Director of Public Prosecutions v Mewburn

[2016] VCC 1130

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00043

DIRECTOR OF PUBLIC PROSECUTIONS

v

RHYS MEWBURN

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2016
DATE OF SENTENCE:	4 August 2016
CASE MAY BE CITED AS:	DPP v Mewburn
MEDIUM NEUTRAL CITATION:	[2016] VCC 1130

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms C. Pizzimenti	Susanna Locke
For the Accused	Mr N. Power	Natasha Vermezovic

HIS HONOUR:

1Rhys Mewburn, you come before me having pleaded guilty to failing to comply with the conditions of a community corrections order.  I find that charge proved.  You were before me in Geelong on 21 April 2015 for offences which occurred on 9 October 2014. 

2On that day on a charge of aggravated burglary, intentionally causing injury, robbery, committing an indictable offence whilst on bail and entering private premises without lawful excuse, you were sentenced to a 24 month community corrections order that contained the usual mandatory terms and a requirement that you perform 100 hours of community work, be under supervision, and undergo assessment and treatment for drug abuse or dependency.

3At that point, you were also on another community corrections order for other offending.  I ordered that the two orders be served concurrently.  You breached the community corrections order that I imposed by committing the offences of recklessly causing injury and unlawful assault on 16 June 2015 and contravening a family violence intervention order on 7 October 2015.

4For this new offending, you were placed on a 12 month community corrections order by a magistrate on 22 April 2016.  You have now been breached on the community corrections order that I imposed, on the basis of that further offending, and also on the basis that you failed to comply with the community corrections order that I imposed, in that you failed to perform community work on six occasions between October 2015 and March 2016, you failed to undergo treatment and rehabilitation as required in June and October 2015.  In late May 2016, you were apparently arrested and charged with murder, and you have been on remand for the last 66 days. 

5As you have breached the community corrections order that I imposed on you, and the Geelong Community Corrections Office in their report have indicated that as you are now on remand, you will not be able to complete a further community corrections order.  It is necessary that I now resentence you on the original offending and cancel the order that I imposed on you last year.

6Your counsel in this plea in relation to this matter, referred to matters that had been put on the original plea and that are traversed in my sentencing remarks which I incorporate by reference.  In addition, counsel referred to the report of the community corrections office, which indicates that you completed over half the community work that was ordered.  This was in circumstances where in the report there was reference to medical problems effecting your ability to undertake the work.  In addition, you were referred to ASCO for assessment for drug offending.  You undertook the appointments. 

7On completion, you were still using cannabis daily and the report recommended that you continue to engage and monitor your mental health.  You were the subject of a mental health care plan and you engaged with a mental health social worker in accordance with that plan, although you appear to have ceased to engage in late February 2016.  You successfully completed a positive lifestyle program with the Salvation Army, concluding in November 2015. 

8Overall, the report of the Community Corrections Office indicates that you made adequate progress towards the conditions of your order.  But it recommended cancellation in view of the charges that you are currently facing and the fact that you are on remand.  As I indicated in my sentencing remarks on the original charges, in accordance with the submissions by your counsel, and having regard to your difficult background and lack of relevant antecedents, I emphasised a rehabilitative disposition, by imposing a community corrections order.

9The difficulties that you have were set out in the report of Pamela Matthews, forensic psychologist, dated 6 March 2015.  She indicates that you have been involved in regular cannabis use and intermittent methylamphetamine use.  You were on the CISP Program after your arrest and appear to have been assisted by that program.  You were found not to have an intellectual disability, but
Ms Matthews indicated that:

"Your cognitive and adaptive functioning falls in the mild to borderline range of cognitive ability".

10She notes that you have a history of attention deficit disorder, and an oppositional defiant disorder.  You had also previously had ADHD which in her opinion, leads into adulthood to impairment in major life domains.  She notes that:

"You are likely to be socially, emotionally vulnerable in a prison environment.  With little family support given your mother and brother are interstate".

11All in all, her report is rather depressing reading and indicates the significant difficulties you face in the community.  The report of Kelly Foster, psychologist, indicates that you are in the bottom four percent of intellectual ability, which puts you in the borderline range.

Sentencing considerations:

12In sentencing you on the original offending, I must have regard to the sentence imposed on your co-offender in the events.  Your co-offender Ms Webb was about three years older than you and had significant antecedents.  As recited in my sentence, she had a terribly deprived background and had effectively recycled through the criminal justice system for the previous eight years.

13Protection of the community was an important sentencing consideration in relation to her.  She had not previously been the subject of a sentence of imprisonment.  She was suffering from PTSD and had required treatment for that condition, and was also drug addicted like you.  I accept the submission of your counsel that the variation in antecedents between the two of you, was such that it was appropriate to impose a non-custodial disposition on you, and a sentence of imprisonment on Ms Webb.  In sentencing Ms Webb, I also took into account the fact that she was at that stage, in an advanced stage of pregnancy. 

14In now re-sentencing you for this original offending, I must have regard to the extent to which you have completed the community corrections order that I imposed.  As I have noted, you received a relatively good report from the
Office of Corrections.  You did complete over half of the community work and the programs directed by the office.  As your counsel put, you are also the subject of supervision over the period from the sentence to when you were arrested.

15Unfortunately, however, a little over two months into the order, you reoffended.  Notwithstanding that reoffending, you continued to comply with the balance of the community corrections order by participating in the programs and undertaking some of the community work.

16On that basis, notwithstanding the further offending, I must give you substantial credit for your performance under the community corrections order.  You are now in a position where due to your remand on other matters, namely the charge of murder which apparently is alleged to have occurred before you were dealt with on this community corrections order, you cannot undertake a community corrections order.

17You have now been on remand for some 66 days.  That is likely to continue for some period as the charges progress through the criminal justice system.  In my sentence last year, I took into account that you had been in custody for 20 days for this offending.  Your current detention or remand is not on account of this offending.  It therefore cannot be counted as pre-sentence detention. 

18The authorities however direct me to take it into account in a general manner in sentencing you at the first opportunity, and I do so having regard to considerations of totality.  I do take into account your present remand, without formally crediting you.  Any sentence I impose must be such that it does not give rise to a justifiable sentence of grievance on the part of your co-offender Ms Webb.  You were facing a roughly comparable set of charges, and in particular, the charge of aggravated burglary and robbery, you were charged as co-offenders, whereas you faced a charge of intentionally causing injury to
Mr Cooke and Ms Webb faced a charge of assaulting him with a weapon.  As I have indicated, she had a much more significant set of antecedents and given her failures to respond in the past, was not in a position to seek a non-custodial disposition.  Protection of the community was also a salient sentencing consideration for her.

19Having regard to her prior offending, and the contrast between your different antecedents, and her failure to respond in the past, I regard it is appropriate to impose a lesser sentence of imprisonment on you in the present circumstances, particularly having regard to the extent to which you - notwithstanding further offending, complied with a community corrections order.  Could you please stand.

20I find the charge of breaching the community corrections order proved.  I cancel that community corrections order that was imposed on you on 21 April 2015.  On the original charges, I sentence you to eight months imprisonment as an aggregate sentence.  I declare that you have served 20 days pre-sentence detention.  Any other matters?

21MS PIZZIMENTI:  No, Your Honour.

22MR POWER:  No, Your Honour.

23HIS HONOUR:  I want to thank counsel for their assistance.  I wish you all the best Mr Mewburn and I will stand down temporarily.

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