Director of Public Prosecutions v Phillips

[2019] VCC 665

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00854

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM PHILLIPS

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2019
DATE OF SENTENCE:	13 May 2019
CASE MAY BE CITED AS:	DPP v Phillips
MEDIUM NEUTRAL CITATION:	[2019] VCC 665

REASONS FOR SENTENCE
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Catchwords: Resentencing on breach of CCO, aggravated burglary and RCI

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. O'Toole	Office of Public Prosecutions
For the Accused	Mr R. Martini	Rainer Martini & Associates

HIS HONOUR:

1Yes, all right.  Just remain seated, then, Mr Phillips.  It is a breach proceeding that is before me here today.  As you know, I heard a plea in relation to your serious criminal conduct.  That plea was heard back in June 2016, and
I sentenced you the following day, on 17 June 2016.  That was for an aggravated burglary, and also a charge of recklessly cause injury.

2The offending took place in 2014.  It was serious.  Notwithstanding that, I had regard to the various matters that were raised on your behalf by Mr Martini, who appeared for you back then.  And though I did not accede to his submission that you could avoid a term of imprisonment, I took the view that it was appropriate to deal with you by way of a combination-type order, which was an unusual stance to take in relation to offending as serious as this.

3It gave you the security of a known release date, given that I was imposing a four-month term, with your release onto a community corrections order as opposed to the uncertainties posed by a head sentence measured in years with a non-parole period.  So I had regard to the various matters in mitigation, and proceeded with you in that way, a four-month term plus a two-year community corrections order.  And that was on 17 June 2016.

4I explained the order in full.  I could not have been more explicit about some of the dangers that lay ahead for you, or more explicit about the potential, if not likely, ramifications of a breach of this order.  That you did not need to see me again, and should not want to, but if you did, you would be sitting in the dock looking down the barrel of a term of imprisonment with a significant non-parole period fixed.

5What I took into account then in giving those utterances was your unsatisfactory performance in the past on at least one community corrections order, from memory.  And I told you that Corrections would not muck around with one such as you, that they have had you breaching an order in the past, and that you should not expose yourself to the potential ramifications of breaching this order.

6I spelt out, really, as directly as I could, the way in which orders are breached and the fact that people seem to consent to them at court, and then leave court and perhaps they become a distant memory.  Of note, given the nature of this breach, of note, I gave you specific instructions about not forgetting about the importance of complying with this order, and giving this order the priority it should be given, priority above paid work and other commitments.  Only in that way would you avoid being brought back by way of breach.

7So as I say, and I do not think Mr Martini says otherwise, I could not have been more explicit.  I could not have been more explicit in spelling out why I was doing what I was doing back then, and the risks posed to you if you were foolish enough to breach this order; that is, the risk of the order being cancelled if it was still in existence, and more significantly, a re-sentencing exercise for this serious offending.

8Nonetheless, here we are in May 2019, you having breached this order. 
There has been a breach summons that has been filed, and you admit the circumstances of the breach and have pleaded guilty to that offence. 
The summons particularises a number of occasions where you have failed to comply, either in terms of unpaid work, or supervision, or on one instance, the failure to attend for treatment and rehabilitation.

9The breach report has been marked.  That is a report dated 27 February of this year.  Its author is in court.  Indeed, the author, Nikita Rossley, gave evidence before me on the breach.  There were certain matters that Mr Martini wanted to ask her, but the contravention report is before me.  I am not going to go through it chapter and verse here.

10It is plain that you have made some efforts at compliance, some significant efforts, actually.  But it is equally plain, though, that you have not put the effort that you should have into this order.  And your attitude was obviously not up to par, and the fact is that the unpaid hours were quite modest in this case, actually, you have done 55 hours and five minutes of 150 hours over the two-year period of the order.

11It is pathetic, actually.  Quite pathetic.  No doubt, with excuse after excuse after excuse, some of them the subject, obviously, of medical certificates.  Some not, obviously, and that is why they are alleged as unacceptable absences.  But it’s hopelessness can be gauged by the fact that the order spanned two years, and in the meantime, you seem to have gone on and completed your apprenticeship and have been working.

12I mean, you clearly, and I think the references, a couple of them that are placed before me, recognise the fact that it is obvious here you have given greater priority to other tasks, to paid work, than to the unpaid work.  It really has been, as the prosecutor says, a matter ultimately of your choice.  What a stupid choice.  What a foolish choice to have made when you had been warned as explicitly as you had been about the particular dangers of that sort of conduct of placing yourself back before the court when you need not.  But you have.

13The report is not all negative, of course, because there have been some efforts.  That is what makes it all the more stupid that you have put yourself in this position.  You cannot blame Corrections, you cannot blame anyone other than yourself, actually, to be sitting here today, exposing yourself to the risk that you have exposed yourself to.  All the uncertainties thrown up by coming back in breach of this order when you need not have.

14I mean, obviously, it seems whatever might be said of Corrections, they have, as I look at it, probably bent over backwards here to try and actually usher you and marshal you to the end of the line here.  But the end of the line required you to actually do the work.

15So it is, then, that they did not breach you after the first one or two or three or four non-compliances.  And no doubt, that was produced by seeing some effort, some engagement.  No doubt, they could have taken the steps far earlier if they had been of a mind to.  But they were trying to see this order to its conclusion, obviously, and give you that opportunity.

16But it got to a point, really, where you backed them into the corner of having no further opportunities to complete the order, because the order reached that point where it was expiring and you had done the grand sum of - what was it, 55 hours and five minutes.  Fantastic.  That is over two years.  As I say, pathetic.

17More so when they have taken steps to provide appropriate work consistent with the certificates that you have provided, so in terms of light duties and the like.  They have accommodated those.  What you have not done is made the effort that you should have, and that is the only reason why you are sitting there.

18It is not them.  It is not your work.  It is you.  You have put yourself back in that dock.  As I say, an extraordinary decision for an otherwise obviously intelligent and resourceful man, and one who is actually prepared to buckle down in other aspects of your life.  Just not here.  Not in relation to this aspect, and it was the one aspect that you really needed to.

19The report has to be read in light of the evidence that was given by the author and the questions that were posed.  And the author was not suggesting that the order had been a total disaster.  It had not been.  As I mentioned when I put you on the order, I have had all manner of breaches come before me, including people who have not even turned up for induction.

20Well, you were not in that sort of category, obviously.  And you were doing enough to keep the order going.  Not doing all that you should have, not giving it the priority that you should have.  We know that, and that is conceded. 
But this is of significance, because I have to take into account the extent of your compliance.

21And as I say, it was not hopeless by any stretch of the imagination.  I think your attitude to the work was pretty much derisory, really, but you took some efforts under the order and no doubt there were some issues and hiccups in terms of the consistent management of the order.  There were a number of different case managers over a reasonably short space of time.

22But what is plain is this:  I have got one of those managers, I got the last of them who took over the role in July last year.  And your efforts since have been, as I say, reasonably pathetic, and your attitude to Corrections not of any great help to you here today.  As you leave the office on one occasion, being told the matter was coming back to court, your attitude was to say, "I don't care."  And then to spell out that you would be overseas and would not be able to attend court during the relevant timeframe anyway.  I mean, as I say, it is incredible.

23So we have got these multiple absences under the order, and even when, at the very end, they are giving you a last opportunity; that is, to suspend, as it would need to be, or to extend, or to bring it back for variation so that you could actually comply and finish the hours.  You chose otherwise, and here we are now today. 

24So I take into account the breach report.  But read in light of the email that was marked as an exhibit in these proceedings, which had the enquiries being put by Mr Martini and in bold type the answers provided by Corrections. It was a useful way of actually avoiding a lengthy process before me.  Not challenging the breach, but at least dealing with the character of it.  So that is of some assistance, as indeed is the evidence placed before me from the author.

25But there have been major issues dealing with the lack of engagement here.  That much is plain, and it has borne fruit in terms of the failures that are relied upon.  I think it went a bit further than that, actually, but it is not necessary for me to go further.  I have the actual formal breaches that are alleged, and they are well and truly enough.

26So you have been given ample opportunity to complete this order, ample opportunity to avoid this day.  And you have, for whatever reason, chosen the course that you have chosen, one that has brought you back sitting in the dock and looking down the barrel of a sizable term of imprisonment on a resentencing exercise.  Again, it is bewildering that you would put yourself in that position - and others, for that matter.  But you have.

27So much of what is placed before me today - I mean, it is not identical across the board, but there was a lot to like in terms of the personal material placed before me at the time of the plea.  Indeed, there are many similar types of references that were placed before me.  I had references from a sheet metal person, Mr Hubbard, and from Duncan McKinn from Holmesglen.  I had a reference from your mother.  I had a reference from Rowan Waters from D&E Constructions.

28There was a strong reference from your sister, Hailey Phillips, and from Mr Murray who has again written another persuasive and powerful reference.  But he did back then in a reference dated 8 June, and said if you are given the opportunity, you will use the chance that to show your potential in life and move on.  Well, you have not.  You have moved on in life, and those advances - many of them are very positive.  But what is not positive is the fact that you are back here in front of me.

29So I had also a letter from Daniel McMullan.  So there was a significant amount of material that led me to the view that I could deal with you in the way that
I did, and not send you to prison for a very sizable period of time, back then, as is often the position for a confrontation or aggravated burglary.

30Despite those explicit warnings, though, I made it plain that I could not tell you exactly what would happen if you came back before me in breach because my obligation as a judge would be to entertain the plea and to take into account the nature of the breach, was it a breach by offence, or breach by non-compliance, the nature of the non-compliance, what had occurred since.  That is why I said what I said back then.  But I wanted you to understand the seriousness of the order, and the seriousness of the potential ramifications if you breached it.

31But what I then have got to do is, as I said I would, pay regard to the matters that are now raised before me, and to consider the appropriate steps to take.  You have admitted the breach, obviously, and have pleaded guilty to that. 
And really, the thrust of the plea is, well, yes, you went into custody back then for the four months, you did as well as you could do in custody.  And with the exception of the breaching of the order - it is a funny "with exception", obviously - but with the exception of that, life has moved ahead on a positive plane.

32So that is why your counsel argues that, as strange as it might sound to have this utterance raised on a breach proceeding, that you have been a qualified success on the order - in the sense that there have been no issues with alcohol and drugs, it would seem, that you have progressed in the employment stakes and completed your apprenticeship, and you have now been offered a job and a decent one at that, that you have stability in your home life, you have formed a relationship. Your partner is at court.  There is a reference from her.

33You have that job, and critically, the breach, as foolish as it is, as indicative of you not perhaps giving it the priority that you should have, at least does not involve a breach by offence.  That you committed these serious offences back in 2014, and have not been back before the courts and have not been charged, have not troubled the scorer in that respect.

34And that is positive, because after all, Mr Martini says, the whole purpose of these orders - obviously, they are there to punish, but they are also to foster rehabilitation.  And to that extent, there has been that success.  You have stayed out of trouble, you have found employment, you have qualified in the apprenticeship.  You have not done all that you should have done on the order, obviously, and that is why we are here.  But that your prospects are pretty good, really.

35And to that extent, he relies upon the contract of employment as to evidence the fact that you have a job.  As I have said, Mr Murray has written another letter saying very many of the same things he said on the last occasion, it seems to me.  But it cannot be ignored.  He is aware of the fact that you are back in breach, and says what he says about you on a personal level.

36There is a letter from Narelle McDonald who is the mother of your partner.  There is a reference from your mother, one from Jamie Moore, one from Casey Adams who is your current partner, and she speaks of the gains that you have made.  In the same timeframe that you have brought this order back to court, you have undoubtedly made some significant gains.  She puts her finger on it, I think quite correctly:

"I do believe Adam did put his work priorities before his community service hours, which we've spoken about.  He's aware that it was the wrong thing to do."

37The trouble with that is, I told you not do it.  I warned you explicitly in that respect.  In any event, I mean, that is another matter that has arisen since - this relationship, and the stability there, and living in a house, and there is a reference also from your father, and a medical certificate.

38Now, undoubtedly, there was some medical issues that perhaps to some extent intruded on the order.  I do not believe they necessarily have intruded in the same way on your paid employment.  I suspect that is not the position at all.  But I am not here to speculate.  I am here to deal with the breach of this order, and as I say, the breach is admitted.

39So I have regard to the various matters that have been raised on the plea before me here today, and of course, I do not see any utility in going back and setting out the various factual conclusions in relation to the original offending.  I will come to that shortly.  But the various matters that I took into account then, I take into account again, obviously. 

40My obligation is to consider the matters raised before me.  It is not just a matter of me going back and slavishly looking at what I said I might do and then doing it.  If I did that, I would not be acting judicially.  I was acting judicially when I said what I said back in June 2016, and I am acting judicially here today by entertaining the matters raised on the plea and exercising my discretion in light of all the matters that  are now raised before me.

41It is not a matter of whether I am cross or unhappy or upset that you are back.  You are not the first to breach one of my orders.  You will not be the last. 
Very many of these orders are breached.  I am just a bit surprised to see you having breached this order, actually, in the circumstances in which I saw you back in June 2016.

42But I do take into account Mr Martini's various submissions and all the evidence placed before me on the breach, including, of course, the report, the email and the evidence from the witness.  I take into account the various submissions made by Mr Martini, and for that matter, the collection of references that have been placed before me.

43I do, as I must, take into account the extent of your compliance with the order.  It is true there was perhaps a level of ambivalence and perhaps a lack of full engagement.  I have no doubt about that.  But you did complete the anger management program.  You did attend for a number of supervision appointments.  You did do some of the work, at least.

44So my obligation is to take into account the extent to which you have complied.  As I say, it has not been a hopeless effort.  It has not been strong enough, obviously, or we would not be having this discussion.  But you made some efforts to comply, and they are things I have to take into account.  They are all part of the punishment.

45So my task is to consider, then, what to do with you.  You have admitted breaching the order, and so the first thing I have got to do is impose a penalty for that offence itself; that is, the offence of contravening an order.  That itself is punishable by a term of three months' imprisonment.  And obviously, you admitted that conduct.  And so I will have to impose a penalty in relation to that.

46But as I said to you back in June, the real sting, though, is not that penalty. 
The sting to this is, if you come back in breach, the steps that the court ordinarily would take in terms of cancelling the order, if it is still in force, or whether it is in force or not, then actually resentencing for the original offending of aggravated burglary and recklessly causing injury.

47And as I said at the time, in the event of that taking place, you should work at least on the hypothesis, or the theory, that there would be a likelihood that you would receive a term of imprisonment measured in years with a non-parole period of real significance as well; that is, a substantial non-parole period.  That is at paragraph 71.

48You understood that.  You said you did.  I asked if you did, you said you did. 
I asked your counsel whether you understood, and whether I was getting informed consent.  No problems about that.  I was.  And you then consented.

49All right.  Well, as I said, the breach is proven.  The argument is from Mr Martini that really, you should be given, I think, another opportunity to finalise the order, either to have it extended or to cancel it but then resentence to another order.

50The prosecutor argues that yes, you had been given ample opportunities to comply with this order that you have not, that you made this choice, for whatever reason, not to do the work, that there had been a degree of compliance with the order, obviously, but it was a matter of your choice, and that there should be perhaps cancellation at this stage of the order. Well, there will be no need for that, but a resentencing under s.83AS(1C) of the Sentencing Act.

51You have made my job far from simple, I can tell you.  It was not simple when
I imposed the sentence back in June 2016, and that was because of the fact that you, a person with, I thought, pretty decent prospects of rehabilitation. Indeed, had committed what was obviously a very serious offence.  And so there were matters pushing and pulling in every direction in the sentencing exercise, as there often are.

52Ultimately, I fixed upon this disposition, but in a sense that I would be actually pretty surprised to see you in breach of this order.  It was a pretty modest order, actually, in duration and in its special conditions.  Only 150 hours, for heaven's sake.

53I have to have regard, then, to the matters that have been raised, and consider what is the appropriate disposition in the circumstances.  I suspect probably Corrections are sick and tired of you, really.  They have done what they can do and with very little reward from you.

54And so the attitude of Corrections, at least in the written report, is that the order should be cancelled, or it is now expired, and that you should be resentenced.  That if the court is considering a further community corrections order, I would need to get a fresh assessment as to your suitability.  And I am sure that is so in terms of a fresh order, unless the fresh order is one where there was simply an amount of unpaid hours.

55The fact is, you have got 94 hours and 55 minutes that clearly should have been done, and well and truly done, and well and truly done before October 2018.  But it has not been done. 

56My options are very limited under the Sentencing Act.  Having found you guilty of the breach of the order, I have only really four options, and I must deal with you in one of these ways:  either by varying the order or by confirming the order originally made, but I would not dream of doing that, because you have not complied with it, or by resentencing you, that is under s.83AS(1)(c), or by cancelling the order and making no further order.  Again, that is unthinkable in the context of this offending and this order.

57So it whittles it down to two options, it seems to me:  I either vary the order, and by varying it, give you the opportunity of actually doing what you should have done - which no doubt, if you set your mind to it, you could do in a matter of months, actually, and do the work - or whether I should resentence.

58And if resentencing, it opens up the whole business again.  What do I do on a resentencing exercise here?  Give you another chance on a community corrections order?  Or follow through with what I said was the likely outcome, and send you to prison for some years? 

59Well, ultimately, as I have considered the matter downstairs in my chambers, I have reached the view, I can scarcely believe I am saying it, but I am going to give you another opportunity on the order.  Maybe let us consider how I do this, I will hear from counsel as to this proposal, and you can see what you make of it. 

60It is my view that it would be open to vary the order under s.83AS(1)(a), and
I can vary by extending the order, it seems to me.  What I want to do is, I want to extend it for sufficient time for him to actually do what he should have done; that is, the work.  I do not want to tailor it to a tight timeframe, as tempting as it is, because that might throw up hiccups.

61So I am intending to vary the order and to have it last for - the way these things have been done, at least in the past, is I get back into the system, and the order lasts for 42 months and commences upon completion of the imprisonment.  So that does not change the commencement date. 
The 42 months would run from that date in October 2016.  I am happy to see where that gets us to.  I think that would get him until April of next year, Mr Martini.  Does approaching it in that way pose any difficulties?  It means the order remains on foot.

62MR MARTINI:  It should.  Yes, Your Honour. 

63HIS HONOUR:  And it remains on foot with supervision, with all the other terms that I spelled out, but also with the need to do the 150 hours' work.  But he has already done the 50 - he gets the credit, obviously, for the 55.  So it would be cast in exactly the same terms, except run for 42 months.

64MR MARTINI:  Yes.

65HIS HONOUR:  Let me just see if - so do you have any issues in terms of the way that order is being expressed or not?  Either of you, actually? 

66COUNSEL:  No. 

67HIS HONOUR:  It seems to me, then, that does not require a reassessment.

68MR MARTINI:  No, Your Honour. 

69HIS HONOUR:  And that means the order remains on foot until it lapses.

70MR O'TOOLE:  Yes. 

71HIS HONOUR:  So that is 42 months after his release date from custody, which was October ‑ ‑ ‑ 

72MR O'TOOLE:  2016.

73HIS HONOUR:  ‑ ‑ ‑ 2016.  So it is back in his court, then, as it has been.  But obviously, he is maintained on that order in the meantime.  And as I say, I have taken into account the extent of his compliance in reaching that decision as well. 

74On the charge itself of breaching the order, so that is the charge to which he has pleaded guilty, the contravention of the community corrections order, I am going to convict him.  I am going to fine him the sum of $2,000 in relation to that breach.

75MR O'TOOLE:  Yes, Your Honour. 

76HIS HONOUR:  But otherwise, as I say, I will take action under s.83AS(1)(a) and vary the order in the manner in which I have described.  Now, I have got to go through the whole business, I think, of getting consent in relation to that.  I am not going to spend the time I spent on the last occasion going through.  I have done that.  All I am doing is extending the period.

77So if in the period he commits any breaches of the mandatory terms, we will meet again.  If he breaches any of the conditions, we will meet again.  And if we meet again, I am not going through the whole business of spelling out what I spelled out on the last occasion.  It did not actually achieve its stated goal. 
But you would explain to your client the lack of likelihood of getting a third order such as this, Mr Martini.

78MR MARTINI:  I will be forcefully telling him, Your Honour.

79HIS HONOUR:  If he needs anyone else to tell him, he is a very slow learner.  He has placed himself at the very brink of a very sizable term of imprisonment here today.

80MR MARTINI:  Yes, Your Honour. 

81HIS HONOUR:  What has he got?  Ninety-four hours today?

82MR MARTINI:  Yes, he served 55  - he undertook 55 hours of the 150.

83HIS HONOUR:  You have got 94 hours.  But it is not just 94 hours, of course.  He is on this order until it expires, all right?

84MR MARTINI:  Yes, indeed.

85HIS HONOUR:  And Corrections are here, and they are hearing me say this: 
if he mucks around on this order, just breach him.  Do not muck around.  Bring him straight back to court.  He has heard me say it.  You have heard me say that to the Corrections officers.

86OFFENDER:  Yes, Your Honour. 

87HIS HONOUR:  Muck around with this order, we will meet again, and you will head out a different door.  Do you understand?

88OFFENDER:  Yes, Your Honour.  Won't happen again.

89HIS HONOUR:  Up to you.  As I have said previously, of course, I would be obliged to listen on that occasion to anything that was said on your behalf, and I would.  But I am giving you what I said I would not give you; a second chance.  Muck around with this and bring your toothbrush.  All right?

90Go down to see if your client is consenting to the order, please.

91MR MARTINI:  Yes, of course, Your Honour.

92HIS HONOUR:  While I have got you there, is the address still Rowson Street in Boronia, or not?  Is it a different address now?

93MR MARTINI:  Different address, Your Honour.

94HIS HONOUR:  Maybe just grab that.

95MR MARTINI:  Yes, if you wouldn't mind.  I'll just clarify my instructions regarding that.  Thank you, Your Honour.  It's [redacted]. 

96HIS HONOUR:  I saw that on one of the references.  Yes.  I have taken into account, obviously, the fact that he has pleaded guilty to the charges of breaching the order.  And I have taken into account that guilty plea in reaching the view I have taken as to that penalty.  But for that if, he had pleaded not guilty and been found guilty of the breach, I would sent him to prison on that particular offence itself, and I would have given him a 21-day prison term on that matter alone.

97MR MARTINI:  Yes, Your Honour. 

98HIS HONOUR:  So that is to be entered into the records of the court.  Let me just look at the form of this order, then.  Just have a look it - I will have it come down to the bench, if I could, and just have a look at that and make sure it -
if that could just go down the Bar table, just have a look at it.

99MR MARTINI:  Yes, Your Honour. 

100HIS HONOUR:  You will see, really, it is in exactly the same form.  The only alterations, of course, are the order will last for 42 months.

101MR MARTINI:  Yes, Your Honour. 

102HIS HONOUR:  And that is to bring us up to the point where he can actually do that work into the future.  And then, of course, that same amendment is made in terms of the unpaid work, over a period of 42 months, supervision over a period of 42 months.

103MR MARTINI:  And that starts from 17 June?

104HIS HONOUR:  No, it is from the release.

105MR MARTINI:  Yes, all right. 

106HIS HONOUR:  So the only difference is - look, I could go in and cancel the whole thing and resentence.  I do not see the utility in doing that.  If I am reaching this view that I can let him go on an order, I might as well do it by way of variation.  And that is what it is.  But they are the only alterations; it is just the term.

107MR MARTINI:  Understood.  Again, I am being a bit obtuse, but it is from when you convicted him.  Because it doesn't make any reference to the gaol term.

108HIS HONOUR:  That is upon completion of the imprisonment.

109MR MARTINI:  Yes. 

110HIS HONOUR:  See, the order will last for 42 months.

111MR MARTINI:  Yes, there it is, Your Honour.  Yes, sorry, my apologies.

112HIS HONOUR:  And that was the way it originally was.

113MR MARTINI:  Of course.

114HIS HONOUR:  Except it was two years. 

115MR MARTINI:  Yes, no, I didn't see it, Your Honour.  I was wearing the wrong glasses.  All right. 

116HIS HONOUR:  So that is what we are dealing with.

117MR MARTINI:  Yes, indeed.  Understood.

118HIS HONOUR:  So go down and just make sure your client understands what we are dealing with.  I am not going to spend all that time going through and explaining all the mandatory terms, all the conditions, even the ramifications of breaching it.  He knows what they are.  He knew then, he knows now.  Go down and see if he is consenting to this order then, please

119MR MARTINI:  I will indeed, Your Honour.  May I be excused from the Bar table?

120HIS HONOUR:  Yes, of course.

121MR MARTINI:  Thank you. 

122HIS HONOUR:  I will have my associate come down just in a moment, once you have explained it.

123MR MARTINI:  Yes, indeed. 

124HIS HONOUR:  All right.  So Mr Phillips, do you consent to entry into this community corrections order?

125OFFENDER:  Yes, Your Honour. 

126HIS HONOUR:  And you have signed that order?  Is that so?

127OFFENDER:  Yes, Your Honour. 

128HIS HONOUR:  And it is under the words, "I understand the effect and conditions of this order and consent to it being made."  That is the position?

129OFFENDER:  Yes, Your Honour. 

130HIS HONOUR:  All right.  So what you are receiving today is a second order with my signature on it.  Do not have any expectations that you will ever get a third.  Do you understand?

131OFFENDER:  Yes, Your Honour. 

132HIS HONOUR:  If you breach this order, you will be back in the dock and your expectation should be of a sizable term of imprisonment actually being imposed for the original offending.  Do not put yourself in that position.  It is ridiculous for you to do that.  You are - what are you, 30 years of age at the moment?

133OFFENDER:  Yes, Your Honour. 

134HIS HONOUR:  You are thirty years of age and have got a lot going for you in a way that so many people who are sitting in the dock do not have.  You have got a partner, you have got a job, got a house, and you have got an obviously useful trade, and you are good at it, by the sounds of it.  So it is a mystery to me that you put yourself in this position, but you did.  I am giving you this second chance.  Please, do not have any expectation of receiving a third.  All right?

135OFFENDER:  Yes. 

136HIS HONOUR:  And you have heard me say to Corrections, and I repeat - they have had you, and they have had, in their view, a level of ambivalence and resistance on this order.  But you have heard me say to them, and I say it again:  if there is any mucking around on this order, just breach him.  Do not hang around.  Just bring him back in breach.  All right?  So they are not going to - what they did on the last occasion, they had a handful of breaches which they have not rushed back to court.  Do not expect that again.  All right?

137OFFENDER:  Yes, Your Honour. 

138HIS HONOUR:  So if you want to play games on this order, of course, you are entirely welcome.  And then I will be entirely welcome to send you to prison for a number of years.  Your choice.

139OFFENDER:  Yes, Your Honour. 

140HIS HONOUR:  All right.  I have signed that order, then, so you will get a copy of that and then you will be free to leave the dock.  Are there any other orders
I need to actually make?  I have made a s.6AAA declaration in terms of the offence for which I have imposed the fine of $2,000, and I think I have said what I need to say in terms of the actual order itself.  Any other matters I need to deal with?

141MR O'TOOLE:  No, Your Honour. 

142HIS HONOUR:  Yes, all right.  Thank you very much for your attendance, each of you, and for the attendance of the Corrections crowd as well.  I will stand down.  I will leave the bench until 9.45 tomorrow.

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