Director of Public Prosecutions v Frincu
[2025] VCC 350
•26 March 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-24-00969
Indictment N12367054.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL FRINCU |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 March 2025 |
DATE OF SENTENCE: | 26 March 2025 |
CASE MAY BE CITED AS: | DPP v Frincu |
MEDIUM NEUTRAL CITATION: | [2025] VCC 350 |
REASONS FOR SENTENCE
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Catchwords: Criminal damage - Recklessly causing injury - 15 year old female victim - Summary offence: trespass - 21 years old at time of offence, 23 as at sentence - Short criminal history - On CCO at time - Guilty plea – Remorse - R v Mills (1998) 4 VR 235 Youth - Bugmy v The Queen [2013] HCA 37 Disadvantage.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Tamburro (at Plea) Mr P. Russell (at Sentence) | Office of Public Prosecutions |
For the Accused | Mr P. Bloemen | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1On Monday of this week, I was asked to give a sentence indication in this matter. I did and you then pleaded guilty to the charges the subject of that indication at the first available opportunity, that is, the two charges on the filed-over plea indictment, namely, criminal damage and recklessly causing injury, as well as the summary offence of trespass.
2The maximum penalties are correctly spelt out in the agreed summary.
3You have admitted a short criminal history. At the time you committed these offences you were on a community corrections order imposed for an act of criminal damage and that of course is a feature of aggravation.
4There is a quite strange aspect to hearing a plea in mitigation and then sentencing after a sentence indication has been given by the court, and then accepted, in that you are scarcely in suspense down there in the dock as to what might happen. You know that you can do no worse than a combination type sentence with the prison sentence component not exceeding your
pre-sentence detention of 84 days, and that is because you pleaded guilty at the first available opportunity after I gave that indication. You will recall I stood down for about 15 minutes and Mr Bloemen obviously had a conference with you, you were then arraigned and we then proceeded with the plea.5It follows really that I had heard oral submissions and had recourse to the oral and written submissions for each side in advance of giving that sentence indication on Monday, and then those very same matters were raised on the plea by each side after you had been arraigned and pleaded guilty.
6Once the matter settled after the sentence indication process, the prosecutor, Mr Tamburro, opened this matter to me on Monday in accordance with that written summary of prosecution opening for sentence indication dated 7 January 2025. You heard that read out aloud. It was badged up in that way but it was by then of course a factual summary on the plea, and an agreed one at that. That document was marked as Exhibit A. As it was an agreed summary, there is just no point in my setting out all the agreed facts in these my reasons for sentence. I will sentence pursuant to that summary, as well as the bundle of photographs placed before me and marked as Exhibit C.
7So, I will give only a relatively brief summary so that my reasons and my ultimate sentence might be readily understood by anyone who happens to access these remarks when they come to be published, as they will online.
8On 31 October 2022, at around 11.30 pm you attended at the Laurel Street unit of Melinda Gaffney. You were known to each other, and she lived in that Ministry of Housing unit with her 13-year-old son, Callum.[1] I believe you knew her older son as well.
[1] A pseudonym.
9You entered without permission, and having done so you said: 'Mel, where are you?' It was 11:30 at night.
10Once inside you then started smashing up the windows to the property including the sliding door glass. You were making multiple trips in and out. You smashed the glass walls and the door of the shower, as well as the bathroom mirror. You also smashed the TV in the loungeroom. In fact Ms Gaffney had been asleep upstairs and she woke to the sound of breaking glass and fled to her neighbour's house.
11Her young son, Callum, who was 13, and his friends, 15-year-old Samuel Coode[2] and 15-year-old Gabrielle Finlay[3], returned to the vicinity of the property. It was Halloween. Your paths crossed. Exactly what happened out on the street is all a bit unclear, it is probably a bit unclear to you as well, I suspect. Ms Gaffney heard yelling, she ran outside, and she then saw you leaving the scene with your mother in your mother's car.
[2] A pseudonym.
[3] A pseudonym.
12You were leaving that scene, Gabrielle Finlay was not. She was lying on the ground at that scene.
13She got to her feet and ran from that scene, and a bit later was attended to by some paramedics who treated her for some facial injuries, as well as a cut to her right index finger. She refused to speak to the police at that stage and she declined further treatment. She returned home and saw how inflamed and puffy her face was.
14The following day she had two black eyes and she made a police report. The injuries are shown in the photographs placed before me.
15The precise mechanism of injury is just not spelt out, and though the depositional material set out some of Ms Gaffney's observations at the scene, that material is not relied upon by the Crown in the circumstances, nor is it available for me to use in my sentencing task. That is so given the agreements reached as to the ambit of the agreed facts. So there is a bit of a vacuum in this case.
16It was that fact which caused me some real disquiet as to whether I should provide a sentence indication in this case. I ultimately decided to give one, for what is plain enough is that she had been assaulted by you - 'she' being a 15‑year-old girl. She has been cut by you and there has obviously been some other physical contact by way of trauma to her head to cause the bruising to her forehead and the black eyes. Beyond that though I really cannot reach any view as to the mechanism, be it foot or fist or the number of strikes, or any of the other circumstances, other than to conclude, as I must given your plea, that whatever happened out on that street should not have happened and you were acting unlawfully towards her in doing what you did. That you caused her injuries and you did so without any lawful excuse, and you did so with the foresight of the probability of injury being caused to her by your actions. As I say, she is a 15-year-old girl.
17You were interviewed and you said a good deal of things in the interview. How much of what you said is true is really anyone’s guess. You did not suggest that you had in any way been attacked by a female or that you had assaulted one, nor did you even place yourself in the house at all or admit to causing any damage.
18By your plea you admit that you entered as a trespasser (this is the summary offence, not the commission of a burglary or aggravated burglary, I make that clear) and that once inside you caused the damage and that you injured Gabrielle out on the street without any lawful excuse.
19As I say, there is a bit of a vacuum in the materials placed before me, but it is not one that I am free to add to by delving into the depositional material. Plainly you did sustain an injury to your hand, it was quite a deep laceration, but again the circumstances of that are really shrouded in mystery. I cannot know if you were acting defensively or aggressively at the time - I would not have a clue. It actually does not matter, for there can be no claim of self-defence in relation to Gabrielle and the injuries that she sustained or your actions in causing them.
20You were obviously in a very poor and degraded state on the night and seemingly very much out of control, such that you lost consciousness and even had seizures at one stage when you were arrested by the police.
21Obviously enough there was something motivating your entry to the unit and your conduct within, but it is really difficult for me to know what it was as you denied even entering the unit when you were spoken to by the police. Though you denied entry, DNA matching yours was found in a blood smear on the inside blind with some astronomical likelihood ratio.
22You remained in custody until you were bailed on 23 January 2023. So, there are 84 days pre-sentence detention.
23The summary sets out in great detail the chronology of the matter before the court. It is a very lengthy chronology. I will not set it all out.
24So much then for what really is only a brief summary of the agreed summary in this matter. As I have said already, I will sentence pursuant to the more detailed agreed summary dated 7 January 2025 and those photographs. There were no medical materials placed before me as to treatment for Gabrielle Finlay, nor can the cost of the damage caused in the unit be quantified. I note that that unit burnt down a few days after.
Impact
25There is no impact material before me. there was not the other day and there still is not. Plainly enough it was a frightening episode for Ms Gaffney to wake up at night in her own home to the sound of breaking glass within her home. She fled in fear. Plainly enough there was very much immediate impact upon Gabrielle Finlay, she was assaulted by you and she sustained a bruise to the head and a laceration to her hand and those black eyes. She was only 15 years of age and she was assaulted in a public place at night by a man. Of course that would have an impact. But they were each free, these victims, to place impact materials before the court and they have chosen, for whatever reason, not to. That was their right. That being so, it really is impossible for me to reach any view as to any lasting or sizable impact here.
In mitigation
26Mr Bloemen in a way conducted two pleas on your behalf; One leading into the sentence indication being given by me and then really adopting broadly those same matters after you had accepted the indication and pleaded guilty. At each stage he relied upon the very detailed outline of submissions dated 20 March 2025. Unlike some counsel who come before me he obviously had a significant knowledge of your background. Something which is absolutely critical for defence counsel at any stage of a proceeding actually. So he relied upon that detailed outline dated 20 March.
27He relied upon a psychological report from Pamela Matthews, as well as a letter from a social worker Daniel Davies. There was a CISP final progress report, also a contravention summary for the earlier community corrections order and there were also two impressive character references, one from Ms Labrozzi and the other from your girlfriend, Maddison Fletcher.
28Either by reference to those written materials or the oral submissions made on the plea, this court was more than adequately informed as to your family, educational, work, drug use, relationship and mental health history. Mr Bloemen made some submissions as to the relevant sentencing purposes in play, and also as to your enhanced prospects of rehabilitation. He submitted that you had done very well on the CISP bail and that this good progress had continued to date.
29In the plea conducted on your behalf he relied mainly upon the following matters in mitigation:
· Your early guilty plea;
· The presence of some remorse;
· Your disadvantaged background (Bugmy[4]);
· The delay and your efforts in the currency of the delay;
· The application of the principles from the case of Muldrock[5] as well as the mitigatory effect of drug addiction, enlivening the principles from Lacey's case[6]. It must be said he did not really forcefully press either of those submissions owing to the lack of true evidentiary foundation in Ms Matthews’ report.
[4]Bugmy v The Queen [2013] HCA 37 (‘Bugmy’)
[5]Muldrock v The Queen [2011] HCA 39 (‘Muldrock’)
[6]R v Lacey [2007] VSCA 196 (‘Lacey’)
He conceded that the offending was serious enough to warrant a prison term, but he argued that a term equating to your pre-sentence detention, in combination with a community corrections order, could achieve all the purposes of sentencing. Well, of course, I had already told him by way of the sentencing indication that such an outcome would be open to the court, and I am not free to renege on that indication.
Prosecution
30The prosecutor, Mr Tamburro, had prepared some detailed sentencing submissions dated 20 March 2025, and accepted that a combination type sentence would be open to the court. The Crown did not submit that the course urged upon the court, that is, an outcome where you would not be returning to prison, was not open to the court in the sound exercise of my discretion. The submissions really were quite uncontroversial and for that reason I do not see any great need to repeat them in these my reasons. The Crown accepted that the case of Bugmy would have some work to do here. They did not accept that the Muldrock or Lacey type submissions were made good, but as I have said already, the truth is that Mr Bloemen recognised the difficulties in each of those submissions and the lack of evidentiary support in the materials.
Background
31I am going to turn to your background. I am going to do it briefly. I have got no reason not to accept the submissions and the material placed before me as to your personal background. I just do not see any point in the setting of this case repeating it all back to you as you are sitting down in the dock. Much of that background is in fact set out in the report of Pamella Matthews. There is also detailed coverage in the written submissions of your counsel from pp3 to 6. There is also some mention in the other written documents including the social worker's letter, and also for that matter the reports that have been prepared as a result of the court calling for assessments - I will come to those later.
32You were born in July 2001. You are now 23 years of age. You were 21 at the time of the offending. Your parents separated when you were very young indeed, only a month or so. You had very little contact with your father. Your mother had some issues in her own life both in terms of substance abuse and mental health. You have taken on a caring role for your mother over the years. She has had some inpatient admissions, as I understand it. You were seemingly exposed to some level of family violence in your early years. It was hardly an ideal environment to grow up in. You spent a fair bit of time in your grandparents' care and that was a positive in your life. The written outline sets out your early family background, education, employment and mental health history on pp4 and 5. I will not set it all out again in my reasons. Drugs have been very much problematic. So too has alcohol.
33You have only a short criminal history. Though there were some relatively serious matters dealt with in the Children's court, the criminal history is not really of great importance to my task. Though you were on a community corrections order at the time, it seems to me what is far more important is what you have done since being released on bail in early 2023.
34You have been working as a tree lopper and an arborist and you enjoy that work though it has not been without some mishaps along the way. That is just the nature of that occupation. You are in a relationship with Maddison Flecher, who was present the other day, and her very impressive reference makes it pretty clear to me that she has got her head screwed on. She speaks of the progress that she has observed over the years and that opinion is very much echoed in the CISP report as well as in the letter from the social worker and the letter from Ms Labrozzi. So your progress since being admitted to bail has actually been impressive. Sometimes it is not, but it has been in your case. Your criminal history itself is short, and you have stayed out of trouble since being bailed and you have done alcohol and drug counselling and also abstained from drug use. I will come back to what you have done since being bailed as of course that it is of real value when I come to assess your future prospects of rehabilitation.
35I have dealt only quite briefly with your background, as I said I would. I have not covered every detail that has been placed before me or that is referred to in the report or in the written submissions. Mr Bloemen made it plain that he was relying upon the principles derived from a High Court case you heard discussed of Bugmy.
36Now an offender's circumstances and their experience during their childhood and their formative years, has to be considered in the sentencing task, and that is not just out of some historical curiosity, but because the effects of social disadvantage do not just diminish with time or evaporate. They are likely to have profound and lasting consequences, and they can sometimes explain, but not excuse, the offending. So taking lifelong damage that is the result of childhood exposure to violence, abuse or neglect into account when sentencing is really just the mark of a humane society.
37These Bugmy principles, as they have come to be called, they have been re-stated in a large number of cases since that decision, including the more recent case of Herrmann.[7] Mr Bloemen made it clear he was relying upon those principles in the general fashion described in the case law and no issue was taken by the prosecution on that score.
[7]DPP v Herrmann [2021] VSCA 160 (‘Herrmann’)
38The application of these principles does not depend upon proof of any causal connection between the background and the offending. In fact, a causal connection is often very difficult to establish for obvious reasons. It was not being pressed here, despite what was contained in the report of Ms Mattews.
39Nor does the disadvantage have to rise to a particular level.
40I am prepared to find, as I said I was the other day, that your background was disadvantaged to a degree. There was a level of dysfunction and instability in your developmental years. It was in that sense an unenviable background and I give it full weight in the way in which that phrase is employed in the case law, including those cases I have mentioned of Bugmy and Herrmann but also Sabatucci[8] which was also mentioned by your counsel and other cases such as Newton[9] and Dhal.[10]
[8]Sabbatucci v The Queen [2021] VSCA 340
[9]Newton (a pseudonym) v The King [2023] VSCA 22
[10]Dhal v The King [2023] VSCA 289
41I take your background into account, as far as I am able to, including as giving rise to some reduction in your culpability here. It seems to me that there can be a softening of some of the retributive and deterrent purposes of sentencing in this case for a variety of reasons, including your youth but also that background of disadvantage which I have spoken of.
Guilty Plea
42Let me turn briefly then to some of the other matters raised on the plea. The first of those is the fact and the stage of your guilty plea. Now, despite that very lengthy chronology of the matter being before this court, it runs to pages, I am going to treat it as a plea at an early enough opportunity for the reasons advanced by your counsel and endorsed by the Crown in their submissions as well.
43You have taken responsibility for your crimes; you have done that by pleading guilty.
44As a result of your guilty plea, the time, the cost and the effort of an actual trial up in this court has all been avoided. No witnesses have been required to give evidence before a jury and only limited witnesses were called in the court down below. You have, by pleading guilty, facilitated the course of justice and you must be rewarded for doing so.
Remorse
45I am prepared to imply some remorse just from the fact of your guilty plea in the circumstances. But there is more than that to it. There are also statements as to remorse found in the references, as well as in the expert report and also in those two reports that have been prepared as a result of the court calling for assessments. So I take all those matters into account and I am prepared to find in this case that you do harbour some actual remorse. I do not have any sense that you are proud of the way that you were behaving on this night. You were really totally out of control.
Rehabilitation/Youth/Delay
46I deal in one portion of my reasons with three concepts that were raised on the plea: that is youth, delay and rehabilitation and that is because there is such a strong relationship between those three things. Your rehabilitation goes hand in hand with youth. Young people are more likely to be rehabilitated. Rehabilitation has been advanced in the course of the delay whilst this matter has been waiting to be heard. I apply the principles in relation to the sentencing of youthful offenders to my task. You were only 21 at the time and you are still only 23 and though you are not a youthful first offender, there is no sizable criminal history placed before me. What we do know is that young people, they are less mature. They are less developed. They are less able to think through the consequences of their actions and they are more likely to act imprudently or unwisely. They are less stuck in their ways and hence they are more likely to be amenable to rehabilitation. Young people are generally speaking viewed as less culpable and the benchmark for sending them to prison is a high one indeed. We also recognise that they are more likely to be corrupted by the undesirable influences which exist in a prison setting. It can in fact be quite counterproductive to incarcerate a youthful offender and do so in the name of protection of the community. Your youth is important to my task for all the reasons spelt out in the case law including cases such as Mills[11] and Azzopardi[12].
[11]R v Mills (1998) 4 VR 235 ('Mills')
[12]Azzopardi v The Queen [2011] VSCA 372 ('Azzopardi')
47Further, though it cannot have been easy having this matter hanging over your head, one benefit to you is you are able to demonstrate an ongoing process of rehabilitation from the CISP materials and the other references placed before me. As I said in the course of the plea, it would be a very different thing indeed had you been off offending in the interim period, but you have not. You have not only not been offending, you have been obviously making real efforts. You are working. You are in a relationship with someone who obviously appears to be very much switched on. You have engaged very well whilst you were on that lengthy CISP bail. You have obtained counselling and treatment. You have remained offence free. You have it seems to me greatly improved your position in the currency of the delay, a delay which was outside your control. So I give weight to the delay argument but mainly in relation to the steps you have taken in the currency of that delay. To a lesser degree there is also the impact of having the matter hanging over your head, which I recognise cannot have been easy. I do not ignore that either.
48I have reasons now to be far more optimistic than perhaps I might have been had I been dealing with you much closer to the event and that is because of your efforts taken in that period. You have those ‘runs on the board’, rather than saying to a court 'this is what I am going to do in the future'. I think you do have positive or good prospects of rehabilitation and subject to remaining abstinent from illegal drug use, I would actually assess your risk to fall at a lower level than the risk assessment result referred to in Ms Matthews' report. It is obvious enough though that the wheels can fall off and surely obvious enough to you that illegal drug use in the future would pose significant risks for you. So you are a work in progress and if you return to illegal drug use, all this progress might be lost.
Ms Matthews report
49I will deal then with the report of Ms Matthews. I will do so quite briefly. It was not being relied upon as enlivening any of the principles from the well‑known case of Verdins.[13] There were some faint submissions made as to the mitigatory effect of drug use and the application of the principles from the Lacey line of authority. I am not satisfied of that on balance at all. The required link does not exist and I have no real explanation for the offending. Nor did Ms Matthews actually. I have already made allowance for the disadvantaged background and that may have had some role to play in drug use but that is where it ends. Her view as to any link is completely speculative and made without even receiving from you your explanation for this offending. As to the Muldrock submission made, the simple answer is I am not satisfied on the balance of probabilities that there is any intellectual disability on the materials placed before me. It simply does not rise to that level. Ms Matthews was conducting a screening test. I do accept that you are likely functioning at a pretty low level and of course I take that into account in a general fashion.
[13]R v Verdins [2007] VSCA 102 (‘Verdins’)
50I really cannot take anything from her report as to why you committed these offences. She has theories but that is all they are, and they are highly speculative. You cannot have provided to her any explanation of why you did what you did. If you had, it would be in the report. I am still to some extent in the dark and maybe you do not even know yourself. There was obviously some grievance but why you acted in the way that you did in going to the unit, and entering it and damaging the property, and why you saw fit to injure a
15‑year‑old girl is unclear to me.51You were plainly quite of out of control on the night and you were obviously disinhibited by some substances, be it alcohol or drugs or a bit of each. Disinhibition is not mitigatory in this case. Nor is acting out of anger. The report is none the less of value in setting out your background and some of the disadvantage in your early life and of course I have had regard to that in my Bugmy findings. It also speaks of your ongoing rehabilitation and the importance at least in the view of the author, of that process not being interrupted.
52I have said already, your counsel recognised the shortcoming of that report in so far as the Lacey and the Muldrock submissions were concerned.
The Offences
53I will turn very briefly to the offending.
54The agreed summary describes it. There is no point repeating all the agreed facts. It was senseless and really quite nasty offending. What business did you have entering another person's home at 11.30 at night? None. What business did you have deliberately damaging property within that house in the pretty extreme and determined display that you engaged in? Well again, the answer is you had no business. As to assaulting a 15-year-old girl, well that is serious conduct even allowing for the factual vacuum I have spoken of. She was 15. She was a female. You were a 21-year-old man. You have assaulted her in a setting where a bladed implement has been used by you in some fashion and with the requisite state of mind. You have assaulted her causing injury to the head as well. Whatever else was happening around you with others out in that street, before, during or after those acts, you had no lawful excuse for injuring Gabrielle and you foresaw your acts would probably cause injury, and they did. That is no minor offence. I have the photographs. Obviously you were disinhibited by drugs and or alcohol but that is not mitigatory. It was all unpleasant and confronting behaviour.
Purposes
55I have to consider a number of purposes of sentencing and rehabilitation is one such purpose. Rehabilitation is usually given added weight when dealing with a youthful offender. It is a very important purpose of sentencing in this case, owing not just to your youth, but also the absence of any serious criminal history and the significant strides that you have taken in the years since this offending. To return a person to prison would be a big step indeed in the face of such positive material placed before a Court. Sometimes that outcome is just unavoidable and that is because rehabilitation is but one of the purposes of sentencing. There are many other purposes.
56I have to give appropriate weight to the other purposes of sentencing. I am required to punish you justly and proportionately. I have got to also denounce your conduct. You really should be ashamed of yourself in relation to this. I sense that you are.
57Community protection is another purpose. It cannot be ignored but of course nor can the fact that the community needs no protection from someone who is rehabilitated, and you are well on that path, it seems to me. For that reason, community protection can be greatly moderated in this case.
58I have to give adequate weight to specific and general deterrence. Specific deterrence relates to the need to deter you. I believe that can be significantly moderated here and that is owing to the positive steps that you have taken since these offences. You spent 84 days in prison and then you got out and you really have not looked back.
59General deterrence is still of some importance given the nature of these crimes, particularly the recklessly causing injury involving an assault upon a 15-year-old female and the use of a blade in a public place. The use of a bladed implement raises the stakes very considerably. We, as judges, we strive to deter people from carrying and using bladed weapons. We must strive to deter acts of public violence. General deterrence relates to the need to deter other future offenders, and it must be given some weight in my sentencing task. However, I believe there can be some softening of all of the retributive purposes owing to your youth and your progress to date and that applies equally to general deterrence.
60I have to pay regard to the impact of the crime and also the maximum penalties. I have to pay regard to current sentencing practices, and I do. It is not a single controlling factor.
61A court must never impose a sentence more severe than that which is required to achieve the sentencing purposes. Prison is genuinely a disposition of last resort. Mr Bloemen conceded that it was warranted here, but the thrust of his argument was that I ought not return you to prison. That a prison sentence equating to your pre-sentence detention in combination with a suitably conditioned community corrections order can achieve all the purposes of sentencing. The Crown did not challenge the availability of such an outcome and of course I told you it was the likely outcome should you accept the sentence indication. Well you did and hence as you know you cannot do worse on the plea.
62Having considered all the material since then I have reflected on whether you ought do better than that. Having done that though, I believe that prison is required here and that a combination-type sentence is required in this case. It permits me to mark out the seriousness of your conduct with the 84 days in prison, you have already served that, whilst at the same time permitting you to remain at large on a community corrections order in the community. The duration of that community corrections order and the conditions attached to it can achieve the purposes of sentencing but of course in a far less punitive fashion than would arise in a prison setting.
63I have had you assessed for your suitability for the order. I have received back the assessment outcome report, together with the Mental Health Advice Referral Service report. Again, as I have mentioned in the course of my remarks, they are pretty positive reports actually. I do not see any particular need to set out excerpts from them. You are judged to be suitable. I am going to place you on an order.
64So I can only place you on this order if you consent. Now plainly you will be or the whole sentence indication application would have been a complete waste of time. I will however still explain the terms of the order, then I will ask you if you do consent and I will let your counsel go down and speak to you. I want you to understand the order and the consequences of breaching it. I do not want you to have in your head that what happened in the Magistrate's Court might happen in this court; that nothing much will happen, all right? So I never want someone coming back before me in breach saying 'I didn't know what could happen'. If you come back, you will know what might happen. So let me deal with my intended order.
65I intend to sentence you to an aggregate period of 84 days' imprisonment across the three matters before me. So it is an aggregate term. You have already served that, so you are not going back to prison. It is 84 days' imprisonment by way of aggregate for the two charges on the indictment and the summary matter.
66In addition, on those same three charges, I am going to convict you and I am going to admit you to an 18 month community corrections order commencing today.
67You have had one of these orders explained to you before and you breached it. Do not breach this one. You will understand that these orders have, they are often referred to as core conditions, they are mandatory terms. They apply to everyone who gets them. They applied to you on the last time you got one. They apply to you and to everyone else who gets one of these orders.
Mandatory Terms
68The first of those mandatory terms is, you must not commit another offence for which you could be imprisoned. Stay out of trouble. That has not been a problem for you for large periods of your life. If you commit any offence that could in theory be rewarded with a prison sentence, then you will breach this order. That does not mean that a magistrate has to lock you up. Even if you commit a, just as an example, if you went out and I am not saying you are going to do it - but if you went out and took a Freddo Frog from a milk bar, no one in their right mind is going to lock someone up for stealing a 50 cent chocolate, but that is a charge of theft and that is punishable by imprisonment. You would have breached the order. So you know, drive whilst disqualified will do the same. Virtually every offence in theory can be punished by a term of imprisonment. So if you commit offences, even if you are not locked up by a Magistrate, if they are offences that in theory could have been punished by prison, you breach the order. So stay out of trouble.
69Then you have got to report to and receive visits as directed. You have got to report to Corrections within two clear working days, I think that was spelt out during the assessment to you - before 4pm on 28 March. They say report either in person or by phone to the Moorabbin Corrections within two business days. So the document will have the address there, so that is where you have got to attend within two clear working days of the order starting. It starts today. Get down there tomorrow, or ring, whatever it is they are telling you, you must do, do it.
70Then you have got to let them know within two clear working days of any change of address or job. Let them know where you are, that is what it amounts to. If you change your job, let them know. If you change address, let them know..
71You are not permitted to leave Victoria without first getting permission to do so. You have got to obey all their lawful instructions. Now in terms of leaving Victoria, no doubt if there is a good reason for you to be leaving and you are up to date with the order and doing well on the order, no doubt they would give you permission to go, if it is a holiday or something like that. But if you are not doing well on the order, they would not. If you just get up and leave, as some people do, you will be in breach. So do not do that. So they are the mandatory terms. Breach any of those and you breach the order.
72Then there are the tailored conditions that I apply to this order and some of these are unmistakenly punitive, or one is at least, and the others are obviously designed to foster your rehabilitation.
·The punitive condition is the unpaid work. You are required to do 175 hours of unpaid work over the period of this order. I do not know what they are going to ask you to do, or tell you to do, whatever they ask you to do, you do it. And just a word of advice, get it done as soon as you can, as quickly as you can. There is a certain pressure that develops if you are well into the order and you have still got a large amount of work that is outstanding.
·You are also going to be under the supervision of a Corrections officer, so one will be appointed and that is for the full period of the order.
·Also for the full period of the order you must undergo assessment and treatment including testing for drug abuse or dependency, or alcohol abuse or dependency, as directed.
·You must undergo mental health assessment and treatment and that can include all sorts of things, they are all set out in the order including psychological and neuropsychological treatment.
So they are the things that you will need to do. They are the tailored conditions that I attach to the order. So under supervision. There is an error in the terms of that order I am afraid, I intended to impose a sum of 200 hours of unpaid work. On the document that is produced it has got the lesser sum, so working from the draft that I have before me, that is my intention. So otherwise they are as I have set out. So it is supervision; drugs; alcohol, so assessment and treatment including testing for drug abuse or alcohol abuse; there is the mental health condition; and the unpaid work is to the tune of 200 hours over the period of the 18 months; not the 175 I mentioned in error a moment ago. So, they are the conditions.
How to comply
73For a large slab of your life doing those things has not been an issue. You have had significant periods where you have stayed out of trouble. You are working. You have obviously got a switched-on girlfriend, you have got some support there. You have done very well on the CISP bail. None of that means the wheels will not fall off, and I hope they do not, I am not trying to set you up to fail. What I am trying to do is to encourage you to keep up the good work. So there is this court ordered supervision and this ongoing punishment, and order. This case is not finished.
74I have seen people who get these orders - and maybe you were one of those people when you got your first order - it was for a far less serious piece of conduct back when you were dealt with in the Magistrate's Court in June of 2022, but you breached that order, and you breached it by - it would not have been dealt with as a breach by offence - but you committed these offences in the currency of it, but secondly you failed to comply. I think the Magistrate did not do much to you. I think they may have imposed a small fine. Well, I have seen people get these orders and I have seen them leave court and those people who think this case is all over, they have a way of coming back in breach. It is not over. I hope I do not see you again and you will hope the same thing, and if we do not see each other it will be a great success, because it will mean you will have complied with the order and by then you will be 25 and well on your road to a useful life. But if you breach the order, we will meet again. So if you work on the theory that the court case is finished today on 26 March, then you will breach this order, because it is not over. It will be over when it is over, and you have complied and you have remained offence free for the currency of the order.
75So, how are you best to comply with these orders? Well you will get some advice from Mr Bloemen about this. Firstly, you turn up when you are told to turn up. That is pretty straightforward.
76Form a decent relationship with your corrections officer. They are not members of the police force. If you have got some issues in your life, even drug issues, I mean do not duck and weave, they can give you some assistance to try and deal with those sorts of things. If you have a relapse, have a word with them. They may have given you a direction to do drug and alcohol assessment and treatment, and you may have done it well, but there might be some relapse along the way, and if there is go and have a word to them. If they are requiring you to do testing and they may well say you have got to do testing, you have got to turn up and give a urine sample at whatever point they tell you to do it, the people who duck and weave around that are the people who end up being breached. It is much better to comply with their direction, even if you are giving a dirty sample. If you are giving a dirty sample, and I hope you are not, but if you are in that sort of position, they are not going to come rushing back to court and bring you back to court because you have provided a positive sample. It will show to them that there is some reason for them to give you some further directions under the order, all right? So it is really important that you understand that. Form a decent relationship with them, treat them with respect and they will treat you very well.
77If you have got a particular reason, you are employed, the last thing they want to do is to cause you to lose your job or anything like that, because your having a job is very much a protective thing. A lot of people down in the dock do not have a job and never have; you are not one of those. You are working in a pretty tough industry and if there is some particular reason why you are not going to be able to turn up at a particular time, get on the phone, get on the phone, speak to them and they will rearrange it. But if you do what some people do and just put your head in the sand and not turn up, you will be breached. That is just what happens. So do not do that. It is not that hard an order but those portions of it that are hard they are designed to be hard. It involves your ongoing punishment for this offending, hence the unpaid work and you are under supervision and you have got to do this testing, but a lot of these conditions are designed to encourage you to continue on this process of rehabilitation, that I think you have been on since you were admitted to the CISP bail. So treat them decently, do not try and pull wool over their eyes, and if you are experiencing difficulties, let them know. There might be housing difficulties, there might be relapse issues, whatever it might be, they might be able to actually assist you and as I say, they are not going to come running back to the court because you happen to have had a positive sample that has been registered; they are not going to do that and I would not want them to do it.
Ramifications of breach
78So, what else do I need to tell you then? Well, do your best to comply and do your best for us not to clap eyes on each other again. This is entirely now in your power. You can leave this court, you can skip away and think this case is all over, and if you do that, you will be skipping back here sometime in the next little while, I guarantee you. But if you go off and treat this as a serious order and one that you need to comply with, then we will not meet again, and that is the way I want to keep it, if we can, because if we do not meet again, as I say, you would have complied with this order, you would have dealt with the punishment component of this order, and by that stage you will be 25 years of age, a bit older actually.
79So what happens if you do breach it?
80Well don’t expect what happened on the last occasion to happen again. You are up in the County Court here in relation to charges on an indictment and charges that warranted a term of imprisonment and I have been urged to give you an opportunity to avoid going back to prison and that is what I am doing. Not because Mr Bloemen is asking me to do it, but because I think it happens to be the right course in your case.
81If you breach this order, you get brought back to this Court. It is not the Magistrate's Court, and you get brought back to this Judge. Same Judge, me. Firstly, breaching one of these orders itself is a criminal offence, it is punishable by a term of I think three months' imprisonment, but that is not the real sting. The sting is this. If you breach the order, you get brought back before the court and then the court has got very limited options. The most commonly exercised option is to cancel the order. That might sound attractive, what could be better than that? Cancel the order? That sounds good. If I cancel the order, I have to then resentence you for these same offences, but I would be resentencing you in a setting where I have given you this opportunity and you have not taken it. I cannot say exactly what I would do to you if you come back in breach, I hope you do not, but if you do what I would be required to do is to listen to what was said on your behalf. Of course I would. I would have to make judgements about the nature of the breach, the nature of your performance on the order, the other things that were happening in your life at the time that I saw you. So of course I cannot say exactly what I would do, but you should work on the theory that if you breach this order and come back before me for breach of this order, that you are going to go to prison. So that is the theory you should bear in mind.
82So if at any stage your performance on this order looks like it might be getting a bit sort of shaky or a bit of a nuisance, the unpaid work is not designed to be attractive, it is inconvenient, it is a penalty and you might resent having to do it, but if ever you find yourself in that position think back to how you felt not today, because today the outcome has been a given. You knew today that you were going to be going into that dock and coming back out of that dock. But if you put yourself in breach of this order, you will be in that dock and your expectation should be that you will be going out the other door, to prison. Do not put yourself in that position. Do your best to comply with this order and if you do that, we will not see each other again.
83I think that is probably all I need to say. I am assuming I will get informed consent. Do you want to just go down? Let me just have a look at this order. I will just make sure that - there was just an error in the order, my fault, Mr Bloemen, but it is the 200 hours, let me just look.
84That seems to be in order. So I will have it come down. Have a look at that if you would, each of you, just make sure it mirrors my stated intention. If it does then I will have it taken down and he can sign it.
85MR BLOEMEN: Yes, Your Honour.
86HIS HONOUR: I will have my associate go down. You go down as well if you want, just make sure he is consenting.
87MR BLOEMEN: Yes, Your Honour.
88HIS HONOUR: That order has been signed. I will just ask you just to stand up then, Mr Frincu. Do you acknowledge that you have signed this order?
89OFFENDER: Yes, Your Honour.
90HIS HONOUR: And do you consent to entry onto this community corrections order?
91OFFENDER: Yes, Your Honour.
92HIS HONOUR: Yes, grab a seat then for a moment and I will not be long.
Section 18 Pre-Sentence Detention
93So I formalise that sentence then. On the three matters before me there is the prison sentence of 84 days which is the prison component; there is the order that I have just pronounced in terms of the community corrections order that he has consented to; and I declare then that he has already served the 84 days of this sentence by way of pre-sentence detention. That is to be entered into the records of the court pursuant to s18 of the Sentencing Act.
6AAA
94I have already told you I have taken into account your guilty plea and reduced your sentence accordingly. There is an artificiality in me making this declaration as the trespass matter is a summary offence. It could never have been heard before a jury. The aggravated burglary would have proceeded but I do not believe my declaration now can embrace a verdict on that charge. If you had pleaded not guilty and been found guilty of the indictment offences before me, this is following a trial before a jury, I would have convicted and sentenced you to two and a half years' imprisonment. I would have fixed a non-parole period of 18 months.
95I will see if there is anything else. I will mark the two assessment reports, though they are not Crown exhibits, I will mark them as Exhibit D on the plea. Finally, I will mark as struck out or withdrawn, summary offences 3, 4 and 6.
96COUNSEL: May it please the court.
97HIS HONOUR: Let me see, is there anything else then I need to deal with at all?
98MR RUSSELL: Just one matter and I am grateful to my friend for drawing it to my attention. Your Honour sentencing remarks, I understand Your Honour intends to publish those online.
99HIS HONOUR: Yes.
100MR RUSSELL: At least one of the complainant, Gabrielle Finlay, is 15 years old or was 15 years old at the time.
101HIS HONOUR: Yes.
102MR RUSSELL: I wondered whether Your Honour would be minded to give her a pseudonym.
103HIS HONOUR: I can do that. I mean I probably don't need to but there's no reason why I shouldn't anonymise her, Mr Bloemen?
104MR BLOEMEN: No there's not. It's something I raised, perhaps it's an overabundance of caution thinking through the Open Courts Act, but I didn't want there to be any error in terms of children.
105HIS HONOUR: Yes, I hadn't considered that. Anyway, I can consider that.
106MR BLOEMEN: Yes. Yes.
107HIS HONOUR: Well, thank you for that. Nothing else then from anyone?
108MR BLOEMEN: No.
109MR RUSSELL: No. As Your Honour pleases. Thank you.
110HIS HONOUR: Well that completes the matter. I will sign that order down in chambers. Thank you.
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