Director of Public Prosecutions v Simpson

[2021] VCC 2206

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-01607

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARRED SIMPSON

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 December 2021
CASE MAY BE CITED AS:	DPP v Simpson
MEDIUM NEUTRAL CITATION:	[2021] VCC 2206

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:  Re-sentence – Breach of CCO – Breach by non-compliance rather than by committing further offences

Legislation Cited:

Cases Cited:

Sentence:Total effective sentence of 3 years imprisonment. Non parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Davison	Office of Public Prosecutions
For the Accused	Mr C. Patel	KPW Lawyers

HER HONOUR: 

1Jarred Simpson, on 7 September 2018 His Honour Judge Saccardo sentenced you for one charge of burglary and one charge of theft of a firearm to a total effective sentence on both charges of 14 months' imprisonment followed by release on a 13-month community correction order.  I have read and reread his reasons for sentence and, without repeating them, I adopt everything he said there about the circumstances of the offences, about the circumstances of your co-offender, about the reasons why he fixed on the sentence he did for you and the difference between that sentence and that imposed upon your co-offender.  Nothing that has been put to me to date suggests that there is anything in error or anything that anyone takes issue with in that background and circumstances.

2The sentence indicates that the offending itself was serious.  When you were drunk, you and your co-offender broke into a hardware store and found a gun safe in the office upstairs and stole that, having ascertained as best you could that there were guns inside it.  You were caught as you were trying to escape over the back fence of the hardware store with the gun safe.

3You have got a significant prior history.  At the time of sentencing, you had been the subject of eight community correction orders, only one of which you had been able to complete successfully.  You are a man who has got a troubled criminal history and a troubled background, and whilst you express a desire to rehabilitate, to address your substance abuse which is so seriously and directly linked with your offending, you have struggled to do so for most of your adult life.  It is reflected in the sentences that have been imposed upon you and in the breaches.

4When you were assessed back in 2018 for suitability for the CCO that Judge Saccardo ultimately placed you on, you were rightly and understandably assessed as being at high risk of reoffending.  Although you breached the community correction order that Judge Saccardo imposed and came before me in September of last year for that breach, and you have breached it again since I confirmed it. It is of note that your breaching has been by and large by way of non-compliance rather than by way of committing further offences.  That in itself shows that progress has been made, although you have not been able to keep up a commitment to comply with the rehabilitative and supervisory conditions on the CCO.

5Through your counsel, and I accept with the benefit of time to think and sound advice being given to you, you acknowledge that at this stage of your life compliance with the CCO was something difficult and something that you would be unlikely to be able to fulfil.  And therefore you acknowledge that the CCO should be cancelled and that you should be resentenced for the index offending.

6Of note, the changes since His Honour Judge Saccardo sentenced you and certainly the changes since I confirmed the CCO after the breach proceedings in September last year are these:  you have committed no further offences; your non-compliance has been by way of breach of conditions only; and you have, I am told, successfully managed to reduce your ice use, although you are still a regular cannabis user.  All of those indicate to me that you have complied with a significant part of that CCO, that is, not committing further offences whilst on it, and that needs to be taken into account in resentencing you. So too does the partial compliance. 

7I have no doubt that the commitment you expressed when assessed at the time of Judge Saccardo's sentence and the commitment you expressed when I resentenced you last year was a genuine commitment.  I do not think on either occasion you were making promises to comply in order to keep yourself out of gaol or to minimise your time in gaol.  I accept that you had a genuine commitment to try and engage with Corrections, to try and address your substance abuse and, to stay crime-free. 

8Your difficulty is your capacity to sustain that as time goes by, something you have insight into.  That is also a significant factor in assessing upon resentencing the extent to which you have complied with your CCO.  The fact that you have not committed further offences demonstrates that there was in my view a genuine commitment to comply but an incapacity to sustain that commitment. Partial compliance is a significant factor to take into account in resentencing you.

9After discussions with Mr Patel, I am of the view that although you have found compliance with the CCO difficult and you are afraid of being set up to fail, that I should resentence you, and give you the opportunity to have some time to reflect whilst serving your term of imprisonment and, to give you the opportunity, whilst in custody, to prepare yourself for release into the community. This will also give you the opportunity, should Corrections see fit, to serve a significant portion of that sentence on parole and under supervision in the community.  Whether that happens is of course a matter for you and Corrections, but I think I should give you the opportunity so it is there for you, should you wish to avail yourself of it. 

10As I said to Mr Patel, I am of the view that sometimes parole can provide much greater flexibility for a person in terms of the post-custodial supervision services offered by Corrections. And it is to be hoped that with the incentive of wanting to be a better father to your children and wanting to spend time with your family now that the borders are open and you can go to Queensland to see your mother, to be able to reconnect with your mother and to be able to look forward to having, as a mature adult as you now are, a better, happier and more offence-free life in the future, you will comply with supervision. 

11I formally find the breach of the community correction order proven and cancel the CCO.  I take no further action in respect of the breach other than finding it proved.  Having cancelled the CCO, you are resentenced for the charges of burglary and theft for which you were originally sentenced as follows.

12On each charge, burglary and theft you are sentenced to be imprisoned for a period of three years.  Those sentences are to be served concurrently.  That makes a total effective sentence of three years imprisonment. 

13I fix the period of 18 months as the time that you must serve before being eligible for parole and I declare that you spent 425 days in pre‑sentence detention and direct that that be counted and reckoned as part of the sentence already served. 

14I declare pursuant to s6AAA of the Sentencing Act that but for your pleas of guilty, I would have sentenced you to a total effective sentence of four years imprisonment and fixed a non-parole period of two years and six months.

15MR PATEL:  As the court pleases.

16HER HONOUR:  Mr Simpson, that means there's another four months before your non-parole period expires over and above the time that you've done already and that will be counted.  And of course what I didn't say but I should have said is I'm taking into account that imprisonment at the moment is more onerous because of COVID.  I know you are in quarantine at the moment and you are under additional restrictions.  And I should have said that in fixing that, both the head sentence and the non-parole period, I have taken the additional onerous nature of imprisonment by reason of COVID into account.

17That means four months less any management days because of COVID restrictions that you must serve before being eligible for parole.  So I hope that gives you some hope for the future.

18OFFENDER:  Yep.

19HER HONOUR:  You've shown a capacity to work, you've shown a capacity to stay out of trouble.  Burying your head in the sand is understandable, but it can't keep on happening and let's hope that this is the circuit breaker for you so that when you get out you won't go back in and you'll have a better and happier life:  find the work that you want to do hopefully outside, connect with your family, be a better role model for your kids and look forward to a brighter future.

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