Director of Public Prosecutions v Edwards
[2012] VCC 275
•7 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-08-01003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH EDWARDS |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2012 | |
DATE OF SENTENCE: | 7 March 2012 | |
CASE MAY BE CITED AS: | DPP v. Edwards | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 275 | |
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Subject: CRIMINAL LAW
Catchwords: Appeal against sentence – Breach of CBO – Recklessly cause injuries – Contravene Family Violence Intervention Order – Fail to answer bail – Harass witness – Affected by alcohol at time of offending
Sentence:Total Effective Sentence 5 months’ imprisonment, two months of which is to be suspended for two years – Three months’ imprisonment to be served immediately – Pre-sentence detention of 58 days – Community Corrections Order of 15 months’ duration to be commenced immediately after release from gaol – Fine of $200.00 with a stay of four months to pay – s.6AAA Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Parkes | Solicitor for Public Prosecutions |
| For the Accused | Mr M. White | Matthew White & Associates |
HER HONOUR:
1 Just remain seated for the time-being, please, Mr Edwards.
2 Mr Edwards, Mr White has done his very best for you in these matters, but in my view the appeal was rather audacious, in some ways. You are only 22 years old, and I am mindful that if possible you must be rehabilitated, but in my view your offending in respect of the harass witness charge, in particular, is so serious that it has taken me all my time not to increase the sentence imposed by the learned magistrate. You are most fortunate that the sentence was for that charge and not something more serious, which would have seen you facing a far greater maximum penalty in this court.
3 It was not opened to me that your actions in approaching the witness were premeditated, but I strongly suspect that they were. However, as this was not specifically put forward as an aggravating feature, and was not the subject of evidence, I do not find that there was premeditation with respect to that meeting. In any event, approaching and threatening a witness, who is a witness in something as serious as a murder trial, as you did, was despicable, thuggish and utterly intolerable. It is most serious offending.
4 At the time that you committed this offence you had chosen to stop the benefits that were available to you through Community Correctional Services, and affected by alcohol you engaged in this cowardly behaviour. You caused even further trauma and anxiety to someone who was doing no more than her civic duty. I must give considerable weight to specific deterrence in all the circumstances, and I must give very significant weight to general deterrence. There must be a clear message sent to others tempted to behave as you have, that such offending will be met with strong sanction.
5 In your case I must also be concerned about protection of the community, as I regard you as being a significant risk of re-offending.
6 In relation to the sentence imposed for this charge of harass witness, I think the learned magistrate was lenient. I note that the maximum penalty for this offence is 12 months' imprisonment, and as I have said, yours is a very serious example of it.
7 In respect of the charges of recklessly causing injury, and contravene Family Violence Intervention Order, your behaviour was dreadful and frightening. I do not find that it was premeditated. Your actions towards your ex-girlfriend were everything that the Intervention Order had specifically forbidden, but again you behaved like a thug towards her, and towards her friend who came on the scene to help her.
8 I do note that you were 20 years old at that time, but you had specific notice that you were not to behave as you did, by virtue of a court order, and yet you were not deterred by this.
9 The breach of the Community Based Order which had been imposed by His Honour Judge Pilgrim on 8 March 2011, arises from non-compliance and from re-offending, which means that you are in a more serious position than for non-compliance alone. I understand that the offence which gives rise to the Community Based Order was committed when you were 18 years old, but I have read His Honour's sentencing remarks, and yet again you behaved like a thug on that occasion.
10 I do not know if you think, or thought, that this sort of behaviour is heroic or makes you look tough, but I can assure you that it does not, and if you keep going like this you will end up in gaol for a very lengthy period of your life. I put you on notice, Mr Edwards, that there is a definite link between abusing alcohol and committing offences, if you do not appreciate that already and therefore, if you continue to abuse alcohol and commit offences whilst affected by it, your choice to consume alcohol on such occasions may well be treated as an aggravating feature in any future sentence. I have a record of these sentencing remarks which will be available in the future if you come back before the courts.
11 To your credit you have pleaded guilty to all of the offences, and have saved the witnesses, especially the victims, the trauma and time of giving evidence, and you have saved the community the time and expense of running contested proceedings. This entitles you to a significant discount in the sentence you would otherwise receive.
12 When you are released from gaol you must take the Community Corrections Order seriously and you must stay on it, get back into roof tiling if needs be, stay away from alcohol and make a go of your life, instead of what you have been doing up until now.
13 Your mother and father were here to support you, and I see that your mother is here again today. You should look to them for support upon your release from gaol rather than any criminal associates. There will also be the strong temptation for you to celebrate your release from gaol by abusing alcohol yet again. I have some simple advice for you, Mr Edwards, and that is do not. It will only lead to trouble, and I think you know this. Quite simply, Mr Edwards, it is time for you to grow up and to behave yourself.
14 In respect of the matters which are the subject of Appeal Number AP-11-2817, Charges 1 and 3, being recklessly causing injury and contravene Family Violence Order, you are convicted, and with your consent I would impose a 15 month Community Corrections Order, which would commence upon your release from gaol, being 19 April 2012. The Community Corrections Order would be in the following terms. You must not commit, whether in or outside Victoria, during the period of the order, any offence punishable by imprisonment.
15 Secondly, upon your release from gaol, and for the duration of the order, you must report to and receive visits from the Secretary of the Department of Justice.
16 Thirdly, you must report to the Sunshine Correctional Services at 10 Foundry Road, Sunshine, before 4 pm, within two working days of 19 April 2012. You must notify the Secretary of the Department of Justice of any change of address or employment within two clear working days after that change. You must not leave Victoria, except with the permission either generally or in relation to a particular case, of the Secretary. You must comply with any direction given by the Secretary that is necessary for the Secretary to ensure that you have complied with the order.
17 There will be additional conditions as follows. That you be supervised by a Community Corrections Officer as directed by the Secretary of the Department of Justice. Such supervision to be of 15 months duration.
18 That you undergo assessment and treatment, including testing in respect of alcohol abuse or dependency, pursuant to s.48D(3) paragraph (b) of the Sentencing Act 1991.
19 Thirdly, that you undertake any other programs as are deemed necessary by the Secretary of the Department of Justice, or authorised nominee, to address factors related to your offending behaviour.
20 I understand that you have expressed to the assessing officer from Community Corrections, an understanding and willingness to undergo such an order.
21 Now that I have explained its terms and conditions I formally ask you if you are prepared to undertake this Community Corrections Order.
22 OFFENDER: Yes, Your Honour.
23 HER HONOUR: You should know that if you breach any of the requirements of this order then you will be brought back and the order may be cancelled and you may be required to serve a further term in gaol. Do you understand that?
24 OFFENDER: Yes, Your Honour.
25 HER HONOUR: All right. I will have details of that order provided to you shortly. You can stand up at this stage, Mr Edwards.
26 In relation to the offences of recklessly causing injury in contravention of a Family Violence Order, being Charges 1 and 3 in respect of the appeal, I make the orders that I have previously set out, with the terms and conditions that I have just set out to you, and that you have agreed to.
27 In respect of Charge 4, which is the subject of the appeal, failing to answer bail, you are convicted and fined $200, and I grant a stay of four months in which you can pay that amount. So, you have four months in which to pay the $200.
28 In respect of Charge 5, which again is the subject of appeal, harass witness, you are convicted and sentenced to five months' imprisonment.
29 In respect of the breach of Community Based Order, which was imposed by His Honour Judge Pilgrim, you are convicted and the Community Based Order is cancelled. I re-sentence you to one month’s imprisonment, and in respect of the criminal damage charge, which was the subject of the Community Based Order, I order that that one month be served concurrently with the sentence imposed in relation to Charge 5 on the appeal. Such that there is a total effective sentence of five months' imprisonment, but I suspend two months of this period so that you are to serve three months’ imprisonment immediately. The operational period for the partially suspended sentence will be two years. If you commit any further offence within the next two years, and unless you can show that there are exceptional circumstances which would make it unjust to do so, you would be required to serve an additional two months' gaol.
30 I declare that you have already served 58 days, which will be reckoned as served in respect to this sentence. So that means that you have little over one month to serve. As matters currently stand, as I understand your release date would be on 19 April 2012. If not for your pleas of guilty, in all the circumstances I would have sentenced you to a total effective term of 10 months' gaol to be served immediately.
31 Just take a seat for a moment.
32 MR WHITE: If Your Honour pleases.
33 HER HONOUR: Are there any other matters, Counsel?
34 MS PARKES: No, Your Honour.
35 HER HONOUR: I understand that the order, the Community Corrections Order has been prepared and with your assistance, Mr White, I will have
Mr Edwards sign that, please.
36 (Order signed and acknowledged.)
37 I have signed the Community Corrections Order. Thank you.
38 You may now remove the prisoner. Thank you.
39 MR WHITE: Sorry, before that happens, Your Honour, I am just wondering if he could physically be given a copy of that order, if he could take a copy with him?
40 HER HONOUR: Yes. Yes. Mr White, I am being told that you will be emailed a copy. I am not sure that we are in a position to actually provide the copy at the moment, as presently advised.
41 MR WHITE: No, that is okay, I'll make sure he gets a copy.
42 HER HONOUR: If that is appropriate.
43 MR WHITE: Yes, thank you.
44 HER HONOUR: All right. Yes, thank you. We will adjourn.
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