Director of Public Prosecutions v Eskandari

[2018] VCC 496

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02131

DIRECTOR OF PUBLIC PROSECUTIONS

v

REZA ESKANDARI

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2018
DATE OF SENTENCE:	15 March 2018
CASE MAY BE CITED AS:	DPP v Eskandari
MEDIUM NEUTRAL CITATION:	[2018] VCC 496

REASONS FOR SENTENCE
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Catchwords:             Burglary, criminal damage
Sentence:                 18 month CCO (275 hours community work only)

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Locke	OPP
For the Accused	Mr G. Vassis	Vassis & Co.

HIS HONOUR:

1Reza Eskandari, you have pleaded guilty to a charge of burglary and to a charge of criminal damage.  The burglary took place back in May 2016.  The intent upon entry was the intent to cause damage to property within the building and that is exactly what you then did.  It is an offence that carries with it a maximum term of imprisonment of ten years.  Each of those offences in fact carry that ten year maximum.  So these are serious criminal offences.

2That is, entry as a trespasser intending to damage property and then doing just that.  But as I have said, you damaged property to the tune of $84,642.  So very significant damage to property was caused by your conduct.  The maximum penalties here, as I have been told, it is correctly the position, ten years imprisonment for each of these offences.

3The matter has been opened to me by the prosecutor, Ms Locke, who has read into the transcript the summary of prosecution opening.  That is dated
12 February.  You have been present, you have heard the summary read out and that summary is an agreed summary.  So there is no need for me to restate back to you now the full factual basis of the sentencing in this case.  I am not going to go beyond what is the agreed summary here.

4What that demonstrates is that you had been engaged as a painter by a firm of builders, 4 Reed Pty Ltd, but with your dealings were with Clint Abeya, a director of that company.  They were doing work at premises in Creswick Street in Hawthorn.  You were engaged and contracted to paint those two premises.  The job was due for completion towards the end of June 2016.  You were doing other work for the same firm and you had been paid for that job in full.

5A dispute it would seem arose in relation to payment for the work at the Hawthorn premises, but the dispute arose even before the completion of the job.  You sent a text message on 10 May asking for payment for these uncompleted jobs.  There was a meeting the following day and that meeting was a bit unpleasant, I am told and it is accepted, because this is an agreed summary, that you were aggressive and threatening to Abeya at that meeting.  Unsurprisingly he told you that that sort of behaviour was not acceptable. 

6Sometime later, so ten or so days later on 22 May, you sent a pretty unpleasant text to this man still dealing with this issue of the lack of payment saying, "I swear to god if I don't see the money in my account by Monday I will go fuck the house".

7In receipt of that text message, Abeya took the only available course.  That was to advise you that your contract had been terminated and you were prohibited from returning to any of the project sites that had previously been places where you had worked.  One of those sites obviously was Creswick Street.

8Unbeknownst to you, I do not know whether it was as a result of your style of threat or not, the people associated with the house installed some CCTV cameras.  That was your undoing because you did not know that.

9The premises were locked and left on 26 May and you went there in breach of that instruction.  You had been prohibited from going there.  You were clearly a trespasser and you knew you were.  Though the police or former policeman who provided a reference might have had some sense from you that you were going there to get some tools or recover some work items and just whilst there, erupted in a fit of rage, that is not the setting at all.

10The setting is of you going to these premises after hours, intending to do exactly what you did.  Intending to enter those premises as a trespasser with the intention to damage property which is what you did and you then damaged property to the tune of $84,000. Maybe you went a bit further than you thought you might.  Maybe you got carried away?  I do not know.

11Maybe you were angry with this man?  Maybe you had justification for being angry?  It is hard for me to know.  Though the agreed summary suggests that there was no reason for me to think that the builders were taking advantage of you in any shape or form.  The painting had not been completed.  You had not therefore been paid in full.  But for whatever reason it developed in the way that it did with this most unhappy ending.

12It became unhappier still of course because rather than there being relatively speaking, a small debt, it generated into your committing these relatively serious crimes and sitting where you are sitting here today quite some time down the track.

13So much then for the offending.  You were interviewed by the police hardly surprising given the nature of the damage and the nature of the threatening text.  Not to put too fine a point on it, in the interview you did not provide a full account at all until of course you were left with no choice but to provide an account.

14You told a number of lies to the police.  That is not a matter of any aggravation, you are entitled to lie the police, it is not an aggravating feature at all.  But you basically played down the nature of the texts.  You denied having any involvement in the damage that was caused to the property.  You had the specific allegations put to you about the burglary which you denied.  You said you did not know anything about it.

15But of course your tune changed, as it had to, once the CCTV still images were shown to you and there you were in the house on the day in question committing the damage.  At that stage you made full admissions to the police.  I do not suppose you had much choice but it is to your credit at least that you then changed your tack and did make full admissions.

16So much then for the offending and the apprehension.  There is another aspect of this and that is the way in which the matter was ultimately finalised and that has been a bit oppressive for you in this sense.  I think everyone involved in this case had a sense that it could be dealt with and finalised in the Magistrates' Court and that is it seemed what was occurring including with a plea being conducted and being adjourned off for some question to be resolved in terms of the compensation.

17You came back and came back yet again.  But when you came back on, I think the third, if not the fourth occasion, I think probably the third, it had been discovered by then, that given the nature of the actual burglary committed by you, that is with an intent to commit damage to property, for whatever reason the Magistrates' Court rules and schedules do not permit that sort of matter to be heard in the Magistrates' Court.  So you found yourself on a hand-up brief to this court which is where you are here today.

18So there was then a filing hearing, a committal mention, where you pleaded guilty and a plea now in this court probably many, many months after you would have been finally sentenced in the Magistrates' Court if truth be known.

19So that is the chronology as to how we are where we are in March 2018 in relation to offending occurring in May 2016.  You get \ some benefit by virtue of the fact that in the meantime you have stayed out of trouble.  So I can have regard to that delay in that respect, that it touches upon your prospects of rehabilitation and the judgment I can make about them, but also I think, is something I can have some regard to at least in terms of the delay being a bit of an event for you, to have this matter almost come to the end in the Magistrates' Court, have the Magistrate come in and essentially then say, "I can't hear it, can't finalise it", to then find yourself being propelled up into this court, I think that delay has been something of a punishment as well in this case.  So I can have regard to the delay in the two ways in which delay often is spoken of in the authorities.

20That is, as bearing upon the judgment about rehabilitation and also engaging a quite separate punishment as a result of the matter being outstanding.  I do take it into account in those ways.

21I take into account also, of course, the fact that you pleaded guilty and it is plain from that chronology, you pleaded at the very earliest opportunity.  It just so happens that the court down there could not finally deal with your plea.  So I take into account your guilty plea in the way contemplated by your counsel: - it has you taking full responsibility for your offence which you did eventually in the interview.  It is a plea at the earliest opportunity.  So these are matters of significance.

22You facilitated the course of justice.  It would not have been a particularly lengthy hearing I suspect, if it had been proceeding as a contested hearing, but that has been spared by your plea.  The community has been spared the cost of a committal or a trial up here.  Witnesses have been spared the experience of coming to court.  So you facilitated the course of justice.

23I am prepared, I think, in the circumstances, to find, given the extent of your co-operation ultimately with the police, and you did co-operate, and I do take that into account, it took you a bit of time but you got there in the end, so I pay regard to your co-operation with the police.

24I have regard to all these matters and the lack of your criminal history and some of the material placed before me by way of reference.  I am prepared to take into account by way of mitigation the fact that you have a level of remorse for having engaged in this serious conduct.  So I take that into account as well.

25A guilty plea is ordinarily indicative of a level of remorse and here I have more than that, I have other aspects as well that suggest to me that you are remorseful.

26I have already spoken of the delay and that it is a bit oppressive to have the matter sort of held in that way in abeyance especially when you think you were then amenable to a finalisation.  No doubt that has caused you a bit of grief along the way, including and I do not downplay this, the fact of having to be at court, and be at court again, and be at court again.  They are not insignificant matters for someone who is self-employed as you are.  So I take that all into account.

27I have not really mentioned your background.  I do not think I need to go into it in any great detail.  It is set out in quite some detail in the written submissions that have been placed before me and marked as Exhibit 1.

28You are 31 years of age.  You were 29 when you committed this offence with nothing committed since.  You were born in Azerbaijan.  You are one of five children.  You came here as a refugee some years ago now at the age of 24.  You joined your two other brothers who were already here in Australia.  You have a close association with your brothers.

29You have been gainfully employed since you have been here.  It seems apparent from the references that you are both a keen and good sportsperson but also a proficient, if not excellent worker.

30You have put a bit of a blot on your copy book here, behaving in the way that you did.  But I do not ignore the fact that you come before this court with no prior criminal history; there is nothing outstanding by way of criminal appearance and you have settled in this country in no doubt what would have been I imagine difficult circumstances, coming at the age that you came with.

31Your parents remain in Iran.  You are single, you have got no children.  As I have said, you have been a contributing member of the community in this country.  You have taken Australian Citizenship and you are fully engaged.  You attended speaking classes upon arrival in Australia and it is obvious enough that you have a decent level of the understanding of the English language.

32You have none of the issues that might ordinarily impede a person's rehabilitation.  That is, mental health or drug and alcohol issues that so many people who sit in the dock have. You do not have.

33It makes more bizarre the conduct that you engaged in and it drives home the fact that you were obviously acting emotionally in relation to a debt and a debt that perhaps you thought would not be paid and maybe that flowed from your discussions with other tradespersons on the sites that you had been working with, but none of that is an excuse.  None of that is a justification for committing these relatively serious crimes.

34As I say I have taken into account the delay and all of the other matters that have been raised before me.  I also take into account your preparedness to consent to the compensation order.

35What then are your prospects of rehabilitation?  Well I think they are excellent.  There is no question about that in my mind. In the same way as you have buckled down in this country and got to work and got to a point where you had a grasp of the language as well, there is no reason for me to think that you are going to return and commit this sort of offence in the future.  If you have not learnt your lesson now, you never would.

36This was an extremely foolish and serious choice that you made on this occasion.  Rather than just threatening your status as a person with no convictions, it presented a real risk for you to find yourself in a custodial setting, to be locked up.  That is how serious this offending was.

37There are very strong references from, notwithstanding maybe the understanding in Clint's mind about the true nature of your venture, going back as you did and for the reasons that you went back in. He speaks very strongly about your arrival in this country and the way that you have actually equipped yourself in this country very well.  That is, speaking English, learning the language, attending classes, taking those efforts, and they are efforts that you took no doubt, because you wanted to fit in, you wanted to actually succeed and the best way of doing that is to actually speak the language and you have done that.  You have then gone out into the work force and you have been working very successfully.

38So I have that strong reference.  I have also references from Mr Bisitul, a director of a company, someone who knows you as a painter and a hard worker for him.  He is familiar with your personality and your work ethic and comments on your behaviour and your manners.  So you are an asset, he says, to a business.  The same sort of themes are picked up by Peter Dijanmantonio who also has had dealings with you in a work sense.

39So I take into account all of those matters including the submissions made and the references placed before me.

40As a judge I have to pay regard to a number of purposes of sentencing.  I have to pay regard to all sorts of matters and take into account all sorts of things including the impact of criminal offending, and including the maximum penalties.

41I have to also, in terms of the sentencing purposes, pay regard to a number of matters fixed within the Sentencing Act in this state.  They include the need to punish, justly and proportionately, the need to denounce your conduct, the need to protect the community, the need to deter you from future offending and the need to deter others as well.

42I also have to pay regard to your rehabilitation as well.  That is again another one of the sentencing purposes.

43The appropriate disposition is always reached by considering these various purposes, considering the person before the court, considering the nature of the crime and their past history and making judgments about the weight to be given to these various purposes.

44If you were before this court with a long list of prior history for committing burglaries or criminal damage, obviously the need to give weight to deterring you would be a much more heightened position than it is here.  Likewise the protection of the community.

45You come before me as a mature man; you are 31, 29 at the time, acting very immaturely on the day in question.  But in the heat of the moment. I think I have said that there was to some extent some pre-meditation.  There obviously was but it was driven obviously by a heightened emotional state.

46So in my judgment, someone such as you, 31 years of age, no criminal history in the past, nothing since and with a significant period between the offence date and now, the need to be giving significant weight to specific deterrence I suspect, is not really there.  It is not a predominant sentencing purpose and nor is community protection.  The community has not needed protection from you in the past and likely will not in the future.

47I believe that the experience of being spoken to by the police, arrested, charged, brought to the Magistrates' Court and then to this court, and being dealt with for these offences will provide significant deterrence to you into the future, if it is needed.  So for those reasons I think community protection and specific deterrence can be significantly moderated.

48Punishment, well it has to be achieved here.  There is a need to punish you, you know that.  But I have to have regard also to the need to do that justly and proportionately.

49In terms of your prospects of rehabilitation, I have already stated and I state again I think your prospects are excellent.  There is no reason for me to think otherwise.

50I have to give some weight to the principle of general deterrence in this sort of case.  It is not a principle or purpose that I can ignore, nor for that matter should I be seen as ignoring the need to specifically deter you.  You have obviously got to bear in mind, you should never ever engage in conduct like this ever again into the future.  I suspect, that you will not and you have probably learnt that lesson.

51But general deterrence is a matter of some weight here.  The message must be sent to people in the community that you cannot just enter premises in this sort of setting.  There are lots of tradesmen out there, lots of people who might have squabbles with people who engage them.  The message has got to be conveyed pretty directly.  You do not resolve those matters by going and wreaking havoc and revenge upon the builder.

52What you do is you do what everyone else should be doing.  That is, settle these things amicably if possible, and if not, through the appropriate measures in a court or at VCAT.

53I take into account the various submissions made.  It is the weight that is to be given to these purposes that will lead to the ultimate sentence here.  Now the written submissions focused, I think, on what was said to be three available dispositions; an adjournment without conviction, a fine without conviction and a community corrections order without conviction.

54It seems to me that the first two of those are extremely optimistic given the nature of the offending.  The fact that on any view of it, as I have said, there is some level of pre-meditation here and I have to have regard to the gravity of the offence as well.  That is another matter that I have to take into account.

55True it is you are not committing an aggravated burglary.  True it is there is no one in the house.  True it is you are not going in there to assault someone or anything like that.  But equally true is the fact that you have gone there, having made the earlier threat, having been barred from entry in that house, specifically prohibited, you have gone back in breach of that with an intention to enter to do as you did to cause damage.  So there is unmistakably an aspect of pre-meditation here.  It is not spur of the moment. 

56Your counsel, as I take it, has really, in the course of the plea, abandoned the submissions as to undertaking without conviction and a fine without conviction and is submitting to me that I place you on a community corrections order with some unpaid work as the only condition and punish you in this way and achieve the various purposes of sentencing in this same way.

57He has spent a little bit of time dealing with the concept of whether the ultimate disposition here ought to be with or without conviction. I have had regard to those submissions. I have also regard to the non-exhaustive matters set out in s.8 of the Sentencing Act.

58They include the nature of the offence.  Well this was not minor offending, I want to make that very plain.  I have to have regard to the nature of the offence.  Here, there are offences that are relatively serious.

59Your character and past history is excellent.  The impact of a recording of a conviction on your economical social wellbeing or employment prospects is very much up in the air really, in the sense, and this is not a criticism of your counsel, that it is very difficult for him here and now to spell out to me exactly what impact it will have on your life.  Maybe there will be an impact, maybe there will not be an impact.

60It is very hard for me to make any sort of meaningful judgment. I will proceed on the basis that it may well have an impact in some of those domains. But that is not the sole driver as to whether a court convicts or not. It is something I take into account in the matters set out in s.8 which after all are not exhaustive.

61Ultimately having considered the various matters that have been raised, I think it is open to me to place you on a community corrections order and I am going to do that.  I do not think that it is open in the circumstances of this offending to proceed without conviction.  That is owing to the serious nature of this offending that is before me.

62I think I actually have to mark out that serious offending by proceeding to convict.  For those reasons I believe that I must record a conviction in relation to this offending.

63What I am going to do though is accede to the submission to place you on a community corrections order and I am going to convict you of these two offences, burglary and criminal damage and I am going to place you on an order that at least, is expressed, as lasting for an 18 month period.  That is to give you plenty of time to do this work.  You should not need plenty of time and I doubt you will.  It commences today and it ends on 14 September 2019.

64I am not having you assessed.  I do not think there is a need for me to have you assessed in the circumstances here.  I am imposing here a work condition only.  That is the sole condition under the order.  It is under the maximum of 300 hours.

65As I read the provisions, the suggestion is that the order expires on the satisfactory completion of those hours of work.  That is the hours that I am about to tell you about.  You will want to clarify that very directly with the Community Corrections officer; they might have a different view of the way in which that provision is interpreted.

66In any event, it is an 18 month order.  It runs to 14 September 2019.  You have to attend at the Broadmeadows Community Corrections services within two clear working days of this order starting.  It starts today.  So you will need to get down there within two clear working days.

67These orders, I say there is only one condition, there is, that is the unpaid work I am going to tell you about, but these orders have mandatory terms.  They apply to every person who gets one.  They will apply to you until this order ceases whenever that may be.  It is important that you understand them.

68What you must not do is commit any other offence for which you could be imprisoned in the period of this order when it is in force.  If you commit any offence in that period when the order is in force, an offence for which you could be imprisoned, you will breach this order.

69You have got to report to and receive visits as directed.  You have got to let them know within two clear working days of any change of address or job.

70You must not leave Victoria without getting permission to do so from the Secretary.  You have got to obey all the lawful instructions.

71So they are the mandatory terms.  They apply to you, they apply to everyone who gets one of these orders.

72There is also the single condition that I am going to impose, though you will see two on the form.  The condition is this:  You must perform 275 hours of unpaid work over the period of this order as directed by the regional manager.

73There is another condition that you will see down below it.  I do not like it but it populates this form whatever we do.  It says, if you fail to comply with that condition the community corrections crowd can direct you to perform some additional hours of unpaid work in accordance with some provision of the Sentencing Act.  That is over and above the 275 hours.

74Do not work on that theory.  Work on the theory that if you do not do the work, you will be breached on this order.

75Now I do not know where they are going to get you to do unpaid work.  I do know that it will be a nuisance for you.  You will not enjoy it, you will not want to do it.  There will be things you would rather do.  But if you take that attitude to it and if you do not turn up, you will breach this order, all right?  It is not a difficult order for you to comply with.  I am not placing you under supervision; there is no need to.  I am not placing other conditions here.  I do not think there is a need to.

76It is an order that is very simply complied with by you.  You do what they tell you to do and go where they tell you to go and work where they tell you to work and you do that and you will have no troubles.

77If you do not do those things, if you commit any other offence punishable by imprisonment, you will breach the order.  If you get it into your head that you are going to leave your address or leave your job and not let them know or leave the state without getting permission, you will breach the order.  If you do not turn up at the unpaid work site, you will breach this order.

78These orders are breached by people who are happy enough to get them on the day; maybe you will be, maybe you will not be.  I do not know.  But you would be a fool to breach this order because if you do, firstly breaching one of these orders is a criminal offence.  It is punishable by a three month term of imprisonment, but more significantly, if you breach this order, you will be brought back to court.

79Now it will not be the Magistrates' Court; you have already been there once.  You will be brought back in front of me.  If you are brought back in front of me in breach of this order, you really should expect in those circumstances, that the order will be cancelled.  That is the most likely outcome.  It is the most common outcome when someone comes back before me in breach.

80Now of course I would listen to anything that was said on your behalf.  I would need to assess how seriously the breach ought be viewed and I cannot guarantee what I would do.  But I you should work on the theory that if you breach this order, you will be brought back in front of me with the offence of breaching this order and the most likely outcome is I will cancel this community corrections order.

81If I cancel it, I then have to resentence you for these same offences.  You should regard it as a distinct possibility if you breach this order, come back and I cancel it, that I will send you to prison.  Do you understand?

82OFFENDER:  Yes.

83HIS HONOUR:  All right.  So you do not want to breach this order.  I do not think that you will breach this order.  Someone like you with your work ethic I think you will be able to knock off these hours reasonably swiftly.  It may take nothing like the 18 months.  That is what I suggest you do.

84Now the community corrections people, they are not silly.  If you play games with them they will breach you.  If there is some reason why you cannot get to a session with them, if there is some reason why you cannot get to an unpaid work appointment, let them know, before the day if possible but if it is something that is arising on the day, get on the phone to them, on the day, and explain to them why it is that you cannot be there.  They will ask for documentary proof no doubt.  But if you just do not turn up and then do not turn up again you will find yourself breached on the order.  So do not do that.  The best way of complying with this order is to strike up a decent relationship with this community corrections officer, all right?  You do that and the rest will be pretty straightforward for you I think.

85Let me just see then, have I adequately explained the order, Mr Vassis?

86MR VASSIS:  Yes, Your Honour.

87HIS HONOUR:  All right.  Well look, Mr Eskandari, come out of the dock, come down and just sit behind your counsel.  I will just have that order come down to the Bar table.  If you just both look at it just to satisfy yourself and ‑ ‑ ‑

88MR VASSIS:  Thank you, Your Honour.

89HIS HONOUR: ‑ ‑ ‑ it mirrors my stated intention.  Mr Vassis, the s.464 that I am about to sign has for some reason the Booroondara police station in Harp Road, Kew.  I do not know why that is there.  What would be his closest?  Would it be Moonee Ponds or ‑ ‑ ‑

90MR VASSIS:  Moonee Ponds, I would have thought, Your Honour.

91HIS HONOUR:  Yes, all right.  Have we got the right Corrections centre?  Is that the ‑ ‑ ‑

92MR VASSIS:  It is Broadmeadows.

93HIS HONOUR:  Broadmeadows, yes.

94MS LOCKE:  Your Honour, we have also got those orders in an electronic format if Your Honour would prefer for us to amend ‑ ‑ ‑

95HIS HONOUR:  No, we can do it on the screen here, that is all right.

96MS LOCKE:  As Your Honour pleases.

97HIS HONOUR: Look, in addition there is an application for compensation. There is no opposition to the compensation being made and upon convicting you of burglary and criminal damage I am satisfied that 4 Reed Pty Ltd has suffered damage to the property and I order that you pay $10,000 by way of compensation pursuant to s.86 of the Sentencing Act in favour of that entity.

98MS LOCKE:  As Your Honour pleases.

99HIS HONOUR:  All right.  In addition application is made for a 464ZF order.  That is, a forensic procedure for the taking of a scraping from your mouth in accordance with the provisions of the Crimes Act.  That order unlike the compensation order, this one is opposed by your counsel and he speaks of your limited history and the nature of the offending and the passing of time since and the fact that you have not come to police attention again.  All that is true, no question about that.  You have no criminal history.  You have just these offences.  Nothing has occurred since.  There is the setting of these particular offences.

100But nonetheless they are involving a serious entry into other persons premises with an intent that is likewise serious, to cause damage and then you followed through with that.  So in those circumstances I believe that I am justified in making the order.  I believe it is in the public interest to actually make it.

101So I order that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with those provisions that I mentioned a short time ago until a sample of sufficient standard is obtained for placement on the database.

102I order that you attend for the purposes of undergoing this procedure, that you report to the officer in charge of the Moonee Ponds police station that is in Mt Alexander Road.  The address is on the document.  This will be in the next four week period.

103I believe that the order is justified, that I am justified in making the order owing to the seriousness of the circumstances of the offending and that I judge to be in the public interest to make the order that I have made.

104I understand that the order is opposed but I am making it.  You have to understand that your obligation is to attend.  It is not a difficult business.  Mr Vassis will explain to you it is just turning up at the police station, turn up with this piece of paper, they will know what it is all about.  They will be running a swab around the inside of your mouth.  It is not an overly invasive process.

105They can, and they are entitled to use reasonable force to do so.  If they encounter any sort of problems doing it, no doubt the authorities will be back before me applying for a blood test anyway; you do not want that to happen.  I have signed the 464ZF order as well.  At this stage all I am authorising is the swab, not the blood sample.

106I do not believe I am required to make a s.6AAA declaration in these circumstances.  It is a community corrections order and it is for a period of less than two years.  So I decline then to make a s.6AAA declaration.  Do you say it applies or not?

107MS LOCKE:  I did say that s.6AAA applies, Your Honour.

108HIS HONOUR:  You do or you did?

109MS LOCKE:  Only that my understanding was that there was an amendment to the ­­- to be honest, Your Honour, I will accept that I included the 6AAA bit in my opening without turning my mind to the CCO.  But having said that, I thought that there was an amendment to the Sentencing Act which expanded 6AAA as to apply to circumstances where a community corrections order is imposed as well.  So my instructor is just having a look.

110HIS HONOUR:  You are right and that is what I am looking at.  It is order for a period of two years or more, that is the way I read it.

111MS LOCKE:  Absolutely right, Your Honour ‑ ‑ ‑

112HIS HONOUR:  Anyway, it is academic, the 6AAA declaration in this sort of case is nonsense anyway.  I am not going to make it and ‑ ‑ ‑

113MS LOCKE:  And I am not going to ask for it.

114HIS HONOUR: ‑ ‑ ‑ I do not think I am obliged to do so.  The reality is, Mr Vassis, as you know, and your client may or may not know, but if he had pleaded not guilty and run a trial, there would be two things to say about it.  The trial would have been a fiasco and secondly, he would have done a lot worse.

115MR VASSIS:  Yes, absolutely.

116HIS HONOUR:  In that sort of setting it is highly likely he would have been sent to prison.

117MR VASSIS:  Certainly, Your Honour.  It is why the early plea was entered.

118HIS HONOUR:  Yes, all right.  That CCO, we might just have that signed now and ‑ ‑ ‑

119MR VASSIS:  Do we sign this copy, Your Honour?

120HIS HONOUR:  Yes, sure.  I should have asked more directly and I will ask you in a moment, because he has got the chance not to consent.  Mr Vassis, I have not put it directly to him and I know he signed it, but he has not gone too far for that.  I am going to have to ask him directly whether he consents to this order and if he does he does, and I have got his signature on the order and I will sign it myself.  If he does not, he does not.  I will deal with him in an alternative manner which I think you might understand what it is.

121MR VASSIS:  He was just raising with me, Your Honour, about how do I basically juggle it with my work and do everything else.

122HIS HONOUR:  He is going to have to.

123MR VASSIS:  That is what I said to him.  You will speak to Corrections and you will tell them what your work hours and they will work something to tailor your specific - and that is where it came from.

124HIS HONOUR:  But I mean, if there is any doubt, I mean as I say, he does not need to consent ‑ ‑ ‑

125MR VASSIS:  If I could just have a moment with him, Your Honour?

126HIS HONOUR:  Yes.

127MR VASSIS:  Thank you, Your Honour.

128HIS HONOUR:  All right.  Mr Eskandari, can you just stand up please.  Do you consent to this community corrections order?

129OFFENDER:  Yes.

130HIS HONOUR:  All right.  You have signed this order?

131OFFENDER:  Yes.

132HIS HONOUR:  Yes, all right.  Have a seat then.  We will have that copied.  Just remain seated.  The work is meant to be a punishment; it is a punishment, it will not be easy, but what you have got to do is you have got to - you have got to keep in your mind that is what you have to do, the unpaid work.  So it is not a matter of - no one is going to want you to - lose enormous amounts of work or anything like that.  The Corrections people will try to organise an unpaid work site that might suit you or an unpaid work time that might suit you.  I do not know when that might be.  But you are going to have to give priority to this order, because if you do not, you will breach it.

133You do not want to breach it, because if you breach it you see me again.  I do not want to see you again.  You do not want to see me again.  So let us keep it that way and let us not see each other again.  But if you breach this order you get brought back in front of me and it is not going to be too persuasive for me to be told in a year from now doing the work was just too hard.  That will not be an excuse.

134You are consenting to this order and the only condition is you do the work.  So that is the way I am punishing you.  If you breach it, if you decide that you are not going to do the work, I will punish you in a different way.  The different way is likely to have you heading out the back door to a prison.  So do not put yourself in that position and do not put me in that position, all right?

135Let me just see, are there any other - I have pronounced the compensation.  I have pronounced the 464.  I have declined to announce a 6AAA.  Are there any other matters at all?  No?

136MR VASSIS:  None that I can think of, Your Honour.

137HIS HONOUR:  No, all right.  Well thanks very much each of you.  I am sorry to have had you all waiting around so long but anyway, the matter is at least finalised and I will sign the formal orders downstairs.  Yes, thank you.

138MS LOCKE:  As Your Honour pleases.

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