Director of Public Prosecutions v Ross

[2016] VCC 1767

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00256

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEAU ROSS

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Warrnambool
DATE OF HEARING:	17 November 2016
DATE OF SENTENCE:	23 November 2016
CASE MAY BE CITED AS:	DPP v Ross
MEDIUM NEUTRAL CITATION:	[2016] VCC 1767

REASONS FOR SENTENCE
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Subject:             1                   Contravention of Community Corrections Order - Re-offending.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MS C. PEZZIMENTI
For the Accused	MR S. TOVEY

HIS HONOUR:

1Beau Ross, you appear before me again in answer to a summons issued by a member of the Department of corrections charging you with breaching the conditions of a community corrections order without reasonable excuse.  The summons came on for hearing before me on 17 November 2016.  You appeared via video link from the Port Phillip Prison where you are completing a term of imprisonment of nine months for other matters including a term of one month for breach of another community corrections order.

2Your counsel, Mr Tovey, admitted on your behalf that you had failed to comply with the conditions of a community corrections order imposed by me upon you on the 31st of July 2015.  The summons has attached to it a schedule which shows that you failed to comply with a condition that you attend for unpaid community work on seven occasions without reasonable excuse.  Further, you failed to attend for supervision on seven occasions without reasonable excuse and you breached the terms of the community corrections order by the commission of further offences.

3You were dealt with at the Frankston Magistrates' Court on the 2nd of March 2016 for a number of offences committed between the 1st of September 2015 and the 16th of February 2016.  Those offences included trafficking in methamphetamine on two occasions, possessing drugs and a number of dishonesty offences.

4You were sentenced to a total effective term of imprisonment of nine months and you are due for release on or about the 29th of November 2016, subject of course to any orders I will make.

5When you appeared before me on the 31st of July 2015, you pleaded guilty to the charge of possession of a drug of dependence (methamphetamine) and a charge of traffic a drug of dependence (butanediol).  At that time and now you are a drug addict.  After hearing a plea on your behalf I gave you the opportunity to rehabilitate yourself in the community.  I did so because at that time you were aged about 26 and you had limited prior convictions dating back to 2011.  
I imposed conditions designed to assist you with your rehabilitation.

6One of the conditions that I imposed was that you attend upon me for judicial monitoring.  Your first monitoring was on the 30th of October 2015 and a report provided to me on that occasion showed that even in the early stages of the community corrections order your compliance with the conditions was unsatisfactory.  I warned you that was not good enough and you have to comply strictly with the conditions.  Recognising that one must be patient when attempting to rehabilitate a drug addict, I took no further action.

7A further report prepared in anticipation of your further judicial monitoring in February showed that you had demonstrated limited commitment to the community corrections order that I placed you on.  It now transpires that at the time of the preparation of the report in January 2016, you were reoffending.

8When I sentenced you, you were at that time subject to a community corrections order imposed in the Magistrates' Court.

9It can be seen that you have been given a number of opportunities to rehabilitate yourself but because you are addicted to drugs you have been unable to do so.

10In dealing with you on the summons I have the power to again release you on a community corrections order or, take no action or, if I find the charges proved to cancel the community corrections order that I made and re-sentence you on the original charges.  There is no dispute that I should find the charges in the summons proven and I do so.  It was not suggested that I should make a further community corrections order or that I should take no action.  I have decided that the community corrections order that I made on the 31st of July 2015 should be cancelled and that I should re-sentence you for the offences that you then faced.

11The offences that you appeared before me for occurred in June 2014 when you were apprehended by police in Frankston accompanied by a woman who was also a drug addict.  The full circumstances of your offending are referred to in my sentencing remarks and in the prosecution summary.  It is not necessary that I repeat what I have previously said about your offending. Although you were found in possession of a quantity of the drug butanediol that exceeded the threshold for a commercial quantity the prosecution charged you with trafficking simpliciter.

12The term of imprisonment that you are presently serving is the first time that you have been in prison.  You have served some time in the Melbourne Remand Centre under difficult conditions and you have been at Fulham.  You are now 27 years of age and you have qualifications in landscaping and you have a job to go to when released.  You have good family support.  In particular your mother has been in court on each occasion that you have appeared before me and your father would have been in court last Thursday but for pressing work commitments.

13In passing sentence I must take into account the extent to which you have complied with the community corrections order that I made.  You have completed a little over 20 per cent of the unpaid community work component.

14Your counsel asked me to impose a sentence which gives you some certainty in that it will provide you with something to aim for.  I can see the sense in that but I think you will benefit from the assistance of the Parole Board in your transition from imprisonment back into the community.  I therefore propose to sentence you to a term of imprisonment of more than 12 months but you will have some time on parole.

15In passing sentence I am mindful of what the maximum penalty is.  For the charge of trafficking in a drug of dependence the maximum penalty is 15 years' imprisonment and the maximum penalty for possession of a drug of dependence which is not for a trafficking purpose is 30 penalty units or imprisonment for one year or both.

16The orders that I will make are as follows:

17The community corrections order that I made on the 31st of July 2015 is cancelled.

18On the charge of possession of a drug of dependence you are convicted and sentenced to a term of imprisonment of one week.

19On the charge of trafficking in a drug of dependence, butanediol, you are convicted and sentenced to a term of imprisonment of 14 months.

20On the charge in the summons of failing to comply with the conditions of a community corrections order without reasonable excuse, you are convicted and sentenced to a term of imprisonment of one month which is to be served cumulatively upon the term of imprisonment imposed on the trafficking charge making a total effective term of imprisonment of 15 months.

21I fix a non-parole period of eight months.

22For the purposes of s.6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective term of imprisonment of two years and I would have fixed a non-parole period of 15 months.

23Are there any questions arising out of that?

24MR TOVEY:  As Your Honour pleases.

25MS PEZZIMENTI:  No, Your Honour.

26MR TOVEY:  Your Honour, Mr Tovey in Melbourne.  There's just one matter I attempt to assist Your Honour in clarifying, with respect to the breaching offences that were Mr Ross was dealt with at the Frankston Magistrates' Court, on the last occasion we were before the court there was an updated report on the contravention.  The charges outlined as breaching the order were substantially amended from where they were previously and they did not include - end up including matters of trafficking in the updated charges that he actually ended up pleading guilty to.

27HIS HONOUR:  They did - they did not or they did?

28MR TOVEY:  They did not.

29HIS HONOUR:  They did not.  Very well, thank you for clarifying that.

30MR TOVEY:  As Your Honour pleases.

31HIS HONOUR:  Any other matters?

32MR TOVEY:  No, Your Honour.

33HIS HONOUR:  Very well.  Thank you all.  Thank you, Mr Ross.

34ACCUSED:  So how long did I get?  Sorry.

35MR TOVEY:  Can you hear us both?

36ACCUSED:  Yeah.

37MR TOVEY:  So you will eligible for earliest release is eight months.

38ACCUSED:  In eight months' time?

39MR TOVEY:  All right.

40ACCUSED:  Yes so I got eight - I got 14 months, did I?

41MR TOVEY:  Fifteen months total, eight months before - so it will be six months on parole.

42ACCUSED:  Yeah, all right.  Thank you.

43MR TOVEY:  All right, mate.  Speak to you soon.

44ACCUSED:  Yeah all right.  Um ‑ ‑ ‑

45MR TOVEY:  Any other questions arising?

46ACCUSED:  No.  No, no, no, just um - all I want to say is "I love you Mum and Amber.  Thanks for coming and I'll ring youse later tonight".

47UNKNOWN SPEAKER:  Love you too.

48UNKNOWN SPEAKER:  I love you.

49MR TOVEY:  All right, thanks Beau.

50ACCUSED:  See ya.

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