Director of Public Prosecutions v Ryan
[2021] VCC 1551
•12 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01195
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRISTAN RYAN |
---
JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 September 2021 | |
DATE OF SENTENCE: | 12 October 2021 | |
CASE MAY BE CITED AS: | DPP V Ryan | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1551 | |
REASONS FOR SENTENCE
---
Subject:Criminal law – sentence
Catchwords: Guilty plea – charges of persistent contravention of family violence intervention order, aggravated burglary, criminal damage, theft of motor vehicle and other offences – young offender – background of childhood trauma and disadvantage – application of Bugmy principles – complicit in aggravated burglary but less significant role to the principal offenders – borderline cognitive functioning – ADHD and PTSD – rehabilitation remains a prominent sentencing consideration – suitable for residential treatment at Wulgunggo Ngalu Learning Place – combined sentence of imprisonment and community correction order
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v. The Queen [2021] VSCA 169; Bugmy v. The Queen (2013) 249 CLR 571; R v. Verdins (2007) 16 VR 269; R v. Mills (1998) 4 VR 235
Sentence: Total effective sentence of 18 months’ imprisonment, with a community correction order made for two years to commence upon release
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Caruso (plea and sentence) | Office of Public Prosecutions Victoria |
| For the Accused | Mr J. Portelli (plea and sentence) | James Dowsley & Associates |
HER HONOUR:
1Tristan Ryan, you have pleaded guilty to the following six offences:
(a)
persistent contravention of a family violence intervention order between
31 October 2020 and 1 November 2020 contrary to s125A of the Family Violence Protection Act 2008 (Charge 1), the maximum penalty for which is five years' imprisonment;
(b) criminal damage contrary to s197(1) of the Crimes Act 1958 ('the Act') (Charge 2), the maximum penalty for which is 10 years' imprisonment;
(c) aggravated burglary contrary to s77 of the Act (Charge 3), the maximum penalty for which is 25 years' imprisonment;
(d) theft of a motor vehicle contrary to s74(1) of the Act (Charge 4), the maximum penalty for which is 10 years' imprisonment;
(e) handling stolen goods contrary to s88(1) of the Act (Charge 5), the maximum penalty for which is 15 years' imprisonment; and
(f) attempted theft from a motor vehicle contrary to s321M and s74(1) of the Act (Charge 6), the maximum penalty for which is five years' imprisonment.
2
The offending that is subject to Charges 2 through to 6 occurred between
1 November 2020 and 18 November 2020. You were born on 17 December 2001 and were between the ages 18 and 19 at the time of the offending. Your offending occurred on 1 November 2020, in the company of two other accused, however they have not been dealt with as the charges brought against one co-accused were subsequently withdrawn by the prosecution and the other co-accused has never been identified.
The offending
3The circumstances of your offending are set out in the prosecution opening for plea dated 14 September 2021 and is the agreed basis upon which you are to be sentenced.
4At the time of your offending, your mother was living in the bungalow at the rear of an address in Collison Road, Cranbourne East. The victim of the aggravated burglary, Alan Duffield, lived in the main house at that address. Russell Reid also lived in a caravan at the rear of the property with his partner, Stacey Beck. Melanie Parr is the partner of Alan Duffield and lived at an address in Starlight Drive, Cranbourne East together with her children. You had previously lived at the property and knew Mr Duffield, Ms Parr, and Mr Reid.
5On 1 April 2020, a family violence intervention order ('FVIO') was made by the Frankston Magistrates' Court naming you as the respondent, and your mother as the person protected by that order. The family intervention order prohibited you from contacting or communicating with your mother by any means, approaching or remaining within 5 metres of her or going to or remaining within 200 metres of the Collison Road property where she lived.
6Charge 1 – persistent contravention of a family violence intervention order relates to a series of phone calls and text messages exchanged between you and your mother on 31 October 2020, although the exact nature of the contact is unknown; attending at the Collison Road address on 31 October 2020 at approximately 7.40 pm by car, and parking in the driveway to meet with your mother in her bungalow; exchanging a further series of phone calls and text messages with your mother, culminating in her hanging up on you; and attending at the Collison Road property again on 1 November 2020 at approximately 6.18 am where you confronted your mother in her bungalow before leaving shortly thereafter.
7In the lead up to the aggravated burglary, you and the two co-offenders drove past the Collison Road property at 10.22 am on 1 November 2020 in a silver Ford Focus but did not stop. You then drove to the Starlight Drive address where Ms Parr lived with her children. After driving around the block, the car pulled up and stopped nearby. You were seated in the rear of the car with the window wound down. As the Ford Focus drove past, you threw a rock from the vehicle, smashing the front window. This act gives rise to Charge 2 – criminal damage. Ms Parr was at home and at the rear of the property with her children at the time of the offence. They did not hear the window smash.
8Then, at approximately 10.41 am, you and the co-offenders returned to the Collison Road property in the Ford Focus. Mr Duffield was at home in the main house, while Mr Reid and Ms Beck were in their caravan at the rear of the property. Mr Duffield saw the vehicle pull into the driveway and park. He noticed two of the occupants of the vehicle were wearing masks over their faces. The driver got out of the vehicle and pointed a sawn-off shotgun directly at him over the roof of the vehicle while yelling, 'Give me the safe'. The passenger exited the front of the vehicle armed with a machete.
9You remained in the rear of the vehicle. You were aware of the plan to steal firearms believed to be in the possession of Mr Duffield. You were also aware that your co-offenders had weapons.
10
Mr Duffield slammed the front door shut and ran to the back to alert Mr Reid and Ms Beck in the caravan. Simultaneously, your two co-offenders forced entry to the property by kicking in the front door. They went directly to Mr Duffield's bedroom as they believed the firearms were under his bed. Mr Duffield, together with
Mr Reid, re-entered the main house and saw the two co-offenders in his bedroom. One of the offenders was carrying a box he had taken from under Mr Duffield's bed. The box contained assorted pornographic DVD's only. You were not involved in the threat or confrontation with the victims, and are not charged with that offending.
11
Your two co-offenders ran back to the vehicle. One of them turned and raised the firearm in one hand and discharged a shot which hit the front door where
Mr Duffield was standing. Mr Duffield was struck by wood fragments when the door splintered. The prosecution accepts you were not complicit in the discharge of the firearm, but submits it is relevant to the overall circumstances of the offending.
12Mr Duffield returned inside the property to check on Ms Beck. He then called 000 at approximately 10.52 am. As he was doing this, Mr Beck contacted Ms Parr, who then noticed the damage to her front window. Although all the victims were extremely distressed by the offending, it is fortunate no one was physically injured.
13
Police attended and commenced their investigation. CCTV footage obtained from the area shows someone lying in the rear of the vehicle at the time of the aggravated burglary. The prosecution accepts this was you. Ballistics examination later confirmed the firearm discharged, a .410 gauge shotgun cartridge. Your mother was unable to contact you as you stopped using your mobile phone after the offending. DNA analysis of the rock thrown through
Ms Parr's window forensically linked you to the criminal damage to her property.
14On 18 November 2020, at approximately 2.30 am, you and another male attended an address in Mickleham Drive, Cranbourne North, in a stolen white VW Touareg displaying stolen registration plates. At this location, you both forced entry to a vehicle owned by victim, Kailen Constantine, however you did not steal any items. This conduct gives rise to Charge 6 – attempted theft from motor vehicle. The owner of the vehicle woke from the noise and saw you get into the passenger seat of the stolen VW Touareg. Mr Constantine jumped into his car and followed your vehicle, catching up to you and the other male who was driving the stolen VW.
15As he was following your vehicle, Mr Constantine saw you approach a marked police car in Thompsons Road. Upon observing the police, you and the driver attempted to evade police until, at the intersection of Narre Warren Road and Thompson Road, police deployed devices to deflate the tyres of the vehicle. The vehicle continued to be driven at speed for another 3 kilometres, until coming to a stop. You left the front passenger seat and ran to nearby bushes in an attempt to evade police but were located shortly after. Police then arrested you without any issue. The other male was subsequently located and arrested.
16The VW Touareg had been stolen from an address in Chadstone between 12 and 13 November 2020 and was valued at approximately $80,000. Your use of the stolen vehicle on 18 November 2020 gives rise to Charge 4 – theft of motor vehicle.
17The stolen number plates were confirmed as belonging to another stolen vehicle that had been located by police on 21 August 2020 with the registration plates still missing. This gives rise to Charge 5 – the offence of retaining stolen goods.
18Upon being arrested, you appeared tired, and drug affected. After a period of two hours, you were interviewed by police, mainly providing 'no comment' to questions asked of you, as is your right. You did, however, state that you knew nothing of the aggravated burglary until you were told by your mother and denied attending the Collison Road property on 1 November. You told police you were in bed at the time of the offence.
19
This matter resolved to a plea on an agreed basis after evidence was given at a pre-trial hearing by your uncle, Damion Ryan. Mr Ryan gave evidence of a conversation with you where you admitted to a plan to obtain firearms from
Mr Duffield's home. You told Damion Ryan 'bad people' were involved and that guns had been fired, but said you stayed in the car. You told Mr Ryan that
Mr Duffield was 'not meant to be home' at the time.
Offence gravity and victim impact
20
This is a serious example of an aggravated burglary, which is itself a serious offence as marked by the maximum penalty of 25 years' imprisonment. There are a number of features that make this the offending objectively serious, including that the other two co-offenders, both wearing masks to disguise their appearance, were armed. Further, that you were aware they were both armed; one with a sawn-off firearm, the other with a machete. Both entered the home of Mr Duffield, where he is entitled to be safe, as were Mr Reid and his partner, Ms Beck. It was your joint intention to enter the premises to steal the firearms you believed were in
Mr Duffield's home. Although you did not enter the premises and remained in the car, the law regards you as complicit in the offending for your involvement in the offending.
21The danger inherent in a person carrying a firearm in such circumstances materialised in this case when your co-accused fired the sawn-off handgun in the direction of Mr Duffield. It is not part of the prosecution case against you that you were complicit in the act of discharging the firearm, but this is a part of the context of the offending for which you are to be sentenced.
22Further, there was a degree of pre-mediation and planning associated with the offending as evidenced by the occasions you and the co-accused had driven past the property prior to the offending, and of attending Ms Parr's property earlier that day, and throwing a rock through her front window. The victims were all known to you.
23This was a terrifying ordeal for the victims. This fact is reflected in the victim impact statements read in court during your plea hearing. Mr Duffield says that the offending took an emotional and financial toll. He says the trauma impacted on his ability to sleep. The stress of the incident left him 'on edge' every time a car pulls up at the front of his home. He attributes the trauma of the incident to the breakdown of his relationship and feels a sense of betrayal given he took both you and your mother into his home in a time of need. The victim impact statements of Mr Reid and Ms Beck also speak of the significant impact of the offending on their sense of safety and, in particular, the emotional impact of the events on their children.
24Similarly, Ms Parr's victim impact statement articulates the impact of your offending on her children and their sense of safety in their home. She says that they too feel frightened when they hear certain noises, or a car idling at the front of their house, and suffer from nightmares and anxiety attacks.
25I have read each of the victim impact statements in detail and taken them into account in sentencing you.
26Your moral culpability for the offending, even noting that the role you played was less significant than that played by the co-offenders in the aggravated burglary is significant. But it is also informed by your personal background and mental health issues, to which I now turn.
Personal history and background
27Your family were originally from Wagga Wagga in New South Wales. Your parents, both Aboriginal, separated when you were 12 months old. You were born prematurely on 17 December 2001. Your mother reports that her complicated pregnancy leading to pre-term labour at 22 weeks, and that this was due to family violence.
28Following your parents separation, you did not met your father until you were about eight years old and had only limited contact with him before he passed away last year. You have an older brother, two younger half-brothers, and two younger half-sisters, who you have never met. You remain close to your older brother.
29Much of your personal history is set out in the ARBIAS report of Dr Sara Fratti, a senior clinical neuropsychologist, dated 20 March 2019 that was tendered in your plea hearing.
30Dr Fratti states that you 'experienced significant trauma and neglect' within your family, being exposed to domestic violence, alcohol, and substance abuse from a very early age. In Dr Fratti's opinion, this had 'a profound impact on your social and cognitive development'.
31
Child protection authorities were involved with your family from 2005, when you were approximately four years old, resulting in 21 interim and long-term child protection orders. Based on information contained in a departmental report,
Dr Fratti records that the areas of concern for child protection related to your mother's involvement in the criminal justice system and your 'exposure to family violence, substance abuse, absconding behaviour, violence towards animals and sexualised behaviours'. During this period, you were placed in a number of foster care placements, and then from your early teens, in multiple residential care units.
32Dr Fratti reports that your education was significantly disrupted, and from early primary school you displayed violent behaviours and 'severe emotional dysregulation'. At the age of six, you were diagnosed with an ‘oppositional defiant disorder’ in the context of your dysfunctional relationship with your mother and siblings. In 2013, you were diagnosed with ADHD by a paediatrician, Dr Richard McNeil, and prescribed medication. However, you did not comply with the medication regime. In Year 7, you were expelled from Pakenham High School for violent and threatening behaviours towards a teacher. For a short period you attended Berry Street School, a school established for children with a background of childhood trauma, but you soon disengaged from school altogether.
33You worked for a short period as a stonemason, but this ceased due to your increasing drug use and your association with negative peers. You first began abusing alcohol and cannabis at the age of 13. Between the age of 13 and 15 years, you reported to Dr Fratti that you were using up to 3 grams of cannabis daily. You then experimented with cocaine, ecstasy, and LSD before progressing to methylamphetamine or ice use at the age of 16. From that time, you have developed a significant addiction to methylamphetamine, and were smoking ice on a regular basis in the days leading up to the offending.
34I accept the submission made by Mr Portelli on your behalf that you were exposed to, and then introduced to drugs at a very young age, and that addiction to drugs, particularly ice, is inextricably linked to your offending behaviour.
35Once you turned 18, you immediately ceased receiving any support and care from Child Protection Services. After your release from custody, the Victorian Aboriginal Child Care Agency ('VACCA') arranged for you to reside temporarily in a motel and you then moved to Corryong to live with your uncle. You were subject to the community correction order at this time and continued to receive support from VACCA. However, after your uncle was arrested and remanded in May 2020, you were left with no option but to return to Melbourne where you were effectively homeless. You attempted to have your CCO transferred to Queensland, where you father lived, but then in July 2020 your father was killed in a motor vehicle accident. You were remanded in custody in August 2020 and then sentenced to six days' imprisonment.
36Your criminal history commenced at a very young age. You first appeared in the Children's Court on 5 December 2014, then aged 12, charged with burglary, criminal damage, threat to inflict serious injury and contravening family violence intervention orders. You were sentenced to supervisory orders in the Children's Court in July, September, and November 2018, many of which were breached. In October 2019, you were sentenced to your first period in youth detention. Your offending over this period included dishonesty, driving and violence offences in addition to contraventions of intervention orders.
37On 1 April 2020 you were sentenced to an 18 month community correction order for offending that included aggravated burglary, notably, thefts and threats to inflict serious injury. This order was confirmed on 6 August 2020 after being contravened by further offending, including an attempted robbery and dealing with property suspected of being proceeds of crime, for which you received the sentence of six days' imprisonment, after serving 20 days on remand.
38Concerningly, you were subject to the community correction order confirmed by the Dandenong Magistrates' Court on 6 August 2020 at the time of this offending.
Mental health
39You have been diagnosed with a complex array of mental health conditions. As reported by Dr Fratti, you were diagnosed with an oppositional defiant disorder in 2008. You were assessed by Dr Aaron Cunningham, psychologist, for the purposes of court proceedings in November 2018, and again in February 2020. In Dr Cunningham's report dated 16 November 2018, he assessed you with a presentation consistent with Autism Spectrum Disorder ('ASD'), together with a Post-Traumatic Stress Disorder ('PTSD'). As to that disorder, Dr Cunningham states you were 'predisposed to the development of this disorder by the lack of emotional connection and safety in [his] childhood development' and says your trauma stems from your exposure to violence during your childhood.
40In his report dated 10 February 2020, Dr Cunningham states that you continue to present with significant emotional and psychological immaturity and behave in a reckless and impulsive way in the community. He confirmed that you continue to meet the criteria for a post-traumatic stress disorder and ASD. As a result, you struggle to regulate your emotional states and are 'prone to acting out aggressively'.
41Dr Fratti in her report dated 11 April 2019, and with the benefit of Dr Cunningham's 2018 report, disagreed with the diagnosis of ASD. Dr Fratti explained this conclusion, stating that 'psychometric discrepancy' and self-reported symptoms alone do not support this diagnosis. Dr Fratti assessed your cognitive capacity as falling within a borderline to low-average range, noting that these deficits on testing are 'likely due to the combination of his ADHD symptomatology and longstanding learning difficulties due to his limited educational attainment'. As to any link between your impaired mental functioning and your offending behaviours (at that time), Dr Fratti stated:
'Given his diagnosis of ADHD, when compared to his peers, Tristan's impulsivity and impatience (especially in the context of non-compliance with medications) will likely bring him to act without thinking, with the consequence of poor choices around immediate problem solving and situational planning.'
42Although Dr Fratti assesses your risk of recidivism and 'likely risk of institutionalisation' to be extremely high, in Dr Fratti's opinion this risk will be lessened if your substance abuse issues are addressed and monitored. On a positive note, Dr Fratti considers you have the cognitive capacity to understand the consequences of your actions and to learn from your mistakes.
43Whilst the conflicting expert opinion prevents me from concluding that you met a confirmed diagnosis for an autism spectrum disorder, I am satisfied that your ADHD and PTSD, combined with your borderline to low-average cognitive functioning, are all relevant in mitigation of sentence to some degree. Your counsel, Mr Portelli did not submit that Verdins principles apply to reduce your moral culpability and there is no basis for me to make such a finding on the material before me.
Other relevant sentencing considerations
44I turn now to address other relevant sentencing considerations. In submissions during your plea hearing, both counsel highlighted matters they submit should be given weight in the sentence I impose for this offending.
Guilty plea
45First and significantly is your plea of guilty. It is accepted by the prosecution that whilst your plea was not entered at the earliest opportunity, it is still an early plea. It has significant utilitarian benefit and spared the victims the ordeal of giving evidence in court, and the community the time and expense of running a trial. The value of your plea is heightened against a COVID-19 background, where an early guilty plea carries even greater weight in mitigation than a similar plea entered in other times[1]. The plea is also indicative of remorse.
[1]Worboyes v The Queen [2021] VSCA 169, [35]-[39]
46Your guilty plea, in all the circumstances, entitles you to a significant sentencing discount.
Application of Bugmy principles
47In the decision of Bugmy, the High Court explained the relevance of childhood deprivation to a sentencing decision. As the Court stated[2]:
'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise a person's capacity to mature and to learn from experience. It is a feature of a person's make-up and remains relevant to the determination of the appropriate sentence.'
[2]Bugmy v the Queen (2013) 249 CLR 571 (Bugmy)
48It is recognised that the impact of childhood deprivation, abuse and other social disadvantage do not dimmish with the passage of time and are likely to have profound and lasting consequences[3].
[3]Murrah v the Queen [2014] VSCA 119, [16]
49I consider your background of childhood deprivation and neglect, arising from your early exposure to family violence, alcohol, and substance abuse, culminating in your placement in foster and residential care placements is relevant to the sentence I impose. Dr Cunningham concluded that you were predisposed to post-traumatic stress disorder due to a lack of emotional connection and safety in your formative years. l accept that this background of significant disadvantage attracts the Bugmy principles and that your moral culpability for these offences is less than that of an offender whose formative years have not been marred in this way[4].
[4]Bugmy, [40f]
Youth
50You are a young offender; being only 18 to 19 years of age at the time of this offending. The law recognises your youth is relevant to sentencing in a number of ways[5]. First, youthful offenders are generally more immature and prone to impulsive decision making. Secondly, the importance of rehabilitation assumes greater significance for younger offenders. Thirdly, the benchmark for offending warranting adult imprisonment is quite high for young offenders, particularly first time offenders.
[5]R v Mills (1998) 4 VR 235
51I also note the assessment of Dr Cunningham that when he assessed you in February 2020, you presented with significant psychological and emotional immaturity.
52Whilst the serious nature of your offending means the sentencing considerations of general deterrence, just punishment and community protection are all to be given weight, they are moderated to some degree by your youth, in addition to your diagnosed ADHD and post-traumatic stress disorder. Despite your prior criminal history and the gravity of this offending, I do not consider your prospects of rehabilitation have been extinguished, given your youth; however, I am guarded in that respect. The sentence I impose must operate to deter you from future violent offending but also recognise that as a youthful offender, your rehabilitation remains a prominent sentencing consideration.
53You were remanded in custody on 18 November 2020. Your time on remand has run parallel to the COVID-19 pandemic, and the restrictions imposed on custodial settings in response. These have included periods in lockdown to act as a quarantine, during which periods you have been confined to your cell, at times for periods of 24 hours, and restrictions on face to face visits have also been imposed. For you, as a young Aboriginal man, I accept that these restrictions are extremely difficult and have added to the burden on your time on remand.
54The plea hearing was adjourned for you to be assessed for youth justice detention. The assessment report of Youth Justice dated 5 October 2021, found you unsuitable, stating 'the custodial environment of a youth justice centre would be likely to distract you from engaging in proactive activities and therapeutic treatments' to address past trauma. The report states you are currently working in the prison bakery, and Youth Justice are of the opinion you would benefit from other industry and work options.
55
You were also assessed for a community correction order ('CCO') and your suitability, whilst undertaking that order to enter Wulgunggo Ngalu Learning Place ('WNLP'), a highly-regarded residential program for Koori men that provides 'an opportunity to learn new skills, reconnect or strengthen their connection to culture and participate in programs and activities to address their offending behaviour'[6]. In the Corrections assessment it was noted that engagement in Wulgunggo Ngalu would increase your prospects of rehabilitation and lower your risk of reoffending. In the assessment report provided by Wulgunggo Ngalu Learning Place dated
7 October 2021, you were found suitable for their program, reporting that you want to address your substance abuse issues and learn about your culture. I note that in the absence of this favourable assessment from Wulgunggo Ngalu, you were not found suitable for a community correction order.
[6]Wulgunggo Ngalu Learning Place information sheet.
56On your behalf, Mr Portelli submitted that a combined sentence of imprisonment, equivalent to time you have already served, followed by a lengthy community correction order would meet all sentencing requirements. The prosecution submits that a sentence of imprisonment with a suitable non-parole period is required to meet those sentencing considerations.
57In my view, a combined sentence pursuant to s44 of the Sentencing Act 1991 is appropriate, particularly having regard to your acceptance for a placement in Wulgunggo Ngalu, a Koori-specific treatment program that is, in my view, the best opportunity for you as a young offender to receive the cultural support, mentoring, guidance and drug treatment necessary to enhance your prospects of rehabilitation and, in doing so, to promote community protection. Further, this is not an easy option. The law recognises that a community correction order is a punitive order by its nature[7].
[7]Boulton v The Queen [2014] VSCA 342
58It is relevant in sentencing you to recognise that your role in the aggravated burglary was far less significant than that of your co-accused. You remained in the vehicle the entire time and were not complicit in either the theft or significantly, in the discharge of the firearm. I also accept that at the time the co-offenders entered the property, you did not believe Mr Duffield was at home. However, as the prosecution correctly highlighted, this was a serious aggravated burglary committed in company where both co-accused were armed, as you knew. The sentence I impose must reflect this and, for this reason, I consider a period of imprisonment that exceeds time currently served, followed by a lengthy community correction order is warranted.
59Accordingly, taking into account the sentencing considerations to which I have referred, and having regard to the maximum penalty imposed for the offences, I sentence you as follows:
60On Charge 1 – persistent contravention of a family violence order – you are convicted and sentenced to four months' imprisonment.
61On Charge 2 – criminal damage – you are convicted and sentenced to nine months' imprisonment.
62On Charge 3 – aggravated burglary – you are convicted and sentenced to 16 months' imprisonment.
63Having regard to the sentencing principles of totality, I order that the sentence imposed on Charge 3 – aggravated burglary – is the base sentence. I order that two months of the sentence imposed on Charge 2 – criminal damage – be served cumulatively upon the sentence imposed on Charge 3. I order that the sentence imposed on Charge 1 be served concurrently with the sentences imposed on Charges 2 and 3.
64This gives a total effective sentence of 18 months' imprisonment. Pursuant to s18 of the Sentencing Act 1991, I order that - if you could just confirm pre-sentence detention -
65MS CARUSO: Three hundred and twenty-eight days, Your Honour.
66HER HONOUR: Thank you - 328 days of pre-sentence detention be reckoned as served.
67Pursuant to s44 of the Sentencing Act, on Charge 4 – theft of a motor vehicle, Charge 5 – handling stolen goods and Charge 6 – attempted theft, you are convicted and sentenced to a two year community correction order to commence upon your release from imprisonment. You are to be supervised for the duration of that order.
68It is a condition of the community correction order that you be assessed for and undertake mental health and drug treatment as directed, in addition to any other offence specific programs that you are directed to undertake. You are also to undertake 180 hours of unpaid community work as a condition of the community correction order. All hours completing mental health and/or drug rehabilitation treatment programs are to be counted towards those hours of unpaid community work under the terms of your community correction order.
69I agree with the recommendation of Wulgunggo Ngalu Learning Place, that you be transported to their residential treatment program immediately upon your release. I further order that, at least initially, your engagement and compliance with the conditions of the community correction order be subject to judicial monitoring before me 11 July 2022 at 9.15 am.
70In addition to the conditions I have imposed, there are standard conditions. First, and foremost, you must not commit any other offences punishable by imprisonment during the two year community correction order. You must report within two working days of your release to the nearest community corrections office. You are required to advise your supervising corrections officer of any change in your residential address or where you are working, and you must do so within two clear working days. It is a condition of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of your corrections officer. You are not able to leave the State of Victoria without prior permission of your supervising corrections officer.
71Clearly, this is a last opportunity for you, as a young offender, to engage with this program to address the issues that have been brought before the court. You should be aware that the order can be breached if you do not comply with it in terms of the conditions or if you re-offend while under the community correction order. If you do, you will come back before me for breaching the order. I may have to resentence you on the charges and for the separate offence of breaching the community correction order.
72Pursuant to s89(4) of the Sentencing Act 1991, all licences and permits held by you are cancelled and you are disqualified from driving in the State of Victoria for a period of 12 months.
73Finally, pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty but been found guilty of these offences following a trial, the sentence I would otherwise have imposed would be a sentence of three years' imprisonment, with a non-parole period of two years.
74MS CARUSO: Your Honour, did the 11 July date take into account what is expected to be at least 45 days of emergency management days?
75HER HONOUR: I have not. I do not know that much is achieved by me judicially monitoring Mr Ryan early in his placement at Wulgunggo Ngalu. So, I have tried to achieve a balance there. Perhaps, Mr Portelli, if your instructors could confirm with my chambers once your client is to be released and transferred to Wulgunggo Ngalu. When I know specifically what date that is - because I do not know what additional dates may yet to be taken into account - if we could be notified? It may well be that I review the date for judicial monitoring at that point.
76MR PORTELLI: I will ensure that that is done. Thank you, Your Honour.
77HER HONOUR: All right. My associate will arrange for the community correction order to be sent through to the prison to be signed, but I will just confirm that through you, Mr Portelli, that Mr Ryan has consented to that order?
78MR PORTELLI: Absolutely, I have those instructions; yes, Your Honour.
79HER HONOUR: Yes. Thank you. If there are no other matters, I thank counsel for their assistance in this matter and I will adjourn the court.
80COUNSEL: As Your Honour pleases.
- - -
0
5
0