Director of Public Prosecutions v Sacco

[2016] VCC 1230

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-16-00617

Ind No: F13360739

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS PAUL SACCO

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	17 August 2016
DATE OF SENTENCE:	19 August 2016
CASE MAY BE CITED AS:	DPP v Sacco
MEDIUM NEUTRAL CITATION:	[2016] VCC 1230

REASONS FOR SENTENCE
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Catchwords: :           RCSI, criminal damage

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Triandos	Office of Public Prosecutions
For the Accused	Ms McFarlane

HIS HONOUR: 

1       Nicholas Paul SACCO, you have pleaded guilty to two charges laid on indictment F13360739 being one charge of Recklessly Causing Serious Injury and one charge of criminal damage.  Charge one is punishable by a 15 year maximum term of imprisonment, which should give you some sense as to how seriously that charge is viewed.  Charge 2 carries a 10 year maximum term.

2       You are 22 years old.  You have no criminal history at all, and I take it you are telling me Ms McFarlane, there is nothing outstanding, is that so?

3       MS MCFARLANE:  There are - there is one matter outstanding, Your Honour, in the Magistrates' Court.

4       HIS HONOUR:  What is that please?

5       MS MCFARLANE:  It is in relation to possession of cannabis.

6       HIS HONOUR:  How is that listed?  For what - is it a - - -

7       MS MCFARLANE:  It is for a mention and a plea.

8       HIS HONOUR:  All right and when - what is the commission date of that?  Can you tell me?  Look, in the scheme of things, it is the - it is the least of his worries, but I was proceeding on the assumption, I was inferring from the plea that there had been no subsequent activity.

9       MS MCFARLANE:  5 December 2014.

10     HIS HONOUR:  There has not been then, so it is quite and old matter then?

11     MS MCFARLANE:  Yes, Your Honour.

12     HIS HONOUR:  All right.  Well, I will put that aside altogether, all right.  In any event, I will return to my reasons. 

13     You are 22 years of age, you have no criminal history at all.  I have been told about a matter that is outstanding before the courts but it is not a subsequent matter and it is a matter that relates to possession of cannabis and so I put that aside altogether.  It has not yet been dealt with and it is a matter that, even if it had been dealt with, would not in any way impact upon my task.

14     The details of your offending are set out in Exhibit A, the written summary of prosecution opening.  It is dated 1 June 2016.  Your counsel told me that this was an agreed statement of facts and so I will incorporate that summary into these reasons for sentence. 

15     That summary will remain on the court file.  It will be available for inspection with my leave.  In such circumstances, I see no need to fully restate the facts of this case.  That summary sets out the sentencing facts.  Your offending is obviously serious as your counsel correctly concedes.

16Stated very broadly and briefly, you were obviously jealous of your victim. Though you knew of him, you had not even met him, but you sensed that he may be in some form of relationship with your ex-girlfriend, as of the date of these events back in August of 2015.  

17Despite telling the police in the interview that you were, as you said,  ‘fine with them’ or ‘happy for them’, clearly enough, you were not.  You saw him drop her off at her home on the day of the offence and you then followed him in your car for close to two kilometres tooting and flashing your lights at him in an endeavour to get him to stop his car which he ultimately did.  He had no real sense of what was happening but he was quite worried and intimidated and stopped and got out of his car.  You were screaming at him and then immediately assaulted him.  You punched him and you kicked him and the kick was to his face.  It was a startling attack, occurring as it did in a public place upon an entirely innocent young man and with significant impact.  Serious dental damage was occasioned together with a laceration or significant cut to his lip that required plastic surgery.  Despite what you told the police, you went and sat in his car, you picked up his phone.  Again it connects up to your motivation.  You were jealous.  Now that conduct is before me only as to context, explaining further your motivation behind this attack

18You kicked his car twice causing the damage that we can see in the photographs, and yet you returned to your vehicle but not before saying to him “ I hope it was worth it.”  Obviously some reference to your belief that there had been some sexual act.  You drove off a short distance but returned a moment later and demanded the code to his phone.  You then used that phone to ring your ex-girlfriend and had a conversation with her.  Again it is before me purely as to context and you spoke of how you had just kicked, as you put it, “kicked the fuck out of your friend and he’s lying in the gutter.  I hope it was worth it you fucking slut.” 

19Now I accept that these things all were said in the - in the heat of the moment.  There was obviously emotion driving you to this conduct, but it was extraordinary conduct, a physical attack. 

20You were arrested by the police on 7th September, so the heat is out of the exchange by then, and you were interviewed, and you really should have been able to reflect on the magnitude and the gravity of your conduct, but you seem not to be able to then.  Though you made some admissions it was a far from complete account in my judgment, where you, for whatever reason, misrepresented a number of events as was entirely within your right to do, and none of this is in any way an aggravating feature.  I mention it purely because your counsel was placing such great weight on what she said was your fully co-operative and remorseful approach upon interview and I must say, that is not the way I view that interview at all.  Really, the less said of it the better.  

21You quibbled over the word assault, you denied punching him, you denied jealousy, you denied following him and you seemed even at one point, to be querying the true extent of the injury disclosed in the photograph shown to you.  You described how you just wanted to talk.  You told the police that upon stopping the car and each of you getting out, all was calm, that you talked for 10 or 15 minutes.  Well you did not.  That is not what happened.  You told the police that you said that you had told him “I’m fine mate” and how you felt happy for them.  Well you did not either say those things or feel those things.  You said that things sparked up or escalated into physical contact because he was texting her and your girlfriend then spoke to you at the scene before the physical assault.  Well again, it is not what happened.  You described after the assault then shaking his hands - you did not - and apologising - you did not - and helping him - you didn't.  You put down this event to your ex-girlfriend saying to the police, ‘she caused all this’.  She did not. 

22I was not greatly impressed by your interview and as I say, the less said of it the better.  I was less impressed further by the mention made in the course of the plea of some Facebook photos of the victim, somehow making their way into the plea, that they were not tendered, Ms McFarlane did not seek to tender it, and did not seek to challenge in any way, the victim impact statement that spoke of the impact, so what was this all about - the Facebook photographs?  It was a none-too-veiled suggestion that he was perhaps, the victim, not truthfully dealing or disclosing the true impact of the crime.  It was an extraordinary turn for the plea to take and I was not greatly assisted by it at all.

23Your interview account though, it undoubtedly containing admissions - and it did contain your offer to pay for the dental expenses - was far from being a truthful account of what took place on this day.

24Anyway as I say, it is true enough that you made some admissions and that really is what I should have been taken to I suspect, rather than the suggestion that it was a fully remorseful account.  It was not.  I have regard to the admissions that you did make.  You put yourself there, you put yourself acting with some level of violence, but I am certainly far from convinced that your account was dripping with remorse.  It was not.  You pleaded guilty at a very early stage and you have spent no time in custody.

Victim impact

25There is a victim impact statement which I have read and take into account. As I say, your counsel did not wish to challenge any aspect of the impact statement and had given no notice of any desire to cross examine the victim and did not wish to cross-examine the victim.  So it is in that setting, that the mention of a  Facebook photo was quite regrettable in my judgment.  

26It was slightly worrying that she was raising it but more of a worry that you must have seen fit to raise the existence of that photograph as somehow rendering less serious the impact of your crime.  If you are looking for evidence of the impact of your crime, Mr Sacco, look carefully at the photographs marked as Exhibit C.  You kicked his teeth in.  Undoubtedly he sustained massive inconvenience, significant pain and impact, and he will not even know and nor would a dentist even know at this stage, the long term viability of a number of the teeth.  So whether he is smiling out at people from a Facebook photograph or not, so what.  Maybe he is, but maybe he does not feel the way he used to about his life and going out and his appearance.  In fact I am sure he does not. This was a frightening and startling attack, one that has led to serious dental complications, a lot of dental work and more in the future.  I do not see any further need to quote from the impact statement at all. 

27Your counsel accepts the impact statement. I have no doubt at all that your crime has had a significant impact upon your victim.  Maybe you should get that more firmly fixed into your own head.  I wonder how you, or your family, would react to someone inflicting the sort of damage that you inflicted to one of your loved ones?  The impact has been very significant and I take it into account..

Submissions in mitigation

28Ms McFarlane, who appeared for you on the plea, raised a number of matters in mitigation, and she relied mainly upon your guilty plea and the early stage at which it was entered, the admissions that you made, the presence of some remorse, your youth, good character and lack of any history, prior history before the courts.  She took me to your personal family background including the fact of your being your father's carer and from an early age.  Thought it was not made plain in the written submissions, ultimately she was relying upon what is described as third party hardship and that is, the impact upon your father, of your being imprisoned.  She relied upon a variety of written materials including reports and character references, and suggested that the first principle from the case of Verdins had some application here.  She argued that you had strong family support and good prospects of rehabilitation and those prospects would be potentially damaged if you were in prison. 

29She conceded the offence of recklessly causing serious injury was serious, but argued that you could be released on a Community Correction Order.  She was arguing that the offending was relatively spontaneous, that a Community Correction Order could provide you with support and best address your rehabilitation as well as addressing the various other purposes of sentencing that had to be given weight in this task. 

30Mr Triandos, on behalf of the Director, challenged the existence of any Verdins driven mitigation here and raised concerns as to the mention of the Facebook images of the victim, however ultimately the Director, for Mr Triandos, was conceding that it would be open to the court to admit you to a Community Correction Order. 

31Well, I am not bound by that submission, no more than I am bound by any submission or argument of your own counsel.  I have to pass the sentence that I judge to open to me and it is not your counsel and not the Director who is passing sentence.  I am.  I do not ignore that submission, I do not ignore any submission made before me, but I have very seriously questioned my ability to release you on a Community Corrections Order without the service of any immediate prison sentence in combination in this case.  That was my provisional view that you had to serve at least some imprisonment.  I have considered this in the period since the plea with, I can tell you, a significant level of anxiety.  I will return to this later in my reasons.

Background

32Before turning to further consider these various matters that have been raised though, I want to turn quite briefly to your background.  I have no reason to doubt the personal background that has been placed before me.  It is contained in the written submissions of your counsel as well as to some extent in the report of Dr Siotia.  Your mother has also prepared a very detailed and useful chronology dealing with your life.  So I accept that background so see no need to go into it in enormous detail now. 

33It has been an unusual background. You are now aged 22 years old, you were born on 6 September 1993 so you are almost 23.  You have no prior criminal history at all and it has been a relatively tough background in my judgment, in that your father was diagnosed with a serious mental illness.  He later sustained serious injuries, very serious injuries, in a car crash when you were just 11 and then sadly he had an aneurysm a couple of years later when you were 13.  So he is left with an Acquired Brain Injury and is to some extent dependent on you.  You have essentially been his carer since you were15 years of age, indeed that is your formal position now and has been for years.  

34That was not something that your mother was happy about and I am sure for good reason, as of course, she through adult eyes, could see that you were making a very large sacrifice at that age, to adopt that role, something you are perhaps beginning to understand.  So there are all those difficulties in those matters dealing with your father.

35You had significant issues at school as well, and many of them derived from, it would seem, hearing loss in your formative years.  There is mention made also of the death of your grandfather when you were 4.  

36You have clearly had some problems coping with these various events, and it is entirely unsurprising.  It is very difficult for a child and that is all you were as a 15 year old, to be dealing with being the carer of your father.  So all these things have taken a toll on you, as one would expect they would, and there was some counselling at school dealing with issues of loss, grief and anxiety.  

37The report of Dr Siotia speaks of your mental health issues.  We throw into the equation the drugs, because they have been a problem for you and no doubt have some interplay with your mental health, as indeed does your failure to take medication, at least in the past.  Drugs are never going to improve your position, at least illegal drugs.  And as I say, for whatever reason, you chose for a significant period not to take your medication.  

38You have had some employment over the years but it has been relatively short term.  You live at home with your father and are his carer.  Your mother and stepfather, as I am sure, are the rest of your family, are very concerned for you and that is clear enough from both their presence and of course, the written materials placed before me.  Your mother is a forensic drug and alcohol counsellor and her letter is of great use to me.  So too, your stepfather's letter which surely demonstrates that this conduct was very much out of character.

Psychological material

39I have referred already to the report of the psychologist, Dr Siotia.  See
Exhibit 2.  Yes, that exhibit is marked as Exhibit 2 - and he sets out your background in some detail and suggests that you have been suffering from a major depressive disorder.  

40Ms McFarlane, did I assign exhibit numbers to your various - - -

41MS MCFARLANE:  I don't believe you did, Your Honour.

42HIS HONOUR:  Well really I think I need - - -

43MS MCFARLANE:  Unless I'm mistaken, I have - I haven't really done any exhibit numbers.  I have done for the Crown exhibits.

44HIS HONOUR:  I think I need to do that then, so I've been correctly provided with the exhibit list for the various Crown exhibits, so the opening, the impact statement, the bundle of photographs and assessment report.  Really I - I think I need to assign exhibit numbers to yours.  I thought I had.  So do you have a clean copy of those documents or not?

45MS MCFARLANE:  Sorry?

46HIS HONOUR:  Do you have a - do you have a clean copy of them or not?

47MS MCFARLANE:  The clean copy I had, Your Honour, I've actually provided to the Corrections officer.

48HIS HONOUR:  All right, anyway - - -

49MS MCFARLANE:  I apologise, Your Honour.  I do have - - -

50HIS HONOUR:  I've got them in front of me.  I'm just - - -

51MS MCFARLANE:  I can tender aside from the psychiatrist assessment, I have the clean copies of all the references and Dr Rajapakse's report.

52HIS HONOUR:  Let's just review what there is then.  There's the plea submissions which will be Exhibit 1.  There's the report of Siotia, Exhibit 2.  The report of Rajapakse, Exhibit 3 which attaches the - I think the - - -

53MS MCFARLANE:  Summary.

54HIS HONOUR:  The history, and then there are the references from Hillman Morrison, from - I'm having difficulty reading the name of the next one, is it Christine - - -

55MS MCFARLANE:  Avery, Your Honour.

56HIS HONOUR:  Christine Avery, of Tom Anderson the step-father, and the - and mum was - the references (indistinct) of Anderson so they'll be - what we up to - Exhibit 4 is a bundle?

57MS MCFARLANE:  Yes, Your Honour.

58HIS HONOUR:  What else was tendered?

59MS MCFARLANE:  The chronology, Your Honour.

60HIS HONOUR:  Really this sort of thing has got to be formalised.  I'm - what's the chronology?

61MS MCFARLANE:   Sorry, Your Honour?

62HIS HONOUR:  What is it?  Where is it?

63MS MCFARLANE:  It's the chronology of Mrs Anderson (indistinct).

64HIS HONOUR:  Well I've referred to that, so I - - -

65MS MCFARLANE:  Yes, I apologise, Your Honour.

66HIS HONOUR:  That's - that's her letter so I - I've - - -

67MS MCFARLANE:  Yes, her letter.

68HIS HONOUR:  - - - it's a letter, it's a chronology, it's very useful but it's - I've referred to that, so that's part of that Exhibit 4.  What else?  Anything else at all?

69MS MCFARLANE:  There was the sentencing snapshot but that was incorrect.

70HIS HONOUR:  You don't need to tender that, I mean it's just - it's just a document that's just - that can be found by any person who needs it and it was the wrong one anyway, so - - -

71MS MCFARLANE:  Yes, Your Honour.

72HIS HONOUR:  Are they the totality of the exhibits then?

73MS MCFARLANE:  Yes, Your Honour. 

74HIS HONOUR:  Yes.  All right, well I thought they were, and I must say I proceeded on the basis they'd all been marked as exhibits and that's what I was referring to Siotia's report as Exhibit 2 which, well which it now is, anyway, but I've had it, and I've read but that's the exhibit.  Okay, thanks.

75MS MCFARLANE:  Thanks Your Honour.

76HIS HONOUR:  All right, well Siotia sets your background in quite some detail and suggests that you have been suffering from a major depressive disorder. 

77Now that diagnosis arises out of a single consultation in July of 2016, though there is some strong support for the fact of earlier issues with anxiety and depression.  We have a report from Dr Rajapakse dealing with attendance in 2014 and referral to a psychiatrist and the prescription of Pristiq.  

78More significantly though, I have your mother's detailed account.  There could be no question then that you have had some mental health issues and issues of anxiety and depression in your life.  I do not doubt it.  However your mental health issues have very little, if anything, to do with this offending.  

79I do not accept that the principle referred to from Verdins or any of the principles from that case are enlivened here.  Ms McFarlane points to the first page of that report, paragraph 2, but it is pure speculation to assign to that a Verdins type application.  The suggested bouts of loss of control and anger, they may be connected to the mental health issue or not - who knows?  I certainly do not and nor is Dr Siotia making any definitive connection at all.  Indeed he speaks of your telling him in July that you are starting to have those anger episodes.

80I don’t believe there is any realistic connection between the condition referred to, and the offending such as to reduce your culpability or attract any of the principles from the case you heard discussed.  That is not to say that the report is of no value. It still has value for the Court and hence for you.  It spells out some of your background and the diagnoses and I can take all of that into account in a non-Verdins way and I do.  It is clear as I have said that you have had some significant issues in your life and I take them into account.

Guilty Plea

81I turn then to some of the other matters raised in mitigation. The first of those is your guilty plea.. You have pleaded guilty and I accept that your guilty plea has a strong utilitarian value.  It was entered at what I will judge to be the earliest opportunity so you will be given the appropriate discount for that earliest of guilty pleas.  Witnesses have been spared the experience of coming to court and reliving the unpleasant event.  Mr Bartram has at least been spared that experience by your stance.

82The community has been spared the time and the cost and effort of a contested hearing, either in this court or in the Magistrates’ Court, so in this way you have taken legal responsibility for your offending and have facilitated the course of justice. 

83I am going to pass a lesser sentence because of your guilty plea and the early stage it was entered.  I also take into account the extent of your co-operation with the police.  You made some admissions to the police and I take those into account but as I say, I don’t judge that you provided a complete or truthful account by any means.

Remorse

84Your counsel argues that you are remorseful for this offending.  If my judgment in this area was based purely on your conduct in the course of the police interview performance, then the  submission would necessarily fail as it does not seem to me that you were particularly remorseful, misrepresenting the manner in which you chanced upon your victim, playing down the menacing nature of your interaction and significantly understating your actual physical acts, blaming the whole event on your ex-girlfriend.  Good heavens.  It was you.  Not her - you.  Not her, not him - you.  Anyway that was then in the course of that interview and no doubt a lot has happened since. 

85I mentioned this earlier in these reasons and was not greatly impressed by your interview and I was not.  Remorse is not self-pity, it is not sorrow for your own predicament or even for the predicament of your father, and I am sure you are deeply concerned about his predicament.  

86It is remorse for the crime you have committed upon another person and I see precious little of that in your interview.  However the interview is but one possible source.  Another is your actual plea of guilty and it was an early plea at that.  What I judged to be at the earliest stage.

87There is no evidence before me of some remorse in some of the references and the report, so I am prepared to find that you hold at least some remorse for your crimes but I think you are a work-in-progress.  I am certainly not satisfied that remorse for your victim is a powerful emotion at this stage, but as I have said in other cases, some remorse is better than none and I take the existence of some remorse into account in mitigation.

Youth

88     You were young when committing the offences.  You were only 21 and are still only 22, turning 23 in a few weeks' time.  You are still so young and I will not and do not lose sight of that fact for one moment.  You are not just youthful but a youthful first offender.  If only your crime was not so serious, but it is.  Youth is ordinarily a very important factor in the sentencing exercise and that is for pretty good reasons when one thinks about them.  Young people are just that - they are young.  They are far more likely to commit errors of judgment, they are far more likely to be impulsive or rash and they do not always consider consequences.  We have , all of us, been young.  They are not fully developed.  They can lack insight, they can lack judgment and they are capable of rehabilitation and they are capable of change.  

89     Rehabilitation is a very important matter and has added emphasis in the case of a young offender, especially a first offender as you are.  It seems to be constantly ignored in the media in this day and age, but it really needs to be remembered that rehabilitation of such a person - well it serves also to protect the community.  Prison can de-rail that whole process, prison can corrupt rather than rehabilitate.  It often does, so it is for these and very many other reasons that youth is ordinarily a very powerful factor indeed.  So the community has a sizeable stake in the rehabilitation of any young offender.  So do the courts.

90     Ordinarily then, less weight is attached to general deterrence, less weight attached to punishment and a greater emphasis is placed on rehabilitation.  So your counsel understandably relies upon your youth.  Now you are not an 18 year old but you are a young offender, or youthful offender. 

91     These principles that are set out in many cases including cases such as Mills and Azzopardi well they do not apply equally in every case coming before the court.  They do not apply every time there is a young or youthful offender.  The weight to be given to these principles will necessarily vary from case to case from offender to offender and the more serious the crime, the more likely it is that there will be greater prominence given to deterrence, to protection of the community, to denunciation and to punishment.

92     As the level of seriousness of criminality increases, there is therefore generally speaking, a corresponding reduction in the mitigating effect of youth.  Now it is a rare case indeed where the mitigatory consideration of youth is all but extinguished, and I want to make it as plain as I can that this does not even come close to being such a case where it is extinguished.  It is not.  Your youth is not unimportant.  It is not ignored.  It is very important and I can tell you it has weighed very heavily upon me since the plea was conducted and as I wrestled with the matter into the early hours last night and into the morning and again very early this morning.

93     Your youth is clearly not extinguished as a consideration.  Far from it.  It is in fact a very important matter for me to weigh into the mix.  However given the nature of your crime of Recklessly Causing Serious Injury and the weight undoubtedly assumed by punishment, community protection and general and specific deterrence, necessarily less weight can be afforded to your youth. Rehabilitation

94I turn to your prospects of rehabilitation.  I have probably already dealt with this to some extent when dealing with your youth.  You are young, you have prior convictions or appearances at all and only at that minor matter outstanding which I put aside altogether.  So the offending would appear to be out of character and I have your father, your step-father speaking of that in his reference.  You have pleaded guilty, you have also some remorse.  Not as much as I think you should have, but some.  I sense you are very concerned as to your own predicament, and why wouldn't you be?  I am not being critical of you for that and I am sure you are also very concerned about your father's predicament.  You have been his carer for many years.  You have taken on that task and it is not an easy task, especially for a boy as you were when you first took it on. 

95So the process of being interviewed, and being charged and being brought before this court I am sure is deeply worrying for you, and I am sure it is deeply worrying for your family and surely that will to some role to play in deterring  you from offending in the future.  You have  a mental health issues, you have a mental health plan in place, you have a supportive family.

96As serious as the Recklessly Causing Serious Injury is, and it is serious - make no mistake about it -when I examine the materials placed before me I accept that you do have very realistic prospects of rehabilitation.  I fact I assess them as being quite good.  You clearly need treatment and support.  You clearly need to stop using drugs of dependence and I believe you probably need to live a real life.  Being a carer at your age and for as long as you have been one is not a good option, in my view, for a young boy and then for a young man.

97That is not to downplay the significance of your contribution.  You are doing it because it is your father, but it removes you from other things that people of your age would be hoping to do and to achieve.  No doubt these are the sort of concerns that your mother had in her mind when she raised issues about that choice being taken when you were so young at the age of 15.  Anyway I rate your prospects as being quite good into the future, subject to those matters.

Exceptional circumstances

98     An appeal for mercy is made in this case, pointing to what it is claimed are exceptional circumstances of family hardship existing in the event that you are imprisoned.  It relates to the predicament of your father.  I have said a number of times, you are his carer.  You have not just slipped into that role as a result of these charges.  You have been his carer for many years.  That has you’re your status.  The trouble is you were his carer at the time of the offending.  It is very difficult for me to know what to make of that particular matter.  It is very hard for me to conclude that he can be entirely dependent on you, in this sense, that you have worked in the past and sought employment in the past, and obviously of course, you were out and abroad from the house on the day of these events, but your need to minister to his needs, I am told, led to you not maintaining the employment, so I accept that you are his carer and that he is, to a large extent, dependent upon you.  So it is suggested that in your absence he will need to go into some form of aged care, and his sister may step into the breach but only whilst arrangements are made for a permanent arrangement.  

99     What you need to understand is that it is only in exceptional circumstances that third party or family hardship can be taken into account.  They must be such that they rise above the general and sometimes tragic hardship very commonly suffered by families upon the imprisonment of a family member, and even if established, the hardship does not necessarily require the avoidance of a prison term.  

100   It is clear enough from the authorities in this area, that the cases where family hardship gives rise to exceptional circumstances will be very rare indeed.  Proof of actual hardship is not enough, because there is almost always hardship, often very significant hardship encountered when a person with a dependent family is sent to prison.  So this high test has developed in response to a number of considerations.  It is almost inevitable that sending any person to prison will  have significant adverse effects upon other people.

101   The primary function of this Court is to impose a sentence that is commensurate with the gravity of the crime and to treat family hardship as the basis for the exercise of leniency produces the result that a guilty person benefits in order that innocents suffer less.  It also differentiates between offenders with needy dependents and those with none.  There are examples of what has in the past been treated as exceptional circumstances and what has not, though obviously the decision has to be made on a case by case basis.  I do  pay regard to those past instances as spelt out in the Judicial College sentencing manual at 11.7.10 .8 as well as referred to in the leading case of Markovich [2010] VSCA 105.  They give some guidance but that is all it is.  Again one must then come back to the case at hand which I do now.

102   I do not doubt that life for your father and others who may need to step in to the breach would be made far more difficult in your absence and that there are likely to be some real and serious impacts upon your father.  No doubt a greater burden will fall on others.  I am not unsympathetic to your father's plight and you also will also be deeply worried that you have placed him in this predicament.  I have sympathy for him and I wish, as I am sure you do yourself, that you had not placed him in this position, but you have.  Having said all that, I am prepared here to find there are exceptional circumstances in all the circumstances of this case, but that is not the end of the matter for you.

Custodial Burden

103   I have dealt with that issue of third party hardship.  Those matters have a further role in the sentencing discretion.  The matters relied upon will undoubtedly increase any burden of imprisonment if you are sent to prison.  You would be imprisoned and know of the difficulties encountered by your father.  He is not in his home, he has moved into aged-care, and that is a disturbing thing for any person.  It would be disturbing for him, it would be disturbing for you knowing that that is what is taking place.  Or even if it does not take place, and someone else moves into your position, that would be disturbing because it has been your task for so many years.  So the matters successfully relied upon as involving exceptional circumstances would undoubtedly increase any burden of custody upon you, if you are sent to prison, and it is permissible to take them into account in that way as well.  Prison will be hard for you, as a result of those factors and many others that are raised before me, and I take that into account as well.

Current sentencing practice and Offence gravity

104I take into account though, as I must, current sentencing practices and I have considered the Sentencing Advisory Council’s Snapshot, No.188 of 2016, to which I have been referred.  The median sentence of imprisonment where a person was imprisoned for this crime was two and a half years imprisonment meaning half get more, half get less.  The most common sentence of imprisonment where prison was selected for this offence, was between two and three years, not months, years; and the average sentence for this crime in the years 2014-15 was 2 years 9 months imprisonment.

105I have looked at a number of cases including the case of Winch 2010 VSCA 141.  Now I note that case relates to recklessly causing serious injury produced by glassing and that is not what I am dealing with here, but some of the observations as to the seriousness of the crime of recklessly causing serious injury are relevant. 

106The Court of Appeal in that case, as well as the later case of Ashe [2010] VSCA 119, spelt out the essential seriousness of the offence by examining the required mental element.  It requires the foresight of the probability of causing serious injury.  The assessment then of the seriousness of an instance of recklessly causing serious injury involves, amongst other things, a consideration of the degree of probability that a serious injury will result and the degree of seriousness of the injury foreseen. 

107You were not using a weapon.  That much is plain enough.  The court went on to comment in the case of Winch on the obvious dangerousness of a glass or bottle, or something that could break.  You were not using a bottle or glass or something that might or might not break.  You had no weapon.  What you used was your fist and your foot, and they were good enough weapons. 

108As the President of the Court of Appeal said in the later case of Ashdown [2011] VSCA 408, "A clenched fist can be a lethal weapon when used to deliver a hard punch to a person’s head." You were punching your victim repeatedly. Not all of those landed, but some did. Not once, as in the case of Ashdown.  You delivered a kick to his face.

109I have also considered the Judicial College of Victoria sentencing manual, which has an overview of sentences imposed for this crime.  Current sentencing practice is one of a large range of matters that I must pay regard to.  Consistency of sentencing is a fundamental objective of the criminal law.  But there is never one correct or right sentence.

110Now such statistical material, as I have referred to, has clear limitations, as the Court of Appeal has made that clear often enough.  Nor can the outcome in other cases be decisive as to the actual sentence to be imposed in this case.  Other sentencing decisions are not precedents.  Every case is very different, so too every offender and I have to pass an appropriate sentence in this case - in your case.

111Your counsel was not suggesting that this instance of recklessly causing serious injury fell towards the bottom of the range of offence seriousness.  I accept that you did not go there intending to assault but once you fell in behind the victim, that is, in the movement of the two vehicles, once you had seen him, you were not in a mood to negotiate as is evidenced by the speed of the violence once your victim stopped his car.  

112It was not entirely spontaneous but obviously there was no detailed planning and clearly you were acting emotionally and in anger.  You foresaw the probability of serious injury being caused  because of the nature of your physical acts.  It was not a fight.  It was not like something on a football field.  This was a startling attack upon a person who was totally unprepared and a non-combative victim and it all occurred in a public place and for what reason?  What had this man done to you?  The answer is nothing.  What did you know about him prior to the assault?  Nothing.  

113For all you knew at the time, he may well have been in a purely platonic relationship, dropping your ex-girlfriend home after some visit to one place or another.  There is no provocation in any true sense of the word and none was in truth relied upon here. 

114As to the injuries, they certainly are not low-level serious injuries.  They are sufficient to amply meet the new definition of serious injury.  There has been plastic surgery and much dental intervention.  There was significant impact caused.  Having said that though, it is clear enough that they are a long way removed from the sort of catastrophic injuries that are sometimes seen in the courts.

115I have to pay regard to the nature and gravity of the offence before the court.  All of this talk of level of offence seriousness can be easily misunderstood.  This was on any view of it, serious offending by you.

Sentencing considerations

116I have taken into account all of the submissions made and the exhibits that have tendered before me.  Sentencing is a complicated task and never more so than in the case of a youthful first offender who has committed a serious crime.  There are a variety of matters which I have to take into account, including gof course the maximum penalties.  I must pay regard to current sentencing practices, I must pay regard to the impact of your crimes.  There are a host of other matters that also must be taken into account. 

117Your prospects of rehabilitation are of course a highly relevant purpose for me to consider.  I do not ignore them. As I have said, I think they are likely to be good, subject to your continued compliance with your medication regime and treatment and abstinence from drugs.

118But they are not the only matter that I have to consider.  If they were, sentencing would be relatively easy.  But you must be punished for your crimes, and I have to do so justly and proportionately and I must denounce your conduct and I do. It was quite extraordinary behaviour that you engaged in, to assault this man in the way that you did, in a public street. 

119I think community protection is of very little weight here though, given your limited - or the nature of the lack of criminal history placed before me, there is no criminal history, there is one subsequent, there is nothing suggesting that there is any sort of entrenched issue in terms of violence so in those circumstances, I think community protection has very little weight in my task and there is no suggestion of there being some broader risk to others.

120I have to at least consider specific deterrence.  That is the need to deter you from further offending.  That is undoubtedly a relevant consideration, given the nature of the crime and your absence of a criminal record.  You must be deterred.  You must be dissuaded from ever committing a crime such as this ever again. 

121Given the nature of the crime and even taking into account the absence of any criminal history, I am troubled by the approach that you adopted in the interview.  I have been troubled by some matters that have been raised on your behalf in the course of the plea including the aspect of the Facebook image.  I have been concerned by those matters, but I have tried not to let them distract me, but specific deterrence still has a role to play but I moderate it given the conclusions I have pronounced as to your good prospects of rehabilitation. 
I think you have a relatively low risk of re-offence.  I note the assessment officer holds a slightly different view, but that no doubt is driven by the test. I have got more than just a test, I have got a range of materials before me.   I think you are remorseful to a degree.  Further, the process of being charged and brought before the court for the first time and serving the sentence that I will shortly pronounce, I am sure that will have a very strong deterrent effect upon you. 

122I must also seek to deter others who might be minded to commit this type of serious offence.  It is not that unusual a setting, that is, a man getting fired up in relation to a love rival or not taking kindly to the end of a relationship.  There is very often that style of conflict.  It happens all the time.  There are very many mindless acts of violence committed in such a context as that.  It is not now uncommon a response regrettably, so general deterrence is a highly relevant purpose here.

123Your counsel argued that it was open to place you on a Community Correction Order, and your offending did not demand an immediate term of imprisonment.  Sending any person to prison is always a matter of last resort for any court.  I must not confine a person unless the purposes for which sentence is imposed cannot be achieved by a Community Correction Order.  That has, in fact, always been the case.  I was taken to the case of Boulton which contains a guideline judgement of the Court of Appeal of this State dealing with Community Correction Order dispositions.  That is a disposition which is now open in combination with the passing of a sentence of up to two years imprisonment.  Sometimes such a disposition will be open, sometimes it will not be open.  There are some cases where, regrettably, only an immediate term of imprisonment will suffice, even one in conjunction with a Community Correction Order.  That decision counsel has judged it at my level to reconsider and to revisit our conventional wisdom as to when a prison term is required.  The Court of Appeal say that the sentencing landscape has changed very dramatically and they say that sometimes it is open to place a person on such an order, even for offending that previously would have been visited with a substantial median terms of imprisonment.  The rider of course, is this.  If it is appropriate in the particular circumstances of the particular case.  These dispositions are not a get-out-of-gaol free card as your counsel correctly spells out in her written submissions.  They are not available, they are not to be used for every offender and for every crime.  I am not assisted by considering what would have been the outcome prior to the case of Boulton.  The case has been misunderstood by very many in the legal profession.  I am not suggesting your counsel misunderstands it, but it is cited now in virtually every case coming before this court, as though the Court of Appeal was laying down some definitive guideline for every particular case and suggesting that in every particular case, a disposition such as this would be open.  That was not what the Court of Appeal was ever contemplating doing.  They said they were not doing it, even as they pronounced that decision and they have reminded the legal profession of this on a number of occasions since.  There are very many cases where a Community Correction Order will not be open, even in conjunction with a sizeable term of imprisonment. 

124What is made plain enough though, and it has always been plain, is that prison is a disposition of last resort. Section 5(4)(C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the court concludes that the purposes of sentence cannot be achieved by a Community Correction Order to which specified conditions are attached.  So, a judge has to then pay careful attention to the purposes for which sentence is to be imposed, and then consider whether they can actually be achieved by a Community Correction Order, either a stand-alone one or one imposed in combination with a term of up to two years. 

125I am quite confident that prison will in no way assist you.  I am equally confident that it does not assist any person who is sent there.  Sometimes the court is left with no choice.  Sometimes community protection or the need to punish or the need to deter drives that very unhappy outcome.  I do not really think that the community needs protection from you at this point, and how will prison assist your rehabilitation.  If it does not, and it will not, in my view, and of course I am bound to cast around for some other disposition which addresses your rehabilitation, as long as it can also adequately reflect the other relevant sentencing purposes including punishment and general deterrence.  Does such a disposition exist, given the nature of the serious crime committed by you.  If it does, then of course it must be selected over any term of confinement. 

126I have had you assessed for your suitability for such an order, but I have told you that you should take no comfort from my calling for an assessment.  You are judged to be suitable, and as I say, they judge you to be of medium risk of re-offence.  I think your risk is probably lower actually. 

127This was undoubtedly serious offending.  Make no mistake about that.  There is clearly a need to adequately reflect denunciation, general deterrence and punishment in any sentence selected by this court.  That such an offence was committed by a young person without any criminal record, there has been nothing committed subsequently.  You have pleaded guilty, you have that one outstanding matter of no significance at all.  You may very well be corrupted.  You undoubtedly would be damaged by the experience of being sent to prison at your age and stage of life.  However, I am afraid very many are.  Prison does not do much good to anyone.  I need no reminding of that from the Court of Appeal.  I need no reminding as the corrupting influences that abound in such a place.

128You are clearly not a hardened criminal.  The problem is, you have leapt in at the deep end. 

129   You are clearly not a hardened criminal.  The problem is, you have leapt in at the deep end.  You have committed a serious crime.

130   Yes, I am going to break from these reasons just for one moment.  I will ask that Mr Sacco remain in custody please.  He is not to leave the - not to leave the dock.  I will not be long and I will resume these reasons.  Louise,  Louise.  I should not be - I should not be long.  I will be back on the Bench within five or so minutes, thank you. 

131   (Short adjournment.)

132   (Upon resuming)

133   HIS HONOUR:  Yes, I am sorry for that.  All right.  Mr Sacco, the Court of Appeal  say that the conflicts in sentencing purposes are reduced, because a Community Corrections Order can rehabilitate and punish simultaneously.  They say that such an order can provide a substantial general deterrent effect and very substantial specific deterrent effect, that it can intrinsically punitive and with suitable conditions is capable of being highly punitive indeed.  That it can punish because of its onerous nature.  Now it is not the same nature of punishment as exists in a prison term, but still it can be highly punitive. 

134   The Court of Appeal suggests that Judges ask the following question:

"Given that a community corrections order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment, with all its disadvantages, is the only option?"           

135   What then is the answer to that question in this case?  It is here that I have undergone a change in approach and the ending will be happier than it was.

136   I quote then from a judge of some considerable distinction who said the following:

“I think it should be remembered that in the long run, the community is better served and better protected if a young offender is rehabilitated and led away from a life of crime,  than if after a short or long gaol sentence imposed to satisfy a public clamour for retribution, he is taught the ways of the    criminal”

137   This was not some ‘new-age’ liberal judge speaking last week.  These were the words of Sir John Young CJ, the Chief Justice of this State, uttered in the case of The Attorney General v Chmil and Zanoni.  He delivered that judgment back in August of 1977 and it was a decision that I will remember always carrying with me when I was a young barrister practising beyond that date.  The point is there is nothing new about attaching great significance to youth in these courts.  It occurs for good reason. 

138   I believe then that I can place you on a Community Corrections Order; that I can do so in the sound exercise of my sentencing discretion and I believe I can in fact do that without imposing an immediate prison term upon you.  So that is what I am going to do.  I am going to place you on such an order, a Community Correction Order, because I believe it can meet all of the needs of sentencing, including the adequate provision for punishment, denunciation and general deterrence.  

139   I am going to convict and admit you to a Community Corrections Order on each of these charges.  It is going to be for a period of four years.  It will commence immediately.

140   I need to explain this order to you.  I need to satisfy myself that you understand it; and that secondly that you consent to it.  I cannot place you on one of these orders unless you do consent.  It will take me a little bit of time to explain it, so bear with me, but listen very carefully.  I say listen very carefully because you breach this order and you do so at your own peril.  You will find your way back into that dock if you breach it.  You have probably been feeling bad enough sitting there over the last period today and in the course of the plea, you will be feeling a lot worse if you breach this order when you are sitting there. 

Mandatory Terms

141   As you will have picked up from the assessment process, and there is a document signed to this effect attached to the assessment report, every community corrections order has mandatory terms attached to them.  So they attach to you obviously enough.  They apply to every person who gets one of these orders.  Now they have been explained to you, and I am told that you understand what they are, so I am not going to spend too much time going through these, but - and they will be on the document but I will just explain those broadly now.  So then I am dealing now with the mandatory terms.  They apply to you.  The first is a pretty obvious one.  You must not commit, whether it is in Victoria or outside of Victoria, any offence that could be punishable by imprisonment.  Let me tell you virtually every offence these days is punishable by imprisonment.  If you are foolish enough to break the law and to commit an offence punishable by imprisonment, then you will breach this order.  I do not know whether there is an intervention order that exists between you and your victim, but there is going to be a non-association condition anyway, but again, I make plain you go near him, you communicate with him, you will see me again, and do that, I will despatch you in a prison van.  Understand?

142   ACCUSED:  Yes Your Honour.

143   HIS HONOUR:  So that is the first of the conditions.  Staying out of trouble.  Pretty straightforward for most of us and it should be for you I think.  You have for most of your life, but you have got to have a serious rethink about cannabis  because that will bring you into breach potentially.  And it does not depend upon another court locking you up, it is if you could be punished by imprisonment, so as I say, you have got to stay out of trouble.  You have to, you will see a condition on this document.  It will talk about how you've got to comply with it, obey the particular regulations within the Sentencing regulations.  What that means, you have got to turn up totally unaffected by alcohol, totally unaffected by drugs, on time obviously enough, for any attendance under this order.  They will have a photo taken for record keeping purposes as well.  You must report to and receive visits from the - it says the Secretary - but it is the Community Corrections Officer as directed.  There will be a community corrections officer assigned to you and you will have to report to and receive visits from them.  You will have to report to this Community Corrections centre within two clear working days of this order starting - well it starts today and you will have to get down to the Morwell Community Correction Services in Ann Street within two clear working days.  I would suggest you make an appointment today.  But that is a condition that - you have got to let them know within two working days of any change of address or, or job, and you are not to leave Victoria except with their permission, and you have to comply with any direction that they give you, well I tell - obey all lawful instructions.  So they are the mandatory terms.  Then there are the conditions, and they are things that I have some control over.  I impose them to deal with the particular circumstances of this particular case so your personal circumstances, your needs - but not just your needs, the circumstances of your crime or crimes and the extent to which I can reflect purposes of sentencing in this order.  There is an unmistakeable aspect of punishment embraced by this order.  Of course there is.  And that relates to not just the duration of the order and your need to be supervised and your need to turn up on time and - but also to one particular component being unpaid work.  So I am going to impose an unpaid work condition.  It is going to be a sizeable number of hours.  You must perform 450 hours of unpaid community work over a period of two years.  So that is in the first two years of this order, as directed by the Regional Manager.  You fail to comply with that order, you will see something on the document, I do not much like it being there.  It says that the Secretary to the Department of Justice may give you a direction to perform additional hours of unpaid work.  They have that power under some obscure provision of the Sentencing Act.  I do not want you to think well the worst that is going to happen if you do not do the work, is they are going to give you a bit more.  They will breach you.  All right?

144   The next of the conditions is you must be under the supervision of a Community Corrections officer and that is for the full period of this order - four years - you are under supervision.  They will tell you to turn up, you turn up.  Then there are conditions that are more designed to your - for your own needs, for treatment and hopefully to make sure I never see you again.  You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager.  There is also going to be a mental health condition.  You have got some issues.  You must undergo any mental health assessment and treatment that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager and you must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager. 

145   Now there is a fair bit in all that, and I will come back to it.  I do not know what they are going to ask you do by way of assessment and treatment or testing or mental health assessment, or other programs.  What I do know is whatever they say goes.  That is what you do.  You do not toss a coin and say "Will I or won't I?" or discuss it with mum, if they say this is what you must do, you do it.  There is going to be a non-association clause here.  Breach it at your peril.  As I say, breach this, I will send you to prison.  I will predict that right here and right now.  You breach this, you have no reason to contact the victim, but if you breach this condition, I will judge it to be a very serious breach of this order, and it probably is also a breach of intervention order I suspect, but you must not contact or associate with Adrian Roy Bartram directly or indirectly in the period of this order, all right.  That means what it says.  You do it by SMS, you do it by mail, if such a thing exists anymore, you do it on Facebook, you get someone else to do it for you, you're breaching this order.  You leave him alone. 

146   As I say, the 450 hours of community work is to be completed within two years, so to that extent, it is quite an intensive thing for you.  It is a significant punishment.  It is meant to be.  All right.  So they are the full terms and conditions.   You have not had one of these orders.  You have never been to court before.  You need to know what happens with these orders.   I have put a lot of people on these orders.  I see a lot of them back.  A lot of people breach them.  Many are breached by people who just do not have a relationship with their Community Corrections officer.  They fall out of contact, they move address, they go interstate, they could not be bothered turning up for work or for supervision or for treatment or for testing.  They are people who have been happy, often very relieved to sign the order at court because the alternative is a bleaker option always, that is prison generally, but it is amazing how people are content, relieved, even to sign them at court and they lose sight of the fact that the order is a continuing order for four years in your case.  I do not want someone put on one of these orders coming back by way of breach and saying. "I didn't know what could happen if I breached it."   It will not happen to me, because I am explaining to you potentially what happens if you are silly enough to breach this order.  Do not come back expecting a second chance. 

147   It is best for you to remember the way you felt when you came before me the other day.  Maybe the way you felt when you came before me today.  Maybe the way you felt when you heard my remarks earlier in my sentencing reasons before I broke and left the Bench.  You should be very relieved to be put on an order such as this.  I am not sure you realise it, but a very different ending had been written for you at 5 am this morning by me.  Do you understand?

148   ACCUSED:  Yes, Your Honour. 

149   HIS HONOUR:  Well, you will leave court now under your steam an do not do what other people do and then judge court as something in the past, it has all happened now, and you have - you have not been sent to prison and that is fine and you just get on with your life.  That is not what you can do.  You need to attach great weight to this order and to comply with it.  Turn up within the two working days and get it under way.  People have a way of consenting to these orders and then just forgetting about them or not complying with them or not giving them the priority that they should be given, and then they find their way back to court and then to prison in circumstances where they had avoided it.  How silly is that, and how stupid would that be for you?  When you have had such a narrow scrape as you have had, from going there today.  I see almost every manner of breach.  I have even seen people breach it by not turning up at the place within two clear working days.  They do not turn up for supervision, they could not be bothered to go to work, they construct reasons, all manner of reasons as to why they did not turn up, they try and provide that sort of explanation after the event, and they are almost always rejected by the community corrections officers.  I have not told you what happens if you breach this order, and I better.  I will guarantee you one thing, you will be back in the dock either in this court or up in Melbourne, it will be one or the other, and you will be there.  There will be a knock on the door and in from the door will come a judge.  You know, in the Magistrates' Court I think sometimes they deal with other Magistrates' breaches.  That does not happen in this court.  There will be knock on the door, in through the door will come a judge and I am afraid it will be me.  That is who it will be.  It will not be another judge, it will be this judge coming in with notes that I have made of what I have been told on your behalf, with my sentencing remarks, not the version I came in with, the version I am now reading, not the version that had you going to prison, the version to have you leaving that dock under your own steam, so I will be dealing with you for the breach.  I cannot tell you exactly what I would do if you breach this order, because of course my obligation would then be to listen to what your counsel had to say on your behalf.  I have to learn about the nature of any breach, was it breach by offence, or a breach by non-compliance and if non-compliance, which condition didn’t you comply with or maybe a bit of both.  I have to factor in how hard you have tried on the order, how many hours you have done, what sort of effort that you had made and the nature of the breach.  So of course I cannot tell you what I would do, but get it into your head, understand this, contravening or breaching one of these orders is itself a criminal offence that is punishable by three months, that is bad enough, but that is not the real sting.  The sting to it is this.  You breach this order, you come back before me.  We will see each other again.  I do not want to - I do not want to see again - and I am pretty confident you will not want to see me again, and if I do not see you again, that will be because you have complied with this order.  Well, you comply with this order, we are talking about four years now, you are getting up to being a 27 year old.  You will be well on the way and that would be a big win for you and for your family and for me.  It would justify the different ending that I have scripted for you today.  All right, well hopefully that is the position, but if I see you again, well you will have breached the order.  As I say, I will listen to anything that was said on your behalf, but you have got to factor in this - think about how you feel or felt today, earlier today and the other day, and leading up to court.  Were you going to be going to prison?  Were you not going to be going to prison?  You did not know.  Your mum did not know, your step-father did not know, your father, I do not know what he knows of all of this, but he would not know.  Think of the impact upon all of these people, think of the impact upon you.  I would listen to anything that was said, but you need to understand this.  The most commonly exercised power, at least by me, when people breach one of my orders, is I cancel it.  All right?  Cancel the order.  So that is the most likely outcome.  If I cancel this order, what I then have to do is I have to re-sentence you.  We are back to scratch.  Except not back to scratch, a re-sentencing exercise for this crime, for all the matters that I have dealt with in terms of the aggravating features of it, but in a setting where the person who now falls to be sentenced has been given a chance and has breached it.  All right?

150   So you work on this theory, that if you come back before me, it almost certain that the order will be breached, cancelled, and in those circumstances, you come back upon breach and cancellation of that order by me, you will not get another community corrections order, you will not get another chance, this is it.  This is it.  This is it.  This is your last chance.  You should expect, and this is the theory you should be working on.  Work on the theory that if I cancel this order I would impose a very significant immediate prison term.  Not one in conjunction with a Community Correction Order - an immediate prison term and one the dimensions of which will require me to fix a non-parole period.  All right?  So you think about that, if in the course of the next four years, you are umming and ahhing as to whether you will get down and do the unpaid work, or turn up for supervision, breach this order, it is most likely I will send you to prison - not for months - but for years.  You have heard me describe the average term of imprisonment that is imposed, or was in the relevant time frame - two years, 9 months.  All right, and that is - and that is for an average type crime presumably.  I am not sure yours is an average type crime at all.  Anyway, that is probably enough in terms of that.  I think you follow what I am saying.  Breach this, you put yourself at risk of cancellation of the order and a substantial term of imprisonment with a non-parole period being fixed.  All right.  Ms McFarlane, are you satisfied I have got informed consent?

151   MS MCFARLANE:  Yes, Your Honour.

152   HIS HONOUR:  Do you want to go down and have a quick word to him or not?

153   MS MCFARLANE:  I do not need to, Your Honour.

154   HIS HONOUR:  All right, okay, let me just see.  Is this the order here is it?  Pardon me?

155   ASSOCIATE:  It is a draft.

156   HIS HONOUR:  Draft okay.  I will have that order come down, in fact you can come out of the dock, I think.  That is - that is the better way of doing it.  Come out of the dock and come down towards the Bar table.  I will have - just have a seat next to - in that front row.  Can you hand up the ancillaries now and I will just - I will have the order just come.  Just both of you look at the order would you, and make sure that it mirrors my stated intention.  Is that - that - nothing in it that should not be in it, or - - -

157   MS MCFARLANE:  No, Your Honour.

158 HIS HONOUR: No, okay, we will have that order signed I think so - I will just have that order copied. In addition, just remain seated. There has been an application made for a compensation order in favour of Mr Bartram for the damage to the car and the notice you have taken of that order being made and I upon convicting you for the charge of criminal damage, and I am satisfied that there has been loss suffered and I order that you pay to Mr Bartram of the amount of $2454.74. I have signed that order made pursuant to the provisions of the s.86 of the Sentencing Act.  Now I will need the non-custodial one for that. 

159   In addition there is an application for a forensic sample and there is no opposition taken to the making of this order, so I order that pursuant to the provisions of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the provisions of the Act until a sample of sufficient standard is obtained for placement on the data base.  I order that you, for the purposes of this procedure, report to the officer-in-charge of the Traralgon Police Station in Kay Street, Traralgon in the period referred to in the document.  I am satisfied that the making of the order is justified for the following reasons.  The seriousness of the circumstances of the offence, that it is unopposed, and the granting of the order I judge to be in the public interest and justified. 

160   What that all means, you need to - you will get a copy of this - you will need to turn up at the Traralgon Police Station and have a swab around your mouth.  It is not a big - it is not a big thing.  The reason I had to sign that and again I do not know necessarily that you understand the narrowness of your escape, the one I came onto the Bench with is the one that is already signed, which is the custodial version of this document, all right?  All right?  But the one that is now operative is the - is the non-custodial version. 

161   Finally, had you been found guilty following a contested hearing before a jury, I would have sentenced you to a term of four and a half years imprisonment.  I would have fixed a non-parole period of two years and 9 months and that statement is to be noted in the records of the court, pursuant to the provisions of s.6AAA.

162   Now the corrections order.  Can I just have that back up here please.  All right.  With the two years and 9 months.  So, you have signed that order, Mr Sacco, is that so?

163   ACCUSED:  Yes.

164   HIS HONOUR:  Yes, okay, just stand up then please.  All right, do you confirm that you have signed this Community Correction Order.

165   ACCUSED:  Yes.

166   HIS HONOUR:  And do you consent then to entry into this order?

167   ACCUSED:  (No audible response.)

168   HIS HONOUR:  Is that right?  Yes?   You have signed this order under the words, "I understand the effect and the conditions of this order and consent to it being made" and that is the position?

169   ACCUSED:  Yes.

170   HIS HONOUR:  Yes, all right, and what is your understanding as to what might happen if you breach this order?

171   ACCUSED:  Go to gaol.

172   HIS HONOUR:  Go to gaol, yes, all right, well you have picked up the right message then.  All right, well hopefully that does not happen.  All right, are there any other matters for me to deal with then, or not?

173   I will sign that order in a moment and then the matter will be complete.  Yes, all right, well I have signed that order then.  Yes, that completes that matter then so all right.  Mr Triandos, there is the one matter remaining I think.  Ms McCrickard is here.  She has been waiting patiently.  My inclination is to move on with it and to deal with it.  Do you have any issues with that at all or not?

174   MR TRIANDOS:  No.

175   HIS HONOUR:  All right, I will leave the Bench.  Yes, all right I'll stand down thanks. 

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