Director of Public Prosecutions v Novak

[2016] VCC 919

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 15-01829

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMAN PETAR NOVAK

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Warrnambool and Melbourne
DATE OF HEARING:	Warrnambool: 16 March 2016, 8 April 2016 Melbourne: 23 June 2015, 30 June 2016
DATE OF SENTENCE:	30 June 2016
CASE MAY BE CITED AS:	DPP v Novak
MEDIUM NEUTRAL CITATION:	[2016] VCC 919

REASONS FOR SENTENCE
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Subject:  Sentencing; aggravated burglary

Catchwords:             Plea of guilty; offending while drug and alcohol affected; unprovoked breaking into neighbour’s home; misguided vigilantism

Legislation Cited:     Sentencing Act 1991 (Vic) ss 6AAA, 18

Cases Cited:            R v Verdins & Ors [2007] VSCA 102

Sentence:4 months imprisonment followed by a CCO for 15 months with supervision and rehabilitative conditions

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos (Warrnambool) Ms E. Hill (Melbourne)	OPP
For the Accused	Mr M. Turner	Dwyer Robinson

HER HONOUR:

1Siman Petar Novak, you have pleaded guilty to a charge of aggravated burglary.  You have also admitted an extensive prior criminal record, to which I shall refer later.

2The maximum penalty for aggravated burglary is 25 years' imprisonment.  That indicates that aggravated burglary is regarded by Parliament, on behalf of the community, as a very serious offence.  You will not be receiving a sentence anywhere near that severe in all the circumstances of your case, but I must and have, taken it into account.

3This offence occurred on 27 June 2015, and that is almost exactly one year ago.  At that time you were living in Hamilton in a single storey unit which was part of a complex of such units.  That afternoon you had been drinking heavily, apparently to drown your sorrows, being upset about recent disputes with your mother that had led to you being required to move out of her home, and also having recently had your school age daughter staying with you but she had left by that afternoon to return to live at her mother's home in Melbourne.

4Opposite your unit was the rear of another unit into which another man had recently moved and was living alone.  You had not met him.  At about 5.30 pm you entered that other unit, knowing he was inside.  You unlocked its rear gate and then walked up to the rear wooden door and kicked it so forcefully that you smashed the lock and timber frame so that the door fell inside.  You were carrying a metal fork at the time and walked into the dining room area where the man living there was seated at his dining table.  He immediately called 000 and requested police.  You pointed your fork towards him but he yelled at you to get out of his flat and you turned around and did walk back outside.

5Police arrived as you were walking out and you at first pointed the fork at them and said you were proficient in martial arts, but after a short negotiation you dropped the fork and were arrested.

6You were interviewed by police, told them that you had had a couple of drinks and were “not thinking through it”.  You described yourself as “traumatised by drugs”, “a bit schizophrenic”, that you were “a druggy with problems” and have underling issues that you need to deal with, especially anger, and that that was what had happened that night. You said you were taking your anger out on the other man.  You said you were thinking that you had your daughter around, although by then she was back at her mother's.  You seemed to believe that you had heard that the man who had moved into the unit opposite was a paedophile, and you were calling that out to him.

7Your language and descriptions of what you had done that night, in your record of interview, do seem to reflect some confusion, but also much anger and thoughts of violence with it. 

8What you said in that record of interview contained sufficient admissions that it was clear that you would ultimately plead guilty to a suitable charge.  I am told that you did plead guilty to this charge at the committal mention, and so you are entitled to the considerable leniency that attaches to an early plea of guilty.  That leniency flows first from the utilitarian value of your saving the community and individual witnesses, including in this case the man whose home you invaded, from the time, cost and stress of attending disputed court hearings. Also by your plea of guilty you have accepted responsibility for your actions, and in your case I accept that the plea reflects some remorse, consistent with some of the comments you made in your record of interview, and with a letter of apology you have written, addressed to your victim. 

9I shall tell you after I have imposed your sentence what it would have been if you had not pleaded guilty.

10As I have already said, the very high maximum penalty for the offence of aggravated burglary reflects that offences of this type are regarded as objectively very serious.  Such offending involves the intrusion into what in this case was a person's home without permission, with intent to steal or assault.  The circumstances in which this may occur vary widely.  In your case you broke down the door and were carrying a fork in a threatening manner, so it is inferred you had the intent to assault.  This was wholly unprovoked. You broke in the door and confronted your victim, whom you had never met, in his home and whilst sitting at his table.

11However, the incident was brief, you inflicted no actual physical injury on him, and departed quite quickly after he yelled at you to leave.  Although you caused damage by breaking the door from its frame, I consider this incident as at a low level of seriousness for an aggravated burglary.

12Offences of this type call for punishment which sends a clear message to others that offending of this type will not be tolerated and will attract serious punishment.  This incident, as with so many others of its type, involved an element of vigilantism, misguided, as is not uncommon, and I regard as of significance that your sentence must send the message that courts will unequivocally condemn such actions based on vigilantism.

13I am told that you were heavily affected by alcohol at the time, its effect quite possibly mixed with the effect of Xanax, which you were taking for depression.  That may be some explanation for your behaviour but cannot excuse it, and does not amount to mitigation.  What it does is support that this was probably an unplanned, spontaneous action by you, and that you were not thinking clearly of the consequences.  That means that although you do not receive any leniency for acting in this way while drunk, a voluntary state, I assess your level of moral culpability as much lower than if you had deliberately planned to confront your victim in this way.

14I do not have a victim impact statement but assume that the incident would have scared and upset the man involved, the incident being a threatening invasion of his home.

15I turn now to your personal circumstances.  You are now age 34.  You were born in Melbourne.  I am told that you had a most unstable childhood, which in many ways can be seen as the background to the unstable life you have led for the last decade.  I am told that your father abused alcohol, was violent towards your mother, not often home, and that your parents separated when you were aged about five.  You have apparently had no contact with your father for a very long time.

16Your mother apparently also drank excessively in your childhood, used stern punishment, physical punishment, on you as a child, but also suffered serious health problems which led to her retiring from her work early, and to your being placed in foster care, initially while she was in hospital, when you were aged five or six.  You were apparently subsequently made a ward of State.  You also report having been sexually abused at the age of five or six by a priest while your mother was in hospital.

17You attended school in Ballarat but your behaviour led to your being expelled from primary school.  You left secondary school in Year 9.  Nevertheless you apparently did well at your studies when you attended to them.  You commenced an apprenticeship as a bricklayer, but did not complete that due to your taking up drugs, which undermined your life from your late teens. 

18You have told interviewers that you worked at times, including in meatworks, but that you have had no employment since age 25.  You have received social security payments or otherwise been homeless and reliant on begging or stealing.

19I am told that you have an older sister who has mental health problems, and a younger brother who lives a stable life in regional Victoria but has nothing to do with you, and you have  no ongoing contact with either of your siblings.  You apparently had two older half-sisters, they being your father's children by an earlier marriage, but one died many years ago of a drug overdose, and the other lives in Queensland and you have no significant ongoing contact with her. 

20I am told that you have a daughter, aged 11, or by now possibly 12, who lives with her mother in Melbourne. Prior to your present remand in prison you had some contact visits with her and, indeed, she had stayed with you shortly before the offence that brings you before me.  I am told that you value what time and contact you have with her, and were feeling miserable after she left, which was part of the motivation for your heavy drinking.

21Your mother now lives in Hamilton.  You seem to have lived with her at times but also had fallings out with her, including as a result of arguments and your drug abuse.  You told police when interviewed after this offence, that you had moved out of her home some months earlier as a result of arguments.  When you were first brought before me in March of this year, in Warrnambool, when I was told that you were staying with your mother at that stage.  However, it also appears that some months before this offence she took out a Family Violence Intervention Order against you which prevents you from living with her or being in contact with her, and the order lasts for five years. It seems there had been a previous order of this nature, as I am told that a past court appearance for breaching such an order was in relation to your mother.

22Since your late teens you have apparently abused drugs, including cannabis, amphetamines, heroin and, in the last two to three years, “Ice”.  You also have some history of abusing alcohol and, indeed, you say you were affected by alcohol at the time of this offence.  You also have a history of overusing prescribed medication.  It seems that you have attended doctors and been prescribed medication for Depression, and also codeine or similar for back pain, but you have overused the drugs prescribed.

23You have a criminal history dating back almost 18 years, starting with a charge of forging a prescription, then numerous offences of dishonesty, some of carrying a controlled weapon, and drunkenness during 2001 and 2002.  There was then a break of some four years before you again appeared before a court, which was in November 2006 for various driving offences, including exceeding the blood alcohol limit.  A number of court appearances followed over the following years, some dealing with your breaches of various orders.  You were dealt with for breaching a suspended sentence, for breaching an Intensive Corrections Order, and for the latter were ordered to serve the unexpired portion of 109 days in prison.

24From 2009 to 2012 there were appearances for possession and use of heroin, intentionally causing injury, which I am told arose out of a drunken incident with your sister.  You were dealt with for breaches of a Family Violence Intervention Order, as I have already said, apparently relating to your mother, and breaches of bail.

25In September 2012 you were ordered to serve four months' imprisonment, which was wholly suspended, and you appear to have completed that suspended sentence without breach, as you were not before a court again until February 2015, when you were dealt with for contravening another Family Violence Intervention Order.

26Your criminal history reflects your ongoing problems with drugs and alcohol, and offences include begging for alms, indicating that you were without money.  It also reflects some violence associated with anger, and I note that in interview with Dr Clayer you admitted that you do have serious problems controlling your anger.

27None of this criminal record does you credit. However, it is consistent with your abuse of drugs, and being without work and often without a home, and is not so constant as to reflect entrenched lack of self-control.  Unfortunately when given the opportunity to undergo a rehabilitative order through an Intensive Corrections Order you breached it, by not attending community work and providing regular excuses which you could not substantiate, and ultimately breached it by further offending.

28At various times you have expressed the wish to address your drug and alcohol problems, and to reach the point of abstaining from illicit drugs and alcohol and reducing your intake of prescribed medication.  However, you have not followed through by completing those quests or the various programs that you have commenced.  You seem to have started by attending rehabilitation appointments under the Intensive Corrections Order in 2007, but ceased when you knew you had breached the order.

29Shortly after your arrest for these matters you attended at Quamby drug treatment service in Western Victoria, on referral from ACSO Connect, that referral having happened the day of your arrest.  A report dated 14 September 2015 indicates that you attended Quamby on four occasions, but missed two weekly appointments, that you spoke with good insight into the triggers for your using drugs, and presented as motivated to change, with your goal to be abstinent from alcohol or illicit drugs and to reduce problematic use of prescription medication.  You were regarded as demonstrating your commitment to reduce your substance abuse, and continuing to engage with your general practitioner, but you were ambivalent about attending a detox and rehabilitation unit to cease all substance use.  It was considered that you would benefit from a psychiatric evaluation and also that follow-up with a psychologist may be of some benefit to assist you to sustain change in your life.

30It was said that by the Quamby assessment protective factors for you were family and local church organisations which were well established.  However, it is my understanding that you no longer have family support for this purpose, or not officially, as your mother has an intervention order against you, and I am not aware of what ties or involvement you have with local church organisations.

31Given your unstable and difficult childhood and family history, and your own problems with drugs and sustaining any constructive like activity in your life over many years, and at the urging of your counsel, I requested a psychiatric report on you through Forensicare.  By the time you were assessed for that report you had been in custody for almost six weeks, and I assume had significantly detoxified from the drugs which were clearly affecting you when you were first brought before me on 16 March.  You told Dr Clayer that you were diagnosed with Bipolar Affective Disorder when aged six or seven, and were initially treated by a psychiatrist following sexual abuse by a priest.  You describe that your symptoms involved a lot of anxiety and a lot of anger and that you suffered tantrums when you were not given your own way.  Dr Clayer considered this behaviour more consistent with Attention Deficit Hyperactivity Disorder than Bipolar Affective Disorder.

32You also described to her suffering from Depression, but were unsure when it started, and you thought it related to your drug use.  You had apparently previously attempted suicide by overdosing on heroin but were revived by paramedics.  You also said you were diagnosed with panic disorder at the age of 17. Dr Clayer considered that a difficult diagnosis to have been made when you were a person using various illicit substances and alcohol and considered a collateral history would be useful to confirm that diagnosis. 

33She did see some of your medical history from South West Health, from 2012 and 2014, which documented that you had had chronic suicidal thoughts since your teenage years, and had made threats to kill yourself when your needs were not met, such as extra prescriptions of codeine.

34Dr Clayer found your mood to be depressed, angry, frustrated and distressed with your incarceration.  You were not currently expressing suicidal intentions, but described anxiety.  She considered you had partial insight into your mental state, recognising that your anger has originated from your early childhood experiences, and acknowledging that you have used substances to escape reality and to numb yourself.  She did not consider that you do suffer a Bipolar Affective Disorder.  She noted you had developed numerous substance use disorders, and found it very difficult to identify with your current report of anxiety and depression, what was due to a primary mood disorder, personality style or what was due to your substance use or a combination of all of those.

35She noted the substances you use and abuse would cause mood disturbance such as depression and anxiety, and that Ice would exaggerate your anger issues.  She noted that a primary mood or anxiety disorder will only become clear if you have abstained for several months from illicit substances or benzodiazepines.  She considered that your symptoms were consistent with antisocial and borderline personality traits, with a pattern of disregard for the rights of others and disregard for the safety of yourself or others.  Some of the symptoms you described were of post-traumatic stress disorder, but she did not ascertain sufficient of those to give that diagnosis.  She thought it may become clearer during any sustained abstinence from illicit substances. 

36She considered alcohol was likely to have led to disinhibition, particularly combined with benzodiazepines, which you stated you were using on a daily basis at the time of committing the aggravated burglary.  She thought this would have contributed to your poor impulse control and inability to manage your anger, resulting in violent behaviour.

37Dr Clayer recommended that you engage in programs to do with drug and alcohol use - if you remained in prison, then to undergo them there and noted your condition was being managed by medical officers there.  If you have a non-custodial sentence she considered you would benefit from drug and alcohol in-patient management.  She noted you said you were agreeable to doing this, but historically have agreed and then changed your mind.  She noted that in-patient drug rehabilitation would also give the opportunity to have your anxiety and mood symptoms further assessed while abstinent from substances.

38She considered that it was likely that you would breach conditions of a CCO if you were released straight back into the community, as you were homeless, unemployed and without a support network. She noted boredom had previously been a precipitant to drug use and she recommended that if that were the option taken and there was no in-patient rehabilitation, then you would be recommended to regular drug and alcohol counselling as well as a support worker.

39In my view, further observation of your mental health is desirable, especially if you can stay abstinent from illicit drugs for a sustained period to enable it to be further assessed without the interplay of those drugs.  However, it was not suggested that the evidence about your mental health supports there having been a causative connection between your mental health and your offending such that might warrant a reduction in your sentence as a result.  In other words, it is not suggested that any of what are known as the principles in Verdins case apply.

40I also requested an in depth pre-sentence report on your suitability for a Community Corrections Order.  I shall not repeat much of the history noted in that report, as some has already been outlined, although there are some discrepancies such as her noting that you said that on the day of this offence was the first time you had drunk alcohol in six years, which does not seem consistent with other matters I have been told.

41Your history with Community Corrections was outlined and I have already described your history on an Intensive Corrections Order in 2007. You told the assessor that you have completed detox a number of times, the last being in 2012, and expressed to her the desire to enter residential rehabilitation on your release from custody.  You also reported having completed a lot of counselling over the years.  It was clarified by the Community Corrections officer during the last hearing that that office does not make direct arrangements for placements in rehabilitation courses but refers someone in your position to ACSO/COATS.  Therefore reference to an attempt to arrange for you to be released directly from custody to residential rehabilitation was, in fact, an enquiry about that possibility with ACSO/COATS.  I note the dilemma that that arrangement cannot be made for a rehabilitation placement, whether residential or not, while there is not a known date for release from custody, which of course was not available when this report and those enquiries were made.  After today, of course, it will be known.

42You were assessed as having a high risk of general re-offending; the significant risk factors being your significant history of poly-substance abuse and mental health conditions as reported by you, and for which you said you were medicated at the time of the offending.  Also the lack of support in the community or stable accommodation.  However it was noted that you expressed a willingness to get off what you call the "merry-go-round" of drug use and crime, that has been part of your life for a long while.  You expressed interest to become abstinent from drug use and you had insight into there being a clear link between your substance abuse and offending, and that that would continue into the future. 

43In the circumstances you were found suitable for a Community Corrections Order, despite past non-compliance, which was some nine years ago now.  However there were concerns about your ability to comply with such an order if you failed to gain secure accommodation. 

44On each occasion you have been before me and again as I asked about this this morning, I have pressed to find out more about the availability of accommodation for you on your release from prison.  That is because, in my view, it is relevant to the structure of your sentence. I am not wanting to impose any order that, in effect, sets you up to fail almost immediately.  I also regard it as of great significance to the prospects of rehabilitation in your case. 

45As a result of the incident that brings you before this court, you lost the accommodation that you had at the time through the Director of Housing, and given the circumstances of this incident, and as you have said you apparently owe rent for that accommodation, it is unlikely that in the short term you will readily obtain further housing through the Director of Housing.

46You cannot return to live with your mother due to the intervention order, and you have no ongoing strong arrangement with any of your siblings.  You apparently thought you could live with a friend, but as it emerged on the last occasion that he lives in the same complex of units as where this offending occurred, it was conceded on your behalf that that would be not suitable even though I am not sure whether your victim still lives there.

47I have, this morning, been told that enquiries have been made for you, and it is likely that emergency accommodation can be arranged through the Salvation Army, and that you are hopeful that that can be in Hamilton but if not it can be arranged in Warrnambool.  That will, apparently, only be for two to three nights, so will require prompt action and effort by you, and by anyone else who can assist you to secure something longer term and more stable.  I do regard it as important to your prospects of not relapsing into re-offending almost immediately after release from prison, that priority should be given to your finding new stable accommodation. 

48I remanded you in custody when you were brought before me, when sitting at Warrnambool, on 16 March.  That was because you had failed to attend on the date your plea hearing was listed, thereby failing to answer bail. Indeed, as you had no available accommodation as at that date, no application was made on your behalf for bail nor has it been made in the meantime.  That means you have been in custody for what I calculate, and will have counsel check, is now 106 days not including today, and that will count as pre-sentence detention towards your sentence.

49I take into account that while in custody you were apparently assaulted by another prisoner while in police cells in Geelong.  That incident has been confirmed. In an unprovoked incident lasting about five minutes, you were punched repeatedly approximately 20 times to the face and head and including after you fell to the ground and your head was stomped on.  You were taken to Geelong Hospital where extensive bruising was found, generally on your face with swelling, and around the left eyebrow.  There was crepitus in the jaw and some facial deformity with the swelling and lacerations.  There was tenderness over the sternum but your ribs were found intact.  X-rays revealed no abnormalities there, nor of your neck on which a CT scan was performed.  I recall that in a hearing before me three weeks after that there was still some visible bruising around your left eye. 

50Although you apparently refused to sign a statement making a complaint about this assault on you, I am told that a prosecution against the man who attacked you is still likely.  I take into account  in some mitigation of your sentence, that you were harmed in this way during your time in custody, making your period on remand more onerous than it would otherwise have been.

51As already outlined, general deterrence, that is to send a message to others tempted to engage in this sort of behaviour, must be an important factor in your sentence.  So must be specific deterrence given your criminal history and the link between your patterns of substance abuse and offending. 

52Even though you have a long criminal history, I do not regard it as so entrenched that you have no hope of rehabilitation and of building a more stable and hopefully responsible life for yourself.  You apparently did reasonably well at school, notwithstanding misbehaviour and truancy.  You have shown yourself capable of undertaking some certificate courses since then, including last year, whilst on the Newstart obligations. You are said by several of the persons whose reports are before me to have insight into the triggers for your drug use, and that you have insight also into the fact that that, in turn, has led to your offending.  You recognise boredom as one of your triggers and realise that you need constructive activities to avoid this.  Work is an obvious example of a desirable activity and I do not think that your chances of gaining employment are hopeless, although also not easy given your history. If you could get your substance issues under control, I regard you as having real prospects, although still guarded, of reforming your life into one of some stability and hopefully satisfaction.  That is up to you and your determination to deal with your drug and alcohol problems. 

53Taking all of these matters into account, I have decided that the appropriate sentence is one which involves a period of imprisonment to be followed by opportunities for rehabilitation through a Community Corrections Order.  I intend, under the Community Corrections Order, to impose conditions addressing your drug, alcohol and mental health problems, and offending behaviour problems as outlined, which in your case seem to centre around anger management.

54I have also decided to impose some, although a relatively small requirement, that you perform unpaid community work  Your counsel suggested that that was unnecessary as a penalty on top of some term in prison.  I accept that in addition to imprisonment a CCO in itself is a punishment, as it involves supervision and compulsion to attend, as directed, the various programs.  I am not proposing a significant further penalty through unpaid community work, because I do not think that would be warranted. However, as a recognised feature of your propensity for substance abuse, and often with additional offending is boredom, I intend to impose some unpaid community work for its rehabilitative role in giving you a focus and activity on the days it is to be performed, as well as interaction with employment conditions and exposure to working with other people. 

55Would you stand up now, please.

56Siman Petar Novak, on the charge of aggravated burglary you are convicted and sentenced to four months imprisonment to be followed by a Community Corrections Order to last 15 months. 

57The conditions of the Community Corrections Order are that you complete 40 hours of unpaid community work, be subject to supervision, attend as directed for assessment and treatment for drug abuse, for alcohol abuse, for mental health issues and programs to reduce the risk of you re-offending which, as I have said, in your case particularly revolve around anger management.

58In addition all usual terms of a Community Corrections Order apply.  You have been told of these but I repeat them briefly here.  Within two working days of your release from prison you are to attend at a Community Corrections office.  I am nominating Warrnambool as that office because as I have said that is a five day a week office, Hamilton is not, and as yet there is no known accommodation arrangement for you.

59There is, in my calculation, approximately two weeks more that you are to serve in prison before you are released, but that will be a known date of release and that leaves a two week period for arrangements to be intensively looked at to get you accommodation and hopefully also to look to get you, if it were possible, into a drug rehabilitation residential program, but at least lined up quite quickly for such a program.  Once you obtain other accommodation no doubt the place you report to on an ongoing basis can be changed to be closer to where you live. 

60Further usual terms that apply of a Community Corrections Order are that during the whole of the Community Corrections Order, which in your case will be 15 months from the time of your release from prison, you are to notify your local Community Corrections office of any change of address of where you are living, or if you get work, of where you are working, and that is to happen within two clear working days, business days, of that change. No doubt Community Corrections officers, when they induct you, will give you all those details again. 

61During the whole of the Order you are to obey all lawful directions and instructions of Community Corrections officers.  You are to submit to visits from them or to attend for supervision as they direct.  You are not to leave the state of Victoria without prior permission from Community Corrections officers and, most importantly, you are not to commit any further offences during that period.  Now I point out use of illicit drugs are offences that would amount to a breach of the Community Corrections Order not just the variety of other offences you have engaged in from dishonesty to this very matter of aggravated burglary.

62If you were to breach this Order, whether it is by not complying with the conditions or by breaching the terms, including by further offending, you can expect that Community Corrections officers will take what they used to call “breach”, but are now called “contravention” proceedings, against you.  That, in itself, is a further offence to contravene a Community Corrections Order but the upshot could well be that you are brought before the court, probably before me. My powers on such an occasion would include just to confirm the order, or to vary its terms by extending its duration, or the conditions, or it would be in my power to cancel the order and re-sentence you for the offence for which it was imposed.  Now what actually would occur in such circumstances would depend on the circumstances of the breach, your personal circumstances at the time, and how much of the order you had completed but you need to be aware that those are the consequences of breaching such an order.  Now do you understand the terms and conditions I have imposed?

63OFFENDER:  Yes, Your Honour.

64HER HONOUR:  Do you agree to comply?

65OFFENDER:  Ah, yes Your Honour.

66HER HONOUR: All right. Now pursuant to s.18 of the Sentencing Act I declare as reckoned served, what I calculate as 106 days of pre-sentence detention. Is that correct?

67MS HILL:  Yes my learned friend and I already agree with that, Your Honour.

68MR TURNER:  Yes, Your Honour.

69HER HONOUR:  Yes, 106 days of pre-sentence detention.  I direct that that be recorded in court records.  It will be deducted administratively.  As I have already said, on my calculation that leaves approximately two weeks but it will be up to Corrections to calculate the days of the months that have been involved before you are released.

70Pursuant to s.6AAA of the Sentencing Act I am obliged to state what sentence I would have imposed if you had not pleaded guilty but been found guilty of this charge by a jury.  That is always an artificial statement to have to make but in your case I state that if you had not pleaded guilty but been found guilty I would have imposed 21 months' imprisonment with a non-parole period of 16 months. 

71Now in addition I make the other orders that were sought.  The first of those is for a forensic sample to be taken from you.  That is to enable your DNA to be placed on the country's database.  I limit it to what they call a scraping from the inside of the mouth.  It is a cotton swab that is rubbed against the inside of your cheek and unless you resist it is not intrusive, and it does not involve any discomfort.  I must warn you that if you resist the taking of that sample, authorised officers can use reasonable force to take it.  The reasons I make it are the circumstances of the offence in question, and it was not opposed.

72The other ancillary order I make is for disposal of the fork you were holding at the time you committed this offence. 

73You can take a seat, Mr Novak, while the orders, including the community corrections order are prepared.  Is there anything that I have overlooked?

74MS HILL:  No, Your Honour.

75MR TURNER:  No, Your Honour.

76HER HONOUR:  All right.  Did I specify supervision?  I intended to.  I think I said it - - -

77MS HILL:  Yes, Your Honour.

78HER HONOUR:  - - - as one of the conditions.

79MS HILL:  I have a record of that.

80HER HONOUR:  Yes, yes.  That is good.  I just wanted to make very clear that that is part and parcel of the conditions of the Community Corrections Order.  I will hand this to both - have this handed to both counsel so you can just check the terms.  My Associate says there has to be an address for a Community Corrections Order put into the computer system.  My Associate had, in the meantime, consulted with Community Corrections about that.  What she has done is put "care of the Salvation Army offices in Hamilton" noting at the bottom that that is where your client intends to apply for urgent accommodation on his release.

81MR TURNER:  Yes.

82HER HONOUR:  It is just that the actual - the computer will not produce the order - and we cannot say "no fixed address" in the order.  Unless anyone has another alternative that seems the most suitable to me.

83MS HILL:  No that sounds sensible, Your Honour.

84HER HONOUR:  All right.  If that is all right my Associate will take it to - you can go too but it's my Associate asks your client to sign. Mr Novak, your counsel has checked that Community Corrections Order but you are asked to check it yourself and sign it and then I will sign.

85All right I will sign the Community Corrections Order now.  That will be copied and a copy provided for both sides.

86MS HILL:  As Your Honour pleases.

87HER HONOUR:  I need to vacate the court room quite quickly.  We're holding up Judge Hicks' case and I have parties waiting at another court for me.  So I will have Mr Novak removed from the court.  Mr Novak, as I have said you have got approximately two weeks to go but the big challenge for you is to address your drug and alcohol abuse and other underlying problems and the best I can say for you is good luck with that and I hope I do not see you back on a breach hearing.

88OFFENDER:  Thank you, Your Honour.

89HER HONOUR:  All right. Could you remove Mr Novak please from the court? 

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