Director of Public Prosecutions v Manariti

[2011] VCC 2121

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-11-01068

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH MANARITI

---

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2011
DATE OF SENTENCE:	14 October 2011 & 18 November 2011 (Amended sentence)
CASE MAY BE CITED AS:	DPP v Manariti
MEDIUM NEUTRAL CITATION:	[2011] VCC 2121

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Sentence – Intentionally causing serious injury – Serious mental illness – Schizophrenia – Defence of mental impairment not open

Legislation Cited: Sentencing Act 1991
Cases Cited:  R v Verdins 169 A Crim R 581

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. P. Hannan	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused	Dr D. G. Lyon, SC	Tony Issacs

HER HONOUR:

1   Joseph Manariti, you have pleaded guilty to one charge of intentionally causing serious injury, which has a maximum penalty of 20 years' imprisonment, and you have also pleaded guilty to the summary offence uplifted to this court of breach of intervention order, which has a maximum penalty of two years' imprisonment. 

2   Your offending was opened by the Crown as follows.  The victim in this matter was a Frank Mascari.  He owned the Piccolo Fiore Cafe at 37 McFarlane Street, East Keilor.  He is your second cousin.  I was told that there had been a feud between you and the victim arising out of the victim being assaulted by you in November 2010 across the road from his cafe.  The matter was reported to police, but no charges were laid; however, the victim obtained an intervention order on 17 November 2010, which prohibited you from assaulting, harassing, following or approaching the victim.  At the time of the offending for which I now sentence you, the intervention order was current and also provided that you not attend the cafe owned by the victim.

3   At about 8 am on 25 January 2011, the victim drove on Milleara Road, East Keilor, and saw you drive past him in the opposite direction.  He saw you perform a U-turn so as to follow him.  The victim turned off a side street, whilst you continued on.  The victim called triple O to report a breach of the intervention order.  He spoke to police at Avondale Heights Police Station.  At about 10 am on that same morning, the victim was at his cafe behind the counter when he heard the door open.  Shortly thereafter, he discovered it was you who had entered and that you were standing next to him behind the counter. 

4   Without warning, you punched the victim to the left side of his head with a closed fist.  The punch connected to his left-eye area.  You then punched the victim a further number of times before he fell to the floor.  You continued to punch him whilst he was on the floor in a helpless state.  You kicked the victim to the head, which impacted between his eyes on the bridge of his nose.  An employee at the cafe, Ms Matthews, described the punching and kicking as continual.  She said the force of the punching and kicking was very hard and that blood was going all over the place.  Ms Matthews called the police and called for help from passers-by.

5   Mr Geoffrey O'Donnell entered the cafe and witnessed what you were doing.  He tried to intervene and tried to take hold of your belt in order to stop the attack.  You stopped punching and kicking the victim, jumped the counter and ran out.  You did not say anything during the attack.  Police and ambulance arrived.  The victim was taken to the Royal Melbourne Hospital.  Ambulance officers observed that the victim was bleeding from the nose, that he was suffering pain to the left temple, had a lump to the back of the head and pain to the knee.  Physical examination at the hospital indicated peri-orbital swelling and bruising and a sub-conjunctival haemorrhage to the left eye.

6   A CT scan revealed a fractured left maxilla and orbit, a mass around the left optic nerve and a protrusion of the eyeball.  Photographs of the crime scene and of the victim, taken both on the day of the attack and subsequently, were tendered on the plea.  You were interviewed by police the following day and made "no comment" answers to the allegations.

7   The offence of intentionally causing serious injury is indeed a most serious crime, as is reflected by the maximum penalty.  The objective seriousness of your offending is significant.  You attended the victim's cafe and physically attacked him relentlessly, apparently perceiving that he had made a false accusation against you in respect of an intervention order breach.  The attack was vicious and sustained, and perpetrated upon your second cousin in circumstances where he was completely defenceless. You did so knowing you were in breach of an intervention order, but apparently the fact of this order did nothing to dissuade you from your violent course of action.

8   On the plea, Dr Lyon, SC, relied on a statement made by your brother Frank Manariti, which was composed on or about 15 June 2011.  Dr Lyon said that the reason you attacked the victim was that your brother had informed you that the victim had reported you to police, complaining that you had followed him in the car, in breach of the intervention order.  It was submitted that this caused you to become upset, as you felt the victim had made a false accusation against you to the police.  According to you, you had been at your parents' home earlier that morning, having travelled from your house in Mill Park to East Keilor, but your parents were still in bed, and so you did not converse with them.

9   I was told by Dr Lyon that you paced around in the backyard and he agreed that you would report it to Dr Lester Walton, consultant psychiatrist, that you recall pacing about in the backyard early in the morning before departing for work, convinced that the victim was after you.  It was accepted that your parents' home is in very close proximity to the victim's cafe. You told Dr Walton that you drove off with a view to purchasing petrol, realised that you did have enough and then executed a U-turn with a view to continuing to work, which you did.

10    You denied that you followed the victim.  Dr Lyon said that you continued on to work and, having been told by your brother about Mr Mascari reporting matters to police, you then left work after some rumination and attended the victim's premises, apparently in order to speak with him.  It would appear not to be in dispute that you did not speak with the victim or even attempt to, but rather you attacked him very soon after entering the cafe.  In deciding to visit your second cousin, you travelled from your workplace in Bundoora, all the way back to East Keilor. 

11    Dr Lyon seemed to suggest that it was an unfortunate coincidence, perhaps, that on the very morning that you were pacing the backyard of your parents' house, convinced that the victim was after you, that you happened to perform a U-turn on the road after just passing him, but that this had nothing to do with following him.  Rather it was because you had realised that you had enough petrol to get to work, according to you.

12    Mr Manariti, despite your mental health difficulties, you are a man of normal intelligence and I must tell you that I find your account of matters most troubling.  I strongly suspect that, having ruminated about the victim in the backyard of your parents' home, you did attempt to follow him, which then gave rise to the ensuing phone calls from your brother and your ultimate attendance at the cafe.  In any event, as I understand your position as conveyed by your counsel, Dr Lyon, it was a combination of your earlier ruminations at your parents' place and the phone calls which then led to you attending the victim's business premises.

13    Although I am rather dubious about your stated reason for attending - that is, that you attended in order to speak with the victim - I am not satisfied beyond reasonable doubt that you engaged in any particular pre-planning or attended the cafe with premeditated intent to assault Mr Mascari.  You have one prior court appearance on 11 November 2009.  You were convicted and placed on a twelve-month community based order in respect of the offence of recklessly causing serious injury and the offence of unlawful assault.  Those convictions pertain to an assault which you perpetrated upon a concreter working for your father and the concreter's son.

14    The offence of recklessly causing serious injury arose when you were not happy with the work of the victim on a building site and gratuitously punched him repeatedly.  You also assaulted his son.  The community based order must have been completed on 10 November 2010 in relation to those matters, by my calculation; however, it has not served to assist you in not re-offending, it would appear.  Those incidents occurred in April 2008.  It would appear that very shortly after the twelve months had expired on the community based order, the intervention order was imposed upon you, with your consent, concerning Mr Mascari.

15    It was only about two months later that you committed the offences for which I now sentence you.  The prior alleged assault concerning you and Mr Mascari was not subject of charges.  The intervention order was made with your consent on the basis that nothing was admitted.  Therefore I take this prior matter into account only insofar as it gives rise to the making of an intervention order against you.  That is, I do not treat this prior alleged incident as anything more than an allegation, as it is not any part of your criminal record, nor any admission by you.  The relevance of it is that, following an alleged incident concerning you and the victim, an intervention order was put in place, which order you breached by attending the cafe and attacking the victim on 25 January 2011.

16    Mr Mascari has provided a victim impact statement in this matter.  He referred to the fact that his left eye has been affected by what you did to him and that he still suffers with lingering headaches and double vision.  He suffered bruising and swelling on the nose, chest and his dentures were broken.  He has been unable to return to his business, as he is not confident enough to do so, which has meant that he has had to replace himself with two staff members.  His business has been run down because he has been unable to attend it and because of the cost of the staff member replacements.  His own personal income has suffered as a result of this.  He also has dental and eyewear bills, which have impacted on his financial situation. 

17    He says that he is still paranoid about returning to work or simply going from place to place, as he does not feel safe and fears you harming him again.  His victim impact statement shows the very real consequences of your actions and, if your good friend Ms Martin is right that you are a caring and beautiful person, as she said you were, you should appreciate the dreadful harm that you have done to Mr Mascari.  I have difficulty in accepting that you have exhibited a true appreciation of this, notwithstanding Dr Walton and Ms Martin indicating that you have expressed remorse. 

18    Whilst you clearly have an appreciation that what you did was wrong, I note that you told Dr Walton that the victim tried to intimidate you by driving past, and you dislike him and do not want to bump into him.  You further told Dr Walton that you were aware that what you did was wrong but said, to quote you according to him, "But it didn't bother me, I was that angry."  Although you also told Dr Walton that you were upset about what you had done.  On the other hand, even with the benefit of your current medication regime, you have a low level of persisting paranoia regarding the victim and his attitude towards you. 

19    In all the circumstances, I accept that your pleas of guilty and expressions of remorse give some indication of you being sorry for what you have done, but I am not convinced that you are genuinely remorseful for the harm that you have caused the victim, or have developed appropriate insight about this, which would appear to be tied up with the underlying difficulties that you experience in terms of your mental health, I must say.

20    I take into account your early plea of guilty, which entitles you to a significant discount in the sentence that you would otherwise receive.  Your pleas of guilty have saved the witnesses, particularly the victim, the time and trauma of giving evidence in contested proceedings, and you have also saved the community the time and expense of contesting these matters.  I take into account your background.  You come from a loving family.  Your twin brother Frank also suffers from schizophrenia, having been diagnosed with his condition before you.  You were born and raised in the East Keilor area and successfully completed year 12.  You then attended Footscray TAFE between 1990 and 1992, completing an associate diploma in civil engineering. 

21    This qualified you to become a draftsman in the construction industry.  You worked as a draftsman between 1993 and 1999, after which you fell victim to your illness.  But despite this, you were able to work as a casual labourer for five or six years.  You were able to return to drafting in July 2009, working on a contract basis.  You apparently enjoy your work and appear to be most competent.  You work in Bundoora alongside five engineers.  You prepare drawings to the engineer's design and work from architects' plans, with your drafting submitted to the engineers to determine the load strengths of beams and materials to be used in a particular project.

22    You have a small circle of friends and, in a bid for independence, you moved from your parents' home in November 2010, taking in a boarder or a person to share your residence in February 2011.  The share arrangement is something which you enjoy and you are able to meet half of the expenses involved in the running of that household.  Moreover, your housemate provides some company, which was a difficulty for you before the share arrangement was put in place.  You and your housemate occasionally socialise together and, from your perspective, this arrangement and the fact that you have held continuous employment in a responsible position for over two years is seen as an enormous achievement.

23    You express the hope of one day forming a meaningful relationship and starting a family.  I was referred to the reports of your treating psychiatrist, Dr Simon Jones, dated 6 November 2009, 3 June 2011 and 14 September 2011, as well as the report of Dr Lester Walton dated 6 September 2011.  There is evidence from Dr Jones's first report that you were diagnosed with schizophrenia in February 2000, after experiencing psychotic symptoms, of paranoid delusions and auditory hallucinations for twelve months prior to this.  I was told by Dr Lyon that you had presented for treatment of your own accord, having realised that you were experiencing symptoms similar to those you had seen in your twin brother, which had been previously diagnosed.

24    It would appear that you have been exemplary in pursuing treatment and abiding by your medication regime.  You have been managed by regular appointments with doctors and a case manager, and treated with clozapine since March 2007.  Dr Walton indicated in his report that clozapine is medication of last resort in dealing with a condition such as yours.  In April 2008 your offending occurred in the context of your blood levels of clozapine being low.  In his report of 6 November 2009, Dr Jones indicated a concern that you have trouble with impulse control and intermittent aggressive behaviour.  You initially self-medicated with marijuana and alcohol use, using both substances in approximately 2005 or 2006.

25    Dr Jones reported that in April 2008, following your offending on that occasion, the dosage of clozapine was increased.  As I understand the position, your blood levels are monitored on a monthly basis, with a view to assessing whether the dosage is appropriate.  Dr Jones indicated in his report that in the time leading up to your offending in April 2008, there was no clear evidence of deterioration in your mental state in the weeks prior to the incident which gave rise to the offence of recklessly causing serious injury and unlawful assault, to which I have previously referred.

26    You had been reviewed on 4 February 2008 and your mental state was said to be stable.  At review on 31 March 2008, you were reported as doing well.  There was no report of any psychotic symptoms and you described your mood as good, indicating that there was reduced conflict with your family compared to the situation before commencing clozapine.  Dr Jones said that there was some concern about your blood levels of clozapine being low, which could have been due to the fact that you were on a relatively low dose or due to non-compliance with treatment; however, he said that there was no recorded evidence of poor compliance with medication and that, in fact, you were complaining of sedation, which is a common side effect of clozapine.

27    On that occasion, Dr Jones said that he was not able to comment more specifically about what role your illness might have had on your behaviour on 21 April 2008, but said that you seemed to have difficulty relating to other persons, and your illness also probably limited your capacity to resolve conflict or stressful situations. 

28    Since April 2008, you continued to have regular appointments with your case manager and your dose of clozapine was gradually increased to 300 milligrams at night.  Dr Jones remarked that you were quite difficult to engage in discussion and he had only ever established a superficial rapport.  He said that he had never seen any evidence of psychotic symptoms, which seemed to be well addressed by clozapine.  He said that these aspects of your mental state can be attributed to your underlying chronic psychotic illness and associated poor insight into your illness and associated impairments.  He said that you were very good at attending your appointments and had been compliant with your medication over the recent weeks. 

29    In his report dated 3 June 2011, Dr Jones said that you had continued to attend Waratah Continuing Care Team for four-weekly medical reviews and appointments with your case manager every two to four weeks.  You have continued to take clozapine and he recorded that your dose was increased in 2009 from 225 milligrams to 300 milligrams.  You have remained on that dose for the past two years, he indicated.  Dr Jones stated that your compliance with medication had been generally good, although your blood levels in February 2011 were a little lower when compared to the previous measure in 2010.  He said that a repeat measure in early May 2011 showed improved blood levels of clozapine.  He said that this would continue to be reviewed regularly.

30    Dr Lyon indicated that low levels of clozapine was not automatically indicative of non-compliance.  I accept that this is the case, in light of the explanation given for this, which I will not repeat.  Dr Jones said that the case management had focused on illness education and management, as well as impulse control and anger management strategies.  He said that your medical file showed that early in your illness you had at least two physical fights with your cousin.  At the time, you reported that this was in response to voices.  Dr Jones said that since 2008, you had presented as relatively stable.  He said that you were usually reluctant to discuss issues relating to your family, your illness or anger difficulties in any detail.

31    He said that there had been no evidence of mood disturbance or positive psychotic symptoms, which appear to be well controlled by clozapine.  He reported no auditory hallucinations and there had been no evidence of any change in mental state in the weeks leading to the incident of 25 January 2011.  You have maintained regular employment over the twelve months and managed daily living tasks independently.  Dr Jones repeated what he had said in his previous report about people suffering from schizophrenia and the range of different symptoms and difficulties associated with the illness. 

32    He said that in addition to positive symptoms, such as delusions and hallucinations, "Such symptoms can include cognitive deficits and associated difficulties with organisation and planning, impulse control and frustration and intolerance."  He goes on to say that "it is difficult to comment conclusively on your anger issues or your offending in January 2011".  He said that it is likely that your underlying illness is a factor in your impulsivity and said that it is possible that your lower clozapine levels around the time of the incident might have contributed to your impulsivity, as the drug is known to decrease impulsivity in people with schizophrenia.

33    He remarked that it is also possible that you have experienced residual paranoid ideation or delusions directed against your family member or members.  He said that whilst such symptoms had not been evident at regular review, one should also consider your limited engagement and unwillingness to discuss such issues in any detail.  At review on 4 February 2011, your account of the assault of 25 January suggested some paranoid thinking; however, Dr Jones did not repeat the account that you gave him in the body of his report.

34    He repeated the difficulties you have relating to others and he indicated that your illness probably limits your capacity to resolve conflict or stressful situations, including with family members.  He said that you would continue on clozapine with regular monitoring of blood levels and your mental state.  It is apparent from this report that your treating psychiatrist has had difficulty in getting to discuss with you issues relating to your illness or problems that you have experienced with anger.  It is difficult for me to accept that you have appropriate insight into your offending on the occasion of which I sentence you, and expressions of remorse, where you are apparently unable or unwilling to convey to your treating practitioner matters such as this.

35    It is not apparent from the report as to whether, since your account of the assault, which indicated some paranoid thinking, you have been able to improve upon this in a positive way with your treating practitioner.  I also note Dr Jones' final report, which is dated 14 September 2011, which provides an update in relation to your treatment.  He said that over the past six months you had been attending appointments every three to four weeks and had not missed any appointments; that you continued to take clozapine and, since June, the dose had been increased from 300 milligrams daily to 325 milligrams daily.  He said that the plan was to increase this further to 350 milligrams at your next appointment.

36    Further, you have commenced sertraline, an antidepressant medication, in February of this year.  The dose of this medication was gradually increased to the current does of 150 milligrams daily.  He said that there had been no concerns about non-compliance with medication, which is to your credit. 

37    Dr Lester Walton is not your treating psychiatrist.  He was engaged by your solicitors and examined you on 5 September 2011.  He was provided with the previous brief of evidence in relation to your offending in April 2008, as well as the brief of evidence concerning the matters before me and the reports of Dr Jones.  Dr Walton reported that he examined you on 5 September 2011, spoke with your father and was provided with documents regarding this matter, as well as, that concerning the previous matter of April 2008.  He had also received Dr Jones's reports of 6 November 2009 and 3 June 2011 respectively.

38    He reported that at interview there was no evidence of thought disorder or "very clear-cut delusions"; however, he remarked that "there is a low level of persisting paranoia, for example, regarding what he perceives to have been the victim's attitude toward him".  Dr Walton goes on to say that you are of normal intelligence, remain thoroughly cognitively intact, saying preservation and intellectual functioning being a feature a schizophrenia.  He said that you aspired to getting better and that one day you would hope to marry and have a family.

39    Dr Walton confirms that you have a well established diagnosis of chronic paranoid schizophrenia.  He said whilst a defence of mental impairment was not available to you in relation to these matters, your mental illness had relevance to the offending.  He said that you gave a clear description of continuing to operate in a state of paranoia and it was likely that you "misinterpreted what amounts objectively to trivial provocation".  Further, Dr Walton was of the view that you have a somewhat treatment-resistant illness, but that your present medication regime has led to a reasonable response to treatment.  He said that you do have minor residual paranoia, but had not additional treatment suggestions to make, other than to recommend that you continue on the treatment regime you are already on.

40    He further remarked that your expression of remorse was "well short of comprehensive"; however, he put that in the context of your compromised mental  health, which he said was disturbing such emotional expression.  He remarked that whilst you do not have an extensive history of violent offending, your behaviour is "worrisome in the sense that it is seemingly largely unprovoked and rather irrational.  Currently he is receiving the most vigorous psychiatric treatment he has to date, and hopefully that will prove beneficial both in relation to his mental health prognosis and the lowering of the risk of recidivism".

41    Dr Walton was of the view that there is a link between your mental illness and the offending and that your mental illness had served to distort your understanding of the situation and to loosen your control on anger, and had a disinhibiting effect on your aggression levels.  He said that you have insight into the nature of your mental illness and need for treatment, and that you have been thoroughly compliant in that regard.  Further, he said that someone in your position would endure incarceration more onerously than would a prisoner without such difficulties. 

42    Although Dr Walton does more than once trespass into territory that is not the realm of consultant psychiatrist, in my view, I do accept that someone with your difficulties would find incarceration more onerous than other prisoners who do not labour under these.  Dr Walton said that you will require ongoing psychiatric supervision indefinitely but that, from a clinical perspective, you can be managed in a community setting. 

43    Mr Manariti, I accept that you were suffering from impairment of mental function at the time that you offended and, on balance, I am prepared to accept that these difficulties are causally linked to what you did.  I say this on the basis of the psychiatric evidence before me, particularly that of your treating psychiatrist concerning levels of medication in your bloodstream not long after you offended, as you did.  I also accept this on the basis of the Crown's concession that such a link is made out.

44    As I have found such a link, this means that your moral culpability is somewhat reduced, as is the weight to which I place on specific deterrence and general deterrence.  However, I must also denounce your conduct and impose a just punishment upon you in all of the circumstances, including the fact that you have suffered from this illness and continue to do so.  I must also attach appropriate weight to protecting the community from you.  In particular, I must ensure as best I can that you do not ever attempt to harm the victim again, or anyone else for that matter.  Notwithstanding your illness, you are a man of normal intelligence, as has previously been said, and you should know that people who operate with difficulties such as yours often leave the courts with no other option but to send them to gaol. 

45    Sometimes this is the only option available when one considers the seriousness of the offences and gives appropriate weight to all other sentencing considerations.  I hope you appreciate that.  I must also factor in that any term of imprisonment which you might be required to serve would be more difficult for someone in your position than someone not suffering from such a severe mental illness.  I do take account of that and I make appropriate allowance for it. 

46    I assess your prospects of rehabilitation as fair, and I say this in a guarded manner.  Much depends on your ability to continue to comply with your medication regime and to develop some insight into your past behaviour and how it impacts on other people, especially the victim in this case.  If ever you are tempted to approach the victim again or behave in any way that may tempt you to break the law, you must call a family member or one of your treating practitioners for help and guidance rather than act on any impulse.  If you choose to behave in the way that you have previously, you will give courts no choice but to send you to gaol for ever-increasing periods.

47    Dr Lyon on your behalf submitted that you ought receive the benefit of a wholly suspended sentence, perhaps in league with a community based order for the breach of intervention order offence.  The offence of intentionally causing serious injury is so serious that Parliament has decreed that, unless exceptional circumstances can be demonstrated, a person who has committed this offence must go to gaol.  On your behalf, Dr Lyon submitted that exceptional circumstances were made out and that there is an unusual direct causal link between your illness and the offending, which has been evidenced by the lower levels of clozapine found in your system not long after these offences.

48    He also relied on the significant efforts that you have gone to in relation to addressing your mental illness over the years and that, following your offending on this occasion, you have received a higher dose of clozapine, as well as the introduction of sertraline, and that your condition appears to be stable.  He further relied on the fact that you are someone who had been most compliant in respect of medication and treatment, and that you are closely monitored in this regard.  I note also that there is no suggestion that there has been any allegation of subsequent offending.

49    The Crown submitted that exceptional circumstances have not been made out but, having accepted that the principles in R v Verdins do apply to your case, they submitted a range which was reduced as a result of the psychiatric material received, and submitted that an appropriate sentence in your case would be between 18 months and two years' imprisonment, with a non-parole period of between nine months and twelve months.  They submitted that this ought be served immediately and that a wholly suspended sentence was not within the range.  It was further submitted that the parole period which I impose ought allow for a reasonable period of supervision after you had served your term of imprisonment. 

50    Mr Manariti, if not for your mental difficulties and the fact that you have been trying hard to battle them for a significant period, I would have had little hesitation in sending you to gaol for this most serious offending.  However, on balance, I am satisfied that exceptional circumstances are made out and that there would be little utility in sending someone like you to gaol with the significant risk that you would emerge in a far worse state than you entered, exposing the community to less protection than that which your current treatment regime affords.

51    However, I make it very clear, if I haven't made this clear before, that if you
re-offend, then in all likelihood you would be required to go to gaol, notwithstanding your state of mental health and other matters put by way of mitigation on the plea before me.  You simply cannot behave as you wish and you must think about and talk about the things which are concerning you with health professionals rather than taking any matter into your own hands.  If you do this again, you will no doubt end up in gaol.

52    Would you please stand up, Mr Manariti.  In respect of Charge 1, intentionally causing serious injury, you are convicted and sentenced to two years' imprisonment, but I will wholly suspend that term for a period of three years.  If you were to re-offend in the next three years and that offence was punishable by gaol, then unless you could show that there had been exceptional circumstances which had arisen since I imposed this sentence today which would make it unjust for you to do so, you would be required to serve two years' gaol immediately and you would also be dealt with in relation to the further offences which caused the breach of the wholly suspended sentence. 

53    In relation to the summary charge of breach of intervention order, I require you to undergo a community based order, but I can only impose this order if you consent to it being made.  I intend to convict you of this charge and release you on a community based order for a period of two years.  So that you can provide an informed consent, I need to explain to you what is proposed with the community based order and I ask that you listen carefully to this.

54    It is proposed that, on the charge of breach of intervention order, you be convicted and released on a community based order for a period of two years, which will date from today.  There are core conditions which attach to every community based order and, in your case, there will also be program conditions.  The core conditions are as follows.  The first is that you must not commit, whether in or outside Victoria during the period of the order, another offence punishable on conviction by imprisonment.  Next, you must report to the Reservoir Community Correctional Services office on this Tuesday, 18 October 2011, at 3 pm.  You will receive details of this in written form, so you do not have to commit them to memory.

55    Next, you must report to and receive visits from a community corrections officer.  Next, you must notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change.  Next, you may not leave Victoria, except with the permission of an officer at the specified Community Corrections Centre, granted either generally or in relation to a particular need to do so.  Finally, you must obey all lawful instructions and directions of Community Corrections officers.  Do you understand those conditions?

OFFENDER:  Yes.

56    HER HONOUR:  As I said, there will also be program conditions.  They are that you perform 150 hours of community work over the next two years, as directed by the regional manager.  That figure is fixed having regard to the commitments that you have.  You must undergo assessment and/or treatment of psychological or psychiatric matters as directed by the regional manager.  Specifically in your case, you must undergo psychiatric counselling and treatment.  In keeping with the directions of Dr Simon Jones at the Waratah Continuing Care team, I also direct that you be assessed for suitability to take part in a men's' behavioural change program or an anger management program equivalent.

57    If deemed suitable for such a program or programs, then you are to take part in this or these programs as required.  In assessing your suitability, I direct that the regional manager or his nominee consult with Dr Simon Jones.  You have already indicated you understand the core conditions; do you understand the program conditions that I have just set out?

OFFENDER:  Yes.

DR LYON:  Would Your Honour allow me to just approach the dock?  I just want to make sure that there's absolute understanding.,

HER HONOUR:  Yes, Dr Lyon.

DR LYON:  Thank you, Your Honour.

HER HONOUR:  Thanks, Dr Lyon.  I appreciate that.

58    I will just explain to you what the consequences are, Mr Manariti, if you breach the community based order.  There may be serious consequences for you if you fail to comply with the proposed community based order.  If, over the next two years, you fail without reasonable excuse to comply with any of the conditions of the community based order, as I have explained these to you and which have been explained to you by Dr Lyon, or with any requirement of the relevant regulations, you may be charged with an offence of breaching the community based order. 

59    The breach could be because you have failed to comply with an administrative requirement of the order - for example, not attending for supervision or assessment or treatment programs, or failing to turn up for community work - or it may be breached by you committing other offences punishable on conviction by imprisonment.  The breaching charge can be laid any time within three years of the date on which the breaching conduct occurred.  You will be brought back to this court; if the court finds you guilty of the breaching offence, it can fine you and, in addition, it can vary, confirm or cancel the community based order.

60    If the community based order is cancelled, the court can deal with you for this original offence as if from the beginning again.  So it can start all over again for that breach of intervention order.  If that were to happen, you may then face an immediate gaol term.  So do you understand all the consequences that can occur if you breach the community based order?

OFFENDER:  Yes.

HER HONOUR:  Are you willing to enter into the community based order?

OFFENDER:  Yes

61 HER HONOUR: On the summary charge, you are convicted and released on a community based order, the terms and conditions of which I have already set out. I should indicate that, pursuant to s.6AAA of the Sentencing Act, if not for your pleas of guilty to these matters I would have convicted and sentenced you to a total effective sentence of three years' imprisonment and ordered that you serve 18 months before becoming eligible for parole. You may now come out of the dock, Mr Manariti, and, with the assistance of your counsel, you can sign the community based order which you have agreed to undergoing.

HER HONOUR:  Yes, thank you.  I have signed that order.  Are there any further matters?

DR LYON:  No, Your Honour.

MR HANNAN:  No, Your Honour.

HER HONOUR:  All right.  Thank you.  We'll adjourn.

- - -

18 November 2011

HER HONOUR: In relation to the matter of Manariti wherein I imposed a Community-based Order whereby Mr Manariti was to complete 150 hours of unpaid community work within a two-year period I vacate that aspect of the sentence to the extent that 150 hours is to be performed within a period of one and a half years from the date of sentence.  Are they the matters then?

DR LYON: Now Your Honour's powers of amendment are derived from the Criminal Procedure Act. The question that - - -

HER HONOUR:  It is 412, is that right?

DR LYON:  Yes 412 thank you, Your Honour, does that require any amendment to the paperwork?

HER HONOUR:  I think what will happen is that I will ensure that my sentencing remarks are revised such that today's discussion and the amendment that I have made is annexed to that.  In terms of the paperwork for the Community Corrections people.  I think what I will do is we will have them notified that I have amended the sentence in that regard - - -

DR LYON:  Thank you Your Honour.

HER HONOUR:  - - - and see whether that then requires Mr Manariti to sign another document.  I would be surprised if that were the case.  It sounds like he is doing very well.  He is undertaking the hours to that extent already. Yes so I will let you know, that is what I am saying, if there has to be a subsequent amendment to the papers.

Ms Hammond, before I came on the Bench, said that if the documents were to - if I were to be minded to accede to the application to amend then she would need a little time in order to make some amendments to some documentation but I am just not sure that that requires everyone to stay here whilst that is attended to.

DR LYON:  No I don't think it would.

HER HONOUR:  I will just see if that is the case.  Yes all right, no I do not really need to detain you any longer and we will let counsel know if there is new document Mr Manariti has to sign.  I would not have thought so, though.

DR LYON:  Subject to a couple of commitments I am available between now and Christmas to come back.

HER HONOUR:  All right yes, thank you.

DR LYON:  Or the agent Your Honour.

HER HONOUR:  Yes thanks Dr Lyon, I am hoping that is not necessary.  Thank you, thank you for your assistance.

- - -