Director of Public Prosecutions v Dodemaide
[2019] VCC 1278
•14 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-00329
CR-19-00325
DIRECTOR OF PUBLIC PROSECUTIONS
| v |
JOSHUA DODEMAIDE
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 July 2019 | |
DATE OF SENTENCE: | 14 August 2019 | |
CASE MAY BE CITED AS: | DPP v Dodemaide | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1278 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – kidnapping – mandatory imprisonment – statutory exceptions applied – psychosocial immaturity – disparity with sentence imposed on co-offender – community corrections order with significant therapeutic conditions – disqualification and cancellation of licence
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Malik | Office of Public Prosecutions |
| For the Accused | Mr S. Gardner | Galbally & O’Bryan |
HER HONOUR:
1 Joshua Dodemaide, you have pleaded guilty to one charge of intentionally damaging property, one of kidnap, one of reckless conduct endangering serious injury and one related summary offence of committing an indictable offence whilst on bail. I rely on the prosecution summary in recounting the events in these reasons. You dispute some of the matters in the prosecution summary but, in the absence of evidence supporting your version, I accept the prosecution summary and sentence you on that basis.
2 The offences occurred in the early hours of the morning of Sunday, 3 June 2018. You were living with your co-offender, Evan Fox, at an address in Carrum Downs. You had been at home drinking with Mr Fox and others and you had gone to bed at about two in the morning. At about 3.00am you and Mr Fox were apparently awoken by the sound of a car doing a burn out in front of your house. You both immediately grabbed implements and got into your Toyota Hilux intending to pursue and locate the vehicle that had done the burnout.
3 Jarrad Muscat, a person unknown to you, was driving his ute along the street where you lived to the house of a friend of his at about three in the morning. He happened to cross paths with your Hilux. You were at the wheel. You slowed down and moved into the centre of the road causing him to stop. You and Mr Fox got out of the Hilux and took to Mr Muscat’s ute, hitting it with the implements that the two of you had armed yourself with before leaving your house. Mr Muscat described one of the weapons as similar to a mace, a ball on the end of a rope with a handle. The two of you struck at the windscreen and the driver's window causing damage to the vehicle. That is Charge 1, criminal damage.
4
Mr Muscat, fearing for his safety, reversed his car and then drove forward and around you down the street at some speed. The two of you got back into the Hilux, you again at the wheel, and chased him. When Mr Muscat reached an intersection, he stopped. He saw your vehicle in pursuit and did a U-turn to go back along the road in an attempt to get to his friend’s house and safety. As he completed his U-turn, you drove across the median strip and rammed the driver's side door of
Mr Muscat’s car. That caused his car to spin and the Hilux itself continued forward until it crashed into a wall. That is Charge 2, reckless conduct endangering serious injury.
5 When the two cars came to a halt, you and Mr Fox got out of your car again and approached Mr Muscat, who remained in his car. The two of you dragged him from the car, threw him up against it, and then started punching and kicking him to his head and body. Mr Muscat was mystified as to why the two of you had pursued him. He said, ‘What have I done? I don’t even know you’. You said, ‘Don’t fuck with me. I'll kill you now. I have got the footage’. Mr Muscat said, ‘What footage? I was just driving past’. You said, ‘You know what footage. You know what you fucking did’. It would appear that those references to the footage were to a CCTV camera outside your house you apparently believed would identify Mr Muscat as the person who had done the burn out.
6 Mr Muscat said, ‘I’m Jarrad Muscat. Are you sure you've got the right guy?’ As this was happening and despite his protestations of innocence and his preparedness even to identify himself to the two of you, he was dragged into the Hilux and thrown into the back seat. Mr Fox got into the driver's seat of the Hilux and you got into the back seat with Mr Muscat. It is those circumstances, dragging Mr Muscat into the Hilux, throwing him into the back seat and the two of you getting into it with him, that constitutes Charge 3, kidnap.
7
In Mr Muscat’s presence, you and Mr Fox then had a conversation about getting rid of Mr Muscat’s car. You said, ‘If we leave it there they will be able to find him'. Mr Fox then got out of the Hilux and got into
Mr Muscat’s car and tried to start it but, because of the extent of damage caused by the ramming, he could not.
8 You then got into the driver’s seat of the Hilux and drove away from the scene, leaving Mr Fox behind and with Mr Muscat still in the rear seat of your car. You struck him with the back of your hand and said, a number of times, “Shut up, or I’ll kill you now”.
9 As the Hilux slowed, Mr Muscat looked at the door handle. You said to him, “Don’t even think about it”. You then hit him again, using the back of your hand. It is an indicator of how terrified Mr Muscat was that, although the car was moving at some speed, he opened the car door and threw himself out. He landed on his back on the road, got up, ran to the home of the friend that he had been going to visit in the first place and called the police.
10 It was some time before you returned to your home. Mr Fox had arrived home before you. You told him that Muscat had escaped. You then left the house again, driving the Hilux somewhere where you hid it.
11 At the time, you were on bail for an assault related charge. That gives rise to the related summary charge of committing an indictable offence whilst on bail. Although it appears that you acknowledged, in respect of that charge, that you hit a man on the head with a bottle, I am told those charges were dismissed, apparently on the basis self-defence could not be excluded.
12 Police attended the scene shortly after Mr Muscat got to his friend's place, but they were not able to identify at that stage who was responsible for the attack on him. Later that day, at about 4.40pm, they went back to the scene. Again you and Fox were at home. There were tyre burn out marks visible on the road outside the house.
13 Mr Fox told police he had heard the sound of burnouts during the night, but neither of you volunteered any information about your involvement in the offending.
14 The CCTV footage that you had made reference to at the time of the attack was ultimately seized by the police under warrant. It showed a vehicle doing burnouts outside your house but it was not Mr Muscat's.
15 You were eventually arrested and interviewed. You made a 'no comment' interview.
16 You were charged on 3 October 2018. Your contested committal was listed to commence in February 2019. As the committal was about to commence, Mr Fox made a statement to the police admitting his involvement and implicating you. Mr Fox indicated he was prepared to give evidence against you. It was only then that you abandoned the contested committal, entered your pleas of guilty to these charges and were, as a result, committed to this court for plea and sentence.
17 As a result of the entry of your guilty plea, Mr Muscat was spared the ordeal of cross-examination at committal and the time and cost to the community of committal and trial were saved. The utilitarian value of your pleas of guilty and the relatively early stage at which they were entered entitle you to a considerable reduction in the sentence that would otherwise have been appropriate. I will address their relevance to remorse later.
18
This was a senseless attack and it must have been terrifying for
Mr Muscat. The discovery that he was not the person doing the burnout demonstrates just one of the vices of vigilante behaviour. Here an entirely innocent person was attacked, assaulted and terrorised. His car was damaged, both by being struck with weapons and then being rammed and it was rendered undriveable. The attack on Mr Muscat himself was not only terrifying but it was vicious and it sprang from an irrational and mistaken belief he had done something that you did not like. As noted, it was not even him, but what had the unknown person done? Nothing worse than a burnout in front of your house. Neither your conduct nor your explanations in any way justify what you did. Even if Mr Muscat had been the person doing a burnout outside your house, your conduct is simply not defensible.
19 It is noteworthy that, when the police attended later in the day, the burnout marks were in the street out the front of the house, not in the driveway as was put on your behalf on the plea before me.
20 Whatever vigilante justification you tried to hide behind at the time, or still seek to advance to those who assessed or treated you on the plea in order to explain your behaviour, that must be seen through the lens of what you did after Mr Muscat threw himself out of your car. Your conduct in trying to remove his ute from where it had been damaged, in not yourself returning home for a considerable period and in then leaving almost straight after that and driving the Hilux away and hiding it, shows how thoroughly at the time you appreciated that your conduct was unlawful and unjustifiable.
21 That you and Mr Fox were substance impaired and may have been, as a result, disinhibited does not diminish the seriousness of the offending. In fact, in my view, it adds to the seriousness of it. Substance impairment deprived you of the ability to make calm and rational judgments. To drive your vehicle, in the manner you did, when substance impaired, adds further to the seriousness to the driving itself and of the offending overall. You, Mr Dodemaide, and others like minded, must understand that vigilante attacks are not to be tolerated. And you, and others like minded, must understand that pursuing a person, attacking him and his car, dragging him out of his own car and putting him into your own and driving him away, threatening him, assaulting him and making him a prisoner in your car is simply not to be countenanced in a civilised society. Although you still seem to be advancing some justification for your behaviour to those who assessed you, I hope that ultimately, in the cold light of day, when you think of what you did and you look at it from the perspective from which I am explaining it, you start to feel thoroughly ashamed of yourself.
22 It is clear that, subject to considerations personal to you, just punishment, deterrence, both general and specific, and denunciation are therefore significant factors in sentencing.
23 Turning then to matters personal to you and which can counteract those matters I must balance against them. You were only 19 years old at the time of the offending and are now 20. You have only one previous involvement in the criminal justice system. In April 2017, when still subject to the jurisdiction of the Children's Court, you were dealt with there for one charge of intentionally causing injury and one of falsely representing you were 18 years old or older. On that occasion, without conviction, you were placed on a good behaviour bond on condition that you complete an anger management program and follow all lawful directions of your general practitioner.
24 You are to be regarded as a youthful offender, for whom encouraging or promoting rehabilitation should generally carry more weight than it would for older offenders and for whom, therefore, general deterrence generally carries less weight.
25 Generally imprisonment is, by s 5(4) of the Sentencing Act, and the application of general sentencing principles, the sentence of last resort. It cannot be imposed if another sentence which does not involve the deprivation of a person's liberty is available as a matter of law and is appropriate having regard to the circumstances of the offence and the offender, which will properly serve the needs of just punishment, denunciation, deterrence, promotion of the offender’s rehabilitation and protection of the community. That is, to use the language of s 5(4), a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
26 Further, by s 5(4C), a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one of the non-association, residence, place or area restriction or exclusion, curfew or alcohol exclusion conditions available as part of that order are attached.
27 Subsections 5(4) and (4C) of s 5 are now expressly made subject to sub-s (2H) of s 5 of the Sentencing Act. That is, a person who comes to be sentenced for a Category 2 offence must be sentenced to a term of imprisonment unless one of the specified statutory exceptions apply.
28 The kidnap charge, to which you have pleaded guilty, is a Category 2 offence.
29 The exceptions which permit the imposition of a sentence other than a term of imprisonment for kidnap at the time of this offending relevantly include, by s 5(2H)(b)(i), for offenders aged between 18 and 20 at the time of the commission of the offence, a person whose who had a particular psychosocial immaturity which has resulted in a substantially diminished ability to regulate their behaviour, when compared with the norm for a person of that age.
30
You were, at the time of offending, relevantly for s 5(2H)(b)(i), aged over 18 and under 21. A comprehensive psychological assessment of you was conducted by the psychologist, Mr Patrick Newton, for the purposes of the plea. In addition to conducting a comprehensive assessment on that day, he was provided with a significant body of material, documenting your history. That material included relevant extracts from your medical records from 2009 to 2017 (that is when you were between 11 and 18), a 2009 report from paediatrician, Dr Frederick Jarman, a 2014 report from psychologist, Dr Sarah Rooney, a report from your general practitioner, Dr Cheryl Ong, dated 28 June 2016, a 2018 patient health summary from her medical centre, Eramosa Family Medical Centre and two reports, dated October 2018 and June 2019, from
Dr Sebastian Jungnickel, an addiction psychiatrist. Mr Newton also received oral reports and in fact supervised Mr Peter Hanley, a provisionally registered psychologist who works in his practice, who had conducted five counselling consultations with you in the weeks leading up to the plea hearing.
31 Mr Newton reported that you impressed as immature. Your insight into interpersonal and emotional issues was very limited. Your emotional demeanour was euthymic and bordering on the fatuous. He concluded that your answers to the comprehensive psychological testing he conducted were consistent with severe behavioural pathology, including substance abuse and conflict management problems, in the context of entrenched personality dysfunction and prominent emotional problems. He was satisfied on other testing that your test profile was valid.
32 He concluded that the main factors affecting your mental state, judgement and decision-making at the time of the offending were a combination of your substance abuse and your pre-existing personality disorders. As at the time of writing his report, Mr Newton was of the opinion that you remained trapped in severe drug addiction, in respect of GHB, cocaine and MDMA. Although on your self-report to him, you were abstinent and you could therefore be labelled in remission, that was a tentative and qualified conclusion.
33 Mr Newton noted, based on the historic reports provided to him, that you had exhibited severe behavioural problems from a very young age. You were first assessed by a paediatrician at the age of two. Your progress towards developmental milestones was inconsistent. At age four, an assessment indicated that you had above average abilities. Later assessments showed both average and below average abilities at different times. You have attracted in your childhood diagnoses of ADHD, oppositional defiant disorder and what was then called Asperger's disorder, now subsumed within the autism spectrum disorder group. Although you were treated with various medications including stimulants and antidepressants, the reports indicated that they had had limited effect in alleviating your symptoms.
34 Mr Newton reported that underpinning your behavioural problems and mutually reinforced by them was your unstable sense of identity and persisting immaturity. Your early developmental problems led to severe delays in social and emotional development, leaving you, he said, uncertain of your safety and security in the world. Even now, according to Mr Newton, you remain an immature person for your age. Your mannerisms and demeanour are more in keeping with those of a younger person and, in his opinion, your understanding of your emotional world is superficial. He concluded that you had only made piecemeal progress towards establishing yourself in any of the typical roles of adulthood. Whilst you have completed your apprenticeship, your work engagement, he noted, had been limited, disrupted significantly by your substance abuse. He said your views on most major life issues remain at a quasi-adolescent rather than at an adult level of sophistication. Your relationships have been chaotic and founded on an unstable attachment buttressed by mutual drug use. Your social interactions have been centred around dysfunctional drug using and antisocial subcultures. Your sense of direction in life remains diffuse and your identity development was stuck in a formative level.
35
He concluded that the personality traits he has described are an integral part of your make up and have been present from childhood and adolescence into your early adulthood. It is his view that you would clearly meet criteria for a borderline personality disorder. He notes that
Dr Jungnickel, the addiction psychiatrist, has reached the same conclusion. Borderline personality disorder is characterised by an entrenched pattern of emotional dysregulation, risk-taking, interpersonal problems and identity diffusion. Mr Newton notes that you also present with prominent traits of antisocial personality disorder.
36 It was his opinion that your substance addiction was the primary mental health condition requiring treatment and that treatment for your personality disorder ranked next. That was so, according to him, because your dysfunctional personality traits underpinned your other problems, predisposed you to emotional dysregulation and other psychological difficulties and played a central role in your offending conduct.
37 He was at pains to emphasise that it was the impact of your personality disorder, and not any other mood disorder or anxiety related disorder, that was most central to your mental state of the time the offending conduct. That in effect ruled out the applicability of Verdins to an assessment of your moral culpability.
38 This does not avail you of any mental state defence or operate so as to reduce your moral culpability. It does however bring you clearly and unequivocally into the s 5(2H)(b)(i) exception and so permits me to impose a sentence other than a term of imprisonment for the charge of kidnap.
39 That is because, at the time of the commission of the offence, you were aged between 18 and 20 and I am satisfied, based on Mr Newton's report, that you have a particular psychosocial immaturity which has resulted in a substantially diminished ability to regulate your behaviour, when compared with the norm for persons of your age.
40 Having passed that threshold, fixing on the appropriate sentence for you nonetheless remains difficult. As noted, your substance abuse is clearly seen by Mr Newton to be a very serious problem. He notes that the extent of your substance abuse was such that, at the time of the offending, you were familiar with the effects of the substances that you abused and that you should have been able to anticipate the likely effects of using them. He notes that your drug use has precipitated severe consequences across almost every area of your life and, even at the time of writing his report, despite extensive recent treatment including detoxification, residential treatment and ongoing drug counselling, you reported to him a continuing use of GHB.
41 Mr Newton noted with concern that you had very limited awareness of the risks of drug use and lacked insight into issues such as relapse prevention and harm minimisation despite the intensive therapy and treatment that you had undergone. In his opinion, there remains a strong need for you to receive structured drug education. He strongly recommended it take place in the context of supervision with unequivocal contingencies for non-compliance
42 Your personality disorders, the borderline personality disorder and the prominent traits of antisocial personality disorder also constitute a central risk factor for further involvement in the criminal justice system and for broader behavioural difficulties. There is, Mr Newton says, a compelling need for treatment. I agree with that and accept unreservedly his opinion.
43 Although your moral reasoning is based on a pragmatic and instrumental ethos, he concludes that you are capable of understanding the implications of your actions and appreciating their wrongfulness.
44 He concluded in these terms:
'Mr Dodemaide presents as a man who continues to suffer noteworthy psychological problems. In addition his continuing substance related problems have considerably worsened his condition. While he has made some recent progress in completing his apprenticeship his adaptive functioning remains poor, his insight into his problems is limited and he continues to use drugs despite the provision of multi-faceted treatment from diverse compassionate and skilled clinicians. It is clear from my assessment that Mr Dodemaide's problems will only be addressed through engagement in intensive long term supervised treatment. Speaking in terms of his rehabilitation which is acknowledged to be only one of several factors of relevance to the court's decision making the following aspects are considered to be particularly important.
(1) drug and alcohol rehabilitation. Mr Dodemaide's drug use remains problematic and his level of insight into his problems is limited. He requires structured education and counselling to assist him to develop insight into the risks posed by his drug use and to educate him in relapse prevention strategies, harm minimisation and behavioural management skills. Any community based rehabilitation would need to be extended in duration and encompass regular monitoring;
(2) continued psychological counselling to assist him to manage his anxiety, improve his adaptive living skills and develop better consequential reasoning skills. In the event that it were deemed helpful and assuming Mr Dodemaide were to remain at liberty we would be willing to assist him with continued psychological treatment towards these goals;
(3) psychiatric treatment to address Mr Dodemaide's personality disorder. The required treatment could readily be arranged for
Mr Dodemaide in a community setting. He already has connections to a psychiatrist with appropriate expertise who works at a clinic which operates a personality disorder treatment program. In addition Mr Hanley of this practice would be available to continue the treatment he has commenced. In such a context Mr Dodemaide would have the ongoing support of his family as well as the availability of continued work to enhance the development of pro-social connections, close oversight and stringent supervision would clearly be required in such a context. In a prison based context Mr Dodemaide would be a relatively vulnerable prisoner on account of his youth, his naivety to the custodial environment, the deficits in his personality which render him vulnerable to negative peer influence and his tenuous recovery from drug addiction. Were he to be placed in custody it would be important for him to have access to mental health treatment and support and to be placed to the extent practicable in a unit for young offenders. Even with such provision being made it would appear uncontroversial to suggest that the rehabilitative opportunities in a custodial context would be substantially reduced relative to those available in a community setting. It is acknowledged of course that factors beyond Mr Dodemaide's rehabilitation will be relevant to the matter of disposition.'
45 I am satisfied, based on Mr Newton’s comprehensive assessment, that you fall within the exception to the mandatory imprisonment for the offence, but that consideration of the appropriate sentence remains a complex question and the needs of all five sentencing factors, just punishment, denunciation, deterrence, both general and specific, encouragement of rehabilitation and protection of the community, still require weighting.
46 I have dealt already in part with just punishment, denunciation and general deterrence and I will now turn to matters personal to you, as they are relevant to just punishment, denunciation, specific deterrence, encouragement of rehabilitation and protection of the community.
47 You were born and raised on the Mornington Peninsula in an intact family. Your parents each have post-secondary qualifications and report stable, good work histories. They have obviously been able to provide a good and stable home and upbringing for you and your siblings.
48 Although your mother has her own history of living with and managing a mental health condition, it does not appear to have adversely impacted on the extraordinary level of care that she and your father have given you, in seeking help for and dealing themselves with the many challenges that your difficulties have presented. Although you describe your parents as loving and supportive, it has clearly not been easy for them. I am told your two siblings both have problems with substance abuse and they too present your parents with significant challenges. They remain devoted however to supporting you.
49 You needed assistance throughout your schooling. You completed Year 10 in 2013. In 2014, at the age of 16, a Department of Education and Early Childhood Development psychological assessment, although eschewing at that stage a formal diagnosis of autism spectrum disorder, reported that you had a number of characteristics consistent with it, including behavioural, social and communication difficulties.
50 That same year you were prescribed Zoloft, an antidepressant. By the age of 18, you had been diagnosed as experiencing a major depressive episode, notwithstanding the prescription of Zoloft. You were admitted to the Melbourne Clinic as an inpatient for one week.
51 In April 2018, only two months before this offending, you made an attempt on your life. As a result, you spent two days in hospital in an induced coma and were referred back to the Melbourne Clinic under the care of consultant addiction psychiatrist, Dr Sebastian Jungnickel.
52 Despite the developmental, behavioural and mental health difficulties that I have detailed both from Mr Newton's report and just now, you had managed, by January 2018, to complete an apprenticeship as a carpenter and to hold down a full time job as a contractor with a carpentry business in Crib Point. Your employer, Mr Johnston, provided a testimonial in which he described you as 'a brilliant contractor of good character'. He spoke well of your hard work and contribution to the business.
53 After you were charged, you spent 22 days in custody before being released on bail. It was your first time in custody and you were held in a mainstream unit at Port Phillip Prison. Mr Gardiner submitted that this was a ‘rude awakening’ and a letter that your mother provided to the court describes you as being overwhelmed and “in a constant heightened state of imminent danger for yourself and others who you perceived as threatened” when she visited you in custody.
54 After 22 days, you were released on the intensive supervised CISP bail program. Two progress reports tendered on the plea detailed the steps taken by you to engage in substance abuse treatment, counselling and anger management treatment. You were commended by the author for your commitment to addressing your treatment needs.
55 It was whilst on CISP bail that you underwent a six day detoxification program at the Melbourne Clinic, which was followed by a 28 day residential rehabilitation program.
56 You have continued your engagement with Dr Jungnickel and have also engaged with Mr Peter Hanley, the treating psychologist, who works in Mr Newton's practice. You have demonstrated a degree of commitment to engage with your therapists, even after the CISP bail conditions were removed. You are enormously advantaged by the fact that your parents and employer actively support your continued engagement with your therapists. Despite that support, by the time of the plea, you had missed a number of appointments and were reporting some continued drug use.
57 As Mr Newton’s report made clear, your substance abuse is your most concerning problem in terms of your risk of reoffending. That alone is of concern but, when coupled with your behavioural problems and personality disorder, it is clear that you pose a real risk to the community of violent, aggressive, impulsive behaviour, possibly brought about by reason of an irrational fear or belief about a threat posed to you. The risk of you developing an irrational fear or belief about a threat posed to you is significantly compounded when you are abusing substances.
58
There are some encouraging signs that, even with your serious history of substance abuse and your limited capacity for insight, you are taking concerted and persistent steps to address your substance abuse and behavioural problems. The reports from Dr Jungnickel and from
Mr Hanley that were provided on the plea were promising. However, at the time of the plea, I was of the view that your engagement with them had been for a relatively short time, that your progress had been interrupted by relapse and that you were reporting, even at the time of the plea hearing, continued use of GHB despite the intensive detoxification and residential treatment programs that you had undertaken whilst on CISP bail.
59 That was one of the reasons I adjourned the plea hearing for this period, to give you the opportunity to demonstrate you could sustain your engagement with your therapists. The additional report from Mr Hanley provided just days before the resumption of the plea confirms that.
60 A full assessment of your suitability for a community correction order was also ordered by me and that was conducted during the adjournment period. That concluded, somewhat surprisingly given Mr Newton’s report, that you were assessed as being overall a medium risk of reoffending.
61 My own assessment, based on Mr Newton’s report, and your history and circumstances as I have recounted them, is that you are at a high risk of reoffending. I am satisfied that without intensive, supervised treatment, and without a considerable degree of court-compelled encouragement to participate, you are at a high risk of reoffending.
62 I am also of the opinion that, although a custodial sentence is in range for this offending, and would address the needs of denunciation and general deterrence, it would highly likely increase your risk of further and more serious offending.
63 You are young and have a very limited involvement in the criminal justice system. You have the great good fortune of having excellent family support, stable employment, a significant protective factor, and are already engaged with a range of therapists and therapies targeted to your unusual combination of special needs. Your plea of guilty was entered early. Although, because of your limited insight, I do not consider that it, of its own or in combination, indicates remorse, you are entitled to the full benefit of the utilitarian value of that early plea and you are not disadvantaged by this finding. All of these matters operate in your favour.
64 The law is clear. You are at an age when rehabilitation is to be encouraged and given more weight than it would if a person older than you had committed the same offences. A sentence which promotes rehabilitation, particularly when there are protective factors such as family support, employment, stable housing and where the necessary therapeutic interventions are already underway, is warranted. A community correction order with strict conditions and for a considerable period is such a sentence. It also has a greater potential to reduce the risk to the community. Or, put otherwise, it is a better means of protecting the community in the long term than a term of imprisonment.
65 The sentence that I propose to impose creates a significant and unfair disparity for Mr Fox, your co-offender. As I noted when I sentenced him, I consider that you played a greater role, you were the initiator and, of course, you were solely responsible for ramming Mr Muscat’s car, which gives rise to the charge of reckless conduct to which you and not Mr Fox have pleaded guilty. It was the fact that Mr Fox was not an Australian citizen, was unable to serve a sentence in the community and liable to deportation, that led me to conclude I had no option but to sentence him to a term of imprisonment. Otherwise he too would have fallen within the exceptions to the mandatory sentencing for kidnap and would also have been, in my view, a candidate for a community correction order.
66 I am stating that to make it clear that the disparity is one which, in my view, operates to the disadvantage of Mr Fox and the disparity is not one that operates unfairly to you.
67 I have already had a discussion with counsel this morning about the period of imposition of licence loss and I repeat my reason for the period of imposition of licence loss here.
68 This was, I consider, a really dangerous piece of driving and made more serious by the fact that you were substance impaired. The loss of the privilege of a licence, because that is what it is, a privilege, not a right, for a period that is commensurate with the gravity of the offending is important, not only to mark the seriousness of it but also to act as a deterrent to others and to you and to mark appropriate denunciation for the behaviour.
69 It is also part of the overall sentencing package and so, to some extent, has tempered the severity of the sentence otherwise to be imposed. I also propose to make an order for the provision of a forensic sample under s 464ZF of the Crimes Act. That, Mr Dodemaide, requires you to attend at a police station and to provide a swab, a buccal sample, which is done by putting a swab like a cotton bud on the inside of your mouth until a sufficient sample is obtained.
70 I must warn you that if you do not attend when directed or when required to and do not cooperate in the provision of that buccal swab then the police are authorised to use reasonable force to obtain the sample and may well use the more invasive means permitted by law, namely the taking of a blood sample. Do you understand that?
71 The time limit for attendance at a police station for provision of a forensic sample is complicated. You must let 28 days from today run and then must attend within 30 days of that time. That is, you must let the time for appeal against this sentence expire before you are required to attend and then you must attend within 30 days. I think the closest police station is Frankston? Hastings.
72 I am about to sentence you now. Could you please stand?
73 On the four charges to which you have pleaded guilty, that is the three indictable charges of intentionally damage property, reckless conduct endangering serious injury and kidnap, and the related summary offence of commit an indictable offence whilst on bail, you are convicted.
74 On each of Charges 1, 2 and 3 you are sentenced to be placed on a community correction order for a period of three years, commencing today, 14 August 2019 and ending on 13 August 2022. There are mandatory terms that apply to all community correction orders. They are these.
75 First, you must not commit another offence for which you could be imprisoned during the time that the order is in force. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. That means you must not be impaired by drugs or alcohol when attending for any appointments with or as directed by Corrections and you must submit to blood or alcohol testing if directed to do so. You must report to and receive visits from the Secretary or delegate. You must report to the Community Corrections Centre at Frankston, Ground Floor, 431 Nepean Highway, Frankston, within two clear working days after the commencement of this order. That means by close of business of Friday of this week.
76 You must let a community corrections officer know within two clear working days if you change your address, if you move, if you leave home, if you find a new place to live, if you leave your job or if you get a new job.
77 You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate. In addition to the mandatory terms, the following terms specific to you are imposed.
78 You must perform 100 hours of unpaid community work over a period of three years as directed by the regional manager. I order that all hours of treatment and rehabilitation satisfactorily undertaken by you are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
79 If you fail to comply with this condition, the Secretary to the Department of Justice and Community Safety or their delegate may give you a direction to perform additional hours of unpaid community work in accordance with s 83A of the Sentencing Act. That means that, although I have imposed 100 hours of unpaid community work, every hour that you spend attending the mandated treatment provisions that I have prescribed in this order will be credited as an hour of unpaid community work.
80 So it is my anticipation that at least 100 hours of treatment will be required across the range of conditions I have imposed and if you do all of that you will not be required to do any unpaid community work. If however you disengage from treatment you will be required to complete the hours of unpaid community work that have not been credited against your treatment. Do you understand that?
81 OFFENDER: Yes, your Honour.
82 HER HONOUR: So far as treatment and rehabilitation are concerned, you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager. You must undergo any mental health assessment and treatment and that may include psychological, neuropsychological, psychiatric treatment or treatment in a hospital or residential facility as directed by the regional manager.
83 It is my anticipation that, so far as drug and mental health treatment are concerned, Corrections will engage with you and will probably direct you to continue treatment with the therapists with whom you are currently undergoing therapy and that clearly would be desirable given the complexity of your needs and the therapeutic relationship that you have already established with all of them.
84 In addition, you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager and I direct specifically that you be assessed for suitability to participate in a road trauma awareness course and an anger management course. Do you understand the effect and conditions of this order, Mr Dodemaide?
85 OFFENDER: Yes, your Honour.
86 HER HONOUR: Do you consent to it being made?
87 OFFENDER: Yes, your Honour.
88 HER HONOUR: In a moment, I will have that handed down so you can sign it. So far as the forensic sample is concerned, I have already indicated the warnings that I must give you in relation to that. You must attend at the Hastings Police Station at 137 High Street, Hastings during the period of four weeks that starts at the end of 28 days after today. So it will allow you an appeal time of 28 days to expire and then within the next four weeks you must go and report to the officer in charge at Hastings Police Station and provide that buccal sample.
89 If you do not, as I have said, the police are authorised to use reasonable force to take the sample and the sample that is taken may well be a blood sample. I make the order because of the seriousness of the circumstances of the offending and because I consider it is in the public interest to make the order.
90
Mr Gardner, can you or your instructor please take it down to
Mr Dodemaide and make sure he understands it and have him sign it?
91 MR GARDNER: I can. Has your Honour sentenced him on the related summary offence?
92 HER HONOUR: Sorry, yes, I have forgotten that, yes. So far as Charge 2 is concerned, all licences are cancelled and you are disqualified from driving for a period of six months and I make a declaration pursuant to s 89C that you were impaired by drugs or alcohol at the time of the driving.
93 So far as the related summary offence of commit an indictable offence on bail, on that charge you are convicted and fined the amount of $1000. I declare pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty, I would have sentenced you to a combination sentence of 12 months' imprisonment and a community correction order for a period of three years. I think that is now all the orders, is it not?
94 MR MALIK: Yes, thank you, your Honour.
95 HER HONOUR: Thank you. Mr Dodemaide, a copy of that community correction order will now be made and provided to you. You can leave the dock and once the copy has been provided to you will be free to leave the court. I will stand down briefly so the court can be cleared.
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