Director of Public Prosecutions v Kaiser
[2023] VCC 2178
•17 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00078
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN KAISER |
---
JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May & 11 October 2023 | |
DATE OF SENTENCE: | 17 October 2023 | |
CASE MAY BE CITED AS: | DPP v Kaiser | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2178 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law – Sentence
Catchwords: Theft – armed robbery – obtain financial advantage by deception – mild intellectual disability – plea of guilty after sentence indication – Muldrock principles – Verdins – rehabilitation – Aboriginal heritage
Legislation Cited: Criminal Procedure Act 2009; Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Muldrock v The Queen [2011] HCA 39; Jawahiri v The Queen [2021] VSCA 287; Eser v The Queen [2021] VSCA 287; R v Verdins [2007] 16 VR 269; Carpio v The Queen [2019] VSCA 244; Thorpe v The Queen [2011] VSCA 346; Ward v The Queen [2011] VSCA 346
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Finnigan | Office of Public Prosecutions |
| For the Accused | Mr J. Barrera | Stary Norton Halphen |
HER HONOUR:
1John Kaiser, you sought a date for sentence indication at the initial directions hearing of your matter. An application dated 24 May 2023 was filed with the court. This document listed the charges subject of the sentence indication as theft of a motor vehicle, armed robbery, obtaining financial advantage by deception and handling stolen goods. Five summary related offences including drive whilst disqualified, going through a red light, commit indictable offence on bail, contravene a bail condition and unlawful assault were also listed.
2On 26 May 2023 I allowed your application for sentence indication and, pursuant to s207(1)(a) of the Criminal Procedure Act 2009,[1] I indicated that if you were to plead guilty to the above charges, I would impose a combination sentence including a term of imprisonment and a Community Correction Order.
[1] Criminal Procedure Act 2009 (Vic) s207(1)(a).
3Later that same day I was advised that you had accepted my sentence indication and you were arraigned on indictment N11942967 and pleaded guilty to the charges.
4Given the submissions made and the information that was tendered on the sentence indication hearing, including a very dated neuropsychological report I ordered several pre-sentence reports, namely from Disability Justice, Corrections and Forensicare. Your case was adjourned for plea until 28 August 2023. Due to an administrative oversight, the request for the Forensicare report had not occurred and your case was further adjourned until 11 October 2023.
5Today you formally entered a plea to the summary related offences and have admitted your prior criminal history.
CIRCUMSTANCES OF OFFENDING
6The agreed factual basis of your offending is contained in the summary of prosecution opening that has been marked as Exhibit A on your plea. What follows is a summary of that document. In the early evening of 31 August 2022, you stole a white 2007 VW Golf. The owner of the vehicle discovered his car was missing and reported the theft to police. Charge 1 – Theft of motor vehicle.
7In the evening of 3 September 2022, Mr Nicholson and his disability support worker, Mr Mabaso were walking Mr Nicholson's dog, Alabama.
Mr Nicholson was in an electric wheelchair.8At around 9 pm, Mr Nicholson and Mr Mabaso reached the driveway of
Mr Nicholson's building, when you pulled up in the stolen vehicle. You were with, Tykeisha Beasley, and Beau Higgins. All three of you got out of the car.9You said to Mr Nicholson 'You owe me $5,000. Where's the cash?’. Mr Nicholson said 'Fuck off. I don't even know you'. You were holding a knife, with the blade down your pants, which you then pulled out. This knife was about 30 centimetres long.
10Mr Nicholson moved his wheelchair back into the nature strip, where it became stuck, and he could not move any further. You stood over Mr Nicholson, pointed the knife to his face, and demanded money.
11Mr Mabaso took a step towards you, which prompted you to point the knife at him and say, 'Get the fuck back'. Related summary offence 16 – unlawful assault. You also pointed the knife at Alabama.
12You grabbed Mr Nicholson's dog and put her in the car through the driver's side door. You and Ms Beasley got back into the car, and you drove the car away, whilst shouting 'Give me 5000'. Mr Nicholson's partner had come out of the house and called Triple 0, and Mr Mabaso attempted to follow you in his own car. Charge 2 – armed robbery.
13You were on bail at the time of these offences, having been granted bail at the Ballarat Magistrates' Court on 27 May 2022. A condition of your bail was that you not associate with any co-offender, which included Ms Beasley. This is the basis of Related summary offence 13 - commit an indictable offence on bail and also related summary Charge 14, contravene a condition of bail.
14On 5 September 2022, two debit cards belonging to Tyson Perfect were stolen from the staff room of a business in Surrey Hills. The same day, you used one of the cards to make three purchases at an Australia post store, in the amounts of $57.95, $141.90, and $126.88. The total amount dishonestly obtained by you was $326.73. Charge 3 – Obtaining financial advantage by deception.
15On 6 September 2022, police officers were patrolling the Brunswick area in an unmarked police car, when they spotted you driving the stolen vehicle. Ms Beasley was in the front passenger seat. On 16 September 2022, you had been disqualified from obtaining any licence or permit for a period of 24 months Related summary Charge 3 – driving whilst disqualified.
16The police followed you, they witnessed you turn left through a red light. Related summary Charge 4 – going through a red light. Shortly after this, you got out of the car and tried to run away from the police, you were arrested soon after.
17You told the police that Mr Nicholson's dog was fine, and with your cousin in Coburg. You also stated that you were planning to return the dog to the owner later that day. From the information provided by you, police were able to locate
Mr Nicholson's dog.18The vehicle you were driving had stolen number plates. There were other things found inside the car by police, including: two stolen Victorian registration plates; a parcel addressed to another person that had been stolen from their home address; and a vehicle logbook containing documents including a tax invoice, that had been stolen from yet another person. Charge 4 – Handling stolen goods.
19The debit card you had used on 5 September, along with other items belonging to you, were found in Ms Beasley's handbag.
Nature and gravity of offending
20You have pleaded guilty to a total of nine offences that occurred over six days from 31 August 2022 to 5 September 2022. The offences before the court range in seriousness from the offence of armed robbery, which is punishable by a 25-year maximum, to a charge of going through a red light which is punishable by a fine of 10 penalty units.
21By far the most serious offence before the court is that of armed robbery. In your case you used a knife to threaten a vulnerable victim who was in a wheelchair walking at night in a public place. When his care worker intervened you threatened him as well and then stole the victim's therapy dog.
22No person was physically harmed during your offending and I accept that in circumstances where there was little evidence of planning involved the armed robbery you committed was opportunistic in nature. Further, when you were arrested you facilitated the recovery of the victim's dog, who was reunited with his owner unharmed.
23At the time of this offending you were driving a stolen vehicle, with false number plates and you were on bail. In addition, you were in company with your co‑offender in breach of a condition of bail, you were disqualified from driving and you ran a red light, creating a situation of danger. In the days following this incident you used a stolen debit card to obtain a financial advantage in the order of $300.
Victim Impact
24Three victim impact statements were tendered on your plea. The first of these was from Mr Nicholson. He described how his life has changed dramatically since your offending. He has withdrawn from society and is overly protective of his therapy dog, Alabama. Mr Nicholson has become a recluse and he does not see people or have any friends. He says he does not feel safe and he is lonely.
25Mr Nicholson's partner also completed a victim impact statement. She described that your offending has caused her relationship with Mr Nicholson to be a little up and down. Further she said that she does not feel secure in the area and as a result she is worried and scared to take her children to see her partner. This has had a negative impact on their relationship.
26Mr Mabaso described feeling anxious when he is out in public at night time as a result of your offending. He also described that he now has trouble sleeping and he found it difficult to continue his studies after what happened.
27In sentencing you I have taken into account the impact of your offending on
Mr Nicholson, Mr Mabaso and Ms Jorgensen.
Plea of guilty
28I accept your plea of guilty, although entered after sentence indication, was entered at an early stage. Your plea has a significant utilitarian value, in that you have spared the victim and other witnesses the need to relive what was a traumatic event by giving evidence. In addition, you have spared the court the time and expense of a trial.
29
I agree with the submission of your counsel that a plea of guilty in this period
post- pandemic should attract a more pronounced amelioration of sentence than at another time, due to the crippling backlog of cases before the court.[2] In the circumstances, I have given you a significant sentencing discount for your plea of guilty.
[2] Worboyes v The Queen [2021] VSCA 169.
30
Further, your plea of guilty is demonstrative of remorse and your willingness to facilitate the course of justice. Importantly, it shows that you have accepted responsibility for your offending. In addition, I note your expressions of regret to
Dr Davis.
Personal circumstances
31You are currently 29 years of age and you were 28 at the time of the offending.
32You grew up in Melbourne and you are the youngest of your parents' two children. You also have a half-brother and half-sister who are thirteen to fifteen years your junior.
33Your mother is of German and Aboriginal heritage (Wamba Wamba) and your father is of Greek descent. Your mother made some effort to connect you to her Aboriginal culture however this was unable to develop further due to your parents' separation.
34As a child, your home environment was chronically unstable and at times unsafe. You remember your parents being violent towards you and each other and they separated when you were about nine or ten years old. Subsequently, you spent some time living with your mother and her new partner. This relationship was also abusive and your mother's new partner was hostile and violent towards you.
35During your childhood and adolescence, your mother reconnected and separated several times from both your father and her new partner, both of whom also spent periods of time in gaol. You spent time moving between the homes of different family members. Around this age you report feeling angry and disillusioned and you began associating with the wrong crowd.
36You are now more or less estranged from your mother and siblings. Your mother lives in Wodonga but you have not spoken with her for an extended period of time and your relationship with her has been perpetually strained by anger and trauma.
37You were likewise estranged from your father for some time, but you reconnected about four to five years ago. You now have a more positive relationship with him and also your grandmother, who has offered her home as accommodation for you upon release from custody.
38You attended Melton and Hillside Primary Schools where you reported being 'no good' at reading and writing but you enjoyed art and playing football. Documents considered by Forensicare psychologist, Dr Michael Davis, note that you required some learning assistance in school though this conflicts somewhat with what you told neuropsychologist, Dr Loretta Evans. You report having few friends in school and being suspended on at least one occasion. After primary school, you had no further schooling besides a short period of time in a specialist education program at around age 13.
39You have a sporadic employment history which commenced in your teens and includes short periods of time working in installation, demolition, factory work, concreting and at a caravan business. You do not think you have ever completed a full year of work and you have often relied on Centrelink for income.
40You first commenced using drugs at 14 to 15 years old, first with cannabis which you eventually used daily in amounts of up to 3 grams by the time you were 15 or 16. About a year and a half prior to your remand you stopped as you felt it was not working for you anymore.
41You began using amphetamines and methylamphetamine at about 18 years old which eventually escalated to use of about 1.7 grams a day. To varying degrees you have used numerous other substances including MDMA, GHB, ketamine, cocaine, inhalants and benzodiazepines. You told Dr Evans in 2017 that you used drugs to 'kill the pain' and 'not care about the world' but you did not elaborate further on what kind of pain you were experiencing.
42You first drank alcohol at around 10 years of age, but you never felt that your drinking became problematic. However, Dr Evans noted in her report that other sources seem to suggest that you did have issues with alcohol use at some points in time.
43You explained to Dr Davis that upon being remanded you had gone 'cold turkey' and detoxed from methylamphetamine and you have not used anything since, despite being offered substances in prison. You expressed to him a strong disinterest in using substances in the future and that you have enjoyed your time being sober in custody. In March of this year you also participated in the Substance Awareness Program which provides drug education and abstinence strategies for people with cognitive disabilities.
44You report having one serious romantic relationship so far in your life and this relationship lasted for about 10 years. You have two children from this relationship who are now aged five and seven. This relationship has evidently been toxic at times, with intervention orders and DFFH involvement with the children. This partner is a co-accused in this offending and at the time you were prohibited by your bail conditions from associating with her.
45You report last seeing your children about one and a half to two years ago and you would like to see them in again in the future though for now you have accepted working on yourself in custody. It is unclear whether you will resume your relationship with their mother.
46Your prior criminal history dates back to 2014 when you were placed on a Youth Supervision Order for nine months for numerous driving related offences.
47You have significant relevant prior offending for property, dishonesty, bail and driving related offending. This is the first time you have been charged with an armed robbery offence, though you have committed violent offending in the past including assault, recklessly cause injury and assault with a weapon.
48Earlier in your history you were sentenced to a number of orders with a Justice Plan condition including in 2014, 2016 and 2017. Prior to this current offending you had received terms of imprisonment of several months in 2020 and February 2022; these were for violence, property and bail related offences. You were released into the community after these most recent sentences without supervision and supports.
49The current period of time you have spent on remand, which has been your longest, has been particularly difficult. You have spent several periods in isolation including seven days initial quarantine at MRC followed by a fairly lengthy period (23 September to 14 December 2022) in protective custody at Port Phillip whilst you were awaiting a place at Marlborough Specialist Unit for intellectually disabled prisoners.
50After you were moved to your current unit, you have taken up the opportunities which were made available to you to work and study. You have worked as a garden billet and completed a number of courses. Your counsel tendered a bundle of TAFE certificates you have completed and noted you have completed other programs in English, reading and writing and horticulture. Dr Davis noted in his report that you speak with pride about the 'new resume' you have been able to build for yourself in custody.
51You have also made an effort to connect with your Aboriginal heritage including speaking with elders and creating Aboriginal artwork on a weekly basis.
Intellectual disability and psychiatric history
52At your plea hearing today, your counsel tendered a neuropsychological report by Dr Loretta Evans dated 28 February 2017 which was prepared for the purposes of a plea for prior offending.
53Dr Evans' report noted that you had been diagnosed in 2012 as having an intellectual disability. Her assessment found that you had 'highly unsophisticated' reasoning abilities meaning you had limited insight into your actions and thought patterns and limited capacity to develop strategies about them. Further, she found you were prone to impulsivity and misunderstanding nuanced social situations and non-verbal cues.
54She did not note any diagnoses of mental health conditions except that you may be experiencing trauma from a recent stabbing attack and your negative childhood experiences of your mother seemed to be impacting your thinking and responses in certain situations.
55As this report was prepared several years ago, I requested an updated report which was prepared by Forensicare consultant psychologist, Dr Michael Davis. It was requested that the writer of the report further elaborate on the impacts of your childhood, intellectual disability and any other psychiatric conditions on your offending. You were assessed in person in custody on 22 September 2023.
56Dr Davis noted that you have had a longstanding diagnosis of intellectual disability of a mild nature which in his opinion was an appropriate diagnosis.
57In terms of mental illness, he believed you demonstrated sustained symptoms of anxiety noting that you described feeling that your anxiety had 'always been there'. In his opinion you met the criteria for Generalised Anxiety Disorder. He noted that in custody you had been prescribed the anti-depressant mirtazapine or 'Avanza' which you take at night. Though you did not meet the formal criteria for Post‑Traumatic Stress Disorder, Dr Davis opined that you were evidently still experiencing some trauma related responses from the stabbing attack of 2016.
58His opinion was that your anxiety and lowered moods occurred on 'a foundation of a maladaptive personality structure', in which he identified that you met the criteria for several sub-categories of personality dysfunction including borderline, obsessive-compulsive and anti-social. The severity of this dysfunction was, in his opinion, moderate to severe manifesting in a 'striking' degree of impulsivity, risk‑taking and sensation-seeking.
59Dr Davis concluded that you required ongoing psychological and alcohol and drug treatment which would be at its most crucial upon your transition into the community. Your treatment would need to be mindful of your intellectual disability and personality disorders. He further recommended psychiatric review of your current medication. He stated in his report that you demonstrated some insight into your mental health and drug issues, and you acknowledged that you needed support. Mr Kaiser, I am not sure how much of that you have taken in, but essentially what Dr Davis was saying is that because you have had a really rough time of things in your childhood, and you have had some really bad experiences, that has impacted on you and he thinks that you have got some anxiety, and he also thinks that you have got some problems with your personality, just because of what you have been through in the past.
Verdins
60At your Sentence Indication Hearing and in his written submissions, your counsel submitted that Muldrock principles should be applied in your case by virtue of your intellectual disability and therefore your moral culpability should be reduced.[3] He submitted that the question about the causal relationship between your offending and your mental impairment;
‘is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[4]
[3] Muldrock v The Queen [2011] HCA 39.
[4] Ibid.
61Mr Barrera submitted that your case should be seen in this way and that consequently not only should your moral culpability be reduced but denunciation and general deterrence should be moderated. He relied upon the cases of Jawahiri and Eser as further support for this submission.[5]
[5] Jawahiri v The Queen [2021] VSCA 287; Eser v The Queen [2021] VSCA 287.
62The prosecution submitted as at the sentence indication hearing there was an insufficient causal nexus identified in the report of Dr Loretta Evans for limbs 3 and 4 of Verdins to be applicable.[6] Specifically, Ms Addams submitted that the report did not address the potential impact of your intellectual disability on your behaviour at the time of the offending and that identifying its impact was further complicated by your drug use at the time.
[6] R v Verdins [2007] 16 VR 269.
63Though the prosecution agreed that the impact of your intellectual disability could be taken into account in a broad way, they submitted that there was insufficient connection to the offending illustrated in the report to moderate general and specific deterrence.
64Subsequently, the Forensicare report was ordered to further expand on these issues. Dr Davis stated the following;
[110] Mr Kaiser’s current offences can be seen as the behaviour of an intellectually disabled and personality disordered man, in the context of seemingly considerable substance use. It is perhaps likely that the pronounced sensation-seeking and risk-taking aspects of his personality structure are even more prevalent whilst he is abusing substances such as benzodiazepines and methylamphetamine. Mr Kaiser’s narrative for the offending indicates that he was considerably substance-affected for many days. Moreover, even though he claimed that the victim he confronted and threatened was his drug-dealer who had kept many of his possessions, his narrative still revealed little in the way of prior planning. It is unclear if Mr Kaiser was experiencing depressed mood at the time, but his intellectual disability, substance use disorder diagnoses, anxiety and personality disorder were present.
[111] In regard to the referral questions regarding Mr Kaiser’s childhood experiences and their effect on his psychological state and decision-making as an adult, it is my opinion that they have had a profound impact. While his intellectual disability cannot be blamed on these experiences, Mr Kaiser’s poor attachments, difficulties with anxiety and depressed mood, and his overall disordered personality are a consequence of the abusive and emotionally neglectful experiences of his childhood. Mr Kaiser appears to have been cortically under-aroused for much of his life, resulting in a strong desire for sensation-seeking and physiological arousal. This has manifested itself in pronounced substance misuse and considerable risk-taking behaviour. Coupled with his intellectual disability, Mr Kaiser’s decision-making skills have been seriously compromised.
65Your counsel maintained his reliance on Muldrock and submitted that your moral culpability for the offending ought be reduced and general deterrence moderated as a sentencing consideration. Ms Addams for the prosecution maintained her submission that a sufficient nexus between your intellectual disability, psychiatric history and the offending still had not been established. In particular she submitted that given the opinion of Dr Davis it was not possible to extricate the effects of your intellectual disability from your substance use at the time of your offending, and this therefore interrupted the requisite causal link.
66
On my assessment of the evidence, including the spontaneous and unsophisticated nature of your offending and more particularly the opinions of
Dr Davis, I accept that the principles in Muldrock apply and that Verdins limbs 1, 3 and 4 are enlivened in your case such that general deterrence and denunciation should be moderated. I consider that your cognitive limitations, your poor attachments, your difficulties with anxiety and depressed mood and your overall disordered personality that is a consequence of your abusive and emotionally neglectful experiences in childhood[7] exist independently from your substance abuse issues. Moreover, these factors appear to have resulted in your pronounced substance misuse and considerable risk-taking behaviour such that your
decision-making skills were seriously compromised. It is my view that these factors have clearly contributed to your offending.
[7] Despite the fact that Bugmy was not raised or relied upon by counsel for the defence
Rehabilitation
67Notwithstanding your prior history, your current risk assessment and your lack of engagement with disability services in the past, I have some optimism that you have matured and developed some insight during your recent and significant time on remand. I assess your prospects for rehabilitation as promising provided you take up the supports that are in place.
68You have now been abstinent from drugs for 406 days, albeit that you are in custody. You are working within the prison and have been in the Marlborough unit where you have participated in therapeutic programs that have been pitched to your cognitive abilities. Further, you have engaged in culturally appropriate programs and have connected with elders and engaged in Aboriginal artwork. You have significant supports in the community having reconnected with your father and grandmother. Also, you are now for the first time engaged with NDIS and have established good therapeutic working relationships with your NDIS workers whilst in custody.
69Importantly, when interviewed by Dr Davis you spoke of the desire to remain drug free and to work with services. In my assessment you appear to have some hope for your future.
Sentencing
70I consider the relevant sentencing principles that must be applied in your case are general and specific deterrence, albeit moderated as a result of my findings in relation to the application of Verdins,[8] denunciation, protection of the community and just punishment are also applicable. I must also be mindful of the principles of parsimony and proportionality. I am of the view that community protection in your case can best be achieved by your rehabilitation.
[8] R v Verdins [2007] 16 VR 269.
71
I have taken into account the sentencing guidelines referred to in s5 of the
Sentencing Act[9]where relevant to your case. I have also taken into account, as far as possible, the current sentencing practices for the offences, particularly the charge of armed robbery, to which you have pleaded guilty. I have considered the cases of Carpio, Thorpe and Ward referred to by the prosecution.[10] I do not consider these cases to be comparable to your situation. In Carpio the applicant had been charged with armed robbery and attempted carjacking and other offences.[11] He was on youth parole at the time of the offending. A youth justice report was unfavourable and there was evidence that whilst in custody he had been manipulative and had displayed a sustained pattern of resistance to therapeutic services. Thorpe and Ward were sentenced after trial for offending that involved a charge of armed robbery and also theft of jewellery valued at $130,000.[12] These factors alone are sufficient to distinguish that case from the circumstances of your case.
[10] Carpio v The Queen [2019] VSCA 244; Thorpe v The Queen [2011] VSCA 346; Ward v The Queen [2011] VSCA 346.
[11] Carpio v The Queen [2019] VSCA 244.
[12] Thorpe v The Queen [2011] VSCA 346; Ward v The Queen [2011] VSCA 346.
72In fixing the overall and individual sentences, including the orders for cumulation that I will announce shortly, I have had regard to the principle of totality and considered the entirety of your criminality involved in your offending.
Disposition
73So, Mr Kaiser, I now convict you of each of the charges and I sentence you as follows:
· In relation to Charge 1, theft of motor vehicle, I sentence you to 3 months' imprisonment.
· In relation to Charge 2, of armed robbery, I sentence you to 9 months' imprisonment and that is the base sentence.
· In relation to Charge 3, of obtaining financial advantage by deception, I sentence you to 2 months' imprisonment.
· In relation to Charge 4, handling stolen goods, I sentence you to 2 months' imprisonment.
· Summary related offence 3, drive whilst disqualified – 1 month.
· Summary related offence 4, enter intersection against red light – convicted and discharged.
· Summary related offence 13, commit indictable offence on bail – 1 month.
· Summary related offence 14, contravene conduct condition of bail – 1 month.
· Summary related offence 16, unlawful assault - 2 months.
74I order 1 month of Charge 1, 14 days of Charge 3 and 14 days of Charge 4 and 1 month of summary related offence 16 be served cumulatively on the base sentence. So, the total effective sentence is therefore 12 months' imprisonment and I declare that you have served 365 days by way of pre-sentence detention.
75In addition, on Charges 1 to 4, I intend to impose a community corrections order. You have been assessed as suitable for such an order. You are to be placed on a community corrections order for a period of 15 months from the date of your release from custody, which I expect will be in the near future if you are able to get bail on your outstanding Magistrates' Court matters.
76The conditions of the community corrections order include:
(a)Supervision and that you comply with the Justice Plan prepared by Disability Justice.
(b)I have also included Judicial monitoring. So it is not something I had anticipated but it is something I think would be good. So what I want you to do is come back and see me in about six months' time, because I am really interested to see how you are going, I really want you to do well and I just want to keep an eye on things. So the first judicial monitoring appointment will take place on 15 April 2024 at 9.30 am.
[9] Sentencing Act 1991 (Vic) s 5.
77So Mr Kaiser, some people come in to court if I have got them on judicial monitoring. Or sometimes they appear at Corrections with their Corrections officer, and we do it remotely on video, all right so - or you could do it from your phone.
78In addition to the conditions I have imposed, there are standard conditions of the community corrections order. The first and foremost of these is that you do not commit any other offences which are punishable by imprisonment for the next 15 months. You must also report to Reservoir Corrections within two working days of your release.
79You are required to advise your supervising corrections officer of any change of address where you are living and working and this must be done within two clear working days. It is a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of the community corrections officer. You cannot leave the State of Victoria without prior permission. If you do breach by reoffending, or if you do not comply with the conditions, you will be charged with contravention and you will be brought back before me and I might be required to resentence you on these charges. Okay, so you got all that? Yes.
80Do you understand what is required for a community corrections order?
81OFFENDER: Yeah.
82HER HONOUR: Yes? Do you agree to do a community corrections order?
83OFFENDER: Yes.
84HER HONOUR: Yes, good.
85In addition, in relation to Charge 1, that is the theft of motor vehicle charge, because I have convicted you I have to interfere with your licence, so your licence, if you have got one, which I do not think you do, but is cancelled and you are disqualified from obtaining a licence for three months.
86In relation to 6AAA of the Sentencing Act,[13] but for your plea of guilty, the sentence I would have imposed is 3 years with an 18 month minimum term.
[13] Sentencing Act 1991 s 6AAA.
87I order forfeiture of the VicRoads registration plates and the two mobile phones in the terms sought by the prosecution.
88Now is there anything further that I have missed?
89MS FINNIGAN: Your Honour noted PSD 365 days, but that was for the sentence indication date as I understand it. You did in your earlier remarks note that he had been abstinent for 406 days and we believe that that is the PSD to be true to today.
90HER HONOUR: Yes, so whilst I appreciate that but I have ordered a 12 month sentence. I have not actually given him the 406 days. I am only going to reckon the time that I need to satisfy my sentence.
91MS FINNIGAN: Yes. Thank you, Your Honour. Of course, yes.
92HER HONOUR: So good luck on the order and I will see you in April and yes, hopefully you are able to - all the things that you've been doing in custody I really hope that you can put them into practice in the community, because it seems to me that you have made some really positive changes and you should be really proud of yourself because I know it's not easy in custody. I probably don't know as well as you do but I imagine that it's difficult and you've made the best of a really bad situation.
93OFFENDER: Thank you.
94HER HONOUR: So yeah, good on you. Keep working with the services and good luck.
95OFFENDER: All right, thank you very much.
96HER HONOUR: All right, thanks everyone. We will adjourn.
- - -
0
5
0