Director of Public Prosecutions v Green
[2014] VCC 1351
•7 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00924
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN GREEN |
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JUDGE: | Her Honour Judge Pullen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 July 2014 | |
DATE OF SENTENCE: | 7 August 2014 | |
CASE MAY BE CITED AS: | DPP v Green | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1351 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. O'Halloran | Office of Public Prosecutions |
| For the Accused | Mr A. Sim | Victoria Legal Aid |
HER HONOUR:
1 Benjamin Green, you have pleaded guilty to one charge of attempted armed robbery and one charge of criminal damage. The maximum penalty applicable to the offence of attempted armed robbery is 20 years' imprisonment and criminal damage 10 years' imprisonment. These crimes arise out of events which took place on 2 March 2014.
2 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor and consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious.
3 You were in the shop for a relatively lengthy period of time, a little under eight minutes and clearly, as witnessed by the victims of your offending, you were angry and wielding a long-bladed knife.
4 I turn to a brief summary of your offending. You were 34 years of age at the date of your offending and also at date of sentence.
5 At approximately 7.46 am on Sunday 2 March 2014, in possession of a two‑pronged serrated kitchen knife, you went to 2 Brentwood Drive, Wantirna (see Exhibit C photographs), and the home of the victims. There was a milk bar/shop attached to the front of their home.
6 When you arrived, the victim, Sumei Song, was at the front door of the premises opening the shop. She saw you outside near the front door and recognised you as a regular customer. They had provided credit to you in the past and I understood from Mr Sim you had performed some computer work for them. Ms Song saw that you were holding a knife in your right hand, so she went into the shop and stood behind the counter.
7 Shortly after that, you entered the milk bar and approached the customer side of the counter, still holding the knife. You began talking with Ms Song and raised the knife to chest height making a stabbing motion, whilst crying and loudly demanding cigarettes.
8 You began pacing through the store brandishing the knife and continuing to talk with Ms Song.
9 About a minute later, a customer entered the shop and whilst that customer was purchasing an item, you stood slightly away from the counter and held the knife behind your back, visible on the CCTV footage I viewed (Exhibit B).
10 When that customer left the store, Ms Song tried to give you a lolly of the type you had previously had from the shop, to placate you which you threw back at her. You continued to remonstrate with her while still holding the knife. You then placed the knife in your rear trouser pocket.
11 Ms Song's husband, Ping He, having heard your raised voice, entered the milk bar from the rear living room and joined his wife behind the counter. He also recognised you as a regular customer.
12 A second customer entered the store, with you again standing back to allow that customer to make his purchase. When that customer left, you continued to speak to both victims, demanding cigarettes. You removed the knife from your rear trouser pocket, holding it to head height and pointing it towards both of your victims.
13 You became increasingly agitated and struck the counter with the knife, which caused an abrasion to your hand which left blood on the counter. You then pointed the knife towards the victims and continued to speak at them in an agitated manner, still holding the knife. You walked quickly around the counter to the other side in an attempt to get into the service counter area. Ms Song raised the table of the service counter to prevent you from entering the service area. This is the charge of attempted armed robbery. Your movements once again entering the premises were captured on CCTV footage.
14 You then struck the counter area before returning to the front door of the shop.
15 While still talking to your victims, you walked towards the front door and when at the front door, you made a "throat cutting" gesture with your hands towards them. You left the store and, as doing so, struck the front window several times, causing it to crack, the latter the subject of Charge 2, criminal damage.
16 Police attended soon after where, on reporting the matter, Ms Song provided a previously signed store credit note signed by you. Your signature on that note matched the signature on your driver's licence.
17 Ms Song also positively identified you from a photograph shown to her by police.
18 Police inquiries began and confirmed you lived approximately 200 metres from the milk bar. They attended your address at about 3.00 pm that same day and found you in a bedroom.
19 You told police where the knife used in the offending was and it was located and seized, as were other knives found in your bedroom.
20 Fingerprints located on the steel counter connected to the service counter at the shop were subsequently identified as yours.
21 You were arrested and taken to Knox Police Station where, following assessment by a forensic medical officer, you were deemed not fit to be interviewed.
22 Following this offending, you were remanded in custody on 2 March 2014, before being granted bail. You have, as a result of this offending, spent 47 days in custody by way of pre-sentence detention pursuant to s.18(4) Sentencing Act 1991, as at the date of your plea hearing.
23 I have no doubt the victims of your offending were scared, as described by them in the depositions. Mr Sim, who appeared on your behalf at your plea hearing, conceded such. In her statement, Ms Song told police when she saw the knife in your hand, that this "scared me very much". She got very scared and tried to give you your favourite lolly. When you held the knife in front of you and moved it around, she felt threatened by you She was very scared of the possibility that you would use the knife. You were getting angry and this made her even more scared of you. She said she was really scared you lived nearby and may come back to the shop. She felt you could have hurt her with the knife.
24 In his statement to police, Mr He said he feared for his life and safety as he believed you would use the knife to harm he and his wife. He believed you would not hesitate to use it on them if you had a chance.
25 In his statement, Senior Constable Henderson observed that when he attended the shop, Ms Song was visibly shaken and crying.
26 I have been advised the victims of your offending have declined the opportunity to make Victim Impact Statements, but I have no doubt your victims were terrified at the time of your offending, as described by them in their police statements.
27 The effect upon victims are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am, however, conscious that I must not allow the effects upon a victim to swamp the sentencing process.
28 I discussed with your counsel that your offending on this occasion and previous offending occurred against a background of drug/alcohol abuse. In this context I discussed whether such was an aggravating feature for the purposes of sentencing you today. The transcript will reveal that discussion. In sentencing you, I have not regarded that as an aggravating feature.
29 Mr Sim submitted your offending was not pre-planned. I have some difficulty with that submission, given you took a knife from your home to the shop. I accept that any pre-planning was of limited duration. I remain concerned, however, by your inability to explain the circumstances of your attending at the shop with the knife. Your behaviour in the absence of any explanation troubles me.
30 You have pleaded guilty to these two charges and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial and witnesses have, in particular the two victims of your offending, have been spared the ordeal of having to give evidence upon your trial. Further, I also take into account in your favour the stage at which you indicated your intention to plead guilty to these charges. You entered your plea of guilty at the first opportunity at the committal mention on 26 May 2014. The prosecution did not suggest that yours was not an early plea of guilty.
31 In the circumstances, I accept your plea of guilty indicates remorse for your actions. Further, you expressed your remorse to Dr Owens in a report before me during your plea. You said you wanted to apologise to your victims, which I consider to be genuine, given your past good relationship with them, however, had been prevented understandably from that by your bail conditions.
32 You have admitted a number of prior court appearances commencing in 1998 and the most recent on 19 December 2003. Your offending in the past has included dishonesty offences, possessing, use cannabis, make a threat to kill, possess a dangerous article, motor vehicle offences, failing to answer bail, using heroin, and obtaining property by deception. You have, in the past, been sentenced to various dispositions including a community-based order, which you subsequently breached through further offending. Also on occasions you have been fined, also been on an Intensive Corrections Order and a good behaviour undertaking.
33 You do not have any prior offending for violence or attempted armed robbery, in particular, or armed robbery. I am also conscious that you have not previously been sentenced to a term of imprisonment. I note also your time on remand (over the 47 days as at the date of the plea hearing) was in difficult conditions, including the Custody Centre, MAP and cells at police stations, whilst undergoing detoxification.
34 I was advised of a subsequent court appearance on 18 June 2014 (that is, not a prior appearance) at the Magistrates' Court where you were convicted and fined $200 on one charge of theft and two charges of failing to answer bail. That theft having occurred approximately two years ago, that is before the offences before me. Your subsequent appearance only being relevant to rehabilitation.
35 On the one hand, it is encouraging that you have remained offence-free for most of the time since 2003 whilst continuing your illicit drug use. However, you did re-offend on the occasion before me and again in the context of drug/alcohol use.
36 I was told something of your personal history and circumstances in the report of Dr Owens. Also, your family was in court to support you at your plea hearing. I accept that they will continue to remain supportive of you and no doubt continue to encourage your abstinence and treatment/counselling directed to your drug and alcohol use. Ultimately, however, you are the one that will have to do the hard work in that regard if you want to live a drug‑free/alcohol-free lifestyle. If you do not, I expect the courts will continue to see you in the future.
37 I turn to the report of Dr Nicholas Owens, Consultant Psychiatrist, dated 22 July 2014. He interviewed you on 18 July 2014 for the purposes of this plea hearing. At the time of interview (and now), you were living, it seems, with your father in Wantirna, on some days working with him as a builder's labourer. You are currently in receipt of a disability pension, although not currently prescribed any medication, the latter confirmed by Mr Sim during your plea hearing. There was the possibility you would require medication again for ADHD.
38 Regarding your offending, you did not dispute the facts as outlined in the prosecution opening and described your behaviour as stupid. You said you were "using a lot of drugs back then". At the time of this offending, you told Dr Owens that two days prior, you had been using speed "by intravenous injection", that you had not slept the night before this offending and had consumed two bottles of wine over one hour prior to it. You also said you had taken Xanax medication with the alcohol. You further described having smoked synthetic cannabis daily at that time and had been injecting 200 milligrams of morphine daily over the past five years. You had consumed alcohol in the past, though said you "generally don't drink".
39 You said you were ashamed for your actions because you had a good relationship with the owners of the milk bar (your victims). You said you were at a loss as to why you were carrying the knife.
40 Regarding your previous offending, most of it you said was drug related.
41 You told Dr Owens you started using cannabis when you were 15, smoking daily for 15 years. You said you had given that up two years ago. You had been using amphetamine since you were 17 but did not describe yourself as a frequent user. You had tried methamphetamine once but said it did not do much for you.
42 You commenced using heroin when you were 19, using on a daily or near daily basis for the nine years, up to 1.7 grams per day. You funded your habit by selling drugs. You had contracted Hepatitis C, although the source of that was not clear. When you were 26, you were on methadone for about two years. However, your housemate, I was told, at the time apparently convinced you to come off methadone and use illicitly acquired morphine instead.
43 Mr Sim acknowledged your past attempts to address your drug use had not been successful or for any significant duration. He relied upon the efforts you had made since being released from custody in April 2014, specifically your regular attendance at Narcotics Anonymous (34 sessions), Anglicare for group therapy and Recovery Oz in Box Hill where you lived for approximately two months. I accept this effort to date is significant. It is, however, but the start of a very long journey and you will need to maintain that commitment for a very long time if you intend to remain drug and offence free.
44 You denied any use of illicitly acquired benzodiazepines apart from the Xanax you used at the time of this offending. In the past, you had attended Wellington House for detoxification on two occasions, although on one of those occasions you were apparently 'ejected'. You had engaged in outpatient detoxification programs about six times prior to this offending. However, that, you said, had not been particularly effective.
45 Most recently you were forced to undergo unmodified detoxification from opiates whilst in custody in the aftermath of this offending, as I previously noted. You said you had not recommenced using drugs since being released on bail.
46 In the past you had been diagnosed with ADHD when 12 years of age, and were treated with Ritalin for a short time. You said your concentration and conduct deteriorated throughout your secondary school years.
47 When you were 26, you attended with Dr Orchard, Psychiatrist, who prescribed dexamphetamine and sodium valproate, an anticonvulsant and mood stabiliser, as well as olanzapine (an anti-psychotic). Mr Sim submitted it was possible that that medication was not appropriate. You subsequently saw other medical professionals who reduced your dosage of dexamphetamine. As I previously stated, you are not currently on any medication.
48 At interview with Dr Owens, your mood was stable and you denied feeling depressed. You said you had panic attacks twice a month on average, although were unable to elaborate on the specific triggers for those attacks. You said you had never been admitted to an inpatient psychiatric facility.
49 Dr Owens also referred to your personal history. Both your mother and father were currently in employment. They separated when you were 11.
50 You lived with your mother and brother until you were 16 and then moved to live with your father.
51 After you left school, you worked as a computer consultant for Dick Smith for nine months, then in a warehouse management job in Ferntree Gully for another year. Apparently you injured your back during that employment. Subsequently you worked upholstering couches, and enrolled in a traineeship for 18 months, although quit before you obtained that qualification. You told Dr Owens you were becoming more unreliable at work due to your drug use. You had been on a pension for the last three years as the result of a diagnosis of bipolar disorder type 2 and ADHD. Your current plans were to apply for entry into an electrician's apprenticeship.
52 You have been in very few relationships with women, the longest lasting one and a half years.
53 Turning to Dr Owens' opinion, he concluded the appropriate diagnoses for you were opiate dependence in remission, and polysubstance abuse, as well as ADHD. In his opinion, you required ongoing treatment through drug and alcohol counselling. You were at risk of relapse into opiate use (see p.6 of his report).
54 Whilst it was possible you had an underlying anxiety disorder on the material available to date, Dr Owens was unable to so conclude.
55 In his opinion, your offending occurred in the context of intoxication with alcohol and amphetamine, which likely led to disinhibition of your behaviour, impairment of your ability to exercise judgment and impairment of your ability to make calm and rational choices to think clearly. In his opinion there was no apparent connection between your ADHD and offending, and he says you did not suffer from bipolar disorder.
56 If serving a term of imprisonment, he said you would be at risk of deterioration in your mental state. You would also be at risk of developing a depressive or anxiety disorder which would require treatment by prison-based mental health staff.
57 Mr Sim submitted in his written outline (Exhibit 3) and elaborated upon during his oral submissions that principles 5 and 6 in R v Verdins & Ors[1] were applicable. I discussed this with him and the transcript will reveal that discussion.
[1] (2007) 16 VR 269
58 In my opinion, those principles are not enlivened by the report and opinion of Dr Owens. That having been said, I do accept as part of the general sentencing principles that you will likely find prison more burdensome than a prisoner without ADHD and your other issues, and such can and has been taken into account by me when determining the appropriate disposition.
59 Your risk of re-offending, in the opinion of Dr Owens, was moderate. He observed, as do I, that you would remain at risk of relapse into drug use, and treatment of your substance abuse problems would likely reduce risk of re-offending.
60 I was also given a report from Mr Wayne Parkin, Alcohol and Other Drugs Counsellor, Anglicare, dated 24 July 2014 who confirmed you attended for an assessment appointment and four counselling appointments between 25 June 2014 and 24 July 2014. You had shown commitment to alcohol and other drugs counselling. I note also your further attendance with him on 28 July 2014.
61 Turning to your rehabilitation prospects, it is clear to me they will greatly improve if you address your alcohol and drug use. I urge you to take every opportunity whilst in custody to attend any courses offered to you and follow through with that upon your release into the community with the assistance of a community corrections officer. At this time I have guarded optimism regarding your rehabilitation prospects. However, one can never give up hope of your eventual rehabilitation, and in fixing an appropriate sentence I must take into account, and have, your rehabilitation prospects as they may be.
62 As previously stated, there were no Victim Impact Statements before me and I have been advised the victims, as I said, were given the opportunity to make statements but have chosen not to do so. But as I have said, it is clear from the depositions there was considerable distress caused to them at the time of your offending.
63 Mr Sim relied heavily upon your plea of guilty, limited offending since 2000, recent efforts at ceasing drug use and addressing your other issues, and the ongoing support of your family in urging that I not impose a sentence that would require any further period of imprisonment. I discussed his submission with him.
64 Mr O'Halloran, on behalf of the prosecution, submitted this was serious offending. He accepted you were remorseful for your offending and did not attempt to disguise yourself from the victims who knew you.
65 He submitted, as I noted, that your offending was of some duration (just short of eight minutes). You had some insight regarding your offending at the time, evidenced by you hiding the knife behind your back and in your rear pocket when customers entered the shop.
66 He submitted the principles in Verdins did not apply.
67 He submitted there needed to be caution when interpreting the statistics and snapshots for attempted armed robbery as suspended sentences were no longer available as a sentencing option for such offending.
68 The prosecution did not urge against a Community Corrections Order.
69 I discussed with counsel statistics and other cases. Whilst both have their place, and there is no doubt about that, statistics are limited in the information they provide regarding the circumstances of the offending and also differ regarding matters personal and do not provide details of matters personal to offenders. Similar limitations apply when trying to compare cases factually.
70 In the end, I must take into account all relevant sentencing considerations and determine the appropriate disposition.
71 In order to carefully consider all sentencing options, I arranged to have you assessed for your suitability or otherwise for a Community Corrections Order in addition to a term of imprisonment.
72 I discussed the likely proposed conditions, although indicated to Mr Sim I had yet to reach a concluded view regarding whether such a combination disposition was appropriate as opposed to a head sentence with a non-parole period.
73 I received a report from Mr Richard Temple-Camp, a community corrections officer, who assessed you on 29 July 2014. He considered you were suitable for a Community Corrections Order, with a number of conditions recommended by him in that report.
74 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. This is offending involving "soft targets", as they are called, people going about their daily business, attempting to earn a living, being faced with offenders such as yourself brandishing a knife.
75 There is also an element of specific deterrence required when sentencing you as you do have a relevant prior criminal history, although I note not for armed robbery or attempted armed robbery and minimal offending since 2003.
76 I must also consider the protection of members of the community from you and bear in mind the likelihood of your re-offending. This causes me concern but ultimately the need to protect community members from you will be reduced if you continue to address your alcohol and drug use.
77 I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
78 I have given this matter anxious consideration and have determined ultimately that the following is the appropriate disposition. What I am proposing, so counsel know, on both Charges 1 and 2, that you are convicted and sentenced to three months and how many days so far? What I propose is this: he is convicted and sentenced to three months and 47 days' imprisonment. I will come back to the remainder in a minute. That will be PSD, if you follow me, on the three months, but not the 47. This will all become clear, I hope.
79 On charges 1 and 2, you are convicted and sentenced to three months and 47 days' imprisonment. Thereafter, you will be subject to a Community Corrections Order for a period of three years.
80 I direct, pursuant to s.18(4) Sentencing Act 1991, you have spent - how many days was it all up, 56, did you say? 56 days in custody by way of pre‑sentence detention with the difference between 47 days noted as PSD. Does that make sense? I will come back to it if it does not. So what he has got is a total of 56 days. I have to declare all those days, 56 days, but only 47 of those - does that make sense? So he is getting PSD of the nine days, between the 47 and the 56, off the three months.
81 MR O'HALLORAN: So is Your Honour saying from today's date, he has to serve three months minus nine days?
82 HER HONOUR: Correct. That's what I'm trying to explain, clumsily, as it is. So there's 47 days that he had done which does not come off the three months, but the nine extra days does come off the three months. Does that make sense?
83 MR SIM: I entirely understand what Your Honour is trying to achieve.
84 HER HONOUR: Yes.
85 MR SIM: I am just not sure as - a matter of the expression of "three months plus 47 days" whether that would adhere to the requirements of the Sentencing Act. I'm happy for my learned friend to correct me on that but ‑ ‑ ‑
86 HER HONOUR: It has to be worded correctly obviously.
87 MR SIM: Yes.
88 HER HONOUR: So what it's going to mean - this is my intention - is he serves three months, less nine days.
89 MR SIM: Yes.
90 HER HONOUR: Okay. The 47 that he previously did is part of three months and 47 days. Previously it's three months and 47 days.
91 MR SIM: Yes, Your Honour.
92 HER HONOUR: But the 47 days is not part of the three months, but it's declared as pre‑sentence detention, if you like, which gets us down to three months. But I further order that nine days come off that three months.
93 MR SIM: The PSD. Ultimately, he has got another three months minus nine days. I will let my learned friend address Your Honour.
94 HER HONOUR: Does that make sense, Mr O'Halloran?
95 MR O'HALLORAN: Yes, Your Honour. Maybe ‑ ‑ ‑
96 HER HONOUR: It's the wording of it that I want ‑ ‑ ‑
97 MR O'HALLORAN: Yes. It may be clearer, Your Honour, now that you've expressed ‑ ‑ ‑
98 HER HONOUR: My intention.
99 MR O'HALLORAN: - - - your intention that ‑ ‑ ‑
100 HER HONOUR: Yes, and I will go through all the conditions of the CCO and then whether he consents and all of that sort of business later. Let's just sort this out.
101 MR O'HALLORAN: In terms of the total effective sentence Your Honour seeks a total period of imprisonment, Your Honour expresses three months, it may be that if Your Honour expressed it as 92 days and then adds the 47 days' PSD, that comes to 139 days and then that is your total effective sentence.
102 HER HONOUR: I could do that, yes. That might make it cleaner.
103 MR O'HALLORAN: And then when you have declared - sorry ‑ ‑ ‑
104 HER HONOUR: All right. So three months less nine days is how many days?
105 MR O'HALLORAN: So if Your Honour does three months, that's 92 days, and then adds the 47 days as the total effective term of imprisonment ‑ ‑ ‑
106 HER HONOUR: All right. The correct wording of that then?
107 MR O'HALLORAN: As indicated in the email, Your Honour, in terms of a three-month period from today's date, that comes to 92 days.
108 HER HONOUR: That's correct, yes.
109 MR O'HALLORAN: Your Honour has also further indicated, in terms of the total effective sentence of imprisonment for this matter, you want to add 47 days to that.
110 HER HONOUR: Yes.
111 MR O'HALLORAN: So 92 plus 47 is 139 days.
112 HER HONOUR: So I declare - so in other words, he is sentenced to 138 days in custody.
113 MR O'HALLORAN: 139 days, yes.
114 HER HONOUR: Yes, in custody. I declare as PSD 47 days.
115 MR O'HALLORAN: Your Honour indicated that you would declare 56 days' PSD.
116 HER HONOUR: No, what I'm trying to do is end up with three months less nine days.
117 MR SIM: But that would still get us there, Your Honour, because 139 ‑ ‑ ‑
118 HER HONOUR: So long as the wording is correct.
119 MR SIM: I think 139 days, which is the 92 days ‑ ‑ ‑
120 HER HONOUR: Plus 47.
121 MR SIM: - - - plus 47 is 139, and then 139 minus 56 will take us to - working backwards, Your Honour - 83 - thank you to my learned friend - which is the three months minus the nine days.
122 HER HONOUR: Is it? All right.
123 MR SIM: That's my learned friend's ‑ ‑ ‑
124 HER HONOUR: That's what I'm trying to achieve.
125 MR SIM: So if it was 139 days which is the ‑ ‑ ‑
126 HER HONOUR: Declare ‑ ‑ ‑
127 MR SIM: - - - 92 - the three months - plus 47 days, declare 56 days PSD, that will take us to 83 days which is the three months minus the nine days.
128 HER HONOUR: That's what I want to achieve. I want to give him something off for this most recent time.
129 MR SIM: Yes.
130 HER HONOUR: But give him the opportunity - really, at the end of the day, I've considered that this is really a head sentence and non-parole.
131 MR SIM: I understand.
132 HER HONOUR: But I've been convinced by the material, various other things ‑ ‑ ‑
133 MR SIM: I'm not trying to quibble with Your Honour.
134 HER HONOUR: No, but that's where I'm heading.
135 MR SIM: I understand you're getting the mechanics right.
136 HER HONOUR: Yes.
137 MR SIM: So I think if Your Honour did it that way, 139 days, declare 56 days, and that will get us to 83 days still to serve.
138 HER HONOUR: That's right, which is three months less nine days.
139 MR SIM: Exactly.
140 HER HONOUR: All right. That's what I'm trying to achieve. But plus that is a a CCO on top of that.
141 MR SIM: On top of that for three years.
142 HER HONOUR: Which we will now talk about.
143 MR SIM: Yes, Your Honour.
144 HER HONOUR: All right. Let's get that straight. So this is what I'm proposing and you've got to listen - I know you are listening, Mr Green, but it will all become clear hopefully in the end.
145 What I am proposing to do is sentence you to 139 days in custody. I declare that pre‑sentence detention pursuant to s.18(4) Sentencing Act 1991 is 56 days. That means that the 47, plus the nine you've already done, I'm declaring, but it's only the nine days that you most recently completed comes off the three months. I don't know whether that makes sense but hopefully it does. That means you've got three months less nine days. After that time, assuming you consent to it, you're then on a Community Corrections Order for three years, but in the community. So what this means - and I have to explain it to you in terms that you are likely to understand, that is what the legislation effectively says - you will do three months less nine days, then you come out subject to a Community Corrections Order.
146 There are conditions that apply to that order. You have got to listen carefully because if you breach any of these conditions, you come back before me and I have to re-sentence you on the attempted armed robbery and the criminal damage, and the only other option I have is more gaol time. So this is what I am proposing: the order would commence after you have served your three months less nine days.
147 A number of core conditions apply thereafter:
·You must not commit, whether in or outside Victoria, during the period of that order, which is for three years, an offence punishable by imprisonment. You have got to be extra careful, such as - driving whilst disqualified, for example, just to pick an offence out of the air, could end up with a term of imprisonment as a likely penalty. You have got to be extra careful because if you commit any offence that is punishable by imprisonment - and there can be all sorts you wouldn't even think of - you're back before me breaching the order.
·Also, you must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order.
·You must report to the Community Corrections Centre - I was told Ringwood is the closest, I assume it is - within two clear working days following your release from custody. So after you have done your three months less nine days, within two days you have got to go to the Community Corrections Centre at Ringwood.
·You must notify the Secretary, or his or her nominee - that means the community corrections officer, if you like - of any change of address or employment within two clear working days after that change.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, which means the corrections officer. So you can't go for a holiday to Sydney or interstate or anything like that unless you get permission before you go. That is for three years, you have got to be aware of that.
·You must comply with any direction given by the Secretary or the corrections officer, if you like, to ensure that you comply with this order.
148 In addition to those core conditions, I am adding these conditions:
· You have to perform 150 hours of unpaid community work over the first 18 months of the order.
· You must be under the supervision of a community corrections officer for a period of 3 years.
·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee.
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager.
· You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager.
· You must undergo mental health assessment and treatment, including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the regional manager, in particular relating to ADHD.
· You must attend for review of your progress and compliance or otherwise with conditions of the order and you must come back before me 12 months after your release. We will set a date and time in due course.
149 That date would be, just so you know - you have got three months less nine days, so let's call it three months - and we're in August now - September, October, November - that would make it about 7 November. Is that a weekday, Ms Jackson? What day is it, 2015? Make it the Monday after. 9 November, is that a Monday, 9.30 am.
150 So what that means, so that you understand that, Mr Green, is you have to come back before me on 9 November 2015 at 9.30, hopefully a very quick hearing. If you have been complying with everything, I will have a report from Corrections. If you have been doing everything, it will be very quick. But if something has gone wrong, if you have not complied, then we've got a bigger problem, or I do.
151 I can only impose a Community Corrections Order if you agree to such an order being imposed. I make the assumption that when Mr Sim submitted you should be on one of these orders, he had discussed that with you and you had agreed. But I want you to have a rethink about this because agreeing to this order has some really significant ramifications, particularly if you breach it. So I am going to give you a chance to speak to Mr Sim in just a moment about this, before you consent, because if you do not consent to it, I have got to rethink a sentence. That's fine, but you have to consent to it or otherwise.
152 I should advise you that if you contravene or breach that order, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (see s.83AD).
153 You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment (s.83AS). I add that this is the most likely disposition or sentence, beware.
154 So you have to be extra careful for the next three years after your release from custody. No committing any further offences that might incur a term of imprisonment, otherwise you are back before me and I have to re-sentence you on these two charges.
155 I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, which means for your purposes a community corrections officer or worker, if you like, as part of this order, a substantial fine can be imposed (see s.83AE and AF).
156 I am going to give you an opportunity to speak to your counsel about all of this, so that you understand what it is a Community Corrections Order involves. So, Mr Sim, is that enough information for you at this stage to go back and have a chat to your client?
157 MR SIM: It is, Your Honour, thank you.
158 HER HONOUR: All right. Take your time; I'll wait.
159 MR SIM: Thank you, Your Honour.
160 HER HONOUR: How did you go, Mr Sim?
161 MR SIM: Thank you for that time, Your Honour. Mr Green understands the significant number of responsibilities that come with such an order.
162 HER HONOUR: That's right. I don't want to set him up.
163 MR SIM: No. We discussed this before the plea hearing, Your Honour ‑ ‑ ‑
164 HER HONOUR: Assumed.
165 MR SIM: - - - in anticipation of the possibility, Your Honour. He's certainly willing to undertake it and he feels that he can comply and adhere to the onerous conditions for the next three years, or three years three months, Your Honour ‑ ‑ ‑
166 HER HONOUR: Less nine days.
167 MR SIM: Yes.
168 HER HONOUR: You understand that three months less nine days? You can explain that to him?
169 MR SIM: I'll explain it to him after we finish here, Your Honour.
170 HER HONOUR: Right, okay. That's fine. I just don't want any suggestions, should there be a breach, that he was set up to fail. Sometimes we hear these things in submissions made by counsel.
171 MR SIM: No.
172 HER HONOUR: All right. So he's aware of that. Mr Green, I will have to get you to stand just for the moment. You understand what I have ordered is three months' gaol, effectively less nine days. On top of that is a Community Corrections Order with all those conditions attached to it. Do you consent? Do you agree ‑ ‑ ‑
173 ACCUSED: Yes.
174 HER HONOUR: - - - to being on that order?
175 ACCUSED: Yes, I do.
176 HER HONOUR: All right. That's being transcribed, you see, so I know and there is a record of you agreeing to be on the order. Particularly, do you understand what can happen is you breach the order?
177 ACCUSED: Yes, I do.
178 HER HONOUR: Yes, all right. You can have a seat, thank you.
179 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these two charges following jury verdict - in other words, if you had pleaded not guilty and a jury had found you guilty of these charges - I would have sentenced you to a term of imprisonment of 5 years and set a non-parole period of 3 years and 6 months. So the sentence I have imposed is greatly less than that.
180 The prosecution has made application for a disposal order. That was consented to by counsel on your behalf and I make the order in the terms sought.
181 I don't think there were any other orders. Is that right?
182 MR O'HALLORAN: That's correct, Your Honour.
183 HER HONOUR: Yes, all right. Is there anything further requiring clarification?
184 MR SIM: No, Your Honour.
185 HER HONOUR: Nothing I need to sign, Ms Jackson? Correct. All right. Thank you both very much. I won't sign them until later. I want to go and check them. Thank you very much. All right. Can you remove Mr Green, please. Sorry, Mr Green, you have to sign the Community Corrections Order. Do you want to go back with him?
186 MR SIM: Yes, I will, Your Honour.
187 HER HONOUR: Copies of this will be given to you and to Mr Green. Thank you. Yes, thank you very much.
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