Director of Public Prosecutions v Mitchell

[2022] VCC 1136

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02061

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID MITCHELL

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JUDGE:	Her Honour Judge Gwynn
WHERE HELD:	Melbourne
DATE OF HEARING:	5 July 2022
DATE OF SENTENCE:	19 July 2022
CASE MAY BE CITED AS:	DPP v Mitchell
MEDIUM NEUTRAL CITATION:	[2022] VCC 1136

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:   Home invasion, causing injury intentionally

Legislation Cited:  Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic)

Cases Cited:Bugmy V R (2013) 302 ALR 192, R v Verdins & Ors (2007) 16 VR 269, Worboyes v The Queen [2021] VSCA 169

Sentence:  Term of imprisonment of 18 months, with 447 days reckoned as served and a two year community correction order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Martin	Office of Public Prosecutions
For the Offender	Mr M. Stanton	Matthew White & Associates

HER HONOUR:

1David Mitchell, you have pleaded guilty on Indictment to charges of home invasion and causing injury intentionally.

2In sentencing you for your crimes, I am required to have regard to the maximum penalty for the offences which you have committed. A charge of intentionally cause injury carries a maximum penalty of 10 years imprisonment. The maximum penalty for home invasion is 25 years imprisonment.

3These maximum penalties to which I have referred reflect the seriousness with which Parliament regards each of these offences.

4In addition, the charge of home invasion is a category 2 offence under the  Sentencing Act 1991. Section 5(2H) of that Act requires the Court to impose a custodial order for this offence unless one or more of the circumstances set out in paragraphs (a) through to (e) of that subsection exist.

The Offending

5The circumstances of your offending were set out in a document entitled 'Summary of Prosecution Opening for Plea' dated 5 July 2022. This document represents your acceptance of the elements of the offences to which you have entered your guilty pleas as well as the factual basis on which I am to sentence. It will be summarised in my reasons, but I have had recourse to the full document.

6At the time of the offending you and your victim, Dominic Fusca, resided in Chadstone. This residence is a shared house containing six rooms, a communal bathroom and a kitchen. Outside the primary premises is a bungalow which contained four rooms and a common area. You resided in the main house. The victim resided in the bungalow and had done so for 10 days prior to the offending.

7On 13 April 2021 Mr Fusca returned to his room at approximately 9 pm and watched television on his phone before falling asleep.

8He was awoken at approximately 11:30 pm to 12 am by the sound of footsteps and heard a knock on his door. He yelled out, ‘Who’s that?' but no one replied. The door was then kicked in and it is alleged that you and your co-accused, Josh Smith, entered the victim's room. Mr Fusca observed Mr Smith to be carrying a sharp object and you to be carrying a sharp steel object, approximately 1 metre long. You were aged 22 years at this time and Mr Smith was aged 36 years.

9It is these facts which form the basis for charge one, home invasion. The home invasion is particularised as entry as a trespasser with an intent to commit an offence involving an assault on a person therein and at the time you were in company with Mr Smith and had with you an offensive weapon – in your case a metal pole and in Mr Smith's case, I am told, a screwdriver. You were immediately recognised by Mr Fusca. He asked, 'What the fuck are you guys doing?'

10Mr Fusca got off the couch and walked towards you, at which time you hit him once to the left side of the head with the steel pole. The victim felt his head split, felt pressure and noticed his head starting to bleed. He also felt as though he was going to pass out. These allegations form the factual basis for charge two – causing injury intentionally.

11The victim was eventually able to push you and Mr Smith from his room. He attempted to shut the door with both you and Mr Smith pushing on the door. Mr Fusca grabbed a broken broom or mop handle and let go of his door, which resulted in both you and Mr Smith nearly falling. The victim hit Mr Smith across the head with the broken stick and both you and Mr Smith subsequently ran away.

12On leaving, you and Mr Smith threatened the victim that if he called police you would 'make him pay'. Mr Fusca was taken to hospital by an ex-girlfriend.

13At the hospital the victim was identified to have a number of injuries, which included a 3 centimetre deep laceration to the front of the head, which required suturing, and a laceration to the chin. No further medical treatment or intervention was required for those injuries.  Whilst other more serious injuries, were also identified, you are not said to be responsible for those and will not be punished for them. 

14You were arrested on 28 April 2021 and gave a lengthy record of interview in which you effectively denied responsibility for the alleged offending.

Offence Gravity and Victim Impact

15No Victim Impact Statement has been filed.  However, the prosecution points me to Mr Fusca's statement to police in which he says:

'What happened has changed everything, things will never be the same again. I reckon I’ll have anxiety and there’s no way I go back to a share house… I don’t think there’s any reason for what happened to me'.  

This statement obviously reflects the whole of the offending, including injuries and circumstance for which you are not responsible. Nevertheless, the events of 14 April 2021 would have obviously been frightening, amplified by your threat to make him pay if Mr Fusca called police.

16Of course what did occur happened in the bungalow in which the victim resided and it was an area in which he was entitled to feel safe.

17Apart from taking the time to arm yourselves, I accept the submission that your offending was relatively spontaneous, short lived and occurred in the context of tensions within a boarding house style accommodation, which can be a challenging environment in which to reside. It would appear that it was Mr Smith who had the issue with Mr Fusca, and you agreed to assist. You were the follower rather than the leader. You were not disguised and were easily recognised. You had resided at those premises for some seven months largely without incident up until 14 April 2021. 

18It is more by good fortune than good management that the injuries for which you are responsible were not more serious, but I accept that they occurred as part of the one event and were afflicted in the circumstance of a single blow and would appear, in terms of outcome, to be relatively minor. This does impact on what is 'just' punishment for this offence, which must also include the fact that it occurred immediately upon entry and in circumstances where Mr Fusca had moved towards you.  

19I accept the submission by the Crown that the objective gravity of your offending overall falls in the low to mid-range, perhaps more towards the low range. I also note that the offending calls for weight to be given to general deterrence – in order to discourage others from similar behaviour. Given your criminal history – to which I will later refer – specific deterrence also looms large, as does protection of the community.

Plea of Guilty

20In terms of your plea of guilty, the Sentencing Act 1991 obliges me to take into account the stage at which you entered your plea. Your matter resolved on 31 May 2022 at a listed Sentence Indication Hearing that did not proceed, as you instead indicated your willingness to plead guilty.

21You were originally committed for trial for more serious offending.  After resolution discussions in this context, I consider your plea of guilty to be still at a relatively early opportunity.  I am also told that the evidence given by witnesses at committal may have impacted on the credit of the victim. Through your plea you have chosen not to challenge him further. 

22In addition, there is clear value in saving the witnesses further need to give evidence and Mr Fusca particularly, having to give evidence of traumatic events.  There is additional value in saving the community the time and expense of contested proceedings. 

23In addition, your decision to plead guilty in the context of the COVID-19 pandemic has additional value. In the recent decision of Worboyes v The Queen [2021] VSCA 169 at paragraph 39 the Court of Appeal said that:

' a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time…'

24These factors will all be taken into account in your favour.

25Based on the materials before me, I also accept that your plea of guilty is one of remorse, a factor that I also take into your account in your favour.

Personal Circumstances

26You are now aged 23 years and were 22 years of age at the time of the offending.

27You were born in Carlton and raised by your paternal grandmother in Broadmeadows. You have never known your mother. You have been told that your parents separated when you were very young and understand that your father was unstable and a drug user.

28At the age of eight years, your father assumed your care and you moved regularly. This understandably affected your ability to form other lasting relationships and participate in your education. You attended some four to five primary schools and left your formal education in Year 7 due to the stress at home. You are able to read and write but have not worked or undertaken any further training.

29Your father was also physically abusive. You last resided with him in Portland when aged 11 years, at which time he made you leave home after physically assaulting you. When you had been living with him you were exposed to your father's drug abuse and drug dealing. Your father is presently in gaol for drug trafficking.

30You were apparently diagnosed with Attention Deficit Hyperactivity Disorder at a young age and were prescribed medication, but also witnessed your father selling that medication to others.

31By the age of 11 you were homeless in the Hamilton and Portland area and you were in youth detention by the age of 13 years. You slept rough in Melbourne from time to time and couch surfed. Your general homelessness has been an ongoing problem, as has a lack of stability generally.

32Whilst on the streets you experienced several traumatic experiences, which included being given drugs by older men, being the subject of sexual abuse and physical beatings. In response you have self-harmed and attempted suicide.

33Whilst not having a history of alcohol abuse you have perhaps, not surprisingly, used cannabis and methamphetamine daily from the age of 13 years.

34Reinforced by the expert evidence to which I will shortly refer, I accept that this background gives application to the Bugmy principles, that is, the effects of social disadvantage and trauma during formative years do not diminish with time, notwithstanding any criminal history. 

35In part, they explain that history. I accept that your moral culpability should be reduced as a result of your social deprivation and disadvantage in your formative years. Your moral culpability for the offending cannot be equated with that of a person who had committed the same offending, but who had had the benefit of a stable and normal upbringing during childhood and adolescence.

36Your childhood experiences give some explanation for your prior criminal history.

37On your behalf a number of reports authored by Ms Gina Cidoni, psychologist, have been tendered, largely because the initial focus of your plea hearing was to meet an exception to the demands of s5(2H) of the Sentencing Act 1991. On your behalf it was contended that these reports established, on the balance of probabilities, that you had impaired mental functioning that would result in you being subjected to substantially and materially greater than the ordinary burden or risks of imprisonment. If met, this is one of the exceptions to 5(2H) of the Sentencing Act 1991 pursuant to s5(2H)( c )(ii). The argument is no longer being pursued, but that does not mean that the reports of Ms Cidoni, and the evidence she gave, is without relevance to the sentencing exercise.

38I note that her reports are not the subject of challenge.

39In her report dated 6 May 2022, Ms Cidoni describes you as presenting as a sad and dispirited man.

40Your verbal reasoning abilities are considered to be in the borderline range and above that of only 3 per cent of your peers. Your ability to sustain attention, concentrate and exert mental control is in the extremely low range, where you better only 2 per cent of your peers. Your low intellect influences your thinking and behaviours where your cognitive control system is undeveloped. 

41You meet the diagnostic criteria for the following clinical conditions:

(1)  borderline personality disorder

(2)  post-traumatic stress disorder; and

(3)  substance use disorder (in enforced remission given you are in custody).

42In Ms Cidoni's opinion, your capacity to respond functionally to stressors is severely compromised. You experience high distress, anxiety, disturbing thoughts and react to situations in unhelpful ways.

43In terms of 'risk assessment’, in Ms Cidoni's opinion, your risks are considered high given your 'criminal history, history of substance misuse, emotional, personality and personal factors, including poor self-regulation, impulsivity and low problem-solving and coping skills; limited supports and historical lack of proactive engagement with therapeutic interventions'. 

44Ms Cidoni does opine that some of these risks are amenable to treatment and can be managed through a combination of psychoeducation, psychological intervention and medication. In this context, it would be important for you to be drug free. She sees your partner and new daughter as protective factors.

45Ms Cidoni also expressed concern that you would struggle with a lengthy term of imprisonment in surroundings that she described as 'tense and unpredictable'. This will likely exacerbate your untreated symptoms with the possibility for the emergence of other maladaptive behaviours. In her opinion, it will worsen your mental state and trajectory and risks long-term physical and emotional harm, hindering your rehabilitative prospects.

46In a subsequent report dated 27 May 2022, Ms Cidoni, states that your exposure to many negative events throughout your lifetime has led to the onset of your post-traumatic stress disorder. Untreated, the symptoms led you to living in a state of heightened physiological and psychological stress reactivity, severely compromising your ability to respond functionally to stressors. An environmental cue can trigger a fight, flight, or freeze response which, in your case, tends towards a 'fight' response. Your diagnosis of personality disorder also carries with it impulsivity and behaviours that can be uncontrolled or self-destructive.

47In Ms Cidoni's opinion, 'taking both conditions together there are difficulties managing emotions, and therefore he experiences intense feelings and he would have constant mood swings and his view of the world is different. Managing anger is extremely difficult with this presentation'.

48This evidence is a likely product of your early childhood experiences and therefore supports what I have already referenced in relation to a reduction of your moral culpability for the offending before me.

49In terms of being in custody, given that you have deficient coping skills and no treatment history, you are poorly equipped to handle challenging situations, such as being in prison, where tensions can tend to run high.

50Based on the two reports, to which I have already referred, I am satisfied that limbs five and six of the decision of R v Verdins & Ors (2007) 16 VR 269 have clear application, that is, increase the hardship experienced by you in prison, and do justify a less severe sentence as there exists a serious risk that imprisonment could have a significant adverse effect on your mental health. The Crown concede the application of these principles.

51In her third report, dated 12 July 2022, Ms Cidoni confirms your diagnoses of Borderline Personality Disorder, Post Traumatic Stress Disorder and Substance Use Disorder all severely compromise your capacity to respond functionally to stressors. You are subject to re-traumatisation experiences, which lead to periods of heightened sensitivity and vulnerability to traumatic memories. Whilst such events are unpredictable, Ms Cidoni states that they do occur in prison settings, impacting both your mental health and your suffering.

52Whilst treatment of Borderline Personality Disorder and Post Traumatic Stress Disorder can be effected, Ms Cidoni is not of the opinion that you would receive the level of therapy or treatment required to successfully reduce your debilitating symptoms. In her opinion, this means that the long-term outcome is; continued maladaptive thoughts that lead to unhelpful behaviours, the risk of further problems in the gaol setting and further deterioration.  In terms of the long-term effect, the lack of treatment in a high stress environment would result in a worsening of your mental state and trajectory.

53I do take the contents of Ms Cidoni's reports into account.

Prior Criminal History

54For one still relatively young, you have an unenviable prior criminal history which spans some 37 pages and some 16 court appearances.

55Relevantly, you do have a history for violence, having received a probation order for a period of 12 months for two charges of recklessly cause injury from the Portland Children's Court on 8 September 2015, an order you breached receiving three months in a Youth Justice Centre from the Horsham Children's Court on 13 May 2016. In that same hearing in May of 2016, you received five months in a Youth Justice Centre for a charge of intentionally cause injury.    

56You were placed on an adjourned undertaking for a charge of unlawful assault by the Melbourne Children's Court on 11 August 2016 and for two charges of unlawful assault by the Portland Children's Court on 25 October 2016.

57On 13 September 2018, the Ringwood Magistrates' Court sentenced you to 20 months imprisonment with a non-parole period of 11 months for a range of offences, which included a charge of intentionally cause injury. I do understand that you were granted parole.

58Your offending otherwise includes street-based offending such as graffiti and the use of indecent language. You also have a history for dishonesty, damaging property, making threats, driving offences and breaches of court orders, which include sentencing orders, bail orders, and family violence intervention orders.   

59You have received one sentence in a Youth Justice Centre and two sentences of adult imprisonment, but have otherwise been subjected to supervisory orders. At this stage, relatively short periods of imprisonment have not deterred you nor have opportunities to rehabilitate in the community assisted you.

60You were subject to a community corrections order imposed by the Warrnambool Magistrates' Court on 14 September 2020 at the time of the home invasion and charge of intentionally cause injury before me. This is an aggravating feature to your offending.

61Whilst you are not to be punished for your criminal history a second time, it is relevant to the weight to attach in sentencing to, firstly, specific deterrence, secondly, denunciation, and also the need to protect the community. It is, of course, obviously relevant to an assessment of your prospects for rehabilitation, to which I now turn.  

Prospects for Rehabilitation

62At first blush, your criminal history would indicate that your prospects for rehabilitation would appear guarded, as do the difficulties you face given your psychological presentation.

63However, you are only 23 years of age and were 22 years of age at the time of the offending. Whilst not strictly a 'young offender', you were still a youthful offender at the time of your offending in April of 2021, which again also impacts on your moral culpability.  In addition, some continued focus in sentencing on rehabilitation is not without merit and may well be in the community's interest overall. 

64In addition, you have now spent some 447 days on remand. This is the longest period you have been required to serve to date. Whilst you have previously been sentenced to adult custody on two previous occasions, this period of time has two factors of some significance.

65The first of those in that your period on remand has been during the Corrections response to the COVID-19 pandemic. I accept that in general terms, that has meant less access to freedom of movement within the prison system, less access to educational and rehabilitative programs and less access to contact visits from friends and family.  New inmates are required to quarantine for 14 days on each occasion of a prisoner movement, which you have experienced on at least three occasions.  In a general sense, this does make any remanded or sentenced prisoner experience more burdensome than it would otherwise be, and has perhaps been a greater sanction and deterrent for you on this occasion than it has been in the past. 

66Your partner, Ms Eales, gave birth to your first child, a daughter Ava Marie, the day after your arrest.  Whilst the prosecution point to the fact that your partner was pregnant at the time of your offending and that this did not deter you from offending, you have now had the experience of separation from her and your first child in circumstances where you have not physically seen your daughter the entire period of your remand.  This is in circumstances where you desire to be a father to your daughter and a partner to Ms Eales. This has been an additional burden upon you during the period of remand which, I also take into account in a general sense. 

67Nevertheless, you appear to have chosen to use your remand time wisely and have undertaken a number of courses, including 'Ice and Me', 'Building Better Relationships', alcohol and drug programs, as well as anger management. Various certificates supporting this have been tendered on your behalf, as have a bundle of urine screens confirming your drug free status. 

68You also attained the position of billet.  

69It would appear that you are doing all you can do to improve your prospects upon release, demonstrating your high motivation for a different way of life. I accept the submission from the Crown that it is of significance that you have demonstrated a positive engagement with services whilst you have been in custody and, that during your longest period of incarceration, you have made the most progress.

70You have also been assessed by Odyssey House and accepted into their in-house rehabilitative program.

71A letter authored by Kim Metzler, case manager with YMCA Rebuild dated 4 July 2022, details that their program is a social enterprise providing young people who have been involved in the criminal justice system with a pathway to reintegrate back into the community. It is a trade-based program. You are deemed as potentially suitable for their program dependent on court outcomes. Their program can provide employment assistance to people on the program.  This is important for you, given you have not previously engaged in employment.

72It also reflects, given your approaches to both Odyssey House and YMCA Rebuild, that you are clearly focused on accessing programs that will assist you with a more positive lifestyle upon your release. 

73In addition, you do have a supportive relationship with Ms Eales. She has attended each of your court hearings. She has also provided a letter to the court.  You speak with her daily and have a video visit once per week. In her letter, Ms Eales observes your struggle with the fact that you have missed all of the time with your daughter since she has been born in April 2021. She has seen you put in a consistent effort to do programs and anything you can do to help with your well-being. She clearly intends for the relationship to continue.

74Whilst this relationship has not been without its 'ups and downs', it is a relationship you also wish to pursue. You reported to Ms Cidoni that since your daughter was born you 'have something to live for'.  Ms Cidoni saw your relationship with Ms Eales and your daughter as prosocial.

75You have written your own letter to the Court. Whilst I tend to find such documents to be somewhat self-serving, you do speak of your regret for your offending. You also show insight to making decisions based on emotions and how those decisions tend to be the wrong ones. I do accept that you are presently highly motivated for a different way of life upon your release.

76Mr Mitchell, you are at a crossroads. Your success will be contingent on you staying focused in maintaining your current resolve, staying away from drugs, and utilising available supports and accessing treatment.

Sentencing Submission

77The submission on behalf of the Crown is that proper consideration of all relevant sentencing considerations would see the imposition of a head sentence with a
non-parole period.

78On your behalf, it is contended that the imposition of a period of imprisonment on charge one, home invasion, and a corrections order on charge two, intentionally cause injury, would meet the same purposes.

79I am told that the parties have discussed this issue and agree that such a sentencing disposition would be open in the matter, in the sense that it is not prevented by charge 1 being a category 2 offence.  That position does not reflect a concession by the Crown as to an appropriate sentence.

Assessments

80In order to be better informed, I have had you assessed as to your suitability for a community corrections order and have also had you assessed by the Mental Health Advice and Response Service (MHARS).

81Your previous involvement with community correctional services consists of a combined community corrections order and imprisonment in 2018, that order being cancelled and a corrections order in 2020 that has breach proceedings pending. The prosecution tendered contravention reports from each of these matters. In brief compass, for the corrections order earlier in time, you were described as showing good compliance and insight into negative consequences of your thoughts and behaviours. For the order to which you are subject at the time of this offending, correctional services report that you made no reasonable progress towards any of the conditions on the order. Consideration was being given to you being assessed by a neuropsychologist.

82In terms of the reports that I commissioned, an assessment outcome report dated 6 July 2022 finds you suitable for a community corrections order. You were described as forthcoming and as demonstrating insight into the precursors for your offending, as well as remorse for it. At the time of your offending you described having limited skills and supports and to being overwhelmed by all circumstances unassisted by your use of drugs at the time.

83The assessment by Mr Gregory Lane from MAHRS tells me that you have been prescribed antidepressants whilst in custody and have identified positive benefit from the medication. You intend to keep taking it when you return to the community. I understand this is the first time you have been prescribed such medication.  You also identified that you could benefit from psychological counselling in the community but are reticent to be involved in group-based therapy. This is understandable. You are also prescribed buprenorphine and would like to continue taking that medication in order to assist you to remain sober, stable and focused.

84You otherwise presented to Mr Lane as low in mood, dysphoric and emotionally vulnerable. He saw merit in you learning practical psychological skills and strategies to regulate your mood and emotions and assist you to focus on achieving prosocial life goals. A mental health component was recommended in the imposition of any community corrections order.  I will just turn to you, Ms Martin, and you, Mr Stanton, just to check whether there has been anything that you wish to raise thus far?

85MS MARTIN:  Nothing from me, Your Honour.

86MR STANTON:  No, Your Honour.

87HER HONOUR:  Thank you.

Sentencing

88The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I am required to have regard to a range of matters, these include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.

89I am also required to balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, when possible, that offenders are rehabilitated and are reintegrated into society.

90I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, as well as the important principles of both totality and proportionality.

91Courts do now have more discretion in terms of choosing a sentencing disposition, which does enable all the purposes of punishment to be served simultaneously in a coherent and balanced way, in preference to the option of imprisonment which is skewed towards retribution and deterrence.

92Whilst the path to rehabilitation may be a difficult one for you, it does seem that your insight, motivations and ability to access appropriate services now has a role to play. In my view, a community correction order can be punitive, achieve deterrence and may be suitable even in cases of relatively serious offences, which might have otherwise attracted a term of imprisonment.

93Accordingly, you are to be sentenced as follows:

94On charge one, home invasion, you are convicted and sentenced to 18 months imprisonment. 447 days are reckoned as having already been served.

95On charge two, that of intentionally cause injury, recognising the circumstances in which it occurred and a relevant prior history, you are convicted and placed on a community corrections order for a period of two years. That order has conditions that you be supervised by the Office of Corrections, undertake offence specific programs, undergo treatment and rehabilitation for drug use, as well as for your mental health. I also order that you complete 175 hours of community work, 75 of these hours will be offset against the treatment conditions. At this stage you will also be ordered to comply with Judicial Monitoring, that is, you will come back before me, at this stage on 15 December of this year so that I can check in as to how you are going and also so that the Office of Corrections have implemented intended services.

96In addition to the conditions that I have imposed, there are standard conditions, you should be familiar with them but either way, the first and foremost of those is that you must not commit any other offences during the two year period which could be punished by imprisonment. You are also required to report within two working days of your release to the nearest community corrections office, which is likely to be Melbourne. You are required to advise your supervising corrections office of any change of address of where you are living or working and must do so within two clear working days. It is a term of all corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a corrections officer. You cannot leave the State of Victoria without permission of your corrections office. 

97In my view, this order presents you with a chance to change your life in a positive fashion should you choose to take up that opportunity and the supports that should be made available. The order can be breached if you do not comply with it in terms of the conditions or reoffend by an offence punishable by imprisonment whilst it is in place.  If you do, Mr Mitchell, you will have to appear before me for breaching the order and I may be required to resentence you for the original charges, as well as for a charge of contravening the order.

98Now I can only place you on that order if you agree to do so.  In a moment, I will give you the opportunity to speak to Mr Stanton privately.

99Before I do so, s6AAA of the Sentencing Act 1991 requires me to state the sentence that I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty I would have sentenced you to a total effective sentence of 2 years and 6 months, with a minimum of 22 months before being eligible for parole.

100Mr Stanton, I am not familiar enough with the technology to know how this can be done, but hopefully my associates are.  I will give you the opportunity to speak to Mr Mitchell about whether or not he agrees to being placed on the Corrections order.  I will come back and check in with both you and Ms Martin and then I will give you the chance to speak with him privately again, should you wish to do so.

101MR STANTON:  Thank you, Your Honour.

102(Short adjournment)

103HER HONOUR:  Thank you, Mr Stanton.  Have you had the chance to speak with Mr Mitchell?

104MR STANTON:  I have, thank you, Your Honour, and Mr Mitchell consents to the community corrections order.

105HER HONOUR:  All right, that is right, Mr Mitchell?  You agree to that Corrections order?

106ACCUSED:  Yes, Your Honour.

107HER HONOUR:  I am sure Mr Stanton would have explained to you, you will be supervised by the Office of Corrections.  You know what that means?

108ACCUSED:  Yeah.

109HER HONOUR:  You should get treatment for your mental health and to make sure that you can stay off drugs.

110ACCUSED:  Yes (indistinct).

111HER HONOUR:  I have ordered community work but some of that will be offset against the treatment conditions, so the more treatment, the less community work.

112ACCUSED:  Yeah.

113HER HONOUR:  And it may well be that there is a referral for offence specific programs, maybe anger management or something of that nature.  As I indicated during sentencing, you will come back before me on 15 December.  The Office of Corrections will write me a report, that will tell me about what happens between when you are released and that particular day, I am not quite sure what the time frame will be there.  And that will tell me how you are going, but it will also tell me whether the Office of Corrections have actually engaged the services that I intend.

114ACCUSED:  Yes.

115HER HONOUR:  I am likely to keep Judicial Monitoring going just to, in effect, keep an eye on both you and the Office of Corrections, all right?

116ACCUSED:  Yeah, if there's anything that goes on with me I will just be honest with my workers and that, so yeah, I'll just.

117HER HONOUR:  Well from what I have seen thus far you have been very honest in your exchanges.

118ACCUSED:  Yeah.

119HER HONOUR:  All right, so all right, well I think that completes the matter for today does it not, Ms Martin?

120MS MARTIN:  Yes, Your Honour.

121HER HONOUR:  And Mr Stanton?

122MR STANTON:  Yes, Your Honour.

123HER HONOUR:  All right, well as indicated I will give you the chance to speak with Mr Mitchell privately and I will I effect close the Court until 9 o'clock tomorrow.

124ACCUSED:  Thank you, Your Honour.

125HER HONOUR:  Thank you, good luck.

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