Director of Public Prosecutions v Kanthaseelan

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR-15-01526

DIRECTOR OF PUBLIC PROSECUTIONS

SINNATHAMBY KANTHASEELAN

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JUDGE:	HER HONOUR JUDGE LEWITAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 July 2019
CASE MAY BE CITED AS:	DPP v Kanthaseelan
MEDIUM NEUTRAL CITATION:	[2019] VCC 976

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Davison
The Accused was not represented
For Shepparton Community Correctional Service	Mr D. McGuire

HER HONOUR:

Sinnathamby Kanthaseelan, on 18 December 2015, the County Court at Melbourne convicted you of one charge of aggravated burglary and sentenced you to a term of imprisonment of 11 months to be followed by a Community Corrections Order for a period of three years.
The Community Corrections Order commenced on 18 December 2015 and ended on 17 December 2018. On 2 March 2018, the Court cancelled the Community Corrections Order made 18 December 2015 was cancelled. On that day the Court imposed a Community Corrections Order for a period of two years commencing on 2 March 2018 and expiring on 1 March 2020.
It is now alleged pursuant to s.83AD(1) of the Sentencing Act 1991 that you have contravened the Community Corrections Order without reasonable excuse as follows:
(1) That you failed to notify a change of address of employment within two working days after the change;
(2) That you failed to perform unpaid community work as required on 14 occasions;
(3) That you failed to undergo treatment and rehabilitation as required on four occasions;
(4) That you failed to be supervised, monitored and managed as directed on three occasions.
Section 83AD of the Sentencing Act provides:
(1) an offender who is subject to a community corrections order must not contravene that order, unless the offender has a reasonable excuse
Penalty: 3 months imprisonment.
I find that you have contravened the Community Corrections Order imposed by this court on 2 March 2018. You are convicted of breach of the Community Corrections Order and fined $100.
Section 83AS of the Sentencing Act sets out the powers of the Court on a finding of guilt for contravention of a Community Corrections Order in the following terms:
(1) If a court finds a person guilty of an offence under section 83AD (in addition to sentencing the offender for the offence), the court must –
(a)vary the order in any manner set out in section 48M(2)(d), (e), (f), (g) or (h); or
(b)confirm the order originally made; or
(c)cancel the order (if it is still in force) and, whether or not it is still in force, subject to subsection (2), deal with the offender for the offence with respect to which the order was made in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence; or
(d)cancel the order and make no further order with respect to the offence with respect to which the order was originally made.
Section 83AS(2) provides that in determining how to deal with a person who has breached a Community Corrections Order, the court must take into account the extent to which the offender has complied with the order.
In a report dated 31 May 2019, Matthew Levett (case manager) Shepparton Community Correctional Services, concluded:
Mr Sinnathanpi is a middle-aged Sri Lankan male who came to Australia as a refugee. Mr Sinnathanpi is now a permanent resident of Australia and reports to be trying to build a future for himself, and his family who remain in Sri Lanka. Mr Sinnathanpi has always maintained some level of employment, largely dependent on seasonal work and a willingness to relocate, which also appears to be a significant contributing factor to his absences. However, despite the presenting challenges of language and continual relocation, Mr Sinnathanpi has completed the majority of the treatment on his CCO, with the unpaid community work remaining outstanding.
Whilst Mr Sinnathanpi’s circumstances are unknown at the time of writing it is conceded with the exception of the unpaid community work the therapeutic aspects of this order have largely been achieved. Further he has not come to the attention of police since this order was made. It is however a concern that this is the second opportunity that Mr Sinnathanpi has been afforded by the Courts to address his offending behaviour and again contravention has been initiated due to failure to maintain contact and failure to comply with conditions.
As indicated above this is a conditional contravention and with the exception of unpaid community work some gains have been achieved with respect to the therapeutic aspects of the Order. Unpaid Community Work for Mr Sinnathanpi presents a number of challenges, for both Mr Sinnathanpi and CCS. This notwithstanding it is the punitive aspect of the order and [sic] remains outstanding. Depending on Mr Sinnathanpi’s circumstances upon execution of the warrant and finalisation of the contravention, if the Court is minded to allow him a further opportunity to complete the unpaid community work aspect it would be respectfully recommended that CCS be permitted to undertake a further assessment to determine ability and understanding.
I have taken into account your plea of guilty and your submission that it was difficult to complete the work component of this order because you were living in a caravan and it was difficult to attend appointments because of the unavailability of transport. I propose to confirm the Community Corrections Order made 2 March 2018.
I order that the supervision of the Community Corrections Order be transferred to the Dandenong Community Correctional Services. You must attend the Dandenong Community Correctional Services at 46-50 Walker Street, Dandenong within two clear days from today. That is, by 4 pm on Friday 5 July 2019.
Are you able to attend the Dandenong Community Correctional Services within two clear days?
OFFENDER: (Through Interpreter) Yes.
HER HONOUR: I remind you that if you breach the order, you should expect to be brought back to court and dealt with for such a breach. You should expect to be imprisoned, perhaps be fined and perhaps other sorts of orders would be made if that occurs.
Do you consent to the confirmation of the Community Corrections Order?
OFFENDER: Yes.
HER HONOUR: I make the following orders. I find that you have contravened the Community Corrections Order imposed by the court on 2 March 2018. You are convicted of breach of the Community Corrections Order and fined $100. The Community Corrections Order made on 2 March 2018 is confirmed. I order that the supervision of the Community Correction Order be transferred to Dandenong Community Correctional Services.
Did you have something you wanted to say?
MR DAVISON: Your Honour, just a point of clarification. You mentioned the address, 41 Walker Street, within two clear days. Today being Tuesday, that would be Thursday, 4 o'clock. To report to Dandenong by Thursday.
HER HONOUR: All right. So maybe I will say three clear days. Yes. Anything else?
MR DAVISON: Within two clear working days will make it by 4 o'clock ‑ ‑ ‑
HER HONOUR: Within three clear days from today. Would that make it Friday?
MR DAVISON: That would, Your Honour. Yes.
HER HONOUR: Yes. Thank you. Anything else?
MR DAVISON: No, Your Honour.
HER HONOUR: Yes, thank you. So Mr Kanthaseelan, I have given you this opportunity to complete the working part of the component and I trust that you will do that.
OFFENDER: Yes.
HER HONOUR: Yes, thank you. If you could - does Mr Kanthaseelan have an email address?
INTERPRETER: Yes.
HER HONOUR: Or does he - perhaps he can leave his address with my associate so my associate can send a copy of this order to him.
INTERPRETER: Yes.
HER HONOUR: Thank you. I will leave the Bench. Thank you.

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[2019] VCC 976

2 July 2019