Director of Public Prosecutions v Jordan
[2016] VSC 55
•23 February 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 06374
IN THE MATTER of an appeal on a question of law pursuant to s 272 of the Criminal Procedure Act 2009
BETWEEN
| DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF HELEN BELL, TRAVIS MARK FORREST, KEVIN ALEXANDER HALL, DONALD PATRICK TRICE, GAVIN MARK RHODES & BEN PARDO) | Appellant |
| and | |
| BLAIR LINCOLN JORDAN | Respondent |
AND
S CI 2016 00453
IN THE MATTER of an application pursuant to s 104 of the Sentencing Act 1991
BETWEEN
| DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF HELEN BELL, TRAVIS MARK FORREST, KEVIN ALEXANDER HALL, DONALD PATRICK TRICE, GAVIN MARK RHODES & BEN PARDO) | Plaintiff |
| v | |
| BLAIR LINCOLN JORDAN | First Defendant |
| and | |
| THE MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | JANE DIXON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 February 2016 | |
DATE OF JUDGMENT: | 23 February 2016 | |
CASE MAY BE CITED AS: | DPP v Jordan | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 55 | First revision 30 November 2016 |
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JUDICIAL REVIEW – Review of sentence imposed by Magistrates’ Court – Offender sentenced to 6 months’ detention in youth justice centre and 15-month CCO – Sentencing Magistrate erred in imposing combined youth justice centre order and CCO on single charge – Sentencing Magistrate erred in having regard to date of parole – Requirement that CCO must commence within 3 months unable to be given effect – Offender turned 21 while serving sentence – Sentence substituted – CCO re-instated to commence immediately – No order as to costs – Sentencing Act 1991 (Vic) ss 5(2AA)(a), 7, 32(1), 38(2), 44(1), 104(1)
APPEAL – Question of law – Appeal dismissed – Criminal Procedure Act 2009 (Vic) s 272(1)
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant/Plaintiff | Mr A Castle (Solicitor) | Office of Public Prosecutions |
| For the Respondent/First Defendant | Mr T Fitzpatrick | Rainer Martini & Associates |
| For the Second Defendant | No appearance |
HER HONOUR:
The Director of Public Prosecutions (hereinafter referred to as the ‘Plaintiff’) brings an originating motion in respect of sentencing orders imposed on Blair Lincoln Jordan (hereinafter referred to as the ‘First Defendant’), by Magistrate P H Mealy on 20 November 2015.
The Plaintiff brings the motion on behalf of Helen Bell, Travis Mark Forrest, Kevin Alexander Hall, Donald Patrick Trice, Gavin Mark Rhodes and Ben Pardo. The aforementioned persons are members of Victoria Police who were named as informants in a consolidated plea hearing held at the Ringwood Magistrates’ Court on the above-mentioned date.
The matter was initially brought to this Court and set down as an appeal under s 272(1) of the Criminal Procedure Act 2009 against the same sentencing orders.
However, at the hearing of the appeal on 9 February 2016, it was ultimately considered more efficacious to convert the hearing to an originating motion and enliven s 104(1) of the Sentencing Act 1991 (the ‘Act’), which gives a power to the Supreme Court to amend a sentence imposed in a court below and substitute a valid sentence, if this Court determines that the sentence imposed was beyond the power of the sentencing court.[1]
[1]Sentencing Act 1991 s 104(1): If—(a) a person has been sentenced (whether at first instance or on appeal) by the County Court or the Magistrates’ Court for an offence; and (b) an application is made to the Supreme Court for relief or remedy in the nature of certiorari to remove the proceeding into the Supreme Court; and (c) the Supreme Court determines that the sentence imposed was beyond the power of the sentencing court—the Supreme Court may, instead of setting aside the conviction, amend the conviction by substituting for the sentence imposed a sentence which the sentencing court had power to impose.
The Plaintiff sought and was granted leave for an extension of time to file the originating motion pursuant to r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2015. Accordingly, an originating motion was filed on 10 February 2016.
Counsel for the Plaintiff and First Defendant filed written submissions before and made oral submissions at the hearing on 9 February 2016. Following the hearing, I caused to be sent an email to the parties setting out in summary my preliminary judgment and invited counsel to file further written submissions. Further submissions were duly filed.
Magistrate Mealy sentenced the First Defendant to a combined sentencing order which purported to combine a six-month youth justice centre order (‘YJCO’) with a 15-month community correction order (‘CCO’).
It was envisaged by his Honour that the CCO would commence upon the First Defendant's release from detention on 22 February 2016.
In fixing the date for the CCO to commence, his Honour acted on the assumption that the First Defendant would necessarily be paroled from the six-month YJCO by 22 February 2016. This assumption seems to have been based on some information conveyed to his Honour about what would occur in the normal course of events.
It was problematic for his Honour to have proceeded on the basis of a probable release predicated on the First Defendant being granted parole by the Youth Parole Board because of the strictures of s 5(2AA)(a) of the Act:
(2AA) Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to—
(a)any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind;
Because his Honour expected the First Defendant to be released by 22 February 2016, his Honour therefore postponed the commencement of the CCO to that date, and imposed a condition that the First Defendant report to his community corrections centre within two working days of 22 February 2016.
It was argued before me, on behalf of the Plaintiff, that the purported sentence exceeded the power of the sentencing Magistrate, in that his Honour was not empowered under the Act to combine a six-month YJCO with a CCO.
I was informed that no application had been made to stay the operation of the sentence pending determination by this Court of the validity of the combined sentencing order. Therefore, the First Defendant has been undergoing the detention part of the original sentencing order, but the CCO aspect has not commenced.
His Honour sentenced the First Defendant in respect of two consolidated cases bearing separate identifying case numbers.
The following table sets out the case numbers, related charges and ultimate sentence imposed on each charge.
No. Informant Offence Sentence Cumulation Case No. 201416191 1 Helen Bell Damaging Property on 2 July 2014 contrary to s.197(1) Crimes Act 1958 15 months’ CCO n/a 2 Travis Mark Forrest Theft on 24 May 2014 contrary to s.74 Crimes Act 1958 15 months’ CCO n/a 3 Kevin Alexander Hall Theft on 27 June 2014 contrary to s.74 Crimes Act 1958 15 months’ CCO n/a 4 Kevin Alexander Hall Commit an indictable offence while on bail on 27 June 2014 contrary to s.30B Bail Act 1977 15 months’ CCO n/a 5 Donald Patrick Trice Theft on 4 April 2014 contrary to s.74 Crimes Act 1958 15 months’ CCO n/a 6 Donald Patrick Trice Theft on 3 May 2014 contrary to s.74 Crimes Act 1958 15 months’ CCO n/a 7 Helen Bell Breach of Community Correction Order CCO cancelled and new orders made n/a Case No. 201517946 1 Gavin Mark Rhodes Theft on 14 November 2014 contrary to s.74 Crimes Act 1958 15 months’ CCO n/a 2 Gavin Mark Rhodes Theft on 19 January 2015 contrary to s.74 Crimes Act 1958 15 months’ CCO n/a 3 Gavin Mark Rhodes Theft on 20 January 2015 contrary to s.74 Crimes Act 1958 15 months’ CCO n/a 4 Gavin Mark Rhodes Burglary on 25 February 2015 contrary to s.76 Crimes Act 1958 15 months’ CCO n/a 5 Gavin Mark Rhodes Theft on 25 February 2015 contrary to s.74 Crimes Act 1958 15 months’ CCO n/a 6 Gavin Mark Rhodes Commit an indictable offence while on bail on 25 February 2015 contrary to s.30B Bail Act 1977 15 months’ CCO n/a 7 Ben Pardo Recklessly Cause Injury on 16 May 2015 contrary to s.18 Crimes Act 1958 6 months’ detention in YJC, 15 months’ CCO Base 10 Ben Pardo Commit an indictable offence while on bail on 16 May 2015 contrary to s.30B Bail Act 1977 3 months’ detention in YJC, 15 months’ CCO n/a 11 Ben Pardo Contravene a conduct condition bail on 16 May 2015 contrary to s.30A Bail Act 1977 3 months’ detention in YJC, 15 months’ CCO n/a Total Effective Sentence: 6 months' detention in YJC and 15 months' CCO Non-Parole Period: N/A Pre-sentence detention declared: N/A 6AAA Statement: N/A Other relevant orders:
· Forensic sample order pursuant to s 464ZF of the Crimes Act 1958 (Vic).
· Compensation of $218 and $374.05.
CCO Terms and Conditions:
Convicted and a Community Correction Order for a period of 15 months is made against the Offender.The Offender is required to attend the Lilydale Community Corrections Centre at 1/18 Clarke St, Lilydale VIC 3140 by 22/02/2016 by 4:00 pm.
The order commences on 22/02/2016 with the following conditions:
Unpaid Community Work
Perform 90 hours of community work.
The 90 hours ordered on case number 201517946 is cumulative upon 90 hours work component ordered in case number 201416191.
This condition starts on 22/02/2016 and goes for 12 months.Supervision
Be supervised by the Secretary.
This condition starts on 22/02/2016 and goes for 15 months.Treatment and Rehabilitation
Undergo the following treatment and rehabilitation:- Assessment and treatment (including testing) for drug abuse or dependency as directed
- Assessment and treatment (including testing) for alcohol abuse or dependency as directed
- Offending behaviour program/s as directed
- Any other treatment and rehabilitation as directed:
Undertake assessment for programs to reduce offending and participate in programs as directed;
Undertake and satisfactorily complete an anger management program.
This condition starts on 22/02/2016 and goes for 15 months.
Alcohol exclusion
Comply with an alcohol exclusion condition:- You must not enter or remain in any licensed premises that are characterised as a nightclub, bar, restaurant, café, reception centre or function centre; and
- You must not enter or remain in any licensed premises of any major event; and
- You must not enter or remain in the bar area of any other licensed premises; and
- You must not consume any liquor in any licensed premises.
This condition starts on 22/02/2016 and goes for 12 months.
Bond
Pay $250.00 bond to the court by instalments of $50.00 each fortnight. First payment to be made on 01/04/2016. This Bond may be forfeited if you do not comply with this order.Other Conditions
The work components of the orders in case nos. 201416191 and 201517946 are wholly cumulative.
As can be seen from the table above, in respect of charges 1 to 6 in case number 201416191, the First Defendant was sentenced to a CCO for 15 months with a suite of special conditions attached.
In respect of case number 201517946, the First Defendant was sentenced to a concurrent CCO on charges 1 through 6, and an additional order requiring detention in a youth justice centre on charges 7, 10 and 11. The total effective period of detention was six months, by operation of s 33 of the Act which governs concurrency of periods of detention orders under a YJCO.
A transcript of the tapes derived from the sentencing hearing on 20 November 2015 was exhibited to the affidavit of Ms Nicole Lewino, Senior Corrections Officer, who appeared before his Honour at that hearing. In her affidavit, Ms Lewino confirmed that the transcript accurately reflected submissions she made before his Honour at a mention held after the sentence was imposed.[2]
[2]Notwithstanding that Ms Lewino also deposed that the recording was of poor quality and that the transcription included gaps which were recorded as ‘indistinct’.
His Honour’s sentencing objectives found expression in the ultimate sentence and are partly discernible from the discussion and remarks at the sentencing hearing.
The First Defendant was still only 20 years of age at the time of the plea hearing. Nevertheless, the First Defendant had persistently re-offended in breach of a previously imposed CCO and his alcohol-related offending appeared to have been escalating in seriousness.
But he did not have an extensive history of juvenile offending, and, on the contrary, had previously held stable employment for some years, despite his young age.
Having considered matters raised on the plea hearing, including the prosecution case summaries, prior criminal history, victim impact statements, photographs, medical reports and oral submissions, his Honour called for pre-sentence reports from Youth Justice (under the Department of Human Services) and Corrections Victoria (under the Department of Justice and Regulation).
The reports assessed the First Defendant with a view to providing advice to the learned Magistrate as to the First Defendant’s suitability for certain orders.
I was provided with copies of the pre-sentence reports that were before his Honour, as well as the original police case summaries, prior convictions, and victim impact statements, photographs and medical reports on which the convictions and sentences were based.
Each pre-sentence report was prepared independently, and the authors of the respective reports did not advert to whether or not a combined sentence could be imposed by his Honour.
The report from Youth Justice, dated 19 November 2015, assessed the First Defendant as suitable for detention at a youth justice centre. It noted that the requirements of ss 32(1)(a) and (b) of the Act appeared to be met, in that there were reasonable prospects for the rehabilitation of the young offender, and the young offender was assessed as vulnerable to undesirable influences in an adult prison.
The CCO assessment report, dated 16 November 2015, approved the First Defendant’s suitability for a further CCO[3] and included a signed consent from the First Defendant.
[3]The previously imposed CCO was cancelled by his Honour in the same proceeding on 20 November 2015.
His Honour considered the two reports and imposed a combined sentence with the apparent aim of ensuring, firstly, that the First Defendant served a short period of detention in a youth justice centre and, secondly, that, following release from the YJCO, the First Defendant would have the cover of a CCO for a moderate period of time, with the conditions of the CCO addressing his offender-specific needs. His Honour made specific references to an anger management course and drug and alcohol treatment as some things he had in mind for the First Defendant in imposing the CCO.
His Honour, in his discussion with counsel, referred to the new CCO regime as explained and interpreted by the Court of Appeal in Boulton v The Queen (‘Boulton’).[4]
[4][2014] VSCA 342.
The Plaintiff argued in their submissions before me that the learned Magistrate had exceeded his powers under the Act by fixing a sentence which combined the YJCO for 6 months with the CCO.
In essence, it was argued that, although there is power under s 44(1) of the Act, as discussed in Boulton, to impose a combined sentence in respect of one offence, such sentence involving a term of imprisonment for two years or less and a CCO, there was no equivalent direct power under s 44(1) to combine a CCO and a YJCO.
Imprisonment is a wholly different sentencing order from youth detention and there is no warrant for construing the word imprisonment as if it encompassed detention in a youth justice centre.
In Scammell v The Queen,[5] the Court of Appeal accepted, in respect of a single offence, that a ‘community correction order could not be combined with detention in a youth justice centre as that was not a term of “imprisonment” under the Sentencing Act 1991.’[6]
[5][2015] VSCA 206.
[6]Ibid [20] (Redlich and Beach JJA).
The Plaintiff also argued that no other provision in the Act directly permitted a CCO to be combined with a YJCO and that neither the provisions of the Act providing for the imposition of CCOs, nor those which provide for YJCOs, make any reference to a combined CCO and YJCO disposition.
The Plaintiff also submitted that the particular sentence imposed by the learned Magistrate in this case was incapable of being complied with because of the legislative requirement under s 38(2) of the Act that a CCO commence within three months of the making of the order and the further requirement under s 45(1)(c) of the Act that the offender report to the community corrections centre within two working days of the commencement of the CCO.
It was argued that the imposition of six months’ detention at a youth justice centre conflicted with these two requirements, because his Honour was not entitled to assume that parole would be granted within the three month period.
The Plaintiff pointed out that s 32(1) of the Act permits the imposition of a YJCO on a young offender, providing that the Court has received a pre-sentence report and that the remaining pre-conditions set out in s 32 of the Act are met. ‘Young offender’ is defined in the Act as ‘an offender who at the time of being sentenced is under the age of 21 years’.[7]
[7]Sentencing Act 1991 (Vic) s 3(1).
The Plaintiff referred the Court to the case of R v Young,[8] as assisting with the interpretation of the Act in respect of combined sentences. The Court of Criminal Appeal in that case paid attention to s 7 of the Act, as it then was, which listed the sentencing options permitted to be imposed for an offence, in a generally hierarchical order.
[8](1995) 81 A Crim R 70.
Crockett and Ashley JJ noted that s 7 set out the range of sentencing orders that are available to be made if the court finds a person guilty of an offence:[9]
The opening words of the section empower a court “subject to any specific provision relating to the offence and subject to this Part” to make a sentencing order of any one of eleven types. We say “any one”, because the eleven types of disposition are expressed disjunctively.
[9]Ibid 71 (Crockett and Ashley JJ).
However, their Honours (with Nathan J in dissent) noted that s 36(2) of the Act (a legislative precursor to the current provision in s 44(1) of the Act) created an exception whereby a ‘community-based order’[10] could be made additional to a term of imprisonment of no more than three months.[11] Their Honours held that s 36(2) of the Act permitted a Court to impose a particular combination of sentencing dispositions, but that, absent s 36(2), nothing in Part 3 of the Act would permit that particular course. Their Honours considered that s 36(2) was given ‘sensible opinion in relation to s 36(1). It permits the imposition of a combination of penalties in the case of an offence or offences in respect of which a community-based order appears to be generally appropriate.’[12]
[10]The statutory terminology for the forerunner to the community correction order.
[11]The power to impose a fine in addition to imprisonment is also dealt with separately in s 49 of the Act.
[12]R v Young (1995) 81 A Crim R 70, 72-3 (Crockett and Ashley JJ).
The Court of Criminal Appeal considered that s 36(2) of the Act could only be interpreted as referring to sentencing orders imposed as a result of a conviction in the proceeding before the court at the time.[13]
[13]Ibid.
Subsequent iterations of the Act[14] retained a provision similar to s 36(2) but the three-month qualification was ultimately altered to a two-year qualification.[15]This two-year requirement is now embedded in s 44(1) of the Act, but the requirement that the CCO be capable of commencing within three months of being imposed has been retained in a slightly altered form in s 38(2).[16]
[14]See Sentencing Amendment (Community Correction Reform) Act 2011 (Vic) assented to on 22 November 2011.
[15]See Sentencing Amendment (Emergency Workers) Act 2014 (Vic) assented to on 23 September 2014. See also Road Safety and Sentencing Acts Amendment Act 2012 (Vic) assented to 17 August 2012 which clarified, inter alia, that courts may impose a combined CCO and jail sentence irrespective of whether the offender is found guilty of one or more offences punishable by imprisonment.
[16]Sentencing Act 1991 (Vic) s 38(2): ‘Unless section 44(3) applies, a community correction order must commence on a date specified by the court that is not later than 3 months after the making of the order.’
The Court of Appeal in DPP v Leys and Leys[17] considered R v Young[18] when interpreting a previous iteration of s 44(1), and said:[19]
That s 44(1) is substantially identical to the amended s 36(2) and that the latter provision dealt with ancestral non-custodial sentencing regimes countenances a legislative will to ensure a consistency of interpretation.
[17][2012] VSCA 304.
[18](1995) 81 A Crim R 70.
[19]DPP v Leys and Leys [2012] VSCA 304 [152] (Redlich and Tate JJA and T Forrest AJA).
Section 44 of the Act is set out below:
44 Imprisonment and a community correction order
(1)When sentencing an offender in respect of one, or more than one, offence (other than an offence to which clause 5 of Schedule 1 applies), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 2 years or less.
(1A)When sentencing an offender in respect of one, or more than one, offence to which clause 5 of Schedule 1 applies, a court may make a community correction order in addition to imposing any sentence of imprisonment.
(1B)In sentencing an offender in accordance with subsection (1) or (1A) in respect of offences committed at the same time, the Magistrates’ Court must not impose a sentence that exceeds in the whole 5 years.
[Section 44(2) repealed]
(3)If a court makes a community correction order in respect of an offender in addition to imposing a sentence of imprisonment in accordance with this section, the community correction order commences on the release of the offender from imprisonment or, if the offender is released on parole, on the completion of the parole period (as defined in section 55(1) of the Corrections Act 1986).
(4)A reference in this section to a sentence of imprisonment does not include a sentence that has been suspended.
Although s 44(1) of the Act refers to deduction of any period of custody reckoned as a period of imprisonment or detention already served, the word ‘detention’ in this section is exclusively related to detention ‘under section 18’, that is, a ‘detention in an approved mental health service under a hospital security order’.[20]
[20]Sentencing Act 1991 (Vic) s 18(1): ‘If an offender is in respect of an offence sentenced to a term of imprisonment or to a period of detention in an approved mental health service under a hospital security order…’.
Counsel for the First Defendant did not seek to persuade the court that there was power for a YJCO to be combined with a CCO in respect of the same offence. The Second Defendant did not seek to be heard on the point.
The Plaintiff submitted that there may be an arguable case that a CCO could be combined with a YJCO if the YJCO was imposed on a separate charge or charges from the charge or charges that attracted the CCO, provided that the practical effect of the combined sentencing order was to permit the CCO to commence within three months of the sentence being imposed.
In this case though, the six-month YJCO was imposed concurrently with a CCO on charge 7. Similarly, YJCOs were imposed concurrently with CCOs on each of charges 10 and 11. It was beyond the power of the sentencing court to impose those orders. However, the sentences on charges 10 and 11 did not carry the additional vice of being incapable of being complied with under ss 38(2) and 45(1)(c) of the Act, because the YJCOs on each of those two charges were only a for period of three months.
Subsequent to handing down the sentence, his Honour was made aware of the jurisdictional problems with the sentence imposed, by a further mention of the case later on the same day of sentence.
His Honour referred to his express reasons for wanting to combine the two types of order, YJCO and CCO, and it was clear that his Honour wished to avoid exposing the First Defendant to imprisonment in an adult prison.
His Honour expressed his frustration with the circumstances brought to his attention by Ms Lewino. Evidently, he was concerned that young offenders such as the First Defendant were disadvantaged by being deprived of the same flexible sentencing option available under s 44(1) of the Act where imprisonment is imposed.
Whilst it may have been open to his Honour to correct his own sentence under s 104B of the Act when the anomaly was brought to his attention, his Honour was not minded to alter the sentence he had imposed, and adverted to the possibility that the matter might be subject to a judicial review proceeding in the Supreme Court, after much of the original period of detention at a youth justice centre had already expired. The circumstance that his Honour foreshadowed has come to pass.
The First Defendant has now served three months of the six-month YJCO imposed by his Honour.
In the result, the period of detention in a youth justice centre that the First Defendant has now undergone equates with the period of actual detention anticipated by his Honour, because his Honour was prepared to act on the likelihood of parole being granted before 22 February 2016 and so fixed the CCO reporting obligation based around that date.
It was submitted by the Plaintiff and the First Defendant that the substituted sentence ought to give effect to his Honour’s intentions regarding the disposition of the case. I agree with this objective insofar as it can be achieved whilst recognising the practical result of the effluxion of time which has rendered the imposition of a YJCO redundant at the current juncture.
In effect, his Honour’s intentions that the First Defendant undergo the rehabilitative and corrective benefit of a short period of detention at a youth justice centre have already been achieved. The preferred approach, therefore, is to substitute, on each offence, a 15-month CCO on similar terms and conditions to that which was imposed below.
I am empowered under s 104(1) of the Act to amend the sentence imposed by the learned Magistrate and substitute an order which is not inconsistent with the provisions of the Act.
In considering how the sentencing order should be amended to best give effect to his Honour’s intentions, whilst also resolving the aspects of the sentence which were beyond power, I have paid attention to his Honour’s sentencing remarks. I have also had regard to the materials that were available to his Honour in passing sentence,[21] as well as counsel’s written submissions on matters in mitigation, and am confident that the amendment to the sentence which I propose will result in the substitution of a broadly comparable sentence, and one which is justified in all the circumstances.
[21]Comprising First Defendant’s criminal record, police summaries of the charges, and victim impact statement, photographs and medical report of the victim.
I direct pursuant to s 104(2) of the Act that the substituted sentence will commence today.
The First Defendant has been re-assessed by Corrections Victoria as a favourable candidate for a community correction order according to an assessment report dated 19 February 2016. The First Defendant has indicated his consent to such an order.
I have taken into consideration, in amending the sentences passed by his Honour on 20 November 2015 and substituting a 15-month CCO, that the First Defendant has now undergone three months’ detention at a youth justice centre pursuant to those orders.
Because the YJCO has been removed, the First Defendant is capable of commencing the CCO on similar terms to those fixed by his Honour and there is no inhibition on the First Defendant to reporting to the Lilydale Community Corrections Office within two clear working days from today. He is currently at large, having been recently released from Malmsbury Juvenile Justice Centre. He will not be subject to Youth Justice parole supervision after today. However, he will be subject to Corrections Victoria supervision.
I note for the record that the First Defendant is now aged 21, and therefore too old for a YJCO.
In proceeding S CI 2015 06374, I make the following orders:
(a) The Notice of Appeal filed by the appellant on 17 December 2015 pursuant to s 272(1) of the Criminal Procedure Act 2009 is dismissed.
(b) No order as to costs.
In proceeding S CI 2016 00453, I make the following orders:
(a) An extension of time until 10 February 2016 is granted to the Plaintiff to file an originating motion pursuant to r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2015.
(b) Relief pursuant to the originating motion is granted. The convictions and sentences imposed by the Magistrates’ Court in Ringwood on the First Defendant on 20 November 2015 are amended and in substitution the following orders are made:
(i) the convictions are affirmed;
(ii) the orders for compensation of $218 and $374.05 are affirmed;
(iii) the forensic sample order pursuant to s 464ZF of the Crimes Act 1958 is affirmed;
(iv) the sentencing orders for detention in a youth justice centre on charges 7, 10 and 11 of case number 201517946 are removed;
(v) the community correction orders of 15 months’ duration that were ordered on each of the charges in case numbers 201416191 and 201517946 are re-instated on the same terms and conditions, however those community correction orders will commence today; and
(vi) the First Defendant must report to Lilydale Community Corrections Centre at 1/18 Clarke Street, Lilydale within two clear working days of today.
(c) No order as to costs.
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