Director of Public Prosecutions v Matthew Euese

[2021] VCC 1947

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-00422

DIRECTOR OF PUBLIC PROSECUTIONS

V

MATTHEW EUESE

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JUDGE:	WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2021
DATE OF SENTENCE:	24 November 2021
CASE MAY BE CITED AS:
MEDIUM NEUTRAL CITATION:	[2021] VCC 1947

REASONS FOR SENTENCE
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Subject: Breach of Community Correction Order

Catchwords :  Resentenced on original charges

Legislation : Luu v R [2018] VSCA 92

Sentence: Total effective sentence   2 years 3 months non parole period 18 months       

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. McCowan	OPP
For the Accused	Ms A Addamo	Leanne Warren

HER HONOUR:

1This is a hearing of a breach proceeding, relating to a sentence imposed on 3 December 2018. you were sentenced to 9 months imprisonment to be followed by a 5 year CCO.

2On 11 November you appeared without legal representation and I adjourned the further hearing for you to obtain legal assistance.

3You originally pleaded guilty to 4 charges of armed robbery, one charge of attempted armed robbery, one charge of theft, one charge of causing injury recklessly and 8 summary charges. They are: one charge of resisting an emergency worker on duty, one charge of assault, and six charges of committing an indictable offence while on bail.

4I sentenced you to a short term of imprisonment with a very long CCO.

5Judge Smallwood imposed a sentence on you on 17 June 2021, of 4 years and 2 months, with a non parole period  of two years and six months. PSD declared was 566 days. On that basis you would have been eligible for parole in early June 2022.

2 ½ year non parole period = 30 months = 910 days

910 days minus 566 PSD days = 344 days

344 days = 11 ½ months = 1 June 2022

6In addition to the PSD of 566 days, there is now an additional 249 emergency management days, because of the pandemic. Central Records has confirmed that you were therefore eligible for parole on 3 October 2021.

7Therefore you have now been in custody for one month and three weeks past your eligible parole date.

8Luu v R [2018] VSCA 92 This case establishes the proper course in a case like this. It is to set aside the original sentence including cancelling the CCO, and sentence afresh, as if the court had just found you guilty of the earlier offending. Then I must declare as already served the period you did in fact serve, which is 9 months. It would be open to me to consider allowing for some concurrency, recognising the principle of totality, for the sentence imposed by Judge Smallwood.

9The decision in Luu provides a guide as to how to construct the new sentence. Ordinarily one would not impose a sentence longer than the period of the original combination sentence. In Luu, the original prison term was one year and the CCO was for 18 months. In sentencing anew the Appeal Court added together the original prison term and the period of the CCO, and reached the TES of 2 years and 6 months. The offender was then sentenced to 2 months for the breach charge, and one month of that sentence was added to the 2 years and 6 months, bringing it to 31 months. A non parole period of 24 months was then fixed, before declaring PSD. That quite high non parole period was intended to take into account the diminished prospects for rehabilitation because of the breach and further offending, requiring a longer than usual non parole period.

10Now that you have breached the CCO I shall impose a longer prison sentence than the original 9 months, but I will order a lot of concurrency, to allow for some parity with Ms Manese and some totality, given the time you have spent in prison recently:

For charge 1, 2 months

For each of charges 2, 3, 5 and 6, 18 months

for charge 4, 12 months

for charge 9, 6 months

for each of the summary charges, 1 month

11The 18 month sentence for charge 2 will be the base sentence for purposes of cumulation.

122 months of each of the sentences for charges 3, 5 and 6, and 1 month of each of the sentences for charges 4 and 9 are to be served in cumulation upon the base sentence. The sentences for the summary offences are to be served concurrently.

13I also sentence you to 2 months’ imprisonment for the breach charge, and one month of that is to served in cumulation upon the base sentence. This results in a total effective sentence of 2 years and 3 months. I fix a non parole period of 18 months.

14I declare as already served the 9 months you served back in 2018 and 2019.

15If you had pleaded not guilty to these charges I would have sentenced you to 3 years’ imprisonment with a non parole period of 2 years.

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