Director of Public Prosecutions v Pregara
[2019] VCC 905
•21 January 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-15-1818
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Mark Pregara |
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JUDGE: | Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2016 | |
DATE OF SENTENCE: | 21 January 2019 | |
CASE MAY BE CITED AS: | DPP v Pregara | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 905 | |
REASONS FOR SENTENCE
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Subject: Breach of Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr W Drent | Mr J Cain Solicitor for Public Prosecutions |
For the Accused | Mr L Dean | Slades & Parsons Solicitors |
HER HONOUR:
1 On 4 August 2015 the Melbourne County Court convicted you of 2 charges of traffick methylamphetamine and imposed a twelve month Community Correction Order commencing on 21 September 2015 and expiring on 20 September 2016 (the Community Correction Order).
2 It is now alleged pursuant to s83AD(1) of the Sentencing Act 1991 (Sentencing Act) that you contravened the Community Correction Order without reasonable excuse. Your counsel accepted that you incurred 13 “unacceptable absences” from supervision appointments.
3 Your counsel also accepted that you committed further offences on 8 April, 10 July and 24 August 2016 during the operational period of the Order. On 5 October 2016 you were convicted of the following offences at the Dandenong Magistrates Court:
OffenceCommission date
Recklessly Deal With Proceeds of Crime 10.07.2016
Fail to Render Assistance After Accident 10.07.2016
Fail Give Name/Address-Property Damaged 10.07.2016
Fail Report to Police Owner Not Present 10.07.2016
Enter Intersection-Red Traffic Arrow 10.07.2016
Drive Whilst Authorisation Suspended x 2 10.07.2016
08.04.2016
Possess Methylampthetamine 24.08.2016
Poss Proh Weapon W/O Exemption/Approval 24.08.2016
Possess Cannabis 24.08.2016
Possess GHB 24.08.2016
4 Section 83AD of the Sentencing Act 1991 provides:
(1)An offender who is subject to a community correction order must not contravene that order, unless the offender has a reasonable excuse.
Penalty:3 months imprisonment.
5 I find that you have contravened the Community Correction Order imposed by this Court on 4 August 2015. You are convicted of breach of the Community Correction Order and fined $100.
6 Section 83AS of the Sentencing Act 1991 sets out the powers of the court on a finding of guilt for contravention of a Community Correction Order in the following terms:
(1) If a court finds a person guilty of an offence under section 83AD (in addition to sentencing the offender for the offence) the court must –
(a)vary the order in any manner set out in section 48M(2)(d),(e), (f), (g) or (h);
(b)confirm the order originally made; or
(c)cancel the order (if it is still in force) and, whether or not it is still in force, subject to subsection (2), deal with the offender for the offence with respect to which the order was made in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence; or
(d)cancel the order and make no further order with respect to the offence with respect to which the order was originally made.
7 In determining how to deal with an offender the Court must take into account the extent to which the offender has complied with the order.[1]
[1]Sentencing Act s83AS(2).
8 You completed the drug and alcohol component of the Community Correction Order satisfactorily. You have not completed programs directed at reducing reoffending.
9 In a report dated 9 December 2017 the community correction officers at the Dandenong Community Correctional Services stated that while you successfully completed drug counselling, your overall compliance with the Community Correction Order was unsatisfactory incurring a total of thirteen unacceptable absences. You ceased contact with the service in March 2016. Since ceasing contact with the service you committed further offences and appeared to return “to a lifestyle and attitude that keeps [you] in a pattern of offending.”[2]
[2] Report dated 9 December 2016 by Elizabeth Cowley and Sean Heiford, Community Correction Officers, Dandenong Community Correctional Services.
10 You committed further offences on 22 September 2016. The offending occurred outside the operation period of the Community Correction Order. The offending included being a prohibited person possess firearm, possess unregistered general category handgun, possess cartridge ammunition without licence/permit, four charges of possess drug of dependence (Not named), theft, possess prohibited weapon without exemption/approval, commit indictable offence whilst on bail.
11 On 5 October 2016 you were convicted of consolidated charges at the Dandenong Magistrates Court and sentenced to an aggregate term of 3 months’ imprisonment to be followed by a 12 month Community Correction Order.
12 On 26 September 2017 you were convicted of contravening the community correction order imposed by the Dandenong Magistrates Court and a further Community Correction order was imposed for a period of 24 months. A report dated 15 December 2017 by Wendy Tran, acting supervisor Dandenong Community Correctional Services, states:
Mr Pregara’s County Court order has since expired on 20 September 2016 by way of conditions and further offending. For the further offences, he received a Magistrate’ CCO.
Mr Pregara will be in contravention of his Magistrate’ order for the second time on the 25.01.2018 if the further offences are proven.
Noted he has made some attempts to engage on the order, however noted it has been minimal progress thus far.
Taking this in account, it is respectfully recommended that his order is cancelled and he be re-sentenced on the original offences. If he was to be considered for another order, it is respectfully recommended that he is assessed by the Office of Corrections to determine his motivation towards the order conditions.
13 On 21 May 2019 the Dandenong Magistrates Court cancelled the Community Correction Order made 26 September 2017 and sentenced you to a term of imprisonment of 45 days (31 days was reckoned as a period of imprisonment already served.
History of contravention hearings
9 December 2017 – contravention hearing first listing
You failed to appear. Adjourned to 24 March 2017
24 March 2017 – contravention hearing second listing
You failed to appear. Warrant issued
21 December 2017 – contravention hearing third listing
You failed to appear. Matter adjourned to 22 January 2018
22 January 2018 – contravention hearing fourth listing
You applied to adjourn the proceeding to enable you to obtain legal representation
6 April 2018- contravention hearing fifth listing
You failed to appear. Warrant issued.
14 You were born in July 1978 and are 40 years old. You were supported in Court by your mother Mary Pregara and partner Jess Jackson. You have three teenage daughters from a previous relationship. You are isolated from your daughters and ex-partner because of your criminal history.
15 After leaving school in year 9, you maintained a positive work history in panel beating, labouring and underground drilling.
16 You have a criminal history dating back to 2009.
17 Most recently you have lived with your mother and intend to continue to live with her upon release from prison.
18 The prosecution was instructed to submit that the Community Correction Order should be cancelled, that you be resentenced on the original charges and that an immediate custodial sentence is appropriate.
19 I have taken into account the submissions made by your counsel and in particular, your pleas of guilty and the principles of totality. I propose to cancel the Community Correction Order and resentence you on the original charges (2 charges of traffick methylamphetamine).I order that you are convicted of each charge of traffick methylamphetamine and sentenced to an aggregate term of imprisonment of 3 months.
20 As prescribed by s18(4) of the sentencing act I declare that the period of time you have already spent in custody is 74 days. I direct that such be noted in the records of the court.
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