Director of Public Prosecutions v Elliott

[2017] VCC 748

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00790

DIRECTOR OF PUBLIC PROSECUTIONS

v

RHYS DYLAN ELLIOTT

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 June 2017
CASE MAY BE CITED AS:	DPP v Elliott
MEDIUM NEUTRAL CITATION:	[2017] VCC 748

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon
For the Accused	Mr B. Halpin

HIS HONOUR:

1Rhys Dylan Elliott, you have pleaded guilty to one charge of attempting to pervert the cause of justice, that crime carries a maximum penalty of 25 years' imprisonment.

2By my calculation you are now 25 years of age.  You pleaded guilty at the earliest reasonable opportunity and when interviewed by police in relation to this matter were confessional. That goes very much in your favour.

3I accept that you now have appropriate remorse and you must of course also get the utilitarian benefit of that plea of guilty.

4You do have prior convictions which are of concern and to very a large extent, now, with the materials being made available to the court, due to a mental health issue that's obviously affected you since you were very young.

5As it stands at the moment you have matters pending in the Magistrates' Court, including the Community Corrections Order breach for which I am about to sentence you for the acts attempting to avert.

6I make it very clear in these sentencing remarks, I am not aware of the seriousness or anything else about those matters or even with confidence when they occurred.  These sentencing remarks are not to be used in any way, shape or form to suggest to any magistrate who is proposing to sentence you that I have set a course which I'm desirous for them following.  The magistrate's decisions can be their own and I'm sentencing you, simply, on the crime for which you are before me.

7A summary of the offending can be done in simple terms.  In December 2015 you were placed on a Community Correct Order.  It was 24 months and incorporated within that was a condition of 300 hours of unpaid community work.

8By the middle of last year you had not attended community work on a number of occasions and were in the process of being breached.  I am told from the Bar table and I have now seen the report, that it would appear of that 300 hours some 220 hours remain to be completed.  It was again clear that having been breached in respect of that, if the Magistrate were to cancel the order and resentence, the odds would be high that you would have received a period of imprisonment.

9To avoid that consequence you effectively forged a number of medical certificates which purported to excuse you from the failure to attend.  A charge and summons had already been put in place by corrections and you were to appear at the Latrobe Valley Magistrates' Court on 12 August 2016.  It is that charge and summons and the attempts to avert it that give rise to the charge.

10On the day before that hearing you emailed false reports to your solicitor who then presented them to the court or certainly to corrections on the day of the hearing.  They were then examined by corrections and ultimately found to be false and you, as I said, to your credit, admitted to having done all that.

11My initial response on reading this material was a gaol sentence was inevitable.  The situation is that this is offending in the face of the court.  It was not done to get an adjournment or gain some sort of advantage, it was done for the sole purpose of avoiding a sentence of imprisonment.

12You explained to the police that your life at that point in time when this occurred was chaotic and having viewed the material and seen the psychological and psychiatric material, I accept that that in fact was the case.  What at first glance appears to be a premeditated decision may well have been brought about in circumstances of confusion and panic.

13The offending has to be regarded as serious, calls for the application of general and specific deterrents, as well as denunciation and appropriate punishment.

14Having read the submissions of your counsel and the accompanying medical material, I have had you assessed for a Community Corrections order and having given the matter thought, I feel that my initial view was perhaps a bit harsh.

15You have been assessed for a Community Corrections Order and found to be acceptable.  You are currently in breach of two of them but the assessment of you today indicates that corrections were simply not aware of the medical circumstances and mental health issues that you have had to deal with.

16It is clear from the material that was occurring within the Community Corrections Order was that you, in a not properly treated and I do not mean that in an offensive way, with your mental health issues were acting out, if I can again put it that way, at your appointments and in endeavouring to do the work hours you have been threatening and in the ultimate not turning up.

17Again, it seems clear that the not attending which gave rise to the ultimate breach was brought about by a chaotic life style, arguments and emotional disturbance.

18The material that has been provided on your behalf includes a report from Mr Bruce, a psychologist and he points out that you have commenced, he says earlier this year, but your counsel seems to think late last year, in taking Seroquel instead of the previous medications.

19Seroquel is a antipsychotic which is used in voluminous quantities in gaols to keep people calm.

20You would appear to be somebody who has benefited greatly from that change in medication.  Since you have been on that medication, I accept that the family say that you have been far less susceptible to outbursts, far more in control of your life and actually getting on with things.

21The reports that were filed on your behalf which will now be exhibit, as I say from Mr Bruce; from a psychiatrist; a Mr Agroll and material from psychologist Lee Minton

22It is clear from a psychiatric report from late 2014 that you real difficult all your life with what has been historically described as autism.  Apparently there is a situation with it that at least one other member of the family and you have been in strife since you were very young.

23The Community Corrections Order that you were placed upon and which you have endeavoured to avoid the consequences of by this offending, followed 70 days' imprisonment.

24It would have been hoped that the would have salutary lesson to you and I am sure that is the way the Magistrate would have thought.  It would appear thought that without the appropriate medication it was never going to work.

25Having hear your counsel, having read the materials and having now had you assessed, I think it is worth the chance of you going onto a Community Corrections Order and endeavouring to get your life back on track.  That Community Corrections Order will provide you with assistance if you are prepared to take it.

26I am going to impose an order with the conditions that are recommended by corrections.

27The prospects of you rehabilitating are entirely up to yourself, Mr Elliott, and the risk of you reoffending has been calculated by corrections as being medium and probably a bit more than that but so be it.

28In this particular circumstance I have made it very clear that if you breach this Community Corrections Order and are brought back before me, it will be cancelled, subject to any arguments that may be put on your behalf and you will be sentenced to a significant and I mean significant period of imprisonment.

29The community cannot tolerate the justice system being undermined by dishonest acts such as the one you engaged in.

30The Crown submission was that a custodial sentence was the appropriate one and at first glance I accepted that that was the case but having given it that consideration I think your, at your age, still young.  You are entitled to have one last chance with all this.

31I was presented with like cases from your counsel and I have taken all that into account.

32What I am going to do is if you agree to all this, impose a condition of judicial monitoring.  I will expect to see you 16 August in this court at 9.30 am and I will expect a report from corrections as to how it has all been going.

33Whether corrections are now prepared to lift the suspension on the other Community Corrections Orders, I do not know but I get the impression that that would apparently be the appropriate course to take.

34Accordingly, if you agree and sorry, I probably should indicate I will make Exhibit 2.

35EXHIBIT 2 -      Breach report.

36That breach report, I think, on p.3 indicates clearly what was going wrong when you were endeavouring to do the work hours and it would appear that - on the work sites.  But it would appear that you had been endeavouring to be compliant with the treatment conditions and I take those matters into account as well.

37In the end, as I said, if you agree to go onto this order it will be of two years, with conviction.  It will involve 250 work hours, it will be concurrent with any other Community Correction Order currently being undergone.  It will be with the conditions that are directed and also that judicial monitoring condition and I direct that any hours performed by way of treatment or behavioural programs, can be counted as hours under the work hours condition.

38Your client can sign that Mr Halpin.

39(Community-based order signed and acknowledged.)

40All right, well that CCO's signed.  Now, I just want to make this very, very clear to you Mr Elliott.  This is unusual, normally for this sort of offending you would go in, all right.  Because of the background and because of what has been achieved with mental health issues in the last few months or last six months or so, I am giving you another chance.  But I make it very, very clear to you, if you breach this and you are brought back you'll be going through that door and for a very significant period of time.  All right.

41OFFENDER:  Yes, Your Honour.

42HIS HONOUR:  I will keep this and I will read it back to you if you ever come back.  The other thing I want to say to you is this, you're on a Community Correction Order, I know you won't have the blues this time that you had last time but if things start to go wrong with it, it's imperative that you talk to people and tell them.  A Community Correction Order can always be brought back before me to be amended or varied or extended or anything along those lines, all right.  Any conduct like this is just going to get you locked up, all right.  So just bear that in mind, you can always come back if things aren't going well and we can try and sort something else out, as long as you're honest and own up to it, all right.  Yes, thank you, you can leave the dock.

43HIS HONOUR:  Thanks.  All right, yes, ten o'clock tomorrow I suppose, is it.

‑ ‑ ‑