Director of Public Prosecutions v Marsters
[2023] VCC 1592
•25 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02387, CR-22-02388, CR-22-02389, CR-22-02390, CR-22-02391,
CR-22-02393, CR-22-02394, CR-22-02395, CR-22-02396
Indictment No: C2215732.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTOINE MARSTERS |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 August 2023 | |
DATE OF SENTENCE: | 25 August 2023 | |
CASE MAY BE CITED AS: | DPP v Marsters | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1592 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – pleas of guilty Theft (4) - Sexual assault (2) – Criminal damage (4) – Robbery (3) – Possess drug of dependence (1) – Related summary offences – Unlawful assault – Behave in an offensive manner - Possess controlled weapon – Commit indictable offence whilst on bail (2) – Fail to answer bail – Contravene conduct condition of bail – Acting in a prejudicial manner in gaol – Relevant criminal history – Brazen offending ranging over several months, often in the company of others – Offending characterised as varying between being a nuisance to frightening and offensive conduct – Indelible impact on victims – Expert opinion – Accused suffering from cognitive, psychological and functional defects – Mild neurocognitive disorder of multifactorial aetiology secondary to chronic schizophrenia and substance related acquired brain injury - Longstanding and permanent condition – Substance affected and non-compliant with anti-psychotic treatment at time of offending – Accept accused suffering from relevant impairment of mental function at the time of offending factoring in being substance affected – Partial insight and awareness into mental health issues and negative effects of substance abuse – Expert opinion as to accused benefiting from controlled environment with proper medical care, systematic allied health intervention, co-ordinated approach to treatment and close supervision
Sentence: Convicted and sentenced to 600 days’ imprisonment in combination with an 18 moths Community Corrections Order – Treatment and rehabilitative conditions (Drug, Alcohol and Mental health) – Programs to address re-offending - Judicial Monitoring Reviews – 600 days’ imprisonment declared as having already been served as part of the sentence imposed - 6AAA Sentencing Act 1991 declaration – Ancillary order – Forfeiture and Disposal
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Malik | Solicitor Office of Public Prosecutions |
| For the Accused | Mr A. Pyne | VLA |
HER HONOUR:
1Antoine Marsters, you have pleaded guilty to four charges of theft; two charges of sexual assault; four charges of criminal damage; three charges of robbery; and one charge of possession of a drug of dependence, namely Cannabis L. The maximum penalty for the offences of theft, sexual assault, and criminal damage, is 10 years’ imprisonment, and for robbery 15 years’ imprisonment. The maximum penalty for possess Cannabis L. is five penalty units.
2You have also pleaded guilty to the following related summary offences: unlawful assault, which has a maximum penalty of three months’ imprisonment; behaving in an offensive manner, which has a maximum penalty of two months’ imprisonment; possession of a controlled weapon, which has a maximum penalty of one year imprisonment; two charges of committing an indictable offence whilst on bail, which has a maximum penalty of three months’ imprisonment; failing to answer bail, which has a maximum penalty of two years’ imprisonment; contravening a conduct condition of bail which has a maximum penalty of three months' imprisonment; and acting in a prejudicial manner to gaol which has a maximum penalty of 10 penalty units.
3In sentencing you I must factor in the maximum penalties, as these reflect the seriousness with which Parliament regards each of the offences.
4The basis for Charge 1 on the indictment is that on Tuesday, 12 October 2021, you stole a bicycle which the owner had placed against the shop window of a bakery while she entered the store to browse. The bicycle, which was a particular brand of mountain bike, was valued at $5,000. Your theft was captured on CCTV footage from another business. The bike has not been recovered.
5In relation to Charge 2, the victim was sexually assaulted by you, that is the victim of Charge 2 was sexually assaulted by you as she was exiting the disabled toilet at the Regional Shopping Centre in Carrum Downs. She had been in the toilet with her two young children, one of whom was in the pram and the other walking alongside her. When she was inside the toilet, she heard a knock at the door and yelled out that she would be a minute. The victim opened the door and her young son walked out first, while she manoeuvred her pram around in the doorway. You stood in the doorway and, while the victim was turning around, you slid behind the victim and grabbed and squeezed her on the buttocks. You did not say anything to her or even look at her as you did this, entering the disabled toilet and closing the door afterwards. The victim alerted another person as to what had occurred. The male went to the toilet, opened the door, and saw you. He had a short conversation with you, and followed you out of the toilet area, then called Triple 0. You walked to a Hungry Jack’s store, then fled to a nearby bus. The witness advised the bus driver that he could not leave – sorry, the bus driver could not leave as there was someone on the bus who had assaulted a woman. Police attended shortly afterwards and found you at the bus stop. The victim pointed you out, and police obtained a statement from her and activated body-worn cameras to conduct a field interview with you.
6The basis for Charge 3 is that at about 6.20 pm on 8 November 2021, you entered Dan Murphy’s Liquor Store on Nepean Highway in Frankston with a small group of youths. While staff were escorting a number of the members of the group out of the store as they appeared to be underage, you selected a bottle of vodka valued at $38 and hid it inside the front pocket of your hoodie. You then immediately left the store without making any attempt to pay for the item. The bottle of vodka not been recovered.
7The basis for Charge 4 is that on 8 November 2021, at about 4.10 pm, you stole a particular brand of mountain bike valued at $800 which had been 'parked' inside the Hall Road Shopping Centre in Carrum Downs. You were captured on CCTV cameras entering the shopping centre, pulling your hood up, and then riding the bike from the shopping centre. Subsequently you were identified by police members, however you were on remand for a separate incident by the time that had occurred.
8In relation to the related summary offence of unlawful assault, the basis for this is that at approximately 8.30 am on 11 November 2021, the complainant in this matter who was a 16 year old male, was walking from the Stoney Point train-replacement bus in Young Street, Frankston, towards another bus stop at the Frankston Station. The victim walked past three males and one of those males was you. As he passed, you punched him to the right side of his face, hitting him in the right cheek. The victim said that it felt like he had been hit with a rock, and that the pain was instant. You then jumped in front of the victim and shaped up to him, ready for a fight. You said something similar to 'Why are you following me?' Two older women who were sitting nearby said words similar to 'Hey, that’s not on.' Another person grabbed you and pulled the victim away. The matter was not reported to police.
9The basis for Charge 5 is that on Wednesday, 8 December 2021, at about 4.40 pm, you were observed with two other male offenders damaging a bus stop sign outside the Frankston Railway Station. You ran up to the sign, jumped into the air and kicked it with considerable force causing the sign to dislodge from the ground and lean on an angle. You were then observed to be laughing with the other offenders at the sight of the damaged sign. The damage to the sign was valued at $1,041.35. Police arrived and you were identified by a witness.
10When police approached you to speak to you in relation to the incident, you ran away, ignoring their commands to stop. This is now not relied on for the basis of charge but for context only and so you are not to be sentenced in relation to this aspect.
11The basis for Charge 6 is that on Tuesday, 21 December 2021, you attended the Melbourne CBD and were captured on Safe City cameras between about 2.17 pm until 4.29 pm.
12At about 2.45 pm, you approached the victim in relation to this charge at the tram stop on the corner of Swanston and Collins Street, Melbourne. You demanded the victim’s Bose headphones. When the victim asked you why you wanted his headphones, you became angry, clenched your left fist, and threatened 'I’m going to hit you, I’m going to stab you'. Out of fear, the victim then handed over his headphones, and you left him. However, you came back shortly after to demand that he connect the headphones to your mobile phone. The victim offered to buy you a pair of headphones if you would return the stolen ones. Eventually, you returned his headphones and left after an unknown female commuter intervened.
13The basis for Charge 7 is that at about 4.15 pm that same day, you approached an unknown child on the corner of Flinders and Swanston Street, Melbourne. The child was with his family. You brushed past the child, then demanded money. The child victim handed you $20.
14A witness observed the incident and approached the child after you left. The child disclosed that he had been robbed and told the witness that he had given you $20 so you would not hurt him. The witness went after you, but seeing police in the vicinity he reported the offence to them. Police then approached you. You were still holding the $20 note, which was seized by the police officer.
15Police tried to locate the child victim but were unable to do so and the incident was not captured by Safe City cameras.
16Subsequently you were arrested and interviewed by police on Wednesday, 22 December 2021. You made partial admissions in relation to Charges 6 and 7, saying:
'I was cooked as brother and I needed some headphones and I seen him and I didn’t like the look of him.'
17You said that you did not rob this victim and gave the headphones back.
18In relation to Charge 7, you said that you:
'knew this kid bro, yeah bro he’s a faggot bro, I know him bro, I know him off by heart'.
19The basis for Charge 8 is that on Tuesday, 21 December 2021, at about 5.10 pm, you exited a train at Caulfield Railway Station. You approached two authorised Metro officers who were on duty. One of the officers was male, and the other was female and the victim in this matter. You asked for help in locating the Dandenong‑bound train, and the male officer instructed you to head to Platform 3. You then extended your right hand towards this officer in order to shake his hand. You then stepped towards the female officer, placing your right hand on her shoulder, brushing her shoulder for a few seconds, before moving your hand and cupping her right breast with your right hand. You did this for a few seconds before walking away, turning towards her to blow a kiss at her.
20Police were notified immediately, and you were arrested.
21At the time of this offence, you were on bail for the criminal damage charge which is the subject of Charge 5, having been granted bail on 15 December. This is the basis for the summary charge of committing an indictable offence whilst on bail.
22At about 8.25 pm on 21 December, police observed you bare your penis and begin to masturbate in your police cell. Police viewed this through the CCTV camera at the Melbourne West custody centre. This gives rise to the summary offence of acting contrary to the good working order of a police gaol.
23You were interviewed about the sexual assault. You said that you were saying hello to your mate, and that 'his Mrs' was there and you went to give her a tap on the shoulder. You said that you slid your hand down and squeezed her 'titties'.
24The basis for Charge 9, which is a rolled-up charge of criminal damage, is that on Monday, 24 January 2022, at about 12.30 pm, you were observed by a witness to be tagging the walls and roof of a train carriage with a black marker. You walked to the other end of the carriage and tried to interact with the witness. You then returned to the other end and continued to tag the walls. The witness took photos of you, and the incident was captured on CCTV. As you got off the train you tagged the outside of the carriage. You were asked by a Metro staff member to wipe the marking off, but you made no real attempt to do so. You then boarded another train and began tagging the roof and walls of a train carriage from that train.
25As the train approached a station, two unknown women walked towards the door. You walked up behind them and swung your right hand towards the buttocks of one of the women, stopping before making contact. The two women got off the train. You yelled after them, 'Why. You have a fat ass though'. This was captured on CCTV and witnessed by another person. Your offending gives rise to the related summary offence of behave in an offensive manner.
26The basis for Charge 10 is that when the train arrived at Frankston Railway Station you got off the train and approached a wall of the station, where you used the black marker to tag the wall. Your offending was captured on CCTV and you were identified as the offender. The total cost of cleaning damage for the damage caused to Metro Trains was $87.04.
27The basis for Charge 11 is that on 1 February 2022 at 3.10 am you engaged in tagging various parts of business premises at the South East Water buildings. The cost of the removal of the graffiti amounted to $538.79. You were with a second unknown male on this occasion; however, he was not involved in the tagging.
28At the time that you committed the offences which are the subject of indictment Charges 9, 10 and 11, you were on bail for Charges 6, 7 and 8, with bail having been granted in relation to these on 19 January 2022. This gives rise to the further summary offence of committing indictable offence whilst on bail.
29The basis for Charge 12 is that on Monday 1 February 2022, you were loitering in the Frankston CBD in company with two unidentified males. At 4.00 am, you and the other males walked into Wells Street from Nepean Highway. At this time, the victim, who was a 73 year old homeless man, was walking along the footpath in Wells Street approaching Nepean Highway. You and the other males approached the victim and asked him for money. The victim replied he did not have any. You then punched the victim to the head, causing him to fall to the ground. You and at least one of the unidentified males then commenced to repeatedly kick the victim to the head, body and legs. You stole a jacket that the victim was holding. Police were notified and they found you and the two unidentified males. As police approached, you dropped the victim’s jacket on the footpath. You and one of the unidentified males then fled while the other male rode his e‑scooter through a back street to avoid apprehension.
30After stealing the victim’s jacket you searched through the pockets, discarding papers along the way in Wells Street. You stole $15 which was in one of the pockets. The victim was taken to hospital and suffered a laceration above his right eye, a fracture to his left forearm, and two fractured ribs.
31On 19 January 2022 you were granted bail to appear at the Moorabbin Magistrates Court on 25 January 2022 in relation to Charges 6, 7 and 8. One of the conditions was that you not attend within 10 metres of the Frankston Central Business District. In contravention of that condition, you were in that area when you committed the robbery which is the subject of Charge 12. This gives rise to the summary offence of contravening a conduct condition of bail. Further, you failed to appear at the Moorabbin Magistrates Court on 25 January 2022, giving rise to the related summary offence of failing to answer bail.
32The basis for Charge 13 is that on Tuesday, 1 February 2022, you entered a shop in Frankston where you stole a high-vis bucket hat valued at $14.99. You immediately left the store, making no attempt to pay for the item. You subsequently removed the price tag and continued on your way.
33The basis for Charge 14 is that you were apprehended by police shortly after the shop theft to which I have just referred. When police searched you they found a small amount of cannabis, giving rise to Charge 14.
34They also found a knife within a sheath, giving rise to the summary offence of possess controlled weapon.
35You were taken to Frankston Police Station but you were not interviewed due to being drug-affected.
36Mr Marsters, your offending is serious and deserves a punishment which is just in all of the relevant circumstances. Over the course of several months, you marauded around, apparently behaving any way you felt like and engaging in behaviour at times which was utterly outrageous. I regard the most serious offences in this spree as being the sexual assaults and the robberies. In particular, the robbery of the homeless gentleman was cowardly and vicious. I also note that on that occasion you had others with you. Your behaviour has been brazen and ranges from making a nuisance of yourself to behaving in a most frightening or offensive manner toward others. Your conduct must be appropriately denounced.
37The victim of the sexual assault at the train station, has provided a VIS, and I take this into account. She said that your offending has made an indelible mark on her emotional and psychological wellbeing. It has negatively impacted on her ability to work in a job that she had enjoyed. She suffers from flashbacks and other negative effects including sleeplessness and anxiety. She has needed therapy in order to deal with her wellbeing issues that have been caused by your offending. She has suffered a loss of confidence in herself and distrust of others. To her great credit, she is fighting the effects of this crime and hopes that in time her symptoms will alleviate.
38I have also received a victim impact statement from the victim of the sexual assault at the shopping centre. She spoke of the negative emotional and psychological effects upon her which has been caused by your offending. Due to your offending she has become hypervigilant and finds it overwhelming and stressful to attend shopping centres. She also has had to seek professional treatment for her wellbeing issues caused by your offending. She has suffered symptoms of PTSD and now takes medication for anxiety, she said. The impact of your offending has had flow-on effects to her parenting as she fears for her children's safety in carparks and shopping centres and is hypervigilant with them also. She spoke about the various physical symptoms of her PTSD which are significant. She has been unable to lead a normal working and social life and has had to take sick days from work due to migraines. She was diagnosed with a stress-related disorder after your offending, although she fairly stated that causation could not be directly confirmed. She said that she had suffered financial loss due to medical appointments, supplements and medication. I have also factored in the attached documents in her victim impact statement.
39Mr Marsters, these are the very real effects of your offending on those victims in this matter. No doubt the impact on other victims in relation to your offending, especially the homeless man, I presume, would have been an impact of harm upon him.
40You have the following criminal history:
41In the Melbourne Children’s Court on 24 September 2015, you were dealt with for six charges of shop theft, three charges of unlawful assault, eight charges of committing an indictable offence whilst on bail, four charges of recklessly causing injury, five charges of contravening a conduct condition of bail, one charge of intentionally causing injury, two charges of intentionally damaging property, three charges of robbery, five charges of theft, one charge of burglary, two further charges of criminal damage and two charges of wilful damage of property, one charge of attempt to commit indictable offence, one charge of theft of a motor vehicle, one charge of retention of stolen goods, one charge of obtaining property by deception, one charge of possess controlled weapon without excuse, one charge of carrying controlled weapon without excuse, and a further charge of shop theft. Without conviction, you were released on a youth supervision order for 12 months with various conditions attached including counselling for substance abuse and unpaid community work 'if your mental health permits'.
42On 20 April 2016 in the Moorabbin Children’s Court you were dealt with for two charges of robbery and two charges of committing indictable offence whilst on bail, assault by kicking, intentionally causing injury and attempted robbery. Without conviction you were released on a youth supervision order for 12 months and ordered to undergo general counselling for drug and alcohol abuse.
43On 20 April 2016 at the Moorabbin Children’s Court you were dealt with for breaching the supervision order of 24 September 2015, and, by way of resentence, the previous youth supervision order was confirmed.
44On 13 December 2016 you received a without conviction adjournment for approximately four months in respect of interfering with a fire alarm.
45The next court appearance occurs five years later on 6 December 2021 where you were sentenced to 21 days' imprisonment, being time served, for one charge of shop theft, one charge of attempted robbery and one charge of committing an indictable offence whilst on bail.
46As I have said, I have taken into account your criminal history in sentencing you.
Impact on the victims
47The matters for which I now sentence you first came before me for a sentence indication hearing in circumstances where a question had previously arisen in respect of your fitness to take part in court proceedings. However, defence indicated that they would not be pursuing this aspect and it seemed to me from the material provided that a question as to your fitness had not sufficiently arisen in order to explore this further. However, the matter was adjourned in order for the defence to obtain an updated report with respect to your level of moral culpability insofar as the offences were concerned and other matters which might impact the weight that I give to relevant sentencing considerations.
48I have considered the report of Dr Sara Fratti, clinical neuropsychologist, dated 8 July 2023.
49Dr Fratti was of the view that you suffer from cognitive, psychological and functional deficits which are primarily attributable to your longstanding psychiatric condition 'likely exacerbated by years of substance misuse and non-compliance with antipsychotic treatment'. (Page 1). She said that from a diagnostic perspective you suffer from a mild neurocognitive disorder of multifactorial aetiology secondary to chronic schizophrenia and substance-related acquired brain injury. She said that these were longstanding and permanent conditions which had developed over the course of years, noting that your first psychotic episode was documented in 2015 and that therefore was present at the time of the offending for which I now sentence you.
50She said that regrettably your cognitive disability was lifelong and expected to exacerbate further with a relapse into substances or 'inconsistent psychopharmacological treatment'. (Page 1)
51She said that your cognitive deficits were characterised by moderately impaired verbal abstract reasoning, nonverbal reasoning and processing speed and severe impairments in executive functioning such as idea generation and multitasking. She said that basic attention and working memory were relative strengths and within normal limits. She said that new learning and memory functions were variable, with best performances in visual memory tasks but a marked difficulty observed in verbal learning skills, especially without the support of repetition. She said that your insight and awareness into your mental health and the negative effects of substance use, although slightly improved since you have been in jail, remain partial.
52Dr Fratti said that from available documentation it appeared you were substance-affected at the time of the alleged offences, and you were also non-compliant with anti-psychotic treatment and therefore acutely unwell from a mental health/perspective. She said at p2 of her report:
'The effects of Mr Marsters’ untreated schizophrenia and substance use would have certainly impaired his judgment, general awareness and ability to control his impulses. He would have had difficulty making calm and reasoned decisions in a short timeframe and it is why, in my opinion, his conditions have likely contributed to his erratic presentation and antisocial behaviours.'
53She said that at the time she interviewed you, you showed some self-reflection skills if provided with guidance. You knew that the alleged offending was wrong and socially unacceptable. She said the extent of your cognitive impairment, in her opinion, is likely to affect your capacity to think efficiently through the potential consequences of your actions when caught in highly stressful situations, especially if you are rushed or under the influences of substances and experiencing acute psychotic symptoms.
54In relation to whether your condition would be likely adversely affected by imprisonment and whether your condition or conditions would deteriorate whilst in custody, she said that you would have better chances to function in a setting that is well organised and with clear routines in place. She said that in this sense the structure of prison was beneficial and had prevented substance relapse and treatment non-compliance. She said that there appeared to have been a gradual amelioration of your mental state since incarceration. She said that you are more stable in a prison rehabilitation unit after progressing from acute and sub-acute units. However, she said that because of your complex mental health, ongoing imprisonment would weigh more heavily on you than on someone without mental illness, which warranted regular mental health reviews from Forensicare.
55She noted that you have inconsistent engagement with mental health services over the years, resulting in recurrent psychotic events, emotional dysregulation, and a series of maladaptive behaviours. She noted that whilst in the care of your mother you were reportedly not adequately supervised and would routinely cease or skip your treatment. Your mother, understandably, had significant difficulty managing your complex behaviours and treatment needs. Whilst willing to remain supportive she felt she could only do this from a distance for fear that your disordered behaviour and violent outbursts might occur. In this regard, your mother was at the previous hearing in support of you and I was told that she was willing to have you back home, however, this was strictly on the basis that you behaved well, which would involve abstaining from drug use and engaging in appropriate mental-health treatment.
56At the time you were assessed by Dr Fratti, you denied any episodes of behavioural escalations and said you felt calmer and less anxious overall. You did not present with any acute psychotic symptoms and denied any perceptual disturbance. Dr Fratti said that this showed that in a controlled environment, with proper medical care and supervision, your overall wellbeing had improved.
57Dr Fratti was of the view that you would struggle to live independently in the community without close supervision and a coordinated approach to treatment. She said that providing suitable routines and meaningful activities would reduce the risk of relapse whilst increasing your chances of pro‑social engagement. However, she noted that your family have limited ability to manage your complex presentation and it was unrealistic to expect that they would be able to cope on their own. She said that you would benefit from alternative living arrangements where you could receive guidance and work on your capacity-building and where your medical needs and community access were closely monitored. She said that NDIS-supported living options, as well as assistance from NDIS, might be able to help you live independently in the community. She said:
'In my opinion, he will need systematic allied health intervention (occupational and behavioural management) and a daily support worker program to ensure self-care, organisation, problem-solving, budgeting, shopping, communication and social interaction.' (Page 3)
58She said that you were able to say that the nature of the alleged offending was wrong, expressing this in simple language. You said your offending behaviours were 'too out there' and likely due to you being under the influence of substances. She said that there was only a superficial expression of remorse or victim empathy. However, Dr Fratti was of the view that this was related to impairment in consequential thinking, as well as your limited capacity for self-reflective thinking. She said that in the future it would benefit you if those working with you were made aware of your cognitive limitations when appropriate.
59Mr Marsters, having considered all of the material in relation to your state of mental health at the relevant time, that is the time that you committed these offences, I accept that you were suffering from a relevant impairment of mental function in such a way that your moral culpability is somewhat reduced. However, I must also factor in that you were also substance-affected, although it would appear that this might have occurred due to you self-medicating for the symptoms you were experiencing. This finding impacts the weight which would otherwise attach to specific and general deterrence so as to reduce the weight attaching to these considerations. However, I must also be concerned about the protection of the community.
60I have taken into account that you have been in jail for a substantial period. However, it seems to me that overall you have improved in terms of your mental state, such that I make a marginal allowance in your favour due to the fact that time in custody has been somewhat harder for you than for someone not suffering from mental illness. I note that overall you appear to be doing well.
61In sentencing you, I take into account your pleas of guilty and the stage at which these were entered. In taking the course that you have, you have contributed to a reduction in the backlog of trials in this court which has been caused due to the pandemic. In taking this course, you have also spared the witnesses, especially the victims, the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings. In all the circumstances, I allow for a significant discount in relation to this aspect and a palpable allowance in your favour due to your preparedness to plead guilty in the context of the pandemic.
62You are now 24 years of age and were 22 and 23 at the time of the offending. Therefore, you are still a young man and I accept that I must do what I can to maximise your prospects of rehabilitation.
63I allow for the fact that you have been in custody for a significant period and have spent time in quarantine as well as in various psychiatric units. You reported to your counsel that you had found it difficult to be with people who were psychiatrically unwell. I have also factored in that due to your mental health issues the matter could not be resolved in the Magistrates Court where this might have otherwise occurred.
64I understand that upon your release, as I have said, your mother is willing to have you at home, although strictly on the basis that you behave well as she cannot manage you otherwise. Do you understand that?
65In all the circumstances, I find that your prospects of rehabilitation are guardedly fair. Due to your mental health issues, I reduce the weight which would otherwise attach to specific and general deterrence to a moderate extent. If this had not been the case, I would have attached fairly strong weight to specific deterrence and strong weight to general deterrence in a bid to deter others from behaving as you have. I have also modified the weight which would otherwise attach to imposing just punishment upon you. However, I must attach fairly strong weight to protection of the community.
66At a previous hearing I arranged to have you assessed for a community correction order with a view to releasing you on a combination sentence after the matter came before me once more. The assessment has now returned and you have been deemed suitable.
67I indicated at the sentence indication hearing that I would impose a combination sentence which reflected time served for all, or, for the most part, although perhaps with a slightly additional period to ensure that you were able to successfully transition into the community. You pleaded guilty to the charges on this basis. Having now received the assessment report which recommends that you be subject to a community corrections order, as I have said, I will put you on a community corrections order in combination with a sentence of imprisonment which reflects the time you have already served.
68You are convicted of all the offences, both on the indictment and summary matters. In respect of the offence of possessing cannabis you are fined $50 and in respect of the offence of acting in a prejudicial manner to gaol you are fined $100.
69In respect of all the other offences, both on the indictment and summary matters, you are sentenced to an aggregate term of imprisonment of 600 days in combination with a community corrections order that I will explain in a moment.
70I declare that you have already served 600 days, so that should mean that you will be released today. If not, I would say tomorrow morning, but it should mean that you will be released today.
71I intend to place you on a community corrections order but I can only do this with your consent. So only if you agree that you can go on a community corrections order can I place you on one, okay?
72OFFENDER: Yes.
73HER HONOUR: So please listen carefully to the order that I propose.
74The community corrections order would run for a period of 18 months.
75The conditions of the community corrections order would be:
76Firstly, the mandatory terms that apply to all community corrections orders, which are:
77You must not commit another offence for which you could be imprisoned during the time that the order is in force;
78Secondly, you must comply with any obligation or requirement prescribed under the Sentencing Regulations 2011;
79You must report to, and receive visits from, the Secretary to the Department of Justice, or his or her delegate;
80You must report to the Cranborne Community Corrections Centre within two clear working days of today, okay?
81OFFENDER: Yes.
82HER HONOUR: So I want you to report there though. It means your deadline for that is Tuesday. I really want you to turn up there and report on Monday, okay?
83OFFENDER: Yes.
84HER HONOUR: You must let a Community Corrections officer know within two clear working days of you changing your address or job;
85You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice, or his or her delegate;
86You must obey all lawful instructions from, and directions of, the Secretary to the Department of Justice, or his or her delegate.
87Now the conditions that apply in addition to the mandatory terms that I have just told you about are:
88That you must be under the supervision of a Community Corrections Officer for a period of 18 months.
89Treatment and Rehabilitation
90You must undergo assessment and treatment, including testing for alcohol and drug abuse or dependency as directed by the Regional Manager.
91You must undergo mental health assessment and treatment, including but not limited to, mental health, psychological, neuro-psychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager.
92I require that each of the treatment conditions to which I have just referred, that is in respect of the drug and alcohol assessment and treatment and in respect of your mental health, be administered by Community Corrections intensively from the outset and throughout the period that the order is in place.
Programs re offending
93Also, you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager, including assessment for, and programs offered, by the Specialised Offender and Treatment Service.
Monitoring
94Also, you are to attend this court from time to time to be monitored by me. That means I want you to come to court when I tell you to so we can have a chat about how you are going on the order – yes?
95OFFENDER: Yes.
96HER HONOUR: So your first appointment will be on Friday 27th October at 9.30 am – that is okay, that is okay, you will get reminders about all this so that's all right.
97OFFENDER: Okay, yeah.
98HER HONOUR: So before each monitoring appointment I am going to have Community Corrections give me a report that tells me how you are going on the order.
99OFFENDER: Yes.
100HER HONOUR: And you are not to be, unless you really want to be, but you are not to be represented at these appointments that I have with you, as they are a chance for me to have a chat with you about your progress and for Community Corrections, they can attend and tell me how you are going as well.
101Now having heard all the conditions that I say should be in the community corrections order, do you agree to the terms and conditions of the order?
102OFFENDER: Yes, I agree.
103HER HONOUR: Thank you. I should tell you if you do not obey all the requirements of the order then you may well face breach proceedings before me, you will be sentenced in relation to the breach and you may well be re-sentenced in relation to the charges, in which case you may be sentenced to a further sentence of imprisonment. So you might be sent back to gaol. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
104Do you understand this?
105OFFENDER: Yes, I do.
106HER HONOUR: Do you still agree to the making of the order?
107OFFENDER: Yes.
108HER HONOUR: Therefore, in relation to the charges to which I have just referred, you are convicted and sentenced to the community corrections order in the terms and conditions that I have just set out, in combination with the gaol term which you have already served.
109I record that you have agreed to the making of the order audio-visually via the video link.
110If not for your pleas of guilty I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of two years 10 months.
111So, Mr Marsters, what that means is you are going on to the community corrections order straight away, just about, right?
112OFFENDER: Yes.
113HER HONOUR: As soon as you get out of gaol, which is very soon, you have to behave yourself. Do not go back on the drugs, keep your treatment going, keep the treatment going for your mental health issues, all right?
114OFFENDER: Yes.
115HER HONOUR: You have to take the medication, you have to take the advice from the doctors. Do not take substances, do not take alcohol or you will be back in trouble, okay?
116OFFENDER: Yes, ma'am.
117HER HONOUR: All right. I do not want you to risk also your mum being upset about your behaviour, so you have to behave yourself at home too, okay.
118OFFENDER: Yes.
119HER HONOUR: So is there anything further to raise?
120MR MALIK: Your Honour, there's just the ancillary orders, they've been filed.
121HER HONOUR: What were they?
122MR MALIK: I'll bring them up, Your Honour, there were a number.
123HER HONOUR: Yes, are they opposed?
124MR PYNE: Your Honour, I wasn't aware of the ancillary orders. Is there - - -
125HER HONOUR: I must say I understood that they said that they might be making a compensation application, I didn't know that they were seeking it in these terms. I must have overlooked - - -
126OFFENDER: Excuse me, ma'am. Is it all right if I can go to the toilet?
127HER HONOUR: Yes, I think we can conduct this aspect in your absence. So what we'll do is we'll finish the hearing and I will just talk to the barristers about these other orders, okay?
128OFFENDER: Okay.
129HER HONOUR: Yes, thank you, we'll suspend the link. Were we provided with these from the outset?
130MR MALIK: Yes, Your Honour. Well, they were provided at the same time as the other documents, including the notice of additional or summary charges, the amended opening, criminal history, they were all provided in one lump.
131HER HONOUR: I see, very well. What do you say, Mr Pyne, you haven't taken instructions in relation to those obviously. There's $87 compensation for Metro trains, $14.99 for Workers Pty Ltd for the hard hat, $3,250 for the - - -
132MR PYNE: There would be no issue with the forfeiture and disposal orders but in relation to the compensation orders all I would say is that he's got no money, I mean he's just been released from prison, he's got a psycho-effective disorder and significant social problems and no job.
133HER HONOUR: Yes. Is he capable of earning income?
134MR PYNE: He has not had a job for the last two years, and as Your Honour might remember from the Zimmerman report, although it's not featured much in these proceedings, has been involuntarily admitted.
135HER HONOUR: Yes. What do you say, Mr Malik, by way of reply.
136MR MALIK: Your Honour, I don't say anything in response.
137HER HONOUR: It seems to me to be a pointless exercise, I must say, he has nothing and he doesn't have the capacity to pay.
138MR MALIK: It may well be an exercise of futility, and in any event it's not – the compensation orders are not enforceable in and of themselves, they would require, whoever the orders are made against, to then make a claim in the Magistrates Court for those to be paid, so.
139HER HONOUR: Yes, I think in all the circumstances I just am not prepared to make the compensation orders. I must say this matter has involved a great deal of work and last minute attention in some ways. For instance, the victim impact statement – I am not being critical of the Crown but it's just – and the summary offences were just absolutely, you know - - -
140MR MALIK: Just in relation to - - -
141HER HONOUR: Very difficult to comprehend what was going on there. But, anyway, I will make the disposal and forfeiture orders, which are not opposed. Do you persist with the compensation orders?
142MR MALIK: No, Your Honour. And just for the record, Your Honour, they were filed with the court, I think on 27 July so - - -
143HER HONOUR: Yes, well - - -
144MR MALIK: I understand there was a lot of - - -
145HER HONOUR: Yes, well they might have been but I can tell you that there's been a lot of to-ing and fro-ing and a lot of work done by my associate that I don't think she should have had to do.
146MR MALIK: Yes, Your Honour.
147HER HONOUR: All right, yes, thank you. We will now adjourn.
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