Director of Public Prosecutions v Haas

[2016] VCC 604

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01473

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID HAAS

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JUDGE:	HIS HONOUR JUDGE HOWARD
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2016
DATE OF SENTENCE:	9 May 2016
CASE MAY BE CITED AS:	DPP v Haas
MEDIUM NEUTRAL CITATION:	[2016] VCC 604

REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – sentence following plea of guilty to intentionally causing injury – serious assault with significant injury – offender suffering serious mental illness – sentenced to time served (428 days) - released on CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	Office of Public Prosecutions
For the Offender	Mr L. Barker	Matthew White & Associates

HIS HONOUR:

1David Haas, you have pleaded guilty to one charge of intentionally causing injury to the complainant, Ruvan Perera, for which the maximum penalty is ten years' imprisonment (charge 1).  I must sentence you now on behalf of the community.

Circumstances of offending

2The circumstances of your offending are set out in an agreed summary, which was read out in court, so a summary will suffice. You were 30, almost 31 at time of offending.  The complainant was 36 and described by you, and him, as your "very good friend”.  You had known each other for 14 years.

3On the afternoon of Saturday 7 March 2015, Mr Perera visited the home of John Anderson, who was your friend in common. You shared the house with Mr Anderson in Scoresby.  You arrived at the house about 5 pm.  The three of you had dinner and were drinking and then watched television.  Mr Anderson described an uneventful evening, however, at some point you had an argument with the complainant about some comments that he had made about your mother.  He also said that you had done something “pretty low” to your father.  The details of all this are not clear, although I infer that the reference to your father was to an assault that you affected upon him in late 2014, which led to him obtaining an intervention order against you. Anyway, according to Mr Anderson, you were angry and standing over the complainant and challenging him to a fight outside.  There is no suggestion that Mr Perera threatened you in any way at that time.

4After dinner about 7.30 pm, you went outside and the complainant left the house to catch a bus home.  He remembers you were having a cigarette outside and does not remember any arguments or tension between you. The next thing he remembers is waking up in hospital. 

5A short time later after the victim left, Anderson went outside and he saw Perera lying on the ground on the nature strip and he looked to be unconscious.  You were then jumping on Perera's legs and had caused him injury. Hence, the charge of intentionally causing injury. Anderson ran forward and stopped you assaulting the complainant and you then left on your bike. 

6The police arrived shortly afterwards.  An ambulance was called and Mr Perera was taken to hospital.  As a result of your assault on him, he suffered significant injuries, namely a minimally displaced fracture of the left jaw, with two breaks; soft tissue swelling and bruising from the right mid-face extending to below the jaw; a fractured eye socket with lacerations to his right eyebrow requiring stitches; two black eyes; small subcutaneous emphysema from the floor of the mouth to the neck; and finally, bruised ribs and legs. Having noted they were significant injuries, I must sentence you on basis that you committed injury and not serious injury.

Victim impact

7The complainant has not made a victim impact statement, he declined an offer to do so. But it is agreed he has been in and out of hospital several times since the incident as a result of his injury and was unable to eat solid foods for some time. It is clear that he suffered terrible physical consequences as a result of your offending and no doubt he experienced trauma and anxiety as the victim.

8You should feel a great deal of shame abd remorse for what you did to someone who was your very good friend at that time.

Legal process

9You were arrested the next day, 8 March.  There was no record of interview, as you were deemed unfit for interview due to your mental state. You were charged with intentionally and recklessly causing serious injury. You were remanded in custody and have remained in custody up to the present time. There has been no bail application by you and there are 428 days pre-sentence detention, up to, but not including, today.

10You were committed for trial in August last year, when you pleaded not guilty to the offences involving serious injury, although there was a straight hand-up brief and no actual witnesses were called. A question arose as to your fitness to plead, but following the receipt of a Forensicare report on 19 February 2016, that matter was resolved and you pleaded guilty today to the present reduced charge. 

Background and personal circumstances

11I will deal with your background and personal circumstances.  You are now 32.  You have got an older brother and sister.  Your father is a civil engineer and your mother was a visual artist.  None of your family has been in trouble with the law. You do have a family history of mental illness involving your mother and your grandmother. You had ongoing conflict with you father, whom you said was being overly critical of you as a young man, and apparently a had a good relationship with your mother. 

12You lived first in the country and then the family moved to the city for your father's work. You had a normal schooling with what was described as limited academic achievement, but you finished during Year 12, when you were 17 in 2001.  At that time, you had problems with substance abuse and left school, I gather, without completing Year 12.  You also left home and did not see your parents for one or two years.

13In your adulthood, you have had a number of friends and a significant relationship with a young lady that lasted for five years, from 2009 until
late 2014.  Of that relationship there are no children. 

14You have worked on and off as a labourer and in warehouses.  It would appear from psychiatric reports that the longest job you had was for about 11 months and your last work was reported to be for six months from late 2013 to
early 2014.

15Unfortunately, you have succumbed to substance abuse.  You had early use of marijuana when you were 13 or 14.  That increased to daily use from the time you were 17, which caused you difficulties, including mental health complications involving delusions.  It was said by you that you had reduced the use of cannabis around the time of offending.  Additionally, you started using stimulants when you were 18, in 2002, and that went through until you were 26 in 2010. 

16You have had a history of modest use of alcohol, except leading up to offence, when you began to consume spirits regularly.  It was reported you were taking vodka on two to nine occasion per day. As I have noted, you were drinking alcohol with the two other men at the time of your offence. 

17I will deal with your mental health history and issues, which are significant features in the case.  These are well set out in the report of Dr Mark Ryan, a consultant psychologist from Forensicare, who assessed you when you were at Thomas Embling Hospital in December last year and January this year.  He had the advantage of reviewing a number of reports relating to your illness over a number of years.  His report of 4 February 2016 indicates that you have had a history of severe recurrent mental health difficulties, probably commencing with the substance abuse problems at school in 2001 which I have mentioned.

18In September 2001, there was prior involvement with the law, which is a matter of importance in the case.  You were then 17 and in the Magistrates' Court, found guilty of recklessly causing injury on two charges and a breach of an intervention order.  For that offending you were released on a community based order without conviction for a period of 12 months, with treatment for alcohol, drugs and mental health issues.  Your counsel explained that your parents were the victims of an assault upon them when you were in what your father described as a drug induced psychotic episode. You kept the community based order.  I have not been informed what benefit, if any, these treatment conditions had upon you.  You have no other criminal history and there is nothing outstanding or pending. 

19In 2002, you were first admitted to a psychiatric hospital and since then you have had about 12 admissions to acute psychiatric inpatient facilities.  The consistent diagnosis has been one of schizoaffective disorder with bipolar pattern.  You have been persistently on depot anti-psychotic injections and mood stabilizers since the onset of your illness, but unfortunately there have been many lapses due to non-compliance with medication and continuing substance abuse.  When you have not been particularly well over the years, you have displayed formal thought disorder, delusional ideas and suffered from auditory hallucinations, with displays of aggressive behaviour at times.

20On your release from hospital in 2002, you resumed living with your parents on and off.  You worked intermittently as a storeman and a labourer, and eventually resumed living full-time at your parents' home mid 2012 when you were 28. In March 2014, your mother died of cancer after a lengthy illness.  I accept you had contributed significantly to her care over the preceding two years and that you were shattered by the loss of your mother. Then followed a motor vehicle accident in July 2014 and your admission to a psychiatric ward in August and September 2014. Then there was another incident when you assaulted your father, the one that I have just mentioned, which appears to have been the subject of discussion with the complainant before the assault.  Ultimately your father obtained an intervention order against you in January 2015. 

21There was then further drug & alcohol abuse and in late 2014, you were admitted to a psychiatric ward at the Alfred Hospital.  The diagnosis at that time was that there had been a manic relapse of schizoaffective disorder due to alcohol and cannabis use.  You were ultimately discharged on 18 December 2014, without there then being any evidence of psychotic symptoms. You were apparently placed into the care of your GP, with a view to receiving private psychiatric treatment, but this did not actually occur. It was at this time that you went to live with Anderson at his home, and I gather that had its own problems.  You appear to have been socially isolated and frustrated in the weeks and months leading up to the offending.  By early 2015, you were experiencing psychotic symptoms again, including violent panic attacks and hearing voices.  You claim to have been compliant with your medication, but you did not seek help from the clinic for these particular problems. 

22At the time of your arrest, you had never been to prison before, and whilst in custody you suffered further from your illness and were placed on
anti-psychotic and mood stabilising medication. In summary, you received assistance from the psychiatric ward, St Paul’s, at Port Phillip Prison from May 2015.   You received treatment at the Acute Assessment Unit at MAP from June last year. In July 2015, you were certified under the Mental Health Act.

23You were assessed by psychiatrist Dr Adam Deacon on 19 September last year.  His report of same date, indicates you were found to be floridly psychotic at that time, with marked thought disorder and bizarre delusions, relating to beliefs that you held a senior position in the military and had family links to the British monarchy.  It was not possible for the expert to undertake an adequate assessment, because you were unable to provide a reliable account of the incident, as you consistently digressed into irrelevant and often unintelligent rambling.  You did concede the “incident” followed an argument with the complainant, but you implied you could not discuss the matter further because you were not permitted to do so, given your military status.  Dr Deacon found that as at September last year, you were unfit to plead and stand trial because you were unable to instruct your legal counsel or to follow the course of the trial.  He said that you were likely to have been mentally unwell at the time of the offence, but the nexus between your mental illness and the offence remained unclear at that time.

24You were obviously suitable to go to Thomas Embling Hospital from July 2015, but regrettably, and it is somewhat notorious, there was no bed available and your admission to that hospital did not happen until 17 November 2015.  You remained at Thomas Embling receiving treatment until you were transferred back to the Acute Assessment Unit at MAP on 9 March 2016.

25I will return to the report of Dr Ryan, from Forensicare.  At Thomas Embling, you were settled in behaviour and compliant with your treatment regime, which included anti-psychotic and mood stabilising medication.  There was no evidence of significant mood disturbance, auditory hallucinations or disordered communications, however there were underlying delusional ideas still present, particularly as to your military status.  For instance, you said you were the only Lance Corporal in existence, and there was bizarre martial arts activity referred to by you, including obtaining a “green belt in universal karate” and a “blue belt in zen”.  These delusions inhibited the ability of the expert to obtain or understand certain information from you. You also reported to him having a “receiver’ in your brain and hearing an occasional noise like someone hitting a microphone.

26You were found to be of normal intelligence and Dr Ryan said you accepted that you did have a history of serious mental illness and the need for medication, but at that time you had very limited insight into specific aspects of your illness, particularly the grandiose ideas that I have mentioned. I note that on 3 December 2015, you were reported by staff to be suffering from irritability, disorganised communication, auditory hallucinations and a range of delusional beliefs.  However, Dr Ryan states that more recently, there has been “a considerable, though incomplete, improvement in mental state”.

27You gave an explanation of the offending to Dr Ryan.  You said you had a disagreement with the complainant, who was acting in a belittling manner towards you and that you were then both belligerent to each other.  You conceded you assaulted him and said you had “gone too far", in what you described as “an old-fashioned fight”.  Nevertheless, you claimed you did not intentionally cause the complainant an injury, but when pressed for more detail, would not discuss the matter any further.  You specifically denied you were instructed to act against the complainant by voices or other experiences that might be construed as hallucinations or delusions. Dr Ryan’s opinion is that there is nothing to indicate any delusional underpinnings to the violent exchange that you had with Mr Perera. Dr Ryan was satisfied that as at February this year, you were fit to plead and stand trial, and this was the context in which the matter was then settled between the parties. 

Mitigating circumstances

28There are a number of mitigating circumstances in your favour, which I accept.  The first is that you appear to have had a normal family upbringing, although
I note difficulties with mental health issues for your mother and problems which you say you had with your father. You achieved reasonably well at school until drug abuse compromised your progress, you left school and had no parental contact for 1-2 years, and then you got into trouble for violent conduct with them.

29Next, you have suffered a serious mental illness for many years, as I have described, which has been associated with drug and alcohol abuse and which has made many difficulties for you in your life.  However, in recent times, it is pleasing to note that your illness has improved.  No doubt that is partly because you have been compliant with the medication prescribed for you, and that is essential to your continuing good health. As to any link between your mental illness and offending, Dr Deacon’s opinion is that although you were likely to have been mentally unwell at the time of the offence, it was not possible for him to establish a nexus between your mental illness and the offence.  That issue remained unclear for him in September 2015 when he assessed you.

30Dr Ryan’s opinion is also that you were likely to have been mentally unwell at the time of the offence, but he could not conclude with any degree of confidence that you were actively psychotic at time of offending, notwithstanding two admissions to hospital in late 2014.  He noted that you were discharged from the Alfred on 18 December 2014 without evidence of psychotic symptoms, as I have noted, and also your assurance that you were compliant with your medication from then on.  Nevertheless, he states that it is reasonable to assume there was “some degree of symptomatology” at the time of offending, on the basis of your ongoing symptoms at the time of his report in February 2016. The highest he put it was that you were “probably to some degree psychotic” at the time of the offending. However, his opinion did not enable you to mount a defence of mental impairment, in that he was satisfied you knew the nature and quality of your offending conduct, and that the surrounding circumstances, including the absence of any grossly disorganised or agitated conduct or prominently expressed delusional beliefs in the hours leading up to your assault on the complainant, did not allow him to conclude that you could not reason with a moderate degree of sense and composure about the wrongfulness of your offending conduct. 

31It was initially submitted in writing by your counsel that there was a Verdins link between offending and mental illness. But at the hearing, counsel ultimately conceded, having regard to the test recently re-emphasised by the Court of Appeal in O’Neill[1], that it was difficult for you to demonstrate such a link, even on the balance of probability, given the uncertain evidentiary basis I have outlined.  However, counsel was content to adopt my acceptance that Verdins propositions 5 and 6 were engaged, in that your mental illness would make imprisonment more burdensome for you than for others not suffering as you do, and it would be likely to aggravate the condition. Counsel also accepted my indication that I would generally take your mental illness at the time of offending into account as a relevant matter in your favour, which I do.

[1]DPP v O’Neill [2015] VSCA 325, [77]-[78] per the Court (Warren CJ, Redlich & Kaye JJA)

32Next, you have pleaded guilty, thereby saving time, cost and inconvenience to the community.  That plea has had a utilitarian benefit, it served the ends of justice, for which there should be a significant discount in penalty.  However,
I cannot be satisfied that you are remorseful, given your lack of insight into the offending and the claim of unintentional conduct that you made, at one point, to Dr Ryan.  Indeed, it was not submitted you were remorseful.

33This is the first time that you have been in custody, and I accept your counsel's submission that it would have been unusually burdensome for you being in mainstream prison with your mental illness.  As I said, it is very regrettable that you were not transferred to Thomas Embling much sooner than you were. 

34I also take account that the offending conduct followed the combination of a number of events - your mother’s death in March 2014, with all its attendant on-going grief for you; the break-up of the five year relationship with your girlfriend in late 2014; and your recent discharge from the psychiatric unit at Alfred at about the same time. I also accept the incident was unplanned and probably brief, although it was long enough to do the damage that you did to your friend.

35On release from prison, it is proposed that you would go to live with father at his house in Murrumbeena.  He is a civil engineer and in full-timework and he lives there alone. Most impressively, in my view, he attended court today and pledged his support for you.  I say it is impressive because of the history of the past difficulties you have had with him. He is agreeable for you to live with him and has instructed counsel that he has visited you in custody on a weekly basis since you have been incarcerated. He has noted a marked positive change in your mental illness and importantly, your insight into it.  Particularly, you now understand and accept that you must remain abstinent from alcohol and cannabis or other illicit drugs, as these substances will seriously adversely affect your illness.  It would appear you now share a significant bond with your father, which includes you attending football matches together.

36Next, the intervention order from January 15 that your father has against you, will continue until January 2017.  Whilst it protects your father from you causing him physical, psychological and emotional harm, or causing damage to his premises, or any threats that you might make against him, the order does not prevent you from living with him in his house.  Obviously, if you do act aggressively towards him, like you have in the past, or do any of the things which are prohibited by the intervention order and which would constitute a breach of the order, then that would place you at risk of coming back to court and being returned to prison.  Make no mistake about that.  That is the consequence if you do not work together with your father when you live together.

37Next, there will be further support in the community available to you from the Alfred Hospital psychiatric triage service and the Alfred psychiatric community team.  A referral has been made by the psychiatric nurse at MAP for you to go and see the intake clinician at the Alfred for that purpose. 

38Finally, there is an offer made, about a month ago by a previous employer, of work available to you as a brickies labourer.

39As to your prospects of rehabilitation, I need to be guarded about them, a point conceded by your counsel.  Notwithstanding the post-release supports that
I have outlined, your serious mental illness continues, you will have some difficulty with insight into the specific aspects of that illness, particularly the grandiose ideas that you suffer from time to time and, as is clear, there has been a history of past non-compliance with medication, although I note there has been positive compliance in recent times.  Your alcohol and drug problems remain and there is a need for treatment.  You have been assessed by Corrections as a medium risk of re-offending.  There is a definitely a need for you to have intensive ongoing support in the community and I agree with your counsel, that ought to be a slow managed re-integration.

Other sentencing considerations

40There are, of course, other sentencing considerations.  The first is that I have to have regard to the maximum penalty of ten years' imprisonment.  That is a yardstick for the worst type of case.  Yours is not the worst type of case, but it is, in my view, a serious example of this offence. It was a very disturbing, ugly and violent episode.  It is not clear how the fight started with Mr Perera, but there is no suggestion that he was acting aggressively towards you inside the house.  You had no injuries on you, consistent with acting in self-defence and you agree, you continued to assault him by jumping on him when he was unconscious.  Obviously at that time he was no threat to you.  That was a vicious and cowardly thing to do to him.  As you say, you went too far in acting violently towards the complainant. 

41Next, there has been significant victim impact, as I have described, including fractures to his jaw and eye socket, and ongoing disability, as an immediate aftermath.

42You were consuming a lot of alcohol in the lead up to and at the time of offending, which disinhibited you and that aggravates your offending.

43Along with your rehabilitation, the principles of general deterrence, protection of the community, just punishment and denunciation are all very important aspects of sentence. I do consider your moral culpability is lessened by the fact of your mental illness existing at the time of the assault. But there is some role for the principle of specific deterrence, given your prior incident of violence with your parents in 2001, and then with your father in late 2014.

44Neither side has made any submissions about current sentencing practice.  The best that could be said about that is that for this type of offence, there is a broad range of penalty that reflects a broad range of offending. Ultimately, every case must turn on its own facts and circumstances and that is true of yours. 

45On behalf of the community, I strongly denounce your conduct.

46The defence submission was that you have now served about one year and two months in custody and that in all the circumstances you should be sentenced to that period of time served, with release upon a community correction order with appropriate supports for your personal difficulties. The prosecution agrees with that submission, which is an important matter to consider. In all the circumstances, I am satisfied that this is an acceptable and proper joint submission.

47Accordingly, I had you assessed today for a community correction order.  You have been found to be suitable for such an order, with the imposition of a number of terms and conditions which are designed to, as I say, deal with your personal difficulties.  You are assessed as being at medium risk of re-offending.  Drug, alcohol and mental health and offending programs and supervision are recommended. I also propose to make it a condition that you live with your father.  I think that that will provide you with an important source of support whilst you are coping with your difficulties in the next couple of years.  As to the residence restriction proposed, Corrections indicated that it would take four weeks to assess that proposal, particularly in light of the intervention order which is in place at the moment concerning your father.  Notably, your father advised Corrections that he did not believe the risk of family violence would be increased by you residing with him.  Rather than to wait those four weeks, I am going to have noted on the order that there will be some additional checks that Corrections will undertake.  I think it is important that the matter be resolved today and that you go home today with your father.

48[Discussion with counsel as to the appropriate Community Corrections Centre].

49Mr Haas, just stand up if you would please.  I want to first explain to you what the community correction order is about.  I know that has been explained to you, but I need to have your informed consent, all right? 

50OFFENDER:  Yes. 

51HIS HONOUR:  So, the CCO is a community based sentence that addresses your particular offending and your personal circumstances.  It is designed to essentially assist in your rehabilitation, but it is punitive in nature and so therefore requires your commitment to it and time with it.  If you engage with it appropriately, it is going to make your life better and it will make life better for those who are around you, particularly people who love you like your father. It is a golden opportunity for you to turn your life around and make things better. As I say, I need your informed consent to the order.  I need to ask you, do you understand that you have signed a form acknowledging that you may be called upon by Corrections to fund yourself some of the rehabilitation programs that have been recommended for you? 

52OFFENDER:  Is well understood. 

53HIS HONOUR:  Thank you. The order will last for 18 months.  It will start today, and it will finish in 18 months' time from today.  There are some mandatory, compulsory, terms to it that I want to explain and then I am going to explain the particular conditions, all right?  So the mandatory or compulsory terms that apply to the order are as follows:  First, during the period of the order, you must not commit, whether in or outside Victoria, any offence punishable by imprisonment.  There are many such offences, including driving offences, all right?  Secondly, you must comply with any obligation or requirement prescribed by the sentencing regulations, particularly Regulation 17 of the Regulations 2011.  Regulation 17 in short says that you are not allowed to drink before you go to Corrections for meetings, and you are not allowed to be under the influence of alcohol or drugs when you go there, or if you are doing any of the work which is related to the order, all right? 

54OFFENDER:  Yes, understood. 

55HIS HONOUR:  Thirdly, you have got to report to and receive visits from the Secretary of the Department of Justice and Regulation, or his or her delegate, during the period of the order.  When I refer to the Secretary or delegate, that means, in practice, the Community Corrections office, all right?

56OFFENDER:  Yes.

57HIS HONOUR:  Because they are the ones that are going to be running the program. Fourth, you must report to the Community Corrections centre specified in the order, that is the one that was just mentioned, the Moorabbin Community Corrections office, within two clear working days of the order starting today.  All right?  Today is Monday, so by Wednesday afternoon, you will have to have reported to the Moorabbin office.

58OFFENDER:  No worries.

59HIS HONOUR:  And my advice would be to go there tomorrow.  Ring up and make an appointment with them at least tomorrow, so that when you go there, you will have someone expecting to meet you.  And it would be desirable if your dad could go with you at that time.  Fifthly, you have got to let the Secretary, that is the Community Corrections office know within two clear working days if you change your address or any job of any kind that you may have, even if such a change is only temporary.  Now I am going to make it a condition that you live at your father's address, all right?  So you are not allowed to change your address for the next 18 months whilst you are on this order.  But if, for instance, you change your job, even if it was a temporary change, you have got to let them know that you have changed your position, all right? 

60OFFENDER:  All right.

61HIS HONOUR:  Obviously if you get a job, you have got to tell them that as well.  Sixth, you must not leave Victoria without first getting permission from the Secretary, that is Corrections, either generally or in relation to a particular case.  If there is a reason why you need to leave Victoria, they will understand that and they will give you permission to do that, unless there is not a good reason.  Finally, you must comply with any direction given by the Secretary, that is Corrections, whether oral or written, which is necessarily given to make sure that you comply with the order.  So do you understand all of those mandatory or compulsory terms that I have explained?

62OFFENDER:  Yes, understood.

63HIS HONOUR:  Is there any question you want to ask me about any of them?

64OFFENDER:  No, I'm - been informed previously to this - the section and I'm fine. 

65HIS HONOUR:  All right, good. Then, as I said, there are going to be certain terms or conditions which are designed to address your personal issues.  Quite often in these orders, unpaid community work is ordered.  I am not going to make you undertake any such work.  The essential reason for that is because people in your situation, who do community work, have to come into contact with other criminals that have broken the law in one way or the other, they are on these orders. That is often not a good environment, particularly it would not be a good environment for you to get caught up in any way with people like that.  You should stay a long way away from such people, all right?

66OFFENDER:  Yes. 

67HIS HONOUR:  I am going to order that you undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the Regional Manager. Secondly, that you undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the Regional Manager. Thirdly, you have got to undergo mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the Regional Manager.  Fourthly, you must participate in programs and/or courses that address factors relating to the offending, as directed by the Regional Manager. 

68I am also going to order that you be under the supervision of a Community Corrections officer for the period of 18 months that the order will run for.  You should make good use of that person.  They are there to help you in dealing with your life and life problems.  All right?  So do not bottle up your problems, do not bottle up your anxiety, talk to that person about the things that worry you.  All right?  They are there to help you.  And if you do that, they will help you and that will mean those around you will be assisted as well. 

69Finally, you have got to reside at 16 Ricourt Avenue in Murrumbeena with your father, Steven Haas, and I will have noted that Corrections may need to complete additional checks as to your residence.  So, do you understand those terms and conditions of the order?

70OFFENDER:  Yes.

71HIS HONOUR:  Do you want to ask me any questions about them?

72OFFENDER:  No.  No.

73HIS HONOUR:  All right.  The third part of this is, I have to explain to you what the consequences are if you breach the order, all right?  You can do that in two ways, you can either do it by breaking the law, if you break the law where there is a punishment of imprisonment, then that would be a breach of the order.  There are a lot of driving offences which are punishable by imprisonment.  Or you could breach the order by not complying with the terms and conditions that I have set out.  So, if you do not turn up for assessment, for meetings, for supervision, all  those sort of things, you would be breaking your order.  If you do not live with your father at the premises, you would be breaching the order.  All right? 

74OFFENDER:  Yes.

75HIS HONOUR:  And if that happened, if one or other or both of those things happened and you did not have a reasonable excuse for what you did, well then you would come back to court, you would face a punishment alone, just for the breach, of going to gaol for three months.  All right?  And then the court would have to decide whether to deal with you for the original offending, this offending that I am putting you on this order for.  It might cancel the order and deal with you from the beginning again, and that would mean that you would face the prospect of going back into gaol.  All right?  The court also has the power to vary the order, confirm it, or it could take no further action at all.  So do you understand the serious consequences if you were to breach this community correction order?

76OFFENDER:  Yes I do.

77HIS HONOUR:  And that that could lead to you being sent to gaol, if you were in breach?

78OFFENDER:  Yes, understood. 

79HIS HONOUR:  All right.  So, do you have any questions about the proposed order?

80OFFENDER:  No, it seems all sufficient. 

81HIS HONOUR:  All right, so do you consent to it, as I have explained it to you?

82OFFENDER:  Yes.

83HIS HONOUR:  All right.  Just have a seat for the moment, would you.  I will just have a look at this draft and have you then - have your client sign it. 

84MR BARKER:  Thank you, your Honour.  May I approach him now? 

85HIS HONOUR:  Once you get the draft, you can approach him.

86MR BARKER:  Certainly.

87HIS HONOUR:  Yes. 

88MR BARKER:  Thank you, your Honour.

89HIS HONOUR:  All right, thank you.  Just stand up again if you would please, Mr Haas. 

Sentence

90On the charge of intentionally cause injury, you are convicted and sentenced to 428 days' imprisonment.  I declare that the period 428 days pre-sentence detention, which you have served, will be deemed to have served on that sentence and that that declaration be entered in the records of the court. You will be, as from today, released on the community correction order for a period of 18 months, which will commence today, and it will be on the terms and conditions as I have explained to you, and which you have accepted, and as I set out in the order, which you have now signed and I have signed it.  A copy can be made available to the parties.                  

91But for your plea of guilty, I would have sentenced you to three years' imprisonment, with a minimum of two years' to serve. 

92A forensic sample order is sought by the prosecution and is agreed by you. 
I am satisfied that I should make that order, given the seriousness of the circumstances of your offending, the prior conviction or matter that you have, the fact that the order is by consent and the granting of the order is in the public interest. Accordingly, pursuant to s.464ZF(2) of the Crimes Act, you are to undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample, in accordance with Subdivision 30A of Part III of the Crimes Act 1958, until a sample of sufficient standard is obtained for placement on the database. For that purpose, you need to report to the officer in charge of the Oakleigh Police Station in the next four weeks from today. So that is the next 28 days, commencing from today, or once any instituted conviction appeal if finally determined and a conviction for the forensic sample offence is upheld, whichever is the later. I need to inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force - and that is a very simple procedure, they just put a swab inside your mouth, it takes a matter of seconds and it is painless - well then the police are entitled to take a blood sample from you and they may use reasonable force to enable that forensic procedure to be conducted, all right? So I will sign those orders.

93COUNSEL:  As your Honour pleases.

94HIS HONOUR:  Just have a seat for the moment if you would please.  I hand those signed orders to the prosecution, thank you.  And I will just ask counsel, are there any issues arising?

95COUNSEL:  No, your Honour. 

96HIS HONOUR:  Nothing from you, all right.  Can I just mention this to the custody officer?  I have just sentenced him to time served, so he is entitled to be released from court.  So you need to take him downstairs to do the paperwork, is that right? 

97PRISON OFFICER:  Yes. 

98HIS HONOUR:  All right, and will you go down to meet him, Mr Barker? 

99MR BARKER:  Your Honour, I won't.  In fact that's one of the reasons why I was slightly late coming back into court.  Arrangements have been put in place because he's been brought to court this morning without his medication.  His father will meet him outside the exit, take him straight to MAP, where it's understood that his medication can be provided to him.  It is intended that he will attend at the Waiora Clinic at the Alfred Hospital - well not at the Alfred Hospital, but part of the Alfred group, on Wednesday morning, and thereafter go to Moorabbin justice centre for initiation into his CCO. 

100HIS HONOUR:  All right, so his dad will take him to those too?

101MR BARKER:  Indeed, Sir.

102HIS HONOUR:  Yes, all right. 

103MR BARKER:  He is a remarkable support, Mr Haas Senior.

104HIS HONOUR:  Yes, well I was about to say, the final thing I wanted to say was to thank you, Mr Haas Senior, for what you have done for your son.  I am sure that there have been many times when you have struggled to do that. 

105MR HAAS SENIOR:  Oh, thank you, Your Honour.

106HIS HONOUR:  Yes.  So he is going to be released from court here, Mr Barker?

107MR BARKER:  He will leave out near where the coffee cart is.

108HIS HONOUR:  Yes, all right, so his dad will meet him down there.

109MR BARKER:  And his dad will meet him down there.

110HIS HONOUR:  All right, thank you.  Copies of the orders can be made for the parties, thanks.  All right, thank you for your assistance, Gentlemen. 

111MR BARKER:  Thank you, your Honour. 

112HIS HONOUR:  10.30 thanks tomorrow. 

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