Director of Public Prosecutions v Monson (a pseudonym)
[2019] VCC 1439
•3 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANGUS MONSON (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 September 2019 |
| DATE OF SENTENCE: | 3 September 2019 |
| CASE MAY BE CITED AS: | DPP v Monson (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1439 |
REASONS FOR SENTENCE
---Subject: Persistent contravention of family violence order x 2, contravention of FV order intended to cause fear etc. x 2, extortion. On CCO for offending against same victim. Earlier breach of interim intervention order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Burt | Office of Public Prosecutions |
| For the Accused | Mr C. Farrington | S. Andrianakis & Associates |
HIS HONOUR:
1Angus Monson[1], yesterday you pleaded guilty to two charges of persistent contravention of a family violence order, two charges of contravention of a family violence order intending to cause apprehension of harm and one charge of extortion. The summary sets out the correct maximum penalties. The various summary matters are marked as withdrawn.
[1] A pseudonym
2You were 45 years of age at the time of the offending and you are 46 years old now. You have admitted a criminal history and though comprising only a single court appearance in June of last year, given the timing and the subject matter of those offences as well as the date of that disposition, it is of course highly relevant to my task.
3The matter was opened to me yesterday by Ms Burt who appeared on behalf of the Director of Public Prosecutions. An amended written opening was tendered on the plea and marked as Exhibit A.
4Your counsel, Mr Farrington made clear that Exhibit A was an agreed summary and so it is not necessary for me to descend to the full factual details of the offences. I will sentence in accordance with the agreed facts in this case.
5You are one of a seemingly large number of males in our society who have for whatever reason, great difficulty upon the breakdown of a relationship and who seem to think that a domestic partner is some form of property. Something to possess and not relinquish unless and until you do so on your own terms.
6Intervention orders were taken out to protect your wife, children and her parents following her leaving the relationship in April of last year. The various final intervention orders were made on 12 June of last year. On that same day you were placed on a community corrections order for earlier offending. The agreed summary (Exhibit A) placed before me sets out the many details of your conduct in which you breached the intervention orders. It was something of a campaign waged by you. I am not going to further describe the summary, but I will sentence in accordance with it. Exhibit B is the summary of what had occurred earlier. That summary had been placed before the Magistrates' Court on 12 June of last year. It gives a clearer history of what had taken place from late April of last year and it spells out the seriousness of the conduct giving rise to the charges for which you were placed on the community corrections order. There had been the earlier interim intervention order made on 30 April protecting your wife and requiring that you not commit family violence. You committed serious crimes in the currency of the interim intervention order as Exhibit B makes abundantly clear. You had treated that order and indeed the later community corrections order as something of a joke. So too, the three final orders made on 12 June.
7You were arrested on 31 August of last year and interviewed that day. Your responses are set out in the opening at paragraph 69. You generally denied the offending. You have been continuously in custody from the day of your arrest, and that is a period now of 368 days.
Victim Impact
8Your victims have declined to make victim impact statements which of course is their right. Your conduct was obviously frightening. I take into account the impact here. I cannot factor in any long-term impact, there is just nothing before me speaking of that, but this was frightening conduct, make no mistake about that. The agreed summary, that is Exhibit A, discloses there were some pretty chilling comments made by you including the text sent on 17 August. Those things occurred in the context of a man who had behaved previously in the way disclosed in Exhibit B. You were really presenting as someone with nothing to lose.
Plea in mitigation
9Your counsel Mr Farrington conducted a plea on your behalf yesterday. He had prepared some written submissions which were marked as Exhibit 1. He tendered a report from Mr Staios which was marked as Exhibit 2. He took me to your personal background. He relied mainly upon:
·your guilty plea;
·the presence of a level of remorse;
·Your strong work background and the lack of any sizeable or protracted criminal history;
·He took me to the particular circumstances of the offending and the context of your having enormous difficulty coping with the breakdown of the relationship and with the ensuing isolation in the community;
·He conceded that the prior criminal history targeting the same victim whilst on an interim intervention order was of relevance;
·He conceded also that the fact that you were on a community corrections order for similar conduct was a matter of aggravation;
·He argued that since this very unfortunate phase in your life, things had looked up significantly and that you now had good prospects of rehabilitation;
10Mr Farrington argued for a combination type sentence, that is to say a term of imprisonment with release at some time in the future onto a community corrections order. He was not suggesting that you would be immediately released. He was in fact conceding the inevitability of a further period in custody over and above your current pre-sentence detention. He took me to the relevant Sentencing Act provisions and submitted that given your pre-sentence detention to date, that there was close to an additional 12 months' prison available which would still permit consideration of a combination type order. I make plain he was not conceding that continued imprisonment of that full duration would necessarily be required in this case.
Prosecution
11Ms Burt who appeared on behalf of the Director of Public Prosecutions did not argue against the availability of a combination type order.
Background
12I turn to your background, but I will do so only quite briefly. It was set out in some detail in the written outline as well as in the report of Mr Staios. I have no reason to doubt the family background placed before me and see no point in rehashing it all in these reasons.
13Very briefly though, you are 46 years of age. You were born on 2 February 1973 in Northern Macedonia, the youngest of 6 children. Your father died when you were a toddler and you and your siblings were raised by your mother in pretty impoverished conditions. Mr Farrington submitted that your own unhappy experiences in a one parent family with no father on the scene, had some role to play in your terrible response to the breakdown of your own marriage and your desire to cling on to that relationship. It is really impossible to know the impact of all of that.
14You were schooled to Year 12 level, then qualified as an electrician and you worked in that field in your homeland for quite some years. That qualification was not recognised in Australia where you emigrated in 2006, when you were in your early 30s. You met your ‘wife to be’ Natalie[2] shortly after arriving in Australia and you married in 2007. You have three children aged 8, 4 and 1. You were granted citizenship in 2010 or thereabouts. You have had full time employment in this country in the construction industry most recently as a tower crane operator. Finding work has never been a problem and the work, given the specialist nature of it, is very well paid. Following the breakdown of the marriage in early 2018, I was told that you fell into serious abuse of both alcohol and the drug ice.
[2] A pseudonym.
15You have a criminal history, being that single appearance that I mentioned. Though a single appearance, as Exhibit B discloses, they were plainly serious charges dealt with at Court and you then paid scant regard to the community corrections order which you consented to. That was on 12 June 2018, the same day as the various final intervention orders were made. You committed the offences I am dealing with very soon after that court date in the currency of that community corrections order.
16Very evidently, you did not take the chance offered to you by the court back in June of last year. You have done yourself no favours in behaving in the way that you have. The chronology is not pleasing.
17There has though been something of a circuit breaker imposed here with upwards of a year since spent in prison. That is important in this case, in my judgement. You have been working as a cleaning billet up at Fulham prison. You have been quite isolated in prison obviously with no contact with your ex-wife or your children who are still protected by the orders, nor any contact in person from any of your other family members. A brother who lives in Australia has taken a very dim view of your conduct and no longer will associate with you. You have email contact with a sister who lives overseas. The family home has been sold and that strikes me as a step in the right direction. I was told that this was done with your consent and approval and the proceeds after settlement, equating to the equity in that property, now reside in your ex-wife's solicitor's trust account. There will be a need for some property settlement to be achieved. That has not yet been fully resolved but I was told that you hope to receive something in the vicinity of $20,000 or $25,000. The approved sale was put forward by Mr Farrington as a fact disclosing your present acceptance of the end of that relationship. Something in stark contrast to your very evident lack of acceptance of that fact from April to August of last year. You look forward to ultimate release back into the community though at this stage, I was told yesterday there was no proposed residential address. There is an address for a very short-term accommodation upon your release, but then you will need to find a private rental. That will all need to be sorted out down the track. I was told that the community corrections order that was imposed would be breached but had not yet been but that otherwise there was nothing else outstanding by way of charges. The prosecutor did not challenge that submission or raise any suggestion of any ongoing breach conduct in relation to any of the protected persons under the three current orders.
Mr Staios' Report
18I take into account the report of Mr Staios. The report was not entirely satisfactory. You heard discussion of that yesterday. I am unimpressed by the fact that: (1), the assessment was done by way of video link; and (2), that fact is not disclosed in the report. Your placement up at a remote prison location at Fulham may be one of the few factors actually excusing the use of a video link assessment. The failure to disclose the video link in the body of the report is totally inexcusable. This has got nothing to do with you though. You have not made these choices. The expert has.
19There is also a breach of the Practice Note with Mr Staios offering his opinion as to the application of the principles from the case of Verdins. Nor does Mr Staios provide any real basis for his opinion as the existence of any remorse here.
20Your own counsel does not even rely on any of those principles from that case of Verdins. Indeed, Mr Farrington submitted there was no basis for the application of any of the 6 principles from that case. Undoubtedly, he is correct.
21Further, though Mr Staios was provided with a relevant LEAP history containing your prior appearance, strangely he seems to have overlooked that when dealing with your forensic history in the report. He says that you have none which of course is quite wrong. He does not even mention in passing the fact that you were on a community corrections order at the time for similar offending in relation to your wife. It is really entirely unclear whether he has factored that previous conduct in to his risk assessment. The suggestion that he makes of you having limited understanding of the Court orders just cannot pass muster given the true chronology. I do not accept his claim of there being any reduction in your culpability or erosion of your capacity to consider the wrongfulness of your conduct. It is not made out at all and your counsel does not rely on any of those aspects of the opinions of Mr Staios.
22The report though is still of use to me. I do accept that there was this deeply destabilising event in your life being your wife announcing that she was leaving the marriage. Your life was turned upside down and you did not react well to this large change in your life circumstances. That is a massive understatement really. The breakdown of a relationship, it is often a highly problematic time and it is difficult for many men to cope with. But that is not mitigatory. It also happens to be a very dangerous time indeed for a female who is seeking to leave a relationship. Your wife had the absolute right to leave this relationship and to do so unhindered. You were isolated and you were angry. You were possessive and also jealous. You turned to drugs and alcohol. That is not in any way mitigatory either. You behaved very badly indeed and that was your choice.
Guilty Plea
23I turn then to some matters that have been raised in mitigation, firstly your guilty plea. You have pleaded guilty and I must reward you for that fact. You have in that way facilitated the course of justice. You, unlike some, have taken responsibility for your crimes. Now at least viewed chronologically it is not an early plea, but it is obvious that the armed robbery charge was an impediment to settlement. That has now been replaced with the extortion charge. The defence response prepared for the trial focused on the armed robbery. Seemingly the matters relating to the Family Violence Act charges were really not in dispute. So I will actually treat it as an early plea. What is far more important than any of that is that you have admitted your guilt. The victims in this case have been spared the experience of actually giving evidence at trial. That is of real value as giving evidence can be distressing. Though your wife and her father gave evidence in the Magistrates' Court it was a very brief and quite benign outing indeed and of course that has been averted altogether up in this court.
24So, the community has been saved the time, the cost and the effort associated with a trial up in this court. I take these various matters into account in mitigation, as I am required to.
Remorse
25I turn now then to the issue of remorse. A guilty plea is often indicative of some level of remorse. You have pleaded guilty here at what I judge to be an early stage. There is really not a great deal in Mr Staios' report which actually assists me in this respect. A statement as to your having the capacity for remorse and empathy and being in his opinion genuine, it does not greatly assist me. There is meant to be a comprehensive statement of the basis of that opinion and it is to a degree lacking here. He does not grapple with or even comment on this conduct occurring in the context of a community corrections order, that community corrections order having been imposed for earlier conduct targeting your wife which itself had occurred in the currency of an earlier interim protective order. In a way though, I am more assisted by the community corrections order assessment report and what you had to say in that assessment that was conducted yesterday. You are regretful for and embarrassed by what you have done.
26You have had a large amount of time to consider what you have done, and you are certainly not revelling in it. You have spent that time in custody. You have, as I have said, consented to the sale of the house and it seems to me that it is likely that the anger has well and truly died down and you can now see how inappropriate and how seriously wrong and destructive your conduct was. I am prepared to find as Mr Farrington suggests I should, that you do have a level of remorse here and I take that into account in your favour.
Rehabilitation
27I turn now then to your prospects of rehabilitation. My assessment of your future prospects would be less guarded had you not committed the serious charges which were dealt with on 12 June 2018 at the Sunshine Magistrates' Court, received the community corrections order and the final intervention orders on that day, and then breached that community corrections order and the intervention orders. However, I cannot just ignore those factors. That is the actual chronology in this case and that chronology is highly relevant to my task. Nor though can I ignore that it is only your second time before the Courts. You have had a very good work history indeed over many years and until very recent times of course, you have not committed any crimes at all. You are in your mid- 40s. Finding work will not be a problem for you. Your counsel recognises the seriousness of that past conduct and its relevance to my task but argued that really it could be viewed as one very bad 'Phase' of your life, running from the breakdown of the relationship in April and ending upon your ultimate arrest in late August. In that period you were angry, you were isolated, you were grappling with the loss of the relationship with your wife and with your children, you started to abuse alcohol and drugs and you were acting in a manner so foreign to the way you had acted over the remainder of your life. That was the submission placed before me by Mr Farrington. I think there is much to be said for it.
28You have had much time to reflect upon your crimes and you will have more time still, following the sentence I will shortly impose. But it does seem very likely to me that the heat and anger that you felt back in April and July and August of last year, has been lost in the interim. You are seemingly now accepting of the fact that the relationship is at an end. Again, I am assisted by your discussion of the offending and the way you feel about it and your treatment needs with the community corrections order assessment officer yesterday. You have consented, as I have said, to the sale of the matrimonial home. I was told that you will consent to any further extensions of the intervention orders sought. You hope to re-establish your relationship with your children but of course that will require amendments to the orders in place and a massive rebuilding of trust. But you are determined to do that in a lawful fashion so that you can still be part of their lives. You will need to start afresh including of course finding somewhere permanent to live and regrettably you have very little by way of support awaiting you in the community.
29Though I do not act on Mr Staios' risk assessment and his view of the risk of reoffence, I reach similar conclusions myself from the various materials placed before me. And again, that includes the community corrections order assessment where you are judged to be a high risk of reoffence. I prefer to approach it in a different direction. I am in fact prepared to conclude that you have good prospects of rehabilitation into the future. To conclude otherwise would really be to focus I think, entirely on your crimes and the recent unpleasant chronology to the exclusion of everything else that you have done over the course of your life. As I have said, I conclude from the materials and the submissions placed before me including the report of Mr Staios and including the assessment report for the community corrections order that you are now accepting of the fact that this relationship is at an end. That is essential to you moving forward in what will be a new life for you, but an acceptance of the end of that relationship is, in my view, a positive development.
Risk of deportation
30 Now I enquired directly as to your visa status and was told explicitly by Mr Farrington that you took out citizenship in either 2009 or 2010. It follows then that the vexed issue of the risk and the impact of possible deportation, which sometimes arises, does not arise in this case.
General remarks
31I turn then to make some general remarks as to sentencing. I must have regard to the nature and the seriousness of the offending before the court. Your counsel obviously concedes this was serious offending. Of course it was. This was a quite concerted campaign targeting your ex-partner and following on from the past conduct occurring earlier in that same year. It spilled over to her mother and father. It all occurred in the currency of the community corrections order imposed for similar matters which was designed to keep you in the community. The agreed summary (Exhibit A) and the indictment itself spell out the comprehensive breach conduct that you have admitted. An avalanche of phone calls and texts. Some of them clearly unpleasant. There is the extortion as well, which cannot be forgotten. It is a serious crime in its own right. This was all serious offending by a man on a Court order that Court order imposed for nasty offending against the same victim.
Current Sentencing Practice and Offence Gravity
32I take into account, as I am required to, current sentencing practices.
33But every case is very different and so is every offender and what I have to do is to pass an appropriate sentence in your case. It is not some mathematical or statistical exercise.
34There is regrettably a virtual epidemic of family violence in this State. We have had a Royal Commission in this State dealing with this disturbing trend. Family violence is a blot on our society and those who commit it, they really must expect serious consequences. Men and let us be clear, it is usually men committing this style of crime upon women, well they must be punished. Not only that, women must be protected by the Courts. The court orders which you breached were set up there to protect and you thought them of no consequence. You thought you could ride roughshod over them. That now places you before me and a strong message must be sent to you and to others. The frequency with which intervention orders are breached and the potentially tragic consequences which are all too commonly seen, warrant strong condemnation of your conduct. Neave JA in the case of Johnson 2011 VSCA 288 was explicit as to the worrying aspect of family violence and its prevalence not just in this State but in this Country. The Courts have frequently emphasised the need to condemn family violence including in the cases to which the prosecutor referred of Pasinis and Filiz. People such as you must be under no misapprehension that the Courts will severely punish those who breach orders such as these. See Cotham [1998] VSCA 111.
35Now, sentencing always involves a balancing of a number of purposes and these are purposes that are set out in the Sentencing Act. One of those purposes is the rehabilitation of the offender. I do not ignore that purpose for one moment. As I have announced, I think there are good prospects for your rehabilitation and that is important. So too though is punishment. That is another purpose of sentencing.
36I have to punish you justly and proportionately, but again that is an important purpose.
37I have to give real weight to specific deterrence here. That is the need to deter you from future offending. I have the aggravating feature of your being on a community corrections order for similar matters at the time. Now, I want to make it very plain, you do not fall to be sentenced a second time by me for that past conduct. You received the community corrections order and no doubt that will be breached down the track, but it is not my job to punish you again for any of that conduct. However, the chronology is relevant to my task. It is relevant for instance to the extent of the need to deter you. You had been on the earlier interim order which you had breached comprehensively by serious offending.
38Upon your release you hope to play a role in your children's lives and so continued interaction is desired by you. You will need to walk a very tight line indeed. You must understand that you have to leave your ex-wife alone. That is just not negotiable, and you have been a slow learner in that respect. You must also get it into your head to respect any future partner's decision to leave you, if that circumstance ever arises again. Acting in the way that you did in July and August of last year is totally inappropriate. It is also serious criminal conduct. You must get it into your head to respect any court order taken out to protect any partner. These current protective orders persist, and again you must be under no illusion as to the seriousness of any further breach conduct. I must drive that message home to you again.
39I must strive to deter you from committing crimes such as these ever again in your life. That is an important consideration in this case. No doubt the Magistrate who imposed the interim order in April of last year, hoped that that order would be effective. It was not. No doubt the Magistrate who passed the sentence on 12 June 2018 and who also made the various final orders had similar hopes to no avail. So, I will try again to deter you and the message to you must be very clear indeed.
40I must also give some weight to the need for community protection in this sentencing task. It seems to me that can be moderated to some extent given the conclusions I have reached as to your good prospects of rehabilitation.
41I must strongly denounce your conduct. It was, as I think you are growing to understand, quite outrageous and wrong. That sort of jealous possession and attempted manipulation and control of another human, well it really has no role to play in any civilised society.
42General deterrence is a very important sentencing purpose in this sort of case. Women must be safe to leave relationships as they choose. They must be given the full protection of the law. The courts must make plain to others that such conduct as yours will be dealt with sternly by the courts. There is nothing at all mitigatory to be found in such conduct occurring in a domestic setting or in the setting of a relationship breakdown. It is a very common seeing.
43The courts have to spell out explicitly to others in the community that conduct such as yours will be dealt with seriously when brought before a court. It just will not be tolerated or waved away. The fact is we should not need intervention orders. People should be able to reorder their affairs upon the breakdown of a relationship without some court ordered supervision. However, we have learnt that there are very many men who seem unwilling or incapable of relinquishing what they believe to be their right to remain in a relationship or to let the partner leave. When a woman is hindered to such an extent that a court makes an Intervention order to protect them, the message must be conveyed from this place. Breach those protective orders at your peril. Like-minded potential offenders, and there are evidently plenty of them out there such is the prevalence of this style of conduct, well they must understand that serious conduct such as yours will be met with significant punishment. When you think about it, intervention orders really can only actually protect if they are effectively enforced and if the breach of such an order is treated as a serious matter. Only in that way can we as Judges in the Courts convey to the broader community the very strong need to adhere to such orders as these. You did not adhere to them. You thought you could breach it with impunity. You were quite wrong as you have already learnt to your own detriment.
44I must pay regard to the offence maximum, as well as to the impact of your offences.
Combination Sentence
45Now, prison is a disposition of last resort for any court. If there is any other option open to the court, then of course it must be selected. That is the law. Your counsel, Mr Farrington concedes the inevitability of a prison term here for your conduct, but he suggests that it is open to ultimately release you onto a community corrections order. Not immediately, but rather after the service of some additional period. He submitted that I have virtually 2 years' imprisonment to work with in the sense that such an outcome as that would still leave open the consideration of a combination type order given the amount of your pre-sentence detention to date. He argued that a combination-type sentence was open to me and really could achieve all the purposes of sentencing. That you could be released down the track at some point from prison onto a suitably conditioned community corrections order.
46I have had you assessed, and I mark the assessment report as Exhibit C on the plea. I have had you assessed, and you are deemed to be suitable for such an order. Your risk of reoffending is said to be high according to the service tool that they employ. As I said earlier, I prefer to approach that task by making a judgement as to your future prospects of rehabilitation and I think they are good. Your being judged to be suitable for a community corrections order, is not the end of my task. The issue for me is whether I should fix individual sentences, pronounce levels of cumulation leading to a total effective sentence and then fix a non-parole period, or whether it is open to deal with you by way of a combination type sentence, with release from prison at some point onto a suitably conditioned order. Such a result as that, a combination order, confers upon you a guaranteed release date in a way that a non-parole period does not. If open, it can in this way limit your exposure to prison and continue to achieve the various purposes of sentencing in a less punitive setting.
47Having considered the matter overnight and having considered the various materials including the assessment report, I believe that I can proceed in the way urged upon me by Mr Farrington.
48I believe that a combination type sentence can achieve all the purposes of sentencing, including the need to punish, to denounce, to protect and to deter you and others.
49It is plain to me that there must be a further period of time in custody to be served by way of an aggregate prison term, but you will be released in the not too distant future onto a community corrections order.
50I should say that I have had regard to the principle of totality of sentence. I have looked at the sentences that I am about to impose, to guard against the imposition of a crushing outcome and to ensure that the overall effect is commensurate with the overall gravity of your crimes. As I have said more than once though, this was serious offending.
Ancillary – 464ZF
51Let me just deal with the ancillary order. Now, application has been made, Mr Monson for the taking of a forensic sample from you. There is no opposition to the making of this order and pursuant to the provisions of s.464ZF(2) of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the provisions of the Act, until a sample of sufficient standard is obtained for placement on the database.
52I regard it as appropriate to make this order. I believe I am justified in making the order owing to the seriousness of the circumstances of the offending, the prior convictions that I have disclosed, the fact that the order is not opposed and that I judge it to be in the public interest. Now, what I am dealing with here then is a forensic sample. I have authorised a scraping from your mouth, not a blood sample. I always authorise the least invasive process. Someone in the time that remains when you are in custody, will approach you and with a mouth swab, take a swab from your mouth. It is not a difficult business. You just run it around the inside of your mouth. But that is what I have authorised, and I have to tell you though, they can use reasonable force to do that. It should not be an issue and no doubt if it became an issue, they would be back before me making application for a blood sample, which at this point I have not authorised. But I have signed that order.
53Now, you need to listen carefully. It is going to take a bit of time, so I am going to have you remain seated. I would normally get you to stand, but I will have you seated down there just for the moment. You need to listen carefully, as you have had one of these explanations in the past in relation to a community corrections order and you did not listen too carefully to that, by the looks of it.
54I can only place you on a community corrections order if you consent to that outcome. That is so even if I am imposing it as I am, in combination with a prison term. So, you need to listen carefully. I am going to explain what I intend doing and then I will ask you if you consent to such an order. I will give you the ability to speak to Mr Farrington as well to discuss it.
55What I am going do, is I am going to combine a prison term with a community corrections order, which is what your counsel is asking me to do. I intend passing an aggregate prison sentence in relation to Charges 1-5 on the indictment. That will be for an aggregate period of 15 months. All right? In addition on those same 5 charges, I intend to convict you and admit you to a 2 year community corrections order. That will take effect upon your release from prison.
56Now as you know, these orders have mandatory terms that apply to every order and I have to explain those to you. They will be on the order as well. In the period of this order you must not commit another offence for which you could be imprisoned. That is in the next two years upon your release. You have got to stay out of trouble. It is as simple as that. If you commit any offence that could be punished by imprisonment, you will breach this order. I make very clear to you, any breach of an intervention order would breach this order. The slightest breach would, because that sort of conduct is punishable by a term of imprisonment.
57You have to comply with your obligations under a fairly little-known provision of the Sentencing regulations. You have got to turn up totally unaffected by alcohol, totally unaffected by drugs for any attendance under this order. They will also take I think, a photograph for record keeping purposes. That is what that is all about. You must attend within two clear working days of your release from prison. At the moment, you have got that temporary address and that is really all it is. That is the address I have put on the order. But you have to attend within two clear working days of your release from prison and that is to attend at the Sunshine Community Services in Foundry Road in Sunshine.
58In terms of the other mandatory terms, you have got to report to and receive visits. You have got to let them know within two clear working days of any change of address or job. You are not allowed to leave Victoria without first getting permission to do so from your Community Corrections officer and you have got to obey all their lawful instructions. So they are the mandatory terms that apply. They apply to this order in exactly the same way as they applied to the last order which you have obviously categorically breached.
59In addition, though, there are the other conditions that I can tailor to your needs. Not just to your needs though, but also the needs of sentencing to foster your rehabilitation, to protect the community, to deter you. It strikes me that one condition that is unmistakably punitive is unpaid work in the community and I have considered whether I should be imposing unpaid work in this setting, and I have decided not to impose it. Unmistakably there is the punitive aspect of your being held in custody for what will be a 15-month period, so I do not think there is a need to load up the order with unpaid work at all. I think it is more valuable to focus on treatment and rehabilitation conditions to foster your rehabilitation. Because essentially you are going to be coming out into the community with little by way of support, really trying to start afresh. So, you are going to be under supervision of a Community Corrections officer for the full period of this order for two years. You must undergo assessment and treatment including testing for drug abuse or dependency and for alcohol abuse or dependency. Those substances obviously had a role to play in your behaving as badly as you did, not that it is an excuse, but you are I think in need of some level of treatment and counselling in relation to that issue. So hence those two conditions.
60You also must undergo any mental health assessment and treatment. Well again, there is commentary in Mr Staios' report about an aspect of depression and the like and obviously you were not travelling well in from April through to about August of last year. So again, it is useful to have that as a condition. You must also participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager, including a Men's Behaviour Change program.
61So they are the full suite of terms and conditions. As I say, I am not going to impose unpaid work. It is unusual for me not to, but I am not doing it here because you will be serving a sizeable term of imprisonment by the time of your release, and I think what is more important is to have these services in place upon your release from custody. I am not treating your last order as giving you any real insight as to what you have to do, because you did not too much, and it was all over quite swiftly with offending in the currency of it and the non-compliance even before then. So, they have had you before, Corrections. They are having you again. They say you are suitable. They take the view you are a high risk of reoffence. I take a different view, actually. As I say, I think you have got good prospects of rehabilitation.
62But look, let me give you the benefit of my experience both as a judge and also as a practitioner down at both ends of the Bar table over the years. These orders, most people are happy to get them. Now, I do not know whether you will be or you will not be, because you are serving a term of imprisonment and you are going to continue serving a term of imprisonment but you will be released before the end of the year. You will be released onto this order. It takes effect and you have got to report within two clear working days. Every person who gets one of these orders is consenting to it, otherwise I cannot put them on it. But if you do what some people do, that is you consent to it but then by the time you come to go on the order you are not happy about it, you will breach this order. All right?
63People are happy to get them. People are sometimes relieved to get them. You may or may not be, I do not know. But there is also a bit of a gap between now and when you are going to be released on this order. And I have seen people in your setting come out of custody and say, 'Well, why am I on this order? I have served my term of imprisonment'. The answer is, you have served a term of imprisonment, not the term that would be imposed in the absence of this combination type order. I can tell you, and Mr Farrington would be able to tell you as well, because he would see what I see, we see all manner of people breaching these orders. Nothing surprises me anymore. I have seen everything under the sun.
64I have seen people not turn up to the first induction appointment. I have seen people who do not provide details of where they are living, who do not turn up for supervision, who take a holiday up to Queensland or whether it might be. They do not get permission to do so. People find a way of doing these things and breaching them. They are not easy orders. This one is easier than some because it does not have unpaid work, but it has got treatment and rehabilitation conditions and it has got supervision. I do not know exactly what they are going to ask you to do in terms of alcohol assessment and treatment and testing, or drug assessment and treatment and testing. I do not know what they are going to ask you to do in terms of the mental health assessment and treatment condition, or the other programs condition. But what I do know is, whatever they say is what you have to do. They are really not negotiable.
65They give you a direction to do something, you do it. But as I say, I have seen people who have breached these orders in almost every imaginable way. Not turning up for supervision, not turning up for assessment, for treatment, for counselling, for whatever they might be told to do under the order. Do not put yourself in that position. I need to tell you the sort of position you will put yourself in if you breach this order. Firstly, if you breach an order such as this, that itself is a criminal offence of breaching a community corrections order and it is punishable by a three-month term of imprisonment. But really the real sting to a breach, is that you get brought back to Court. As you will be obviously in the Magistrates' Court. That has not happened yet, of course.
66But if you are brought back to Court it is not the Magistrates' Court. You are brought back in front of the judge who released you on the order. So you will see me again. You do not want to see me again and I do not want to see you again. If I see you it will be because you have breached my order upon your release from custody. Now, I cannot tell you exactly what I would do if I see you on a breach hearing. That is because what a judge has got to do is, he or she has got to come onto the Bench and act judicially. I cannot predict exactly what I would do. What I would need to do would be to examine the circumstances of any breach, and to consider what I should be doing in that setting. But look really, make no mistake about this, work on this theory:
67The most common outcome if a person breaches a community corrections order is the order is cancelled. If the order is cancelled, a judge only has a very limited range of options. Work on the theory, the most commonly exercised option upon a breach of an order, is that the person is then resentenced. That would involve you being resentenced for these same five crimes, plus for the crime of breaching the order. What you really should work on is the theory or hypothesis that if you are foolish enough to breach this order, you are running a very serious risk of being sent to a prison for a sizeable period with a non-parole period. You are hoping to have an active role in your children's lives. The relationship with your wife, as husband and wife is at an end. You have got to put that behind you.
68You are going to need to regain all manner of trust before there is any progress, I would have thought, in terms of any sort of communication at all. At the moment of course, as I perceive it any communication between you and any of them, including your in-laws, would bring you into breach of the order. So you have got to be terribly, terribly careful about that. Terribly careful, because even the slightest breach of any one of these existing intervention orders would be a criminal offence punishable by a term of imprisonment and inevitably would bring you back before me. You come back before me, breaching my order by breaching an intervention order, you should not be expecting any sort of mercy at all.
69Anyway, let me just see what else I have to say to you. I think that probably is a sufficient explanation. What I will do, is I will have Mr Farrington come down and have a chat to you, just to make sure that you are consenting to this order. If you go down and see your client. Thank you.
70MR FARRINGTON: Thank you, Your Honour. There is consent to that order.
71HIS HONOUR: Yes, all right. Thank you. Well, in those circumstances I will have that order taken down. Let me just have a look. Just have a look at that each of you, would you, and just make sure it mirrors my stated intention? I think I will just have you remain seated then, Mr Monson. Do you confirm then that you have signed this community corrections order?
72ACCUSED: Yes, Your Honour.
73HIS HONOUR: And you consent to this community corrections order, is that so?
74ACCUSED: Yes.
75HIS HONOUR: And you have signed it under the words, 'I understand the effect and the conditions of this order and consent to it being made'?
76ACCUSED: Yes.
77HIS HONOUR: Yes. All right, well I will have a copy of that run off for the various parties. I adopt then and pronounce then those sentences that I foreshadowed a short time ago as the formal sentences passed by this Court. That is to say, the aggregate term of 15 months on those five charges, together with the two-year community corrections order, the terms of which I have discussed.
Section 18 - pre-sentence detention
78You have already served 368 days by way of pre-sentence detention and that declaration is also entered into the records of the court. So you get credit for the time that you have served already.
6AAA
79I have taken into account your guilty plea.
80If you had pleaded not guilty and been found guilty of these offences by a jury, I can tell you that there would have been simply no question of your getting a combination type order. It would not have been open to me to place you onto such an order. I would have convicted you and sentenced you to 4 years' 9 months imprisonment. I would have fixed a non-parole period in that setting of 3 years 3 months. That statement is to also be entered into the records of the court.
81Are there any other matters I need to deal with?
82MS BURT: No, Your Honour.
83MR FARRINGTON: No, Your Honour.
84HIS HONOUR: Are you going to go down and see your client, Mr Farrington, or not?
85MR FARRINGTON: Yes, Your Honour.
86HIS HONOUR: All right. Well look, that completes the matter then, Mr Monson. So, Mr Farrington will come down and have a chat to you downstairs shortly. All right.
87ACCUSED: Yes, Your Honour.
88HIS HONOUR: Yes, all right. Mr Monson can be removed then now, thank you.
89(At this stage the accused left the court.)
90HIS HONOUR: Yes, all right. I have signed that formal order then.
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