Director of Public Prosecutions v Lewis (a pseudonym)

[2023] VCC 486

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY LEWIS (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2023
DATE OF SENTENCE:	28 March 2023
CASE MAY BE CITED AS:	DPP v Lewis (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 486

REASONS FOR SENTENCE

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Catchwords:              Attempt to Intentionally Cause Injury, resist police (indictable) Summary offences; unlawful assault upon mother and commit indictable offence on bail.  32 years of age at sentence.  After assault upon mother, police were called by her and attended and were confronted in the house by accused with weapon:  box cutter brandished at police.  Early Plea; Worboyes v The Queen [2021] VSCA 169 – short criminal history.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Gang	Ms S. McNeil Office of Public Prosecutions
For the Accused	Mr A. Vincent	Victoria Legal Aid

HIS HONOUR:

1Corey Lewis[1], you have pleaded guilty to one charge of attempting to intentionally cause injury to a police member (First Constable Jake Nash) as well as a rolled-up charge of resisting two police members (Senior Constable Nash and Constable Thomas Jewell).  You have also pleaded guilty to two related summary offences, being the assault upon your mother and one charge of committing an offence on bail.

[1] A pseudonym

2You are now 32 years of age and have a short criminal history.

3You spent 211 days on remand in relation to this matter before being admitted to bail on 27 January 2023.

4Attempting to intentionally cause injury carries a five-year maximum.  So too does the offence of resisting police.  The summary assault has a three-month maximum unless in the circumstances of an assault upon a female – which this one is – that period is inadequate, in which case there is a higher maximum available to the court.  That does not arise here, so I treat the maximum as three months.  The bail offence has that same maximum penalty.

Facts

5There is an amended summary of prosecution opening for the plea dated 20 March 2023.  This was read aloud by the prosecutor, Ms Gang, this morning and marked as Exhibit A on the plea.  I will sentence pursuant to that agreed summary, and for that reason, I will only briefly describe the factual setting in these, my reasons.

6After 6 pm on the evening on 29 June 2022, your mother returned to the family home at [address redacted] in Dandenong.  She was returning home from work.  Notwithstanding that, though, she then started to clean around the house.  She was cleaning the toilet, and you approached her from behind and asked her for money to buy cigarettes.  She said she did not have money and that you should get a job if you wanted money.  This was a pretty reasonable statement from someone who had been at paid work and was continuing work in an unpaid capacity around the home.  However, you became angry and started yelling and kicking doors.  You started to wave a box cutter around whilst you were yelling, and you scared your mother with this display.  She thought you were going to slash her.  You then pushed her and then stepped back and ran to your room.  Your mother was frightened enough to go to her room and to ring the police.  First Constable Nash and Constable Jewell attended, by which time you had left the house.  Your sister had in the meantime returned home.  The police searched the home and then tried to establish from your father what had happened.  As they were doing that, you then re-entered the house and demanded to know why they were there and to be shown a warrant.  They did not need a warrant, Mr Lewis.  They had been called to the house by your mother and had every right to be there.  Indeed, I will put it higher than that:  it was their duty to attend.

7They tried to calm you down and after multiple requests, you seemed to comply by sitting at the kitchen table.  However, it was there that you then very foolishly pulled out a box cutter, holding it in your right hand.  The police demanded that you drop it.  You stood up and again were told to put the weapon down.  You did not.  Instead, you pushed out the blade and walked directly towards
First Constable Nash, raising your right hand and pointing the blade as you did.  You were sprayed with capsicum spray and again asked to drop the knife, but again you refused to do so, and you were then tackled to the ground by the police and then handcuffed.  You were angry and were screaming and yelling, no doubt in part because of the effects of the capsicum spray which had been quite justifiably deployed.  Aftercare was provided to you by the police.

8You were interviewed by the police, and you were too frank, really, for your own good.  You admitted that you intended to cut the police and at times endeavoured to justify your actions.  You made some pretty extraordinary statements in that police interview, and they certainly were not made in jest.

9You were excluded from the home pursuant to a family violence intervention order, and that order persists.  As I have said, you spent a period of over 211 days on remand before being bailed by a judge of this court in January of this year on very strict conditions.

10So much, then, for what is really only a brief summary of the agreed summary in this matter, which, as I say, is marked as Exhibit A.  I will sentence pursuant to that document, supplemented by the photographs, which include photos of the box cutter.

Impact

11Your mother has made a victim impact statement where she almost pleads your case and I do not know if you understand that.  It is a very forgiving document.  She was obviously frightened enough to ring the police.  Constable Jewell has also made an impact statement.  He sustained a minor hand injury in the course of the struggle and the resisting, and he went for X-rays.  There were no fractures, just a bruised thumb.  Even without his impact statement, it would be expected that an incident such as this would, at the very least, be an unnerving experience for the police; that is, to be confronted at close quarters, as they were, by a man with a box cutter inside an unfamiliar house.  He describes the stress and anxiety that your conduct has produced.  He has played out this incident in his mind over and over and feels pretty fortunate not to have been seriously injured.  I take into account the impact of your crimes, as I am obliged to.

Plea in mitigation

12Your counsel, Mr Vincent, relied upon an outline of plea submissions dated 23 March 2023 as well as a psychological report from Ms Cokorilo.  There were a handful of other documents, including one from the Mental Health Advice and Response Service, one from the housing group and some documents relating to your engagement in the Nexus program.  There is also a letter from the Harvester Clinic and a letter from the Be Inclusive Group.

13Mr Vincent made submissions as to your personal background.  He told me about your background, including your relationship and drug history as well as your quite short history before the courts.  Some of this material was covered in his written submissions.  He made submissions as to your current position and your favourable compliance with your bail conditions.  He also addressed the objective seriousness of the offending.

14He argued that you had decent enough prospects of rehabilitation.

15He relied chiefly upon the following matters in mitigation:

·     your early guilty plea in the midst of the global pandemic;

·     the presence of some remorse;

·     the application of some of the principles from the case of Verdins[2] (in particular limbs 1, 3 and 5).

[2]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')

16He argued that it would be open to deal with you by way of a prison sentence in combination with a community corrections order, with the prison component equating to the time that you have served already; that is, he was arguing that I should not send you back to prison.

Prosecution

17The Director of Public Prosecutions, represented by Ms Gang, conceded that a combination-type order was open here and one not exposing you to more time in a prison.

Background

18Before dealing with the various submissions, I will turn to your background.

19I will do that quite briefly as there is no utility in my simply restating all that I have been told about you, and I have no reason to doubt what I have been told.  I act on that material, including the coverage of your background in the report of Ms Cokorilo and the written submissions.

20You were born in July 1990 in Afghanistan and so are now 32 years of age.  You remained in that country until you were about 13 and relocated with your family to Pakistan.  You have a younger sister.  You say that you have only vague memories of the war in Afghanistan.  You came to Australia as a
15-year-old, and you described to Ms Cokorilo your integration into this country as being quite easy.  Well, I doubt if it was.  The fact is, you give a different account to the senior nurse, as the MHARS document makes clear, and your account to Nexus suggests it was nowhere as easy as you describe.  I am not suggesting you are deliberately misleading anyone, by the way.  I note that you spent time in a refugee camp in Pakistan, and it is hard to imagine that being a pleasing time.  It really cannot have been a particularly easy background in your developmental years, and I do take that into account insofar as I am able to, including the matters raised in paragraph 17 of your counsel's written submissions, which I see no need to further describe.  You say you have had a positive relationship with your parents.  Plainly enough, though, in recent years, there have been serious issues in that relationship, no doubt arising from your drug use and failing or strained mental health.

21I asked specifically and was told by your counsel that you are an Australian citizen, and you indicated you were in possession of an Australian passport.

22You were educated to Year 10 level but did not complete that year, and you have worked generally in unskilled capacities, including as a labourer, until early 2021 when, as I understand it, you ceased work altogether owing to your drug use.

23You have never really had a significant intimate relationship.  You have had serious mental health issues and I will say more about them later in my reasons. You suffer from a serious enduring mental illness, being schizophrenia, and you have had a number of admissions owing to your illness.  You also suffer from epilepsy.  No doubt illegal drug use is very problematic for one with those conditions.

24Drug use has been a problem for many years with a variety of drugs, including cannabis, opium, heroin and ice.

25You have a short criminal history comprising only a handful of appearances, including one for assault, for which you were placed on a good behaviour bond back in 2017.  Your counsel told me about three outstanding matters which are being dealt with by way of a consolidated plea at the Dandenong Magistrates' Court in May of this year.  This relates to three offences committed on different occasions in February and July 2021 and in May 2022, so a driving offence, a criminal damage and an assault.  None of them sound particularly serious.

26Your criminal history is not particularly important to my task.  It really does not inform my task at all.  You have done very well on bail, as the assembled documents make clear, including the letters from Nexus.  Mr Kelly Pickyard, the author of the letters, was present at court in the course of the plea earlier today.  The Nexus letters are, in fact, very encouraging.  You have stable accommodation and attend appointments and are engaging also with the local area mental health service.  That is a real positive.  In fact, the Nexus material speaks of your significant improvement even while you were being held in custody.  The materials placed before me disclose that you were not in optimum mental health upon being received into prison.  In fact, you were suitable for an assessment order under the Mental Health Act. See the MHARS letter and also the assessment order document that are filed before me.  You are now vastly improved and that is a good thing.

Plea of guilty

27I will turn to the matters raised on your behalf in the course of the plea conducted by Mr Vincent this morning, and I will do so quite briefly.  It is very late in the day, 4.35 in the afternoon as I am sitting delivering these reasons.

28You have pleaded guilty at the earliest stage and you have taken this early responsibility for your offending.

29As a result of your plea, the time, cost and the effort of a committal in the lower court or a trial up in this court have been completely avoided.  Witnesses have not been required to give evidence at all.  Your mother, for instance, has been spared that experience, and no doubt she would have found that quite a conflicting thing to have to give evidence against you.

30You have facilitated the course of justice in these ways.  Any guilty plea must be adequately rewarded and yours is, as I have said, an early one.

31Your guilty plea is worthy of extra weight for the reasons set out in the Court of Appeal decision of Worboyes v The Queen.[3]  A large backlog of cases has arisen in the course of the global pandemic over the last couple of years.  Your case was really never one of those cases in the backlog.

[3]Worboyes v The Queen [2021] VSCA 169.

32You get the heightened benefit of pleading guilty amidst the global pandemic, so I take these various matters into account in mitigation.  I also take into account that you at least co-operated with the police once you had calmed down in the course of the interview.  You answered the questions that they put to you.  I take that into account as well.  Your answers on occasions were bizarre, no doubt courtesy of your disturbed and disinhibited mental state on the day.

Remorse

33Your counsel argued there is some remorse present here, and he was referencing things that you have told him about how you feel about your conduct.  There were also some mentions of regret in the interview.  In the interview, you denied any assault upon your mother, but of course, it was that assault which started this whole sorry episode – your conduct, not hers.  In the police interview, you seemingly at times were trying to defend your so-called right to attack a policeman in your home, a stance which understandably stunned your interrogator.  Again, though, it is clear that you were not functioning well at the time of that interview.

34I have your early guilty plea, and a guilty plea is often, though not always, indicative of some remorse.  The problem is I have your more recent statements made to Ms Cokorilo in December of last year where you describe your conduct in paragraphs 48-53.  I cannot accept the account that you gave to her; it is entirely inconsistent with your guilty pleas.  You were not joking in the police interview, nor were you moving to surrender the box cutter.  I do accept that you were in a disturbed state at the time of the offence.  I have also got the assessment report that has come in from the community corrections assessment, and there are some statements in that which cause significant concern in terms of the presence of remorse or any victim empathy, actually.  The absence of remorse is not a feature of aggravation; the presence of remorse is a matter in mitigation.  To that extent, I have to be satisfied of it on the balance of probabilities.  As I say, I have here your early guilty plea, but I have a number of other statements – a mixture of statements, actually – sometimes hinting at some empathy and sometimes quite the opposite.  Ultimately, I am prepared to find the existence of some limited remorse in this case – remorse to be implied, really, from your guilty plea – and I take that into account in your favour.  It is certainly, on the materials before me, not particularly fulsome, if I can put it in that way.

Prospects of rehabilitation

35I turn, then, to your prospects of rehabilitation.  Your counsel submitted that you have relatively favourable or decent prospects of rehabilitation.  It is true that you have a quite minor history before the courts and no history at all of breaching court orders, as some people have.  He pointed to your efforts in custody and since being bailed.  I have spoken of those impressive things already, and they are still impressive notwithstanding the discussions we have had about this assessment report.  The support from the Nexus program has been of real value for you.  You are getting appropriate voluntary mental health treatment, you have housing support, and you have job and vocational training.  You have been contemplating a mature age cabinet making apprenticeship, it would seem.

36You have had long-term issues with a variety of drugs, and that sort of thing always casts something of a shadow over a person's future prospects.  However, despite that drug use, you have not been a regular before the courts, and that cannot be overlooked.  You have had a decent enough employment history over the years.  You have an enduring serious mental illness, and that represents, it seems to me, one of your greatest risks.  If that is not adequately treated and medicated, your risk of offending would increase.  That much is very plain to me.  Drug use – and by that, I mean illegal drug use – is the very last thing you should be engaging in.  You have spent some time in custody, and this was your first time in custody and I am sure that will play a role in deterring you into the future.  You did not find it easy in custody as a remandee, as the Nexus letters attest.

37Your prospects of rehabilitation will only be enhanced if you can abstain from illegal drugs.  I am told that you are at the moment.  I do accept that there are favourable prospects of rehabilitation in this case.

Expert report and other materials touching upon Verdins

38I take into account the various materials touching upon your mental health – not just the reports and letters, by the way, but also your presentation in the police interview and the fact of your obviously eroded state upon reception at prison.  It is simply not in dispute that you had and have schizophrenia.  You have had a number of admissions in the past, including treatment orders.  It is very clear to me that you were in a poor state of mental health at the time of the offending.  I do accept that there is a realistic connection between your mental illness and the offending.  There is obviously some contribution.  It could hardly be said that you were exercising appropriate insight and judgment.  In fact, it is plain that you were not.  There is much more I could say, and no doubt I could insert portions of the expert report or letters or even parts of your police interview into this section of my reasons to illustrate why I accept your counsel's submissions on this topic.  I see no need to do that as I do accept your counsel's submissions in this regard, referred to at paragraphs 18-21 of the outline.  There is some reduction in your culpability, some reduction in the weight given to general deterrence, and finally, I do accept that your condition elevates the burden of imprisonment. So I accept the Verdins arguments that have been placed before me here.  I take into account Ms Cokorilo's report and her opinions, including those as to your level of risk and, for that matter, your therapeutic needs.

COVID-19

39I mentioned that you were in custody and that you did not find it easy.  It was your first experience of prison and in the setting of someone with a mental illness.  Quite aside from that, though, I am sure that, owing to COVID-19, prison was a more stressful environment in the time that you were held there.  That was for 211 days leading into late January when you were released.

40No doubt there might have been worry about catching the virus in such a setting as that.  You would also probably have experienced the increased burden of quarantine or lockdowns on occasions.  There would probably have been the suspension to visiting and to the full range of courses and programs at least for some of the time in which you were held.

41I take into account the increased burden posed by the response to COVID-19 in the manner that I have briefly described.

General

42I will turn to some general matters.  I am required to take into account a large range of matters.  Those matters include the maximum penalty as well as the nature, gravity and impact of any crimes committed by you.

43It is conceded by your counsel that it was a serious crime to produce and brandish that box cutter, attempting as you did to cause injury intentionally.  This offence is, as I have indicated, laid as an attempt.  It is most fortunate that this act did not lead to any actual injury.  Had it done so, there could have simply been no question of avoiding a lengthier gaol term.  With only a few exceptions, prison in fact would have been mandated by the relevant provisions of the Sentencing Act dealing with injury intentionally caused to an emergency service worker on duty.  Of course, here, I am dealing with an attempt.

44There was not any planning involved here.  It was spontaneous offending arising in the moment and by a man who, I am satisfied, had reduced insight and was in a disordered state.  It appears from the materials that the box cutter was an item that you possessed for self-harm.

45No doubt you were surprised to return home and to find the police there, but they were clearly police members in uniform and they were there acting in the course of their duty.  They had been called to the house by your mother.  She had rung Triple 0.  Reflect on that for one moment.  Your mother was sufficiently scared of you to ring Triple 0.  As to the assault upon her, well, you really should be ashamed of your conduct in assaulting your own mother, a good deal more ashamed than you appear to be.  You were treating her with disrespect and anger and then took it to a physical level, and that is totally unacceptable. An attack by a man upon a woman, that woman being your own mother, who was assaulted in her own house and felt frightened of you, her own son.  She now has a sense of guilt for calling the police.  As I said in her presence this morning and I say again now, she should feel no guilt at all.  You are the person who has created this situation, no one else.  It is you and you alone.

46As to the attack on the police member, the courts will not tolerate attacks launched upon police members who are acting in the course of their duties.  The police must be supported by the stance taken in the courts in relation to such conduct.  You used a weapon.  You had produced it and refused to put it down and then spelt out your intent by standing and pushing out the blade and walking towards First Constable Nash.  It was incredibly dangerous conduct, Mr Lewis.  It could have led to a disastrous outcome for you.  Luckily, it ended without any injury to anyone other than a minor hand injury sustained by one of the members in the course of the resist arrest, when you were taken to the ground.  I do not lose sight of your reduced culpability arising from your impaired condition.  You were, as I have been told, on bail at the time.

47I am required to consider a number of purposes of sentencing.  One of those purposes is your rehabilitation.  I have reached a favourable view on that score.  You are doing very well, and interrupting your progress would not be a step taken lightly by any court.

48I am required to punish you for your crimes, but I must do that justly and proportionately.

49I must also denounce your conduct.  I do.  You should be ashamed of yourself for assaulting your mother and making the already difficult job of a police member more difficult and stressful by your conduct.

50I must pay some weight to specific deterrence.  By that term, I am referring to the need to deter you from offending in the future.  I am sure you have to an extent, already been deterred.  There can also be some moderation of this purpose owing to your very limited history before the courts and my relatively favourable assessment of your future prospects.  Community protection is in the same position.  There can be moderation of that purpose for those same reasons.  Community protection, in fact, is perhaps better served by maintaining your current engagement with a variety of services, rather than interrupting that progress by sending you back to prison.

51General deterrence relates to the need to deter other people, and that has a role to play when dealing with an assault upon and the resisting of police members on duty.  Though there is some moderation as a result of your mental health issues, it is still of some importance here.  Though you are plainly not the ideal vehicle for the full weight to be given to this purpose, it is not eliminated as a sentencing purpose.  This court must send a message loud and clear to others in the community who may consider offending in the way that you did.  They must be deterred, but as I say, there is some significant moderation owing to your mental health condition.

52I must pay regard also to current sentencing practices.  It is not a single controlling factor.

53I am sentencing you for your crimes.  No amount of looking at other examples of other sentences imposed in other cases or the sentencing statistics that are maintained can ever provide the answer to a court's sentencing task.  Other cases are not precedents, and statistics have inherent limitations. Nor is there any such thing as one correct sentence.  I am exercising a sentencing discretion in your case in relation to your offending.

Totality

54I am required to take into account the principle of totality of sentence.  I have taken a last look at the effect of the sentences imposed by the court to ensure that it is commensurate with your overall criminality.  These four offences were very closely related, obviously enough.  The assault on your mother led to the police attendance, and then you attempted to injure First Constable Nash and then resisted both police members as they tried to arrest you.  You were on bail at the time.  All of this conduct took place at a time when you were not in a good state of mental health.

55I have had you assessed for a community corrections order and have received back the assessment report.  It is not a prosecution exhibit, but I will mark it as Exhibit C, the report of Havovi Panthaki dated 28 March of this year.  You are judged to be unsuitable for such an order.  You are said to have a high risk of reoffending.  The report is not too impressive, and in this sense; I am not speaking of the author not being impressive; I am talking of your answers given in the course of the assessment.  Even making allowances for your level of intelligence, your level of immaturity and your mental illness, unmistakably, there are aspects of this report that are troubling to me.

56I have already spoken of the impact of the description by you of the nature of the offending.  There is a process of minimisation within the document that really mirrors that which can be found in Ms Cokorilo’s report and to some extent which can be found in the earlier interview.  At least in the earlier interview, you had the benefit then of labouring under the very fragile mental health that you were then labouring under.  There is no such excuse in terms of what you said to Mr Cokorilo or to the author today, so it is a troubling report in that respect.  But minimisation, as far as I can see, is not some basis for me to judge you to be unsuitable to place on an order such as this.  Lots of people minimise offending.  You will not be the first and you will not be the last, but as I say, it is not an impediment to placing you on an order.

57More troubling, though, is the description by you of your attitude to drug assessment and treatment, and there are some serious questions raised in this report about your willingness to participate in assessment and treatment for drug abuse and dependency.  You advised the writer that you did not wish to participate, and you are quoted within this report, stating:

‘Don't worry about drugs, that is not a problem for me… I don't want to do drug treatment, I don't have a drug problem.’

58Well, maybe you are speaking in the present sense, and of course, you were in custody for 211 days, and you have been on strict bail since January, and perhaps you are reflecting on what is hopefully the pleasing state of not being drug-dependent for several months.  However, it would be foolish for me to ignore the lengthy history of your drug use.  The fact is you were using heroin in the days leading into this offending.  That is referred to in the materials, and there is a significant drug history in play here in the setting of a person who has epilepsy and a person who has a serious mental illness as well.  The use of illegal drugs is contraindicated, as it made plain enough by Ms Cokorilo.

59So I do not pretend that I am deriving much comfort from this report.  I am not, and that is a result of the way in which you have discussed these things with the assessment officer.  As I say, even making allowances for a variety of things within your personal make up, and even making allowances for the fact that this was done over the phone, it was a pretty unsatisfactory performance by you in the course of this assessment.

60You minimised the offending, you shifted blame and saw yourself as a victim.  Maybe you have been a victim over the years – it seems that you have been in some aspects of your life – but I am dealing with this particular offending, and any assertion that you do not have a drug problem, if it is not simply driven by using the present tense – if you are describing the past history as not being problematic, then you are quite seriously mistaken.

61In any event, for the reasons that are set out in the report, you are judged to be unsuitable for such an order.  You were assessed as having a high risk of general reoffending, and it seems to me – and the prosecutor has made submissions, and so too has Mr Vincent about this report – that the reasons for the unsuitability are, firstly, the fact of minimisation and, secondly, the unwillingness to participate in drug assessment and treatment.  I have already spoken of the fact that the first of those things, the minimisation, ought not stand in the way of an order such as this.  The second aspect certainly would, and that is why I had some robust discussion with Mr Vincent about whether, in fact, you were consenting to an order, and I will ask you again in due course, and then we will see.  But Mr Vincent tells me that he has discussed briefly this assessment report with you, and you were saying you are prepared to engage with the treatment conditions, including a drug treatment condition.

62Well, I was a bit surprised to get this assessment report, but maybe I should not have been when I look at the similarities between what is in this document and what is in Ms Cokorilo’s report.  I have what I have, and it is not too pleasing to have this report, but it does not set to nought all the good conduct that you have engaged in.  Really, you are to be congratulated for engaging with the Nexus Group and getting your treatment, taking your medication and going through the vocational training as well.  You are a good tenant.  There are some significant positives, and they still exist and they have not been swept away by this assessment process.

63Your counsel is still arguing, as he was before lunch, that a combination-type order is open to me here.  He is conceding, by that submission, the inevitability of a prison sentence, but he argues that you have served sufficient time in custody, being the 211 days of pre-sentence detention.  He is urging the court to admit you to a community corrections order without exposing you to more time in prison.  The prosecution recognise some of the issues in terms of this assessment, but they do not challenge the availability of the outcome that is urged upon the court by your counsel.

64I have considered these submissions, including the submissions that have been made upon the receipt of this report.  Indeed, I have considered all of the materials that have been placed before me.  I do believe that it is open to me to place you on a community corrections order in combination with a term of imprisonment, and that is notwithstanding the judgment that you are unsuitable for an order.  The judgment as to your unsuitability does not bind the court.  What I have to do is to actually obtain an assessment report; that is a precondition to placing a person on an order.  I have done that.  I have this report.  There are some aspects of it that are not too pleasing, but having called for the report and received it, I have satisfied the legislative criteria within the Sentencing Act, and the judgment made by Havovi Panthaki as to your unsuitability does not impede me from placing you on an order such as this.  So I believe that such an outcome is open to me and does achieve the various purposes of sentencing.

65Now, you need to listen very carefully to me.  I know I have been talking for a significant period of time.  I can only release you on such an order if you consent. Listen very carefully to what I am about to say.  I am going to explain the order which I intend to make.  I will give you a chance to speak to Mr Vincent once I have explained the order so that he can ensure that you understand what I am proposing, and then I will ask you if you do consent to this order.  If you do, no doubt I will place you on it.  If you do not, I will have to strike out in a different direction.

Sentence

66So what I propose is that on the two indictment charges, as well as the two summary offences, I am going to impose an aggregate sentence of 211 days' imprisonment.  I hasten to add you have already served that 211 days, so there is no question of you returning to prison at this stage.  You have served 211 days.

67In addition, on those same four charges, I intend to convict you and admit you to an 18-month community corrections order.

Mandatory terms

68Now, you will get a copy of this document, and I am not going to spell out everything that is on the document and when you do get the document, you will see that these orders have mandatory terms. You are getting one, so they will apply to you, and you will see them listed on the document.

69The first of those is you must not commit, whether inside or outside Victoria, any offence which could be punished by a term of imprisonment, all right.  So you must stay out of trouble.  You must not break the law.  So for instance, I am sure you are not going to do so, but there is an intervention order in favour of your mother, protecting your mother and preventing you from going to certain places and addresses and within a certain distance of her.  If you breach that order, you are committing a crime punishable by a term of imprisonment and you would breach my order as well.  So the first thing is you stay out of trouble.

70You have got to report within two clear working days to the Sunshine Corrections office.  The address will be on the document. So you will need to report within two clear working days.  There will be a phone number on that document.  Ring the phone number, and they will give you further instructions as to how to actually report for induction.

71So the starting point, then:  no offending in the period of the order.  You must not commit an offence punishable by a term of imprisonment in the period of the order.  Another example would be if you were to use illegal drugs.  You can only use them by possessing them.  Possessing drugs is itself an offence punishable by a term of imprisonment.  That would breach the order as well.

72You must report to the Corrections office as directed.  As I say, you have got to report within clear two working days.  You have got to let them know within two working days of any change of address or job, so you do not just get up and move and tell them a week later.  You let them know where you are and what you are doing.

73You are not allowed to leave the State of Victoria without first getting permission to do so.

74You will see all those things on the document.  Just read it carefully.  You do not need to do it today, but I think you have an understanding as to the mandatory terms.

Special conditions

75Then there are going to be some special conditions, and these are tailored both to your needs and the needs of sentencing.

Supervision

76You are going to be under the supervision of Corrections for the period of this order; that is, for a period of 18 months.  So you have got to turn up where you are told to turn up, and you have got to be present when they tell you they are coming to see you, or turn up when they tell you to come to the office to see them.

Mental health

77There will be also a mental health condition.  It is a much longer condition than that but basically, it is a mental health assessment and treatment condition.  You must abide by any direction they give you in terms of mental health assessment and treatment, and it can include lots of things.  They are set out in the document.  What they say, goes.

Drugs

78There also will be a drug treatment and assessment condition.  You must undertake assessment and treatment, including testing, for drug abuse or dependency.

79So they are three of the special conditions that I am attaching to the order.

80I have considered whether I should impose some unpaid work.  That sort of condition is unmistakably punitive, and you speak of that in the actual assessment report, noting it would be more beneficial for you to acquire employment, and I agree with you, actually.  So you have already served 211 days in prison.  That represents significant punishment.  Unpaid work, which would be further punishment, would bring you into contact with other offenders.  I take the view that unpaid work is perhaps better avoided here so that you can avoid exposure to other offenders on a work team, and so that you can better concentrate or focus on your ongoing engagement with your mental health team and exploration of vocational training or job opportunities.  So I am not going to impose unpaid work, which is quite unusual in the circumstances of this case.

Ramifications of breach

81You have not had one of these orders before, and I have got to explain to you the ramifications.  I do not want someone consenting to one of these orders who does not know what can happen if they breach it.  You will know because I am telling you, all right.

82Firstly, if you breach any of the mandatory terms or any of the special conditions, then you will be committing an offence of breaching a community corrections order.  That itself is a criminal offence and would bring you back to court.

83The greater problem, though, is that if you come back to court in breach, I have to deal with the breach.  It will be me.  It will not be another judge.  There are very limited options open to a court when dealing with a person for breaching one of these orders, very limited options, and the most commonly utilised option is to cancel the order.  That sounds very attractive.  What could be better than cancelling the order?  And the answer is 'almost everything' because if you breach it, and I cancel the order, then I have to resentence you.  If I have to resentence you, you are back in the position of sitting in the dock, and if that occurs, you should have an expectation that you will receive a term of imprisonment, a term over and above the period that you have already served and likely one with a non-parole period.

84Of course, I cannot say exactly what I would do if I ever see you again on the breach of this order.  I hope you do not breach it.  I hope I never clap eyes on you again, and you probably hope the same thing.  But if you do breach it, what I would then do is do what I have done today:  listen to the matters that have been raised on your behalf and make judgments about the nature of the breach and the extent of your compliance, to work out what I must do under the provisions of the Sentencing Act.  But as I say, work on the hypothesis that if you breach this order, you are likely to wind up back behind bars.

85Now, let me just see whether I have adequately explained that.  Mr Vincent, do you take the view that I have adequately explained the order, or not?

86MR VINCENT:  Yes, Your Honour, I do.

87HIS HONOUR:  I mean, I have not dealt with some of the other things I sometimes mention.  Whatever he thinks about the offending, whatever he thinks about the police, whatever he thinks about who is at fault and who is not at fault or whether he should be doing testing or not, what he has got to do is to actually form a decent relationship with his Corrections officer.  That is his starting point.  If they ask him to do something, he does it.  So if they want him to do testing, he does it.  If they want him to get treatment, he is to go and do it.  It is not him saying, 'Well, I do not think I will do that'.  Well, he can do that, but if he does that, I will be dealing with him by way of breach.

88Just see if he consents.  Do you want to speak to him?

89MR VINCENT:  If I could, Your Honour, yes.

90HIS HONOUR:  Yes, do it in my presence, that is fine.

91MR VINCENT:  Thank you, Your Honour.

92HIS HONOUR:  Yes.

93MR VINCENT:  Thank you, Your Honour.  I have taken the opportunity to go through the details of the order.

94HIS HONOUR:  Yes.

95MR VINCENT:  I am instructed that Mr Lewis does consent.  I explained to Mr Lewis the consequences of the matters that you put but also the consequences of not complying with the order in terms of breach proceedings, resentencing on the original offending.

96HIS HONOUR:  Yes.

97MR VINCENT:  Mr Lewis had some questions about some of the mechanics, which I hope I have adequately explained.

98HIS HONOUR:  Yes, all right.  Anyway, your understanding is he consents?

99MR VINCENT:  Yes, Your Honour.

100HIS HONOUR:  So I will ask him in a moment and see if that is so.

101MR VINCENT:  Thank you, Your Honour.

102HIS HONOUR:  We will just wait for that order to be produced.

Disposal order under s9 of the Control of Weapons Act 1990

103There is an application made for a disposal order in this case. There is no opposition to the making of that order under the provisions of s9(1) of the
Control of Weapons Act.  I am satisfied that the grounds for the order to be made are satisfied and I will direct that the item referred to, which is the box cutter, be forfeited to the State and be handled in the manner described in the signed order.  I am announcing that in abbreviated format.

104We will just wait for that order and then we will get you to sign it and consent to it, Mr Lewis.

105Look, I will have this order just come down to the Bar table, Mr Vincent, and we will provide it to you in due course, Ms Gang, as well.  Just satisfy yourself that it mirrors my stated intention.  Does it seem to mirror the terms that I have described?

106MR VINCENT:  It does, Your Honour.  The only matter I do note – the address of Mr Lewis.

107HIS HONOUR:  Yes, yes, all right.  Thanks for raising that.  What is the current address?  I have got it somewhere, hold on.  I will dig it out.  [address redacted], is it?

108MR VINCENT:  I believe so, Your Honour.

109HIS HONOUR:  Does that sound right, Mr Lewis?  Is it - - -

110OFFENDER:  Yes, room [redacted].

111HIS HONOUR:  [room number redacted].

112OFFENDER:  [address redacted]

113HIS HONOUR:  [address redacted].  I am not sure what the postcode is for that, but anyway, Albion.

114OFFENDER:  It is 3020, Your Honour.

115HIS HONOUR:  3020, you reckon, all right.

116OFFENDER:  Yes.

117HIS HONOUR:  So [address redacted]. Other than that, though, it has what I was describing?

118MR VINCENT:  I believe so, Your Honour.

119HIS HONOUR:  We will just change the address on it, and then we will get that available for signature.

120MR VINCENT:  Yes, that seems in order.

121HIS HONOUR:  Grab a seat if you want.  We are just trying to wrangle the computer, and once we get this, we will have your client consent to the order.

122MR VINCENT:  Thank you, Your Honour.

123HIS HONOUR: We will have that order just come to you now, then, Mr Lewis.  We will get a copy of this for you once I have left the Bench, Mr Lewis, but you stand up, if you would, please.

124Do you confirm, then, that you have consented to this community corrections order?

125OFFENDER:  Yes, Your Honour.

126HIS HONOUR:  And you have signed this order?

127OFFENDER:  That is correct.

128HIS HONOUR:  And that is because you are consenting to entry onto this order and you understand the conditions of this order and what it involves?

129OFFENDER:  Yes, Your Honour.

130HIS HONOUR:  All right, thank you.  Well, as I say, I will get a copy of that made for you.  Have a seat, then, for a moment.

131As I have said already, this is a combination-type order.  It is 211 days prison in aggregate in relation to these four charges in combination with the 18-month community corrections order. 

Section 18 – Pre-Sentence Detention

132It is appropriate that I then declare that Mr Lewis has served that 211 days, and that s18 declaration is to be entered into the records of the court.

Section 6AAA

133I have also taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences, I would have actually sent you to prison for two years and four months. I would have fixed a non-parole period of 17 months, and that declaration under s6AAA of the Sentencing Act is also to be entered into the records of the court.

134I have made the disposal order already, and I do not believe that any of the other summary matters were uplifted to this court, so I do not think there is any need for me to make any further orders in relation to those.  It is just the two summary offences that I have sentenced in relation to.

135Are there any other matters, then, from either of you, or not?

136MR VINCENT:  No, Your Honour, I do not believe so.

137HIS HONOUR:  Anything from you, Ms Gang, or not?

138MS GANG:  Your Honour, my instructor has read the order that you printed out, and she agrees with the court and with my learned friend that the conditions are as Your Honour has stated them, so I do not need to see a copy of the order.

139HIS HONOUR:  Yes.

140MS GANG:  There is nothing else, thank you.

141HIS HONOUR:  Well, look, I am sorry we have sat so long into the day, but it was better to try to finalise the matter.  There was a bit of a hiccup when we got the assessment report back, but as I say, I will get a copy of that order, and there will be a copy for the parties and one for Mr Lewis.

142Have a careful read of that order, Mr Lewis.  It sets out what you must do and what you must not do.  Illegal drugs, it is a big ‘no’ to those.  If you use illegal drugs, you will breach this order, all right?  If you use illegal drugs, it will also impact upon your mental health as well, given that you are using other prescribed substances, and it is the very last thing that your experts would be suggesting you should be doing.

143So pretty much do what Corrections tell you to do.  If they tell you to turn up, you turn up.  If they tell you to go for an assessment and treatment or testing for drug abuse, you do what they say.  If they want to have you assessed for some sort of mental health assessment, again, you just comply.  Do not get into arguments with them.  Treat them sensibly.

144Hopefully, if you do that, we will not see each other again.  But if you breach this order, we will meet again, and if we meet again, it is likely to have a far less happy ending.  You understand the ramifications of breaching this order.  You are likely then to be resentenced, and there is every chance that you would be then receiving a term of imprisonment with a non-parole period.  So just comply with the order.

145There is nothing else, so what I will do is adjourn the court in a moment.  What time are we tomorrow, then, David?  Are we nine?

146ASSOCIATE:  Nine thirty.

147HIS HONOUR:  Nine thirty tomorrow, then, thank you.

148MR VINCENT:  As Your Honour pleases.

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