Director of Public Prosecutions v Enry
[2013] VCC 938
•31 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01249
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANGUS ENRY |
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JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2013 | |
DATE OF SENTENCE: | 31 May 2013 | |
CASE MAY BE CITED AS: | DPP v. Enry | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 938 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms F. Cockram | Director of Public Prosecutions |
| For the Accused | Mr T. Gattuso |
HIS HONOUR:
1 Without stating the reasons in detail I accept there were extenuating circumstances. I am somewhat sceptical in that it was your onus, Mr Enry, to ensure that you were in contact with Corrections. I know ultimately your partner attended but that was not her responsibility, it was yours. And to the extent that you found it difficult, it was your job to get in touch with Corrections and explain your position and renegotiate your program.
2 I am going to impose a term of one month imprisonment, which will be suspended for a period of 18 months, for the breach. You will not have to serve that term of imprisonment if you do not commit any offence punishable by imprisonment during the next 18 months.
3 If, however, you breach this order again, or commit some other offence punishable by imprisonment, during the next 18 months then you will certainly, I think, serve that term of one month plus any other sentence that might be imposed. Almost certainly, you will be required to be re-sentenced on the original aggravated burglary and theft offences which would result almost certainly again, I would imagine, in a sentence of two years or more, and a significant part of that to be served before being eligible for parole. Do you follow?
4 I hope you do take this seriously. These orders are not made lightly. It was a lenient course to take which was made because you had no prior convictions and because of your youth. I hope now that your counsel is accurate in saying that you appreciate the importance of fulfilling the terms of the order.
5 That is the order I make for the breach. I will impose a sentence of one month imprisonment suspended for a period of 18 months. I will confirm the original community corrections order.
6 MR GATTUSO: Your Honour, my friend was just raising - - -
7 HIS HONOUR: (To Prisoner) You can sit down, Mr Enry.
8 MR GATTUSO: I'm confident Your Honour can do what Your Honour did, I'm just trying to find the section to show my friend.
9 MS COCKRAM: There was that disquiet around s.44, Your Honour but I think with two separate sentences, two separate offences, it's - - -
10 MR GATTUSO: Forty-four is the section that says you can't sentence an offender to a community corrections order and imprisonment if the imprisonment is suspended. But that's not what you're doing here, Your Honour, in that you've already sentenced him to the community corrections order, you're confirming that. This is a different penalty for the contravention which I'm trying to find the contravention provision but I have a clear memory that that's now punishable by imprisonment, as I think by that.
11 MS COCKRAM: It is. That's 83, yes.
12 MR GATTUSO: So it's a different sentence.
13 MS COCKRAM: It's a new day.
14 HIS HONOUR: That's my feeling about the matter.
15 MR GATTUSO: I'll check it outside and I'll mention it if there's any problem but I'm sure that's - - -
16 HIS HONOUR: Please come back to me and we can rectify the matter. If you can do it today I'd be grateful.
17 MR GATTUSO: I'll do it right now, Your Honour, but I won't hold you up and do it at the Bar table. I'm very confident Your Honour's quite right in what you've done.
18 MS COCKRAM: Yes.
19 HIS HONOUR: Yes.
20 MR GATTUSO: The only thing perhaps, Your Honour, just for the record. Hopefully this will never become relevant but if there was any breach, he's been in custody now for 19 days and we probably should record - - -
21 HIS HONOUR: Yes. I think I should declare that.
22 MR GATTUSO: Today is the 19th day.
23 HIS HONOUR: Pre-sentence detention of 19 days.
24 MR GATTUSO: And I think there was two recorded on the original plea but that's probably not - I think that's already been recorded.
25 HIS HONOUR: Yes. That might be so.
26 MR GATUSSO: I imagine it's at the very end of your sentencing remarks, Your Honour. I think in fact I have a memory of Mr Chisholm raising it.
27 HIS HONOUR: I can't find it.
28 MR GATUSSO: It may have been in his notes to me that I saw it. But it doesn't seem that it was - - -
29 HIS HONOUR: So it's 19 days, is it, that he's - - -
30 MR GATUSSO: Nineteen days is the present remanded - - -
31 HIS HONOUR: I will certainly declare 19 days pre-sentence detention as time served under any sentence that you may be required to serve under the orders I have made today. And that that fact be noted in the records of the court.
32 MR GATUSSO: I think, sir, this is where I read it. It's in the original opening. It refers to pre-sentence detention, Jenkins and (indistinct) spent two days. It's on p.4 of the original opening and it doesn't look like that was formally declared.
33 HIS HONOUR: No. In that case I should declare those two extra days so making a total of 21 days.
34 MR GATTUSO: Thank you, Your Honour.
35 HIS HONOUR: So you will not have very long to serve if he does have to serve the term.
36 MR GATTUSO: If he's re-sentenced he will. On the aggravated burglary.
37 HIS HONOUR: If he's re-sentenced, that's another matter but yes.
38 MR GATTUSO: Thank you, Your Honour.
39 HIS HONOUR: But he will be required to take another trip back to prison at any rate, even if for a short period of time, yes. It is 21 days that I declare as pre-sentence detention to be deducted from any sentence that he has to serve under the orders that I have just made.
40 MR GATTUSO: As Your Honour pleases.
41 HIS HONOUR: Yes, thank you.
42 MR GATTUSO: Thank you sir.
43 MS COCKRAM: Thanks Your Honour.
44 HIS HONOUR: Mr Enry, you may leave the Dock now. You will have to be processed downstairs, I am sorry. I should not be interfering, my apologies. You may go.
45 MR GATTUSO: I'll see him downstairs, Your Honour, and make sure he's clears on all of this.
46 HIS HONOUR: As I say, come back to me if you have any different ideas.
47 MR GATTUSO: Will do.
48 MS COCKRAM: No, no, I think we're fine. Thank you, Your Honour.
49 MR GATTUSO: Thank you sir.
50 HIS HONOUR: You may be excused from the Bar table. We will see if there is other counsel available.
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