Director of Public Prosecutions v Moran

[2020] VCC 778

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02285

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY MORAN

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 June 2020
CASE MAY BE CITED AS:	DPP v Moran
MEDIUM NEUTRAL CITATION:	[2020] VCC 778

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering
For the Accused	Mr J. Taaffe

HIS HONOUR: 

1I direct that this formal sentencing and the addition to my reasons be placed on the media portal.  My reasons for sentence were stated on 29 May and I note that, stated at some length and they were then placed on the media portal on that day, so reference needs to be made to both occasions in any reporting of this matter, I would have thought.

2All right, now, so I go onto what I was going to say before.

3I have received the report as to suitability for a community corrections order and Mr Moran is found suitable. 

4I have been assisted by the comparative cases provided by both counsel, but also bear in mind that I should sentence individually to the circumstances and matters relevant to your case, Mr Moran.  I find it to be case with at least some unusual aspects. 

5I have also decided, if I did not say this on Friday, I think I did, that this is an appropriate case to impose an aggregate sentence, bearing in mind the similarity, combination and period of the weapons-related offending. 

6Accordingly, for the reasons stated on 29 May and having considered and weighed the relevant and competing matters, I sentence you as follows:

7The community corrections order component of my sentence should contain aspects of a significantly punitive nature in respect of duration and community work. 

8I formally sentence you therefore as follows:

9On Charges 1 to 4 on the indictment and the summary offences of possessing a prohibited weapon and a controlled weapon, I sentence you to an aggregate sentence of imprisonment of 18 months.

10On Charge 5, cultivation of cannabis, you are sentenced to one months' imprisonment.

11I do not direct cumulation, in other words, I intend that that one month is served concurrently with the 18 months aggregate sentence. 

12That is, therefore, a total effective sentence of 18 months. 

13I declare under s.18 of the Sentencing Act 312 days of pre-sentence detention. 

14MR TAAFFE:  Your Honour, may I just speak up here?

15HIS HONOUR:  Yes.

16MR TAAFFE:  I make pre-sentence detention as 310 days, including today.

17HIS HONOUR:  You told me 312 on - it was 310 as of Friday and you told me 312 today.  Are you sure? 

18MR TAAFFE:  I am afraid that on Friday on gave you the figure which would be valid for today.

19HIS HONOUR:  I see.

20MR TAAFFE:  To add to the confusion.  So I apologise to Your Honour.

21HIS HONOUR:  All right, that is all right.

22MR TAAFFE:  That I am sure, I've checked it.

23HIS HONOUR:  I correct that.  Well, thank you.  I correct that.

24I declare under s.18 pre-sentence detention of 310 days.

25On those charges, I also impose a community corrections order of two and a half years' duration. 

26The usual terms apply.  The additional conditions are:

·That you perform 300 hours of unpaid community work over that time;

·That there be supervision;

·That there be conditions related to drug and alcohol treatment, mental health treatment and medical treatment;

·I direct that rehabilitation program work done can be set off against the unpaid community work component;

·I also direct or I make a condition that there be judicial monitoring.

27As I make it - we will return to that when we formally make the order, somebody needs - if somebody could let me know what the expected date of release is, or rather, a time, a date two months after that.  There is about seven and a half months to go, I think. 

28On the summary offence of possessing ammunition without a licence, you are convicted and fined $800.  That is a lenient fine, considering the particular circumstances of that offence.  It is reduced, bearing in mind the sentence on the other offences. 

29I have sought to impose the appropriate total sentence for these matters, combining the punishment of imprisonment and a community corrections order, which is of two and a half years' duration and contains the conditions set out.

30What are the other - there's s.6AAA, am I right, Mr Pickering?

31MR PICKERING:  Yes, Your Honour.

32HIS HONOUR:  Had you not pleaded guilty, I would have imposed a sentence of four years, with a minimum term of two and a half years.

33What are the other matters?  Forfeiture orders and disposal orders and the like?

34MR PICKERING:  Yes, Your Honour, they were - they've already been provided to the court.

35HIS HONOUR:  Yes.

36MR PICKERING:  And they're referred to at the end of the summary.

37HIS HONOUR:  That is right, but I always make the orders after sentence, so they need to be identified now. 

38MR PICKERING:  Yes.  They are listed in the paragraph 23 of the opening as disposal orders with regard to the cannabis, the explosives.

39HIS HONOUR:  Yes.

40MR PICKERING:  And there's a general order with regards to matter seized and there's a forfeiture order with regard to the firearms.  All of those were filed prior to the plea hearing.

41HIS HONOUR:  Well I will sign those in chambers.  There is no objection to them? 

42MR PICKERING:  No, Your Honour, there hasn't been, Your Honour.

43HIS HONOUR:  I will ask Mr Taaffe.  No, there is no - they are not opposed, is that right?

44MR TAAFFE:  That is right.

45HIS HONOUR:  Yes, all right.  All right.  There is no forensic sample order sought? 

46MR PICKERING:  No, Your Honour.

47HIS HONOUR:  No, all right, so that is it, is it? 

48MR PICKERING:  It is, Your Honour.

49HIS HONOUR:  All right, good.  Thank you for your assistance in that matter - in this matter.  No, I need to formally make the order, do I not?  What is the date for the judicial monitoring please? 

50MR TAAFFE:  Your Honour, I have a date that would be 20 and a half months from remand, 12 April, something in the week of 12 April 2021, would be sometime after his - two and a half months after his release.

51HIS HONOUR:  Is that - that will be two and a half months after he is released, would it?  Yes, thank you. 

52So the judicial monitoring date would be therefore, what - - -

53ASSOCIATE:  20 April.  It is a Tuesday.

54HIS HONOUR:  Yes, 20 April.  All right, that order can be printed out please.  What is the best way of it being served, that it gets sent to the - I will sign it and then it gets sent to the prison, does it? 

55MR PICKERING:  Yes, Your Honour. 

56HIS HONOUR:  I am not asking - yes, all right.  All right.  We can attend to that, yes, thank you. 

57MR PICKERING:  If Your Honour pleases.

58HIS HONOUR:  All right, Mr Moran, as well as the sentence of imprisonment, you are going to be placed on a community corrections order of 30 months upon release.  The conditions are these, or the usual conditions are:

·That you do not commit another offence for which you could be imprisoned;

·That you comply with a condition or - can you hear me, Mr Pickering?  I do not think there is a need to read them out to him in full.  I think it just can be sent to him.  Mr Pickering, are you there?  This really is - this automatic turning it off, I mean, really.  I mean, this is like being in that - what was that film, 2001 Space Odyssey.  It is oppressive. 

59So, Mr Taaffe, you can't hear me?  And the gaol has gone off.

60ASSOCIATE:  Yes, the gaol was - that's what makes us go.  Do you want me to send them an email? 

61HIS HONOUR:  Send them an email saying that we have been turned off and that I do not regard it as essential to the sentence that I state again the conditions of the order, bearing in mind I have already stated them and the order will be signed by me and sent to Mr Moran's - the prison where Mr Moran is housed.  If you can just hand me that before it goes out please.

62ASSOCIATE:  We've been cut off and His Honour doesn't think he need to read out the conditions - - -

63HIS HONOUR:  No, we have been cut off and I do not think it is essential to the sentence that I read out again the conditions of the order, bearing in mind I have done that already when sentencing him.  I shall send the signed order to the prison where he is housed.  Parties can apply if they see any problem with this.

64All right, so I can go now.    

(Short adjournment.)

65HIS HONOUR:  Mr Taaffe, how are you? 

66MR TAAFFE:  Fine thanks.

67HIS HONOUR:  Do you know what has happened?  I overlooked the contravention of the June 2019 matter.

68MR TAAFFE:  And I have to apologise to Your Honour.  I thought that perhaps you'd missed it, but I was busy calculating 20 and a half months - - -

69HIS HONOUR:  Yes, look - - -

70MR TAAFFE:  - - - from the remand date at the time.

71HIS HONOUR:  It is not as easy when you are doing it electronically.  Take a seat, there is no need to stand up at the moment.  It was really just an inconsequential, if that is the right word, oversight.  I in fact dealt with it in my reasons and it is just a matter of doing it.  I am going to impose a three months' sentence concurrent, so it will not change anything.  The question for you is, does he need to be here?  I suspect not. 

72MR TAAFFE:  No, I can undertake to inform him.

73HIS HONOUR:  We will just wait for Mr Pickering to do that.

74MR TAAFFE:  Yes, sir. 

75HIS HONOUR:  Subject to this, I might - I will tell him I have told you this.  I am just wondering whether using a vehicle display registration plate other than that issued, is a gaolable offence, in which case I would have to - - -

76MR TAAFFE:  Does Your Honour have the section of the offence there?  It is a Road Safety Act. 

77HIS HONOUR:  Probably not.  No, I don't think the various informations were filed.  I will just have a look.  No, all I got was the application.  And I am presuming you are forging a notice under the Road Safety Act, it is a gaolable offence, but you might want to double-check that. 

78MR TAAFFE:  Yes, forgery offence it 10 penalty units or imprisonment for two months. 

79HIS HONOUR:  Right.  It is the other one that - how are you, Mr Pickering? 

80MR PICKERING:  Your Honour, my apologies, we have just finished downstairs. 

81HIS HONOUR:  No, that's all right.  We understood what the difficulty was.  Although I dealt with it in my reasons on Friday, I omitted to impose the three months' concurrent sentence for the contravention matters. 

82Just to remind you what I - I identified those matters, described them in the circumstances and said this in my reasons:  'The breach report of Cathy Minon of Community Corrections Services states satisfactory compliance with the order.  However, you were remanded into custody for these indictable matters within six weeks.  These offences are the basis of the breach.  These offences before me, meaning that, I shall, in accordance with the recommendation, cancel the order and re-sentence you.  This should reflect the principle of totality and that were remanded early.  In the period of the order, there had been no opportunity for therapeutic conditions to commence or take effect.'

83I had proposed - what I had proposed doing, was to impose a concurrent sentence on re-sentence, of three months.  But then, as can sometimes happen, when reclaiming a document that listed the particular charges, I noticed that one charge was, 'Use a vehicle in R plate.'  I have take that to be a registration plate, other than that issued.  That may not require a sentence of imprisonment.

84I am wondering whether you can just tell me about that.  I think I had almost imposed no penalty, I think. 

85MR TAAFFE:  I am just trying to find the offence provision.

86HIS HONOUR:  Yes.  Whilst you were coming, Mr Pickering, I asked Mr Taaffe whether or not it was necessary to, in some way, get his client here and he said that was not necessary.

87MR PICKERING:  And I have no issue with that, Your Honour.

88HIS HONOUR: No. What would be a name - 'NR' would be name registration, would it? If there is some difficulty in finding out, I suspect it is not. I could do it this way. In the circumstances, bearing in mind what he has been sentenced for, I would impose three months on Charges 1 to 7 - 1 to 6 and 8 to 11, that is an aggregate sentence of three months, direct it to be concurrent, if it is necessary to do that, that is, concurrent with the sentence imposed on the indictment and the summary offences related to that indictment and on Charge 8 - Charge 7, I am sorry, using a vehicle display NR plate other than that issued, I would simply, under s.73 of the Sentencing Act, convict and discharge.  

89MR PICKERING:  Yes, Your Honour.  Unfortunately the contravention package doesn't include the charges, it includes the summary of the charges, so I can't file them, at least on my system, the actual charge itself.

90HIS HONOUR:  Well there is a schedule.

91MR PICKERING:  There is.

92HIS HONOUR:  But it does not tell us what the Act is.

93MR PICKERING:  No.  I am taking it that it would be an offence under the Road Safety Act to - - -

94HIS HONOUR:  Or a regulations.

95MR PICKERING:  Because - or regulation, because it's described as, in effect, using registration plates which were false and that's the description that's given in the summary for the date of that offence.  They were homemade - they're described as either homemade or forged plates.

96HIS HONOUR:  Yes.

97MR PICKERING:  And were taped onto and concealing the actual registration, so - - -

98HIS HONOUR:  And I presume that the forged notice is an offence related to that, I am presuming that.  I cannot think of any other explanation.

99MR TAAFFE:  Well I found a discrete forge notice.

100HIS HONOUR:  Yes.

101MR TAAFFE:  I think Your Honour's right, they must be associated.

102HIS HONOUR:  They are related.

103MR TAAFFE:  I can that offence provision, but I can't find the - - -

104HIS HONOUR:  Yes, well, I think that is the way to deal with it. 

105MR PICKERING:  Your Honour, I'm sorry, yes, I would agree.

106HIS HONOUR:  Yes.

107MR PICKERING:  And also given the relatively minor nature of it too.

108HIS HONOUR:  That is right, it was a regrettable oversight by me, brought to my attention by Ms Merrington after we had adjourned. 

109So just to make it clear, on the contravention of the community corrections order imposed on 17 June 2019, I find the breach proven.  I impose no penalty for that offence.  I cancel the order and re-sentence as follows: 

110On Charges 1 to 6 and 8 to 9 inclusive, I impose an aggregate sentence of three months. 

111I make no order for cumulation.  If it is necessary to state it, that three month sentence is to be served concurrently with the sentences imposed on the indictment before me and the summary offences related to that indictment. 

112On Charge 7, presuming it not to be punishable by imprisonment, under s.73 of the Sentencing Act, I convict and discharge.

113All right, I think that makes it clear.  His total effective sentence is not affected and in those circumstances, given Mr Taaffe indicating he will pass that on to the accused man and given the difficulties we have in contact, electronically that is, with prisons, or even other people, I will not require him to be brought to court in that way. 

114Did you both get my email.  It was in this matter when we were cut short, weren't we, as I was - - -

115MR PICKERING:  Yes, yes, it was, Your Honour.

116HIS HONOUR:  Yes.  I don't know whether it is done electronically or whether or not there is a person with a stopwatch sitting somewhere in the building. 

117MR PICKERING:  There was a - - -

118HIS HONOUR:  Poised to push a button no matter what.

119MR PICKERING:  There was a five minute warning, Your Honour, but I didn't it would go off like that.

120HIS HONOUR:  A five minute warning. 

121MR PICKERING:  Yes. 

122HIS HONOUR:  You ignore that at your peril.  All right, thank you.     

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