Director of Public Prosecutions v Dittloff

[2016] VCC 614

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01982

DIRECTOR OF PUBLIC PROSECUTIONS

v

JORDAN DITTLOFF

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 May 2016
CASE MAY BE CITED AS:	DPP v Dittloff
MEDIUM NEUTRAL CITATION:	[2016] VCC 614

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Maxwell	Office of Public Prosecutions
For the Accused	Mr I. Pugh	Finn & Pugh

HIS HONOUR: 

1I propose to correct this sentence or set it aside and re-sentence Mr Dittloff.  I make these remarks by way of introduction, that is, I commence this re-sentencing by referring to remarks of Weinberg JA when delivering a keynote address at a sentencing conference in Canberra in February 2012.  He commenced his address as follows: 

"Anyone who has ever had to sentenced an offender will know just how difficult that task can be.  Of course, it is difficult at a human level.  Regrettably, it has also become difficult at a technical level, having regard to the extraordinary complexity that now permeates current sentencing law.  In fact, sentencing which was once a relatively straightforward matter is full of traps for the unwary."

2The need to re-sentence Mr Dittloff is because of my misapprehension of s.44 of the Sentencing Act.  By reason of the recent addition to the Sentencing Act of s.104B, I can correct the unlawful sentence I imposed without this matter having to go to the Court of Appeal for correction. That process is a significant advance given the complexities that sentencing judges now face.

3The options put forward as to the re-sentencing have operated on the basis that Mr Dittloff would not have to do any more certain prison time by reason of any sentencing error.  I accept that is the proper approach.  However, any re-sentencing ought to be to impose a just and appropriate but now a correct and lawful sentence. 

4Ms Maxwell, who appears for the Director of Public Prosecutions, contended I could re-sentence by imposing a longer head sentence and imposing the same non-parole period. The second options was that I could defer sentencing until sometime in July, which would allow for the same sentence to be imposed and the same community corrections order. Thus, it would fit within the provisions of s.44 of the Sentencing Act. 

5That last option must now be seen in light of the firm words that the Court of Appeal in the very recent decision of DPP v Basic [2016] VSCA 99 which was delivered on 10 May 2016. The Court in that case said the following:

"This Court has, in recent times, seen a number of examples of trial judges having imposed sentences of two years, or just below, as a ‘ploy’ to enable a combination sentence of a term of imprisonment and a CCO to be ordered. This approach is inconsistent with the correct application of sentencing principle. It can result in sentences, including orders for cumulation, which do not adequately reflect the gravity of the offending or the offender’s total criminality. This Court has also seen other contrivances used in an apparent attempt to circumvent the limitation created by s.44(1) of the Sentencing Act, and the difficulty of reconciling that provision with s.11 of the Act.  Thus, trial judges have, on occasion, refused to declare pre-sentence detention, or full pre-sentence detention, in accordance with s.18 of the Act so that the end result will be a sentence involving more than two years’ actual incarceration, but coupled with a CCO of some years’ duration.  This circumvention through the use of s 18 of the Act, of the requirement that any sentence of two years or more be accompanied by the fixing of a non-parole period (save in the limited circumstances set out in s.11 of the Act) has been criticised by this Court in DPP v Grech.  We endorse those criticisms."

6The Court went on:

"    Plainly, the CCO provisions are not working as intended.  Putting to one side the question of policy addressed in Boulton v The Queen, these provisions are distorting the sentencing process and producing artificial results.  We would urge that the legislature give serious consideration to amending the relevant sections so as to avoid this consequence."

7I consider the proposal that I delay sentencing to allow the capacity to impose at community corrections order, while not doing precisely what was criticised by the Court of Appeal in Basic would be, to a degree, artificial in a way that was in my view the spirit of what was set out in DPP v Basic [2016] VSCA 99. The deferral of sentence would be for no other reason but to allow me to reimpose the sentence I imposed in March.

8In my view, the Court of Appeal has made clear this sort of sentencing practice should be avoided.  There is no reason why I should not re-sentence Mr Dittloff now.  A fundamental of sentencing is it should not be delayed.  The principle of justice delayed is justice denied applies to the sentencing process, perhaps particularly so. 

9While deferral of sentence by a County Court judge is now authorised by the Sentencing Act, that is for circumstances much different to these.  I consider I have no other option but to re-sentence by imposing a head sentence and the same minimum parole period and remove the requirement for a community corrections order.

10I wanted a community corrections order for further supervision of Mr Dittloff, especially in relation to drug problems.  I wanted him to do work in the community, particularly the community that felt widely the effect of his crimes.  Thus, a period on parole, if it is granted, will involve significant supervision, and I hope that is directed at Mr Dittloff's drug problems.  I am confident it will be. 

11The punishment aspect of a community corrections order that I impose is not simply transferred to a longer head sentence.  There is more to it than the mere mathematical conversions.  The punishment in the sentence that I am about to impose with a longer head sentence includes the risk of a longer gaol term - either because parole is not granted or until parole is granted, or if parole is granted and there is a breach, there is the risk of a longer period in custody. 

12All of this is of course dependent on the discretion exercised by the parole board, but there is further punishment for Mr Dittloff now that the community corrections order will be put to one side.

13Thus, the sentencing orders that I imposed on 2 March are vacated pursuant to the provisions of s.104B of the Sentencing Act.  Mr Dittloff, I re-sentence you as follows to an aggregate term of 36 months' imprisonment and I impose a minimum non-parole period of 20 months - that is the period that was imposed in March 2016.  That is, there is a six-month increase on the head sentence.  

14In respect of s.6AAA of the Sentencing Act, that remains the same - that had you pleaded not guilty of being found guilty of these offences, I would have imposed a sentence of five years with a minimum of three years.  I must declare what time you have served in custody as attributable to these offences and as I understand it from this morning's discussion although this will be confirmed, that your current pre-sentence detention is 103 days.  Is that correct?

15MS MAXWELL:  That is correct, Your Honour.

16HIS HONOUR:  Is that right, Mr Pugh?

17MR PUGH:  I agree with that, Your Honour. 

18HIS HONOUR:  Thus, to make it clear, there is no community corrections order that follows.  Thank you.  Now, Ms Maxwell and Mr Pugh, is there any difficulty or problem or anything that is not understandable or incorrect or the like?

19MS MAXWELL:  I just query Your Honour made all of those compensation orders ‑ ‑ ‑ 

20HIS HONOUR:  Yes.

21MS MAXWELL:  Does Your Honour now just need to announce them for the purposes because you are re-sentencing?

22HIS HONOUR:  Thank you.  The compensation orders made on 2 March are remade today.  I do not have to re-sign them I am told, all 50 of them.

23MS MAXWELL:  No, Your Honour.

24HIS HONOUR:  Anything else?

25COUNSEL:  No, Your Honour.

26HIS HONOUR:  Thank you, I am grateful for your assistance this morning.  Is there any reason that we need to keep the links going?

27MR PUGH:  My client might want to speak to me briefly, would that be acceptable, Your Honour?

28HIS HONOUR:  We will all hang up and somehow you will be able to do that.  I will just get out of the room.  I think given the circumstances that is perfectly legitimate, Mr Pugh.  Thank you.

29MR PUGH:  Thank you, Your Honour.

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