Director of Public Prosecutions v Russell

[2021] VCC 588

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00018

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT RUSSELL

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF SENTENCE:	11 May 2021
CASE MAY BE CITED AS:	DPP v Russell
MEDIUM NEUTRAL CITATION:	[2021] VCC 588

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Contravention Community Correction Order

Sentence:Contravention proven -  Original order is cancelled and re-sentenced on the original charges to a total effective sentence of 7 months imprisonment with 215 days pre-sentence detention.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Henderson	Office of Public Prosecutions
For the Accused	Mr J. Lowy	Docherty Legal

HIS HONOUR:

1Mr Russell was sentenced by me on 15 February 2019.  As is obvious from the sentencing remarks, this was a particularly serious charge.  It involved the use of a knife.  Mr Russell has a background of drug addiction, distress within the home and a difficult background which I took into account at the time and as a result of the principles set out in R v Mills, given his age, I determined the appropriate sentence, pursuant to s.41 as it then was, was to impose a sentence of three months on top of the 118 days pre-sentence detention Mr Russell had served, and then order him upon being released to serve a two-year community correction order.

2Essentially insofar as that was concerned, I take it, it is a formal plea to both matters, is it not, just to clarify, Mr Lowy?

3MR LOWY:  Yes, Your Honour.

4HIS HONOUR:  To both the breach, well, it is really only the breach and then I have to act under s.83AS.

5MR LOWY:  It is admitted.

6HIS HONOUR:  Yes.  What happened next was unfortunately within seven months, Mr Russell had left the state resulting in essentially very limited performance by way of the original community correction order, which has led to the report from the Community Correctional Services officers to note this:

'Mr Russell’s compliance with his CCO-IMP was initially satisfactory, however, his motivation dropped and within six months, his engagement was minimal and problematic.  It is acknowledged that Mr Russell’s time in Victoria appeared to be affected by responsivity issues, with him becoming homeless on two occasions. Mr Russell ultimately relocated back to Queensland where he continued to be managed by Queensland Probation and Parole Service.’ 

7Unfortunately poor compliance was demonstrated again.

8In addition to that, as it has just been pointed out, Mr Russell was convicted of two crimes, the first in March 2020 when he was given a six-month suspended sentence for a period of 18 months, then unfortunately within that period, albeit that was a driving charge and I am told that it came about from a misunderstanding in regard to his uncle's car.

9Then within that period of 18 months, Mr Russell then committed a further theft charge, minor in itself.  The date of that offending was sometime in March 2020, however, that triggered the end of the suspended sentence and as it has just been put by Mr Lowy, he then served a period of eight months, and was finally released in mid-April 2021.

10Clearly those matters need to be taken into account.  However, in the end what is important to stress is that when a person is given a community correction order as a combined order, the whole intent is to lead to their reformation.  Unfortunately, because of a failure to adhere to the conditions and the commission of two further offences, clearly there was no option but to plead as has been done on Mr Russell's behalf today, to a breach of s.83AD, and that is breaching the community correction order.

11Insofar as the consequences of that under s.83AS, I have a number of options.  The option put by the Community Correction Services, as set out in the report, is that I cancel the order.

12The intent despite the seriousness of this matter is such that I will impose an additional minimal period, as I say, despite the seriousness of the original sentence, to recognise the breach and the failure to comply. I cancel the community correction order and I impose a period of imprisonment to be served by Mr Russell of seven months.

13What is the pre-sentence detention now?  It was 118, was it not?

14MR HENDERSON:  I beg your pardon, Your Honour.  It was 207 and there is now further eight days; 215 obviously in total.

15HIS HONOUR:  All right.  So that is going to mean that in the end with the sentence I impose there is not much more for him to serve but I intend to cancel the community correction order, impose a sentence of seven months for the original charge, by that I am essentially as to the period of jail that Mr Russell has already served and, in taking into account, as I am required, albeit he did not comply very well, the fact that he was on a community correction order and to a degree that he did.  I take that into account and I impose as a resentence the period of seven months.

16That in effect is an extra four months on the original three.  However, the pre-sentence detention is 215 days which comes out to what?  By way of months.  Not far off, is it?

17MR LOWY:  Just under ‑ ‑ ‑

18MR HENDERSON:  7.16 months.

19HIS HONOUR:  So effectively that will mean that Mr Russell will be released relatively shortly, if not immediately.

20In regard to s.6AAA, I said initially in my sentencing remarks that had he not pleaded guilty, the sentence imposed would have been a sentence of 12 months' gaol and without parole.  The sentence I imposed today is a sentence of seven months and pursuant to s.11(2), I do not make a parole order.

21However, under s.18, I take into account the fact that he has now served 215 days.  Pursuant to s.18, that must be deemed as service of this sentence and, as I say, that is going to mean, Mr Russell, no doubt Mr Lowy will explain the matters to you, but if you are not released immediately, it will not be far.  Very important for you to make sure no drugs, no more offending, all right?

22OFFENDER:  So, when am I - what's going on?

23HIS HONOUR:  Mr Lowy will explain it to you but is ‑ ‑ ‑

24MR LOWY:  I will have a chat with you, Scott.

25HIS HONOUR:  Essentially you are pretty close to release, all right?

26MR LOWY:  Thank you, Your Honour.

27HIS HONOUR:  Mr Lowy will explain it to you when I leave.

28OFFENDER:  So what?  You can't give me a day?

29HIS HONOUR:  What?

30MR LOWY:  Hang on, Scott.  Scott, hang on.

31HIS HONOUR:  Yes, sorry.  I should pronounce on the breach charge, one month as well but that will be concurrent.

32MR LOWY:  Concurrent.  Yes.

33MR HENDERSON:  As Your Honour pleases.

34HIS HONOUR:  Thank you both for your assistance.

35MR LOWY:  Thank you, Your Honour.

36HIS HONOUR:  Good luck, Mr Russell.

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