Director of Public Prosecutions v Rice

[2016] VCC 586

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-00587

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON RICE

---

JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6 May 2016
DATE OF SENTENCE:	6 May 2016
CASE MAY BE CITED AS:	DPP v Rice
MEDIUM NEUTRAL CITATION:	[2016] VCC 586

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Bolton	Office of Public Prosecutions
For the Offender	Mr R. Melasecca	Malesseca Kelly & Zayler

HER HONOUR:

1I find the breach of the CCO proven.  In particular I find that the CCO - and the significant parts of the breach of the CCO were, so far as I was concerned, the failure to engage in treatment, rehabilitation, testing, supervision and unpaid community work from June 2015 through to October 2015 and the commission of a large number of offences between - sorry, what were the dates?  Was it June and September 2015?

2MR MELASECCA:  September 2015.

3HER HONOUR:  September and November 2015.

4MR MELASECCA:  Through to ‑ ‑ ‑

5MS BOLTON:  Look through to, I think, 19 November.

6HER HONOUR:  Yes.  From September to November 2015.

7MR MELASECCA:  Correct.

8HER HONOUR:  I find that, so far as the amount of unpaid community work that had been complied with according to my order is, indeed, eight hours.  I take the view that had Mr Rice applied to have the hours of unpaid community work completed during the residential component of his program credited, I would have likely credited some of those and reduced the amount of unpaid community work hours he was required to do in the community.  The fact that he did not make the application and simply chose to ignore his obligations to complete unpaid community work is something that I take into account in considering the gravity of the breach.

9He could, by his own conduct, have taken positive and constructive steps to have alleviated some of that burden or to have sought to do so.  Instead he simply chose to ignore the order that I have made. 

10I take the view that there has been a significant amount of compliance with the CCO that I imposed.  Mr Rice completed his program with Narconon in part residentially and in part in the community.  I am not, on the material before me, prepared to make any findings adverse to him or adverse to Narconon as to the circumstances in which the residential component came to an end and the completion of it at home or in the community occurred.  The fact is, he successfully completed the Narconon program and appeared to have remained drug free whilst in the community completing that component of it but for one dirty drug screen.  Also for the period from discharge from residential treatment at Narconon in April or May 2014 up until the end of 2014, he commenced and successfully completed the sex offender treatment program ordered by me.

11In those circumstances I consider there was, for two years, substantial compliance with the CCO.  Leaving one year of the CCO, one year of complying with supervision, unpaid community work, drug and alcohol treatment and dealing with the unpaid community work hours, being the gravamen of the non-compliance breaching. 

12The breach offending is wholesale, widespread but confined to a period of three months or so which coincided with the escalating of the drug abuse or the relapse into drug abuse.  It is of a very different nature to the offending that I placed Mr Rice on a CCO for in the first place.  The fact that the breach offending was not for like offences is something I also take into account. 

13In my view, for the reasons that I have been expressing in discussion with
Mr Melasecca and Ms Bolton, the appropriate course is, having regard to the fact that Mr Rice has now been sentenced by the Magistrates' Court to a combination of a term of imprisonment, due to expire soon, and a Community Corrections Order directed particularly to, again, addressing his drug abuse, the appropriate course is to cancel the CCO which was before me by reason of the breaches of it and the subsequent events including the Magistrates' Court sentence.

14I re-resentence Mr Rice for the original offending, that is the charges of sexual penetration of a child under 16 and indecent act with a child under 16 to a term of imprisonment of six months to commence today.  That is to be served concurrently with any sentences presently undergoing.  That will mean that there will need to be an application for variation of the Magistrates' Court CCO so that that can commence immediately upon the conclusion of the sentence he is currently serving and the sentence imposed by me. 

15So far as the breach is concerned, I find the breach proven and sentence
Mr Rice to be imprisoned for a period of one month to be served concurrently with the sentence I impose for the original offending.  So that is a total effective sentence of six months commencing today.

16MS BOLTON:  As Your Honour pleases.

17MR MELASECCA:  May it please, Your Honour.

18HER HONOUR:  All right, thank you.

19MR MELASECCA:  Your Honour, might I just ask of the Office of Corrections whether she is in agreement with us about the application needing to be done as opposed to simply the deferral of the date of the commencement.  We have an officer in court ‑ ‑ ‑ 

20HER HONOUR:  Yes, indeed.

21MR MELASECCA:  Might - will I ask the question or will Your Honour ask the question?

22HER HONOUR:  You because it's - Ms Lewino, would you be able to assist
Ms Melasecca please?

23MR MELASECCA:  Ms Lewino ‑ ‑ ‑ 

24MS LEWINO:  Yes I can assist, Your Honour.

25MR MELASECCA:  ‑ ‑ ‑ do you agree that it needs a variation or are you simply able to defer the start of the Community Corrections Order to the date of release?

26MS LEWINO:  Sir, I actually have Mr Rice's file with me because I manage all CCO imprisonments pending at Ringwood Corrections.  So I will simply defer it.  I have the power administratively to defer the commencement ‑ ‑ ‑ 

27MR MELASECCA:  There you go.

28MS LEWINO:  ‑ ‑ ‑ based on imprisonment.  So he'll be contacted probably roughly around two weeks prior to release from myself where he'll be allocated and assigned a time and then the 12 months will commence post-release.

29MR MELASECCA:  All right.  Well then there's no need ‑ ‑ ‑ 

30MS LEWINO:  So he'll be required to two days ‑ ‑ ‑ 

31MR MELASECCA:  ‑ ‑ ‑ for an application then.

32MS LEWINO:  No, I'll look after that.

33HER HONOUR:  Ms Lewino, thank you very much for your attendance for what's been a long morning and for all the assistance that you have provided.  It's very much appreciated and can you also convey my thanks to Mr Kim for his assistance yesterday and the assistance he provided after we'd adjourned yesterday.

34MR MELASECCA:  May it please, Your Honour.

35MS LEWINO:  Thank you, Your Honour.

36HER HONOUR:  All right thank you.  Can you please sever the link and adjourn?

37TIPSTAFF:  Yes, Your Honour.

38MS BOLTON:  Your Honour, just before you adjourn I'd just like to again formally apologise for being late yesterday.

39HER HONOUR:  All right.

40MS BOLTON:  It was a very difficult morning yesterday and ‑ ‑ ‑ 

41HER HONOUR:  I hope it's a lesson.

42MS BOLTON:  ‑ ‑ ‑ I want to formally apologise again.

43HER HONOUR:  I hope it's a lesson that you'll learn about ‑ ‑ ‑ 

44MS BOLTON:  I've only done it once and I won't do it again in 15 years.

45HER HONOUR:  ‑ ‑ ‑ about the way you go about informing the court in future if you're double booked.  The way it came across to was extraordinarily pre-emptory, which was one of the reasons I was so cross.  So I just ‑ ‑ ‑ 

46MS BOLTON:  I wasn't aware of how it - but in any event I'm sorry.  I'll take full responsibility and I'm sorry and I'll relay the concerns.

47HER HONOUR:  Yes.  So a personal call from the you to the Associate, an acceptance of responsibility and a falling on your sword is very important.

48MS BOLTON:  Certainly, Your Honour.

‑ ‑ ‑