriate for me to sign.  I have made it plain I am imposing a 12 month term of imprisonment for this matter.  I am cumulating four months with the existing sentence but the computer is telling me how I should express it.  I am refusing to express it in that way.  If I do, it is going to lead to a greater term being reckoned by the authorities.  So I will sort that out downstairs and sign it downstairs, Mr Thyssen.

80MR THYSSEN:  Yes, Your Honour, thank you, Your Honour.

81HIS HONOUR:  If there are any issues in the way the ultimate order is being interpreted, obviously it can always be brought back before me. 

82Well Mr Dirbass, I will sign the formal orders downstairs in a moment, but that is all you need to hear at this stage.  So Mr Thyssen will come and see you downstairs, all right.  Mr Dirbass can be removed.

(Prisoner removed.)

83Thank you.

84MR PERRY:  Thank you, Your Honour.

85MR THYSSEN:  Thank you.

86MR PERRY:  We'll go away now.

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