Director of Public Prosecutions v Marshall; Director of Public Prosecutions v Ashley
[2016] VCC 558
•4 May 2016
| IN THE COUNTY COURT OF VICTORIA AT SALE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-02141
CR-15-02142
Indictment No. C1510228
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL CHRISTOPHER MARSHALL |
| and |
| TOM WAYNE ASHLEY |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Sale | |
DATE OF HEARING: | 20 April 2016 | |
DATE OF SENTENCE: | 4 May 2016 | |
CASE MAY BE CITED AS: | DPP v Marshall; DPP v Ashley | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 558 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – intentionally causing a bushfire – arson – theft
Legislation Cited: Crimes Act 1958, s201A, s197(1), s197(6)
Cases Cited:R v Mills [1998] 4 VR 235; Azzopardi v R (2011) 35 VR 43; R v Verdins & Ors (2007) 16 VR 269; Boulton & Ors v R [2014] VSCA 342; Phillips v R (2012) 37 VR 594; R v Merrett, Piggott & Ferrari (2007) 14 VR 392
Sentence: Each of you are convicted and sentenced to a Community Correction Order for a period of three years with various conditions
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Triandos | Solicitor for the Office of Public Prosecutions |
| For the Accused Marshall | Mr A. Pyne | VLA Dandenong |
| For the Accused Ashley | Mr S. Lander | Tyler Tipping & Woods |
HIS HONOUR:
1 You, Michael Christopher Marshall, and you, Tom Wayne Ashley, have pleaded guilty to the following offences on Indictment No.C1510228:
Charge 1
2 That each of you, at Heyfield on 19 May 2012, intentionally caused a fire and were reckless as to the spread of the fire to vegetation on property belonging to another.
Such offence of intentionally causing a bushfire is contrary to s.201A of the Crimes Act 1958, and carries a maximum penalty of 15 years’ imprisonment.
Charge 2
3 That both of you, at Heyfield on 19 May 2012, intentionally and without lawful excuse, destroyed by fire a quantity of woodchips belonging to the Wellington Shire Council.
The offence of arson is contrary to s.197(1) and s.197(6) of the Crimes Act 1958, and carries a maximum penalty of 15 years’ imprisonment.
Charge 3
4 That both of you, at Seaton on 19 May 2012, stole a Dynapac road roller belonging to Coates Hire and valued in the sum of $30,000.
The offence of theft is contrary to s.74 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Charge 4
5 That both of you, at Seaton on 19 May 2012, intentionally and without lawful excuse, destroyed by fire the Dynapac road roller belonging to Coates Hire.
The offence of arson is contrary to s.197(1) and s.197(6) of the Crimes Act 1958, and carries a maximum penalty of 15 years’ imprisonment.
The circumstances of the offending
6 The prosecution has prepared a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit, (Exhibit 1), and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
(a) On Saturday, 19 May 2012, both of you were at the home of another person in Heyfield, in company with friends, Steven Tyquin and Todd Sundermann;
(b)
At approximately 1 am on that day, the four of you, with Sundermann driving, drove to Riverview Road in Heyfield where you, Michael Marshall, got out of the car and lit a fire with a cigarette lighter while you, Tom Ashley, was in the car and through your presence, encouraged such act,
(Charge 1);
(c)
The Country Fire Authority (“CFA”) was called and the fire was extinguished.
I refer to Exhibit 2, which is a bundle of photographs showing the after effects of the fire;
(d) Soon after, the same four men, including you two, drove in Tyquin’s car towards Seaton. When driving along, you came across a Coates Hire roller parked on the side of McEvoys Track;
(e) A key is not required to start such roller, all that is necessary is that someone must be seated in it and the machine switched on when in a neutral position and the brakes disengaged;
(f) Both of you entered the cabin of the roller, which was started, and moved off, ending up in bushland (Charge 3);
(g) Soon after, you, Michael Marshall, caused the roller to be lit on fire and you, Tom Ashley, was present and encouraging such act (Charge 4);
(h) The value of the roller was approximately $30,000 and I refer to Exhibit 3, which consists of a bundle of photographs showing the road on which the roller was driven and the extent of the damage to the roller after having been burnt;
(i) You then left that area and continued driving down McEvoys Track towards Heyfield and again, the car was stopped on Rifle Range Road where each of you and another got out of the car and walked into bush;
(j) A fire was started with a pile of mulch and both of you were present, encouraging the fire being lit (Charge 2);
(k) The fire was in woodchips owned by the Wellington Shire Council, and mulch, and I refer to Exhibit 4, which is a bundle of photographs showing the area where such fire was commenced, together with the woodchips;
(l) You, Michael Marshall, was interviewed by police on 21 November 2012, at which time you said you had had “heaps” to drink, that you had siphoned fuel from the roller and put a lighter to it and the roller had just “blown up”. You could not remember any other incident. Later, on 21 November 2013, you informed police that you had consumed about a slab of Victoria Bitter that night, confirming again, you only remembered some parts of the night;
(m) You, Tom Ashley, were interviewed by police on 28 November 2013, at which time you denied any involvement in any of the offences;
(n) You were each charged on 30 April 2015, and the case put against each of you is on the basis of each of you participating in a joint criminal enterprise;
(o) You, Michael Marshall, made a confessional statement on 21 November 2013 and indicated your preparedness to enter a guilty plea to the Indictment charges, shortly prior to the committal hearing on 1 December 2015;
(p)
You, Tom Ashley, entered a plea of guilty at the committal hearing on
1 December 2015;
(q) Neither of you have any police record.
The personal circumstances of the accused, Michael Marshall
7 Your counsel tendered the following documents:
· Exhibit “A” – Defence Outline of Submissions;
· Exhibit “B” – Report of the psychologist, Mr David Ball, dated 19 November 2015, in relation to an interview undertaken on 24 August 2015;
· Exhibit “C” – Report from Ms Nyree Davis, an alcohol and drug clinician at the Bass Coast Health, dated 25 August 2015;
· Exhibit “D” – Two references, one from Francis J Salerno, a friend, which is undated, and one from Ms Desirae Hardy, the sister of your partner, dated 14 March 2016;
· Exhibit “E” – References from employers, Mr Mark Blake of Blakey’s Gardening Service, dated 29 March 2016, and Mr Ben Ward, foreman of K & S Plumbing.
8 Partly based on such material and further submissions made by your counsel, I note the following:
(a) You are presently 25 years of age, born 6 March 1991, and were 21 years of age at the time of the offending;
(b) You have a younger sister and an older step-sister. Apparently your family of origin was largely functional and cohesive, with no evidence of domestic violence, substance abuse, mental illness, poverty or criminality. In general, you described yourself enjoying a typically harmonious relationship with your parents during your upbringing;
(c) You attended school to Year 8, when you were having some difficulties with the curriculum. You informed Mr Ball that during your school years, you were a “bad kid” who was involved in fighting and being a “smart arse”;
(d)
On leaving school, you had an inconsistent employment history, mainly involved in unskilled labouring positions. Apparently you have all your “machine tickets” in relation to earthmoving equipment. I refer to
Exhibit “E”- a report from Mark Blake of Blakey’s Gardening Service, wherein he records that as at March 2016, you have worked for him on a casual basis for the last three years, performing gardening-landscaping work. In that reference he notes that he has found you “respectful and reliable” and a person who is “honest and a person of great integrity”. He also notes that you are “extremely remorseful for your behaviour”. He has not observed you drinking or taking drugs;
(e) I also refer to the reference from Mr Ben Ward, foreman of KNS Plumbing, who records that for the last five months you have worked for such employer. He describes you as a “valuable addition to our company” and has taken on the recent role of crew leader;
(f) You commenced a new relationship in October 2014 with Bianca, (the sister of Ms Desirae Hardy) and you consider that that is when things started to turn around in your life. I note that your partner was in court, together with your mother and sister;
(g) You commenced drinking alcohol when you were about 15 and have described patterns of consumption consistent with weekend binge drinking. Again, when examined by Mr Ball on 24 August 2015, you informed him that ten months prior to that meeting, you had been using methylamphetamine for some three years and a daily consumption in the order of 0.5 grams;
(h) I refer to Exhibit “C”, being the report from Ms Nyree Davis, an alcohol and drug clinician at the Bass Coast Health. In that report, Ms Davis notes that you completed a comprehensive alcohol and drug assessment by ACSO and were referred to Bass Coast Health for standard pathway drug and alcohol counselling. Your treatment consisted of alcohol and drug education and harm minimisation identification focussed on patterns of misuse. According to Ms Davis, you reported to be abstinent from methylamphetamine use and reduced your consumption of alcohol from 15 to 20 standard drinks per day, to two to three standard drinks per week. Furthermore, you have commenced at the gym five or six days per week and arranged with your general practitioner to assist with ongoing health concerns.
The report of Mr David Ball
9 On clinical examination, Mr Ball considered that you revealed no evidence of frank mental illness, such as psychotic ideation, hallucinations or delusions in your speech or demeanour. Furthermore, you neither presented with, nor reported any signs or symptoms of, depression or anxiety and said that you were “actually pretty happy”.
10 Mr Ball considered that you satisfied the diagnostic criteria for severe alcohol and stimulant use disorders, in early remission. Mr Ball stated, in particular:
“Mr Marshall is a somewhat introverted man with significant dependant traits to make him feel uncomfortable much of the time. He lacks a broad range of emotional responses. He is a quiet and private individual who is a loner and passive observer. He seldom takes sides or has a strong opinion on anything.”
11 Furthermore, Mr Ball noted that your rehabilitation and management in the community appears to have “few challenges”. He considered that you presented as having distanced yourself from your previous circle of negative peers and reported abstinence from drugs and alcohol.
Your counsel’s plea in mitigation
12 Your counsel submitted the following matters to be relevant in mitigation of any sentence to be imposed on you:
(a) You pleaded guilty to the offences at the earliest possible time, which had the utilitarian effect of saving the time and cost of a trial. Furthermore, such plea was accompanied with significant assistance to the authorities and co-operation was shown to the police, at least to the extent of what you could remember when interviewed on 21 November 2013;
(b) You have demonstrated remorse as both expressed to Mr Ball and to the referee, Ms Desirae Hardy.
In this respect, I refer to the report of Mr Ball wherein he records:
“Mr Marshall expressed simplistic regret and remorse for his actions and said ‘I am very sorry. I wish I could turn back time because
I would never have been with them’.”
I also refer to the reference of Ms Desirae Hardy, wherein she states, in part:
“I have never seen anyone more remorseful for anything that they have done in my life, and also the fact that Michael has turned his life around is a big inspiration.”
(c) You have no record of any offending prior to these particular offences, and indeed, have not come under the notice of police since the event;
(d) Your counsel referred to the decision of R v Merritt, Piggott & Ferrari [2007] 14 VR 392 and, in particular, as to what is set out at paragraphs 34 to 38, highlighting that where there has been a “lengthy process of rehabilitation” from the date of the offence up to the date of sentence, “the punitive and deterrent aspects should not be allowed to prevail so as to possibly destroy the results of that rehabilitation”. In this respect your counsel highlighted the lengthy delay between the offence, your admissions and the plea hearing;
(e) Given that you were 21 years of age at the time of the offending, you should be viewed as a youthful offender and reference was made to the leading cases of R v Mills [1998] 4 VR 235 and, in particular, at 241 per Batt JA, and Azzopardi v R [2011] 35 VR 43 and, in particular, at paragraphs 34 to 36 per Redlich JA. In this respect, it was submitted that rehabilitation of young offenders is a paramount consideration. Although your counsel conceded that your offending was “serious”, it was submitted that your offending can be distinguished from other more serious examples of conduct, with no evidence of premeditation and with the higher probability that you were extremely intoxicated on the night of the offending;
(f)
Although expressly disclaiming any reliance on the principles set out in
R v Verdins & Ors (2007) 16 VR 269, your Counsel did submit that the personality described by Mr Ball would most probably cause you to be more vulnerable in prison.
13 Ultimately, your counsel submitted that an appropriate sentence would be the ordering of a community corrections order, and reference was made to Boulton & Orsv R [2014] VSCA 342.
The personal circumstances of the accused, Tom Ashley
14 Your counsel tendered the following documents:
· Exhibit “F” – Outline of submissions on plea
· Exhibit “G” – Character references from:
(i) Rohan Christian, (a friend with whom you work), dated 20 March 2016;
(ii) Martin Butcherl, (who has trained you at a gym for the last twelve months), dated 22 February 2016;
(iii) James Nikolajew, a former employer, dated 28 March 2016;
(iv) Tim Zabaneh, a former workmate, dated 24 March 2016;
(v) Amy Donahoe, a family friend, undated;
(vi) Donna Stone, a friend for approximately ten years and the sister of your partner, undated.
15 Partly based on such material and further submissions made by your counsel, I note the following:
(a) You are presently 25 years of age, born 21 December 1990, and were 21 years of age at the time of the offending;
(b) Your childhood memories are not particularly happy, having a “broken home” featuring violence from your father against your mother, both parents using illicit drugs, and a large number of moves around the Maffra/ Heyfield areas. Your mother still lives in Heyfield with a new partner and your father moved to Melbourne when you were about five years old and there has been no contact for many years. You have been recently informed that your father is dying from cancers, you hope to visit him soon before his death. You have one sister, who has also been involved in drugs and you have had very little to do with her, mainly just to look after her children when needed;
(c) You have been assisted over the years by various aunts and uncles in the Sale and Nambrok area and, in particular, your mother’s brother, a dairy farmer, brought you up more than your mother, giving you a steady home and your first work experience on the farm;
(d) You attended Nambrok Primary School and thereafter, Sale Catholic College to Year 10, after which you left to take up a building apprenticeship at the Fulham TAFE. After completing the apprenticeship, your employer kept you on as a qualified builder on full wages;
(e) At the time of the subject offending, you were an employee but since, you have had period of self-employment and commenced to perform tiling work. For the last nine months you have been working fulltime for Michael Canny Excavations, based in Maffra.
(f) You have been in a relationship with Michelle Stone for over ten years, having first met as teenagers through your respective basketball and cricket clubs. You live in a rented property in Heyfield and have a son, Nate Ashley, born on 4 September 2014, who is presently nineteen months old. Your partner was formerly a pharmacy assistant but is now performing maternal duties with the intention to return to work when your son is a little older;
(g) Your Counsel describes how you and your family are living in a quiet street and that you, in particular, are enjoying family life, generally working daily, home for tea, with evenings spent at home and football and cricket training in Heyfield, including gym work to keep on top of fitness and health.
Your Counsel’s plea in mitigation
16 Your counsel submitted the following matters to be relevant in mitigation of any sentence to be imposed on you:
(i) Your plea of guilty and co-operation after making such plea. Although your counsel concedes that there were initial denials of any involvement when interviewed by police on 28 November 2013, your plea of guilty was entered at the committal hearing on 1 December 2015 and, accordingly, has utilitarian value in avoiding the cost and time of a trial in this matter;
(ii) Your Counsel submits that you have demonstrated remorse by a plea of guilty. Although I do not accept that a plea of guilty in itself necessarily demonstrates remorse, (See Phillips v R (2012) 37 VR 594, and in particular, at paragraph [69]) I do accept, after reading the various references, you are remorseful for your actions on that night. In particular, it is submitted that you have shown insight into your actions and have taken an appropriate course of action;
(iii) Again, your Counsel, given your youthful age at the time of offending, relies on the principles enunciated R v Mills [1998] 4 VR 235 and Azzopardi v R (2011) 35 VR 43;
(iv) That given what you have demonstrated since the offending – that is to say, being more responsible and showing maturity as noted by various referees – your prospects for rehabilitation are, it is submitted, “excellent”. In particular, reference is made to the various references and, in particular, I refer to the reference from Ms Donna Stone, who describes herself as a manager and radiographer with Regional Imaging Gippsland. She asserts that she has known you for approximately ten years and observed you grow into a “reliable and responsible partner, father and member of the local community”. In particular, she notes that in the last five years you have “grown up a lot, becoming a father and holding down a job with Michael Canny Excavation”.
17 Ultimately, your Counsel submitted that an appropriate sentencing disposition would be a Community Correction Order consistent with the principles enunciated in Boulton & Ors v R [2014] VSCA 342.
Submissions on behalf of the Prosecution in relation to sentence
18 Counsel for the Prosecution indicated that forensic samples were sought from both accused. It was submitted by Counsel for the Prosecution that the circumstances of the offending warrants a “substantial” Community Correction Order with unpaid community work hours. Such a disposition was submitted to be within the “range”.
19 The Court directed that each of you be assessed by the appropriate Correctional Officer as to the suitability for each of you to be sentenced to a Community Correction Order.
20 In regard to you, Michael Marshall, you were assessed as suitable for a Community Correction Order. It was recommended that the following further conditions should be added to the core conditions – unpaid community work; treatment and rehabilitation in relation to the assessment and treatment including testing for drug use and alcohol use; attending offending behaviour programs, and general supervision.
21 Community Correctional Services assessed your general risk of re-offending as being “low” according to the Level of Service/Risk Assessment Tool.
22 In relation to you, Tom Ashley, you were also assessed as suitable for a Community Correction Order. It was recommended that the following further conditions should be added to the core conditions – unpaid community work; treatment and rehabilitation in relation to the assessment and treatment including testing for drug use and alcohol use; attending offending behaviour programs, and general supervision.
23 Community Correctional Services also assessed your general risk of re-offending as being “low” according to the Level of Service/Risk Assessment Tool.
24 In respect of both of your assessments, it was also recommended that if unpaid community work is a condition, together with assessment and treatment including testing for drug and alcohol use, then such hours of attendance for treatment should reduce any work hours outstanding.
Conclusion
25 I consider that any offence which involves the lighting of a fire to be a serious offence. In this sense, the lighting of fires was mindless and had the risk of causing far greater damage. In particular, the burning of the Dynapac road roller also had the potential to cause greater damage.
26 Furthermore, there would appear to be no reason for the destruction of the roller other than plain, wanton vandalism.
27
All these offences were committed on the one night in circumstances which
I accept did not have any particular planning or motive but, rather, were driven by excessive alcohol. Although your actions caused, amongst other things, the destruction of a heavy vehicle worth in excess of $30,000, the consequences may well have been far more severe given the areas where the fires occurred. I do take into account that both of you pleaded guilty at an early time and, furthermore, have demonstrated remorse over a variety of ways.
28 Whereas you were both 21-years-old at the time of the offending, I do consider that the principles apposite to youthful offenders are applicable. In particular, I refer to Azzopardi (op cit) in particular, paragraphs [34]-[36], where Redlich JA stated:
“There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult.’ They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. As Vincent JA explained in Director of Public Prosecutions v SJK & GAS:
‘In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.’
Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending. As stated in R v Lam & Ors,
‘A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives. In sentencing there is thus a broad public interest in taking into account the youth of the offender.’
Thirdly, "Courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.”
29 Your offending did reflect immaturity and a failure to recognise and appreciate the seriousness and real consequences of your offending actions. To adopt the words from Redlich JA, you lacked the degree of insight, judgment and self-control that is possessed by someone more mature.
30 On the material before me, I do consider that each of you have matured over the years since the offending. You, Michael Marshall, have made real efforts to address alcohol abuse, and drug abuse, maintained regular work and shown signs of being a responsible member of the community. You, Tom Ashley, have also matured over the years, no doubt since, particularly the birth of your young son, who is presently 19 months old. Again, the various references relied on by you paint a picture of a maturing young man who is becoming a responsible member of the community.
31
It must be borne in mind that the subject offending occurred not quite four years ago and there has been ample time to assess your development since the offending. In this respect, I do refer to R v Merrett, Piggott & Ferrari [2007]
14 VR 392 and in particular, as to what is set out in paragraphs 34 to 38, highlighting that where there has been a “lengthy period of rehabilitation” from the date of the offence up to the date of sentence, the punitive and deterrent aspects of sentencing should not be allowed to prevail to possibly destroy the results of that rehabilitation.
32 I have been urged by both of your counsel to sentence you to a community corrections order.
33 I refer to the guideline judgment given by the Court of Appeal in Boulton (op cit), pertaining to the operation of community correction orders which have been available in Victorian courts since January 2012. As that court stated, the community corrections order is a radical new sentencing option with the potential to transform sentencing in this State. Although a non-custodial order, such order has mandatory conditions laid down by the legislature and a sentencing court can attach to a community corrections order a range of conditions which are variously “coercive, prohibitive, intrusive and rehabilitative”. As pointed out by the Court of Appeal, a community corrections order is a “flexible sentencing option”, enabling punitive and rehabilitative purposes to be served simultaneously.
34 I refer to s.5(4) and s.5(4C) of the Sentencing Act 1991, which respectively state:
(4) "A court must not impose a sentence that involves the confinement of the offender, unless it considers that the purposes or purpose for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender."
(4C) "A court must not impose a sentence that involves the confinement of the offender, unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in ss.48F, 48G, 48H, 48I and 48J, are attached.”
35 As the Court of Appeal has stated, s4(4C) of the Sentencing Act 1991 prohibits the imposition of a sentence of imprisonment, unless the sentencing court has played specific and careful attention to:
(a) The purpose to which the sentence is to be imposed on the offender; and
(b)Where those purposes can be achieved by a community corrections order to which one or more of the specified onerous conditions is attached.
36 I also refer to Appendix 1 of the Court of Appeal judgment which is headed “Community corrections orders guidelines for sentencing courts”. Pursuant to that document, it is necessary that I first assess the objective nature and gravity of the offences and the moral culpability of each of the offenders. I am then called upon to consider whether:
(a)The crime, as so assessed, is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment; or
(b)A community corrections order, either alone or in conjunction with a sentence of imprisonment, will satisfy the requirements of just punishment.
37 As I have already recorded, I consider that the offending, particularly the offences involving lighting fires and the destruction of the roller, are examples of serious offending. In such circumstances, with nothing more, the principles of general deterrence, specific deterrence, just punishment and the protection of the community are relevant. However, given your youth at the time of the offending, the principles hitherto referred to do diminish the concept of general deterrence, specific deterrence and just punishment. Bearing in mind the risk assessments made in respect of each of you by Correctional Services, and the demonstration of your respective maturing since the offending, I do consider that your chances of rehabilitation are good.
38 In all the circumstances, I intend to convict you of each offence and sentence each of you to a community corrections order.
39 Pursuant to s.40 of the Sentencing Act 1991, I consider that the subject offences “are founded on the same facts or form, or are part of a series of offences of the same or a similar character”, and accordingly will make one community corrections order in relation to all of the offending.
40 Please be upstanding: In respect to Indictment C1510228:
(a)In relation to Charges 1, 2, 3 and 4 you, Michael Marshall, are convicted and sentenced to a community corrections order for a period of three years. You must attend the Sale Community Correctional Services within two clear working days. In addition to the mandatory terms, there will be the following conditions:
(i)Pursuant to s.48C of the Sentencing Act 1991, you are to perform 150 hours of unpaid community work over the currency of the order;
(ii)Pursuant to s.48D(3)(a) of the Sentencing Act 1991, you are to undergo an assessment and treatment, including testing, for drug abuse or dependency;
(iii)Pursuant to s.48D(3)(b) of the Sentencing Act 1991, you must undergo an assessment and treatment, including testing, for alcohol abuse or dependency;
(iv)Pursuant to s.48D(3)(f) of the Sentencing Act 1991, you are to undergo any program that addresses factors related to your offending behaviour;
(v)Pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary to the Department of Justice and Regulation.
(b)In relation to Charges 1, 2, 3 and 4 you, Tom Ashley, are convicted and sentenced to a community corrections order for a period of three years with the following conditions:
(i)Pursuant to s.48C of the Sentencing Act 1991, you are to perform 150 hours of unpaid community work over the currency of the order;
(ii)Pursuant to s.48D(3)(a) of the Sentencing Act 1991, you are to undergo an assessment and treatment, including testing, for drug abuse or dependency;
(iii)Pursuant to s.48D(3)(b) of the Sentencing Act 1991, you must undergo an assessment and treatment, including testing, for alcohol abuse or dependency;
(iv)Pursuant to s.48D(3)(f) of the Sentencing Act 1991, you are to undergo any program that addresses factors related to your offending behaviour.
(v)Pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary to the Department of Justice and Regulation.
41 I declare that pursuant to s.6AAA of the Sentencing Act 1991, if not for your pleas of guilty, I would have sentenced each of you to 16 months’ imprisonment, with a non-parole period of eight months.
42 I further order, pursuant to s.464ZF of the Crimes Act 1958, that both you, Michael Marshall, and you, Tom Ashley, undergo a forensic procedure for the taking of a scraping from the mouth, in accordance with the Act, until a sample of sufficient status is obtained for placement on the database. I must inform you that if, at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
43 Yes, anything to add to it?
44 MR TRIANDOS: No.
45 MS McCANN: No, Your Honour.
46 HIS HONOUR: Just for the sake of clarity, Ladies and Gentlemen, I am not prepared to add the condition there will be a set off of the hours to be worked by treatment. So in other words, the hours have to be completed.
47 MS McCANN: Your Honour, if I just might raise on matter. You indicated that Mr Marshall needed to attend at the Sale Office of Corrections. I note in the assessment report that the Korumburra Office of Corrections is mentioned and certainly that would be more convenient for him.
48 HIS HONOUR: Well yes, I must have - we will check that. We will change it, then Korumburra, yes. Yes.
49 Mr Marshall and Mr Ashley, No doubt it will be explained to you precisely what I have just ordered. The long and short of it is, you have been ordered and sentenced to a, what is called a "community corrections order". The extent is for three years. It is just like any other sentence of the court. You must comply with the terms and conditions of that order. In particular, the extra terms are, you must do the unpaid work, 150 hours, as directed. You must attend the various assessments and you are under the supervision of the appropriate Corrections officer.
50 If you breach any of those conditions or do not comply with any of those conditions, it is almost certain that you will be brought back before me as a breach of those conditions. At that time I have got the power to do many things, and one of them is to send you to prison.
51
The reason I have taken the view I have in relation to your actions, which
I consider to be serious, is that you have seemingly both shown a maturity over the last three or four years, for a variety of reasons, not least you both seem to be remorseful about the conduct involving the offences. But by the same token, it is still relatively days. If you go off again and do what I can only describe as "mindless activities", you will be brought back, not necessarily before me, and next time round, there may be no talk about community corrections orders, it would mean straight into prison.
52 So bear that in mind. You have been given effectively a chance. Three years is not a short time. You will have to keep your guard up to abide by the conditions over that period of time. Because as I say, if you breach those conditions, you will be back before me before you can say "Jack Robinson". Do you understand? Yes, very well.
53
Yes, can the family contact the prisoners downstairs or - sorry, they are out,
I apologise. Yes, well I will just adjourn temporarily.
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