Director of Public Prosecutions v Exner
[2013] VCC 961
•8 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BYRON EXNER |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF APPEAL: | 24, 26 September 2012, 26 February, 27 March, 8 April 2013 | |
DATE OF SENTENCE: | 8 April 2013 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2013] VCC 961 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Cheng | |
| For the Accused | Mr Grundy |
HER HONOUR:
1 When the hearing before me concluded last week I indicated what I proposed to do subject to a favourable report and my reasons for considering it appropriate, if the report were favourable, to place Mr Exner on a Community Corrections Order for a limited period and not to impose any harsher punishment than that. I said then that what I had said last week would stand as the bulk as my reasons for decision, the only outstanding matter really was the actual terms of the order and whether the order should be made with or without conviction.
2 I have given earnest consideration to whether the order should be made with or without conviction and I have ultimately decided that the seriousness of the offence itself, and the circumstances that ultimately led to it coming before me, that is after a contested hearing in the Magistrates' Court are such as to make it inappropriate to deal with this matter without recording a conviction. I said last week and I want to say again how impressed I was by Mr Exner's frankness and realistic approach, in saying that the recording of a conviction would not be determinative of the police discipline outcome, it would be of more assistance if no conviction were recorded, but it is the circumstances of the offence and the court hearing rather than that aspect of this sentencing discretion that would be more significant for police command to consider in looking at Mr Exner's future. So that was a factor for me.
3 I have decided that consistently with what I said last week, that the order should last for a period of nine months. It is really to ensure that the sentencing marks the seriousness of the offending, but to acknowledge the progress that Mr Exner has made to date and to reflect as objectively as one can the seriousness of the offending and the circumstances. We do not normally get to impose orders of such a short duration in this court, so although it may sound long to you Mr Exner I want you to understand that so far as this court is concerned, and the gravity of matters that normally comes before us, I see it as a short order.
4 I have imposed unpaid community work, but again it is a very limited amount, it is 50 hours of unpaid community work. I have imposed, or I propose to impose a condition that you undergo assessment and treatment for alcohol abuse or dependency as directed, that is to carry on the work you have already done with SEEDS, and also to have a specific condition in relation to programs and courses aimed at addressing factors relating to the offending behaviour and that is in particular courses in anger management and violence against women. Again it is my understanding that Corrections will simply facilitate your continuing to attend the courses that you have been continuing.
5
The period of nine months seems to me to be sufficient to ensure that there is stability and continuity once the court proceedings are out of the way but without having any longer period that would be oppressive and unduly punitive in my view. So that is what I propose to do. Could you stand please
Mr Exner?
6 You are aware, I understand, that before a community corrections order can be imposed you must consent to it and the conditions of the order. Let me just tell you formally then what the conditions are. On the one charge of recklessly cause injury the order would be this, that you be placed on a community corrections order for nine months commencing today and ending on 7 January next year. That you must attend at the Dandenong Community Correctional Services at 46 - 50 Walker Street in Dandenong within two clear days after the commencement of this order.
7 There are mandatory terms that apply to all community corrections orders. They are that you must not commit another offence for which you could be imprisoned during the time the order is in force. That you comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. That relates to being drug and alcohol free when you attend for any meeting or appointment with Community Corrections, or for any work. That you must report to and receive visits from the secretary or delegate. That you must let a Community Corrections officer know within two clear working days if you change your address or your job. That you not leave Victoria without first getting permission from the secretary or delegate to do so and that you obey all lawful instructions from, and directions of, the secretary or the delegate.
8 Then in addition to the mandatory terms the specific conditions for you are that you perform 50 hours of unpaid community work over that period of nine months, as directed by the regional manager. That you undergo assessment and treatment including testing for alcohol abuse or dependency, as directed by the regional manager, and that you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager. As what is described in our form as a residual condition that is clarified to specify that the offending behaviour programs include courses relating to anger management and violence against women.
9 Do you understand the effect and conditions of the order Mr Exner?
10 OFFENDER: Yes Your Honour.
11 HER HONOUR: Do you consent to it being made?
12 OFFENDER: Yes Your Honour.
13 HER HONOUR: Very well, I will have that handed down to you and ask you, after Mr Grundy has had a look at it to check that is correct, to sign that. I should make it clear that this relates to Charge 2 only, the charge of recklessly cause injury, and I will formally make the order in relation to the withdrawal of the charge of make threat to kill when I pronounce the formal orders. All right, I have signed that order, let me then formally say this, the orders of the Magistrates' Court of Victoria, sitting at Ballarat, made on 28 November 2011 are set aside, and in their stead the following orders are made:
14 On Charge 2 you are convicted and ordered to serve a community corrections order for a period of nine months on the conditions that I have just identified.
15 Charge 4 is withdrawn.
16 They are the only formal orders I need make, are they not Ms Cheng?
17 MS CHENG: Yes they are.
18 HER HONOUR: Do you agree with that Mr Grundy?
19 MR GRUNDY: Yes I agree with that Your Honour.
20 HER HONOUR: Thank you. I have signed all of those. Mr Exner when a copy of the community corrections order has been made and provided to you, you will be free to leave. I hope, I am sure, that this will be the last time you are before the court as a defendant rather than in any other capacity. As you are aware we do not normally get transcript of appeals or of sentences, past and appeal hearings. You may well want to obtain a transcript of what I said to you last time and what I have said this morning, and if you do Mr Grundy need only contact my associate.
21 OFFENDER: I believe Mr Grundy has already made that application Your Honour.
22 HER HONOUR: All right, I will direct that a transcript of the hearing last week and of this morning be produced and when produced a copy provided to your legal advisor so that can be provided to you for the purpose of any applications or matters that are before Victoria Police.
23 OFFENDER: Thank you Your Honour. There was just one other thing, the information that I subpoenaed, can that may be made available also Your Honour?
24 HER HONOUR: No it cannot Mr Exner, because it was only ever going to be relevant if you were allowed to change your plea, and if its relevance were established - - -
25 OFFENDER: No it may be relevant for - - -
26 HER HONOUR: If it is relevant for some other purpose it will have to be obtained in a process related to that purpose.
27 OFFENDER: Thank you.
28 HER HONOUR: You understand - - -
29 OFFENDER: I do Your Honour.
30 HER HONOUR: - - - we can't use subpoena processes to allow access to material for other purposes, because the very reason material needs to be subpoenaed is because it's otherwise protected from production, so I'm afraid you'll have to go through some other process if you want it produced for the purpose of the police proceedings. So, so far as the subpoena is concerned I order that the material produced pursuant to the subpoena not be provided and direct that it be returned to the chief commissioner of police. That then deals with the subpoena, doesn't it?
31 OFFENDER: Yes Your Honour.
32 HER HONOUR: All right. Let me just remind you again, as I must, about the prospect or the consequences of breach. If you breach the CCO either by non compliance or by commission of further offences you are required to return to this court to be dealt with for the breach, and also to be re-sentenced for the original offence. Therefore you must bear that in mind over the next nine months as this order runs its course, but again I would have thought - - -
33 OFFENDER: Your Honour, like I said before - - -
34 HER HONOUR: You are highly unlikely, Mr Exner, to put yourself in a position of breaching either by non compliance or by commission of further offences.
35 OFFENDER: Yes Your Honour.
36 HER HONOUR: That's all done then.
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