Director of Public Prosecutions v LW

[2022] VCC 2146

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

LW

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2022 and 10 November 2022
DATE OF SENTENCE:	10 November 2022
CASE MAY BE CITED AS:	DPP v LW
MEDIUM NEUTRAL CITATION:	[2022] VCC 2146

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Sentence – repetitive breaches of supervision order –   indigenous offender – rehabilitation remains the primary consideration -

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:            DPP v SM; DPP v RNTA

Sentence:                 21 days imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr E. Dober	Office of Public Prosecution
For the Accused	Mr J. Barrera	Stary Norton Halphen

HIS HONOUR:

1LW, this is the third time I have seen you in recent months.  Each time the breach has been similar.  You will recall the first time that I saw you, there was great hope because your rehabilitation was surrounded by very significant social supports, family supports and also the finances to enable you to set yourself on a different path.

2I would not want you to think that hope offering a future of rehabilitation has gone, because of what has transpired over the last few months.

3I would ask you now to set yourself to rights, to take some control of your situation, to lean on your family and to move forward down that path of rehabilitation.  Most importantly it is in your interests.  It is also very much in your family's interests and they have continued to play a very important role at every sentencing hearing that I have conducted for you.

4I would also urge you to take that path because it is of great benefit to the community.  It allays the community's fears, it offers them protection, but it also offers them hope that you will become a contributing member of this community. 

5I want you, LW, to bear all those things in mind when the end of today comes, because it is not taking one giant leap that is required of you, it is to take one step, to take one day at a time and to do better each day.

6As I have said to you in the past, rehabilitation remains my primary concern for you.  It offers, in this situation, the best way forward to achieve all the sentencing aims: protection of the community; rehabilitation; and in time those prosocial factors will deter you from future offending.

7I have previously touched on the positive factors that surround you.  I cannot say this enough, but your family is an incredible support to you and once again I ask you to turn to them whenever things get difficult.

8Your financial situation is positive.  The hard work of Australian Community Support Organisation (ACSO) and Ms Jules Donovan is there for you to rely upon.  You have housing.  You have good clinical supports, and I consider those to be very important as well, given the report of Dr Michael Davis.

9And of course, when you have the opportunity, which on some view has been taken away from you; but when you have the opportunity to re-engage with your cultural connections, that will be important for you as well because I note how much pride you took in the artwork that you did, and ultimately you managed to sell to The Honourable Mr Kennett.

10I am mindful though of the value the community places on supervision orders, the importance those have for the community and the regime of deterrence and protection within the Victorian community.  I cannot overlook the fact that repeated breaches of supervision orders do not mean that you can avoid a period of imprisonment.  Breaches, repeated breaches, as counsel for the prosecution have put, are something which must be considered to be very considerable factors.

11Deterrence is both general and specific in your case and the sentence I impose has to reflect that.  I have considered as prosecuting counsel suggested, both the case of DPP v SM and DPP v RNTA.  Those cases weigh also in my consideration and particularly when I come to look at the fact that your breaches involve a use of an illicit substance, methamphetamine.

12As a result of the synthesis of all the factors that I must conduct, I sentence you to a period of imprisonment of 21 days.  I will reckon off that 21 days all have been served, and in particular I determine that there are 36 days of pre-sentence detention.  You are to be released immediately. 

13I will not impose a fine in this instance, given the offending that forms the basis of the charges against you.

14I will make the orders for forfeiture and disposal as sought.

15I will record the 6AAA discount that I would give in the following terms.  That but for you guilty plea at the very earliest opportunity, which has saved the community the cost and time of further prosecution of the defended charge, at 30 days.

16So, with those sentencing remarks concluded, and before we terminate this hearing, I will ask Mr Dober if there is any matters that remain outstanding?

17MR DOBER:  Not for the Crown, Your Honour.

18HIS HONOUR:  Thank you, Mr Dober.  Mr Barrera.

19MR BARRERA:  Nor for defence, Your Honour.

20HIS HONOUR:  Thank you.  Before I conclude this hearing, I would just like to thank both prosecuting counsel and counsel for the defence for their very helpful submissions and the way that they engaged with me during the course of the plea hearing, so I would like to thank them for that.  Otherwise, LW, I know family members of yours are watching online again.  My last comment to you is, in times of trouble turn to them.  With that said, I thank you all for your attendance today and I will have my associate terminate the links please, and adjourn the Court until 9.15 tomorrow morning.

21COUNSEL:  As Your Honour pleases.

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