Director of Public Prosecutions v Siely

[2015] VCC 1669

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAXWELL RONALD SIELY
JOHN COLIN MARTIN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	18 November 2015
CASE MAY BE CITED AS:	DPP v Siely & Anor
MEDIUM NEUTRAL CITATION:	[2015] VCC 1669

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 J. Taylor
For Offender Siely	Ms A. Burrnard
For Offender Martin	Mr P. Murphy

HER HONOUR: 

1Maxwell Ronald Siely and John Colin Martin, you have each pleaded guilty to one charge of aggravated burglary and one charge of robbery.  The facts underlying your offending are as follows:

2The two of you have known each other for about 40 years.  At the time of the offending you, Martin, were residing in Orbost.  You, Siely, had come down to Orbost, where you were well known, from Bega in New South Wales.  You,
Mr Martin, also knew the complainant in this matter, Wayne Boltch, who, with his partner, Selina Kleinhens, and their seven year old daughter were living some doors down from your house, Mr Martin. 

3During the afternoon of 18 December 2013, the two of you were drinking cask wine and some time prior to 9 pm walked to Boltch's house.  He had been discharged from hospital and was at home with Ms Kleinhens and her daughter.  The two of you walked up to the front of the house, knocked on the door and Mr Boltch opened the door and saw you, Martin, he saying, "What do you want?"  You said, "I'm here to rob you and I want your money."  The two of you then entered the house.

4At this time Ms Kleinhen's daughter was playing with a mobile phone on the lounge room floor and Ms Kleinhens, herself, was lying upstairs on her bed.  You, Siely, said, "Come on, go, go, go.  We want your money, go, go, go" and the two of you followed Mr Boltch upstairs, walking into the bedroom where Boltch had $800 in cash on a side table.  He handed you, Siely, a small bag of cannabis and the cash.  The two of you then went downstairs to the front door.  As you were about to walk out, you, Siely, said to Mr Boltch, "Don't go to the cops.  Don't tell nobody, otherwise we'll be back and we know where your family is."  The two of you then left the house and went back to the home of a mutual friend, Sonya Hood.

5You were arrested on 20 December, Mr Martin, by police at Sonya Hood's home and taken to the Orbost Police Station where you were interviewed.  You said that you had gone to Mr Boltch's house to buy cannabis and that while entering the front door, Siely appeared and then committed the offences, you saying you were scared, and then you made a written statement to police implicating Siely in the offending.

6At about 2.30 pm later that day, you Siely were located by police in Bairnsdale and arrested and interviewed, during which time you denied any involvement in the offending saying that the police had set you up.

7The maximum penalty for aggravated burglary is 25 years' imprisonment and the maximum penalty for robbery is 15 years' imprisonment.

8I now turn to the personal circumstances of each of you, beginning with you, Max Siely.

9You are 47 years old and a Gunaikurnai man.  You were born in Albury to your parents, the third of four children.  Your father is now deceased but you remain close to your family.  You have two sisters and a brother, none of whom have done anything but go on to lead good constructive lives.  Your mother, who is in her 80s lives in Bairnsdale.  Your early years were spent in New South Wales where your parents worked on a large cattle station, but the family subsequently moved to Bairnsdale where you completed primary school.  It appears, according to the report of psychologist, Carla Lechner, dated 9 November 2015, that during primary school you displayed behavior which would currently attract a diagnosis of ADHD.  You completed Years 7 and 8 at Bairnsdale Technical School.  You had a difficult childhood because your father was alcoholic and violent both towards your mother and the children and you left home at 15 to live with a family friend.

10You have a varied employment history, but you have not worked since 2009, due to an incident which I will refer to shortly.  Your employment has included working stacking shelves at Woolworths, the commencements but non-

11completion of a bricklaying apprenticeship, tree lopping, working at the Aboriginal Cooperative collecting koori artefacts, and in welding, and you have had casual laboring jobs. 

12You have four children by three different partners.  Your three eldest children are girls.  You have no contact with any of them.  However, you also have a four year old son Max who resides with his mother in New South Wales. 

13You have a long prior criminal history beginning when you were 16 and placed in youth detention at the then facility, thankfully now closed, Turana. 

14You have prior convictions both in Victoria and in New South Wales and the ACT.  Many of them are street offences involving alcohol.  There are other driving offences.  However, there have also been some serious matters in your past.  In particular, you have twice been dealt with for stalking.  You certainly have a problematic history insofar as your relationships are concerned.  You have previously been dealt with for armed robbery, which your counsel informed me involved the use of an imitation weapon draped in a tea towel, and in 2012 you were dealt with for a series of charges which were mostly street charges, but also included recklessly causing serious injury.  It would appear from a transcript where that offending was canvassed during other court proceedings that incident involved your assault on a woman as a result of an argument that arose when you were drunk, she received fractures to her eye socket, and on that occasion you were sentenced to 18 months' imprisonment, 12 months of which was suspended for a period of two years.

15Along the way you have, however, been to court on almost innumerable occasions for charges such as unlawful assault, criminal damage, making a threat to kill, threatening serious injury, breaching intervention orders, there have been burglaries, there have been thefts, there have been criminal damages, and as I said, there has been a series of driving offences.  It is a record of criminal offending that has seen you spending, it would seem, something in the range of ten years all up in gaol. 

16It was Ms Lechner's opinion, one which was echoed by your counsel on the plea, that you have run the danger of becoming institutionalised.  I do not accept that submission.  You are 47 years of age.  You may have been in gaol for ten years on and off over the years, and it may have been that you got comfortable in gaol, but I do not regard you in any way as having served sufficient time in gaol to categorise you as a man who is institutionalised. 

17This offending that has brought you before the Koori Court on this occasion was clearly opportunistic, spontaneous and unplanned offending.  It was offending which appears to have occurred in the middle of a session of drinking. 

18Your drug and alcohol history is long.  It appears that alcohol has been your main problem over the years, but for 20 years you were a regular user of amphetamines, which is a very damaging drug.  You have also used cannabis.  I note you apparently have only used heroin once.

19There was some psychological assessment and testing of you by Ms Lechner on her visit to you at the Melbourne Remand Centre, where you have been held since your arrest in these matters.  I do not accept the test results.  I do not accept that you are a person who has an IQ which would have you fall into the intellectually disabled category.  I regard that testing as inadequate, and certainly my observations, for what they are worth, during the sentencing conversation in no way led me to form the opinion that you are a person who suffers from intellectual disability. 

20The sentencing conversation was, as sentencing conversations in the Koori Court always are, extremely illuminating.  You have an extremely impressive family.  I was enormously impressed by your sisters and by your brother-in-law.  I was assisted greatly in that sentencing conversation by the Elders who know you.  In particular, your Aunty Di has known you since you were a child.  You are closely related.  For what it is worth, my observation is that you may have had a very difficult time at the hands of your father.  Presumably so did your sisters and older brother.  Somehow, possibly because you are the youngest, you seem to have been coddled through this.  My concern during the sentencing conversation, which really just echoed the concerns expressed by the Elders, was that you have never formed the internal structure in your life to allow you to lead a responsible and productive life.

21You have had a difficult time in the last two years.  You have been held at the Melbourne Remand Centre for - I think it is one year ten months and 29 days, so pretty much it is two years.  During that time the riots occurred.  You were placed in lockdown for six weeks.  You have never had access for an extended period of time to the programs that you would have had in mainstream gaol had you been sentenced.  There has been a delay in this matter, partly because of the illness of your co-accused, Mr Martin, to which I will refer briefly, although I do note that a contested committal was held in this matter and that up until quite recently it was expected that these charges would be the subject of a trial before a jury.  However, I do accept from my observations of you at the sentencing conversation that you are remorseful for your offending, although it does seem to me that part of that remorse has been based on the experience you have had since your arrest.

22Your plans on being released from gaol are to immediately go to Bairnsdale and spend some time with your mother, who I understand is unwell.  She has, in particular, had a number of joint replacements.  She has a carer, and I am certainly satisfied that you genuinely love your mother and want to be of some assistance to her. 

23Your troubles are not over in that it appears you have outstanding matters in New South Wales, where your son resides, and it may well be that you are going to have to serve an extra term of imprisonment up there, which you frankly acknowledged during the sentencing conversation.

24I said to you during the sentencing conversation, and I will repeat it again, Mr Siely, you are just getting too old for this.  The time has come.  You expressed the sentiment that you were sick of gaol and you did not want to go back.  I am not necessarily satisfied that you are fully shouldering responsibility for the ills that life has thrown up to you.  It does seem to me that there was an air of some self-pity as to your situation, a tendency to blame circumstances external to yourself, and I do not know that you have fully taken on responsibility, not just for what you did on the occasion that has brought you here before this court, but for the way your life has progressed up until now.  It is a life that is sharply in contrast with the lives that your sisters and your brother have lived, and part of that is entirely down to you. 

25It is quite clear, in my view, that you have used your time, your difficult time, at the MRC productively.  You have undertaken a peer review course and, indeed, have worked in that capacity whilst in the MRC for more than a year.  You have undertaken drug and alcohol programs.  You are working as a billet in your section, which is a position of trust.  I am impressed by your efforts within the gaol.  It is all very well being a man who reaches out and behaves responsibly in a gaol.  You are going to have to do that when you are released, and that, in my view, is your greatest challenge.

26It was submitted to me by the prosecution that I should deal with you by way of sentence which would involve a parole period.  In order to do that, I would have to sentence you to a term which involved a minimum of at least two years, and without in any way trivialising the seriousness of your offending, it is my view that that sort of sentence exceeds what is appropriate in this case.  The concern is, of course, that you will then go into the community not under the supervision of Community Corrections in any shape or form, but I am comforted by the prospect of you returning to your mother, who you love dearly, and siblings, who themselves lead strong, constructive lives and who remain supportive of you.  In some respects, perhaps a bit too supportive.  A lot of excuses have been made for you, I think, Mr Siely, over the years, and I think you are probably the baby boy of the family and it might have gone on a bit long.  You are clearly beloved by your sisters and your mother, and I am sure you have caused them endless heartbreak over the years. 

27As was noted by the Elders, however, you have a great deal of good in you.  You are a good worker when someone gives you work and when someone directs you what to do, and I have no doubt that you aspire to be a productive member of the community, but this is something you are going to have to organise for yourself, Mr Siely, rather than relying on others, all right?

28OFFENDER SIELY:  Thank you so much, Miss.

29HER HONOUR:  That is all right.  In all the circumstances, therefore, I am going to sentence you as follows.  Could you stand up, please.

30The sentence will be an aggregate sentence, which is appropriate in my view, as both charges arise from the same set of circumstances.  I also note there was no victim impact statement, but it was made very clear to you during the sentencing conversation, Mr Siely, the court can fairly assume that you would have terrified that seven-year-old child playing on the lounge room floor when you forced your way in with Mr Martin.  She would have been terrified when she saw her father pushed up the stairs.  She would have been terrified by the aftermath of distress when her mother, who was unwell, her father, who it seems had just got out of hospital, were then subject to the enormous distress of having been subjected to their home being invaded and a robbery taking place within it.  That is to say nothing of the distress that you would have caused to both adults in that house.  Home invasion is a particularly nasty crime, it leaves people feeling insecure in probably the one place that people usually can confidently expect will be a haven, and that is your home, your family home.  You had disrupted that for who knows how long, and it is the experience of this court that children subject to the sort of scenario that that child was subjected to take many, many years to recover and it will always be a memory of fear that that child will carry with her.  As a father of four children yourself, and particularly one who is particularly hoping to involve yourself productively with a four-year-old, only three years younger than that little girl, this is something you need to give very serious thought to.  When you apologised for what you had done at the sentencing conversation, you said "I'm sorry about what happened."  You did not say "I'm sorry about what I did."  It is quite significant.  It is not just what happened, it is what you actively did, Mr Siely, and you need to take that on and you need to take that in and that needs to be part of you accepting responsibility for your life, what you have done before and what you hope to do now.

31In all the circumstances - 629?

32MS BURRNARD:  Six ninety-eight not including today.

33HER HONOUR:  On both charges I sentence you to a term of 699 days' imprisonment.  I declare that 699 days of that sentence have already been served by way of pre-sentence detention.  Can you have a seat, please, sir.

34MS BURRNARD:  As Your Honour pleases.

35HER HONOUR:  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and six months and ordered that you serve a minimum term of two years and six months. 

36I now turn to you, Mr Martin.

37You are 53 years of age.  You are one of seven children born to your parents.  Your father is still alive, although unwell, and you have been brought up in the Orbost area.  You too are a Gunaikurnai man.  You, as opposed to Mr Siely, had a happy and stable childhood.  The sentencing conversation made that very clear, as did your counsel.  There was very useful information obtained from your sister, Lyn, and your older brother, Bootsie.  Other members of your family have gone on to lead productive and law-abiding lives and it was frankly conceded on the plea that you are something of a black sheep in the family. 

38You left school at age 14 and you left with poor literacy skills, but apparently you have taught yourself to read.  You have a reasonable employment history as well.  You have worked as a paddock labourer, in abattoirs, in market gardens on the flats in the area, you have worked as a cleaner for the Koori Health Service in Orbost.  You have been on the disability pension for about ten years.  You married and had four children, now aged between 18 and 24.

39Your sister Lyn, who has an extremely impressive work history (she has been working in Client Services at VALS for 20 years, she has worked in the Education Department and is a registered nurse, and I was very grateful for her presence at the sentencing conversation, it was extremely useful). She informed the court and the table that on the demise of your relationship with the children's mother about 16 years ago, the family got together and organised rental housing for you in the private market, which housing you still maintain, and that is to your credit.  That was largely done because you took on the care of your four children for some years. 

40Whilst you yourself had a stable childhood, it is of some concern that because of a sort of inconsistency in parenting between yourself and the children's mother, your children themselves are now presenting with some problems.  However, it is impressive that you took over that parenting role, and I understand that you have managed to keep a good relationship with the children's mother and that essentially your home in Scott Street, Orbost is a bit of a haven for them when things go wrong.  I am going into some detail about your role as a father because it seems to me an important part of the plea material advanced on your behalf.

41At the age of 16, you were placed in Turana, and your sister Lyn again spoke in rather distressing terms of the enormous difficulty that your family experienced in attending at that institution.  Your older brother, Bootsie, was also present at the sentencing conversation.  He is a man who has gone on to do enormous valuable work within the Aboriginal community, particularly in the drug and alcohol area, in Broadmeadows.  He spoke of how his parents blamed him to some extent for your early descent into criminal activity, but unlike your brother, you appear not to have pulled yourself out of it. 

42You have been in court on innumerable occasions as well over a long period of time, often for street offending, but also often for assaults and for burglaries and thefts, and it has not been to your credit that you have behaved in that way.

43Your last appearance of note, if I can put it that way, and I am not trivializing what went thereafter, was in 2002 when you received a nine months' intensive corrections order for a charge of recklessly causing serious injury, which you successfully completed, which is no mean feat, because intensive corrections orders are extremely difficult orders, carrying with them a sentence of imprisonment which could be breached and involve considerable commitments by those placed on them to successfully complete such an order.  Thereafter, in 2007 you were fined for street offences, such as being drunk in a public place, for assaulting police, again another fine, and then in 2008 for being drunk in a public place and then in 2013 for willfully damaging property. 

44You, too, have had a long history of illicit substance abuse.  Essentially, as I understand it, your drug of choice has been cannabis, and it would appear on this occasion you had been smoking marijuana and were under its effects when you attended at your victim's house and behaved in the way that you did. 

45As a man who has been a hands-on parent, and continues to be a hands-on parent, is particularly reprehensible that you would behave in the way you did, firstly, in shattering the safety and security of the home that you broke into uninvited and for behaving in the way that you did in the presence of a seven-year-old child.  I am satisfied that had you not been using cannabis, your appreciation of the seriousness of what you did might have been more evident to you.  However, it is no credit to you that at the age of 50 you are wandering down the street high on cannabis and breaking into a house. 

46I heard at the sentencing conversation that you thought that the house contained only its male occupant.  It must have been pretty obvious once you got in there that it did not or you may have been too affected by cannabis to notice.  However, whatever the situation, it is quite clear that your use of cannabis, which has been ongoing for decades now, had a big role to play in your participation in this shameful offending, and it is shameful, and did not allow you to make proper decisions about matters which you have got a perfectly good capacity to appreciate.  I do not think for one minute, Mr Martin, if you were not under the influence of cannabis, you would regard it as in any way appropriate to break into someone's house and rob a man in front of his seven-year-old daughter.  So, that means, firstly, your decision about doing this in the first place came about as a result of, really, a cotton wool head, and your ability to even appreciate that a child was there and react appropriately by leaving was also compromised because you were using cannabis.  Cannabis is often said to be a harmless, benign drug.  In your case it has not been.  It has allowed you to behave in a way which, on my observations of you and the information I have received about your role in raising your children, is something you would otherwise never have done, so it is not a harmless drug at all.

47Your situation is vastly different to that of Mr Siely's.  Firstly, as I have indicated, your prior criminal history is less significant.  Secondly, you suffer very serious health problems.  Not long after this offending you were diagnosed with lung cancer.  You have a long history of epilepsy.  You have been treated with chemotherapy and radiotherapy and, on occasion, this has activated your epileptic condition and caused particular problems.  You have also had two heart attacks, one almost fatal, where in fact, as I was informed by your sister Lyn, you were brought back to consciousness.  You remain in a much diminished position.  You are ill.  Your breathing is obstructed.  You have not been operated upon for your condition, but it is a potentially fatal one and, I am satisfied, limits you greatly in your everyday living. 

48I am of the view that service of a sentence of imprisonment by you would be almost unbearable in your current state and that the limbs of Verdins, which dictate as to sentencing in the light of a person's greater difficulty of a service of imprisonment compared to normal prisoners, have particular and special application in your case. 

49I am satisfied you are truly ashamed of your offending.  I am also satisfied you are ashamed of the stress that you have yet again brought upon your extended family. 

50It is certainly my view that your rehabilitative prospects, largely because of your medical condition, are excellent.  It is my view unlikely that you would re-offend, and I am comforted somewhat in that view by your recent criminal history.  I do not find that you present a danger to the community.  You were mostly cooperative with police, although it would seem that the role that you ascribe to yourself is perhaps less than was actually the case. 

51I note that the committal was conducted by way of hand-up brief and that to some extent you were prepared to be cooperative with police beyond the contents of your record of interview.  I do not regard you as an appropriate vehicle for general deterrence, nor, in my view, do the principles of specific deterrence, denunciation, just punishment, and so forth, operate in the sentencing exercise before me such that I should deal with you by way of imposing a sentence of imprisonment to be immediately served.  In other words, Mr Martin, I do not propose placing you in gaol.

52Could you stand up, please, sir?  Are you all right to do that?  Have a seat.  Have a seat, Mr Martin, it is all right.

53In all the circumstances, I propose placing you on a community corrections order.  I do not propose, in light of your medical condition, to attach any special conditions such as work hours or anything like that.

54Now I can only place you on a community corrections order, Mr Martin, with your consent.  I need to explain to you what those conditions are.  They are that, firstly, you must report to a Community Corrections office, the details of which will be provided to you within two working days of the making of this order.  That is by Friday.  Whilst you are on the order, which will last for a period of two years, you must not commit any other offence punishable by imprisonment in Victoria.  What that means is, if you knock off a box of matches from Woolworths, you might not get gaol for it, but theoretically you could, and that would be a breach of the order.  So pretty much any offending you do, all right?  And that includes cannabis.  Not all charges relating to cannabis can result in a sentence of imprisonment but others can, and, in any event, smoking is certainly not the best thing for you at the moment.  But if you commit another offence punishable by imprisonment, you will be brought back in front of me and I will breach you and I will re-sentence you on this, all right?  You probably will not get another chance like this one.

55The third condition is that you must report to, and accept visits from, the Community Corrections office; you must notify the Community Corrections office of any change of address or employment within 48 hours of that change; and you may not leave Victoria without the permission of the Community Corrections office.  So that does not mean you cannot go out of Victoria, but you have got to get permission first.  So those are the conditions.  Are you prepared to enter that order?

56OFFENDER MARTIN:  Yes.

57HER HONOUR:  Thank you.  We will print out the material.  Because I have imposed a community corrections order, I am not obliged to give a sentencing indication pursuant to s.6AAA. 

58Going back to Mr Siely, I probably should add that in sentencing you as I have, I take into account your plea of guilty, for which you must be given at least utilitarian credit.  I take into account the way in which you have conducted yourself in the MRC.  I take into account the strong structure that you come into, and, in my view, the sentencing principles that dominate the process before this court, which are general deterrence, specific deterrence, just punishment, denunciation and community protection, are adequately answered by the sentence that I have imposed.

59OFFENDER SIELY:  Thank you very much.

60HER HONOUR:  Yes.  We will just print out the - application was made pursuant to s.464ZF in relation to each.  Are either of those applications opposed?

61MS TAYLOR:  No, Your Honour, it's just in relation to Mr Martin actually, because Mr Siely has already been profiled, I believe.

62HER HONOUR:  I'm sorry.  That's already been done, has it?

63MS TAYLOR:  Yes.

64HER HONOUR:  I'd be very surprised if Mr Siely wasn't on the records.  All right.

65MS TAYLOR:  It's a matter for Your Honour in relation to Mr Johnston.

66HER HONOUR:  I have to say, I just think - I don't think Mr Martin is someone whose DNA is going to add terribly much to the DNA bank, if I can put it that way.  I won't ‑ ‑ ‑

67MS TAYLOR:  As it please Your Honour.

68HER HONOUR:  I am not going to ‑ ‑ ‑

69COMMUNITY CORRECTIONS OFFICER:  Your Honour, can I just ask, is the community correction order going to have a condition of supervision on the order?

70HER HONOUR:  No, it's not.  I apologise.  I see you here in court.  I am just going to put the core conditions.  I do not want a special condition.  The decision that I have reached is that given his physical condition, including supervision - a special condition, including supervision, is not only unnecessary and probably a bit of a waste of fairly scarce Corrections resources, is very difficult for him to meet. 

71COMMUNITY CORRECTIONS OFFICER:  Okay.

72HER HONOUR:  What's the problem?

73COMMUNITY CORRECTIONS OFFICER:  Just I have not come across an order like this one previously, Your Honour, where it's an unassessed order and it doesn't have unpaid community work.  So as far as I was aware, the only way that they could get an unassessed order is if it was with a condition of unpaid community work, so it essentially becomes a community corrections order, community work order.

74HER HONOUR:  My reading of the Act is that there are core conditions and then there are special conditions over which the court has the power of selection, if you like.  I mean I have not handed one of these down before, I must say, but in the circumstances - and I understand that as long as there is only a work order of less 200 hours, I don't have to make an assessment.  Here we go, I will have a look.  I wonder if you could assist me, Madam Prosecutor, thank you.

75MS TAYLOR:  Your Honour, I have had what you've just done occur in the past.

76HER HONOUR:  Yes.

77MS TAYLOR:  That's all I can say, Your Honour.

78HER HONOUR:  Do you recall an assessment was attached to it?  I just need to ‑ ‑ ‑

79MS TAYLOR:  No, where an assessment was not - I have had a situation in the past where, without the ‑ ‑ ‑

80HER HONOUR:  Without the assessment, yes.

81MS TAYLOR:  Without the extra conditions, there hasn't been an assessment.

82HER HONOUR:  Let me just have a look.  We had better have a look at the Act, though, I think.  It says that I can make an order if he's found guilty and I have received a sentence report.  "Pre-sentence report if required."  All right.  It can cover multiple offences.  Gosh, it says here that I can fine you as well if I want to, Mr Martin.  That is an exciting prospect.  I won't.  I just thought I would let you know that I could. 

83MS TAYLOR:  It's certainly done in the Magistrates' Court, Your Honour.

84HER HONOUR:  That may be so.  I forgot to say, Mr Martin, you also have to obey all lawful instructions and directions of the Community Corrections office.  I can't even find the section that says if there's only a work condition of less than 200 hours, which I know is there.

85COMMUNITY CORRECTIONS OFFICER:  Your Honour, would you permit myself to go outside and make a phone call to seek clarification on that?

86HER HONOUR:  That would be very kind, it would add to my general education too, so thank you very much.  We're never going to finish this case, are we? 

87MS TAYLOR:  I can go and check the legislation too, if Your Honour would be assisted as well.

88HER HONOUR:  Yes, that's fine, thank you.  No, I don't think I can.  "A court that is making a community corrections order must attach at least one condition in accordance with sub-s.2.  A court that is making a community corrections order may attach one or more conditions under Division 4."  What's Division 4?  So I don't think I can do this.  Here we are.  It's s.48C(7).  "If the court attaches an unpaid community work condition as a sole condition of a community corrections order for up to a maximum of 300 hours, the order expires on the" - all right.  Yes, if I attach a supervision order, I have to have regard to a pre-sentence report.  That's interesting.  "If a court attaches an unpaid community work condition as the sole condition under this Division of a community corrections order for up to a maximum of three hours, the order expires on the satisfactory completion of the work." 

89VOICE (from body of court):  Three hours.

90HER HONOUR:  Sorry?

91VOICE:  Nothing.  (Indistinct words.)

92HER HONOUR:  I'll speak to you out the back, Uncle Lloyd.  Yes, so if there's a supervision condition, I do have to get you assessed, but since we have the officer here, that shouldn't take too long. 

93MR MURPHY:  She's not here now, Your Honour, but she told me earlier ‑ ‑ ‑

94HER HONOUR:  No, no, she's ‑ ‑ ‑

95MR MURPHY:  ‑ ‑ ‑ that she had verbally assessed him as being suitable.

96HER HONOUR:  That's a great way of doing it, thanks, Mr Murphy, I was going to ask if she could do that.  It's amazing you can't put someone just on a straight order.  You know what else I could do to you, Mr Martin, I can put you on a curfew, I can exclude you from attending certain places, I can put on an alcohol exclusion condition.  I could go to town on you if I really thought about it.  I could put an electric monitor on you.  It's quite useful, this Act.  Look, I will just stand down, all right?  Rather than sitting here, I will just - wait until we come back. 

97Can I indicate, if the Corrections officer comes back and says it is required, then I would only be putting supervision on, and that would require an assessment, so I would ask, rather than my coming on the Bench and wasting everyone's time, perhaps if the assessment could take place immediately.  All right?  Would you be able to convey that, Mr Murphy?

98MR MURPHY:  Yes, Your Honour.

99HER HONOUR:  And once it's done we'll just come back on to the Bench again.  Thank you very much, we will just stand down.  Yes, thank you.

100(Short adjournment.)

101Thank you very much, Ms Gelway, you stopped - we don't have Ms Taylor.  You stopped me from falling into judicial error.  I am very grateful to you.  It's actually made me read the Act properly.

102COMMUNITY CORRECTIONS OFFICER:  Thank you, Your Honour.

103HER HONOUR:  Now your client has been taken downstairs and processed, I understand.  Is that all right?

104MS BURRNARD:  Yes, he has, Your Honour.

105MS BURRNARD:  I will read that Riot Act.

106HER HONOUR:  Good.  Excellent.  It seems ‑ ‑ ‑

107MS BURRNARD:  Not that I haven't ‑ ‑ ‑

108HER HONOUR:  I'm sure you - thank you.  Yes, print off the order, that's fine, we'll get it done.  How are you going there, Mr Martin?  We will get you home soon, all right?  Thank you.

109Thank you, Ms Taylor.

110MS TAYLOR:  Sorry, Your Honour.

111HER HONOUR:  That's all right.  We will get you to sign the order now, Mr Martin.  We will bring it over to you.  Don't tell me the technology has packed up now.  We will just have to sit in awkward silence until the internet comes back up again, I'm afraid.  Now away we go.  Good.  I think it might have been Mr Murphy sliding along the table that did it, actually.  Who knows.

112So there is a special condition, Mr Martin, that you are under the supervision of a Community Corrections officer for a period of two years.  I notice that the assessment said I was looking for an order for less than 12 months, but I don't think that will pick ‑ ‑ ‑

113COMMUNITY CORRECTIONS OFFICER:  No, that's fine, Your Honour.  You can stipulate the timeframe ‑ ‑ ‑

114HER HONOUR:  That's all right, it's for two years.

115COMMUNITY CORRECTIONS OFFICER:  ‑ ‑ ‑ of two to five years, I believe it is, Your Honour.

116HER HONOUR:  Pardon?

117COMMUNITY CORRECTIONS OFFICER:  I think you can stipulate an order up to five years if that was ‑ ‑ ‑

118HER HONOUR:  I can stipulate an order much longer than that.  In fact, it's just that the assessment - we must have filled the assessment thing out wrong.  Look, please, it doesn't matter. 

119(Community Corrections Order signed and acknowledged.)

120HER HONOUR:  Good luck, Mr Martin.

121OFFENDER MARTIN:  Thank you.

122HER HONOUR:  Hope everything goes well.  I thank everyone for their assistance in this matter, both counsel and the Elders and family members who attended.  Thank you.

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