Director of Public Prosecutions v Ropitini
[2024] VCC 570
•24 April 2024
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-23-00575
Indictment No. N12664738
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KACEY ROPITINI |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 24 April 2024 | |
DATE OF SENTENCE: | 24 April 2024 | |
CASE MAY BE CITED AS: | DPP v Ropitini | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 570 | |
REASONS FOR SENTENCE
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Catchwords: Arson. $150,000 damage to her Director of Housing unit; 41 at time of offence, 42 years of age at time of sentence; single irrelevant matter in criminal history; early plea; full admissions - Worboyes v The Queen [2021]
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. McKenry | Office of Public Prosecutions |
| For the Accused | Ms J. Clark | Geelong Lawyers |
HIS HONOUR:
1 Kacey Ropitini, you have pleaded guilty to a single charge of arson punishable by a 15-year maximum prison term.
2 You have admitted a criminal history containing – it was only a single matter, a dated matter of no relevance at all to my task.
3 The prosecutor Mr McKenry opened this matter to me earlier today, and he did that in accordance with a written summary of prosecution opening for plea that was dated 2 June 2023 and marked as exhibit A. Your counsel Ms Clark told me that this was an agreed summary. There is then little point in my setting out all the agreed facts in these, my formal reasons for sentence. The agreed summary does that, and of course, I will sentence pursuant to it, together, though, also with the photographs that are attached to the depositional material.
4 I'll give only, then, the briefest of summaries so that my reasons and ultimate sentence might be understood by anyone who happens to access these sentencing remarks.
5 By way of very brief summary then, in November of 2022, you were living at a Director of Housing property at unit 1/20 Elsinore St in Colac. You were living there with your partner Sam Henderson. You had been living there since about June of that year. There had been some disagreement between the two of you on the evening of 28 November 2022 and Mr Henderson headed off to work in the morning. He tried to contact you a number of times over the course of the day but had no success in that respect, but he then did come upon you after work when he saw you outside the Colac cinema. There was a further brief argument and he rode off. Later that evening you went to your unit and you set it alight. A neighbour saw smoke coming from the unit at around 8.15PM. That same neighbour had seen you leaving the property about 15 or 20 minutes before the smoke was visible.
6 Fires crews attended and put out the blaze, which had by then caused substantial damage, as the summary and photos attached to the depositions disclose. The repair cost estimate is that which was mentioned in the agreed summary. That estimate was to the tune of $150,000. The actual repair cost, though, was less. It was $124,080, as the tender document marked as Exhibit B makes clear. So it is that later sum which is the extent of the damage.
7 An expert examined the scene and located a number of seats of fire with no accidental cause implicated.
8 You were arrested on 5 December and gave a 'no comment’ interview, as was your right.
9 A few hours later, however, you contacted the informant and asked for a further opportunity to speak about the matter, and the next day you attended at the police station, as was arranged, and then you made very detailed admissions as to what you had done. Paragraph 11 sets out some of your answers, though of course I have read the full transcript of the interview. You described an argument and that you had been drinking and using drugs and you were angry and not in a good space, and that you'd set fire to the unit in a number of areas. You said you would pay for the damage and that you were, as you put, horrified by what you had done. Though you did say in the police interview that you would happily pay for the damage, the reality is that, absent some windfall, you plainly will not have that capacity.
10 You were released on bail and you have spent no time in custody to this point.
11 So much, then, for what really is only a brief summary of the agreed summary in this matter. As I've said already, I will sentence pursuant to that more detailed, agreed summary, which is dated 2 June of last year.
In mitigation
12 Ms Clark conducted the plea in mitigation on your behalf earlier today and relied upon an outline of submissions dated 23 April of 2024.
13 Either by reference to the written material, that outline, or brief oral submissions, she informed me as to your family and educational, work, drug use, relationship and mental health history. On that final topic, I should say that she informed me of the hospital admissions which took place last year, the FOI request to get access to relevant medical materials, and also, the appointment which had been made for you to be assessed by a psychiatrist in late June. Such mental health issues as were raised before me were not at this point able to be defined, and she made that plain enough.
14 She made some submissions to the court as to the level of objective gravity of the offence, the reason for the offence, the relevant sentencing purposes and also as to your prospects of rehabilitation. She was not, in the absence of that report, which has not yet been obtained, able to advance any submissions as to the application of any of the principles from the well‑known case of R v Verdins[1].
[1]R v Verdins [2007] VSCA 102 (‘Verdins’)
15 In the plea conducted on your behalf, Ms Clark relied upon the following matters in mitigation:
§ Your early guilty plea with some heightened benefit owing to the global pandemic, (Worboyes[2]);
§ Your full cooperation with the authorities and the extent of your remorse in this case.
[2]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’)
16 She mentioned herself, in the written submissions, that a term of imprisonment may well be considered at paragraph 3 of the outline. So she was not for a moment suggesting that this offence was anything other than serious. But she was arguing for the imposition of a Community Corrections Order, which she argued would achieve all the purposes of sentencing in this case. That was plainly her primary submission. That you should not be jailed at all. Her secondary or fallback submission was that if prison was required here, that the prison term should be moderated and be followed by release onto a Community Corrections Order. She made clear that if on the state of the materials presently before me, I agreed with that primary submission that jail was not required, that she would not in those circumstances seek to adjourn the matter to obtain the expert report. A different stance was taken, should I be considering imprisoning you in combination with a Community Corrections Order.
17 In that event, there was the material yet to be obtained, which might have had a role to pay in my task. I indicated to her that I would not finalise the matter in the absence of those materials, if having considered all the matters and received the report, I was still contemplating a prison term, even one in combination with a Community Corrections Order.
Prosecution
18 The prosecution argued on behalf of the Director that a term of imprisonment was required in this case. That a stand-alone Community Corrections Order could not achieve all the purposes of sentencing, and the reasons why that was so.
19 I am not bound by that submission, no more that I am bound by any submission made by Ms Clark. Counsel make submissions or arguments to me. Those arguments don’t bind me. I must give them appropriate weight, but at the end of the day I am not bound to accept them. After all, I am exercising a sentencing discretion. I have to reach my own view as to the available range of sentence, and more importantly of course, the appropriate sentence to be imposed in this particular case.
20 I will come back a bit later to consider the various submissions made by the parties.
Background
21I will turn firstly and really only quite briefly to your background. Briefly, as I have no reason not to accept the submissions and the material placed before me as to your personal background. I see no need to repeat it all.
22You were born in New Zealand in October 1981 and hence you are 42 years of age now. You were raised by your mother, as your parents had separated when you were very young. You had very little contact with your father as he moved to Australia when you were 9 or 10. Your mother remarried and had four children from that new relationship. On the educational front, you finished year 12 in New Zealand and you had a variety of jobs as described in the outline at paragraphs 27 through to 31. You moved to Australia yourself in 2001. I should say you have moved around a bit since then, including at times going back to New Zealand, but you are not an Australian citizen.
23You had two sons from a relationship with Kurt. I was told he was in and out of prison. You came back at one point from New Zealand and then lived in Colac as a single parent. The two boys of that relationship are now, by my calculations, 17 and 18 or so, and they both live in New Zealand and are doing well over there.
24You have had some issues with drugs and alcohol and also some mental health issues. I was told that you're presently engaged with a drug and alcohol counsellor and deriving some benefits from that connection. There were the two hospital admissions in November of last year, which I was told about, and you have been discharged from hospital with some ongoing treatment. You are taking medication. There were some earlier mental health issues spoken of in the outline. This was in 2015 and 2022. As Ms Clark conceded, on the materials currently before me, it isn't possible for me to reach any conclusions as to firstly, what conditions, if any, you suffer from or suffered from, or whether such conditions, if present now or present back at the time of the offending, have any role to play in the offending or any role in reducing the weight to be given to deterrence, or as leading to any increased prison burden. None of the Verdins principles are enlivened here.
25You have only a single, quite-dated appearance before the courts of no relevance at all to my task: a non-conviction disposition for a minor matter 10 years ago. I put that matter aside altogether. The absence of any relevant criminal history is, however, not something I put aside. You are for all intents and purposes a mature-aged first offender, and I can't ignore that fact.
26I have indicated you had been living with Sam Henderson at the time of this offence. You still live with him, and he is presently at court. You live with Mr Henderson and his aunt just outside Warrnambool.
Guilty plea
27 I turn, then, to the other matters raised on the plea. Firstly, your level of cooperation, and then the fact and stage of your guilty plea. It's to your credit that you rang the police and arranged to be reinterviewed. It was a very sensible course, and one that I give significant weight to, because you then made very detailed admissions to the offence and followed that up by pleading guilty at the first available opportunity.
28 You have taken this very early responsibility for your crime by making the admissions and then by pleading guilty at the first opportunity.
29 As a result of your guilty plea, the time, the cost and the effort of a committal hearing in the lower court or a jury trial up in this Court has all been avoided. No witness has been required to given evidence.
30 You have facilitated the course of justice in these ways and you must be rewarded for doing so.
31 This matter really was always going to be a plea. There's just no question about that. You pleaded guilty at the committal mention in April of 2023 and were committed to this Court for a plea in July of last year. The plea was not reached in that July circuit, and then your mental health issues, such as they were, intervened and led to the adjournment of the November plea. In any event, as I say, you were always pleading guilty from the moment of that interview in December of 2022. The formal plea was entered as early as it could be, in April of last year, and each of those dates were at a stage when the backlog in this Court was being brought under control. It had not been entirely cleared.
32 It seems to me we are close to the point in time now, if not at that point, where any future decision to plead guilty will not be met by any heightened sentencing benefit derived from the Court of Appeal decision of Worboyes and those subsequent cases applying that decision. The fact is, not only have we now moved beyond the global pandemic, the fact is the pandemic backlog in this Court has now actually been cleared. We are operating in this Court at pre-pandemic levels, as the Chief Judge announced to the profession late last year, I believe, in October. However, this case settled well before that announcement, and I take the view that it is appropriate to give some heightened benefit to your guilty plea in line with the principles derived from Worboyes. So I will treat your guilty plea as worthy of some extra weight for the many reasons set out in that decision.
33 I take these various matters into account in mitigation.
Remorse
34 I waste no time on the issue of remorse. I have an early guilty plea, with the detailed admissions made earlier still. The assessment report as to your Community Corrections Order suitability supports the presence of remorse as well. It is clear to me that you are actually genuinely remorseful, and I take that into account in your favour.
Rehabilitation
35 Nor will I spend much time in my reasons on the issue of your prospects of rehabilitation. It is obvious to me that they are favourable. I have amongst other things your very full admissions, an early guilty plea, the presence of remorse and, as I said, for all intents and purposes, a person who has been offence-free their whole life. Someone who is clearly not revelling in the offence. Someone who was plainly not in a good state on the night in question and who was acting in the moment. Someone who was pretty swiftly arrested and charged and who, in the cold hard light of day, was horrified that they had acted in the way that they had. That someone is you, a person who's getting some treatment now in the community. All these things suggest to me that you have, at the least, very good prospects of rehabilitation and, in my judgment, a low likelihood of committing any offences, much less offences as serious as this one, again. I will come to the Community Corrections Order assessment report, which spells out a higher level of risk. That is, based it would seem on the assessment tool that was administered. I don’t believe that level of risk exists here.
The Offence
36 I turn then, to the offence itself. The agreed summary describes the details of it. I am not going to re-state all the agreed facts. This was undoubtedly a serious crime. Your counsel accepts that is so. Though I don’t have any material which would permit be to find some sizeable moderation of moral culpability derived from an existing mental health condition at the time, it is clear enough that it was the sort of crime committed by someone who was not in a good state emotionally. Now, disinhibition brought about by alcohol and drugs cannot be mitigatory. I’m confident that those things had a role to play, but they really cannot provide the complete answer. It was plainly an offence committed amidst some emotional turmoil, as is referred to in your interview.
37 This was not some calculated arson, with steps taken to obtain some financial gain by way of, for instance, a false insurance claim. It was not an arson targeting an owner, and ‘paying out’ on an owner as a result, for instance of eviction from premises. It was not, on the materials before me, an act of arson committed out of some fascination or psychological or psychiatric obsession with the lighting of fires as is often enough seen. It was not an arson designed to place people at risk or to drive home some criminal message, as has so often been seen recently with the firebombing of commercial premises or premises linked to members of the criminal underworld. You were not someone who had been recruited. You were not being paid. There is no underlying criminal structure or hierarchy or purpose. What, then, was being gained? Nothing. You acted alone and you did so with, in my judgment, a mixture of disinhibition from drug and alcohol use – which is not mitigatory - anger and emotional distress to some degree, and surely without too much by way of considered thought, even though you were taking some calculated steps, in terms of the fire itself. When one examines it as you did in the police interview, there was no benefit to you. Quite the opposite, as you lived in that unit and by taking these steps, you deprived yourself of a roof over your own head. You did, however, set a number of fires. You were not acting as an automaton and your offence caused very significant damage, with the financial cost to rectify the unit over $124,000. Of course, also, your offence removed that unit from the pool of available housing, in a climate where there is such a high demand for properties such as these. As I mentioned a moment ago in discussion with the parties, the tender acceptance document was only dated 29 June of 2023, and that simply signifies the acceptance of the tender, not any suggestion that a unit is, by that point repaired.
38 This was, by no stretch of the imagination, a minor example of the offence but is, in my judgment, a very long way removed from the most serious examples of the offence of arson.
Purposes
39 I have to consider a number of purposes of sentencing. Rehabilitation is one of those purposes. I must give that purpose appropriate weight and, as I've said already, I believe your prospects are strong. It is, however, not the only purpose. This sentencing task is not purely about you.
40 I must give appropriate weight to the other purposes of sentencing.
41 One of those is the need to punish you. I must do that justly and proportionately. Punishment is an important sentencing purpose in this sort of case. It must be a proportionate response.
42 I'm also required to denounce your conduct. Again, that is of importance. I'm satisfied that you are actually ashamed of what you have done, as you should be.
43 Community protection is another purpose of sentencing, and it must be adequately reflected. I must consider that purpose. It seems to me, though, that that purpose drops away very considerably here, given my conclusions as to your future prospects of rehabilitation and your low future risk. The same can be said of specific deterrence which relates to the need to deter you. I believe you have learnt a salutary lesson. I believe you're most unlikely to offend in this way again. Specific deterrence is not a large matter in my sentencing task. It does not loom large. It would obviously be very different, both in terms of specific deterrence and community protection, if I reached a view as to there being a high risk of re-offence, or for instance, you had a significant criminal history before the Courts, and a lack of response to past court orders. But that simply isn't the position at all.
44 General deterrence, however, is a different position.
45 That purpose relates to the need to deter future offenders, and it must be given some weight in my task. The prosecutor referred to the importance of general deterrence in this case.
46 The Courts are required to pass sentences which would cause those considering committing a crime such as yours, to actually pause for thought and to reconsider their position. We seek to deter future like-minded offenders.
47 I have to pay regard to the impact of the crime and in the material before me, as to that, I know the quantum of the damage, obviously. I must have regard also to the maximum penalty.
48 I have to pay regard to current sentencing practices, and I do . There's not a single controlling factor at all. I have looked at the statistical material referred to by Mr McKenry. This is material on the Sentencing Advisory Council online site for this crime and, true it is, it spells out the very high percentage of offenders who are imprisoned for this crime. It spells out also that the percentages have risen over the years captured by that online data. That sort of material, though, has inherent limitations. I have looked also, since the matter has been stood down at the Judicial College of Victoria online assortment of sentencing cases for arson, both cases dealt with in the Court of Appeal, and those dealt with at first instance in the County Court, and I do note that a number of Community Corrections Orders have been imposed for crimes which lack the features of aggravation in terms of motivation. So those where, for instance, financial reward or criminal messaging does not feature
49 I am sentencing you for your crime, and that is not a mathematical or statistical task. It is not one where the outcome in this case is or can be dictated by what has happened in other cases, or by average outcomes or trends as disclosed in the statistics.
50 Prison is a disposition of last resort. As serious as your crime is, if a sentencing disposition short of imprisonment can achieve all the purposes of sentencing, then it must be selected. That is because a Court must never impose a sentence more severe than that required to achieve the various purposes of sentencing. Hence, Ms Clark has referred me to the Court of Appeal decision of Boulton[3] and what that case had to say as to the expanded role of Community Corrections Orders, and the availability even for matters that previously would have been judged to be suitable for a term of imprisonment. The prosecution take issue with the availability of such a disposition – that is, a Community Corrections Order - without a term of imprisonment leading into your release.
[3]Boulton v The Queen [2014] VSCA 342
51 I've called for a report as to your suitability for a Community Corrections Order. That report has been marked as Exhibit C. In the meantime, of course, I have considered the submissions made by each party. I have received back that assessment, and unsurprisingly, it says you are suitable. Your suitability for such an order is in no way binding upon me. It doesn't require me to place you on such an order. The question for me is whether I can? Since standing the matter down, I have carefully considered your counsel's submissions urging me to make such an order, and of course those of the prosecution, who take issue with the availability of such an outcome in this case. I have of course considered the nature and the gravity of the offence and the relevant purposes of sentencing and the weighting of those purposes in the case of a virtual first offender, one with a number of significant matters in mitigation, and one who I judge to have favourable prospects of rehabilitation.
52 I do not in any way ignore the submissions made by any of the parties. I certainly don't ignore the prosecution's submission. I just don't agree with it. I am in fact satisfied that a non-custodial option is open to the Court in this case, on the material existing before me, as it does today. That is, that a suitably-conditioned Community Corrections Order can achieve all the purposes of sentencing in this case. In those circumstances, Ms Clark has indicated to me that she won't and doesn't apply for the matter to be adjourned off to get any further material.
53 So I will proceed and finalise the matter today, which I believe to be in your interests.
54 So you need to listen carefully. I can only place you on an order if you consent to being placed on this order. So I'll spell out what it all involves, what's expected of you, and the ramifications of this order, and of breaching it, so that you can provide some informed consent as to your willingness to enter this order.
Duration
55 So I'm speaking to you, a person who has no history of having these orders explained, a very limited history before the Court. So I'll spend a bit of time going through this, and you'll get a chance to speak to Ms Clark before I get you to sign this order.
56 What I'm proposing is this, that the order will run for two and a half years. So it starts today. It will run for two and a half years.
Core or mandatory terms
57 You will be required to attend the Warrnambool Community Corrections Centre within two clear working days of this order. Get down there, I'd say, on Friday, I believe. I doubt if they'd be open tomorrow. There is a phone number there on the document. You can ring that first and work out the best time to go. It's within two clear working days of today's date. Now, Community Corrections Orders have a whole suite of mandatory terms. So mandatory terms that apply to every person who gets an order. You're getting one, so of course they apply to you. They're all spelt out on the document. I'm not going to go through them chapter and verse. One very prominent one is this: you must not commit another offence, for which you could be imprisoned during the time this order is in force. So that's the next two and a half years. So you've got to stay out of trouble. If you're using drugs, you won't be staying out of trouble; if you're using drugs, you're possessing drugs. If you're possessing drugs, that's an offence punishable by imprisonment. So it doesn't depend upon being sent to prison for another offence. If you commit an offence, which could in theory be punished by a term of imprisonment, you'll breach this order. So you keep your nose clean. Stay out of strife.
58 As I've said, you must report within two clear working days of the order starting, you must report to and receive visits from the Community Corrections Officers, who'll be appointed. You have to let them know, within two clear working days, of any change of address or job. You don't just get up and leave, you let them know where you are. There is a condition that I need to direct to you: you must not leave Victoria without first getting permission to do so from your Community Corrections Officer. Finally, you must obey all lawful instructions and directions of your Community Corrections Officer. So they're the mandatory terms that apply to you, as they do to every person who signs one of these orders.
59 In terms of the condition of not departing Victoria, that may be troubling you, but let me say this: if you doing well on the order, no doubt, you may well be given permission to leave the State if there's some particular need to do it. If you're not doing well on the order, if you're running behind or not complying, then you would have almost no chance of receiving approval. What it amounts to is this: you don't just get up and leave. You don't go to New Zealand, you don't go to South Australia, you don't leave Victoria without first getting permission to do so. If you did that, you'd breach the order.
60 The same in terms of change of address or job, for that matter. Just keep them informed. That's what is critical here. So they're the mandatory terms. Then there are the conditions that I tailor. Some of these are clearly directed at treatment, and your ongoing rehabilitation. There's one of these conditions that unashamedly is directed purely at punishment, all right? Let me just deal with these conditions then.
Special conditions
§ The first that I mention is this: you will be required to perform 175 hours of unpaid community work. That's over the full period of the order.
§ The next of the conditions is that you will be under the supervision of a Community Corrections Officer for the duration of the order.
§ Then there are the treatment and rehabilitation conditions, and they're pretty obvious ones: a requirement that you undergo assessment and treatment, including testing for drug abuse or dependency as directed; assessment and treatment including testing for alcohol abuse or dependency as directed.
§ Then there's a mental health assessment and treatment condition that contains all sorts of other descriptions of the sort of treatment that might be directed, but there is a mental health condition that's attaching here.
§ Then there's the requirement that you participate in programs or courses addressing factors relating to the offending, as directed by the regional manager. So we've got the mandatory conditions and then we've got these tailored conditions. They're mandatory in this sense: you've got to do them. You've got to comply with them. If you don't, then likewise, you'd be in breach of this order.
Breach
61 So if you commit an offence punishable by a term of imprisonment, you breach the order. As an example of that – and I sometimes give it. I'm not suggesting you're going to do it, but if you went out and stole a pack of chewing gum, if it still exists, I don't think there's any Magistrate in their right mind who would send someone to prison for stealing a small item like that. Maybe I'm wrong about that. I don't know. But a charge of theft is punishable by a term of imprisonment, and that would breach this order. Even if a Magistrate gave you a good behaviour bond, you'd still be in breach of this order. Back then, to what these orders involve. Ms Clark will no doubt have a chat to you about this in due course. They're quite onerous, all right? They're probably more onerous for some people than for others. You have the work to do. I don't know what you're going to be asked to do, don't know when you'll be asked to work. What I do know is, whatever they ask you to do, get it done. Don't let that lag. You want to get that work out of the way, when you can, because the last thing you want to do is have this order drawing to an end in two and a half years from now, and two years from now, realise that you haven't done any of the work. That would be a problem for you. So get that done, get that behind you. There's another good reason to do that: you get that done and dusted, and the Community Corrections crowd will appreciate that. They'll see you performing on their order. They'd be much more likely in that sort of setting to give you leave to, you know, go on a holiday or something like that, and to leave the State. So don't let that just lurk there. Get that done as soon as you can.
62 Supervision. Well, likewise: if you're doing well on the order, no doubt they'll reach a different view as to the extent that you need to be supervised. They might drop it back; they might go from once a week to once a month to doing it by phone, all right? I've got no idea. If you're doing well on the order, they're going to respond to that. But whatever they say that you're to do in terms of supervision, you do.
63 Then there are all those treatment and rehabilitation conditions. These are really to deal with some of the issues I'm sure had some role to play in the offending. Alcohol has been an issue; drugs have been an issue. So we have various conditions requiring you to undergo assessment and treatment for drug abuse or alcohol abuse.
64 Also, the mental health assessment and treatment condition. Now, that may be as simple as them taking from you the details of your current treatment team and requiring you to continue doing what you're doing. It might be as simple as that. In terms of the drug abuse and alcohol abuse again, if you're receiving drug and alcohol counselling at the moment, they may have regard to that and take the view that that's appropriate that you just keep doing what you're doing. Or they may give you an additional direction. Again, whatever they say goes. So if they say you are to turn up and you're to be tested, you turn up and be tested. If they tell you to go do a particular course, you go and do it. In terms of testing, don't muck around with that. I've had a lot of people who, in terms of testing, they duck and weave and try and avoid the testing. It's not that unusual for someone to have some sort of relapse, all right? I hope it doesn't happen with you, but maybe it will. Those sorts of people, when you're on order, when you're given a direction to attend for testing, are perhaps more likely to try and duck it and create some excuse, or not turn up. I see it all the time. What I say in advance of that is, don't duck the testing. You're much better to turn up, even providing a dirty sample, than to duck the testing itself. Ducking the testing will be a matter that will be placed before me on a breach. Producing a dirty sample isn't going to cause them to come rushing back to court. It will simply signify to them that they need to actually give you some assistance. So don't think the worst is going to happen if you provide a dirty sample. It doesn't get rushed back for me to deal with you on a breach, whereas if you're not turning up for testing, that's the sort of thing that may well bring you straight back before me.
65 Then there are these other programs or courses addressing factors relating to the offending. I don't know what direction they'll give you in terms of that. Whatever they direct, you do. Don't fall into the trap of thinking that you should be hiding things from your Community Corrections Officer. The best thing for you to do is to have a good relationship with your officer. One will be appointed, and they will be reasonable. If you are, for whatever reason, unable to turn up at a particular appointment or for supervision or for work, or whatever it might be, anything under this order, don't just put your head in the sand. You have their number. You get onto the phone to them on the day, and you contact them, and put them on notice that you're having troubles. They will be very reasonable about that. But if you do what some people do, and that's just not turn up and not make contact, and then try and create some reason after the event as to why you weren't attending, they just won't reward that sort of conduct. So be very reasonable to them. Treat them appropriately, and they will treat you appropriately as well. That's the best advice I can give you in terms of taking steps to avoid bringing this matter back before court.
66 I haven't spelt out the ramifications of breaching this order, and I had better do that. I do that to everyone I see. I’m not anticipating I'm going to see you again. I hope I don't, and you'll be pretty keen never to clap eyes on my face again. But I've seen people back in breach of these orders. Every person will be in the same sort of position as you, someone who came along to court today, as you've come along, not knowing how the day was going to end, not knowing whether you're going to wind up in a prison tonight, or whether you'd be going home. Well, you're going home, all right? So it will be a great sense of relief in your mind about that, presumably. Don't lose sight of the uncertainty that you had prior to me telling you now what I'm telling you, because that's the position you'll be in again if you breach this order. But you will be in a much worse position of course, because you would have breached this order. I would have given you a chance to avoid going to prison. The Crown argued that I'm required to send you to prison. I don't agree. I'm giving you this opportunity. But it's one opportunity. Don't have that expectation that you can come back in breach of this order and say ‘look, I'll have another one of those orders, please, if you wouldn't mind.’ So treat this as your one opportunity, and comply. If at any stage your performance on the order starts to wane, just remind yourself of the reality, of what happens if you breach this order. You're brought back to Court. If you breach this order in any way, by any of the mandatory terms being breached or by conditions being breached, that itself is a criminal offence. It's punishable by – I think it's a three-month term of imprisonment. But that's not the real sting. The sting is this: you don't just get brought back to a Court, you get brought back in front of me. It's not just in front of another judge. I'll come with the book where I've made notes today. I'll come with a copy of the sentence. I'll have the video of what I'm saying to you now, so that I understand what I told you, and that you understood what I told you.
67 Understand this: there are very limited options open to a Court when dealing with someone who has breached one of those orders. By far the most common option exercised is to cancel the order. But that, on the face of it, sounds quite attractive. That's not much of a penalty to come back in breach, and have it cancelled. But the trouble is, if the order is cancelled, the Court then engages in a re-sentencing exercise. You're back in the dock, in a far worse position than you're in today, because I'd be then re-sentencing you in relation to this crime, in circumstances where I'd extended to you an opportunity to avoid going to prison, and you hadn't taken it. So you should work – of course I would listen to everything that was said on your behalf. I'd have to make an assessment of the nature of the breach, and of course, the nature of your compliance with the order. Each of those things are important. So I can't say exactly what I'd do if I see you in breach, but really, you should work on the theory that if you breach this order and you're brought back before me, I'll send you to prison, which is of course what the Crown is saying I should have done here today. Well, I'm not doing it. I'm giving you an opportunity to avoid that. But as I say, don't think that you can come along in six or 12, 18 months from now and say, look, I'd just like another go at that order, please. Don't work on the theory that that's likely to be granted. Work on the theory that this is your last chance. You take this chance, grab it with both hands, and comply with the order, and we'll never see each other again. But if we do, it will be because you've breached this order. If you breach it, you're putting yourself in a diabolical position, the very position that you were in prior to coming to Court today, but with a much greater certainty as to the unpleasant outcome that might flow.
68 Let me just see if there's anything else I need to say to you at the moment, in terms of explanation. I don't think there is. Ms Clark, I'll hand it to you. Both of you look at it, and make sure it mirrors my stated intention. Did you want to speak to your client about that? Do you want to make sure she is giving her informed consent – go down anyway and - - -
69 MS CLARK: I will.
70 HIS HONOUR: If you just stand there, Ms Ropitini. Do you confirm, then, that you have consented to this Community Corrections Order?
71 OFFENDER: Yeah, that's correct.
72 HIS HONOUR: And you've signed the order, understanding the effect and the conditions of this order? You consent to it being made?
73 OFFENDER: Yes.
74 HIS HONOUR: Yes. All right. Grab a seat then, for a second.
75 OFFENDER: Thank you, Your Honour.
76 HIS HONOUR: All right. There's an application for a compensation order. That order is consented to by Ms Clark on behalf of Ms Ropitini. I'm satisfied that as a result of the offence of arson having been committed, the Director of Housing has suffered damage to property, assessed as being at that quantum of $124,080. I make an order for compensation under the relevant provisions of the Sentencing Act for that amount
77 MR McKENRY: Court pleases.
78 MS CLARK: Court pleases.
79 HIS HONOUR: Finally, I've told you that I've taken into account your guilty plea and reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of this offence following a trial before a jury, I would have convicted and sentenced you to two and a half years' imprisonment. I would have fixed a non‑parole period, in that event, of 18 months by way of a non-parole period.
80 So you're getting a significant benefit by virtue of your guilty plea, obviously enough. Finally, then, as I've said, then, there are people who breach these orders. I hope you're not one of them. So many of those who breach them come back and say, I'd like another order. Most of those leave in a different direction, out the door to a prison cell. Don't put yourself in that position. You don't need to, and you shouldn't want to. You avoided a term of imprisonment today. You've probably been dreading this day for quite some time, whether it was in July of last year or November of last year or today, for that matter. With no certainty as to what lay beyond this date. Well, it's amazing how people who have that experience then come to court, ask for an order such as this get one, and then leave court, and it's as though the court case is finished. They forget about their obligations on the order; they put greater priorities on other things, and before you know it, they've breached it, put themselves back in a invidious position, where they could have avoided a term of imprisonment and did, but then took steps to ensure that that good work was undone. Don't put yourself in that position. You have been given this order. Comply with it. Comply with it, and you won't need to come back to court, and we won't see each other again, and you won't expose yourself to the risk of being imprisoned upon breach. So that's all I can really advise you to do. Comply with the order. If you do, two and a half years down the track, it will expire. Two and a half years down the track, if you've complied, you'll be drug-free, offence‑free, probably getting treatment or having had treatment for some of the issues that have been troubling you, and you'd be in a much better position. So hopefully, that's the track that you can walk down. Let me just see if there are any other orders I need to make. Anything else, from your perspective?
81 MR McKENRY: No, Your Honour.
82 HIS HONOUR: Ms Clark, anything else from you?
83 MS CLARK: No. Nothing else from me.
84 HIS HONOUR: Look, I'll just – while she's there, I've got some matters I've got to raise with the prosecutor. In fact, I don't need you there. It's just the remaining matters on the circuit next week. So I'm happy enough for you to be excused, and for your client to be excused. You'll get a copy of that order. I'm sure of that. So you can be excused, and you can come out of the dock, Ms Ropitini. You're free to head off. I'll just keep the prosecutor there for a little moment for some other matters in the circuit.
85 MS CLARK: Your Honour pleases.
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