Director of Public Prosecutions v Stephens&Anor

[2020] VCC 626

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02379

DIRECTOR OF PUBLIC PROSECUTIONS

v

ISAIAH STEPHENS
JAY STEPHENS

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2020
DATE OF SENTENCE:	18 May 2020
CASE MAY BE CITED AS:	DPP v Stephens&Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 626

REASONS FOR SENTENCE
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Subject:  Recklessly Cause Serious Injury

Sentence:Jay Stephens 20 months imprisonment.

Isaiah Stephens Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	Office of Public Prosecutions
For Accused I. Stephens	Mr S. Moglia
For Accused J. Stephens	Mr T. Smurthwaite

HIS HONOUR:

1You Jay Stephens, and you Isaiah Stephens are brothers.

2You Jay, are the older brother having been born on 15 April 1999.  You are now 21 years of age and face sentence as a youthful offender.

3And you Isaiah Stephens were born on 14 October 2000. You are a young offender aged 19.

4The both of you have pleaded guilty to one charge of recklessly causing serious injury. You committed this crime together on 15 June 2019 when you both assaulted the victim, a gentleman who was an off duty policeman aged 60, in broad daylight and in a public place.  The maximum penalty that each of you face for committing this offence is imprisonment for 15 years.

5You, Jay Stephens have also pleaded guilty to a charge of criminal damage.  This offence preceded the time when you both committed charge 1, when you Jay Stephens deliberately damaged the mirror affixed to a Toyota Corolla motor vehicle.  The repair cost for the damage caused by you Jay Stephens was $732.80.  The maximum penalty for criminal damage is imprisonment for ten years.

6At the time of the offence of recklessly causing serious injury occurred, you Jay Stephens were aged 20, and you Isaiah were aged 18.  That is, each of you was a young offender at the time you committed these offences.

7In sentencing each of you, because of the age of each of you, both at the time of the commission of the offence, and now, the law requires that I must have in the forefront of my mind the full rehabilitation of each of you.  That is especially so in relation to you Isaiah Stephens, as you are to be sentenced as a young offender who, this offending aside, have no prior convictions.  The prosecution properly concedes this to be the correct approach to the sentencing of each of you.

8The circumstances of the offending of the both of you are described in a written summary of prosecution opening dated the 8th April 2020 which was tendered in evidence and marked as Exhibit A on the plea.  The summary was read in open court by the learned prosecutor and each of your counsel acknowledged that the prosecution summary was accurate and forms a proper factual basis upon which I can proceed to sentence each of you.  In those circumstances it is not necessary that I here again repeat that which is set out in the prosecution summary.  These sentencing remarks however must be read in conjunction with what is set out in full in the prosecution summary.

9In the afternoon of Saturday, 15 June 2019 the two of you were up to no good.  You caused trouble by abusing some tennis players at the Chadstone Tennis Club.  Later in the afternoon you were abusive to passengers on a train that had left the city from Southern Cross Station. One of you was seen to vomit on the train.  Eventually protective service officers ordered both of you off the train at Heyington station near St Kevin’s College in Toorak.  You both got off the train and you were both seen to move together towards St Kevin’s College.

10The victim, who was waiting for a train at the station, followed you both into St Kevin’s College.  His instincts and training told him that the two of you might be up to no good.  He walked slowly through the grounds of the school and up some stairs which led to a quadrangle.  As he got to the top of the stairs he saw you Isaiah about 30 metres in front of him.  He then saw you Jay about three metres away.  You Jay were urinating against a tree and you spoke in an abusive way towards the victim who did nothing to provoke that response and what was to then follow.

11You, Jay, approached the victim and again verbally abused him before you punched him in the head with clenched fists.  You, Isaiah, then ran and joined your brother punching the victim to the head and face before one or both of you started punching and kicking the victim to his torso from behind.  The victim was trying to protect his head and face by covering up with his hands.  He later told police that one or other or both of you punched and kicked him too many times to count.  The victim recalls being conscious to stay on his feet believing his safety to be in grave danger if he fell to the ground.  After the assault you both ran from the area.

12The victim could feel blood dripping down the side of his face and he was in a great deal of pain.  He returned to the railway station and he was assisted there by two protective service officers who called for an ambulance. The victim was later admitted to the Epworth Hospital where he stayed for two nights.  He underwent MRI scanning.  He was found to have sustained the following injuries which may be summarised as follows:

·two fractured ribs to the right-hand side;

·head injury with bleeding to the brain;

·a hemothorax of about 200 ml of blood in his chest cavity;

·a laceration to the right side of his head;

·lung contusion; and

·swelling and bruising to his right eye

13Four weeks after the assault the victim continued to suffer pain from the fractured ribs making breathing and sleeping difficult.  Needless to say, the severity of the attack by the two of you upon the victim had a profound emotional effect upon him.  He became hyper-vigilant of people and activities around him, and he constantly feels apprehensive and uneasy and on edge.  He continues to be treated for vertigo caused by the head injury. He was off work as a Deputy Commissioner of Police for several months and his symptoms continued for some time.  These are the facts constituting the charge of recklessly causing serious injury.

14Clearly, this is serious offending by each of you. It was needlessly started by you Jay Stephens, and you Isaiah stupidly joined in.  What followed was a violent and unprovoked attack by two young men upon an older gentleman who was alone in a public place.  It was a sustained attack involving multiple kicks and punches, particularly to the victim’s head and torso.  You both fled and left the victim obviously injured and alone to fend for himself.  The injuries he sustained are clearly serious, but at least in the physical sense, are not life-lasting.  I agree with submissions made that this case can be distinguished from some other cases where similar acts of violence cause serious injuries but which may be categorised as of a catastrophic kind.  Fortunately, for each of you and especially the victim, this is not one of those cases.  The prosecution appropriately concedes that the injuries, though serious as defined, fall to be assessed towards the lower end of the range of serious injuries.  I am conscious of the fact that the victim will likely continue to suffer psychologically and emotionally from the intensity of your attack upon him for a considerable period of time.  Graciously, I think, he declined to make a victim impact statement.

15The prosecution also concedes that this was a spontaneous attack by both of you triggered by you, Jay Stephens, who I regard as the principal offender.  Your counsel did not suggest otherwise.  Fortunately, it was an attack of short duration and there were no weapons used.  Both of you withdrew from the attack without interference from others.  Your counsel, Jay Stephens, in written submissions, submitted that the offending is a serious example of recklessly causing injury.  But he submitted that the offending should be regarded as being within the lower range for this kind of offence.  I do not accept that submission.  It places the gravity of your offending too low.

16In my view, the overall circumstances of this offending should be regarded as a serious example of this offence that falls towards low to mid-range.  Your role Jay Stephens, was as the principal offender and your role Isaiah, was lesser.  You joined in a fight started by your brother.

17Your counsel, Isaiah, in his written outline on your behalf conceded that this was a violent and unprovoked attack and serious offending, but he submitted that your conduct in all the circumstances where you were not the principal offender, means that I should regard your criminality as being of a low to moderate kind. I accept that submission.

18You were both arrested on 17 June 2019, two days after the offence.  You, Jay Stephens have been remanded in custody since that time.

19You, Isaiah, were granted bail on strict terms and conditions on 21 June 2019. I will have more to say about your bail later.

20There was a committal where submissions only were made on 26 November 2019.  The only issue at committal was whether the injuries sustained by the victim amounted to 'serious injuries' within the definition in the Crimes Act 1958.

21The following day when the matter was mentioned in this court you both pleaded guilty to the charge of recklessly causing serious injury.

22You have both pleaded guilty to the charge at the earliest possible opportunity.  Because you have each pleaded guilty you are each entitled to a reduction in sentence.  By your respective pleas of guilty you have each saved the time and costs of a trial and you have saved the victim from having to be called to give evidence against you and be cross-examined by your counsel.  By your pleas of guilty you have each respectively admitted responsibility for your crimes, and each of you has advanced the administration of justice. Further, I treat the pleas of guilty of each of you as evidence of your remorse for this offending.

23I turn to some matters that relate to you, Jay Stephens.  When you pleaded guilty you admitted some prior convictions from eight previous court appearances in Magistrates’ Courts in the State of Queensland.  A number of those prior convictions relate to possession of drugs.  Some of your prior convictions also relate to dishonesty offences of the kind that might be associated normally with drug addiction.  You do have some prior convictions for violence.  In 2016 you were dealt with on three charges of assault and obstruction of a police officer.  In January 2018 you were dealt with for assaults occasioning bodily harm in circumstances domestic violence.  You received a community service disposition with probation for a period of two years. However, on 4 February 2019 you were dealt with in the Brisbane Magistrates’ Court for further offending, including burglary for which you received a term of imprisonment of nine months.  Time served from 8 November 2018 to 3 February 2019 (74 days) was counted as presentence detention and you were released immediately to serve the remainder of the sentence on parole.  You were still subject to that parole order from Queensland when this offending for which I must sentence you occurred.  That is an aggravating feature.

24You have received some dispositions of a non-custodial kind in the past but you have failed to take advantage of these and change your ways. 

25In his written submissions your counsel told me that you recall little of the events surrounding this offending owing to the fact that you had consumed a considerable amount of alcohol on the day as well as an prescribed medication Xanax.

26You told your counsel, and I accept, that you had purchased $300 to $400 worth of alcohol that day in several trips to liquor stores.  You further told your counsel, and again I accept, that you had ingested some eight Xanax tablets during the course of the day.  These tablets had been prescribed, not to you, but to a friend of yours.

27The fact that at the time of this offending you were affected by both alcohol and drugs explains your offending but it does not excuse it.  I was told that your decision to consume large quantities of alcohol and unprescribed drugs was made in the context of your 'lowered morale' you having been contacted by welfare authorities in Queensland concerning your prospects of having contact with your daughter who was born in 2018. That is no excuse for anything, much less your behaviour on this day.

28For about three months prior to this offending you had been living in a boarding house in Chadstone.  Your brother was also living there at the time.  You had been working as a labourer in a business that manufactured and assembled bedding.  You had been in Victoria for a period of about three months prior to your arrest.  I was told and accept that you had returned to this state from Queensland in part because of homelessness.

29I received into evidence a psychological report dated 7 April 2020 prepared by Carla Lechner.  Your counsel relied upon the facts and opinions as set out in that report.

30You came initially from Collie in Western Australia.  Your parents can properly be described as dysfunctional having their own addiction to drugs, as well as mental health problems.  I was told and accept that there was a significant amount of domestic violence within the family home, including violence directed towards you.

31I was told and accept that you experienced significant neglect during your childhood and for periods during your childhood you had responsibility for looking after your younger siblings.  Your education ceased at about the age of 14 at year 8 level.  Welfare authorities had involvement in your family situation and you were placed in care for a period of six months when you are aged 12.

32At the age of 12 you were diagnosed with anxiety. Your parents separated when you are aged 14.  You moved to live with your father in Perth and the two of you were homeless for a lengthy period.  Your father was jailed and was released when you were aged 15, when you and your father moved to Melbourne where you both continued to experience homelessness.

33In 2016 at the suggestion of friends you went to join them on the Gold Coast.  You had just turned 17.  You formed a relationship with a young woman and you underwent three short terms of imprisonment.  Your daughter, whom I earlier referred to, was born out of that relationship.  She is now aged two years.  Between 2016 and 2018 you travelled back and forth to Victoria on a number of occasions.  You had some work in Victoria.

34Your father is currently on bail after spending some time on remand.  The two of you for some time shared a cell at the Melbourne Remand Centre whilst you have been on remand for this offending.  Your father has re-partnered and your stepmother lives in Melbourne.  You have an older brother Jordan and your mother from whom you are estranged, and sisters continue to live in Western Australia.

35You have a long history of substance abuse from the age of about 13.  At the age of 17 you were using about half a gram a day of the drug known as ICE.  You have also used heroin, cocaine and ecstasy.  You have consumed Valium, Seroquel and more recently Xanax.

36You have undertaken a number of vocational courses while in custody.

37In her report Ms Lechner was of the opinion that you emanate from an extremely dysfunctional family environment characterised by exposure to domestic violence, mental health problems and substance abuse.  She was of the opinion that your background:

'Is indicative of Complex Developmental Trauma, with Mr Stephens continuing to exhibit symptoms of Post-Traumatic Stress Disorder (DSM-5).  He began abusing a range of drugs and alcohol and from an early age as a means of managing his internal distress, this only serving to aggravate his underlying symptoms'.

38I have no doubt that your upbringing has been a tragic one and you will likely suffer because of it for the rest of your life, and in arriving at an appropriate sentence I take this fact fully into account and give full weight to it.

39Ms Lechner was of the opinion that you present as a high risk of violent reoffending in the absence of therapeutic input.  She thought you require a high level of intervention to assist in reducing risk level.  She recommended therapy that assists you in maintaining sobriety from drugs and alcohol as well as trauma informed counselling.  I accept that opinion.  I have formed the view, having regard to all the circumstances of your background, prior convictions, drug and alcohol use, that until you receive some proper treatment including counselling for your mental health, your prospects for rehabilitation are relatively poor.

40In his written submissions, your counsel relied upon principles 1, 3 and 4 from Verdins.  In oral argument I understood that he did not persist with this argument as it relates to principles 1, 3 and 4, although he did ask me to take into account in arriving at my sentence, Ms Lechner’s diagnosis of Complex Developmental Trauma and symptoms of Post-Traumatic Stress Disorder.  In passing sentence I have taken these factors into account in accordance with Verdins principle 6 in deciding the length of the sentence I will impose.

41Your counsel also asked me to take into account the fact that your time in custody has been and will be more burdensome because of the restrictions imposed upon prisoners having been brought about by the consequences of the coronavirus.  I accept that your time in prison is being made more burdensome because of this problem.  Your right to exercise and move about the prison is restricted, as are prison visits.

42You, Jay Stephens, have served 336 days presentence detention. You have other unrelated charges pending and you are remanded in custody on those matters until at least 21 August of this year. Your counsel submitted that time served is a sufficient term of imprisonment in all the circumstances. He conceded that because of the unrelated pending charges and because of the operation of s.38 of the Sentencing Act 1991, the combination sentence of a term of imprisonment and a Community Corrections Order cannot be imposed. He submitted, and I accept, that I must have regard to the principal of totality and have regard to the fact that it is likely that when released you may be taken to Queensland to serve the time owed to the parole board in that state. In arriving at my sentence I have taken all of these factors into account.

43The prosecution position in relation to you, Jay Stephens, is that it accepts that sentencing principles for sentencing youthful offenders from deprived backgrounds referred to in decisions of appellate courts in cases like Bugmy and Mills have some application here but in your case those principles do not extinguish proper application of deterrence (in your case both general and specific) as well as denunciation and protection of the community.  The prosecution submits in your case, a straight prison sentence is warranted.  I accept that to be the proper position.

44I turn to some matters relevant only to you, Isaiah Stephens.  As I said earlier, you are a young offender and you have no prior convictions.

45You were the middle child in the family that grew up in Western Australia to violent drug-using parents. Everything that I have set out above relating to your family, concerns you as well.  You, Isaiah,  came to Melbourne in 2017 aged 16 to 17. I was told and accept that you did so: 'to avoid that milieu'.

46You returned to Western Australia for about a year before again coming back to Melbourne in May 2019, shortly before this offending.  You found work and you were staying with your brother Jay in the Chadstone boarding house.

47You were remanded in custody for five days before being bailed.  You were bailed with strict conditions. They included that, you are not to leave your place of residence between 10 pm and 5 am, you could not to associate with your brother, you were to report daily to Oakleigh police station, you could not contact witnesses for the prosecution, you were not to consume alcohol, you were not to use drugs of dependence and you were not to have contact directly or indirectly with your brother Jay or your father.  You have complied with these strict bail conditions since June 2019 and you have not re-offended and you have no other charges pending.

48I received into evidence two supervised bail progress reports which I marked as Exhibits 3 and 4 on your plea.  They are impressive documents and reflect the genuine efforts of a number of trained people to assist you to rehabilitate yourself.

49In the most recent report dated 4 May 2020 the authors' summarised as follows:

'Mr Stephens is a 19-year-old young man with no prior youth justice involvement.  Mr Stephens has been subject to youth justice supervised bail since 21 June 2019.  Since his previous court appearance on 27 November 2019, Mr Stephens has demonstrated compliance and engagement with Youth Justice having attended 13 of the 20 Youth Justice appointments. 

'Due to his presenting mental health concerns, Mr Stephens's ability to participate in a structured day-program is limited.  Mr Stephens presents with symptoms of anxiety, depression and has commenced counselling to address this with Dr Moriarty.  Mr Stephens has obtained accommodation in a THM property in Chadstone and he has been compliant with the requirements of this accommodation.  

'Mr Stephens continues to engage positively with Ms Henderson who continues to assist him with every-day living skills and engagement with positive recreation activities in the community.  If Mr Stephens's adult supervised bail was to be extended, he would be supported in the community by Youth Justice, Youth Justice community support service (YJ CSS) and Dr Moriarty. 

'Recommendation: if Mr Stephens matters are not able to finalise, it is respectfully recommended that he remain suitable for a further period of adult supervised bail.'

50I also received a psychological report from Dr Moriarty who was referred to in the supervised bail report.  She was of the opinion that you are currently suffering extreme anxiety and depression and post-traumatic stress disorder for which you have not previously had any treatment.  In her report Dr Moriarty said this:

'Mr Stephens symptoms include social anxiety, and generalised anxiety which include an inability to relax, fear of panicking, increased heart rate, shortness of breath and panic attacks.  His depressive symptoms include feeling flat in the low mood, difficulty sleeping, exhaustion, lack of motivation and feelings of helplessness and hopelessness.  

'In public spaces he becomes highly anxious that people are looking at him and judging him.  In relation to his childhood and trauma, Mr Stephens is triggered by things frequently that remind him of what he experienced and witnessed.  Some triggers include violence, loud noises and loud voices.  It evokes strong intrusive responses including emotional responses, disturbing his sleep, nightmares and visualisations about the many traumatic experiences.

'All of these responses are so strong that he often feels like he is back in those situations and re-living them.  Memories of the experiences evoke strong hyper-arousal responses.  These include feeling angry and irritated, hyper-vigilant about his surroundings, startled easily, and difficulty concentrating and staying in the present. Because his physical and emotional responses are so strong, distressing and overpowering, psychometric testing indicated that he uses avoidance strategies to manage these responses, including trying not to talk or think about it.  

'Unfortunately avoidance strategies do not work long term, and I believe that this is a significant contributing factor to Mr Stephens utilising further maladaptive behaviours at times, including alcohol and drugs to manage his trauma and their corresponding thoughts and feelings.  His environment also modelled such behaviours as coping techniques, and he was not taught any other coping mechanisms.'

51You told Dr Moriarty and I accept, that as a child you would be sent out to purchase drugs for your parents who were both long-term drug users.  You first consumed alcohol when your age 14 when your mother purchased a bottle of Jim Beam for you.  Thereafter you consumed alcohol on an almost daily basis and at age 14 you started smoking cannabis.  You used ice for the first time in May 2018 and you last used it in May 2019.  You have also used prescription medication in the form of sleeping pills.  You told Dr Moriarty and I accept, that you are displaying motivation to manage your mental health without substances and to remain substance-free.

52Like your brother you have difficulty remembering this offending because you were drug and alcohol affected at the time.  You have expressed appropriate victim empathy to Dr Moriarty having previously yourself experienced abuse and violence.

53Dr Moriarty concluded her report with the following:

'In ascertaining Mr Stephens risk of reoffending, key factors include his lack of criminal history, his compliance with his bail conditions and his motivation to improve his life.  It appears throughout his life he has sought a healthier lifestyle and relationships, but has not had the support and tools to maintain such behaviours.  Unfortunately, each time he has failed, it has reiterated his narrative of not being good enough or worthy.  During his assessment, Mr Stephens did not display any narcissistic or other personality disorder traits. At no time did he justify, nor minimise his offending behaviour.  Also he did not display any antisocial values and/or morals.  

'Rather he presented as a young man trying to carve the path of a pro-social life, with very limited support and experience.  He came to Melbourne, secured employment and was trying to get away from his family cycle of behaviour.  It also appears he has been trying to do that for many years.  He has a desire to move forward and be part of a healthy community, but requires support and psychological counselling to address his mental health issues.  I have concerns that a period in custody at such a critical developmental stage, would potentially lead to him giving up on trying to do the right thing.  

'His ego is fragile, and I believe he would respond well to support and counselling.  He is keen to continue with counselling and learn strategies to manage his trauma symptoms, anxiety and depression.  He has also displayed on bail his capacity to utilise the support of workers, and respect them what they do for him.'

54Your counsel accepted that your offending was serious.  He accepted that I could impose a custodial sentence to be served in the Youth Justice Centre but he urged me to impose a disposition in the nature of a community corrections order.  Your counsel pointed out that at the time of this offending you were aged only eight months beyond the jurisdiction of the Children's Court.  He submitted that having regard to your age, and the fact you are a young offender, in the absence of any relevant history or antisocial attitudes, should place you in the category of offender where the offending in any way gave full acknowledgment to the seriousness of your offending and the suffering endured by the victim because of you. 

55In offending of this kind, the sentence imposed by courts must have proper application of the principle of general deterrence and, where appropriate, specific deterrence and the sentence must reflect appropriate denunciation.  Where offenders are young, or youthful, the sentencing principles may have to be moderated and give way to ensuring sentence that best brings about rehabilitation of the offender.  Further, Justice demands that less emphasis be given to general deterrence when an offender comes from a deprived and tragic background.  In arriving at appropriate sentence in these cases I have taken all of these principles into account.

56In your case, Isaiah, I had you assessed for suitability for the making of a community corrections order.  If it were the case that you had prior convictions for violence, I would have had you assessed the suitability of the making of a Youth Justice Centre order.  As I said on the plea your background is a tragic one, yet unlike your brother Jay, until these matters, you have managed to stay out of trouble which suggest to me that with proper help and guidance your prospects for rehabilitation are reasonably good.  The assessment report is brief.  Whilst you have been assessed as suitable for the making of a community corrections order, you have been assessed as being of a high risk of
re-offending.

57I have given some thought to deferring sentencing in your case.  On the plea, I expressed some concern that through a community corrections order you might not get the level of assistance that you require, especially with restrictions imposed upon Corrections to deliver services through person-to-person meetings imposed by COVID-19 lockdown.  I remain somewhat concerned about that but have decided in your case I will not impose a custodial sentence and I will make a community corrections order with conditions, including a condition for that you undertake unpaid community work and that you undergo judicial monitoring by me.  In short, I am going to keep my eye on you and I am going to also ensure that Corrections delivers the kind of assistance and counselling that you will continue to require to keep you away from drugs and alcohol and to ensure that you do not re-offend.  In the case of you, Isaiah Stephens, the prosecution conceded that the making of a community corrections order was within the appropriate range of sentencing options open to me.   Dealing with you Jay Stephens:

58On Charge (1) of recklessly causing serious injury you are convicted and sentenced to a term of imprisonment of 20 months.

59On Charge (2) damaging property you are convicted and sentenced to a term of imprisonment of one month.  This makes a total effective sentence of twenty months' imprisonment.

60Pursuant to s.11(2) of the Sentencing Act 1991 I decline to fix a non-parole period, being of the opinion that a term of imprisonment of 20 months is a sufficient and appropriate custodial sentence to impose on you having regard to all the circumstances of your offending and your principal role in it and your background circumstances and your prior convictions.

61I declare there has been 336 days presentence detention relating to the sentence passed this day and I direct that 336 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.

62For the purposes of s.6AAA of the Sentencing Act 1991 had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence the four and a half years' imprisonment and I would have fixed a non-parole period of three years.

63Turning to you, Isaiah Stephens, on the charge of recklessly causing serious injury, you are convicted and I make a community corrections order with conviction for a period of two and a half years commencing this day, with conditions as follows:

64That you undertake 200 hours unpaid community work;

65That you undergo Supervision from Corrections;

66That you undergo judicial monitoring by me;

67That you undergo treatment and rehabilitations programs for drugs and alcohol and mental health;

68Had it not been for your plea of guilty to the charge I would have sentenced you to a term of imprisonment of 18 months to be served in a Youth Justice Centre.

69MR HUTTON:  As Your Honour pleases.

70HIS HONOUR:  Any questions arising out of that, Mr Hutton?

71MR HUTTON:  There is a few minor amendments Your Honour, if I can ask.  My calculation on the - both manually and on the website - is 336 days pre-sentence detention.

72HIS HONOUR:  Three hundred.

73MR SMURTHWAITE:  Yes, Your Honour.

74HIS HONOUR:  Yes, I will correct that. 

75MR HUTTON:  Secondly, and I do not know if anything turns on this, Your Honour has referred to the charge of criminal damage as being an uplifted summary offence.  It is actually on the indictment.  I don't know if anything turns on that, but it is ‑ ‑ ‑ 

76HIS HONOUR:  Was it?

77MR HUTTON:  It is Charge 2 on the indictment.

78HIS HONOUR:  I am sorry, I had forgotten that. 

79MR HUTTON:  That's all right.

80HIS HONOUR:  Well, save that the maximum penalty in that circumstances is 15 years' I think.

81MR HUTTON:  Ten I think Your Honour.

82HIS HONOUR:  Ten years.

83MR HUTTON:  Yes, and in respect of the issue that arose last occasion, there are two forfeiture orders sought.  I understand they will be by consent, but there is to be a limit to what is sought and in respect of, or in the case of Mr Jay Stephens it is Item 3 on the Schedule which is a mobile phone.

84HIS HONOUR:  I don't think I have that order.  Yes, my associate has got the orders.

85MR HUTTON:  Yes, Your Honour, and in the case of Mr Isaiah Stephens, it is only Item 4, so it is Item 3 and 4 respectively, the two mobile phones and I understand that is by consent between the parties. 

86MR SMURTHWAITE:  Yes, Your Honour.

87HIS HONOUR:  Yes, I will sign those orders.

88MR HUTTON:  Yes, Your Honour. 

89HIS HONOUR:  Yes, Mr Moglia?

90MR MOGLIA:  Can I ask Your Honour to consider s.48CA which would permit Isaiah to have counted against his community work hours, his attendance at any programs for treatment.

91HIS HONOUR:  I have overlooked that.  That will be a condition of the order.  Yes, it is already in the order.  My associate has put it in.  I normally would put that in. 

92MR MOGLIA:  Indeed, and ‑ ‑ ‑ 

93HIS HONOUR:  I just have not referred to it Mr Moglia, but yes.

94MR MOGLIA:  And can I approach at the appropriate time?

95HIS HONOUR:  Certainly, thank you, approach your client now if you wish.  What was the number of the Indictment Mr Hutton?

96MR HUTTON:  It should be a dot point one, Your Honour. 

97HIS HONOUR:  Yes, so it is unfortunately I only have and it's a problem with the working remotely and so forth, I have the preceding indictment copy on my notes here, which is only the one charge indictment.

98MR HUTTON:  I know this - the dot point one indictment was filed afterwards, but I don't have a copy of it with me, Your Honour.

99HIS HONOUR:  That's okay.  For my sentencing remarks, I will revise them, to correct that issue.

100MR HUTTON:  Yes, Your Honour.

101HIS HONOUR:  You don't have any difficulty with that, Mr Smurthwaite. 

102MR SMURTHWAITE:  No, there is no controversy regarding that at all Your Honour.

103HIS HONOUR:  Yes, thank you. 

104ASSOCIATE:  Do you confirm that this is your signature Mr Stephens?

105OFFENDER I. STEPHENS:  Yes.

106ASSOCIATE:  Thank you.

107HIS HONOUR:  Mr Stephens, just come out of the dock if you would, and take a seat behind Mr Moglia. 

108Can I just say this to you, that no doubt Mr Moglia will explain to you fully of the intent and purpose of this community corrections order which I have made.  But it is to, in a nutshell, is to help you see your way through.  I appreciate that you have got a number of problems.  I do not want you to get yourself worked up about having to come back and see me from time-to-time because I will just be checking up both on you and Corrections to make sure that you get some help, do you understand?  But you must comply with the conditions and above all, you must not reoffend during the time of the community corrections order, do you understand that?

109OFFENDER I. STEPHENS:  Yes, Your Honour.

110HIS HONOUR:  Because if you do, you can come back and you will be brought back and if you have breached the order, well then you can re-sentenced.  Now you have got to report to Corrections in Box Hill within two clear working days and you have got to come back here on 24 September at 9.30 at which time I will receive a report from Corrections about your progress, do you understand?

111OFFENDER I. STEPHENS:  Yes.

112HIS HONOUR:  Very well.  A lot of people have put in a lot of work to get you this far and please don't let them down.  I know you won't.  Very well.  Could I thank each counsel for your submissions in this matter. 

113MR SMURTHWAITE:  If it please Your Honour.

114MR MOGLIA:  If Your Honour pleases.

115HIS HONOUR:  Thank you, Mr Hutton.  Adjourn the court until 11 o'clock please. 

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