Director of Public Prosecutions v Standen
[2018] VCC 1395
•31 August 2018
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| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-17-02235
Ind number G13325308
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY STANDEN |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May 2018, 23 August 2018 | |
DATE OF SENTENCE: | 31 August 2018 | |
CASE MAY BE CITED AS: | DPP v Standen | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1395 | |
REASONS FOR SENTENCE
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Catchwords: Armed robbery, resist emergency worker on duty, Summary offence possession cartridge ammunition
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APPEARANCES: | Counsel | Solicitors |
| Department of Public Prosecutions | Mr L. Harrison | Office of Public Prosecutions |
| For the Accused | Mr J. McQuillan | Greg Thomas Solicitors |
HIS HONOUR:
1. Anthony Standen you have pleaded guilty to two charges on the indictment being one charge of armed robbery and one charge of resisting an emergency worker on duty. In addition, you have pleaded guilty to one summary offence of unlicensed possession of cartridge ammunition.
2. You have a quite sizeable and relevant prior criminal history before the courts. You were born on the 8 October 1960. You are now 57 years of age.
3. The maximum penalties were correctly stated in the summary and I do not see the need to repeat them all now. The armed robbery is by far the most serious charge. It is punishable by a 25 year maximum term of imprisonment.
Facts
4. The prosecutor Mr Balek opened this matter to me on 21 May of this year and that was in accordance with a written prosecution opening dated 30 April 2018. The summary was an agreed summary and Mr McQuillan told me that. That summary was marked as Exhibit A on these proceedings and I do not see any need to describe the full factual setting in my reasons. I am going to sentence in accordance with that agreed summary which was read out back in May and I will not go beyond those agreed facts. So, I am only really going to very briefly describe the facts of your offending.
5. As you know, you attended at your local pharmacy on 5 December 2016 and you demanded some diazepam. You were in an agitated state from the outset. As you know, you went around the wrong side of the counter and were told you were not allowed there. You yelled out that you did not need a script. You demanded the drug and you swore as you did so. When the frightened pharmacist offered up two tablets to try and get you to leave, you then demanded the box and then did something very foolish indeed. You pulled out a knife. You waved the knife around demanding your medication. There were 10 customers and 6 members of staff all within the premises. So this was a frightening event, no question about that. It ended with you leaving with a box of diazepam. Police were called and you were pretty easily identified. You had no disguise. You were a regular, people knew you. Staff knew you.
6. Police went to your house later that same day. You abused the officers from your side of the door but then you opened the door and you cooperated. But as the summary makes clear, you then at one point resisted inside the premises. You were speedily subdued. It is hard to know exactly what possessed you to resist in the way described in the summary, given your cooperation only moments before. And I am certainly not able to find that you had any intention at all to assault or to harm the police members. It was an offence reeking of impulsivity though at least it did not end badly for the police or for you. Every aspect of the offending on this day was disordered. Some shotgun cartridges were discovered in the search of your house amidst piles of junk. You had a problem with hoarding that is referred to in some of the other material placed before me. As to the shotgun shells, I accept the account given of them by your counsel. You were a prolific hoarder and the photographs make that clear. Certainly there is nothing sinister about those shells. You just should not have kept them when you found them.
7. You were not fit to be interviewed. You spent 9 days in custody before being bailed on 13 December 2016. On 30 January 2018 you were admitted to a CCO for some offences that had occurred in February 2017. The Magistrate on that date, 30 January 2018 placed you on a CCO with a justice plan and when I first saw you back in this court in May 2018 I received a progress report from Corrections and heard some impressive evidence from Ms Tina Pugliese, from the Department of Health and Human Services. So I adjourned the matter on that date and I then called for a variety of reports. Those reports have now been received. I made no promises to you on 21 May. You were before me last week and there was a need to have you assessed for your suitability for a community corrections order. That has now occurred as well.
8. To complete the picture you were always pleading guilty to the armed robbery. There had been some consideration given as to your fitness to stand trial and the possibility of a mental impairment defence but that went nowhere and once that was resolved as it was by May 2017, the only live issue really was the extent to which you accepted the factual basis of the resist. Regrettably, that led to the listing of a committal but the witnesses were not called and you pleaded guilty on that day. Nor were those witnesses required to actually give evidence before me on the day of the plea given the abandonment of the factual dispute and then the acceptance of the agreed summary when I first saw you. It was then, in those circumstances, an early plea of guilty of which I will have more to say.
Impact
9. Now there is no victim impact material filed in this case but this was a frightening incident for those people within the chemist shop. As I have said, there were many staff members just going about their work and there were also 10 customers inside the chemist shop. The tablets were actually given to you as the staff member feared someone may actually be hurt. You intended to scare the pharmacist and have him actually comply and give you the medication. There is no doubt your conduct was frightening and it had an impact obviously in the short term. I am not able to find any long term impact though I am confident indeed that your direct victim in the chemist shop will never forget this crime.
10. So, I take into account the impact of your crimes.
Mitigation
11. Mr McQuillan, your counsel, conducted a plea on your behalf and he had filed some written submissions as well which I take into account. He raised a number of matters in mitigation. Many of these were raised when I first saw you back in May, so you may not even necessarily remember what he said. But he was relying upon;
· The fact that you had pleaded guilty and you had done so at an early stage.
· He was relying upon the presence of remorse and he took me in some detail to your background including a background of having an intellectual disability and some other mental health conditions relevant to your offending and relevant to my task as the sentencing judge.
· He relied also upon a report from Dr Deacon as well as written material from the Department of Health and Human Services and the direct evidence that was placed before me from your disability justice worker Ms Tina Pugliese who spoke of your excellent current efforts on the January 2018 community corrections order. There was also a progress report from Corrections to that effect.
12. Mr McQuillan was relying upon principles from a case, you may recall being discussed, the case of Verdins.
13. He made some submissions as to how the offending should be viewed and the relative gravity of the armed robbery but he conceded that the offending was still serious. Of course it was. It was an armed robbery. He submitted that it was open to put you on a community corrections order without any additional time being served in prison.
Prosecution
14. Mr Balek appeared on behalf of the Director of Public Prosecutions of this State and he challenged that submission on behalf of the Director. The Director of Public Prosecutions submitted that further imprisonment was required in your case but that your eventual release could take effect by way of a community corrections order. That is, it was being submitted that a combination-type order would be open. Mr Balek made some submissions about the seriousness of the offending and the relevance of your criminal history but also recognised back in May that it was a difficult sentencing task owing in particular to the evidence touching upon your intellectual disability and level of functioning and the progress that you were making on the current order. He conceded then that there were some powerful factors in mitigation. I asked him when he appeared last week whether the Director's submission was still persisted with and it has certainly not been abandoned. So, as I sit her today, the Director of Public Prosecutions is calling for your immediate imprisonment.
Guilty plea
15. I turn then to consider the various submissions and I will do so quite briefly.
16. As I have said, you have pleaded guilty and that is important. It was never in doubt that you were pleading guilty to the armed robbery and it was clearly the most serious of the offences by far. You were always pleading guilty to it. The matter stalled firstly to, I think, consider appropriately your fitness to plead and your mental state at the time of the offending and then to deal with the factual issues in relation to the resist that I have described. It came up to this court with the factual basis of the resist unresolved and so it was then that I came onto the Bench and was confronted by a potential factual dispute with the calling of a large number of witnesses. That settled swiftly enough on the day.
17. It seemed to me, and I said as much, that the factual dispute that was being contemplated was the least of your problems when measured up against the actual armed robbery offence. What is and was very important is that you have pleaded guilty. I treat that plea as at a very early stage for the resist and at the earliest stage for the armed robbery. I have got to give you significant credit for your decision to plead guilty and at the early stage which you did. As a result of all that, witnesses have been spared the experience of giving evidence. The community has been saved the time, the expense and the effort associated with the conduct of a committal hearing in the Magistrates' Court and a trial or even a contested plea up in this court.
18. And so you have in these ways facilitated the course of justice and I am required to pass a lesser sentence than I would have imposed upon you had you been found guilty after trial by a jury. So, I take into account your early plea in mitigation.
Remorse
19. As to remorse, you are learning about the way your conduct can impact on others. Tina Pugliese says as much. You are obviously a work in progress and you require a great deal of work. You have pleaded guilty. You have done that at the very early stage as I have described and a guilty plea is usually evidence of at least some remorse. So I am prepared to find that you have some remorse for these crimes and I take that into account in mitigation.
Background
20. I have said almost nothing about your background to this point and I am not going to sit up here and tell you about your own background. You know what it is. It was spelt out in quite some detail in the reports placed before me, the report of Dr Deacon as well as some of the other written material. Also in the overview report which has most recently been received.
21. Mr McQuillan also told me about your background and it is set out briefly in his written submissions. So, I have no reason not to accept what I have been told about your personal family background. You are 57 years of age. You have laboured under an intellectual disability from birth. You attended a special school. You are not literate and really you have never been employed and you receive a disability support pension. Your finances are managed by State Trustees. You are single though you obviously have real family support as has been evidenced by the presence of family members on the day of the plea initially and on every occasion since. You have in addition to the intellectual disability, a raft of other mental health issues including things described as impulse control disorders and either schizophrenia or schizo affective disorder. The tags or labels are not the critical thing. What is far more important for me is the impact of those various conditions.
22. You have been managed in the past by a local mental health service and there have been periods of hospitalisation. Part of your background also, I am afraid, is a very unfortunate criminal record. It is a long record and it is replete with matters which speak of your past inability to exercise appropriate control in some settings. I am not going to waste your time or mine going through your many past appearances before courts. There are very many instances of assault and resist police, assaults more generally and some more serious offences. You have been given community-based dispositions which you have breached but you have also complied with some. There has been a justice plan engaged before. You have also spent some 2 months in prison courtesy of a partially suspended sentence at one point. You have committed offences after committing the offences that I am dealing with.
23. As mentioned earlier, there were some assaults, some assaults with a weapon (I understand your walking stick) and also a charge of discharging a missile. And they occurred in February 2017 when you were on bail for the matters I must deal with and they arose out of, it would seem, some unpleasantness in a shopping centre and on a bus. That community corrections order requires you to comply with a justice plan and you will recall that I received some evidence from Tina Pugliese on that score. To round out the matter, you have remained out of trouble since February 2017, which of course is a good thing.
24. There is I am sure far more I could say about your background and all the expert materials that have been placed before me but I just do not see the need to do so. I accept that the various conditions spoken of in those reports and the evidence placed before me have a very realistic connection to your offending. You obviously have serious difficulties with consequential thinking and impulse control and you hardly had the optimum capacity to exercise reasonable judgement and control on the day of the offences that I am dealing with. Indeed it is plain that you were not acting calmly or rationally. It was hardly well thought through to enter a shop where you were well known, a chemist shop, without any disguise and then to pull out a knife and rob them at knife point. Your capture was inevitable. You were not chasing wealth. You were not chasing money. You wanted some medication.
25. It is obvious to me that the various conditions spoken of in the materials placed before me attract the principles from that case of Verdins that you heard discussed. I had some reservations as to whether the 6th limb in the case applied but on reflection I take the view that each of the six principles must be given some weight here. You are hardly the ideal vehicle for general deterrence nor is it easy to achieve specific deterrence in your case, though Tina Pugliese suggests that that is still achievable. You can actually be deterred and you need to be. It would be plain to Blind Freddie that someone such as you would be vulnerable in custody. It is obvious that there would be an increased burden upon you and I am also prepared to conclude that there would likely be a significant adverse impact upon your mental health if imprisoned. And plainly enough, there is a reduced moral culpability here.
26. Prison is always a last resort for any court. It must always be avoided if it can be especially for one functioning in the way that you are and with your level of vulnerability. Sometimes though it cannot be avoided and that is owing to the seriousness of the offending before the court. I give weight to each of the principles from that case that you heard discussed but of course that is not the end of the matter. In addition, the very conditions which give rise to that allowance also plainly increase you risk of re-offence.
Rehabilitation
27. As to your rehabilitation, you are a work in progress and you actually are doing very well on the community corrections order with the justice plan at the moment. I have said a number of times and I repeat, I was impressed by the evidence of Tina Pugliese. She is helping you understand how your aggression can actually be perceived by others. How it can affect them and the very strong need for you to have strategies to avoid the sort of outbursts that have brought you into conflict with the law in the past. She has taken a real interest in you obviously and is guiding you in the way you need to be guided and that is to help you live your life without confrontation. You need a lot of support not just a community corrections order and justice plan but hopefully also some level of services under the NDIS. Controlling your impulses and emotions does not come naturally to you but you are actually doing very well on the current order as the most recent progress report makes clear.
28. Ms Pugliese said that you had been incredibly compliant and that your best prospects of rehabilitation are to continue in the way you are on that order and with her assistance. She says that a prison sentence may well disrupt that momentum and that the risk decreases with the sort of support that has been provided. However again I say, sometimes a Court is left with no choice owing to the seriousness of the crimes committed. I do think you have some realistic prospects of rehabilitation. It is a bit harder not to be guarded about those prospects given the sizeable history of offending and the various mental health issues that make your life and interaction with others more difficult.
29. You act on impulse and often enough I am afraid the impulse is quite wrong. Still you are not without hope and I am actually encouraged by the real efforts that you are making and your level of compliance. You are getting a lot of support, you need it undoubtedly and things are going well at the moment and I hope that continues. You have stayed out of trouble since February 2017. You have, as I have said, family support. I also have the recent report I called for. It has been marked as Exhibit B. That overview report is also of great use to me and is, again, to a large degree quite encouraging. The community corrections order assessment process has now taken place and you are judged to be suitable for such an order.
30. So, I am cautiously optimistic about what the future holds for you.
The Offences
31. As to the offences themselves, Mr McQuillan conceded that armed robbery was a serious offence. Well of course it is. He submitted that there was a level of spontaneity and a level of unsophistication in your offending. Again, I am sure that is right. It was not sophisticated. Plainly it was not deeply thought through. No disguise, known by those you made the demands of. Your capture was just inevitable. There was clearly some very rudimentary planning. I mean you went to the chemist shop to obtain the diazepam. You had been knocked back the day before. You knew of the need for a script and did not have one.
32. You packed a knife and you produced it only when your original demands were not successful. You then brandished it. It was a frightening scene and you really should not have engaged in that activity. Your lack of predictability and lack of rationality and high level of impulsivity is hardly soothing to those confronted by that scene in the chemist shop. But I am prepared to find a level of impulsivity to this offending. No consideration at all to the true impacts upon you. The resist offence is far less serious and I do not find against you any intention to assault the members or to use the knife. Still, as you know, you clearly should not have resisted and it may well have been alarming to the members to see you move in the way described, whatever your intention. Those whose job it is to police our community must be supported by the Courts. The cartridge ammunition offence is the least serious offence by far and there is no sinister subplot at play there. You held on to the cartridges having found them. It is as simple as that.
33. As to the armed robbery offending, though serious, it is not at the highest of levels of offence seriousness. It is nowhere near it. There are very many far more serious instances of armed robbery coming before the courts. But it was still serious offending. Any armed robbery is.
Purposes
34. I have to consider a number of purposes of sentencing. Your rehabilitation is one of those purposes and it is still an important consideration despite your age and despite your experience before the courts. But it is not the only thing for me to consider. I have to consider other purposes. I must impose a just and proportionate sentence in relation to your offending. You must be punished. Other matters must also be taken into account include the impact of the crime and the maximum penalty here, 25 years for the armed robbery
35. I must denounce your conduct and I do. You have undoubtedly committed a serious crime (and I am referring to the armed robbery) and you have relevant offending over many years.
36. There are other purposes of sentencing that I must also have regard to. There is the need to deter you. That must be given some weight in my task but it is obviously something, though I give it some weight, and must do so given the seriousness of the crime and the chronology of your past offending, I believe it is open to me to moderate to a degree the weight to given to that purpose and that is owing to your mental health concerns. And so too for the same reasons, I think it is open to reduce the full weight to be given to general deterrence. It still operates, yes, but with some sensible moderation. Community protection is still a relevant purpose and you have a troubling history before the courts. As I say, it portrays a long-term inability to control your emotions and your impulses and you must control them. You are working on that probably more intensely than you ever have in the past but it is still quite early days. And those conditions unfortunately increase your risk of breaking the law in the future.
37. I must and I do pay regard to current sentencing practices. The reality is, most people who commit armed robbery, they go to prison, it is as simple as that. But ultimately of course, I must pass appropriate sentences in your case for your crimes. So, other cases, other sentences in other cases, they are not precedents. Statistics in this area are of very little use at all. There are some very unusual features of your offending and of your personal make-up which to my mind sets this case apart from so many others that I see.
Boulton
38.Mr McQuillan argued that it was open to place you on a community corrections order. He argued that your offending did not demand any further term of imprisonment. That a community corrections order would be open on its own. As I have said, the Director of Public Prosecutions of this State challenged that submission arguing that you had to be sent back to prison. Sending any person to prison is always a matter of last resort for any court. It always has been and hopefully it always will be. Not every offender for every crime can or should be placed on a community corrections order. There are some crimes where the purposes of sentencing cannot be given adequate weight by the use of such an order. I have had you assessed for your suitability for a community corrections order. I told you at the time that you should not take any comfort from my calling for the report. I have got that report back. You are judged to be suitable for the community corrections order and your level of risk of reoffending is said to be set at a medium level.
39.Section 5 (4C) of the Sentencing Act prohibits the imposition of a term of imprisonment unless the Court concludes that the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached. So, I need to pay careful attention to the purposes for which sentence is imposed and consider whether they can actually be achieved by a community corrections order. The DPP of this State says they cannot. There are some crimes that are just too serious and armed robbery often enough is.
40.You have served only 9 days in prison. The question throughout for me is whether I must send you back to prison. As I say, the Crown or prosecution argue that I must. It is here that I hold some concerns and I said something about these concerns last week in open court. Given the progress you are making, I believe that returning you to prison is more likely to actually increase your risk of re-offending in the future, not reduce that risk. I am concerned as to the corrupting influence that prison may have upon you and I am far from persuaded that you will emerge a better or a safer person. Indeed I have little doubt that you would emerge more damaged than you already are and therefore with an increased risk of offending. I ask how is that a win for anyone? It may very well be that the best protection for the community is for you to actually stay in the community and maintain the focussed counselling and services that you are receiving. To receive the enhanced package under the justice plan. I have not spent much time setting out the materials from the most recent client overview report dated 20 August of this year. Tina Pugliese wrote that report. It is a very positive report. It recognises the sizeable issues confronting you. It comments on the level and the nature of your disability, your developmental background and current living arrangements, your health, the offending and your current contact with the Department of Health and Human Services. It is plain from that report that you are putting your best foot forward at the moment. Your compliance on the current community corrections order and justice plan is described as exemplary. You have willingly engaged and you are developing strategies in the hope of avoiding any re-offending.
41.My view is that that is the best way forward both for you and the community. To interrupt that progress makes no good sense to me at all. That is not to downplay the seriousness of the armed robbery offence. It was, as I have said, serious offending and any repetition will likely lead you directly to prison. However, as I said I would last week, I am going to give you a chance to avoid a return to prison at this point. And if you consent, I going to admit you or place you on a community corrections order. Now I will explain that in a moment. There are some formal orders that I need to make. Let me just look at those.
Disposal
42. Firstly, there is a disposal order in relation to the diazepam tablets and the knife that you brandished. That is sought under the provisions of the Confiscation Act. There is no issue about the order being made. I am satisfied that it is appropriate to make that order and I have signed that order. So, those items set out in the schedule are forfeited to the State and they are to be held in the manner contemplated by that signed order.
Forfeiture
43. Secondly, there is a forfeiture order and that pertains to the shotgun cartridges. Again, there is no issue about that order being made. I am satisfied of the matters set out in the order and the cartridges are forfeited to the Minister and to be dealt with in the manner contemplated by the order.
44. The final order that was being sought and Mr McQuillan will be able to explain all of this to you in a bit more detail if you need. But there is an application for what is referred to as a forensic procedure order, an application to take a scraping from your mouth. There is no opposition to the making of that order. I am satisfied it is appropriate to make it owing to the seriousness of the offending, the existence of the prior convictions, the fact that it is not opposed and I judge it to be in the public interest and so I am going to order that you undergo a forensic procedure for the taking of a scraping from your mouth under the provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. You will see in the formal order that this will require you to attend at the Sunbury police station in the next 28 days. It would be best to take I think a copy of the order. They will know why you are there if you do that and what they will do is just run a swab around the inside of your mouth. It is not an invasive procedure and I have not authorised a blood sample which I could have done. I always authorise the least invasive procedure, so it is not difficult but they can use reasonable force to obtain that sample. It should not be an issue. So, I have signed that order as well.
45. OFFENDER: Excuse me, Your Honour.
46. HIS HONOUR: Yes, yes.
47. OFFENDER: Is this for drugs or - the swab.
48. HIS HONOUR: It is just to get a sample of your DNA to put in the database. As I say, Mr McQuillan might go down and have a chat to you about that. I am going to leave the Bench in a moment. It is no great problem and it is a very swift procedure and that is what it is - - -
49. OFFENDER: Yes.
50. HIS HONOUR: - - - to get your DNA. Anyway, you can talk to Mr McQuillan about that.
51. OFFENDER: Thank you.
52. HIS HONOUR: Now, let me then just deal with what I am proposing to do then. On all these charges, so there are three charges, what I am intending to do is to put you on a community corrections order. I am going to convict you obviously and I take into account the fact that you have spent that time in custody those handful of days, so I am not even going to send you to prison and deduct that period. I am simply going to put you on this order, a community corrections order. So, you are going to be heading out the door with your family today.
53. OFFENDER: Well, thank you very much, Your Honour.
Sentence
54. HIS HONOUR: All right, so, now just listen and, as I say, you will get a chance to, and I want you to understand this order. It is very important that you do understand it, all right? So, for these three offences, so for the armed robbery, for the possession of the cartridge ammunition and also for the resisting the emergency worker on duty, I am going to convict you and I am going to place you on a community corrections order for two years, all right?
55. OFFENDER: Yeah.
56. HIS HONOUR: And it is from today. So, it runs right up until August 2020. Now, you have had these orders before. You are on one at the moment, so you know what you have got to do. You have to attend within two clear workings days of the commencement of this order and I think they have given you an appointment time to front up on Monday at 11 am, all right.
57. OFFENDER: That is correct, Your Honour.
Terms
58. HIS HONOUR: So, you go there on Monday. So, that is the first thing you have got to do. All these orders have what are described as mandatory terms. Everyone who gets them has these same terms. And the first of those is you have got to stay out of trouble. You must not commit another offence for which you could be imprisoned in the period of the order. If you commit an offence punishable by imprisonment you will breach this order. You have to turn up on time for any sort of attendance under the order and you have got to report to and receive visits. You have got to let them know within two clear working days of any change of address or job. Well, that will not be a problem for you. You are not allowed to leave Victoria without first getting permission to do so from your community corrections officer and you have got to obey all their lawful directions. So, they are the things that apply to every person who gets one of these orders.
Conditions
59. Then there are some special conditions that I place on this order for your particular circumstances and they are as follows. You must be under the supervision of a community corrections officer for the full period of this order. So, you are under supervision. You must undergo any mental health assessment and treatment as directed by them. You must not enter or remain in Terry White pharmacy at 83 - 85 Evans Street Sunbury for the full period of this order. Well, that will not be a problem because you do not go there and you are not allowed to go there under your conditions of bail. And that is now going to continue under this order. You are not to go near the place
60. Next you must participate in the services specified on the justice plan. Now, what does all that mean? Well, you are on a justice plan, you know that. And Tina Pugliese is assisting you in that respect. Well, there will be various services available to you under that and various recommendations made under it. What Tina says goes. If she says this is what you must do, you must do it. So, you must participate in all the services that she says you must participate in. Let me just look at the - I am not going to monitor this order, Mr McQuillan. Let me just look, see if there is anything else that I have overlooked. So, under that justice plan condition, as I say, Ms Pugliese will tell you what she wants you to do under the order. And you have got to listen to her and you have got to obey what she says
61. If she says you need this treatment, you need to take this medication, you need to comply with advice of doctors, you follow her directions. So, that is for a two year period. If you do not comply. If you, for instance, commit offences in the next two years, you will breach this order. So, if you get onto a bus and you or go down to Centrelink and smack your walking stick onto the table out of frustration, out of anger, if you commit any sort of assault in that sort of setting, you will breach this order. So, you have really got to behave yourself, as you are trying to do at the moment and not breach this order. Because if you break the law, we will meet again, all right? And we do not want to meet again. You do not want to see me and I really do not want to see you again.
62. The best thing for me would be to get to the end of this two-year period and never see you again. Because that would mean you would have complied with my order, which would be good for you, good for me and also good for the community. But if you breach any of these conditions or any of these terms, you will breach this order. So, no one is suggesting you are going to do it but if you left the State without getting permission, if you did not turn up for supervision when you are told to turn up or you did not go for treatment that had been recommended or you were not complying with your justice plan or if you went into the pharmacy for instance, you will break this order.
63. And if you break this order, we will meet again. We will meet again and if we meet again it will probably make a far less happy ending for you, all right? And the reason for that is this, if you breach this order, of course I would listen to anything that was said on your behalf by Mr McQuillan or whoever acted for you, but one of the most common events when someone breaches one of these orders is the order is cancelled. And if it is cancelled the judge, and it would be me because I deal with my own breaches, so if you breach if you will come back in front of me and I will have to deal with you for the breach. Breaching one of these orders itself is a criminal offence. But that is not the sting. The sting is this. The most commonly exercised power, the most common thing done by a judge when someone comes back having breached one of these orders, is to cancel it and then to re-sentence.
64. So, I would be required then to re-sentence you. Now, if I am placed in that position, there is a real prospect, a real prospect I would do what the Crown was suggesting I should do here today, that is send you to prison. That is what they were suggesting I should do. I am not doing it today, I am giving you a chance to avoid that. But if you breach this order and I have to re-sentence you down the track, really you have got to work on the - on the theory that there is a real chance that you will be sent to prison. You have been to prison before. Prison for one such as you is not the place to go. And that is before you even factor into the equation things like what is going to happen to your kitten and that sort of thing.
65. So, you do not want to see me again and I do not want to see you again. I want you to stay out of trouble for the next two years, listen to Tina and do what she asks you to do. If you find your anger or frustration building up, take a deep breath and walk away. Because if you do not, if you put yourself in breach of this order, you are going to see me again and there is every chance I would have to send you out the door to your left which goes down to a van out to prison. So, I do not want to be placed in that position but if I am that is what I might have to do. All right, I have explained all that because I can only place you on those orders if you consent.
66. I am going to stand down very briefly. Mr McQuillan is going to come down towards the back of the court and satisfy himself that you are consenting to this order and that you know what it all means. I will hand down the order and just run your eyes over it to make sure it mirrors my stated intention each of you and I might just lurk out of the back. It will give my tipstaff the opportunity to take appearances, as I have got an appeal list. They will be all queueing up outside so he can take appearances. I will come back onto the Bench in about 5 minutes, all right?
67. MR McQUILLAN: Thank you, sir.
68. HIS HONOUR: Yes, all right.
(Short adjournment.)
69. HIS HONOUR: Mr McQuillan you have had a chance to speak to Mr Standen and he understands the terms and conditions of this order and what it all means?
70. MR McQUILLAN: Satisfied that he fully understands the conditions of the terms, Your Honour, and he has signed it appropriately.
71. HIS HONOUR: Just remain seated Mr Standen up there. I will have you come out of the dock in a moment. But you have had Mr McQuillan come down and speak to you about what this order involves? You understand this order?
72. OFFENDER: Yes.
73. HIS HONOUR: Yes.
74.
MR McQUILLAN: I do not think he can hear you because (indistinct words)
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75. HIS HONOUR: That is all right, and you are consenting to this order? You say, "Yes, I am happy to be on this community corrections order"?
76. OFFENDER: Yes. Yes.
77. HIS HONOUR: That is fine. All right, well I have signed the order myself and then I will get a copy of that and then you will be right to head off.
Section 6AAA
78. I told you that I took into account your guilty plea. Can I tell you if you had not pleaded guilty, if you had been pleaded not guilty and been found guilty of these offences, I could not have put you on a community corrections order. I would have had to sentence you to prison in that setting. And I would have sent you to prison for 3 ½ years. I would have fixed a non-parole period of 2 years. So, that is what would have happened if you had pleaded not guilty but of course you have pleaded guilty and I am putting you on a community corrections order.
79.
So, anyway, look you can come out of the dock then and just come down and sit in the row behind your counsel, all right? Just grab a seat, Mr Standen. Your client has got a copy of that order
Mr McQuillan and, also the 464 order. So, I do not think there is anything else I need to do? No other matters?
80. MR HARRISON: No.
81. HIS HONOUR: Well, look that is the end of the matter then Mr Standen. That is the end of the court case but you have got to stay out of trouble for the next two years, you understand?
82. OFFENDER: Yes.
83. HIS HONOUR: You stay out of trouble for the next two years, all right?
84. OFFENDER: Yes.
85. HIS HONOUR: Well, hopefully I will not see you again. You can head off now with Mr McQuillan, all right?
86. OFFENDER: All right, thanks for hearing my case.
87. HIS HONOUR: That is fine.
88. OFFENDER: Thank you.
89. HIS HONOUR: Yes, all right.
90. MR McQUILLAN: If Your Honour pleases, thank you, sir.
91. MR HARRISON: If Your Honour pleases.
92. HIS HONOUR: Yes, thanks for your assistance. Thanks. Sorry, Mr McQuillan and Mr Harrison, do not hang around. I have got an appeal list, you head off, someone will occupy the Bar table.
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