Director of Public Prosecutions v Smith (Breach of Cco)

[2018] VCC 1505

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00202

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEVILLE SMITH

---

JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July, 2 August and 13 September 2018
DATE OF SENTENCE:	13 September 2018
CASE MAY BE CITED AS:	DPP v Smith (Breach of CCO)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1505

REASONS FOR SENTENCE

---

Catchwords: re-sentenced on breach of CCO, original charges: aggravated burglary, ICI and breach of CCO.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	OPP
For the Accused	Mr T. Smurthwaite	Valos Black

HIS HONOUR: 

1Just remain seated then, Mr Smith.  I dealt with you, as you know, back in August of 2015 at the County Court sitting down in the Latrobe Valley, where I had been on circuit.  The plea was conducted on 13 August 2015 and I sentenced you on the following day, 14 August 2015.  At that stage when I passed sentence you were a 43 year old man.  You have just recently turned 46.  I sentenced you in relation to an aggravated burglary, a charge of intentionally causing injury and breach of a family violence order. That offending had taken place on 1 April 2014. 

2To set out a bit more of the chronology, you were arrested the following day, 2 April 2014.  You were in custody for 259 days leading into the grant of bail on 16 December 2014.  The matter was listed for plea in front of the County Court sitting down at Latrobe Valley on 13 April 2015, but it was not reached.  It was adjourned off to the first of the dates that I have mentioned, 13 August 2015, where the plea was conducted and I then, sentenced you the following day.  That sentence as you know, was a combination type sentence.  It was 259 days imprisonment but it did not end there. 

3It was 259 days together with release immediately, because I was making a PSD declaration for that amount.  You were released straight onto a community correction order, because of course you came to court under your own steam.  You have breached my order and there has been a summons. There has been some discussion in the course of the matter, on the occasions when the matter has been before me, where we have honed in on the true nature of the breach.  Because there is some reference to offending on the summons that is not offending punishable by a term of imprisonment.  It is still appropriate that I know about it. 

4But there are many of those offences that are not actually punishable by imprisonment, and therefore they do not represent breach offences.  The breach is admitted.  Your counsel made that plain enough.  It was admitted on 20 July of this year.  There had been an earlier listing at one point, though I think it might have been vacated.  But on 20 July, I only had a very limited amount of time.  I had a jury that was out and I was charging and so I could not really entertain the full matter on that day. 

5I heard some submissions on the next date, that is 2 August of this year.  On that day there was a bit of a mishap, in that some enquiries that had been made by your counsel, no doubt in the hope of providing some favourable views as to your present attendance on a community work permit, had quite the opposite effect, unfortunately.  It is not his fault and it is appropriate that the court knew, but what happened is, that that led to a consideration of the number of hours that you had actually done on this order, the one that I am dealing with. 

6And in fact, rather than there being the full 350 hours done, there had been a miscalculation there and it transpired you still owed some 155 and a half hours.  That came to light shortly prior to 2 August.  There was an amended report spelling that out and Mr Smurthwaite really wanted to conduct some sort of consideration or investigation of the accuracy of those hours, as the transcript on that day will reflect.  So I adjourned the case to permit that course.  I doubted that it would come to much, and indeed it has come to nought.  The matter has been adjourned off to today's date and there is no issue taken with the calculation.  There is no issue taken with the number of hours outstanding or the nature of the breach or the particular failures alleged.

7So it is a breach by, as I say, non-compliance.  There were 32 failures spanning the period December 2015 to December 2017, and they are broken down into a number of different areas, as the report and the summons for that matter makes plain enough.  But 26 failures to attend unpaid work, four failures in terms of reporting and a couple of failures in terms of treatment.  So 32 all up.  There is also, regrettably as I say, the breach by offence. Dealing with the particular matters that are actual offences that were punishable by imprisonment, so they are the only ones that actually breach the mandatory terms. 

8There is a trafficking in methamphetamine in November 2016.  A possession of methamphetamine in December 16.  A couple of interlock device breaches or failures there, January 17 and June 17, and an offending on bail and possession of methamphetamine in February 17.  So six offences over five different offence dates, all of them punishable by terms of imprisonment.  The summaries of a handful of those matters are before me.  There is no summary available in terms of the interlock device offences or one of the possession of methamphetamines, but there are summaries before me in the breach package, as to the trafficking offence and also the possession of methamphetamine in February 17. 

9That is part of Exhibit A which has been described as the contravention package, which includes a number of matters including the original breach report that had the inaccurate detail as to the completed number of hours here.

10Your performance, other than those non-compliances - it is a big "other than", of course - other than the 32 non-compliances and the six offences, your performance has otherwise been pretty positive actually, and the contravention reports - I say reports because there are two, there is the original and the amended, but they speak with the same voice really; they are otherwise unchanged other than the amendment in terms of the hours.  You have done a fair bit on the order, there is no question about that. 

11I have spent a significant amount of time both today and yesterday for that matter, and in the lead in to the last occasion when the matter was listed and for that matter the first matter, just reminding myself of the matters that were raised before me when the case was originally before me down in the Latrobe Valley.

12There have been a large number of reports and letters, and indeed there was sworn evidence placed before me, in the County Court.  I do not think there is any utility in me descending back into the detail of some of that ancient material placed before me. 

13The reasons for sentence that I passed were extremely lengthy.  I am ashamed to say they are over 30 pages, I think 32 pages, which is a hardly a brief set of reasons but the reason it was not brief is that it was a difficult sentencing task, and one where I spent a very significant portion of those 32 pages explaining to you the terms of the community corrections order that I had decided to release you on. 

14There are close to 14 pages where I dealt with the details of that order, and the consent to that order and the potential or possible ramifications of breaching it.  Those reasons spelt out the list of reasons why I was doing what I was doing and I was doing what I was asked to do on that day; not because I was being asked, but because I thought it was the appropriate ultimate disposition back then.

15I spelt out the matters in mitigation, which had been raised.  I dealt with the nature and the gravity of the offending - well, none of that has changed.  In terms of the offending, it is what it is.  That has not changed at all.

16As I have said, there were a host of materials placed before me back on the original plea and that included the agreed summary of prosecution opening, there was a letter from your ex-wife, Lisa Jane Hill, pleading your case.  Pleading that you not be sent to prison and of course you were not, other than the 259 days that you had already served but I did not return you to prison.

17There was a very persuasive letter from Peter and Mary Riedel, Exhibit 2.  There were two medical reports from Foster and Toora Medical Centre, two different dates, Exhibit 3 and Exhibit 4.  There was a letter from the Salvation Army and a bundle of certificates dealing with what you had done while you had actually been in custody.

18I was told at the time of the plea that you had no relevant prior history.  What I have learnt after the event - this is not critical in any shape of form, of course it is not and it is not a significant factor in my decision making here today, I can assure you, but what I learnt is that you had committed an offence for intentionally causing injury and that it occurred in August of 2013 and it had been dealt with at the Wonthaggi Magistrates’ Court on 16 May of 2014.

19I did not learn of that, and had no knowledge of it at the time that I passed sentence, nor of the fact that the suspended sentence that had been imposed that I was awake to, that was the one that had been imposed in 2013, had in fact been breached on that same day.  That is just an aside though really, it is something I have learnt but as I say, it does not shape my attitude to my discretion here today.

20As you know, because you were in the court and you were in the dock down in Latrobe Valley and you heard me pronounce by reasons, it was a close run thing that had me place you on this order.  I say this order because, of course, what I imposed was a 259 day term of imprisonment which coincided with your pre-sentence detention leading into being granted the CISP bail. In addition, I gave you the two and a half year community corrections order.

21And I did that because there was a powerful constellation of mitigatory features.  Of particular concern to me was the chronology.  That is, having been bailed and having done the 259 days prison before being bailed on the CISP program, and then you had self-evidently done very well on that bail and there was some powerful evidence before me as to the efforts that you had made whilst in the community. 

22Also, some pretty persuasive material from your ex-wife that suggested to me that the motivating feature behind this particular offending was something in the past and I am still actually satisfied of that as I am sitting here today.  That has not altered.

23But it was that chronology that weighed heavily on me as I explained to you in paragraph 87 of my sentencing remarks.  But you will recall I warned you very explicitly and you understood that warning.  What I hoped is that I would never see you again, and I said as much; I was not meaning to be rude to you, I was not.  I did not want to see you again and I did not think that I would, actually. 

24I explained to you the leniency of the sentence that I was imposing and the difficulties that you may well face if you were foolish enough to breach my order.  Well, of course, as you know, you have.  You have breached it by offence and by non-compliance and there is no suggestion that is pressed that you did not understand what you were told.  Of course you did and indeed, quite the opposite as I perceive it.  I think you are probably a bit sheepish and a bit ashamed or embarrassed that you are back in breach of this order, having been given the opportunity that I gave you back in August 2015. 

25I take into account the submissions that have been made today.  As I say, I am not going to delve back into all the ins and outs of my sentencing remarks from 2015.  Most of what I have said applies with equal force.  The offence is what it is.  That has not changed.  Really there are very few, if any, changes there, so I am not going to waste your time delving back into those sentencing remarks. I adopt them.

26I take into account also the submissions that have been made today.  I do accept that you have made real efforts on this order.  I have had people who have taken a contemptuous attitude to this sort of order.  I am not putting you in that sort of category, not by a long shot.  You have done much of the work, not all of it, not as much as we were first led to believe, but you have done a fair bit of it and you have obviously meaningfully engaged with a number of aspects of the order, which again is made as clear as could be in the report that is placed before me. 

27It describes your engagement with the service being mostly positive, it mentions the absences, you’re addressing the issue, in terms of alcohol and drug issues, building a healthy and positive relationship with your ex-partner, complying with directions, in terms of continued treatment with your psychologist, engaging in mental health treatment and support, successfully completing the Men's Behaviour Change program, doing a fair bit of the work, 155 hours remaining out of the 350. So as I say, it is quite a positive report and I certainly do not put you into that category.  I have seen enough of these people who are thumbing their nose at the order, that is not what you have been doing at all. 

28The author makes a recommendation.  Obviously it is matter of considerable concern that there are the further offences committed during the operational period.  She said, to your credit, you have completed all requirements of the order, except for the unpaid community work condition of the order and in light of the above which respectfully recommended that the contravention be proven and the community corrections order confirmed. 

29Well, that is a recommendation.  I do not ignore anything that is raised before me by the parties or by witnesses or by someone at Corrections, such as Ms Joy.  But we come at this from different directions.  What I am doing, is I am considering the appropriate sentence to impose as a judicial officer.  So the recommendation is just that, it is a recommendation.  It is no more binding than a submission made by your counsel, of for that matter, the prosecutor.

30At one point your counsel was urging me to simply adopt the recommendation to confirm the order.  Well, ultimately that submission has been abandoned.  Such a submission as that, if accepted by a court, would involve essentially there being no consequence to your breaching an order.  It was not a joke, it was a serious order passed in relation to serious offences and breached in a serious fashion.  Ultimately your counsel took the view that re-sentencing was the appropriate approach, but that re-sentencing should lead you back onto a further order.

31Well again, these reasons will be long enough and without me going chapter and verse to everything that has been raised in the course of the plea today or indeed in the course of the written submissions that have been filed on your behalf.  They are marked as Exhibit 1.  But there have been a range of other matters placed before me by way of documentary exhibit, over and above the written submissions. 

32There is a report from Dr Whiteside, Exhibit 2, the letter from Dr Riedel and the letter from you sister, Ms Slaney, a report from Douglas Stark, a report from
Dr Cassin, and a couple of case notes, Exhibit 6 and 7, germane to aspects of your behaviour on the order, your progress in relation to a Men's Behaviour Change Program and Exhibit 7, really germane to the issues as to why you might not have been actually fully compliant with the unpaid work component.  That dovetails in with some of the other material placed before me. 

33There is also a reference letter from Roz Bryant, who was the manager of the Fish Creek RSL where you had your work component transferred to after you had left the Wonthaggi work crew.  So as I say, I am not going to set all these matters out in full, I have read them again more thoroughly over the lunch adjournment. 

34In terms of the submissions made by your counsel, they really focussed on a number of areas.  Unsurprisingly, they did not dwell too heavily on your non-compliance, they focussed more on the extent of your compliance.  And I have already commented on that.  The report makes that plain enough.  I know people who have not turned up to the induction session.  You are not one of those people, you have turned up and you have engaged well on the order.  Not completely, but well. 

35So you focussed on your response to supervision, your response to the Men's Behaviour Change Program as that case note that has been referred to in Exhibit 6 attests.  And the efforts that you have made on other aspects of the order, as is spelled out in the report that is placed before me. 

36So there's a focus on the extent of your compliance.  Mr Smurthwaite did not ignore the non-compliance.  What he then tried to develop in the course of his submissions, was to provide at least some setting to explain your non-compliance and really the - there were a number of explanations, none of them said to be an excuse, they were not and they were not being relied upon in that way by you, but firstly it was the mental health concerns and they were well documented. 

37He said there were the actual reports.  That is to say, the medical report from Stephen Whiteside, the report from Douglas Stark, the report from Dr Cassin, the references from Dr Rieddel and from your sister.  They all supported that proposition that there are significant mental health issues in the currency of this order that to some extent must have intruded on your ability to comply. 

38There is also reliance on the case notes to which I was taken on one occasion, the file note of Mr Sheales, I think it was, receiving a phone call or someone receiving a phone call from Roz Bryant at the Fish Creek RSL, with Ms Bryant expressing some concerns about your then mental health state.  That is back in March 2017.  So again, it is a contemporaneous note, it is not something that has been dreamt up by you. It is the observation of another person. 

39So there are all these observations of these various people.  Medical practitioners, friends, associates, family or supporters and these case notes.  All of it speaking then, of a deterioration in your mental health or at least concerns in that respect.  And it was said that, well there is one reason.  One of the difficulties, you have got that depression.  You were having difficulty even getting up out of your room, or out of bed.  Maybe if you had, and maybe if you had gone to a doctor, you might have had a certificate which would have actually passed muster, in terms of it being an excuse. 

40But you did not and it was not being relied upon in that way.  But it impacted upon your ability to actually do the unpaid work.  So there are those issues.  Not by way of excuse but by way of at least, providing some information for me to assess the nature of the compliance and the reasons for the breach.  There were physical issues spoken of.  The finger issue, it sounds a slight issue.  It is not of course, because it was a significant injury to your finger and it must have been, because you were off or out of action for something like three months. 

41And then there was a recurrence of, or an aggravation of, a back injury, that at a later stage led to unfitness.  So those things intruded upon your ability to get the work up and done and then there were problems associated with clearance.  It was not just a matter of the finger coming right or the back coming right and your clicking your fingers and being back at work.  You needed to get a clearance for work, a medical clearance and documentation to provide and I think it is fair to say, Mr Smurthwaite was not suggesting you had been particularly diligent in that respect, but that that lack of diligence in getting the clearance, again has to be seen in light of the level of mental health concerns that you were labouring under. 

42So that was a second prong to the reasons for non-compliance.  They are the physical medical issues, the mental health issues.  Well, it seems to me at least, that there is ample material supporting the fact that you were labouring under some mental health concerns at various times within this order.  I mean, the evidence goes in one direction there and it is not just from you.  It is from people who are liaising with you, who were seeing you, who are observing you.  Well I have absolutely no doubt that there were those issues that are spoken of there. 

43There was also mention of the movement of the file up to Carlton and that coincided with your movement up to Brunswick, and there being a bit of a hiatus in that respect as well.  Well again, I have no reason to doubt that.  Mr Smurthwaite was submitting that, even amidst the difficulties in terms of the unpaid work and the difficulties thrown up there, you were at least still complying with other aspects of the order and again, I am sure that is so, when one looks at the relatively favourable report that has been provided.  Plainly though, you have not done the 350 hours. 

44Another aspect of the breach of course, is the breach by offence.  Mr Smurthwaite submitted that maybe there is a relationship between some of those other aspects that throw up handicaps in terms of your compliance.  You have got mental health issues.  Maybe you are more likely in that setting to be using drugs or maybe it goes in the other direction, it does not really matter.  But he made submissions as to the breach offending and that is, the offences that were committed by you and really the thrust of those submissions was that it reflected your continued and continuing struggle with drugs.  Something that you were not shy about mentioning and you were mentioning it in a forthright fashion to medical practitioners. 

45And indeed, it is said that you had been abstinent for a significant period after I saw you back in August, but fell under the way of temptation perhaps courtesy of connecting up with past associates, that were involved in the unpaid work crew that you were engaged in, down at Wonthaggi.  That is often one of the potential risks of unpaid work that is commented on often enough in the Court of Appeal.  It is a risk.  And you sought relocation away from that work crew and that then led to work at the Fish Creek RSL.

46So there seemed to be that connection.  You were still using drugs, it is hardly surprising in that setting then, that you are committing such offences as are specified.  Possession of drugs, there is the trafficking as well, of course.  And you continue to struggle with drugs and there is reference in one of the most recent reports of Whiteside, where you are saying, there is a typographical error here but the last attendance at least, is of the date of the report being written in July.  Last attending in June and saying you were continuing to struggle with depression and also using ice about twice a week and requesting a referral to a psychiatrist.

47So, these matters were developed as enabling me to look at the particular circumstances of these breach proceedings.  That is, it not being some wilful or defiant or contemptuous breach by someone who could not care less.  But rather, someone who had some handicaps flare up, which to some extent intruded upon the ability to do the unpaid work.  And someone who had ongoing issues with a drug of dependence that unsurprisingly led to his coming under police notice.  Really the thrust of the plea was that you are obviously a man with issues.

48There were mental health issues, there were drug issues, there were the physical issues that I have spoken of and these and other things that have been spoken of, in the plea, contributed to your non-compliance and also the offending.  And again, I do not doubt that that those matters are true.  Mr Smurthwaite moved then to the current position, because the person I am sentencing is the person who is sitting in the dock, not the person who was sitting in the dock back in August 2015 or earlier this year.

49And so he draws some strength and comfort from the level of stability in your life.  That is, you are remaining in a relationship with Alyssa Riedel.  You are living with her, there is family support as evidenced by her presence, by the presence of your mother, of your sister, also your niece here today.  And others who have obviously had a real interest in your position, because they have been here previously and indeed from memory they were, many of them, down at court at the Latrobe Valley in August 2015, as well.  So there is that positive aspect of someone with a level of support from the community, and this obviously was germane to aspects of your prospects of rehabilitation. 

50There is nothing pending, I am told. Nothing outstanding.  Whatever might be said about some of the problems that you have had in your life, either issues with drugs or problems in terms of your mental health, work has never been a problem for you.  You have obviously been a hard worker over the course of your life and finding work is not a problem.  There is also an appointment that has been made with Turning Point, no doubt to deal with the issue of the continued drug use.

51So Mr Smurthwaite was arguing that your prospects of rehabilitation are still very much favourable.  Your risk of re-offence in this same way, is unchanged.  That is it was judged by me to be low when I dealt with you back in August 2015.  There is no reason to think it is any higher here, he argued, because you have now got a good relationship with your former partner, Ms Hill, and it was that relationship and the breakdown of that relationship and your inability to cope with the breakdown of that relationship that no doubt was the catalyst for this very serious offending that you committed back in 2014.  That relationship is now smooth.  You have a meaningful relationship with your daughters. 

52So the argument was, there are many protective factors.  Well again, I have no reason to doubt that.  He argued that in all the circumstances that last resort, that is of prison, which is always a disposition of last resort, ought not to be applied in this case, that there is an alternative and the alternative is to place you onto a further community corrections order. That there is no utility in prison.  I hasten to add, there very rarely is.

53So I have no reason to doubt really any of the submission that have made, in terms of those protective issues and the current position that you find yourself in, in a stable relationship and house and probably still a desire to rid yourself of your addiction to drugs and to deal and grapple with some of these mental health issues. 

54The Crown, represented by Ms Burnett, were accepting of the fact that you have done a fair bit on this order.  There is no question about that.  They argued that really in the circumstances, I could perhaps only be guarded as to your prospects of rehabilitation, given what has occurred since.  But they conceded, obviously, that you have taken some steps along the path to rehabilitation. 

55They queried whether acceding to the defence submission and placing you on a further community corrections order, would be setting you up for failure, well, that is a submission. I suspect, you would rather be set up failure by being placed on a further order than being returned instantly to prison.  The fact is though that I have to make the judgment in this case as to what is open to me.  So, of course I pay regard to the various submissions that have been made, but none of them are binding upon me. 

56When I dealt with you, as you know and I have already referred to this more than once I think today and that I told you at the time that there would be one chance, that you should not be squandering it.  Now of course I am not bound by what I said to you then.  I am not bound to follow through, in terms of any foreshadowed probable or possible action.  What I have got to do is, examine the matters placed before me and make judgments as to the appropriate course in relation to this matter. 

57I have no doubt at all that the only sensible option is to re-sentence you.  I do not need to cancel the order, because the order has, to this point, now expired, but you have admitted the breach.  The breach is constituted by a large number of non-compliances.  As I say, 32 and a number of separate offences committed on separate days, each of them punishable by a term of imprisonment.  At least the ones that I have highlighted. So I do not believe there is any option but to proceed under s.83AS(1)(c), that is to cancel the order, if it is still in force.  Well it is not, but then I am engaged in a re-sentencing exercise.

58Well the issue then is - and this seems to be conceded to be the position by Mr Smurthwaite, who has abandoned the suggestion of there being confirmation of the order.  He urges me to re-sentence you and to give you another community corrections order.  The issue for me then is what I am required to do in the exercise of my discretion here. 

59This was serious offending.  That has not changed.  It was serious offending when I gave you the chance of avoiding a return to prison.  You do not need me to tell you that you have not taken your chance.  You obviously should have.  It is a bit hard for me really to understand some of the choices that you have made.  I know you are not exercising a choice, in terms of perhaps having the mental health concerns that you have had.  They just happened to afflict you, but you have also have made choices and some of those choices involved a choice to commit offences in the currency of the order, offences that - some of them are punishable by terms of imprisonment. 

60So you have placed yourself in the peril, as I said you would if you brought yourself back before me.  I hoped you would not.  I take into account then all the submissions that have been made, both today and on the occasion of the past listing of this matter in August and for that matter, the various submissions made by previous counsel, Ms Marcou, when she appeared before me on 13 August 2015. 

61Again, I say, there is not utility me descending now to spell out the gravity of the offending, the nature of the purposes that come into play.  There is no point me spelling out again your background.  I have gone into these matters in great detail in those voluminous, far too voluminous sentencing remarks.  So of course I took into account your guilty plea and I found the presence of remorse and I concluded there was an increased burden.  I reached a conclusion in August 2015 as to you having those favourable prospects of rehabilitation I commented on. 

62Well, in that respect there is a slight change, it seems to me at least.  I really am surprised that you have breached this order, because I could not have imagined someone who could have done better than you had done when I saw you back in August 2015 and you had amazingly supportive people around you, your own family and the Riedels.  I think I recall speaking of the fact of the Riedels and if there were people like them who were there for every person who came out of prison, that recidivism rates would plummet. They were the people that backed you and yet, you have breached this order in the way I have described, with the non-compliances and with the offending.

63I add into that, of course, this is not a big aspect of it at all, but the existence of an obviously relevant matter in your past.  That is the intentionally causing injury that I knew nothing of and the fact of the breach of the suspended sentence that I knew nothing of.  It is strictly not a prior conviction.  I really should have been told about it, but this is not a criticism of counsel who appeared on the plea, they did not know about it and nor really is it a criticism of you.  It is a shame I did not know about it, but it is not a critical matter.

64But as I am engaged in a re-sentencing exercise, I now know of it.  And as I say, I see that occurred in a family setting.  It is very hard for me to know the ins and outs of all of that and it is nowhere near as serious as the matters that I'm re-sentencing you in relation to it, it is as simple as that. 

65Well, in the circumstances though, I can really be less bullish about your prospects of rehabilitation.  I have now the period of three years since I expressed those views as to those favourable prospects. 

66And here we are three years later, with all the structure and supervision under the order, you are still having obvious and significant issues with drugs of dependence.  You have committed as I have said, a number of offences, at least offences punishable by imprisonment, on those five separate occasions in the currency of the order.  So I can hardly be more positive as to your prospects.  Having said that though, your risk of committing this sort of offence again, I think is low, as low as it was if not lower in a way.  Because you are further removed from the setting that no doubt was the catalyst that was the breakdown of that relationship with your wife. 

67And that really was the inextricable fact that caused you to act in the way that you acted and your inability to deal with that and to cope with the breakdown of that relationship and her taking up with another fellow.  So, I think your prospects of rehabilitation are probably less favourably viewed here today, owing to the passage of time and the fact that you have done what you have done in the interim.  As against that though, of course, you have also got something out of this order as well.  In doing the Men's Behaviour Change program and in some of the other things.  So, there is not much in it really and certainly, I do not reach a view that you have got a greater risk of re-engaging in this sort of offending.  You do not. 

68I wish you had complied with my order.  I wish that this day had never actually come to pass.  I hoped it would not, but it has and it has purely as a result of the decisions that you have taken, I am afraid.  I am required, in this re-sentencing exercise, to take into account the extent of your compliance with the order.  I have commented on that. It has been substantial and I pay regard to that fact.  I also of course, I have not commented directly on this, but in terms of the offence of breaching my order you have pleaded guilty to that particular offence, and that is again a matter of mitigatory value. 

69I take into account that fact and also the fact that I suspect you are sorry.  Not just because you are back here, but you are actually sorry to have done that.  I am not going to descend now to a full review of my original reasons.  Consideration of paragraphs 83, 85, 87, 88, 93, 94, 107 will make plain enough how explicit I was in terms of the explanation of the order.  What it meant, how it could be breached and what might happen if, if you breached it.  I said then, and this is the position, that I could not actually accurately predict what I would do, because I would need to do what I have been doing.  That is assess the nature and the gravity of the breach and then exercise a discretion. 

70So I could not promise you one thing or the other, but it seemed reasonable to me to at least give you some theories to work on.  That is all they were, and I made that plain enough.  Again, there was no misunderstanding.  You were asked at the end of it, what you thought might happen if you came back in breach of this order and you said, you thought you would go to prison.  Well, I said what I said in those lengthy remarks.  But having said all of that, none of that then requires me to then follow through with any action that had been foreshadowed as likely or probably.  If I thought it was open to re-sentence you to a community correction order, well that would be the answer.  That is what I would have to do, because prison is a disposition of last resort.

71One only sends a person to prison if there is no other alternative.  And if that was the position, I would do it, whatever I had said.  In fact, I have growled often enough, perhaps in the way I growled at you on that day.  I have growled often enough at people who have then entered orders and have then breached them, only to have me then confirm the order or to re-sentence in a way other than an immediate term.  Indeed, in recent times I seem to recall, releasing a person on their third such order.  But each case has got to be dealt with on its own facts. 

72I do not believe that it is open to do that here, to re-sentence you to a community correction order, given the nature of the offences that I dealt with you for and the seriousness of them.  It really was one chance for you, as I made very plain on the occasion and you have not taken it.  So I take into account, as I have said, the extent of compliance, it was significant.  I take into account also, there is an aspect of this, it is not an easy sentencing task actually, on reflection.  Because what I am doing, is I am re-sentencing someone who I hoped I would never see again, for offences that I suspect you will not ever commit again.  And for offences that occurred really in a different time of your life.

73They are quite aged at this point and the motivating feature that drew you into that conduct, is no longer present.  So there is in my judgement, certainly no increase in risk.  I have still got to take into account the various purposes of sentencing.  Again, I am not going to spell all of those out again, they have been spelt out previously.  General deterrence is a powerful factor and that is so, notwithstanding the efforts that you have made on this order.  I am not sure what sort of message it would send, to provide the lenient disposition that I did provide, have it breached and then wave it away with a fresh order. 

74In any event, I do not believe that that is open here. I believe that my only alternative here is to return you to prison, I am afraid. But as I say, I take into account the various matters that have been raised. You need to be deterred, obviously. All right. I will have you remain seated, I think. On the charge of contravening my order, so that is that separate charge of contravention of the order, I am going to convict and sentence you to seven days' imprisonment. As I have said, having found you guilty of that offence, I am then required to engage in one of the approaches set out in s.83A(s) of the Sentencing Act. 

75The only option as far as I am concerned here, is to re-sentence you as though you had just been found guilty of those offences.  And to that extent, I adopt the approach referred to in the recent case of Liu v R [2018] VSCA 92 and confirmed in Bieljok v R [2018] VSCA 99. Essentially what I am doing is, I am setting aside the whole of the sentence imposed and then calculating afresh what would be an appropriate term of imprisonment for these offences. Right. Because of course, one cannot lose sight of the fact that part of this sentence was the 259 days that you have, that you have already served.

76So, I re-sentence pursuant to those recent authorities.  I want to make something plain.  I made it plain when I first sentenced you and I said of that combined disposition, that I did not want my order cited as the sort of sentence that might commonly be imposed in that sort of case.  That was at paragraph 50 of the sentencing remarks.  I said then "I want to make one matter very clear:  I do not want this result cited back to me or to other judges as to the sort of disposition readily open for such serious offending as this; it is not."

77And I went on to describe how there is nothing unusual about your conduct being met with a three and a half or four and a half year prison term.  Well, really I am repeating those remarks.  I want to make it plain that the sentences that I am about to impose are not of a dimension that usually would be demanded by this style of aggravated burglary - a confrontational residential aggravated burglary followed up by a physical assault within the house upon a vulnerable person.

78But of course, I am now resentencing you a good deal down the track.  And in the period of that time, you have done a significant amount in the course of that lengthy community corrections order and I am required to take that into account. 

79On the charge of aggravated burglary, you are convicted and sentenced to 23 months' imprisonment. 

80On the charge of intentionally causing injury, I convict and sentence you to nine months' imprisonment. 

81On the summary offence on the contravention of a Family Violence Intervention Order, I convict and sentence you to one months' imprisonment. 

82The base sentence is the 23 months imposed on the aggravated burglary.  I direct then that three months of the sentence imposed on Charge 2 - that is intentionally causing injury - be served cumulatively upon the base sentence.  I have taken into account, obviously, the principles of totality of sentence in this case. 

83The other sentence is to be served concurrently.  What this produces then is a total effective sentence of 26 months imprisonment.  All right, well that is the head sentence.

84Now I cannot know if you will ever be released on parole.  I cannot speculate about that fact.  I have go to work on the theory that you will serve every day of that 26 months.  But I am required to fix a non-parole period and I fix one that pays regard to these various mitigatory matters have been raised as indeed the head sentence does.

85I fix a non-parole period of 13 months, all right?  And what you understand, I hope you do, is that you have already served 259 days of that period, all right?  So I declare that you have served already a period of 259 days in relation to that sentence.

86I have already pronounced the s.6AAA declaration at the time of the original sentence that applies with equal force today.  If you had pleaded not guilty and been found guilty of these offences, the ones that I am resentencing on, I would have given you a six year term of imprisonment with a four year non-parole period. 

87And in terms of the fresh matter here today, that is the offence of breaching my order, I have taken into account the fact of your guilty plea.  If you had pleaded not guilty to that matter rather than receiving a seven day term, I would have imposed a one month term of imprisonment.

88So to recap then:  this translates then into a term of 26 months' imprisonment with a non-parole period of 13 months and you have already served 259 days of that period.  All right, let me just see if any other orders that I need to pronounce?  Anything else I need to pronounce at all?

89MS BURNETT:  No, Your Honour.

90HIS HONOUR:  Now are there any sort of custody management sort of issues? 

91MR SMURTHWAITE:  The prescription of Pristiq and Epilim, Your Honour.

92HIS HONOUR:  All right, well where is - let me just look at what section - I do not want to start dealing with doses - he will be seen by hopefully a doctor or a nurse.  One or the other.  Just let me chase down - what is the document that says what his current medication is?

93MR SMURTHWAITE:  And I think there is reference to it in Dr Whiteside's letter although it might not specifically say he is prescribed that now but ‑ ‑ ‑

94HIS HONOUR:  Yes, but I am not going to start guessing about it.  I mean, do you know precisely what he is prescribed?

95MR SMURTHWAITE:  He continues to be prescribed Pristiq and Epilim.

96HIS HONOUR:  Where does it say that?

97MR SMURTHWAITE:  Well, as I say, there is reference to it in Dr Whiteside's letter but it does not - he does not say that he is prescribing it at the moment but those are the instructions.

98HIS HONOUR:  So all right, if I put it in these terms?  So if I refer off to the - there being some mental health concerns?  Do you want me to do that or do?

99MR SMURTHWAITE:  Yes, Your Honour.

100HIS HONOUR:  So this man has some mental health issues, including - I will say significant depression.  He is taking - and they are anti-depressants, are they? 

101MR SMURTHWAITE:  Yes, Your Honour.

102HIS HONOUR:  He is taking anti-depressants, namely - just let me look at it - so Epilim is a mood stabiliser.

103MR SMURTHWAITE:  That is right.  So Pristiq is the anti-depressant.

104HIS HONOUR:  Taking anti-depressant medication, Pristiq - that is P-r-i-s-t-i-q?  P-r-i-s-t-i-q?  And a mood stabiliser Epilim.  Do you want me to mention the back issues or not?  Is he still taking sort of medication for back pain or not?

105MR SMURTHWAITE:  Yes, so there is pain relief medication which he is prescribed, Your Honour.

106HIS HONOUR:  All right.  He may also need pain relief medication for back pain?

107MR SMURTHWAITE:  Yes, Your Honour.,

108HIS HONOUR:  Any other matters? 

109MR SMURTHWAITE:  No, that is sufficient, Your Honour.

110HIS HONOUR:  Thank you.  All right. 

111Well, look I have signed the, I have signed the formal order.  Is there anything else I need to deal with at all, or not?

112MR SMURTHWAITE:  No, Your Honour.

113HIS HONOUR:  Very well.  All right that completes the matter then.  So, if Mr Smith could be removed please.  Thank you.  You will go down and see him downstairs, Mr Smurthwaite?

114MR SMURTHWAITE:  Yes, Your Honour.

115HIS HONOUR:  Very well.  You will explain the aspects of parole and the relevance of the non-parole period and the fact that he has done the PSD already and he will need to make application for parole, will he not?

116MR SMURTHWAITE:  Yes.  I will explain that to him, Your Honour.

117HIS HONOUR:  Very well.  All right.  Very well.  Yes, all right.  Well, thank you for your efforts.  Mr Smith can be removed.  Thank you.  I will wait, I think.

(At this stage the offender left the court.)

‑ ‑ ‑