Director of Public Prosecutions v Sein

[2016] VCC 402

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00455

DIRECTOR OF PUBLIC PROSECUTIONS

v

WALTER SEIN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 April 2016
CASE MAY BE CITED AS:	DPP v Sein
MEDIUM NEUTRAL CITATION:	[2016] VCC 402

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Saville	Office of Public Prosecutions
For the Offender	Mr R. Backwell	Greg Thomas and Associates

Pages 1 - 5

 

 

HIS HONOUR:

1What I propose to do is, the finding of the jury that he committed the offence leads me to make a supervision order, that is to commence from today, 13 April 2016, that pursuant to s.28 of the Act the nominal term for the order is 25 years.  I just pause for a moment there.  Do I set it as today's date or do I set it from the date that he went into custody so it is counted?

2MR BACKWELL:  I think it is today's date, sir.

3HIS HONOUR:  Thank you.  I think if it's a custodial order it might be different.  I think you do take into account now time spent, as it were.  It was not originally.  Setting a nominal term for the supervision order, the court must declare the day from which the nominal term runs.

4For the purposes of declaring a day under sub-s(4) the court may take into account any period of time during which the person the subject of the order was held in custody or detained in the appropriate place in relation to the proceedings to the offence which led to making the supervision order or proceedings arising from those proceedings.  So that is s.28(5).

5So if the supervision order commences today, pursuant to s.28 of the Act, the nominal term for the order is - do I say it is 25 years less one year three months or however many days, 400 and whatever days.  Is that how it is expressed?  Or do I deduct it myself and try and say that the nominal term is 23 years eight months and three days, or something?  Do you know?

6MR BACKWELL:  No, because the nominal term is set by statute, that being the maximum penalty for armed robbery because armed robbery is a serious offence.

7HIS HONOUR:   Yes, 25 years, yes.

8MR BACKWELL:  So Your Honour, in my submission doesn't have the power to deduct administratively the one year three months 25 days.

9HIS HONOUR:  So in setting a nominal term for supervision the court must declare the day from which the nominal term runs.  So the day it starts.  So pursuant to s.28, the nominal term is 25 years.  The day from which the nominal term runs is - what was the day he went into custody?

10MR BACKWELL:  20 December 2014.

11HIS HONOUR:  It runs from 20 December 2014 for 25 years.  I think that has done it, pursuant to s.28(4) and (5).  Pursuant to s.35 of the Act, a major review shall be undertaken at least three months before the expiration of the nominal period.  There is to be a review of the supervision order pursuant to s.27(2).  That review is to occur on or before 12 April 2016.

1217.  The conditions that apply to this order pursuant to s.26(2)B is to be released and made the subject of a non-custodial supervision order to be supervised by the Secretary to the Department of Health and Human Services on the following conditions:  That he reside as directed by the Secretary of the Department of Health and Human Services or the Secretary's delegates.  (b) That he accept services from and obey all lawful instructions and directions given to him by officers of the Secretary of the Department of Health and Human Services or the Secretary's delegates;  (b) Attend appointments with medical and/or health professionals at times directed by those persons and receive such treatment as is considered appropriate by those persons and that he not consume any illicit substances and obey all lawful instructions and directions given to him in relation to the consumption of alcohol by officers of the Secretary of the Department of Health and Human Services or the Secretary's delegates.

13Those are the conditions and I make the order mindful of the provisions set out in s.39 and 40 of the Crimes (Mental Impairment and Unfitness to be Tried) Act.  I do not propose to list or go through as a detailed analysis of each and every aspect of it.  That if required will come at a later point.  I needed to make things perfectly clear to Mr Sein.

14So I am going to talk to you for a minute, Mr Sein.  Can you hear me down there?

15OFFENDER:  Yes.

16HIS HONOUR:  If you do not understand something, you tell me.  You are going to be released from prison today but you are under an order and I manage that order.  It comes back to me if you do not do what you are supposed to do and what you are supposed to do is work with Ms Habel, to settle into the house that they have arranged for you.  It is a unit.  They will help you work things out there, how to live, get your food, manage, get whatever Centrelink payments you are able to get, that sort of stuff.  Your bank account or something.

17So cooperate with them, they are there to help you. There will be other things that will flow on from there.  They will help you hopefully in time to try and get some employment.  But you have got to do what they ask you to do or tell you to do. So if they say, "Come to see us", then be on time.  Be early.  Catch the earlier bus.  Do you follow?

18OFFENDER:  Yes.

19HIS HONOUR:  Because they will start to get worried if you don't turn up.  So will I.  You might have to see a doctor or health professionals just to see how things are going with your health and your psychological state as well.  So you have got to go to appointments with other people other than Ms Habel.  Do not be late for them, turn up.  They are trying to help you.

20Now, you are not to take drugs.  It is against the law to do it but you will breach this order if you do and you will come back here and I will have little choice but to consider cancelling the non-custodial part of it and just returning you back to gaol.  Because if you take drugs, you are going to cause trouble to people.

21OFFENDER:  All right if I drink?

22HIS HONOUR:  Yes, we are just about to get to that.  You have to talk to Ms Habel and the other people at the Department who are there to help you about alcohol.  Alcohol, I would be out of a job here, I would not have a job if there was no alcohol.  People cause all sorts of trouble to themselves and the rest of the community because they drink too much.  If you drink too much, you will be back here.  It will go badly.  So listen to them about what level of drinking they will allow.  Got it?

23OFFENDER:  Yeah.

24HIS HONOUR:  The prisons are full of people who drink too much.  Try not to be one of them because you are still pretty young.  And in 12 months you will come back here and we will see whether you are going well.  But if at any time you are not going well, the Department can bring it back here and change it and the change will be that you will sit in the back there and you will be taken out the back door and you will waste your life.

25So work with them, they are giving you a lot of resources to try and help you.  Do not threaten people. Do not have weapons.  Do not do what you did on this occasion or many others before it.  So you  have been given a chance, it is a bit of a risk that has been taken and it is hoped that you might be able to get through it with the help of people who are there to help people with problems like yours.  Do you understand all that?

26OFFENDER:  I understand.

27HIS HONOUR:  Thank you.  Is there anything further required.

28MR BACKWELL:  No, Your Honour.

29HIS HONOUR:  I will sign an order that is produced in due course.  You will have to go downstairs and just be cleared out of there when the document that I sign is ready. Someone, as I understand it, from the Department will take you to where you are going.  Right from the start, cooperate.  So when that happens, who knows?  Some time today hopefully.  Thank you very much for your assistance, Mr Backwell and Ms Saville in this matter.  We will see how we go.  Ms Hagel, thank you very much for your assistance, to your team leader and to Ms Lee Smith who did the report.  We will see how it goes.

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