Director of Public Prosecutions v Stephan

[2015] VCC 1212

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00998

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT STEPHAN

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2015
DATE OF SENTENCE:	1 September 2015
CASE MAY BE CITED AS:	DPP v Stephan
MEDIUM NEUTRAL CITATION:	[2015] VCC 1212

REASONS FOR SENTENCE
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Subject:  Sentencing; armed robbery

Catchwords:  Plea of guilty; no relevant prior convictions; stable family life; whether imprisonment combined with Community Corrections Order available

Legislation Cited: Sentencing Act 1991 (Vic) s.6AAA, s.8, s.11, s.44(a)

Cases Cited:R v Wade [2005] VSCA 276; R v Renzella [1997] 2 VR 88; Kruzenga v R [2014] VSCA 10; Collins v R [2015] VSCA 106; Deng-Maboir v R [2015] VSCA 179; Boulton v R 2014 VSCA 342

Sentence:725 days imprisonment to be followed by Community Corrections Order for 18 months; 183 days in custody for unrelated charges taken into account.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes (on plea) Ms N. Warda (at sentence)	OPP
For the Accused	Ms Z.Garde-Wilson	Garde-Wilson Lawyers

HER HONOUR: 

1Robert Stephan, you have pleaded guilty to one charge of armed robbery.  The maximum penalty for this offence is 25 years' imprisonment, and although you will not be receiving nearly as severe a sentence as that, I must and do take into account that the maximum penalty set by parliament reflects how seriously this offence is regarded.

2The offence occurred on 14 February 2014, but some preceding events are relevant.  In July 2013, a business arrangement between three men, Brett Shipp, Glenn Ballinger and Tom Bocevski, came to an end, with Mr Shipp withdrawing from their business, and to be paid $20,000 for his share.  That amount was to be paid in instalments, and by 14 February 2014, $12,000 had been paid, leaving $8,000 owing.

3You ran your own business as a motor mechanic, and were owed money by Mr Shipp for mechanical work you had done for him.  In December 2013, Shipp had introduced you to Ballinger, and told Ballinger that you were to collect the balance of the moneys owed to him, Shipp.

4On 17 January 2014, you had attended at the factory premises operated by Ballinger and Bocevski, and collected $3,000 in cash, for which a receipt was provided to Ballinger.  It is said that Ballinger was later provided with a signed, handwritten document authored by Shipp, dated 29 January 2014, authorising you to collect the remainder of the moneys owed.

5Your counsel says that the remainder of that debt had been assigned by Shipp to you.  Although Ballinger told police that he assumed that Shipp owed money to you when he was told the money still owing was to be collected by you, there is nothing to indicate that Ballinger and Bocevski had been told specifically that the debt had been assigned. Indeed, Ballinger made a subsequent statement to police that indicates that Shipp pressed for payment to him after 14 February 2014.

6On Friday 14 February 2014, you contacted Ballinger on his mobile phone regarding the collection of $2,000, and said you would send someone else over to collect it that afternoon.  A male who has not been named attended, and was handed a bank cheque in the amount of $2,000 payable to Brett Shipp. About a half hour later, you called Ballinger on his mobile phone and were angry that a cheque had been provided payable to Shipp.  You told Ballinger to remain at the factory, and that you were on your way to see him.  This was about 5 pm, and Ballinger and Bocevski decided to wait there for you.

7You arrived about 20 minutes later, together with the other man who had earlier collected the cheque.  You both entered the factory and ran up the stairs to the office area, where Ballinger and Bocevski were seated. The unnamed man stood near the door. You then produced a semiautomatic pistol, approached Ballinger, grabbed his collar, and pushed the pistol into his left temple, demanding he provide you with the balance of the money owed, namely $8,000, by Monday 17 February. You then pointed the pistol towards the wall of the office and tried to fire it, however it did not discharge.  You tried to reload it and waved it around, as if you were intending to shoot at something.  You appeared, to both of the men there, very agitated and aggressive.

8When Bocevski asked what you were doing, you walked over to where he was seated, pointed the pistol at his head, and grabbed at his shirt, and told him to get downstairs.  You demanded he hand over the keys to the car, which he refused.  You also told both men that you knew where they and their families lived, and that they were not to call police.  You then grabbed car keys belonging to Ballinger and left the factory.  As you were leaving, you pointed the pistol at Bocevski.

9Bocevski followed you and the other male out of the factory, and asked if he could retrieve some personal items from Ballinger's car.  The man accompanying you drove away in Ballinger's car, a Ford utility.  You drove away in a white Mercedes four wheel drive.  The taking of the Ford car in those circumstances constitutes the charge of armed robbery.

10Police were immediately contacted, and on 17 February 2014, attended your home in the early morning, arrested you, and a search was conducted.  They found a copy of the receipt provided for the $3,000 on 17 January; a copy of a bank receipt in relation to the depositing of the $2,000 cheque to the credit of Brett Shipp; your mobile phone; and a black-coloured imitation pistol, not alleged to be the firearm used in the armed robbery, and not the subject of any charge.

11When interviewed by police, you denied any involvement or knowledge of the offence, and also denied knowing Ballinger or Bocevski, but you did confirm knowing Shipp.  You otherwise gave “no comment” answers when the specific allegations were put to you.

12Some days later, Ballinger's stolen Ford was located, parked outside Shipp's home. 

13Some further days later, Ballinger identified you from a photo-board.

14Police examined your mobile phone and found a photograph of the cheque provided by Ballinger on 14 February 2014, and also an image of a bank receipt regarding the deposit of that cheque.  Text messages were also found on your phone which discussed the depositing of the cheque.

15The only explanation provided for your offending was said by your counsel to be that the debt owed to Shipp had been assigned to you, in payment of money owed by Shipp to you for mechanical work.

16Given that the car ended up outside Shipp's house, I am not convinced that I have been told what was really behind these transactions and events, but I cannot speculate further about that, or about why the man who accompanied you has not been named by you.  I must proceed to assess the seriousness of the offence based on the limited information I have.

17Although no victim impact statements have been provided, I have read the statements to police by Mr Bocevski and Mr Ballinger during the investigation.  Even though they knew who you were, knew your name, and had no previous issues with you, or reason to fear you - as reflected by their deciding to wait for you after your angry phone call - I am satisfied that this would have been a frightening and intimidating event for both of those men. You appeared to them agitated and aggressive, and attempted - although failed - to discharge the gun you carried, aimed at the wall.  Each told police he feared that you did intend to shoot one of them.  You held your gun at Mr Ballinger's temple, and you pointed it also directly at Mr Bocevski when you grabbed him by the shirt.  You also threatened them and their families by referring to knowing where they lived.

18The prosecution submits that it was a planned offence.  I find that it was planned, at least in the short term, even if not in any sophisticated way.  I find it was planned in that you rang and said you were coming there, and arrived about 20 minutes later; and you brought a gun, which you pulled out and used to threaten them.

19I do not regard it as seriously as I would a long-planned event with more precision, or one using disguises, and I infer that it was a relatively spontaneous reaction to your finding that the amount being collected was not paid in cash, so you could not take it directly, and it would be required to be deposited into an account of Mr Shipp.  Nevertheless, you clearly intended to frighten these men by carrying a gun and threatening to use it against them, in order to obtain payment of the balance of the money that they owed.

20As I have already said, it is unclear whether they knew that a cheque payable to Shipp would prevent you obtaining what you were owed, and it is also not explained what was intended to be done with the stolen car, if they did not meet the ultimatum you gave them of full payment by the Monday. You were certainly responsible for the taking of the car by use of the gun as a threat, but it ended up parked outside Shipp's house, which, as I have said, is unexplained.

21I assess this incident at a relatively serious level of armed robbery, involving as it did you going armed with a gun, and also taking an associate who stood in the doorway and provided backup on your leaving.  You menaced your victims with the gun and attempted to fire it, and your agitation while using your gun to threaten them, objectively increased the risk of you actually shooting one or both of them.

22The taking of a firearm to menace and threaten them into making a payment to you, however much you might have been frustrated in trying to obtain payment of what you were indirectly owed, must be punished severely enough to constitute just punishment and also to send an unequivocal message that conduct of this type is totally unacceptable, and those considering it can expect serious punishment.

23The risk of introducing a gun into a situation of anger or tension poses a risk that the community condemns. It risks harm to people. Protection of the public from such events is important as a sentencing factor in this case.

24Further, violence or threatened violence in the enforcement of debts cannot be condoned.  It does, however, in my view, place this incident at a slightly less level of seriousness than those armed robberies committed on strangers, where guns are used to threaten, and where there is no background reason for trying to obtain money or other property by use of a weapon as a threat.

25I take into account that you have pleaded guilty to this charge, and that entitles you to receive significant leniency in your sentence.  Although this did not occur until after a committal hearing, when witnesses were required to attend for cross-examination, at that stage a second charge was included which has not proceeded.

26I accept that you offered to plead guilty to this charge more than a month-and-a-half before a trial was to commence, and that will have saved much of the time and cost of preparation for trial. It will have avoided the need for witnesses to experience both the inconvenience and potential stress of expecting to be  required to attend court to give evidence.

27Further, in pleading guilty, you have accepted responsibility for your actions, and I infer some remorse on your part from your plea of guilty.

28A psychologist who examined you for this hearing says that you have expressed appropriate remorse.  How much of that is due to reflecting on the situation in which you have found yourself, including your sense of guilt for letting down your family, and how much is true remorse for what you inflicted on your victims, is not so clear.

29I shall tell you, after I announce your sentence, what it would have been had you not pleaded guilty, but been found guilty of this charge by a jury.

30I turn now to your personal history and circumstances.  You are now aged 41.  You have had a stable de facto relationship for some 22 years, and you and your partner have three children, all still of school age.

31Your parents are now both in poor health, your father in a nursing home suffering dementia, and totally dependent; and your mother also in poor health and living alone in what has long been the family home, which includes very traumatic and sad memories for her.  You, as their only surviving child, have been an important support for them in their lives, and in particular in the last few years of their poor health.

32Your parents came to this country as migrants from Egypt.  Both of them worked until, when you were aged 17, a traumatic and tragic event occurred within the family when your older brother shot your mother in the arm and then killed himself.  It is understandable that you and your parents were all seriously traumatised by this event. Apparently your father ceased work as a result.  Your mother, I understand, was a nurse. Your father suffered a breakdown, and you assisted in his care long before it became necessary for him to move to a nursing home.  As your parents' only surviving child, they have for many years relied on your support, and you and your partner have spent much time visiting and supporting both of them.

33After leaving school during year 12, you undertook an apprenticeship as a motor mechanic, and you worked in that industry, in extended periods of employment with several different employers. Then, at around age 33, you decided to open your own business, which you did, operated from premises in Thomastown for some seven years.  You found running your own business stressful, with the responsibilities that entailed, but were apparently doing reasonably well. However, in December 2013, you were required to relocate your business, because the premises had been sold, and that added to the pressures on you, including financial pressure.  You had tried to supplement your income from the business by also trading in car parts on the internet.

34You come before this court with only one relevant prior court appearance, that being a charge of obtaining property by deception, which was dealt with in 1998, and for which you were fined without conviction.

35I note that you did tell Mr Watson Munro, and also Mr Jeffrey Cummins, both psychologists who examined you, that you had lost your license some five years earlier on a drink driving charge, when the reading was less than .06 percent.  I do not regard it as relevant to the matters before me.

36At age 41, and with a history of sustained employment, and supporting not only your immediate family of your partner and three children, but also your parents, you are entitled to be regarded as of generally good character - even though, as I have said, not totally unblemished - up until the current offence.  That, however, makes your conduct against Mr Ballinger and Mr Bocevski all the more inexplicable to me.

37Your original remand for this offence was your first experience in custody. At the age of 40, it could be expected to have been a salutary experience for you.  However, whether it proved sufficiently salutary to deter you from any further offending I am unable to determine, as you have been charged with further offending, which at this stage is unproven.

38I accept that, given your history, and also what I accept is genuine regret and sense of guilt for the consequences of your imprisonment on your family, that your extended stay in prison, even this long, is likely to discourage you from further offending, and I do not regard specific deterrence as carrying a prominent role in your sentence as other sentencing factors.

39I am told that you have suffered symptoms of anxiety for many years, these having reached a stage of panic attacks and several instances of fainting.  Prior to February 2014, your GP had prescribed medication for your anxiety.

40It also appears that your life became considerably more stressful over the course of 2013.  Not only did you have continuing responsibilities for your ailing parents, and responsibilities and pressures of running your business, but then your youngest child suffered an injury with serious complications, for which she required some extended hospitalisation.  During that period, your wife stayed at the hospital with her, leaving you to tend to the other children's needs, as well as your business and your parents. Further, towards the end of that year, another child suffered a significant injury, adding to the stress for both you and your wife.

41I accept that for someone already suffering anxiety, these pressures would have exacerbated your condition.  You were prescribed medication for it, and there is nothing to connect it with your commission of this offence, except that you appeared agitated and aggressive at the time.  That does not operate in mitigation of your sentence.

42Relevant to my sentencing of you, is the course of events since.  After your arrest on 17 February 2014, you were remanded in custody until you obtained bail on restrictive conditions on 24 March 2014.  That time on remand for these events will be credited as presentence detention towards the sentence I impose.

43However, while on bail, earlier this year, you are alleged to have committed a further serious offence for which you were remanded on 14 January 2015, and for which you have remained in custody.  You do not admit that offending, and will stand trial on those charges in the future.  Their relevance for me is first, that as a matter of fact, you have been in custody as a result of that remand for the last seven-and-a-half months; and secondly, this gives rise to an issue as to whether the time you were remanded solely for the other charges, should count towards the sentence I impose.

44I was referred by your counsel to the case of R v Wade[1], in which, in a similar situation, it was decided that the case of Renzella[2] required that even when remanded on unrelated charges which have not yet been determined by the courts, and not on the charges on which a court is presently sentencing, the sentencing court must take such presentence detention into account if asked to do so. Further, if something less than the full period of presentence detention has been taken into account, the court must specify for the information of a future sentencing court, how much of the period was not taken into account, such that it remains to be taken into account in accordance with s.18 of the Sentencing Act 1991.

[1]R v Wade [2005] VSCA 276

[2]R v Renzella [1997] 2 VR 88

45Having been asked to take the whole period of your remand, including for the unrelated charges, into account, I shall do so, and specify that when I announce your sentence.

46I am told that when released on bail in March 2014, you were not able to resume the operation of your business, which has now been further precluded by your further period on custody.  This means that you have, in effect, lost your business, as no one could take it over.

47You apparently intend, on your release from prison, to obtain employment again, in your trade as a motor mechanic, as you did well at that for many years, and have recognised that you would be better without the stress of running your own business.

48I have read a report by Mr Tim Watson-Munro, psychologist, who saw you for the purpose of this court case in mid-August.  He had read a report of Mr Jeffrey Cummins for a bail application in February 2014, which I too have now read.  Mr Watson-Munroe understood that you had been granted bail after 40 days in custody on the current charge, on stringent conditions, with which he understood you had complied, specifically abstaining from alcohol, and attending Mr Cummins for psychological for six months.

49He was apparently not aware that you are alleged to have committed further offending whilst on bail, but as you are contesting those charges, I make no finding as to whether you did or did not breach bail by further offending.  He understood you to have been returned to custody after entering a plea of guilty in this case.

50You told Mr Watson-Munroe that you used cannabis for a period between the ages of 17 to 19, as a result of the suicide of your brother.  He concludes that you were suffering a bereavement disorder, referable to this sudden and tragic event.  It is not clear to me whether he concludes that that disorder continues, although impliedly he does, but it is also not clear to me the basis for the diagnosis.  He does not suggest that it or any other mental health condition contributed to your commission of the armed robbery for which I sentence you.

51Mr Watson-Munroe applied the Beck Inventory self-reporting tests for both depression and anxiety.  These revealed that you were suffering moderate depression - feeling sad much of the time, and more discouraged about your future than you used to be.  The test for anxiety revealed that you have mild symptoms of anxiety now, but taking into account that you had taken medication, you reported that without that medication, your anxiety symptoms would have been much higher.

52Both he and Mr Cummins accept that you have longstanding psychological problems, including an anxiety disorder which in the past involved panic attacks.  This was diagnosed after incidents of fainting, which occurred on six occasions.  Your GP prescribed medication, Aropax, and I infer you have been able to continue to take it or an equivalent while in custody, as you had taken medication when assessed by Mr Watson-Munroe.

53Mr Watson-Munroe's primary diagnosis was of an anxiety disorder with features of a depressive illness, a condition which had been diagnosed about three years ago, and which is now stable with the medication you take.  He thought you would benefit from continuing cognitive behaviour therapy, as you seem to have started with Mr Cummins after obtaining bail last year.  He considered that you experienced multiple stressors leading up to the time of the offence, but he does not say that that condition contributed to your offending.

54Mr Cummins' diagnosis last year was that you suffered an adjustment disorder with mixed anxiety and depressed mood, and I find that consistent with Mr Watson-Munroe's opinion.

55Mr Watson-Munro's opinion is that, about six to eight months before the offence, your drinking of alcohol escalated, as you had related to him, and he felt the typical and deleterious impact upon mood, judgment and behaviour followed.  He thought you dependent on alcohol at the time of the offending.  Both he and Mr Cummins describe your condition at that time as “alcohol use disorder”. I do not regard such condition as a condition that enlivens mitigatory principles under Verdin's[3] case, and anyway, there is nothing to indicate that you were drunk or affected in any way by alcohol at the time of the armed robbery.  You were described simply as agitated and aggressive.

[3]R v Verdins [2007] VSCA 102

56Mr Watson-Munroe considers that your commitment to your family is galvanising your motivation for treatment for your anxiety disorder, and he considered your prognosis positive.  I accept those parts of his opinion.

57I accept that you still have an underlying anxiety disorder, and that it still requires management with medication, and would benefit with future psychological counselling.  There is nothing, however, to indicate that it contributed to your offending, so as to enliven principles referred to in R v Verdins.  There is not even evidence to support that your time in prison will be harder to endure due to your condition, because it seems to be adequately managed there with medication.

58Your condition, therefore, is not a mitigatory factor, but I accept that it may explain your destabilisation prior to the offending, and that future treatment would assist you to deal with future stressors in your life. If that can occur it will assist you with your re-establishing yourself on your release from prison. Your history of sustained work until this offence, a stable marital relationship of more than 20 years, with three children, and your continued support for your ailing parents, all apparently likely to be waiting for you on your release from prison, should provide solid support and motivation for your rehabilitation.

59I place significant weight on your prior record not being one of repeated offending, and indeed not indicating violence, and only one relatively minor offence of dishonesty dealt with some 16 years ago.  These factors also support the view that you have good prospects of re-establishing a stable and law-abiding life for yourself, and for your family after your release.

60It was conceded by Ms Garde-Wilson as your lawyer, that no sentence other than imprisonment could adequately satisfy sentencing requirements in this case, because of the seriousness of the charge of armed robbery, and the objective circumstances of this one, including use of a firearm.  However, I was urged to moderate the term of imprisonment to the extent that it could be combined with a Community Corrections Order to support your rehabilitation while supervising you on your release from prison.

61The now well-known advantage of that combination is available under the Sentencing Act if the term of imprisonment, after deduction of presentence detention, does not exceed two years.  That advantage is that the term actually spent in prison is fixed, and not dependent on a decision of the Parole Board; and that the conditions of a Community Corrections Order may be more flexible and spec to the individual's needs, than those which may be fixed by the Parole Board.

62The prosecution submits that the circumstances of this armed robbery were so serious as to require a sentence very much more than two years, and so a combined term of imprisonment with a CCO would not be available.

63I have considered this issue carefully.  I have considered the recent decisions which the prosecution pointed out of Kruzenga[4] of 2014 and Collins[5] 2015, in which the Court of Appeal upheld sentences for armed robbery of five years and four years respectively.

[4]Kruzenga v R [2014] VSCA 10

[5]Collins v R {2015] VSCA 106

64Mr Kruzenga had taken a 12-gauge shotgun from his father's licensed firearms business, “shortened the barrel”, chosen a target bank to rob, and planned the timing of entry. He took the shortened gun concealed in a backpack, wore a disguise, and had gone into a bank where staff and customers were present, pointed the gun at close range at a teller, and demanded money, which he stole. The Court in that case reduced the length and cumulation on a separate firearms charge, but found the sentence of five years' imprisonment for the charge of armed robbery within range, given the objective gravity of that offence and the important sentencing considerations of protection of the public and general deterrence.  I note that there was a parole period set of three years and three months for the two offences.

65In Collins, there were also charges of burglary, theft, and possession of an unregistered handgun.  The armed robbery in that case was committed on a 7-Eleven store with two other persons, using a gun and wearing hoodies and sunglasses for disguise.  On entering the store, one offender other than the appellant in that case had pulled out a firearm and threatened the attendant with it, become aggressive, and pushed the gun at the attendant, who opened the till, and cash was taken. The key issue in that appeal was the question of parity or disparity, as the user of the firearm in the armed robbery had received a lesser sentence, being a much younger person.  The court there upheld the reasons for disparity, and did not interfere with the sentence at all, including the four years for armed robbery.  In that case, the total effective sentence including the other charges was five years' imprisonment with a non-parole period of three years.

66I do regard the non-parole periods in each of those cases as having some relevance in the overall synthesis of the decision I must make.

67I have already said, and repeat, that I regard the circumstances of your armed robbery as objectively serious, and that I regard general deterrence as of greatest importance as a sentencing factor, together with protection of the public and just punishment.  I also regard your rehabilitation as of some real weight, given your history, and only to a lesser extent specific deterrence.

68It seems to me that the application of the principles in Boulton's Case[6] requires me here to consider whether these sentencing principles could be adequately met with a sentence that combined imprisonment with a community corrections order, or whether no sentence other than imprisonment for a term exceeding the availability of a Community Corrections Order is necessary.  I stress that what I am considering is the combination of a term of imprisonment with a Community Corrections Order, and not a Community Corrections Order alone, but the principles in Boulton's Case still seem to apply.

[6]Boulton v R [2014] VSCA 342

69Under s.44(1) of the Sentencing Act, a court may make a CCO in addition to imposing a sentence of imprisonment, only if the sum of all of the terms of imprisonment to be served after deduction of any period of custody that under s.18 is reckoned to be a period of imprisonment, is two years or less. Taking into account the provisions of s.11 of the Sentencing Act, and the recent decision in Deng-Mabior v R[7], I note that the total term of imprisonment must be less than two years, or a non-parole period of at least six months less than the head sentence must be fixed, even if I am considering such a sentence combined with a Community Corrections Order.

[7]Deng-Maboir v R [2015] VSCA 179

70You were originally remanded on this charge for 35 days until being granted bail, and then applied for bail to be revoked on 16 July 2015 on this charge, so a further 39 days up to 24 August, and indeed a further eight days up to, but not including today, will count as presentence detention. That is a total of 82 days that will be declared reckoned served under s.18.

71I have also been urged, as I have already said, to take into account a further 183 days during which you have been remanded on unrelated charges.  On the basis of Wade's case, I should and will do that. I cannot declare them as reckoned served under s.18. I will take them into account in moderation of the sentence of imprisonment that I will impose. In round terms, that 183 days is a further six months that you will have spent in custody in total for this offence.

72I have decided, taking all of these factors into account, that sentencing principles can be adequately addressed by imposing a sentence of nearly two years' imprisonment, additional to the six months for which you have been remanded on unrelated charges, and followed by a Community Corrections Order with supervision and program conditions after your release from prison.  Will you stand up now, please.

73Robert Stephan, on the charge of armed robbery, you are sentenced to a term of 725 days' imprisonment, to be followed by a Community Corrections Order commencing on the date of your completion of that sentence, and to last for 18 months.

74I declare 82 days of presentence detention reckoned served, and direct that that be recorded in court records.  It will deducted administratively.

75I specify that in deciding on the duration of the term of imprisonment component of this sentence - that is, of 725 days - I have taken into account 183 days for which you have been remanded on unrelated charges.  That was between 14 January and 16 July of this year.

76As I have said, a Community Corrections Order will commence on the date of your release from imprisonment, and last for 18 months.  The conditions I impose on that order are that you be subject to supervision, assessed and undergo treatment as directed for alcohol use; that you be assessed and undergo treatment as directed for mental health issues; that you be assessed for and undertake such programs as are recommended to reduce the risk of you reoffending.

77In addition, all usual terms of Community Corrections Orders will apply.  I know they have been explained to you, but I repeat them briefly.  First, you will be required to report to the nearest Community Corrections office within two working days of your release from prison.  The address of that office will be provided to you before you are released, unless it is already - I think it actually will be provided on a Community Corrections Order that will be produced today, assuming you have that same address when you are released.

78You must accept visits from, and obey all lawful instructions of Community Corrections officers during the course of the Community Corrections Order.  You must notify Community Corrections officers of any change of the address where you live, or where you work, including the commencement of employment, within two working days of any such change occurring.  You must not leave Victoria without prior permission of Community Corrections officers during the operation of the order.

79And most importantly, you must not commit any further offending during the course of that community corrections order. 

80If you breach that order by failing to comply with any of the conditions, or of course by further offending, you can expect to be brought back in front of me, and depending on the circumstances, my options may be to extend the community corrections order, or to resentence you on this charge, which of course will take into account that you by then would have served a term of imprisonment.

81Now, do you understand the conditions of that order?  Do you agree to comply with such an order?

82OFFENDER:  Yes, Your Honour.

83HER HONOUR:  All right.  I state that, had you not pleaded guilty to this charge but been found guilty by a jury, your sentence would have been six years' imprisonment with a non-parole period of four years.

84I make the additional orders sought for a forensic sample to be taken from you.  I limit that to a scraping from the mouth.  This is for the purpose of placing your DNA on the state's database.  The reasons I make that order are the seriousness of the circumstances of the offending, the armed robbery. I inform you as I must, that if you resist the taking of this sample, an authorised officer can use reasonable force to take it.  It is the use of a swab inside the mouth, rubbed against the inside of the cheek, and unless you resist it, it should not be too intrusive, and no force should be needed.  But I inform you, as I must, that it can be used.

85Now, I have also been asked to make an order for forfeiture and disposal.

86MS WARDA:  It's the Apple iPhone, Your Honour, and a bag of green vegetable matter.

87HER HONOUR:  Yes, well that cannabis has not been mentioned in the course of any of this.  Do I have the power to order its forfeiture for an unrelated charge?  I would have thought it would have been disposed of long ago under Magistrates' Court orders, but it is not connected?

88MS WARDA:  No.  And it's not even mentioned in the opening.

89HER HONOUR:  It is not even mentioned in the summary.

90MS WARDA:  No.

91HER HONOUR:  I did not look at the draft order until now.  Do I have that power?

92MS WARDA:  I need to double check that, Your Honour.

93HER HONOUR:  All right, well I might delay signing a forfeiture order; I do not think that is going to cause much disruption here.

94MS WARDA:  Thank you.

95HER HONOUR:  Sorry, that was the disposal order.  The forfeiture order will be presumably for the firearm?

96MS WARDA:  Yes, Your Honour.

97HER HONOUR:  There is no schedule.

98MS WARDA:  Sorry, Your Honour.

99HER HONOUR:  You can take a seat now, Mr Stephan.  These are ancillary orders that I know were not going to be opposed, but I had not checked their details.

100MS WARDA:  Just one moment, Your Honour.  My instructor's just checking for the forfeiture.

101HER HONOUR:  While you are checking that, is there anything I have overlooked in the calculations?

102MS WARDA:  No.

103HER HONOUR:  The sentence is just four days short of two years.

104MS WARDA:  Yes, I've already done that calculation, too.

105HER HONOUR:  So it does not require a non-parole period.

106MS WARDA:  No.

107HER HONOUR:  The declaration of strict presentence detention, I have specified.  I have also used the whole other 183 days in fixing that term.

108MS WARDA:  Yes, Your Honour.

109HER HONOUR:  All right.

110MS WARDA:  Your Honour, both my instructor and I, who Your Honour may realise didn't appear on the last occasion in the matter.

111HER HONOUR:  Yes.

112MS WARDA:  We don't seem to have that forfeiture order at hand.

113HER HONOUR:  This is what was provided to my associate, I have to admit I hadn't checked.

114MS WARDA:  And it doesn't have the schedule attached?

115HER HONOUR:  No.  If it can be handed back to you.

116MS WARDA:  It would be the firearm, Your Honour.

117HER HONOUR:  I don't know that the forfeiture order has to be made this moment.  I can indicate I will make a forfeiture order, if it is in respect of the gun.

118MS WARDA:  Yes.

119HER HONOUR:  Sorry, it is not the gun used.  That was not located.

120MS WARDA:  No, it's the imitation firearm that was found at the property.

121HER HONOUR:  It is the imitation pistol that was found.

122MS WARDA:  Yes, when the property was seized, and that's spelled out and outlined in the opening.

123HER HONOUR:  Yes.  That is not opposed, is it?

124MS GARDE-WILSON:  No, Your Honour.

125MS WARDA:  Your Honour, if I may do this ‑ ‑ ‑

126HER HONOUR:  Ms Garde-Wilson, I am prepared to sign it later, if it is provided in proper form, or in appropriate form to me, and of course provided to the defence.

127MS GARDE-WILSON:  Thank you, Your Honour.

128MS WARDA:  Yes, Your Honour.

129HER HONOUR:  All right.

130MS WARDA:  And at that time, Your Honour - sorry, my apologies for interrupting - if we can also then by that stage, have rectified the issue in respect of the disposal order.

131HER HONOUR:  Yes.

132MS WARDA:  Thank you, Your Honour.

133HER HONOUR:  Yes.  Mr Stephan is being returned to custody, and I have to sign an order promptly, and that order will have to reflect that I am making - in the CLMS system, that I am making a forfeiture order and a disposal order as well.

134MS WARDA:  Yes.

135HER HONOUR:  Can they be mentioned in general terms, without specifics?  Yes, it is meant to include a schedule of the items.  I think what I will have to do is not sign those two ancillary orders at this stage, to facilitate Mr Stephan being returned to prison, to leave this building, and I will make the others as a further order later today or tomorrow, or whenever it can be provided.

136MS WARDA:  It certainly will be this morning, Your Honour.  I wouldn't want to delay it any further.

137HER HONOUR:  I have got a court full of people for other matters that are about to follow.

138MS WARDA:  So when I say that, Your Honour, I mean no disrespect.  I meant in terms of being in contact with Your Honour's associate to confirm things.

139HER HONOUR:  That is fine.  Thank you.  Yes, my associate has picked up that I think I may have failed to mention supervision as a condition of the community corrections order.  I had intended that, and it really is part and parcel of the rehabilitative conditions.

140MS GARDE-WILSON:  Certainly.

141HER HONOUR:  Can that draft community corrections order be shown to both counsel, and if in order it will be taken to Mr Stephan to sign.

142HER HONOUR:  I have signed the community corrections order; that will be copied.

143(Community Corrections Order signed and acknowledged.)

144All right, I have signed the orders that I said I would at this stage in Mr Stephan's matter.  That brings his matter to a completion, and I will ask that he be taken from the court, pleases.

145MS GARDE-WILSON:  As the court pleases.

146MS WARDA:  As the court pleases, Your Honour.

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