Director of Public Prosecutions v Dyar

[2021] VCC 1685

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01642

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYAR DYAR

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2021
DATE OF SENTENCE:	28 October 2021
CASE MAY BE CITED AS:	DPP v DYAR
MEDIUM NEUTRAL CITATION:	[2021] VCC 1685

REASONS FOR SENTENCE

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Subject:  Criminal law

Catchwords:  Contravene Community Correction Order  

Legislation Cited:  Sentencing Act

Cases Cited:

Sentence:  22 days imprisonment; CCO vaired.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr W. Drent	Office of Public Prosecutions
For the Accused	Mr J. Fitzgerald	Victorian Legal Aid

HER HONOUR:

1This is contravention proceedings in relation to Dyar Dyar, whom I placed on a community corrections order after a lengthy period in custody on 22 June 2021.  We are only talking about four months ago.  The breach is by non-compliance.  Essentially Mr Dyar never attended.  The breach is particularised as a failure to report within two clear workings days and therefore, he failed to be supervised, monitored and managed as directed.  In essence, it is a spectacular fail.

2The breach is admitted. My powers on breach are to confirm the order, to vary the order. I can cancel the order and resentence and if I decide to that, I would resentence on the original offences, as well as consider the punishment for contravening the order itself, which I have to do in any event. Section 83AS(2) of the Sentencing Act obliges me to take into account, the extent of Mr Dyar's compliance on the order I imposed.  His compliance is zero.  In some ways, it is the most flagrant of breaches.

3Mr Dyar is now in custody because he failed to show up for the first listing of the contravention proceedings.  This is of course, in the context of failing to show up on at least two occasions for his plea hearing.  For some reason,
Mr Dyar keeps walking himself into trouble and walking himself into custody when it simply does not need to be that way.  He has certainly got supportive family from what I can tell.  It may well be there are other things that I am not aware of.  But as a direct consequence of his failures, he has now spent 22 days in custody and I do consider that to be a sanction and hopefully a deterrent, he is a slow learner, into the future. 

4So what I propose to do is convict and sentence Mr Dyar to 22 days in custody, on the charge of contravening my order.  Otherwise, I am confirming the order that I did make on 22 January 2021, which means he goes back onto that order and he goes back onto that order with me having the expectation that on this occasion, he will comply with it.  I am going to vary the order though.  I am going to include a judicial monitoring condition. 

5Now for Mr Dyar's purposes, that means he will see me on a date which I will select shortly, but it is going to be in December.  I know that is a very short timeframe for the Office of Corrections, but I want to see that Mr Dyar is finally making some efforts.  That means, Mr Dyar, I get a report from the Office of Corrections telling me how you are going.  You can certainly attend a judicial monitoring virtually, if you have got access to some form of device in your home and depending on how things have changed, in the past people have been able to attend at the local Office of Corrections, if it is in the country and beam in that way.  But your time has come Mr Dyar for you to do things a little bit differently.

6OFFENDER:  Thank you.

7HER HONOUR:  You must prioritise this court order.  It is the only way you are going to sort everything else out.  It will set you up for your hearing in January.  It will put you in a position to sort out the intervention order with your partner.  If you need to change location, communicate, do it properly, because otherwise you just end up sitting there.

8OFFENDER:  Yeah, yeah.

9HER HONOUR:  I presume you do not like it very much.

10OFFENDER:  No I don't actually.

11HER HONOUR:  Yes, all right well start using this.  I will just get a date in December for the ‑ ‑ ‑

12ASSOCIATE:  Monday 13 December.

13HER HONOUR:  Very well, 13 December, 10 o'clock.  I am going to get an update as to how you are going.  If I read good things, fantastic.  If I do not, you probably will be sitting back there. 

14OFFENDER:  All right.

15HER HONOUR:  All right, one ‑ ‑ ‑

16OFFENDER:  That's fair enough.

17HER HONOUR:  ‑ ‑ ‑ step at a time.  Now there is a requirement that you contact the Shepparton Office of Corrections at 2 o'clock tomorrow.  I am told you can do that ‑ ‑ ‑

18OFFENDER:  Yep.

19HER HONOUR:  ‑ ‑ ‑ by phone.  You have probably got ‑ ‑ ‑

20OFFENDER:  Yeah.

21HER HONOUR:  ‑ ‑ ‑ the phone number.  If not, get it.

22OFFENDER:  All right, sweet, easy.

23HER HONOUR:  Otherwise you are waiting for Dad to come and get you at Port Phillip Prison as I understand it.  If there is a problem in a relationship at home, sort that out too otherwise you just keep getting into trouble, I do not know. 

24OFFENDER:  Yeah.

25HER HONOUR:  Mr Taggert, anything else from you or anything I've missed?

26MR TAGGERT:  No Your Honour, thank you.

27HER HONOUR:  Mr Drent, anything I've missed from your end?

28MR DRENT:  No, Your Honour, thank you.

29HER HONOUR:  Mr Fitzgerald?

30MR FITZGERALD:  Sorry, Your Honour, just - no, no other matters from my end, Your Honour.

31HER HONOUR:  All right, well I shall - pardon me a moment.  All right, technically speaking, because I have varied the Corrections order, I need
Mr Dyar's consent.  Mr Dyar, do you consent to the - in effect, the variation which is to attend for judicial monitoring on 13 December, 10 am?

32OFFENDER:  Yes I do.

33HER HONOUR:  And do you understand the conditions of your order otherwise?  Because you are back onto the ‑ ‑ ‑

34OFFENDER:  Yep.

35HER HONOUR:  ‑ ‑ ‑ same one.  You do?

36OFFENDER:  Yes I do, yep.

37HER HONOUR:  All right, well I want to read good things on 13 December.  You want me to too do you not?

38OFFENDER:  Yes I do, a hundred per cent.

39HER HONOUR:  All right, well I am going to disappear again.  Stand down till 2.15. Mr Fitzgerald, if you need a few more minutes with your client, you've got it.

40MR FITZGERALD:  Thank you for that, Your Honour, I'll take you up on that if I may?

41HER HONOUR:  All right and thank you to your instructor for his efforts today and thank you to you and Mr Drent for your assistance and certainly you
Mr Taggert.  Thank you, I'll stand down till 2.15.

42MR FITZGERALD:  Thank you.

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