Director of Public Prosecutions v Kempton

[2017] VCC 177

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01088

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY KEMPTON
RILEY ALLEN
DANIEL ADOLPH

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JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2017
DATE OF SENTENCE:	2 March 2017
CASE MAY BE CITED AS:	DPP v Kempton & Ors
MEDIUM NEUTRAL CITATION:	[2017] VCC 177

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For Accused Kempton	Ms A. Hennessy
For Accused Allen	Mr P. Ward
For Accused Adolph	Mr G. Balot

Pages 1 - 20

 

 

1HIS HONOUR:  Riley Allen, Daniel Adolph and Ashley Kempton, you can remain seated for now.  I am going to read my reasons for sentence and then formally sentence you.  I will ask you to stand then.

2Each of you are to be sentenced for one charge of recklessly causing serious injury.  The maximum sentence is 15 years' imprisonment. 

3You pleaded guilty before me on 8 February.  You each made admissions when interviewed by police on 27 July 2015.  Riley Allen and Ashley Kempton, you spoke to police and admitted involvement in the assault of Jayden Brook soon after, on 26 July. You all pleaded guilty after committal which went by hand-up brief on 24 June 2016.  The matter was then listed for plea hearing in this court.

4You receive the benefit of your pleas of guilty and a high level of co-operation, both from an early stage.  The evidence and materials before me indicated as to each of you genuine remorse. 

5At your plea hearings which ran on 8 and 9 February Mr O'Doherty for the Crown tendered a written summary of prosecution opening.  The
neuro-psychological report of Dr Peter Dowling dated 28 August 2016, photographs depicting the scene of offending and aftermath including injuries caused to Jayden Brook, a  folder containing medical material which includes hospital records relating to Jayden Brook, CCTV footage of part of the offending incident. That was played in court.  He also tendered medical reports of forensic physician Dr Angela Williams dated 9 November 2015 and dental surgeon Dr Jack Gershman dated 20 October 2016.  He tendered the victim impact statements of Karen Brook, the mother of Jayden Brook, Jayden Brook, Danika Pascoe,  his partner, Taylor Brook, his sister, and Harmony Rae Pascoe, his seven year old step-daughter.  Jayden Brook was not present in court. 

6Mr Winneke QC who appeared with Mr Allen for you, Riley Allen,  tendered a folder which included the psychological report of Matthew Barth dated
18 November 2016, correspondence related to counselling programs you have engaged in since the offending and a large number of letters of character reference.  He called you to give evidence and also called Laura Hutchinson, your partner, Beverley Hutchinson, her mother,  and Damian Pitt, your employer, to give evidence on your behalf.  Mr Winneke also provided a written outline of pre-submissions.

7Subsequent to the plea hearing I was provided with the neuro-psychological report of James Drury dated 20 February 2017.  That has also been tendered on your behalf.  On 27 February there was filed further written submissions.  There was also oral submission on this today. You were represented by
Mr Ward. 

8Mr Kowalski for you, Daniel Adolph, tendered your letter of apology to Jayden Brook and his family,  the letter of your employer Hayden Pike, that of your father, Owen Adolph,  and the psychological report of Dr Paul Grech dated
30 January 2017.  He called Mary Bassi of Mallee Sexual Assault and Domestic Violence Services,  but also the mother of a close friend,  to give evidence on your behalf.  Mr Kowalski provided a document headed personal background.

9Mr Dunn QC who appeared with Ms Tittensor for you Ashley Kempton tendered a folder which included correspondence and reports related to counselling programs undertaken by you, the psychological report of Peter Dowdy dated
21 November 2016 and a large number of letters of character reference.  He also tendered still shots of the CCTV footage tendered by the Crown.  Mr Dunn called you to give evidence.  He also called Robert Newton-Hughes, Brad Eaton, Tanya Chapman and your employer Sam Curran to give evidence on your behalf.  Mr Dunn provided written chronologies and an outline of plea submissions. 

10The written Crown opening comprehensively describes the circumstances of your offending.  My own summary may therefore be shorter. 

11My description and findings are also based on relevant parts of the depositional material to which I have been referred, medical evidence both tendered and within the depositions, the CCTV footage and submissions of counsel.  I have made such findings, applying the principles stated in R v Storey and like cases.

12In July 2015 you, Riley Allen, were aged 24, Daniel Adolph and Ashley Kempton, you were 23 and 25.  Jayden Brook was 19.  You three are friends, all at time of offending associated with a local Sunraysia Football Club.  On the evening and night of 25 July you were drinking at a club function.  When you were in Langtree Avenue, Mildura at about 1.50 am you were intoxicated.  You, Riley Allen and Ashley Kempton, were together.  You, Daniel Adolph,  were separate and had just been asked to leave a nearby nightclub called Dom's, I have presumed because of intoxication.

13Jayden Brook and his group of friends passed you, Allen and Kempton, in Langtree Avenue.  Jayden Brook was slightly separated from his group.  There developed a confrontation.  The reason is not very clear, nor important.  At and off the right edge of the CCTV film a scuffle occurs. The Crown opening describes some relatively inconsequential punches exchanged.  More significantly the film then shows Jayden Brook backing away from you, Riley Allen and you advancing toward him.  He moved onto the roadway.  In my opinion, which I stated at plea hearing and which was not challenged,  he was moving away defensively and posing no threat or danger.  He has no apparent interest in a fight.

14You, Allen, move toward him and throw a full blooded right hand punch toward his head.  It is not established whether this connected.  Jayden Brook seems to go toward ground and is still defensive.  The action then moves off - I am sorry, I will start that again.  The action moves off the left edge of the film.  You, Riley Allen, are still moving toward him.  Following you onto the roadway are Ashley Kempton and a member of Jayden Brook's group named Harrison.  They are walking close together.  Your assault, Riley Allen, has obviously continued.  At or very close to this point you, Daniel Adolph,  have come upon the situation.  You grab Jayden Brook from behind in a bear hug.  You, Riley Allen, punch him to the head.

15In your police interview Daniel Adolph you describe a short period of struggle before you feel Jayden Brook go limp and  to ground unconscious.  In your interview Riley Allen you admit to striking  "at the same time" as Daniel Adolph took hold of him.  I find that he was held for a very short time.  He was at the moment of your final blow defensive, very likely in fear and, in effect, defenceless.  I do not find beyond reasonable doubt that Daniel Adolph's hold and your blow were concerted and aimed at that situation.  Things at this point happened quickly. 

16At paragraphs 14 to 16 the Crown opening,  which I am told is an agreed statement of facts,  states as follows in respect of Jayden Brook's injuries. "As a result of the offending Mr Brook suffered serious injuries.  He sustained the following injuries:  (a) a laceration to the chin that protruded through the bone requiring sutures;  (b) a lower lip laceration;  (c) significant swelling to the right ear canal which was bleeding; (d) a fracture to the right side of the jaw,  in multiple pieces which was not in position and affected the jaw joint in front of the right ear;
(e) a fracture to the skull bone with a piece protruding into the ear canal.  Follow up treatment with EMT outpatient clinic at the Alfred on 11 August found that Mr Brook's right external auditory canal had narrowed by about 30 per cent due to the bony displaced fraction.  Further,  audiometry testing revealed a mild sensory neural hearing loss on this side which most likely causes the sensation of a blocked ear.  This is likely to be permanent.  Mr Brook also requires follow up consultations with an ENT specialist and may require follow up treatment.

17In August 2016 a neuro-psychological assessment of Mr Brook revealed a significant acquired cognitive impairment." 

18This is a reference to the neuropsychological report of Dr Peter Dowling.  That report is dated 28 August 2016.  He examined and conducted extensive psychometric testing of Jayden Brook on 5 and 6 August 2016. 

19Jayden Brook's injuries are variously described in the depositional material.  The relevant medical evidence states without conclusion that the two fractures may have been caused by one blow.  I do not find beyond reasonable doubt two separately caused fractures. 

20I find as follows. 

21You, Riley Allen, struck your retreating victim several hard blows.  You seem to admit at least two in your record of interview.  Other depositional evidence states more.  The Crown opening states a number of punches thrown.  Mr Winneke conceded about four punches.  As to these matters, it is sufficient to find that arising out of your attack upon him Jayden Brook suffered the injuries described and their consequences for him and his family. 

22You, Daniel Adolph, aided and abetted Riley Allen by taking hold of Jayden Brook.  You did so relatively spontaneously.  As stated, I do not find beyond reasonable doubt that you intended to hold him for the purpose of that final blow.

23You, Ashley Kempton, aided and abetted in your action of following the aggressively moving Allen onto the road to where the main and damaging assault occurred.  I do not find your earlier confrontation and involvement with Jayden Brook on the footpath to be part of that.  Your aiding and abetting was at a low end.

24The tendered victim impact statements describe the very considerable victim impact of your offending.  The four adult statements are dated in November 2016,  some 15 or 16 months after the night of your offences.  Jayden Brook was suffering ongoing pain anxiety and depression.  He described daily headaches and pain in his jaw.  He was daily taking painkillers.  Loud noises affected his ear.  Family relationships,  including with his step-children,  were affected.  There have been problems with sleep.  He anticipated further medical treatment for his jaw and hearing.  It is apparent that he has changed behaviourally.  His partner, Danika Pascoe, has seen marked changes in him.  His outbursts and loss of patience have created anxiety in her and have badly affected his once good relationship with her children.  She states that he is not the same person. His memory has been affected.  Danika Pasco feels anxious, hurt and frustrated.  She clearly fears for the relationship. 

25Jayden Brook's mother and sister have also suffered the effects of your offending and its impact on their son and sister.  Broader family relationships have been affected.  There has been financial impact.  People in the family feel irrational guilt.   The statements reflect the traumatic effects of the night,   the late night discovery seeing their partner and son in the damaged state he was,  the anxiety and concern related to his hospitalisation in Mildura and then by airlift to Melbourne.  Jayden Brook's sister also states the change in her brother.  The effect on his memory, the change in his personality.  She is anxious and pessimistic about the future.  The statement of Jayden Brook's young step-daughter reflects the same changes in him. 

26The neuropsychological report of Dr Peter Dowling states,  on the history of Danika Pascoe,  symptoms of memory problems, irritability, loss of patience, verbal aggression and physical aggression toward doors and furniture such that repairs have been necessary.   Jayden Brook has been able to return to work in excavation. 

27I am not complete.  As stated  there has been very considerable victim impact upon Jayden Brook and his family.  This must be taken into account in my sentence of you. 

28Each of you have no prior criminal history.  You have good work records, stable present employment and the evidence tendered and called on your behalf speaks highly of you.  Each of you have strong family and community support.  I see you as genuinely remorseful and each of you have addressed issues related to your offending. 

29Riley Allen you are now 25.  You were raised in the Mildura area, the eldest of three children.  After leaving school with Year 11 you completed an apprenticeship in plumbing.  You have been successful in that trade and ultimately you have become employed as a site supervisor at a Darwin mine.  You have also established a trailer sales business.  Your employer gave evidence and spoke extremely highly of you.  You have saved well and own three investment properties.  You are in a stable relationship with a young woman who also gave evidence before me. 

30Since the offending, you have taken positive steps to rehabilitation engaging in a men's behavioural change program, seeking psychological treatment and alcohol counselling.   Over time, you had engaged in binge drinking with friends.  I was told that you have not drunk alcohol since the offending.  Psychologist Matthew Bath diagnoses mild depressive and anxiety related symptoms reactive to your legal situation. 

31Daniel Adolph you are 25.  Your parents separated when you were very young and you have had no contact with your mother since 12 or 13.  Your father lives and runs his own landscaping business in Mildura.  You have a slightly older sister and two younger step-brothers.  You are very close to your sister.  Your mother with whom you lived until about eight was a drug user and neglectful.  You and your sister then lived and were raised in a settled, supportive way by your father and step-mother.  You left school at 15 to do a plumbing apprenticeship.  You have worked consistently, mainly in that trade, since.  You are a good sportsman playing senior football in the Sunraysia League at 15. 

32At time of offending you were also a binge drinker.  Since you have also not drunk and have received psychological treatment.  There has been alcohol and anger management counselling.

33You left Mildura because of the impact and community response to the offence.  I accept that you felt ashamed.  You live in Melbourne and work as a plumber there.  You earn good money. 

34The treating psychologist Dr Paul Grech reports depressive symptoms at least in part related to the offending and your legal situation. 

35Ashley Kempton, you are now 27.  You were born and raised in the Sunraysia area in a supportive family. You have two brothers, both over ten years older than you.  After school you became qualified as a carpenter and have also worked consistently.  Your employer gave evidence before me. 

36You live in a stable relationship with your partner and have built your own home.  You sold that to pay legal expenses of these proceedings.  However the proceeds of the sale have been restrained also arising out of these proceedings.  I heard evidence of your contribution to local charity and that you have spoken in an official way to younger members of your football club.  This has been about your situation and the dangers existing for heavily drinking young men this case so powerfully states.  The evidence before me stated that this will become a regular event.  You are also a talented sportsman and continue to play senior football. 

37Since the offending you have shown shame and remorse.  Evidence spoke of the change in your personality.  You have received alcohol counselling. 

38The psychological report of Peter Dowdy states that you suffer post-traumatic stress disorder symptoms or have suffered post-traumatic stress disorder symptoms for a number of years.  This has arisen at the death - sorry, this has arisen out of the death of a close friend killed in the well-known Cardross driving incident in which six teenagers died,   in 2006.  Your schooling was affected by this.  You have received treatment by Mr Dowdy.

39At plea hearing there were quite lengthy submissions about the nature and extent of Jayden Brook's injuries.  These submissions were put by Mr Winneke for you, Riley Allen, and were directed in large part at the question of whether there has been an acquired brain injury suffered.  It has come to be that there is filed and now tendered on your behalf a neuropsychological report seeking to respond to and challenge the report of Dr Dowling.  That is the report and opinion referred to in the earlier quoted paragraph 16 of the Crown opening. 

40As stated that opening was said at plea hearing to be an agreed statement of facts.  Prior to the plea hearing on 8 and 9 of February it had not been sought to challenge Dr Dowling's opinion by cross-examination and that has not happened. 

41I should say that it was flagged to me on 9 February that a further report may be sought by the defence and filed in the time between plea and sentence.  I have permitted the tender of this report.  It is by neuropsychologist James Drury and is dated the 20th February 2017.  Unlike Mr Dowling, Mr Drury has not examined or conducted testing of Jayden Brook.  He has had access to
Dr Dowling's August 2016 report.  I have also been provided with further defence submissions on this,  dated 27 February 2017. 

42Dr Dowling's opinion is that of an acquired brain injury reflecting left and right frontal lobe damage.  He states that Jayden Brook's behavioural symptoms and changes are consistent with this.  He also states psychological or emotional symptoms such as depression, reactive to your assault upon him.  Accordingly, there is a mix.

43As to prognosis, he states that improvement over the 12 months following this assessment is likely, perhaps more so in respect of the effects of the brain injury.

44Mr Drury states that an organic brain injury is unlikely.  Much of his opinion is based upon criticism of Dr Dowling's methodology.  For example, there is insufficient neurological evidence as to the extent of original head injury to justify a diagnosis of residual organic brain damage.  Towards the end of his report he seeks to explain behavioural symptoms as stated, for example, by Jayden Brook's partner in her victim impact statement and to Dr Dowling.  In my view he does so in a somewhat speculative and unconvincing way.  Part of that explanation relates to the possibility of psychological reaction to the assault and the physical injuries received.

45The further defence submission raises the principle stated in R v Storey.  I have some doubt as to whether that requisite standard of proof necessarily applies to the somewhat refined question of specific diagnosis or the conflict of opinion existing here.  However, I approach the matter upon the basis that as to the level of victim impact and consequences of your attack upon Jayden Brook I shall apply the standard of beyond reasonable doubt. 

46I make the following findings. 

47Jayden Brooks suffered serious physical injuries including fractures to his jaw and right side of the skull.  This has resulted in ongoing pain and the other physical consequences for him stated in the tendered victim impact statements.  I accept beyond reasonable doubt the descriptions of victim impact in those statements.  They are not challenged.  They are also consistent with Danika Pascoe's history to Dr Dowling. 

48I have set out those effects and impacts earlier in my sentence.  They amount, as I have said, to a very considerable victim impact.  That is unsurprising, Riley Allen, given the violence of your assault and the injuries you inflicted.

49I find the specific diagnosis or established cause of effects upon him as not so much to the point.  I see Dr Dowling's opinion as very likely correct; however, I do not find beyond reasonable doubt such persisting organic brain injury as he concludes.  I do find, beyond reasonable doubt, that the injuries and consequences described in the Crown opening, the depositions and victim impact statements genuinely exist and that they were caused by your assault.  I reject any suggestion that they have,  as somewhat faintly put by Mr Drury,
pre-existed the assault.

50I do not find beyond reasonable doubt that his symptoms will be permanent.  However, as at November 2016, they existed in a persisting and debilitating way.  That was 15 months after the offence. 

51The argument raised about the nature and level of victim impact was not put on  behalf of you, Daniel Adolph and Ashley Kempton.

52I address the following remarks to all three of you.  This was serious offending. As I have described, at or just prior to being seriously injured Jayden Brook posed no threat.  He was backing away and showed no desire to fight.  As also stated, he has suffered very considerable impact.  There has also been considerable impact upon his family.  This offence was violent and occurred in a very public setting.  A defence submission has referred to the panicked response of a young woman seen in the CCTV footage.

53In cases like this the sentencing considerations of general deterrence, your moral culpability, the need to sentence in a way to condemn what happened and to impose proportionate punishment are relevant.  General deterrence is particularly important.  Public violence resulting in serious injury and committed by young men who drink is seen to be a prevalent community problem.  People such as Jayden Brook and the public generally are entitled to protection.  Others should be deterred from alcohol fuelled violence. 

54I find that disparity also applies to this case.  Your roles in contribution were significantly different.  Those adverse sentencing considerations I have just identified apply to each of you,  but in varying ways. 

55Also as to each there are important and powerful mitigating or moderating factors.  They include the following. 

56(1) Your pleas of guilty and remorse.  Your evidence Riley Allen and Ashley Kempton, and your letter, Daniel Adolph, persuade me that it is very genuine. 

57(2) Your good character.  You have no prior criminal history and as to each the character evidence before me was very strong indeed. 

58(3)  You are still young.  Rehabilitation is thereby an important consideration.  In your cases, the prospects for that are very high.

59(4)  Related to that, you have each taken steps to address factors seen as contributing to what happened.  That includes binge drinking.  Perhaps not seen as problematic in young men who otherwise function well.  This night's events speak otherwise.

60(5)  You each have good family and community support. 

61(6)  There has been over 18 months delay since the offending.  I accept that this has been an anxious time and that, as stated, you have moved toward rehabilitation.  It has no doubt also been an anxious and distressing time for Jayden Brook and his family. 

62Ashley Kempton and Daniel Adolph, I am not going to send you to prison.  Rather, I am going to impose community corrections orders reflecting your respective criminality and the relevant sentencing considerations I have raised.  I have ultimately come to the view that the principles stated in the well-known case of Boulton and which was argued by each of your counsel apply to your case. 

63Your role, Ashley Kempton was at a low end.  Daniel Adolph, I found a lot of difficulty in your case.  Objectively viewed, it is hard to see that you would not have recognised Jayden Brook's plight as I saw it on the security footage.  Although your intoxication is not broadly mitigating perhaps it provides some explanation for why you did not see the palpable lack of need to do what you did.

64As earlier stated, I do not find beyond reasonable doubt that you acted with the aim of rendering him defenceless,  as he became. 

65I have also taken into account the provisions of s.5(4) of the Sentencing Act.  I state them now.

"A court must not impose a sentence that involves the confinement of an offender unless it considers that the purpose or purposes to which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender."

66Riley Allen, I am going to impose a sentence of imprisonment with a community corrections order to commence upon release.  It is in many ways regrettable in the sense that you present,  other than on this night, as an upstanding young man of high potential.  However, what you did in the circumstances of this night and its consequences both speak to the seriousness of your offence.  The need to sentence proportionately to that seriousness compels a period of imprisonment. 

67The personal factors I have earlier identified are strong in your case and have greatly reduced the length of prison sentence you should receive.  You are each found suitable for community corrections orders. 

68I sentence you as follows.  Stand up please, Riley Allen.

69Riley Allen, you are sentence to six months' imprisonment.  I also impose a community corrections order of three years duration upon your release.  The usual conditions apply, the additional conditions are that you perform work,
350 hours of unpaid community work over that time.  I impose conditions related to drug and alcohol treatment.  I impose conditions in relation to mental health treatment.  I indicate this to you - had you not pleaded guilty I would have imposed a sentence of three and-a-half years with a minimum terms of
18 months.  Sit down please.

70Daniel Adolph, I convict you and impose a community corrections order of three and-a-half years duration.  The usual terms apply.  The additional conditions are that you perform over that time 400 hours of unpaid community work, that there be drug and alcohol treatment and that there be mental health treatment. 

71It is not necessary, I think, in a case of imposing a community corrections order but in any event I indicate this to you that had you not pleaded guilty I would have imposed a sentence of imprisonment of 18 months with a minimum term of six months.  Sit down please.

72Ashley Kempton, I convict you and impose a community corrections order of two years duration.  The usual conditions apply, the additional conditions are that you perform over that time 250 hours of unpaid community work.  That there be drug and alcohol treatment and that there be mental health treatment.  Sit down please.

73Are there other matters that I need to ‑ ‑ ‑

74MR O'DOHERTY:  Yes, Your Honour.  There is some pre-sentence detention in respect of Riley Allen.  I think it is agreed it is two days.

75HIS HONOUR:  Two days?  I did not know that.  I declare under s.18, two days of pre-sentence detention.

76MR O'DOHERTY:  Kempton two days.

77HIS HONOUR:  Well, there is no need for Kempton.

78MR O'DOHERTY:  No, certainly, and that is it, Your Honour.

79HIS HONOUR:  If, as I have explained to both, to all three really, if there is a breach of the community corrections order they come back before me and then I would declare the period of presentence detention, I would not - I do not know that I would see any other alternative to imprisonment if they breach the community corrections order.   What else is there?  I said 300 hours of unpaid community work for Riley Allen, I think?

80MR O'DOHERTY:  Yes. 

81HIS HONOUR:  Yes.  Now, we need to go through the processes of the orders being printed out and read out and signed.  It is prolonged. 

82MR WARD:  Sorry, Your Honour.  There is some debate at the bar table.  A difference of 350 hours or 300 were mentioned.  I was wondering if you would be ‑ ‑ ‑

83HIS HONOUR:  Yes.  My recollection is that 300 hours for your client and
350 hours for Adolph.  I will just - I will just check it.

84MR WARD:  Thank you, Your Honour.

85HIS HONOUR:  No, that is wrong.  Did I say?

86MR WARD:  We think that you said 350 initially and then 300.

87HIS HONOUR:  Yes, I did and that is correct.  It is 350 hours of unpaid work for Allen, I am sorry.

88MR WARD:  It is 350, thank you, Your Honour.  I am sorry, Your Honour.

89MR BAGLOT:  And then 400 for Adolph.

90HIS HONOUR:  400 yes, for Adolph and 250 for Mr Kempton.  That is what I said at the time of sentence, I am sure, yes.

91Yes stand up please, Riley Allen.  I have imposed a community corrections order which is to commence or is to run for three hours commencing upon your release from imprisonment.  The usual terms are as follows:  that you must not commit another offence for which you could be imprisoned during that time.  If you did you would come back before me for re-sentence.  You must comply with an obligation prescribed by regulation that you do not attend any appointment or program affected by alcohol or drugs or in possession of illegal drugs.  You must report to and receive visits from community corrections.  You must report to community corrections within two clear working days of release from prison.  You will be contacted by them about that.  You must let community corrections know within two days of changing address or job.  You must not leave Victoria without getting permission from them to do so.  You must obey all of their lawful directions.  The additional conditions are that you over that time perform 350 hours of unpaid community work.  You must undergo assessment and treatment for drug abuse or dependency.  You must undergo assessment and treatment including testing for alcohol abuse or dependency.  You must undergo mental health assessment and treatment as directed.  Do you understand that?

92OFFENDER ALLEN:  Yes, Your Honour.

93HIS HONOUR:  And do you agree to the conditions?

94OFFENDER ALLEN:  I agree, Your Honour.

95HIS HONOUR:  I will get you to sign that.  Is there any reason why Mr Allen would not be taken into custody now?  I would allow, before I deal with the other two, I would allow those people who have come to support him to come to speak to him briefly before that happens.

96MR WARD:  Thank you.  Your Honour, could I - given that he will be taken outside, might I be excused to join those people?

97HIS HONOUR:  Yes, certainly.  If you would help supervise it.  It cannot be very long. 

98MR WARD:  No, I fully appreciate ‑ ‑ ‑

99HIS HONOUR:  I need to wait in court whilst it happens that is the program.

100MR WARD:  I will be responsible in that, Your Honour.

101HIS HONOUR:  Those people who have come to support him may speak to him briefly now.

102MR WARD:  I understand.  Thank you, Your Honour.

103HIS HONOUR:  It has got to happen in the court.  Where has Mr Ward gone?  Did Mr Ward misunderstand what I was saying? He has left the court?

104MR O'DOHERTY: We have got a security officer here, Your Honour.  The informant.

105HIS HONOUR:  What is being proposed here?  That he leaves ‑ ‑ ‑

106MR O'DOHERTY:  That is what it looks like; doesn't it?

107HIS HONOUR:  It does not usually happen that way but there are so many people I will allow it to happen.  Does that trouble you?  I do not think this man provides any security risk.  He can go outside, if you would not mind following and speak to those people outside. Am I right in presuming that they are the people that left the court?

108MR O'DOHERTY:  Yes.

109HIS HONOUR:  You can go outside and speak to those people.  It must be brief, I am afraid.

110OFFENDER ALLEN:  Thank you, Your Honour.

111HIS HONOUR:  Yes, you should go too. 

112(OFFENDER ALLEN LEAVES DOCK)

113HIS HONOUR:  In the meantime, Daniel Adolph, you can come out for the moment and sit behind your lawyer.  Would you stand up please?  I have imposed a community corrections order that runs from today for three and-a-half years.  The usual terms are as you heard me read out to your companion that you must not commit another offence for which you could be imprisoned during that time.  If you do, you will be called back before me to be resentenced.  Do not be fooled by the phrase "for which you could be imprisoned."  It does not require that you be imprisoned.  Most offences in our system carry with them a maximum sentence of imprisonment.  So even, for example, even for example, carrying a small amount of an illicit drug, methyl amphetamine, for example would mean that you come back before me, all right.

114You must comply with that regulation that you do not attend any program affected by alcohol or drugs or in possession of illegal drugs.  You must report to and receive visits from community corrections.  You must report to the relevant community corrections centre and for you it is at Dimboola Road, Broadmeadows, within two clear working days.  You must not leave Victoria without getting permission to do so and you must obey all lawful instructions of Community Corrections.  The additional terms or conditions are that you perform 400 hours of unpaid community work over a period of three and a half years as directed.   You undergo assessment and treatment including testing for drug abuse or dependency.  You undergo assessment and treatment including testing for alcohol abuse.  That you undergo mental health assessment and treatment as directed.  Now, do you understand that?

115OFFENDER ADOLPH:  Yes.

116HIS HONOUR:  And do you consent to it?

117OFFENDER ADOLPH:  Yes.

118HIS HONOUR:  I will get you to sign it.  Is that coming to a close out there?

119INFORMANT:  Yes, Your Honour.

120HIS HONOUR:  I will sign it now.  You can go in a moment.  Do not think I did not mean what I said. You were a very close run thing.  He may go now.

121MR BAGSHOT:  Yes, Your Honour.  May I be excused sir?

122HIS HONOUR:  Yes, thank you.  Would you come out of the dock Mr Kempton?

123(OFFENDER ADOLPH REMOVED)

124HIS HONOUR:  Now, I have imposed upon you Mr Kempton a community corrections order of two years with the following conditions:  That you do not commit another offence for which you could be imprisoned.  That you comply with that obligation about not being affected by alcohol or drugs or in possession of illicit drugs.  I was just - is the officer here?

125INFORMANT:  He is on his way back.

126HIS HONOUR:  All right.  Just take a seat for the moment.  You must report to and receive visits from the community corrections.  You must report to community corrections within 20 - sorry, two days - that is at Madden Avenue here.  You must let them know within two days of changing your address or job.  You must not leave Victoria without permission.  Now, up here that can be an ongoing arrangement but they will tell you what that means.  You must obey all lawful directions of Community Corrections.  The additional terms are that you perform 250 hours of unpaid work over the two years.  You must undergo assessment and treatment including testing for drug abuse or dependency.  You must undergo assessment and treatment including testing for alcohol abuse.  You must undergo mental health assessment as you are directed.  Now do you understand that?

127OFFENDER KEMPTON:  Yes, Your Honour.

128HIS HONOUR:  All right, I will get you to sign it.  Now, Mr Allen can be taken into custody now.

129(OFFENDER ALLEN REMOVED)

130HIS HONOUR:  Did I sign the Adolph one?  I did.  Now, is there anything else? You may go now.

131(OFFENDER KEMPTON REMOVED)

132HIS HONOUR:  Is there anything else I need to do?

133MR O'DOHERTY:  No, Your Honour.

134HIS HONOUR:  I will stand down.

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