Director of Public Prosecutions v Reslan
[2020] VCC 974
•2 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-19-00960
Indictment No. J12556110
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI RESLAN |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 25 June 2020 | |
DATE OF SENTENCE: | 2 July 2020 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Reslan | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 974 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence -
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Malik | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr J. McGarvie | Stary Norton Halphen |
HER HONOUR:
1 Ali Reslan, you have pleaded guilty on Indictment No.J12556110 to two charges of theft, the maximum penalty 10 years’ imprisonment on each; one charge of handling stolen goods, the maximum penalty 15 years’ imprisonment; and one charge of possession of a precursor chemical, the maximum penalty five years' imprisonment and/or 600 penalty units.
2 You have also agreed to me hearing and have pleaded guilty to three summary charges; Summary Charge 11, commit an indictable offence whilst on bail, maximum penalty three months imprisonment and/or 30 penalty units; contravening a conduct condition of bail, the maximum penalty three months imprisonment and/or 30 penalty units; and Summary Charge 19, a ‘rolled-up’ charge as amended, dealing with property suspected of being proceeds of crime, maximum penalty being two years’ imprisonment and/or 240 penalty units).
3 As your offending also involved theft of a motor vehicle, I am required to cancel any licences held by you and disqualify you from obtaining a licence (See s.89 (4) Sentencing Act 1991).
4
It is not necessary for me to recount in great detail the facts of this matter, as it was opened in some detail by the learned prosecutor, consistent with
Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say, the facts in this case are most serious and disturbing. Your behaviour was obviously quite unacceptable and you have a concerning and relevant criminal offending history.
5 I turn to a summary of this offending. At the time of it, you were 32 years of age and lived between your partner’s Reservoir home and your father’s Thomastown home.
6 I turn to Charge 1, theft of a Mercedes motor vehicle. In the early hours of Friday, 21 September 2018, a 2008 Mercedes Benz 320 sedan was stolen from the driveway of the owner’s home, after the keys from the car were stolen from his house.
7
At approximately 8.20 am on that day, that is, 21 September - just check that date. Should it be 18 or 19, Charge 1? Got a typo I think. It is one of the two. Can you just give me that, the date? So I will continue, we might have to amend that. At approximately 8.20 am on that day, being
21 September 2019, I have got here, so one of them is wrong. What is it - what is the date?
8 MR MALIK: 2018, Your Honour.
9 HER HONOUR: So 18, so that should be 21 - - -
10 MR MALIK: Yes.
11 HER HONOUR: All right. I will start that again. At approximately 8.20 am on that day, 21 September 2018, you drove that car into a Caltex service station in Reservoir. The attendant at the station identified the car as stolen and reported it to police, who attended and obtained CCTV footage of you driving the car. You subsequently drove the car on a number of occasions.
12 On Friday, 28 September, police found the stolen Mercedes at an address in Broughton Avenue, Preston, about 100 metres from your partner’s home, displaying stolen number plates.
13 Police attended your partner’s home and arrested you. You had the keys to the Mercedes on you at the time.
14 I turn to Charge 2. Police searched your partner’s premises and found a number of stolen goods in the garage. The items located are set out in paragraphs 8(a) to (g) of Exhibit A and include number plates for the stolen Mercedes, number plates of the Commodore, personal cards in the name of ‘Luke Nevill’ stolen from a car on 26 September 2018, a socket set, a NavMan GPS, paperwork in the name of ‘Todd Jopp’ and a microphone.
15 Also in that search, between tyres in a stack of five tyres in front of the garage door, police found a plastic bag containing two plastic bags of white powder, with a total weight of the powder 2.647 kilograms. The powder was analysed and found to comprise potassium iodide, a salt of iodine, a prescribed precursor if possessed in a quantity above 25 grams.
16
I turn to Charge 4. At the rear of your partner’s home, police found a 1982 Holden Commodore sedan which had been stolen between 27 and
28 September 2018. You had driven that car shortly before it was found.
17 I turn to Summary Charges 11 and 12. At the time of your offending on the indictable charges, you were on bail, having been granted bail on 16 August 2018. Your bail included a condition you report to Epping police station on Monday, Wednesdays and Fridays, however you failed to comply with that condition, as you never attended Epping police station.
18 I turn to Summary Charge 19. Police also found Ryobi power tools, a Head tennis racket and a TomTom GPS possessed by you, suspected of being stolen.
19 At the house, police also located and seized clothing worn by you, as captured by CCTV footage on 21 September 2018. There were also photographs of the stolen Mercedes on a phone that appeared to belong to you.
20 When interviewed by police, you made some admissions, otherwise exercised your right to make 'no comment' responses in answer to police questions. As I said, ‘your right’.
21 You acknowledged you were on the CCTV footage. You said the stolen Mercedes was the biggest mistake you had ever made. You claimed the car had been offered to you as an insurance job and that you paid $400 for the car. You said you hardly drove it and did not even like it. Regarding the iodine, you admitted you brought it to your partner’s house, saying you had found it at a carwash. You said you did not know what it was and were too scared to try it. You said you had forgotten it was there and were 'off your head at the time'. Regarding breaching bail, you said you had been doing well, but fell into a little hole, which made no sense now.
22 You were charged and released on bail to 2 October 2018.
23
The prosecution attached a chronology relevant to your offending. You were initially granted bail on other offences, for which you failed to report on
16 August 2018. This offending before me occurred between 21 and
28 September 2018. A contested committal occurred involving five police witnesses who were cross-examined. I understood the issue at committal being the legality of the search. You were committed to trial and pleaded not guilty to the offences at that time. On 2 July 2019, a revised plea offer was submitted by those representing you. I accept that it was only after following the contested committal that you were able to plead guilty to the charges before me. More serious charges were withdrawn by the prosecution.
I accept you indicated your intent to plead guilty to these charges on 2 July 2019.
24 On 23 August 2019, you were arraigned, your bail then revoked on your application on 20 November 2019 and the matter proceeding to this plea hearing on 25 June 2020.
25
As at the date of your plea hearing, you had been in custody and served a total of 267 days as pre-sentence detention for these offences, up to and including 24 June 2020, i.e. approximately nine months. In addition to those 267 days, you had also completed a sentence of 69 days imposed on
27 August 2019, such being relevant consistent with totality principles.
26 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses spared the need to give evidence upon your trial.
27 Whilst I accept your pleas of guilty are indicative of remorse, I am concerned about the extent of your remorse, given your offending subsequent to that in September 2018.
28 The victims of your offending have been advised of their rights to make a victim impact statement. None have been received.
29 You have admitted a number of prior and subsequent criminal offences. You appeared at the Heidelberg Magistrates’ Court on 24 April 2007, your most recent prior at Broadmeadows Magistrates’ Court on 28 March 2013. Your offending including damaging property, failing to answer bail, driving offences, dishonesty offences, including obtaining property by deception, shop theft and dealing with property suspected of being proceeds of crime.
30 In the past, you have been subject to a number of dispositions, including a Community Corrections Order, subsequently breached, a suspended sentence, subsequently breached. You have also been sentenced to a term of imprisonment at Broadmeadows Magistrates’ Court on 28 March 2013.
31
I was advised by Mr McGarvie of your subsequent offending and also pending court appearances, specifically on 3 August 2020 at Heidelberg Magistrates Court for theft of a motor vehicle and driving whilst suspended. I was told you were going to be pleading guilty to those offences. In addition, I was referred to a previous breach of a Community Corrections Order dealt with on 7 March 2019, the offending for which the Community Corrections Order was imposed,
I note, pre-dating your offences before me in September 2018.
32 I discussed with Mr McGarvie that breach, as it has some relevance to his ultimate submission of ‘time served’ with a further Community Corrections Order. You are, of course, not being sentenced again for the breach and its relevance is only to my consideration of a further Community Corrections Order, as urged by Mr McGarvie.
33 I have read the Breach report dated 4 October 2019 (Exhibit 5). That report is far from ‘glowing’ regarding your compliance, including a significant number of unacceptable absences. In particular, I note the concerns raised on p.5 of Exhibit 5. I repeat, your compliance or otherwise of the Order is not determinative of the sentence I impose today.
34
Your counsel, Mr McGarvie, prepared a written outline of submissions and
I discussed them with him during the course of your plea hearing (Exhibit 1), which included a chronology.
35 On 16 May 2019, you were remanded on new unrelated charges of theft of a motor vehicle, the date of that offending subsequent to your offending before me. Then, on 19 June 2019, you were remanded in relation to new charges, handling stolen goods, the date of that offending also subsequent to your offending before me in September 2018. On 27 August 2019, regarding your offending in May 2019 and June 2019, you pleaded guilty to those offences and were sentenced on 27 August 2019 to the earlier referred to period of 69 days. Then on 3 October, you were remanded in relation to new and unrelated charges of theft of a motor vehicle, that offending alleged to have occurred subsequent to your offending before me in September 2018.
36 Those subsequent matters are relevant to my assessment of your rehabilitation prospects. Your rehabilitation prosects concern me greatly, in particular as the nature of that subsequent offending bears similarities to that currently before me.
37 Your counsel, Mr McGarvie, set out a number of matters relevant to your background and history. At sentence, you are 33 years of age and have three brothers. I note a brother and your father were present during your plea hearing.
38 As a child, you attended King Khalid Islamic College until Grade 4, then attended Newland primary school. Thereafter, you attended Moreland City College intermittently, but not completing Year 9.
39 When you were 11 years of age and a passenger in your mother’s car, you were involved in a major car collision, which had, you said, a profound effect upon you. You suffered head injury and prolonged post-concussion symptoms, including headaches, nausea and a marked inability to concentrate.
40 Your counsel, Mr McGarvie, submitted based on the report of Dr Evans, to which I shall shortly refer, more significant than your physical injuries, were the long-term social, psychological and interpersonal issues which, he urged, conditioned your childhood and became immediately apparent following that collision. You became increasingly angry and irritable, nervous, anxious, developed oppositional behaviour, slowed speech, changed gait, problems with vision and recurrent headaches and memory loss, with nightmares.
41 Those difficulties created tension at school and also at home. It would appear you did not attend school for long periods of time in Years 7 and 8 as a result and your peer group alienated you.
42 In addition, you told Dr Evans that family life was difficult between your mother and father and that they had separated prior to the collision, re-uniting following it.
43 You recalled a decline in your mother’s general health and wellbeing following the collision. She passed away when you were 15.
44 At the time of her death, you had been working at KFC, but felt helpless, mourning her death. You did not work for approximately two years after her death, that time coinciding with the commencement of your criminal history in the Children’s Court, including an offence of armed robbery, dealt with in 2004.
45 When you were 17 years of age, you became engaged to your now ex-wife, Ronya, and were married for six years, with a child of that relationship, now 12, and living with her.
46 At that time of your life, you ran your own courier business and your uncle, who had a similar business, assisted you. After three years, you purchased a dump truck and worked in construction as a tipper on a contract basis.
47 You separated from Ronya when you were 24, then lived with your father and continued truck-driving work in construction on a small scale. You then purchased a larger truck and were employed by your brother, until you lost your driver’s licence in 2018.
48 You met your current partner, Chloe Harrison, in 2016 and there are three children of that relationship, aged two, one and third born the day before your plea hearing, I was told.
49 When assessing your rehabilitation prospects, it concerns me that your offending before me occurred, either whilst Ms Harrison was pregnant with your first child, or after the child’s birth and that you continued to offend subsequent to your offending in September 2018. Your wife and young family were clearly not ‘top of your mind’ when you offended.
50 Your counsel was not relying upon family hardship amounting to exceptional circumstances in your case and that was an appropriate concession. I do, however, accept you will be concerned during your period of imprisonment as to how your partner is coping with the two young children and a newborn.
51 As is apparent from material before me, your drug addiction has been an enduring problem for you and has been an important part of your criminal and personal history. You began using cannabis when 17, then introduced to speed. You ceased drug taking at that time, until you were 25. When you were separated from Ronya, you relapsed into the use of amphetamines, then methamphetamine. By 2018, you were dysfunctional, had lost your work and your licence.
52 You instructed that leading up to your offending before me, you were using Ice on a daily basis, associating with other drug users and finding yourself in dangerous situations. You were making foolish decisions, you said, including purchasing stolen vehicles and other property, relevant to Charges 1, 2 and 4 on the indictment. Charge 3, you said, involved you agreeing to hold onto the precursor chemical for others, in return for what was described by you as a small amount of money.
53 Turning to matters in mitigation. Your pleas of guilty, I accept, as I have said, are indicative of some remorse for this offending, although the true extent of your remorse is of concern.
54 Mr McGarvie referred to the report of Dr Loretta Evans, who concluded you suffered a mild traumatic brain injury as a child and that had a secondary effect on your cognitive functions. In addition, your use of drugs throughout your adult life complicated your cognitive deficits. Your particular psychological state was disposed towards anxiety and therefore vulnerability.
55
Your counsel, based on the report, was not relying upon the application of the principles in R v Verdins & Ors,[1] all citations will be provided, counsel, and in that regard, I also note the conclusion of Dr Evans, to which I shall shortly refer. I do accept, however, these matters as stated by Mr McGarvie, are relevant to your profile. It is also clear, however, your offending before me and much of your offending, occurred in the context of drug use.
Mr McGarvie’s concession on the material that Verdins did not apply, was an appropriate concession, as I have said. I do, however, accept your likely increased anxiety in custody due to a number of factors, including your cognitive deficits and your concern for your partner and children, will make your time in custody more difficult, absent those considerations.
[1](2007) 16 VR 269 (‘Verdins’).
56
Since returning to custody on 7 April 2020, you spent 14 days in isolation at the Melbourne Remand Centre (“MRC”), consistent with the practice of Corrections for prisoners admitted into custody as a result of the COVID-19 pandemic. The effects and impact of the pandemic on prisoners were discussed with Mr McGarvie and I referred to a number of documents
Mr McGarvie may wish to consider and possibly address prior to sentence. The transcript will reveal that discussion and I briefly discussed it with him this morning.
57 Following your 14 days in isolation at the MRC, you said you were on half-day lockdowns for a week, albeit that was not confirmed. You then moved to Marngoneet Prison and while there, had not been, I was told, subjected to any lockdowns.
58 I accept there has been a reduction in courses available to prisoners generally as a result of COVID-19. Mr McGarvie also submitted you had been unable to have visitors. As I discussed with him, I am aware and accept ‘in person’ or 'face to face' visits have not been permitted since March of 2020.
59 I accept those factors impact upon your time in custody. In addition, I note your recent isolation having been tested for COVID-19 just prior to your plea hearing, only receiving notification of the negative result, I believe, on the day of your plea hearing, before it commenced.
60 Regarding your prospects of rehabilitation, Mr McGarvie correctly observed the principal issue affecting your prospects was your addiction to drugs, specifically methylamphetamine. He also correctly observed that I should be guarded about your rehabilitation prospects and I am. In particular, he noted your subsequent and, I add, similar type of offending.
61 I remain concerned regarding your prospects and risk of re-offending. You did not complete your time at Odyssey House and your family (existing and just born) were not a sufficient impetus to you to stop offending. You have, you instructed, ceased your drug use. You will need to continue abstinence or you will likely to be back before the courts. It is about time at your age that you grew up and assumed the responsibilities that come with being a parent. You are not doing your children any favours being in and out of jail. You are not setting a good example for them, it is about time you manned up.
62 Mr McGarvie submitted that there was some comfort in your most recent efforts, imperfect as they were. Time will tell. I am not as convinced.
63
Mr McGarvie urged you had remained abstinent from illicit substances since October 2019, although I note you had only been in the community since
3 October 2019 and for limited periods of time, specifically from 21 January 2020 to 7 April 2020. In between, you were bailed to attend Odyssey House on 30 January 2020, remaining for only two months.
64 Since returning to custody in April 2020, you had been tested and produced negative results (see the test result negative for illicit substances (Exhibit 2)).
65 Also tendered was correspondence from Terence Sideris, ADO therapist, Odyssey House, dated 11 February 2020, confirming your admission to Odyssey House on 30 January 2020. As at 11 February 2020, you had remained drug-free, demonstrated by urine analysis results twice weekly (Exhibit 3).
66 As at 11 February, you were in the initial assessment phase of the program, which was for approximately four weeks. During that time you attended three group therapy sessions a week, also comprehensive psychological, psychiatric and medical assessments. As at 11 February, you remained at Odyssey House and expressed your intention, at that time, to continue in the program.
67 Subsequent correspondence was tendered from Adam Turvey, senior therapist at Odyssey House Therapeutic Community, dated 3 April 2020 (Exhibit 3). I will just check that. That is not - just check that that is Exhibit 3, will you, not four, three? That is Adam Turvey, it might well be. I might have put them in together. The author confirmed you had attempted to manage your back pain by misusing that medication in a manner not prescribed. The author noted that posed a number of risks to the community, which Odyssey House would not be able to tolerate and you had the service withdrawn.
68 I turn to the report of Dr Loretta Evans, neuropsychologist, dated 24 December 2019. That report was prepared, in part, to address the charges before me and the application or otherwise of the principles of Verdins. Your background and history were contained in the report, which I have read, but I will not repeat.
69 Your substance abuse history was elaborated upon, including your alcohol consumption from age 17, smoking cannabis at age 24 or 25, using approximately a quarter of an ounce per day. You described a past history of the use of ecstasy and regular use of methamphetamine in your mid-20s. You estimated smoking two grams a day over the past eight years.
70
Reference was made to medical material Dr Evans had regarding the motor vehicle collision on 3 August 1998 (see paragraph 16 of her report).
Dr Evans also referred to other medical material before her for the purposes of her report (see paragraphs 18 to 20).
71 Dr Evans undertook a neuropsychological assessment (paragraphs 25 and following) and concluded your offending occurred in a background of relatively uneventful childhood until the motor vehicle collision when you were 11. Thereafter, you struggled emotionally and academically, your difficulties compounded by the sudden death of your mother when you were 15. Despite those difficulties, you had attempted various forms of employment and your father had been a significant support throughout your life.
72
In the opinion of Dr Evans, you sustained a moderate traumatic brain injury during childhood and you continued to experience persistent headaches. In addition, you had a history of poly-substance abuse that began in your
early-20s, with daily cannabis use over four years and an eight-year history of methamphetamine abuse. In her conclusions, Dr Evans considered you demonstrated cognitive inefficiencies; that it was clear you had experienced psychological distress over an extended period of time.
73 In her opinion, from a neuropsychological perspective, she did not consider there was any 'realistic condition' between any impairment you had and this offending.
74
Dr Evans anticipated, given your mild inefficiencies and perceptual domains, it might be expected there would be some improvement with continued abstinence of illicit drug use. Dr Evans concluded, given your cognitive difficulties, at best, concluded to be mild from a neurological perspective, she did not consider there would be any implications pertaining to sentencing
(see paragraph 45(v)).
75 From a cognitive perspective, Dr Evans did not consider you would be unduly burdened by imprisonment, nor did she envisage you would be likely to experience any major adverse effects, should you be sentenced to a term of imprisonment. I note her report was prepared prior to the impact of COVID-19 and recent birth of your third child.
76 Dr Evans noted your expressions of remorse and regret about your criminal behaviour, which impressed her as genuine.
77 Your counsel, Mr McGarvie, turning to submissions relating to sentence, conceded correctly in my opinion, specific and general deterrence were important sentencing considerations, also just punishment and the need to protect the community from you.
78 Mr McGarvie urged that, while a term of imprisonment was necessary for this offending, it should be tempered by parsimony. Jail is always, of course, the last resort of the court.
79
Mr McGarvie submitted the appropriate disposition in your case would be time served to date, i.e. at sentence, of 273 days, up to and including yesterday,
1 July 2020, as a term of imprisonment, then followed by a Community Corrections Order was the appropriate disposition. I am aware of Boulton v R[2] and subsequent pronouncements of the Court of Appeal relevant to those principles, which also includes Hutchinson v The Queen.[3] A Community Corrections Order, I am aware, has both a punitive and rehabilitative aspect to it and in Boulton, the court was urged to 're-examine the conventional wisdom about the types of offending which ordinarily attract a term of imprisonment.'[4]
[2](2014) 46 VR 308 (‘Boulton’).
[3][2015] VSCA 115.
[4]Boulton [103].
80 The prosecutor, Mr Malik, filed written submissions relevant to sentence (Exhibit B).
81 Whilst the prosecution accepted a sentence of imprisonment with a Community Corrections Order was within range, he submitted ‘time served’ with a Community Corrections Order would not be an appropriate disposition, taking into account all relevant sentencing considerations.
82
I discussed with counsel the appropriateness or otherwise of an aggregate sentence being imposed in relation to any of the charges before me, in light of Stevens v The Queen.[5]I requested joint written submissions regarding aggregate sentence be filed by 4 pm on 1 July 2020, which I have received. Both counsel submitted I should not proceed to impose an aggregate sentence on the charges before me for the reasons described therein
(See Exhibit C), I agree.
[5][2020] VSCA 170.
83 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, as I find them to be, ‘guarded at best’, I must also take into account the need for general deterrence when sentencing you, which is important in a case such as this.
84 In addition, there is a need for specific deterrence when sentencing you, given your extensive and relevant prior criminal history and your subsequent relevant offending.
85 There is also the need to protect the community from you and this does concern me, at least, in particular, until you address your drug use and are abstinent from it in the future.
86 There is also the need for just punishment and deterrence and I also take into account the principle of totality and proportionality when sentencing you.
87 I had you assessed for a Community Corrections Order and received a report from Alexandra Osborne. You were assessed as suitable for a Community Corrections Order, with a number of conditions recommended. The author noted two previous Community Corrections Orders, both contravened by failure to comply with conditions and a Community Corrections Order in 2019 currently before the court in breach. During assessment, you described alcohol dependency and regular drug use at the time of offending and drug and alcohol treatment condition, amongst others, were recommended.
88 Despite what could be regarded as ‘red flags’ to your compliance with yet another Community Corrections Order, I have determined that a combination disposition is appropriate. Now listen carefully. You will, however, be required to serve more time in prison prior to release on the Community Corrections Order. Quite simply, if your ‘new’ family does not ‘jolt’ you into compliance with this order and abstinence from drug use and further offending, nothing will and this court will see you again in the future, I have no doubt.
89 A Community Corrections Order, as I said, will form part of your sentence, which will also involve further time in custody.
90 But before I ask if you to consent to being on another Community Corrections Order, I have to tell you a little bit about that Order so you know what it means. The Order will be for two years, with a conviction recorded.
91 There are a number of core conditions that apply to all Community Corrections Orders and which would apply to you:
·You must not commit, whether in or outside of Victoria during the period of the order, that is, two years, an offence punishable by imprisonment;
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order, that is, two years;
·You must report to Reservoir Justice Service Centre Community Correctional Services at 909 High Street, Reservoir, within two clear days after your release from custody;
·You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change;
·You must not leave Victoria, except with the permission of the Secretary to the Department of Justice, or his or her nominee;
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Corrections order.
92 Now there are a number of other conditions which will be attached to this order and they apply to you, so you have got to keep listening:
· You have to perform 100 hours of unpaid community work over a period of 18 months, as directed by the Regional Manager (s.48C). Fifty hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition (s.48CA);
· You must be under the supervision of a Community Corrections officer for a period of two years;
·You are required to be supervised, monitored and managed, as directed by the Secretary, or his or her nominee (s.48E);
· You must undergo assessment and treatment (including testing) for drug abuse or dependency, as directed by the Regional Manager (s48D(3)(a));
· You must undergo assessment and treatment (including testing) for alcohol abuse or dependency, as directed by the Regional Manager;
· You must undergo mental health assessment and treatment, including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager (s48D(3)(e));
· You must attend for review of your progress and compliance or otherwise with conditions of the order and you have got to come back before the court on 23 February 2021 at 9.30 am (s.48K).
93 So are you listening?
94 OFFENDER: Yes, Your Honour.
95 HER HONOUR: I can only impose a Community Corrections Order if you agree to such an order being imposed. So I have to tell you a bit more about it.
96 I should advise you that if you contravene or breach that order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s.83A(d)).
97 You can also be re-sentenced for the charges that are before me. One of the options available includes a further term of imprisonment in your case (s.83A(s)).
98
So you have got to be extra careful for the two years after your release from custody. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the court and you will be
re-sentenced on these charges that are before me. So you have to be extra careful.
99 I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections worker, if you like, as part of this order, a substantial fine can be imposed (s.83A(e) and A(f)).
100 Now are you aware of all of that?
101 OFFENDER: Yes, Your Honour.
102 HER HONOUR: Well, do you consent to that Community Corrections Order in those terms, being aware of the conditions and the ramifications upon breach?
103 OFFENDER: Yes, Your Honour.
104 HER HONOUR: And as I have said, taking into account totality, proportionality, that is part of the sentence I impose, but I sentence you as follows:
105 Charge 1, convicted and sentenced to six months’ imprisonment.
106 Charge 2, convicted and sentenced to five months’ imprisonment.
107 Charge 3, convicted and sentenced to four months’ imprisonment.
108 Charge 4, convicted and sentenced to six months’ imprisonment.
109 On Summary Charge 11, convicted and sentenced to one month’s imprisonment.
110 On Summary Charge 12, convicted and sentenced to one month’s imprisonment.
111 On Summary Charge 19, convicted and sentenced to three months’ imprisonment.
112 Am I going too quick for counsel?
113 COUNSEL: No.
114 HER HONOUR: No?
115 MR MALIK: No, Your Honour.
116 HER HONOUR: Good.
117 I direct the following in relation to cumulation and concurrency. Charge 1 is the base sentence and I direct the following in relation to cumulation:
118 I direct that two months of Charge 2 be served cumulatively upon Charge 1.
119 I direct that one month of Charge 3 be served cumulatively upon Charge 1.
120 I direct that three months of Charge 4 be served cumulatively upon Charge 1.
121 I direct that 14 days of Summary Charge 11 be served cumulatively upon Charge 1.
122 I direct that 14 days of Summary Charge 12 be served cumulatively upon Charge 1.
123 I direct that one month of Summary Charge 19 be served cumulatively upon Charge 1.
124 For clarity, the orders for cumulation are upon each other and upon the base sentence.
125 Now that results in a total effective sentence of 13 months and 28 days' imprisonment.
126 You will, upon release from that imprisonment, which I will come to in a minute, be subject to a Community Corrections Order that I have previously described for a period of two years, a conviction being recorded.
127 Now, pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 273 days in custody, up to and including yesterday, which was 1 July 2020, by way of pre-sentence detention and I direct that that be entered into the records of the court. Now, just in general terms what that means is, that you will have to serve approximately and I have not calculated it to the day, another four months and 25 days before you commence that Community Corrections Order, which will last for a period of two years. So they are the rough figures. So does that make - do you understand that? I am not asking if you like it, but do you understand that you have got approximately, approximately four months and 25 days to go, then you are on the CCO. Does that make you understand that, Mr Reslan?
128 OFFENDER: Yes, Your Honour.
129 HER HONOUR: Right.
130 Now, had you pleaded not guilty to these charges and been found guilty of them, pursuant to s.6AAA of the Sentencing Act 1991, I would have sentenced you to a term of imprisonment of four years, with a non-parole period of three years.
131 Your offences in Charges 1 and 4 on the indictment relate to theft of a motor vehicle. As such, I am required to cancel your licence and disqualify you from obtaining any licence for a period of time. In determining that period of time, I am mindful of the decision in R v Lefebure[6] and the importance of rehabilitation. Any licence you have to drive is cancelled and you are disqualified from obtaining a licence for a period of two years from today’s date, which is 2 July 2020.
[6](2000) 112 A Crim R 41.
132 The prosecution made application for a forfeiture order and a disposal order. Both orders were not opposed by your counsel on your behalf and I make the orders in the terms sought.
133 Now, any other matters - now, there is - did you get the maths? I am not asking counsel if you like the maths, did you get it all written down so that it makes sense?
134 MR MALIK: Yes, Your Honour.
135 HER HONOUR: Mr McGarvie?
136 MR McGARVIE: Your Honour, I just missed your last - the last order for cumulation.
137 HER HONOUR: The what, what?
138 MR McGARVIE: The last order.
139 HER HONOUR: You mean Charge 19?
140 MR McGARVIE: That is right, so.
141 HER HONOUR: One month.
142 MR McGARVIE: Yes, one month?
143 HER HONOUR: Yes, you have got it now?
144 MR McGARVIE: Yes. Yes, Your Honour.
145 HER HONOUR: So that - should you - do your maths. That should give you a total effective sentence of 13 months and 28 days. PSD is 273 that he has already done of that 13 months and 28 days, which means he has approximately - do not quote me to the day, four months and 25 days to go in prison. Then on the CCO for two years.
146 Is there anything you want to say about that, Mr Malik, again? I am not asking you if you like the sentence, just asking did you - does that accord with the relevant legislation and so on?
147 MR MALIK: It does, Your Honour. Can I just confirm that period of disqualification, I'm sorry, I missed that.
148 HER HONOUR: Two years from today's date. So that makes, generally speaking, without knowing what is otherwise cancelled, if he has got four months and about 25 days to go and I have not calculated it to the day, you understand, when he gets out, he will have four months, 25 days less - out of the two years to go, which would be about one year and - I would have to do the maths, 8, 9,10, 11 - 8 - 7 and a half months, something like that after he is released. Does that make sense?
149 MR MALIK: Yes, Your Honour.
150 HER HONOUR: So now, was there anything else about that, Mr Malik, the figures? No?
151 MR MALIK: No, thanks. The figures are all - - -
152 HER HONOUR: Right. Now, Mr McGarvie, did you get your figures right?
153 MR McGARVIE: Yes, Your Honour.
154 HER HONOUR: Excellent. Have you got any questions about the structure of the sentence?
155 MR McGARVIE: No, Your Honour.
156 HER HONOUR: All right. Now, both of you agree, do you, the PSD?
157 MR McGARVIE: The PSD's agreed at 273, Your Honour.
158 MR MALIK: We do, Your Honour.
159 HER HONOUR: Great. Now, just very quickly, was it Exhibit 3 that letter from Turvey? I might have made it part - all this Odyssey together. It was a good chance I did. It should have been Exhibit 3, I am pretty sure. Yes, that was Exhibit 3 as well, that is good, all right. And - yes. And what was the report of Dr Loretta Evans? That was Exhibit 4, is it, I cannot read it from here. Four, all right. Well that is that.
160 Yes - no, anything further?
161 MR MALIK: No, thank you, Your Honour.
162 MR McGARVIE: Nothing further, Your Honour.
163 HER HONOUR: Well, Mr Reslan, I live in hope, not convinced. But if you have got - you have got a new family, why do you not try and look after them, do the right thing by them, instead of leaving them in the lurch, coming back to jail? Time will tell.
164 Now, the CCO - the paperwork is going to be sent to the prison, Mr Reslan, for you to sign. That is relating to the CCO. So you have got to sign it. This is the process we are using now. People are signing them in prison and then they are being sent back. So you will be given a copy to sign. If you do not sign it, well then I have to come back and think of another sentence.
165 OFFENDER: Yes, Your Honour.
166 HER HONOUR: All right. Now, did you consent to that order being made, I take it? Well you said you did before, so that is right. All right.
167 Anything further?
168 MR McGARVIE: Nothing further, Your Honour.
169 No, all right?
170 MR MALIK: No, thank you, Your Honour.
171 HER HONOUR: Excellent. Thanks very much. Just wait one sec. Yes, all right. Disconnect all the links. Thank you very much. Thanks, Mr McGarvie.
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