Director of Public Prosecutions v Esler

[2024] VCC 15

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. AP-15-0695

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAYDEN ESLER

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2024
DATE OF SENTENCE:	24 January 2024
CASE MAY BE CITED AS:	DPP v ESLER
MEDIUM NEUTRAL CITATION:	[2024] VCC 15

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Contravention of CCO; non-compliance; further offending

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:                  Community Corrections Order confirmed; fine of $3,000 with conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S Davison	Office of Public Prosecutions
For the Accused	Mr B Watson	Johnstone & Reimer Lawyers

HIS HONOUR:

1The accused, Mr Hayden Esler was sentenced by her Honour Judge Patrick on appeal on 2 July 2015, where he was convicted and sentenced to 157 days of imprisonment, being time reckoned as already served, followed by an 18 month Community Corrections Order (‘CCO’). It is the contravention of this CCO that is to be dealt with today.

2I rely on the original plea documents provided including the Justice Plan report dated 17 June 2015 and the psychological report by Mr Warren Simmons dated 23 March 2015. I take into account that Mr Esler has been diagnosed with mild intellectual disability and his father died when he was very young, causing him to live in numerous foster homes and residential care. He was subject to verbal and physical abuse during this time. He otherwise began employment from the age of 17 as an apprentice mechanic and has had solid employment as a mechanic since. He moved to Queensland in 2016 and completed an apprenticeship, working as a mechanic and tow truck driver. He then moved to Adelaide in 2018 and worked as a tow truck driver before starting his towing company in 2020 which he continues to maintain today after returning to Victoria in 2023.

3By way of background, the CCO commenced on 2 July 2015 and ended on 1 January 2017. In this time, Mr Esler failed to attend his supervision appointments on 12 occasions, including engagement with his Justice Plan services, and although he completed his required 150 hours of community work, he failed to attend as directed on 29 occasions. He was then charged with contravening his CCO by way of non-compliance pursuant to the Sentencing Act 1991 s 83AD.[1] The contravention is admitted by defence.

[1]        Sentencing Act 1991 (Vic)

4In addition Mr Esler was recently sentenced in the Magistrates’ Court in relation to offending dating back to 2016 during the operational period of the CCO. I note this offending also included charges of contravening intervention orders from 2020 and 2021. Overall, I consider this prior offending to be largely historical, and since 2016 he has a largely unblemished record.

5In relation to the degree of his compliance with the CCO, which I must consider pursuant to s 83AS(2) of the Sentencing Act 1991, Mr Esler’s engagement from the outset was not positive as is evidenced by the more than 40 contraventions. This is despite being formally warned about his non-compliance and potential consequences.

6He did, however, complete 150 hours of community work as required. Turning to the exercise of my discretion, I find it important to note that although there was extensive non-compliance with his CCO, Mr Esler has made significant progress in his rehabilitation and maintained solid employment despite moving interstate several times. For this he is to be commended. Mr Esler currently lives with his partner who assists with the management of his towing business and continues to provide and care for his four children, three of whom reside with his former partner. I take into account the positive factors of Mr Esler supporting his family, having solid income and employment in his operating of the business.

7In the circumstances, I do not find it appropriate to impose another CCO due to his previous difficulty in balancing his family duties and employment with community work and overall continual engagement with any order.

8In relation to the original charges and given the significant lapse in time since the contraventions, I will confirm the original sentence involving the CCO and for the contravention charge, I impose a fine of $3,000 with conviction. I consider this a substantial penalty to reflect the repeated flouting of the terms of the CCO. Such behaviour is not to be condoned.

9Pursuant to s 6AAA of the Sentencing Act1991, I direct that were it not for your plea of guilty I would have sentenced you to a Total Effective Sentence of 14 days imprisonment.