Director of Public Prosecutions v Phelan

[2017] VCC 910

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01248

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES PHELAN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2017
DATE OF SENTENCE:	3 July 2017
CASE MAY BE CITED AS:	DPP v Phelan
MEDIUM NEUTRAL CITATION:	[2017] VCC 910

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms O. Go	CDPP
For the Accused	Mr M. Fitzgerald	Dr Martine Marich & Associates

HIS HONOUR:

1Mr Phelan, you are - as you have been, convicted.  And you are ordered to serve a community corrections order - I'm re-sentencing you, because you have not complied - for a period of 18 months.  That is, from now for 18 months.

2You are to attend at the Carlton Community Corrections Centre by 5 July 2017 at 4 pm. 

3I am going to order:

4That you perform a total of 70 hours of unpaid work over the period of the 18 months as directed by the regional manager;

5You are to be supervised, as you have been in the past, and you have complied with that; 

6In terms of treatment and rehabilitation, the same treatment and rehabilitation conditions apply.  They are that you attend for assessment and treatment in relation to drug abuse and dependence, as directed by the regional manager;

7You attend for assessment and treatment/testing if need be for alcohol abuse or dependency, as directed by the regional manager;

8That you must undergo mental health assessment and treatment.  That may include psychologist, neuropsychological, or psychiatric treatment in a hospital or residential facility, as directed by the regional manager.  And I note just here that that is what is currently happening.  So that just continues.

9You must participate in programs or courses that address factors relating to your offending behaviour as directed by the regional manager.  In this case, that is a sex offender's program, and;

10One further one, which you did not have before, is judicial monitoring, and you must attend for review, that is, you must come back here on 5 October 2017 at 9.30 am.  That is for judicial monitoring, so I am checking how you are going between now and then.

11The other order that I make is that 50 hours of the treatment and rehabilitation in respect of the sex offenders program - that you complete satisfactorily, are to be counted as hours of unpaid work for the purpose of the unpaid community work condition.

12So I have given you 70 hours of unpaid community work, that is the penalty part.  But if you do up to 50 hours in relation to the sex offenders program, or however many hours you do in the sex offenders program, they will be taken off, or from, the total of 70 hours.  Do you understand?

13OFFENDER:  Yes Your Honour.

14HIS HONOUR:  So that is an incentive to you to comply with and attend at the sex offenders program.  The alternative is you do all the unpaid community work.  And if you do not attend the sex offenders program, that is breaching this order, and you come back to be sentenced by me.  And I will deal with that then, but just bear in mind that this is sort of a rubber band treatment.  The further you stretch it, it is going to break sometime.  Do you understand that concept?

15OFFENDER:  Yes.

16HIS HONOUR:  Yes.  So you can step out of the dock there for the moment.  Have a look at this order when I get it printed up, and you will have to sign it.  In terms of the breach - that is, the breach of the CCO, I find the matter proven, but I have taken that breach as penalty into the overall sentence for the other four charges.  So there is no direct penalty relating to the breach.  You will be given a copy of this order before you leave the court.  You had a hard road, and it will continue to be hard for you, Mr Phelan, because of your mental health difficulties.  Try and focus and stick with those that treat you and help you at the moment, and you will work your way through this, and things will get better for you.  And hopefully by the end of this 18 months, you will come in here and tell me you have been employed and everything is going fine.  But one step at a time, okay?

17OFFENDER:  Thank you Your Honour.

18HIS HONOUR:  Good on you, thank you for your assistance.

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