Director of Public Prosecutions v Pfeiffer

[2020] VCC 874

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

AT MELBOURNE
CRIMINAL JURISDICTION

AP-18-2680

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL PFEIFFER

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2020
DATE OF SENTENCE:	17 June 2020
CASE MAY BE CITED AS:	DPP v Pfeiffer
MEDIUM NEUTRAL CITATION:	[2020] VCC 874

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Contravention of a community corrections order – 111 charges – homelessness and drug issues – Further CCO report sought – Imprisonment.

Legislation Cited: s83AD Sentencing Act 1991 (Vic).

Sentence:Convicted and sentenced to nine months imprisonment with 130 days declared as presentence detention, under s83AD Mr Pfeiffer was convicted and discharged for breaching a community correction order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. O'Toole	Office of Public Prosecutions
For the Accused	Ms E. Turnbull	Emma Turnbull Lawyers

HIS HONOUR: 

1In this hearing Ms Turnbull was at pains, as she has been this morning, to submit that Mr Pfeiffer should be given yet another chance.  In that regard I note her written submission, Exhibit 1, the manner in which she presented to the Court last time and the matters that we have discussed this morning.

2The circumstances as to Mr Pfeiffer are in my view stark.  In the Melbourne Magistrates' Court on 31 October 2018 he was given a sentence of six months' imprisonment, with a community correction order of 12 months, for a series of offences.  They should not be underestimated: 111 offences, 84 of which were struck out.  In the County Court on appeal before me, upon the remaining 27 charges, I imposed a community correction order in that the period of imprisonment was capped at 130 days, to that time he served 122, and the term of the community correction order was extended.  That is from the order made in the Magistrates' Court, which I set aside, for a period to be 24 months from 4 December 2018.

3As I indicated at that time, due to his homelessness and drug issues, I was prepared to give Mr Pfeiffer a chance provided he overcame his drug issues.  The contravention report, dated 28 April 2020 shows this did not occur.  He got out of gaol on approximately December 2018 and apparently did not change his habits.  He was at that stage homeless, missed two initial supervisions, but has indeed attended nine thereafter; however, he failed to attend the ASCO appointments in March 2019.

4However, his subsequent compliance according to the report has been deemed acceptable.  However, he as part of the ASCO requirements insofar as urine samples was concerned, returned positives for amphetamines and methamphetamines twice in May, once in June and once in July.  I am told that during the period he was trying to detox, but he lost his partner by way of overdose, and that set him back.

5More importantly, however, he continued to commit crime, indeed the very type of crimes for what he had been sentenced by me.  Firstly, on 9 March 2019 in regard to which the informant Symes has given summaries, he was convicted of possess controlled weapon and assault.

6On 26 August 2019, the second occasion of offending, he broke into a series of properties in Acland Street and stole property from cars.  He was sentenced for all charges at the Sunshine Magistrates' Court to 105 days imprisonment on 9 January 2020. 

7Then on 8 April of this year he was found in possession of syringes and drugs.  He also volunteered that he had been existing by thieving materials and credit cards from persons' mail boxes, much as he had in the original offending. He was convicted on that very day of go equipped to steal, possession of drugs and theft, he was given an 18 month community correction order.

8Subsequent to his release from the sentence handed down at Sunshine he sought self-help in regard to mental issues.  He sought help from his own counsellor. Of course that is not what was required from the community correction order, and now, as I was told last time and also confirmed this morning, he has been able to keep his own accommodation.  He has not breached either my order or allegedly committed any other crime since 1 May 2020, when summons and charge sheet issued. 

9As I said in a valiant plea, maintained this morning, despite the breaches Ms Turnbull requested me to grant, if I cancelled the order, a further community correction order, since Mr Pfeiffer was progressing well under the subsequent community correction order passed down in April 2020.  In order to consider such, without any commitment, I sought a further community correction report.  That should be marked, Ms Turnbull, Exhibit C.

10MS TURNBULL:  As Your Honour pleases.

11HIS HONOUR:  Which is the further community corrections order report dated 4 June 2020.

12It confirms that he was progressing well.  In that regard I note the letter from Voice Psychologists, Exhibit 2, that was tendered on the last hearing by Ms Turnbull, and the letter from the psychologist Hunter.  He was apparently attending his own weekly counselling and was appropriately subjecting himself to supervision. The comment was made on the bottom of the first page that he is performing very well on the order.

13The statement reported was that he indicated he did not intend to cease taking substances.  Regarding ice he advised that he is cutting down massively, aiming getting clean.  He was exploring residential rehabilitation options as part of the CCO.  Presently he continues to use ice regularly and framed his use of ice as medicinal and something he can take or leave.  Ms Turnbull puts to me this morning that her instructions are not so stark, but that her client maintains that he can eventually remove himself from the perils of drugs, but cannot immediately do it and it will take some further assistance.

14In the end the reason for the leniency that I gave him has not been achieved, nor at the moment can it be achieved, because he does not intend to give up ice.  He suggests that additional medical care will eventually lead to him being able to give up drugs and suggests that in regard to the drugs, he can take it or leave it. 

15It is obviously totally delusional of you, Mr Pfeiffer, to have that view.  Not only to date can you not give the drugs up but, because of that, you have also committed the further crimes that I have detailed.  Mr Pfeiffer, we all make choices in life.  I gave you the opportunity to make a choice and you have not.  Yours is a lifestyle. In my view, until you stop drugs, it can only lead to even further criminality than the breaches indicated.  You have unfortunately failed to take the opportunity given and as a result I intend to cancel the order and resentence you.

16If you would stand, please.

17In regard to the breach matters you will be convicted and discharged. That is what I understand to be Charge 112 under s.83AD, you will be convicted and discharged for breaching a community correction order. Insofar as s.83AS, I cancel the existing community correction order made by me. In determining a relevant sentence I take into account the compliance that I have indicated insofar as the provisions of s.83AS(2) and the valiant submissions of your counsel.

18Insofar as the Charges 1, 2, 3, 7, 8, 9, 10, 11, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31, 33, 39, 41, 42, 43, 44, 45 and 46, I order, Mr Pfeiffer, that you be imprisoned for a period of nine months.  Insofar as pre-sentence detention is concerned, I note that it is agreed that you have served 130 days and I declare that that period be determined as service of this sentence and that declaration be entered in the records of this Court.

19One would hope that when you come out you can be more determined to ensure that you are not on drugs.  Because you remain on drugs and you will continue to go to gaol.  It is simple as that. 

20MS TURNBULL:  As Your Honour pleases.

21HIS HONOUR:  Yes.  Any other matters, Ms Turnbull?

22MS TURNBULL:  No, Your Honour.

23MR O'TOOLE:  As Your Honour pleases.

24HIS HONOUR:  Yes.  Take the prisoner down.  Yes, thank you, Ms Turnbull.

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