Director of Public Prosecutions v O'Sullivan

[2015] VCC 1444

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01244

DIRECTOR OF PUBLIC PROSECUTIONS

v

BOWAN DOUGLAS O'SULLIVAN

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JUDGE:	HIS HONOUR JUDGE HOWARD
WHERE HELD:	Melbourne
DATE OF HEARING:	7 October 2015
DATE OF SENTENCE:	7 October 2015
CASE MAY BE CITED AS:	DPP v O'Sullivan
MEDIUM NEUTRAL CITATION:	[2015] VCC 1444

REASONS FOR SENTENCE
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Catchwords:  CRIMINAL LAW – sentence following plea of guilty to attempted armed robbery – TES 186 days’ imprisonment (time served) and CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Manning and Ms B. Yildiz	Office of Public Prosecutions
For the Offender	Mr T. Huynh	Victoria Legal Aid - Melbourne

HIS HONOUR:

1Bowan O'Sullivan, you have pleaded guilty to attempted armed robbery for which the maximum penalty is 20 years' imprisonment.

Circumstances of offending

2The circumstances of your offending have been set out in an agreed comprehensive summary of prosecution opening, which was read out in court today.  You were 24 at the time of offending. 

3On Thursday 2 April 2015 you made an enquiry about the timetable for the Route 901 bus to Frankston.  You wanted to know the time of the first bus the following day. Two days later, on 4 April at about 5 am, you went to the Dandenong railway station and again made enquiries about the times for the Route 901 bus.  You were told that the next bus was expected to arrive at 5.27 am that morning.  You waited for that bus. Before it arrived you engaged in discussion with a station employee.  You were in a very agitated and uncontrolled state of mind.  The conversation, as it was described, was “all over the place”, but at one point you indicated that there was going to be a “big surprise” that morning. You also spoke about jumping under a train. 

4The bus duly arrived at 5.28 am.  You boarded it and were the only passenger.  At 5.36 am you walked up to the driver as the bus was going along and ordered him to stop the bus.  There was a safety screen between the two of you.  You told him that you needed his bus and threatened that if he did not stop the bus you would “spray” him.  You also told him you had a mental problem.  At this time you were holding a bottle of Ajax cleaner in one hand, and a small glass perfume bottle in the other hand.  Not surprisingly, the bus driver was fearful of you and that he would be sprayed with the blue liquid, he did not know what it was.

5He stopped the bus and disabled it so that it could not be driven off by you.  It is unnecessary for me to explain how he did that.  He then exited from the seat and, as he did so, you sprayed him with the Ajax cleaner.  He protected his face by covering it with his hand.  You then got into the driver's seat but were unable to start the bus and drive off as you intended to.  You got out, you chased the driver for about 100 metres along the street, but then gave up and returned to the bus.  You made a further unsuccessful attempt to drive off and then you ran off from the bus, leaving it there.

6Police attended the scene a few minutes later but were unable to locate you.  In the meantime you telephoned 000 and had a lengthy conversation with the operator.  You admitted that you were the person who had stolen the bus.  You said you were having mental problems.  You talked about killing yourself.  You gave your full name.  You said that you had been having mental problems with your ex-girlfriend and that it was causing you stress.  You said you were terrified and you did not know what to do.  You admitted threatening the driver in the way that I have explained.  You referred to some event that happened the day before, which was explained on the plea as relating to someone threatening or assaulting you at the bus station and you being dissatisfied with the way authorities dealt with that matter.  You said that you were feeling suicidal, you did not intend to use the bus to hit into any other cars.  You said you were just going to go on a “big wild police chase” and that you were going to make people realise that you needed help. 

7During this conversation you were breathing heavily and appeared frustrated.  It is not clear precisely what you intended to do with the bus, but I do accept that it was related to some suicide attempt on your part rather than the desire to hurt anyone else. 

8A few minutes later you rang the police and said that you were responsible for hijacking the bus and told them that you were on the verge of suicide but then said that maybe you should have driven a car through the police building.

9You then rang 000 again and told them that you were the one that had taken the bus, or tried to do so, and said that you had made sure that no-one was on the bus when you acted criminally.  At one point you said that you were going to jump in front of a car.

10A few minutes later the police found you in the street and you were arrested.  You were cooperative with them. You expressed suicidal intentions and were taken to the hospital, psychologically assessed and released later that morning into police custody. You were deemed unfit for a police interview.

11Police enquiries revealed that before the offending you had sent a text to your ex-girlfriend indicating that you just wanted the disability system to realise that you needed help. 

Police and court process

12You were charged with the offence and held in custody from then until the present.  There is, accordingly, 186 days pre-sentence detention up to, but not including, today.  Apparently a bail application was proposed but none was ultimately made.  On 20 July last you pleaded guilty to the offence at a committal mention, which is accepted to be at the earliest time.

Victim impact

13I have received a victim impact statement from the bus driver. Not surprisingly, he said that what you did affected his family life.  He was suffering from shock for a few days after the incident.  I have had the advantage of viewing CCTV footage of your offending and it was clear that the driver was terribly frightened by what you did.  He said in his statement that he felt he was in a very threatened position and went on to say that he did not consider that the screen gave him the appropriate protection that it should have. 

14You should feel a great deal of shame and remorse for what you did to that person, who was just doing his job. 

Background and personal circumstances

15I will turn now to your background and personal circumstances.  These have been set out in a very comprehensive and helpful written submission provided by your counsel, which is responsive to a number of psychological and psychiatric reports which have been provided about you.

16You are now 24.  You were brought up in the country, in northern Victoria.  Unfortunately your parents separated when you were two.  You remained with your mother.  You had no contact with your father and there was no father figure in your life.  You have carried with you all of your life a sense of abandonment because of the difficult relationship you had with your father.  You have maintained a close relationship with your mother, who is present today in court supporting you, and it is intended that you should go and live with her in the future.  Ironically, she works as a bus driver and that in itself should bring home to you how terrible it was that you should attack someone who was doing the job that she does. 

17You have a younger sister and also two half-brothers from your father's new relationship.  You have positive contact with all of your siblings. 

18Unfortunately you suffer a medical condition, which is called Noonan’s Syndrome, which is a congenital chromosomal disorder characterised by short stature and musculoskeletal effects which impacts on internal organs.  Because of that problem and also because you have suffered from a young age from a mild intellectual disability, your childhood and teenage years were very troubled. 

19You had a number of social and academic difficulties at school.  You were bullied constantly because of your condition and often ran away from school to escape this.  You report being sexually abused by an 11 year old child when you were eight years of age.  Eventually you were transferred to a special school in Dandenong in 2006, when you were 15, which was a place for children with mild intellectual disabilities.

20You were removed from the family home when you were 16 and placed in foster care. From the time you were 18 you lived an itinerant lifestyle, staying in a number of rooming houses. On other occasions you were homeless, living on the streets and begging.

21When you left school you worked for five months as a locksmith in 2008, when you were 17. You were offered an apprenticeship in that trade, but unfortunately you could not take it up because of the travel involved.  Otherwise you have had a very limited sporadic work history. 

22Unfortunately you have been in trouble with police in the past.  Between September 2011, when you were 20, and December 2014, when you were 24, you have sustained 35 convictions from five court appearances.  Most of these were for dishonesty offences.  In September 2011, you served 54 days’ detention in a youth training centre.  In October 2011, you were released on a community based order for 12 months with supervision and a justice plan.  In October 2012, you were convicted of breaching that CBO and it was extended for a further period of time.  In February 2013, you were found guilty of carrying a graffiti implement and shop theft and placed on an adjourned undertaking for six months, again to comply with a justice plan. 

23Most significantly, on 16 December 2014, you were found guilty of shop theft, apparently of charity tins, and carrying a prohibited weapon, which was a laser pointer.  You were not convicted on those charges, but the matter was adjourned for 18 months on condition that you comply with your justice plan.  Accordingly, this offending breaches that undertaking which is of itself an aggravating circumstance.

Mitigating circumstances

24There are a number of mitigating circumstances relied upon which I accept.  The first is the deprived and dysfunctional personal background which I have described.  None of those difficulties were your fault.  They were clearly the result of the medical and psychological problems that you had.  Next, to your credit, you have never taken illicit drugs and you drink alcohol infrequently.  You are currently on antipsychotic medication to reduce anxiety. 

25Your mild intellectual disability was first diagnosed when you were eight. In 2006 you were declared to be suffering from an intellectual disability under the Disability Act 2006. From 2009 you have received support from Disability Services for that condition.

26I have received a psychiatric report from Dr Nina Zimmerman dated 8 September 2015.  She confirmed, as do and other medical reports that I have received, that you have had contact with psychiatric services since you were 17, presenting with distress, symptoms of depression and anxiety, and suicidal ideation or thinking.  You have received diagnoses of adjustment disorder, depression and conduct disorder.

27Dr Zimmerman's opinion is that you present not only with the mild intellectual disability, but that you meet the criteria for borderline personality disorder.  She states that your intellectual disability, coupled with Noonan’s Syndrome, have marked you out as physically different from other young people and hence, you have failed to cope academically and socially.

28It is clear that, as a result of your problems, you have often failed to engage with rehabilitation services which have been provided to you.  That is one of the major issues that you have to address in the future.

29Dr Zimmerman stated that patients with a borderline personality style experience intense labile emotions, including anger, and they lack the internal resources to manage these overwhelming emotions.  Combined with impulsivity, this can often lead to acts directed outwards, such as your chaotic attempt to steal a bus, or against yourself, such as your frequently expressed desire to harm or kill yourself.  The final feature of this disorder is a catastrophic response to perceived abandonment.

30Before turning to your offending behaviour, I should mention that you were in a relationship with a lady for about four years until February 2015. This relationship was problematic from mid-2014 and it ended when your former partner was unfaithful to you, leaving you feeling devastated and suicidal.  This was the only relationship that you have ever had.  You went to live with your father but that did not work out, and ultimately went to live in a caravan in Murchison, where you were living when this offending occurred.  So that is the context in which you committed the offence. 

31Your counsel correctly relies on the following aspects in mitigation of your offending, whilst acknowledging your serious conduct and the victim impact that I have explained.  First, that you deliberately chose the early hours of the weekend to commit the offending in order to minimise the number of potential victims exposed and/or harmed; secondly, that you were in a heightened emotional state due to the recent breakdown of the long-term relationship that I have described; thirdly, that you admitted to being stressed and terrified and expressed suicidal thoughts; fourth, that the offending was short in duration, in fact, lasting less than two minutes; and finally, that you made immediate efforts to surrender yourself and to admit to your crime. 

32I accept that your conduct was a cry for help in an emotional sense, that you were in an unhinged state of mind, you felt devastated and suicidal as a result of the breakdown, and that you felt lonely and unsupported in the community. But I do note that at this time, for reasons which are not particularly clear, you had developed a resentment towards bus drivers.  Hopefully you think differently now.  You were also cooperative with police. 

33The prosecution accept those matters and have emphasised the time of the day that you chose to commit the offence, that you did not commit it in company and it was unsophisticated offending.  No disguise was used and your choice of weapons was bizarre, to say the least.  All of those matters that I have mentioned mitigate the objective gravity of the offending.

34The next mitigating factor is that you have pleaded guilty at the earliest practical opportunity, thereby saving the community cost, time and inconvenience of a trial, and for that alone there should be a significant discount in penalty.  Most importantly, you have avoided the trauma that the bus driver would no doubt have experienced having to give evidence and relive the horror of the experience he was subjected to. 

35I am satisfied that your plea of guilty is associated with genuine remorse on your part for your conduct, as you said to Dr Zimmerman it was not fair to target a bus driver who was just doing his job.  Your remorse is also demonstrated by the contact you had with 000 and the police and the immediate responsibility you accepted. 

36Next, you have now been in custody for 186 days, about six months, and this is the first time that you have been in adult prison.  The bulk of the time has been spent at Marlborough Unit at Port Phillip Prison, which is reserved for prisoners with an intellectual disability.  Dr Zimmerman has observed that there are negative aspects to your presence at that place.  You seem to have identified with a number of other prisoners as being your real friends when in fact that will not be true, and she has emphasised the need for a much more pro-social environment for you.  You have worked in the prison garden most days for lengthy periods of time.  Whilst you were in custody very early on in the piece, you had not been medically or psychologically assessed for two days upon your arrest, you were in a heightened state of anxiety.  You had threatened self-harm, and as you were being escorted to a padded cell by Corrections officers, you struck one of them on the chest.  Thankfully, no injuries were sustained and you were subsequently convicted of assault and fined $700, and apparently the payment of that has been converted into gaol time, but that is a little unclear.  The relevance of that conviction is that it demonstrated the difficulty you have experienced whilst in custody.

37Next, I accept the application of the Verdins principles.  The prosecution queried the application of the sixth limb because there is no evidence of any adverse effect upon your mental and physical conditions whilst in custody, but I think there is sufficient to demonstrate that that is a likelihood, and I am prepared to proceed on the basis that all six limbs of Verdins apply to mitigate sentence.  Particularly, Dr Zimmerman said that you demonstrated impaired judgment when she assessed you on 25 August last.  Significantly, as to the offending she said:

"There is a direct relationship between Mr O'Sullivan's disability and personality style and the offence that he is pleading guilty to.  His intellectual disability impairs his ability to appreciate the wrongfulness of his actions and also limits his ability to generate alternative ways to expressing his hurt and frustration with others.  His personality style meant that he was unable to cope with the abandonment by his girlfriend and [he] acted in an impulsive manner to try and express his emotions and provoke others to help him."

38Accordingly, I accept the submission that your moral culpability is reduced for the offending and that the application of those important principles of general and specific deterrence should be reduced in a moderate way.  I also accept Dr Zimmerman's conclusion that any custodial sentence would weigh more heavily upon you as a result of your intellectual disability and personality disorder than compared with others who do not have those problems.  She states you are vulnerable, both as a result of your limited intellect, but also due to your poorly developed sense of identity.  She says you present as a chronic risk of self-harm at times of increased stress such as those that are inevitably associated with incarceration. 

39The next mitigating factor is that you are still a youthful person, aged 24, and accordingly, weight should be given to rehabilitation in preference to general deterrence, as submitted.  It is submitted that in all the circumstances your prospects of rehabilitation are reasonable, though directly linked to supports surrounding your intellectual disability and personality disorder as well as to the management of stresses in your life.  I could not put it that highly.  That may be the case, and I hope that it is, but I have to remain guarded as to your prospects of rehabilitation because this is escalating criminal conduct in your criminal history. Essentially, your prospects of rehabilitation depend on the provision of appropriate treatment and assistance, and importantly, as I have said, your engagement with that.  If you do not engage meaningfully with the treatment and assistance that is provided to you, then you can be sure that if you break the law like this again, you will end up in prison for a very long period of time.

40Dr Zimmerman has made a number of recommendations for your future management.  They include you obtaining appropriate counselling support with a psychologist, and this has been, or will shortly be, arranged through your case manager with DHHS.  This will help you to cope with your personality difficulties and provide concrete behavioural strategies to assist in your rehabilitation. 

41You will continue to work with your case manager, who has been discussing housing accommodation with you.  It is proposed that you go and live with your mother in Pakenham.  She is here agreeing to that today, and you want to do that.  It is proposed that efforts be made to obtain some realistic work for you, something like garden work would be a good idea, and also day programs to give you something meaningful to do in your life. 

Other important sentencing considerations

42There are, of course, other important sentencing considerations.  The first is the maximum penalty provided of 20 years.  It shows you how serious an offence it is that you have committed.  It was objectively serious behaviour.  It involved planning on your part some days before the event and it could have led to significant harm to the community, including both to yourself and police officers.  It has had very disturbing psychological effects upon the victim driver who, as I have said, and you accept, was just doing his job. 

43I must sentence you for an attempted armed robbery, not the actual offence of armed robbery. The ultimate offence of armed robbery was not completed by you merely because of the evasive action taken by the bus driver in disabling the bus, not by anything that you did.  Indeed, the prosecutor correctly noted that the offence of armed robbery involves both violence and dishonesty, that is, theft, and that the violence was affected by your use of the spray on the driver and your threatening approach to him, and it was only the element of theft which did not happen by reason of the disabling of the bus.  Indeed, it is appropriate that I should commend the bus driver for his clear thinking and bravery in taking measures to prevent the bus from being driven off by you.

44The prosecution correctly submitted that there were other matters relevant to the objective gravity of your offending and they were that no-one else was around and hence the bus driver was a soft target, your persistence in chasing him up the street, and the fact that you not only made threats but did actually spray him with the Ajax cleaner.  

45Generally speaking, general deterrence is of great importance for this type of offending, but as I have said, it is to be moderated.  So too is specific deterrence an important aspect, because, as I have explained, you have committed the offence whilst on an undertaking and when obliged to comply with your justice plan which was imposed in December last year. And that breach by this offending is an aggravating feature of your offending.

46The principles of protection of the community, just punishment and denunciation are also important along with considerations of your rehabilitation.

47Your counsel submitted that the appropriate disposition was to impose a community correction order with a justice plan condition in reliance upon the recent and well-known guideline judgment of Boulton v R [2014] VSCA 342, with particular emphasis upon paragraph 131.

48The prosecution agreed that releasing you on a community correction order was appropriate, particularly having regard to the fact that you have served six months' imprisonment, and having regard to all of your personal difficulties as I have explained them.  So that attitude on the part of the prosecution is an important consideration for me.

49I have called for a pre-sentence assessment report as to your suitability for release on a community correction order and I have had regard to all of its contents. You have been assessed as suitable for release on a CCO, and I do propose to allow that to happen if you consent, particularly having regard to the principles that are set out in Boulton's case.

Explanation of CCO

50I need to just explain a few things to you about the CCO.  A CCO, which is the short description for a community correction order, is a community-based sentence that addresses your particular offending and your personal circumstances.  It is designed to punish you and to assist in your rehabilitation.  It will serve both your interests and those of the community.  If you engage with it appropriately, it will improve your life and it will help those around you.  So another way of putting it is this is a golden opportunity for you to turn your life around.  If you do not take advantage of this opportunity and you commit similar crimes again, then you are going to go back to gaol and you will be there for a very long time.  Do you understand me?

51OFFENDER:  I do, your Honour.

52HIS HONOUR:  I need to explain what is involved, because, as I have said, you have got to consent to the order.  If you do not consent, then I cannot allow you to go on the order and I would have to sentence you in a different way which would put you in a worse position.  I know the nature of the proposed CCO has been explained to you by the author of the report, but I have got to explain it to you further because I need to satisfy myself that you are giving what is called informed or knowing consent, all right?  So you are knowingly agreeing to the order, all right?

53For instance, do you understand that you have signed a form acknowledging that you may be called upon by Corrections Victoria to fund yourself some of the rehabilitation programs I am proposing to give you?

54OFFENDER:  That means you attend when they want you to be there.

55HIS HONOUR:  You have got to do that, but you might even have to pay for some of the programs.

56OFFENDER:  I'd be happy to.

57HIS HONOUR:  Yes.  I am also going to sentence you to a term of imprisonment, but the term will be 186 days, which is the period of time that you have already served, and I am going to declare that that period is to be treated as having been served by you.  So that the community correction order will start from today, it will last for two years, and there is what we call mandatory or compulsory terms, so they apply to every one of these orders, and also there are special conditions, so I am going to explain, first, the compulsory ones, all right?

58First, during the order, you are not to commit, whether in Victoria or outside Victoria, any offence which is punishable by imprisonment, and there are many such offences, including driving offences, all right?

59Secondly, you have got to comply with any obligation or requirement under the Sentencing Regulations, particularly one which is called Regulation 17.

60Thirdly, you have got to report to and receive visits from the Secretary of the Department of Justice or their delegate during the period of the order.  When I refer to the Secretary or delegate, then for practical purposes that means Corrections Victoria, all right?

61Fourthly, you have got to report to the Community Corrections Centre specified in the order within two clear working days from the order starting, so that is within the next two days, and you have got to go to the Dandenong Community Corrections Office and the address will be on the form that my staff will give to you.

62Next, you have got to let the Secretary, that is, the Community Corrections officers, know within two clear working days if you change your address or any job, even if it is a temporary change.  Do you understand that?

63Next, you are not allowed to leave Victoria unless you get permission to do so from the Secretary, that is, Community Corrections, either generally or in relation to a particular case.

64Finally, you have got to comply with any direction given by the Secretary, that is, Corrections, whether oral or written, so whether spoken or written, which is necessarily given to make sure that you comply with the order. 

65Do you understand all those mandatory or compulsory terms?

66OFFENDER:  I do, your Honour.  I'll comply, and I completely understand.

67HIS HONOUR:  All right, you do understand.  Do you have any questions you want to ask me about any of them?

68OFFENDER:  Um, no.

69HIS HONOUR:  Next, what I am going to do is tell you about the certain conditions that are to apply, and these are designed to both punish you and to address the problems that you have got and, therefore, the cause of your offending, do you understand, and to provide treatment to you and to promote your rehabilitation.

70The first is that you have to do 250 hours of unpaid community work over the whole period of the order, as directed by the Community Corrections Office, and this is a further punishment to you in addition to the time you have spent in gaol already, but it may help you understand there are others who are far worse off than you, all right?

71OFFENDER:  Yes.

72HIS HONOUR:  But remember you are going to be mixing with other offenders and they may try to lead you astray, and you have got problems which would make it easy, I think, for people to lead you astray.  In other words, getting into bad company.  All right?

73OFFENDER:  Okay.

74HIS HONOUR:  So you have got to make sure that does not happen, and if you have got any problems about that, then you should be seeking the guidance and assistance of the Community Corrections officer, all right?

75OFFENDER:  Okay, your Honour.

76HIS HONOUR:  I am going to order that any hours you perform satisfactorily for treatment and rehabilitation are also to be counted in your favour as completed unpaid community work.  So if you do ten hours work on your rehabilitation, say, for mental health, then that is ten hours off the number of hours you have to do for your work.

77I am going to impose a condition that you undergo medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility, and this is because you have Noonan’s syndrome, that I have described already, which is associated with some medical complications, all right?

78I am going to make a condition that you undergo mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, and the Community Corrections officers are going to work in with the current treatment that you are having supplied by DHHS, all right?

79OFFENDER:  Yes, your Honour.

80HIS HONOUR:  So everyone is going to work together. 

81You are going to have to be under the supervision of a CCO officer, and this supervision is going to assist you and may include monitoring and management of your problems and your life.  It will continue for the whole period of the order.  You should rely a lot on that experienced person from Corrections to help you to comply with the terms of the order.  If you are having any problems, what you have to do is tell them what your problems are.  Ring them up or go and see them, all right?  If you work closely with them, they will make your life better, and they will make your life better for others that you care about, like your friend here and like your mum here, all right? 

82I am also going to make it a condition that you reside with your mother at her address, which is ‑ ‑ ‑

83OFFENDER:  Forty-eight ‑ ‑ ‑

84HIS HONOUR:  Forty-eight Edgeware Close in Pakenham, Vic, 3810, and that is subject to any contrary direction given by the Community Correctional Services, and you have to do that for the whole period of the order, right?  That means you have got to live with your mother.

85If that does not work out for some reason, then you can come back and ask for a variation of the order, all right?  That means you come back with Legal Aid and you can say to the court, "Look, things are not working out, we need to make a change."  Do you understand?

86OFFENDER:  I do, your Honour.

87HIS HONOUR:  Yes, all right. 

88I have considered putting you on a justice plan.  You have been on that in the past. 

89OFFENDER:  Yes.

90HIS HONOUR:  But it is agreed by your counsel and the prosecutor that the conditions that I have proposed and set out to you now will deal with all of the relevant issues in the same way that a justice plan did previously, and you will have the continuing support of your case manager from Disability Services who is going to assist you.  That is Mr Doherty at the moment.  But to ensure that you do engage properly with DHHS and whoever is your case manager, then I am going to make a residual condition as follows: That you are to continue to engage with and receive services through the Department of Health and Human Services, all right?  So, as I said, everybody is going to work in together.  I think you need intensive assistance and this is a plan that is designed to give that to you.  So do you understand all of those conditions that will apply to the proposed order?

91OFFENDER:  Completely, your Honour.

92HIS HONOUR:  Do you have any questions for me about any of them.

93OFFENDER:  Um, no, I don't.

94HIS HONOUR:  Very well.

95Next, I have got to tell you about the consequences if you breach the order, all right?  Now you have breached orders in the past like this.  If you have done that without reasonable excuse, then, in certain circumstances, for that alone you face punishment of three months' gaol, all right?  That is just if you breach it.

96There are two ways you can breach it.  One is by breaking the law; another is by not complying with the terms and conditions that I have set out.  So, as I have said, if you commit any offence for which you could be punished by imprisonment, then you would breach the community correction order, and as I said, there are many such offences including driving offences.  Even if you are not guilty of breaking the law but you fail to comply with the compulsory terms of the order that I have explained to you or any of the special conditions of the order, then that would be a breach of the order.  So, for instance, if you did not turn up for meetings, when you have to go to meetings, if you did not engage in supervision, if you did not go to work, community work, if you did not go to mental health treatment, if you did not live with your mum at that address or if you do anything against any of the conditions I have told you about, then you would be in breach of the order.  Do you understand that?

97OFFENDER:  Yes.

98HIS HONOUR:  That is called an administrative breach.  So you can have a criminal breach or an administrative breach.  In any circumstances where you are in breach of the order, then you should expect to be brought back to the court here.  You may be brought back before me or it might be another judge, but if that happens then the court can vary the order, or it could confirm the order originally made, or it can cancel the order if it is still in force and deal with you for the original offence for which the order was made, and that may involve you being sent back to prison, or the court could cancel the order and take no further action.  So they are all the things that could happen.

99So, do you understand the serious consequences if you were to breach the order?

100OFFENDER:  Yes, I do, your Honour.

101HIS HONOUR:  Do you understand that you could be sent back to gaol if you were to breach the order?

102OFFENDER:  Yes, I do, your Honour.  I appreciate it.

103HIS HONOUR:  All right.  Do you have any questions of me about the order that is proposed?

104OFFENDER:  Um, no, it's all good.

105HIS HONOUR:  All right, and ‑ ‑ ‑

106OFFENDER:  I will comply.

107HIS HONOUR:  Sorry?

108OFFENDER:  I will comply.

109HIS HONOUR:  All right.  So do you consent to the order as I have explained it to you?

110OFFENDER:  With all my heart.

111HIS HONOUR:  Yes, good.  Please stand up. 

Sentence

112On the charge of attempted armed robbery, you will convicted and sentenced to 186 days' imprisonment and upon the completion of that sentence you are to be released on a community correction order for the period of two years on the terms and conditions that I have just already explained.

113I am going, before I continue the sentence, to ask you to sign the order.  If you would do that, Mr Huynh, with your client.  I sets out everything that I have said, but just please check it and, if it is right, have him sign that, thanks.

114OFFENDER:  I do appreciate your time and effort, your Honour.

115HIS HONOUR:  Yes, that is all right.

116OFFENDER:  God bless you.

117HIS HONOUR:  There are not many people that I sentence to 186 days' gaol who say God bless me, but anyway.

118OFFENDER:  I found God in gaol.

119[Community Correction Order signed and acknowledged].

120HIS HONOUR:  Thanks.  Just stay standing up for the moment, if you would, thanks. You having signed that now, that order, and I having signed it, I am going to now just repeat that sentence again.

121On the charge of attempted robbery, you are convicted and sentenced to 186 days' imprisonment and, upon completion of that sentence, you are to be released on a community correction order for the period of two years on the terms and conditions already explained and in accordance with the order which you have now signed.

122I declare that the period of 186 days pre-sentence detention up to, but not including, today be reckoned as already served on that sentence and that such declaration be entered in the records of the Court.

123That means that you are to be released on the community correction order today.

124OFFENDER:  Thank you.

125HIS HONOUR:  But as I understand it, you will probably have to go back into custody for a short time and do the paperwork for your release and then you will be released from the court.

126OFFENDER:  I can do that.

127HIS HONOUR: Very well. The charge on which you have been convicted is a forensic sample offence under Schedule 8 of the Crimes Act 1958, and the prosecution has applied for an order pursuant to s.464ZF of the Crimes Act that you should undergo a forensic procedure so as to provide a forensic sample.  You seem to understand that what happens is that they put a swab in your mouth.

128OFFENDER:  Too much TV.

129HIS HONOUR: It is a painless procedure and it is very quick, and you consent to that application, and I am satisfied that in all of the circumstances the making of the order is justified for the following reasons: namely the seriousness of the offence, your prior convictions, the order is by consent, and the granting of the order is in the public interest. Accordingly, I order that you provide a scraping from your mouth and/or a blood sample in accordance with subdivision 30A, Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.  Notwithstanding your present consent, I should tell you that the police may use reasonable force, if necessary, to enable the forensic procedure to be conducted.  As I have said, it is a simple procedure and it will not cause any pain.

130OFFENDER:  I'm happy to do it.

131HIS HONOUR:  I will sign the form which has been provided to me by the prosecution.  You have got to report within 28 days of the sentence, or any appeal, to the Dandenong Police Station to give that sample, all right?

132OFFENDER:  No worries.  Excuse me, your Honour.

133HIS HONOUR:  Yes, just a minute, I will just finish signing the orders.  I have signed those orders.  I will hand them to the prosecution.  Yes, what is it, Mr O'Sullivan?

134OFFENDER:  Because I'm used to being in lockdown at 7.40, I should be home at seven o'clock.  Is that a good hour for curfew before the new morning?

135HIS HONOUR:  There is no curfew applying to you.

136OFFENDER  Okay, I'll just do it for my own benefit, I suppose.

137HIS HONOUR:  If you want to do it, then you fix a time.  Talk to your mum about that and then talk to Corrections about that as well.

138OFFENDER:  Okay.  I'll make sure I'm at the door at 7.40.

139HIS HONOUR:  That's probably a good idea.

140OFFENDER:  Okay.

141HIS HONOUR:  But for your plea of guilty, I would have imposed a sentence of two and a half years' imprisonment with a minimum sentence of 18 months. Have a seat, thanks, Mr O’Sullivan.

142I ask counsel is there any other matter arising?

143MS YILDIZ:  No, your Honour.

144MR HUYNH:  No, your Honour.

145HIS HONOUR:  Nothing from you, Mr Huynh?

146MR HUYNH:  No.  Thank you, sir.

147HIS HONOUR:  All right.  Thank you.  As I said, Mr O'Sullivan, you have got to go down to the Corrections and get discharged, do the paper work.  That's right, isn't it, officer?

148VOICE (from body of court):  Yes, sir.

149HIS HONOUR:  How long will all that take?

150OFFENDER:  (Indistinct) too long.

151HIS HONOUR:  Not too long?

152OFFENDER:  It doesn't matter.

153HIS HONOUR:  All right.  Your mother - will you arrange, Mr Huynh, for all this?

154MR HUYNH:  Yes, I'll take her down to where she needs to go, Your Honour.

155VOICE (from body of court):  Thank you.

156HIS HONOUR:  Then it is necessary for you to go with your mother and the other gentleman who is helping you out as well.

157OFFENDER:  Yes.

158HIS HONOUR:  And they will look after you.

159OFFENDER:  My body guards.  Sorry to be cheeky, your Honour.

160HIS HONOUR:  Pardon?  What did you say?

161OFFENDER:  Sorry to be cheeky.

162HIS HONOUR:  What did you say?  I missed what you said?

163OFFENDER:  My bodyguards.

164MR HUYNH:  His bodyguards.

165HIS HONOUR:  His bodyguards.  All right.  He's big enough to be your bodyguard.  Yes, all right.

166OFFENDER:  Thanks for your time.

167HIS HONOUR:  Thank you for your assistance on both sides again.

168MS YILDIZ:  As your Honour pleases.

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