Director of Public Prosecutions v Smith

[2022] VCC 105

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 17-02420

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL SMITH

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2022
DATE OF SENTENCE:	9 February 2022
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2022] VCC 105

REASONS FOR SENTENCE

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Subject: Breach of Community Corrections Order

Sentence: One month imprisonment and 12 months Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Kelly	OPP
For the Accused	Mr M. Haralambous	Greg Thomas Solicitors

HER HONOUR: 

1The first thing I will explain is that I am going to impose a one month term of imprisonment for the actual breached charge itself which Mr Smith has already served.  So that will be noted on the court record.  I understand of course that he will not be able to be released yet because he is waiting for the Magistrates' Court bail application on the 25th.  That will also give him some extra days presumably as pre-sentence detention, I think, it is for that matter. 

2Mr Smith, I am going to explain to you that there has been agreement as you know, in this case, that a Community Correction Order is within range as punishment for the original offending that I sentenced you for back in August 2018.  So it is a bit like going back to that time and I am taking into account the fact that you were doing well for a while on that CCO until you were remanded.  You had done about half of the work hours.  So that means that the CCO I am about to impose will be for 12 months, not for two years.  It is an acknowledgment of your progress recently.  

3I was told this morning about your delight in the birth of your niece six months ago, and  I made the comment that that in itself is not unusual of course.  But what is unusual is your positive response to what appears for you to have been somewhat of a life-changing event and that has motivated you to change your ways and hope to become a law-abiding citizen.   I must admit, as I perhaps also indicated earlier a little bit of scepticism about that.  But the letter from your family assures me that your motivation is genuine and it is accompanied by some insight into your past offending and the drug use which prompted it.  I commented on the fact that as young men get older, they often - hopefully - do develop some insight and make the decision that they do not want to live the rest of their lives in this way. 

4it seems that now you are willing to attend rehabilitation and to be employed,  at the same time, you will have realised that it will not be easy to do all these things at once.  It will not be easy to do work hours like you are going to have to do, to attend various appointments and to do some unpaid community work. 

5You are a person who is familiar now with the way Corrections orders work and you should keep in mind the option that you will have of applying to the court for a variation of the order.  If you find that any of these obligations upon you become overwhelming and you fear that you might be tempted to give it all up as you did before and disengage from the service.  So please be aware of that.  And perhaps the judicial monitoring that you are going to have with me will mean that you will be more aware of that also.

6OFFENDER:  M'mm, yep.

7HER HONOUR:  You want to be employed and apparently there is a possible job for you.  If you do find work and you find it too much to do everything that you are obliged to do, then that is the time to tell your case manager about it, discuss it and bring it out into the open.

8The conditions will be that you will be under supervision.  You will perform 100 hours of unpaid community work.  You will take part in treatment for drug abuse,  and every hour of treatment that you have for drug abuse will be credited against your work hours.  You will be subject to judicial monitoring

9The Community Correction Order will commence as soon as you are released from custody for the Magistrates' Court matters.  Within  two working days of your release, you have to attend the Dandenong Corrections Centre or ring them, whichever you are told to do.   I am going to be asking the Corrections officer, whoever it is that you see, to notify  my associate so that we can then arrange for the first date for your judicial monitoring.  That means you will come and see me probably be about two months or so after your release and I will find out from your case manager how you are going.  I will have a progress report and you can discuss that with me.  You can ask me questions about it.  Have you ever done judicial monitoring before?

10OFFENDER:  Um, not that I know of.  Maybe - I think in Dandenong but I don't think - yeah, she - I only had to go once or something when she (indistinct) so ‑ ‑ ‑ 

11HER HONOUR:  Well, that is all right.  You come along.  There won't be any lawyers here.  You come along on your own or you can bring a friend or a family member with you if you want to.

12OFFENDER:  Okay, yep.

13HER HONOUR:  And you and I discuss your progress and your case manager will be there, usually on a video link.  You will probably be on a video link too with that person in their office.  All right. 

14OFFENDER:  Yep.

15HER HONOUR:  So that's the way things will be.  So that order will be available for signature.  That will be sent to the prison for you to sign and return.

16OFFENDER:  Yep.

17HER HONOUR:  And I will just see if there is anything else that I have neglected.  Mr Kelly, is there anything from you?

18MR KELLY: Your Honour, I have just been looking at s6AAA of the Sentencing Act to see whether it applies.

19HER HONOUR: Usually in most cases I don't make that declaration when there is a Community Correction Order. So I suppose in relation to the imprisonment order I should do that. So the imprisonment would have been for six weeks instead of one month under s6AAA. All right. Anything else?

20MR KELLY:  No, Your Honour.  

21HER HONOUR:  All right.  Mr Haralambous, is there anything from you?

22MR HARALAMBOUS:  Nothing further, Your Honour.

23HER HONOUR:  Everything clear for you too, Mr Smith?

24OFFENDER:  Yep.  Thank you. 

25HER HONOUR:  Good.  I will leave the Bench now and I will leave the link open so that my Associate can explain anything she needs to about the sending of the documents. 

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