Director of Public Prosecutions v Edhouse

[2020] VCC 717

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01199

DIRECTOR OF PUBLIC PROSECUTIONS

v

CASEY EDHOUSE

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2020
DATE OF SENTENCE:	26 May 2020
CASE MAY BE CITED AS:	DPP v EDHOUSE
MEDIUM NEUTRAL CITATION:	[2020] VCC 717

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  CRIMINAL LAW – Contravention of a Community Corrections Order – Original order made on 27 October 2016 at Geelong County Court by His Honour Judge McInerney.

Legislation Cited: s83AD Sentencing Act 1991 – s83AS Sentencing Act 1991 – s118 Sentencing Act 1991.

Cases Cited:The Queen v Broes [2020] VSCA 128 – Brown v The Queen [2020] VSCA 60.

Sentence:Community corrections order cancelled and resentenced on the original charges to an aggregate nine months imprisonment with two days declared as presentence detention

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Mence	Office of Public Prosecutions
For the Accused	Mr J. Barrera	Stary Norton Halphen Criminal Lawyers

HIS HONOUR:

1This matter came before me in Geelong on 27 October 2016.  It was, as I determined on that day, of a degree of culpability in regard to the serious charges that Mr Edhouse faced, that warranted an immediate period of imprisonment.  There were considerations given his age, youth, support he had from his family and a number of matters that were put to me, that led to me determining the sentence that I did, which was a five year community corrections order, with 200 hours community work, supervision and treatment, in addition to the payment of the fine.  Albeit that we have no records of that fine being paid at this Court, I am instructed by Mr Barrera, on instructions from Mr Edhouse that the $5,000 has been paid. 

2Mr Edhouse, given the acceptance of the facts by his counsel, will be convicted and discharged in regard to the breach under s83AD. Under s83AS I will cancel, the community corrections order.

3In the sentence it is a mandatory requirement (s83AS(2)) that I take into account, the circumstances as to portions of the sentence that have been served by Mr Edhouse and compliance with the CCO.  Of course, as I have said, that the fine has been paid. I made a 464ZF order at the time.  The matter then came before me again on a breach in October of 2018.  The breach was found proven and I imposed an intensive compliance period because of the earlier failure to perform the community hours and observe conditions.

4Since that time, again, despite being given a further opportunity, despite me originally telling he would not have such an opportunity, the report demonstrates that as to the punishment aspect of a community corrections order, he had still only performed nine hours and fifteen minutes to the date of these proceedings.  So I do have to take that into account.  I have to take into account that he has engaged in seven supervision appointments and I also have to take into account, although it astounds me that he in fact went to an ASCO appointment on 23 April 2020 and no treatment was recommended.  What happened thereafter is good evidence as to my astoundment.

5The circumstances as to the contravention, which are set out in the submissions filed on Mr Edhouse's behalf today.  I accept that apparently there were problems associated with his partner's miscarriage in 2019.  He lost some employment.  Unfortunately of course, one of the major problems, as has turned out from the CISP reports is perhaps in response to that crisis with his partner, that in the twelve months according to the report which is dated 30 March 2020, he had been back on drugs. In particular, in the six months prior to his remand, had been smoking in the region of half a gram daily.  So unfortunately, the improvement that I had sought by the original sentence and by the actions I took upon the breach in October of 2018, proved not to come to fruition.  Since those orders, he has been arrested on other matters which I do not take into account.  However, I do take into account that he was apparently on remand till January of this year, for a period of two months, in regard to the further charges and has been on the CISP Program since that time.  It seems that he has been cooperative.

6Mr Edhouse has also finally attended the ASCO Program, at least according to the document that I have, on the four occasions, albeit again, one failure to attend without explanation.  Those are all positives, which I accept.  In addition, there is a letter tendered today from his current employer, Form Rio Po, which talks of him being a valuable employee, being punctual and reliable.  That of course has never been an issue for him.  It was a circumstance which I took into account on the original sentence.

7I accept even now, at his age, some four years later from the original sentence, that rehabilitation of course is still a major factor that this Court takes into account.  Insofar as the period of gaol I intend to impose, I also take into account the propositions put this morning, insofar as the additional hardship, he will have to serve an initial period of isolation under the current pandemic crisis.  He will, of course, suffer restrictions by way of loss of visitors, access, limited shutdowns, lockdowns as I understand it. Put to me was The Queen v Broes [2020] VSCA 128 and the Court of Appeal in Brown v The Queen [2020] VSCA 60 as matters that I accept and which, apart from his service of the portions of the sentence that I have indicated, also impacts upon the disposition that I pronounce.

8Taking all of those matters into account, I have determined that the period that he should serve in gaol for the original offences should be an aggregate straight sentence of nine months. Pursuant to s.118 of the Sentencing Act, I take into account, as put by his counsel, that he served two days.  Mr Edhouse if you could stand up please.  For the breach of the community corrections order, you will be convicted and discharged.  As a result of that breach, I cancel the community corrections order.  That requires me to go back and sentence you for the original four offences.  Those offences being the most serious, aggravated burglary which has a maximum sentence of 25 years,  two charges of criminal damage, and make threat to inflict serious injury.

9Insofar as those offences are concerned, I impose upon you, taking into account the matters that you have already attended to as a result of the last sentence, a period of imprisonment of nine months and I declare that two days that you served as pre-sentence detention, prior to that original sentence being pronounced, shall be deemed as service of this sentence.  Any other matters Mr Prosecutor?

10MR MENCE:  Yes, Your Honour.  I think there may be one further thing which is just in the circumstances where Mr Edhouse pleaded guilty ‑ ‑ ‑

11HIS HONOUR:  Do I have to do a 6AAA?

12MR MENCE:  I think Your Honour needs to make a 6AAA declaration under the Sentencing Act.

13HIS HONOUR:  Well how I do that I would not have a clue, but ‑ ‑ ‑

14MR MENCE:  No, it is not an easy exercise.

15HIS HONOUR:  ‑ ‑ ‑ 6AAA is a requirement Mr Edhouse for me to tell you what would have happened to you had you not pleaded guilty.  It requires me to go back to the original time when you were sentenced.  Certainly you would not have got a community corrections order then.  Certainly now, had you not pleaded guilty, the best I can do is you would have had a significantly higher sentence than you are getting now.  Given your youth, I have tried to make it as merciful as I can in all the circumstances.  I simply say that had you not pleaded guilty, you would have had a considerably higher sentence than nine months.  Yes, thank you.  Nothing else Mr Prosecutor?  Yes, the prisoner can be taken away.

16MR BARRERA:  As Your Honour pleases.

17HIS HONOUR:  Yes thank you both.  Formally, I think Mr Barrera we should make those matters exhibited, yours that you have tendered.

18MR BARRERA:  Yes, Your Honour.

19#EXHIBIT 1 -   Submissions of Mr Barrera.

20#EXHIBIT 2 -   Two CISP reports.

21#EXHIBIT 3 -   ASCO Letter.

22#EXHIBIT 4 -   Letter from Form Rio Po.

23#EXHIBIT A -  Submissions by Mr Mence.

24MR MENCE:  Yes, Your Honour.  Your Honour pleases.

25#EXHIBIT B -  Report of Community Corrections Office dated 3 January 2020.

26HIS HONOUR:  Except that I make the point, as I have already made that I do not take into account the alleged offending.

27MR MENCE:  Yes.  Will that be Exhibit B, Your Honour?

28HIS HONOUR:  Exhibit B.

29MR MENCE:  Yes, thank you.

30HIS HONOUR:  Yes.  Yes, thank you.  Thank you, Ms Burnett.

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