Director of Public Prosecutions v Fraser
[2023] VCC 559
•4 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR 17-01203
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RENEE FRASER |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2023 | |
DATE OF SENTENCE: | 4 April 2023 | |
CASE MAY BE CITED AS: | DPP v Fraser | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 559 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Contravention – Community correction order – Lapsed – Abject failure – Fine
Legislation Cited: S 6AAA, S 83AD, S 83AS Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:Community Correction Order for 2.5 years – Fine of $1,000
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Jones-Williams | |
| For the Accused | Ms A. Zomer |
HIS HONOUR:
1 Ms Zomer, taking into account the matters that you have put to me I propose to convict your client and discharge her under s83AD. Under 83AS(1) the order has lapsed, I cancel the order if it is still in force, no. And, whether or not it is still in force subject to sub-s2, deal with the offender for the offence with respect to which the order was made in a manner in which I could have dealt with. And sub-s2, of course, means I have to take into account the extent to which the offender has complied, which is almost nil.
2 Ms Zomer, what I have proposed to do is reduce the fine from $2,500 to $1,000 and give her two years to pay that off, given her current income situation. Pursuant to s83AS(c), as the order is now cancelled, I order a new community correction order for a period of two and half years, with exactly the same terms and conditions that I imposed on the last occasion. And one of those, of course, which you will need to explain to your client, if she does not already know and she does not seem to understand conditions very much, is that she report in regard to this order within three days to her nearest correction office.
3 MS ZOMER: She is residing in Ferntree Gully.
4 HIS HONOUR: So the nearest corrections office is probably in Ferntree Gully, is it?
5 MS JONES-WILLIAMS: I think I can get instructions on that.
6 HIS HONOUR: Get instructions on that.
7 MS JONES-WILLIAMS: Yes, I will, Your Honour.
8 HIS HONOUR: But more importantly, Ms Zomer, I said last time in my sentencing remarks to her on two occasions having found that she had committed a particularly heinous act with very high objective criminality for which Parliament imposed a maximum penalty of 15 years and noting her emergence or being merged at the time in what one can describe as a mileau and I indicated the balance was very exquisite. However, in her interests given all the materials and at the time there were positive screens, albeit, for only one month I gave her the opportunity, but I said to her at the time she would not want to come back again.
9 However, given the positive report from the community correction office, despite her abject failures, and I am referring to the report dated 13 February 2023, they recommended that the order would be varied to recommence. The purpose of that was to enable Ms Fraser the opportunity to gauge and potentially take advantage of the rehabilitative aspects of the order.
10 I do not intend to judicially monitor; it is not my practise. My judicial monitor will be provided if she does not comply with the orders. She need not bring counsel next time. If she comes back here for another breach, then she should know very clearly – do you understand what will happen if you come back? It is gaol, not mucking around. You are very lucky now I am not sending you to gaol. The whole purpose of these orders is to help your rehabilitation and what do you do, spit in the Court's face and do nothing, you commit a very serious crime. I give you an opportunity, and you could not care less.
11 Do not come back in front of me again. Do you understand? Because you know where you will be going. Ms Zomer, you better get clear instructions that she is prepared to accept that order in those terms.
12 MS ZOMER: Yes, Your Honour. May I be excused.
13 HIS HONOUR: Yes. So, Madam Associate, we will make it the same terms and conditions, the final now to be $1,000 and payable over two years. Madam Prosecutor, we think Ringwood.
14 MS JONES-WILLIAMS: Yes, Your Honour. I was just going to offer that I would get my instructor to email - - -
15 HIS HONOUR: I think Ringwood is the closest.
16 MS JONES-WILLIAMS: Ringwood, all right, thank you, Your Honour.
17 MS ZOMER: Thank you, Your Honour. She understands the conditions.
18 HIS HONOUR: All right. If you stand up, please. Ms Fraser, despite my genuine unhappiness about your failure to comply with the order given the leniency with which the Court treated you last time, given the circumstances going on in your life, I am prepared to give you a further opportunity. On the breach to which you pleaded guilty under s83AD you will be convicted and discharged.
19 That takes me to a s83AS, the community correction order has now lapsed. Pursuant to sub-s1(c), I have to re-sentence you, taking into account all the matters that I have been told today, especially by Ms Zomer as to your current circumstances, the circumstances relating to your child and future legal issues that you are involved in. I have determined to not send you to gaol today, but to place you on a further community correction order for a period of two and half years from today. The terms of that order will be exactly the same as the last CCO, which are essentially designed to assist you.
20 Importantly, within three days you will have to report the Ringwood community corrections office, pursuant to this order. And given the circumstances of your income I will reduce the fine that I imposed to $1,000 and give two years to pay that fine. I order that any extension of those two years, and any application for extension, come back to me because I do not intend to grant an extension to you, as it seems you have plenty of time.
21 Yes, thank you. It will be necessary for you to stay here while the order is prepared and – well, we may as well do that now, will we?
22 MS JONES-WILLIAMS: Your Honour.
23 HIS HONOUR: Yes, sorry, Madam Prosecutor.
24 MS JONES-WILLIAMS: Your Honour, I just ask that the Court make a s6AAA declaration because it was a plea of guilty.
25 HIS HONOUR: Yes, I make the same declaration as I made last time pursuant to s6AAA had you not pleaded guilty in this matter I certainly would have imposed gaol. Given the totality of circumstances before the Court, both revealed in the last sentencing hearing and today, it is not possible for me to say how long a gaol term I would give you. I hope I never have to make that decision as to how long a gaol term I give you, you having now been given a second opportunity.
26 Thank you, Madam Prosecutor for that.
27 MS JONES-WILLIAMS: As the Court please.
28 HIS HONOUR: Take a seat. Ms Zomer, we need the updated address of your client.
29 MS ZOMER: Yes, Your Honour.
30 HIS HONOUR: To go on the order.
31 MS ZOMER: It is Unit 10, of 2-5 Emma Court in Ferntree Gully.
32 HIS HONOUR: Thank you. Ms Zomer, I will ask you to assist my associate and getting your client to sign the order.
33 MS ZOMER: Yes, of course, Your Honour.
34 HIS HONOUR: And I will sign it after that. I will wait here. Yes, thank you.
35 MS JONES-WILLIAMS: Your Honour, may I be excused.
36 HIS HONOUR: Yes, certainly.
37 MS JONES-WILLIAMS: Thank you, Your Honour.
38 HIS HONOUR: Perhaps you should wait until the order is signed.
39 MS JONES-WILLIAMS: I will just wait. I will wait.
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