Director of Public Prosecutions v Stephenson and Caharija
[2015] VCC 549
•1 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-02065
CR-15-00005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS ALAN STEPHENSON |
| and |
| SHAUN JOSEPH CAHARIJA |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 2015 | |
DATE OF SENTENCE: | 1 May 2015 | |
CASE MAY BE CITED AS: | DPP v Stephenson & Caharija | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 549 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - Sentence – pleas of guilty to armed robbery, theft, obtaining property by deception and attempting to obtain property by deception – offenders stealing petrol, robbing a taxi driver, obtaining goods using stolen credit card or attempting to do so and armed robbery of another motorist – both offenders with prior convictions – disparity between offenders – offending serious – principles in Boulton applicable - combination of imprisonment and CCO for each offender.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J Henderson Mr L Crosbie (for sentence) | Office of Public Prosecutions |
| For the First Offender | Ms C Dwyer | Emma Turnbull Lawyers |
| For the Second Offender | Mr B Lindner | Chris McLellan |
HIS HONOUR:
1 Nicholas Alan Stephenson and Shaun Joseph Caharija, you have each pleaded guilty to theft (charge 1) and two charges of obtaining property by deception (charges 3 and 4), for which the maximum penalty on each charge is ten years' imprisonment; to two charges of armed robbery (charges 2 and 6); the maximum is 25 years' imprisonment; and to attempting to obtain property by deception (charge 5), the maximum is five years' imprisonment. I must sentence you now on behalf of the community.
Circumstances of offending
2 The circumstances of your offending are set out in an agreed prosecution opening read to the Court. You engaged in a drug-fuelled criminal spree over a couple of hours on the night of 31 August and the early hours of the following morning, 1 September, 2014. You were aged, respectively, 27 and 31 at the time. You were driving around in a stolen motor vehicle, although you are not to be punished for this as it is not alleged that you knew the car was stolen. You, Mr Stephenson, were the driver at all times.
3 First, you both stole petrol worth about $92 from a service station in Ardeer (Theft, charge 1). Then you, Mr Caharija, telephoned a taxi company and requested that a taxi attend at a specified deserted street in Werribee. Fifteen minutes later the taxi arrived and you, Mr Caharija, approached the front passenger side door. The taxi driver got out to remove some items from the rear seat when you, Mr Stephenson, confronted him with a steel or aluminium rod about two foot long and said: “Listen, cunt, you’re getting robbed. Give me anything that you have.” The taxi driver started to run away and you, Mr Stephenson, swung the weapon at his head but missed. Both of you then opened the front doors of the taxi. You, Mr Stephenson, leaned into the front and stole the driver’s wallet containing approximately $800, his mobile phone and accessories. The wallet contained a number of cards, including a Bankcard. The two of you then drove away. (Armed robbery, charge 2).
4 You then went to a Brooklyn service station where you, Mr Stephenson, purchased two packets of cigarettes worth about $46 using the stolen Bankcard (Obtaining property by deception, charge 3). Next, you went to a McDonald’s in Laverton North where you purchased food worth about $26 using the same card (Obtaining property by deception, charge 4).
5 Shortly after that, you went to a Coles Express in Laverton North. You, Mr Caharija, went in with the stolen card to purchase cigarettes but left when challenged to produce proof of age. Then you, Mr Stephenson, went back in and attempted to use the card to purchase four packets of cigarettes and some lighters worth about $97. The purchase was declined because, unbeknown to you, the taxi driver had telephoned the bank and the stolen card was cancelled. (Attempt to obtain property by deception, charge 5).
6 Forty-five minutes later, in St Albans, you were driving behind a motorist in an aggressive manner. Initially, you followed him into a car park, but ultimately overtook him and blocked the road ahead forcing him to stop. The two of you got out of your car. You, Mr Caharija, were armed with an object described as a white stick and hit the passenger side window with it. You, Mr Stephenson, approached the driver and yelled: “What the hell were you doing?” The driver apologised and you replied by demanding that he give you his wallet. You, Mr Caharija, then went to the driver’s side window and produced a small knife which you pointed through the driver’s window at him. You, Mr Stephenson, demanded sternly that he give you his wallet, which he did. It contained about $600 and other personal cards. Both of you then ran back to your vehicle and drove away. (Armed robbery, charge 6).
Police and court process
7 You, Mr Stephenson, were arrested later that morning. You were interviewed and denied the offending. As to the offending in charges 4 and 5, you claimed that you were given the Bankcard by your co-offender and asked to make the purchase. You said that you had been drinking and taking ice.
8 You, Mr Caharija, were arrested later that night. When interviewed by police you tried to minimise your role in the offending. As to the robbery of the taxi driver, you said that your co-offender told you to pretend to jump in the cab and he would do the rest and that you protested about this. You said that you had approached the passenger side whilst your co-offender robbed the driver, whom you claimed you felt sorry for. As to the second armed robbery, you said that your co-offender cut him off and eventually there was a confrontation about the manner of driving and that your co-offender then demanded the person’s wallet. You said you were aware that a stolen Bankcard had been used to purchase the items in charges 3 and 4 and that although you had taken the stolen Bankcard into Coles Express, concerning charge 5, you claimed that you did not intend using it. You did admit that you had burnt your clothing when you got home because you knew you had done something wrong and you did not want the memory of it.
9
Each of you were charged following your interviews. You, Mr Stephenson, have been held in custody since that time and spent 242 days pre-sentence detention up to, but not including, today. You, Mr Caharija, were granted bail on 11 September 2014 which was revoked following your plea hearing on
12 February last. Accordingly, for you, there is 89 days pre-sentence detention up to, but not including, today.
10 Mr Stephenson, you entered your pleas on 25 November 2014 at a committal case conference which was the earliest opportunity. You, Mr Caharija, resolved your matter on 6 January 2015 before your contested committal hearing took place which, it is conceded, was a plea at an early opportunity.
Victim impact
11 I have received a victim impact statement declared by the taxi driver on 6 January last. Not surprisingly, he was highly traumatised by the armed robbery. He said he was scared to drive his taxi and in any case he did not have the licences to do so because you had stolen them. He suffered financially. He lost trust in others, was frightened about attacks from customers, he suffered sleep disturbance and nightmares and was worried about the court process. He thinks he needs counselling but is worried that he cannot afford it. His wife and son were very anxious about his welfare.
12 The victim of the other armed robbery did not provide a victim impact statement, however there can be no doubt that he, too, would have been significantly traumatised by having been forced off the road and robbed in the circumstances I have outlined.
13 Each of you should feel a great deal of shame and remorse for what you did to these two victims.
Stephenson – background and personal circumstances
14 I will now turn to your individual backgrounds and personal circumstances. First, to you, Mr Stephenson. I was assisted by a comprehensive written submission presented by your counsel. You are 27, almost 28 and single. You come from a good family and your parents supported you in court. You have an older brother with whom you have a positive relationship. You have described having a “privileged” upbringing. You completed Year 10 and have been fruitfully employed in various jobs, particularly in the fire safety industry, where your father works. Your employer in 2008-2009 spoke of you as a reliable and eager employee. In 2007 you obtained a certificate for completing a construction industry basic induction course. In letters to the Court, your parents described you as a family-orientated person and a reliable and hard worker.
15 You have been beset by serious drug addictions, initially to cannabis then amphetamines and opiates. Sadly, your parents noted that you were a totally different person when not on drugs but very difficult to manage when you were. You suffered a drug induced psychosis and depression in 2005. You attempted suicide in 2010. However, you no longer experience depressive symptoms.
16 You have a lengthy and disturbing criminal history which is directly linked to your history of drug abuse. Between 2005 when you were 17 and 2012 when you were 24, you have been convicted of about 80 offences arising from ten court appearances. Many of these have been for dishonesty, including three for aggravated burglary, three for possessing or using drugs and, significantly, for intentionally causing injury (2008) and recklessly causing injury (2010 and twice in 2012). You have been sentenced to imprisonment on five occasions, at times for quite lengthy periods for a young man, the last sentence being two years with a minimum of 12 months imposed in April 2012. You breached a community-based order in 2007 and a wholly suspended sentence in 2008. You have twice breached parole.
17 You were last released from custody on 29 June 2014, not long before the offending. Your counsel explained (and your mother confirmed), in the weeks leading up to this offending you had been refused access to a residential rehabilitation program for drug abuse due to your violent history. You relapsed into methamphetamine use and the situation was exacerbated by your separation from your de facto partner. You had also ceased taking antidepressant medication which had been prescribed to you whilst in prison.
18 You have been in custody now since your arrest last September, a period of about eight months. In light of your chaotic poly-drug use, you were approved to go on a Methadone programme and have been taking that drug since early October last year. At that time you accepted that you needed to make a radical change in relation to your attitude to and use of illicit substances. Whilst in prison you have successfully completed a number of drug and risk minimisation programs. To your credit, you want to ultimately study for a Diploma in Youth Work and Alcohol Management, for which you need a pass in Year 12, so you are studying English and maths for that reason. In October and December last year, urine screens were clean for illicit substances. You are also undertaking a computer course.
19 The mitigating circumstances in your favour are that you come from a good family background and, to the extent that you have not been incarcerated or affected by drugs, you have been a good and reliable worker. You are fortunate to have the ongoing support of your family. Regrettably, your life has been beset by a serious drug addiction for which you have not received any significant treatment. You have demonstrated some positive rehabilitative signs since you have been in custody, including acknowledging the enormity of your drug addiction and the need to address it so that you might have some realistic future to look forward to. Your counsel noted that since your arrest you have been held in protective custody, but expressly she did not rely upon this as a mitigating circumstance. Nevertheless, the rehabilitation achieved by you is all the more significant given this placement.
20 You entered pleas of guilty at the earliest opportunity, which is of significant utilitarian benefit to the community. You have thereby served the ends of justice for which alone there should be a significant discount in penalty. I am also satisfied your pleas are associated with genuine remorse.
21 Obviously you need to engage in a meaningful drug rehabilitation program. Apparently you had some limited counselling in this regard but no report was to hand about that. However, it is proposed that you undertake an appropriate holistic 12 month program with the Destiny Transformations Residential Drug Rehabilitation Centre in Hoppers Crossing. According to a letter from that place, a bed would be available to you there in approximately two years’ time, but that placement (or a similar program at another such centre) will have to be brought forward in light of the sentence I propose. It was submitted that if you were to undertake such a program and given your age and family support, there are reasonable prospects for your rehabilitation. I hope that is so, but regrettably, given your criminal history, your entrenched untreated drug addiction, your past breaches of community based orders and parole, and the escalation in offending presented by this episode, I must remain guarded as to that prognosis.
Caharija – background and personal circumstances
22 Next, Mr Caharija, I will turn to your background and personal circumstances. You are now thirty-two. In your case I was assisted not only by counsel’s submissions but by a psychological report of Dr Aaron Cunningham dated 9 February 2015. Unfortunately, you were subjected to childhood instability in the form of perceived abandonment from your mother, who was mentally ill and abused drugs. Your parents separated when you were very young and you were brought up by your father, with whom you have maintained a good relationship. You have one older sister. You left school after completing Year 10 and have had a full and productive working history. You worked consistently in the timber flooring industry for 15 years until 2013 when you suffered pneumonia, liver and kidney failure with other complications which essentially resulted from you breathing polyurethane whilst laying floors. You ran your own business from 2003 until 2012.
23 You have had an 8 year loving de facto relationship with your partner who supported you in court. From that union there is a two year old son and two stepchildren of your partner, aged eleven and fifteen, with whom you are very close. Your partner and the children have been visiting you in prison.
24 I received a glowing reference from a seventy-nine year old family friend who has known you all your life. She spoke of your difficult upbringing, your work ethic and your willingness to assist her three or four times per week. She speaks of you as a devoted family man and notes that you accept responsibility for your actions.
25 Regrettably, you also have a long history of addiction to cannabis and amphetamine from your early teens. This escalated to significant daily intravenous use of ice in 2012. It was said that you had stopped consuming illicit drugs after you were released on bail last September, although I have not received any urine screens in support. You were released on CISP bail and a report of January 2015 indicates that you failed to take advantage of drug counselling which was offered to you following a comprehensive drug and alcohol assessment. However, the report indicates that having reported a bout of depression in early 2014, for which you received no treatment or medication, you did attend a psychologist who reported you engaged positively in treatment over three appointments. No report was received from that source. You also commenced or completed certificate courses in food preparation and handling and in hospitality whilst in custody. This work in prison is designed to enhance your employment opportunities in the hospitality industry. You have maintained, through gym work, excellent physical health. On your discharge on CISP bail in January this year, you were reported as presenting with a positive attitude and engaging well in case management and as a person who demonstrated a willingness to address your presenting issues by engaging in later treatment. Indeed, you indicated you were capable of scheduling and attending psychological and drug and alcohol appointments independently. Apparently you have attended one session of drug and alcohol counselling at ISIS Primary Care a couple of weeks before the plea hearing but no report has been produced as to that.
26 On assessment by the psychologist, you do not present with a mental illness and there is no indication of intellectual impairment. You did show signs of remorse and insight into your offending and your partner states that you have changed significantly since being released from prison, including becoming closer to your family. You are particularly concerned about being separated from them. The psychologist’s opinion was that your offending occurred in the context of your drug abuse and inappropriate peer associations. His view is that the numerous protective factors which I have mentioned may reduce your reoffending and improve your prospects of rehabilitation. Certainly you also need further intensive drug and alcohol counselling.
27 Unlike your co-offender, you have a very limited criminal history. The only matter advanced by the prosecution occurred in May 2014 when you were convicted of recklessly causing injury, reckless conduct endangering serious injury and failing to report to police injury to a person arising from a motor collision. It was explained that these convictions arose from a road rage incident. Someone struck your vehicle with a pole and you chased two persons, one you hit and the other you endangered. For this offending you were convicted and placed on a community correction order for nine months with a condition that you perform unpaid community work. You performed almost all of this work component. The problem is that this order expired on 28 November 2014. Accordingly, you committed the present offences whilst on that community correction order. This is an aggravating feature.
28 The mitigating circumstances in your favour are that you are the product of a dislocated family background, although you have maintained the close support of your father and other family members. You led a full and productive working life until you were disabled by illness. Regrettably your life has been seriously affected by chronic drug addiction which is the context in which you offended. In recent times you have demonstrated some positive rehabilitative tendencies.
29 Of course, you pleaded guilty at an early time. Your pleas are of utilitarian benefit to the community and you have thereby served the interests of justice for which alone there should be a significant discount in penalty. I am satisfied that your pleas are associated with remorse for your offending and that in the meantime you have developed significant insight into the seriousness of your conduct and its effects upon others close to you. This is reflected in the letters you have written this week to the court dated 27 April 2015.
30 I consider you have reasonable prospects for rehabilitation, so long as you engage in meaningful treatment for your drug addiction. You are motivated to overcome your difficulties and get back to your family and a good job as soon as you can be released from prison.
Other sentencing considerations
31 I am now addressing both of you. There are, of course, other important sentencing considerations. As conceded by each of you, your offending is serious, particularly for the two armed robberies, each of which carries a maximum penalty of 25 years' imprisonment, a matter about which I must have regard. The first robbery was a planned event, even though I infer that the planning took place over a short time. You, Mr Caharija, arranged for the arrival of the victim driver in a dark deserted street, which was obviously part of a concerted and determined plan you shared with your co-offender to rob the driver. This taxi driver was a soft and vulnerable target, particularly as he was surprised by you, Mr Stephenson, threatening him verbally and with the weapon. Indeed, even though the driver ran away and was no threat, you, Mr Stephenson, tried to hit him on the head with the weapon. It was fortuitous that you did not connect. There was significant and enduring victim impact.
32 It was submitted by you, Mr Caharija, that you played a lesser role in this offence than that of your co-offender in that you were not the driving force behind this offence or the main player. I reject this submission. First, you called the cab in and set up the place where the armed robbery was to occur. You lied in your record of interview when you said that your co-accused had called the cab (Q 58) and you claimed in your interview that you were protesting about your co-accused’s conduct when it is clear from the victim’s account that each of you confronted the driver on either side of his vehicle and both of you opened the front doors of the taxi once the driver had fled. Hence, Mr Caharija, you falsely minimised your role in this offending and so your account to police does not provide a reliable basis for concluding that you played a lesser role than your co-offender for charge 2.
33 As to the second armed robbery, I am satisfied that you, Mr Stephenson, played a greater role in the commission of that offence as you were driving the car and cut off the other driver. However, the driver having been forced to stop, you, Mr Caharija, enthusiastically joined in by hitting the victim’s car with a white stick and then in enforcing your co-offender’s demand for the driver’s wallet by producing a knife - a potentially more serious and terrifying weapon - which you pointed at the victim. Once the victim’s car was stopped I am satisfied that each of you played an equal role in the commission of the second armed robbery. I note also that you, Mr Caharija, made no mention to police of holding the stick or the knife when offending, a matter you now concede in the agreed plea summary.
34 I do take account that neither of the armed robberies involved substantial planning, the use of disguises and, notwithstanding the psychological trauma involved, neither victim suffered any actual physical injury. The fact that you were both affected by drugs is not a mitigating consideration at all.
35 Obviously, the principle of general deterrence is of importance. So too is that of specific deterrence, for you, Mr Stephenson, because of your lengthy criminal history and for you, Mr Caharija, because you committed the offences whilst on a community correction order. Just punishment, protection of the community and denunciation are also important principles to be taken into account. But your rehabilitation as heavy drug users is very much in your favour and that of the community.
36 I do consider that there should be some disparity in sentence in your favour, Mr Caharija, because you do not have the extensive criminal history of your co-offender, your prospects of rehabilitation are better and you have never been sentenced to prison before. No doubt the past three months in custody isolated from your family will have been a salutary experience for you.
37 As submitted, I must apply the principle of totality. Your offending occurred over a relatively short period of about two hours in one episode. There should be a significant degree of concurrency between the sentences on the two charges of armed robbery, although it is conceded there should be some modest cumulation because they are separate offences involving separate victims.
38 Each of you effectively submitted at the plea hearing that although a term of imprisonment was appropriate on the armed robbery charges, such sentence should be combined with a community correction order, which would address your personal and individual needs and circumstances. The prosecution rejected this approach and submitted the only option was imprisonment. In a later written submission, you, Mr Caharija, submitted you should receive no imprisonment, alternatively, a combination of prison and a CCO.
39 Reliance was placed by each of you upon the recent decision of Boulton.[1]In its guideline judgment, the Court of Appeal emphasised the punitive elements and character of a CCO, which it described as: “a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way.”[2]
[1]Boulton & Ors v The Queen [2014] VSCA 342 (“Boulton”) per Maxwell P, Nettle, Neave, Redlich and Osborn JJA.
[2][113].
40 The Court made clear that it may be appropriate to impose a CCO, with or without a term of imprisonment, for relatively serious offences, even when such cases would have previously attracted a medium term of imprisonment. Particularly, the Court made clear that this sentencing option offers the court something which no term of imprisonment can offer, namely, a sentence which demands that the offender take personal responsibility for self-management and self-control, including the pursuit of appropriate treatment and rehabilitation, which, of course, enables an offender to work in the community if appropriate and maintain the continuity of personal and family relationships, while refraining from undesirable influences.[3] Relevant to the offences of armed robbery here, I note that the Court made clear, the question, “How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?” should mark the beginning, not the end, of a court’s consideration.[4] The Court also noted that the combination sentence option of combining a CCO with a sentence of imprisonment adds to the flexibility of the CCO regime.[5]
[3][114].
[4][115].
[5][141].
41 Of course, a court must not impose a sentence that involves the confinement of an offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by, for instance, a community correction order to which one or more of certain conditions may be attached. A term of imprisonment ought not to be imposed other than as a last resort and in circumstances where no other disposition would meet the needs of the circumstances of the case. [6] Significantly, the Court in Boulton made clear that “… the advent of the CCO calls for a re-consideration of traditional conceptions of imprisonment as the only appropriate punishment for serious offences” and concluded that a CCO can serve all the purposes of punishment “even in quite serious cases”.[7] Indeed, the Court said that: “… even in cases of objectively grave criminal conduct, the court may conclude that some or all of the punitive, deterrent and denunciatory purposes of sentencing can be sufficiently achieved by a short term of imprisonment of up to two years if coupled with a CCO of lengthy duration, with conditions tailored to the offender’s circumstances and the causes of the offending, directed at rehabilitative purposes.”[8]
[6]Ellis v The Queen [2015] VSCA 21 per Bongiorno and Kyrou JJA.
[7]Boulton [5] – [6]
[8]Ibid Appendix 1, clause 27.
42 Whilst I initially considered that a CCO was not appropriate and remanded you for sentence without calling for a CCO report, I reflected further on the import of Boulton and ultimately decided to call for full CCO assessment reports. Regrettably, these took a very long time to obtain.
43 Although both of you are assessed as having a high risk of general re-offending, each of you have been assessed as suitable for release upon a CCO, with appropriate conditions. I have given anxious consideration to the objective gravity of the armed robbery offences and concluded that each of you should be sentenced to a term of imprisonment for this serious offending. But the Boulton principles make clear that even for such serious type of offending it may be appropriate to combine prison with a CCO. That is the position I have reached for both of you, speaking globally. I have significantly reduced what might otherwise be said to be appropriate terms of imprisonment for these armed robberies, accepting that there are good reasons to pass lesser sentences on you, Mr Caharija, for those charges compared with those to be passed on your co-offender. I propose to pass straight sentences of imprisonment against each of you on the armed robbery matters, there will be no question of parole for either of you. Upon your completion of those sentences and release from prison, you will commence a CCO on the remaining charges.
44 To make the position clear, I propose to impose a total effective sentence on the armed robbery charges for you, Mr Stephenson, of 12 months' imprisonment and for you, Mr Caharija, one of eight months' imprisonment. Naturally there will be an order for pre-sentence detention.
Stephenson – charges 1, 3, 4 and 5 - explanation of CCO
45 On the remaining charges 1, 3, 4 and 5, I propose to release each of you on a CCO which will commence upon your release from prison. I will explain for each of you separately what I propose.
46 Mr Stephenson, please stand up. Are you able to stand up? I see you have got some crutches there.
47 OFFENDER STEPHENSON: I'll be all right.
48 HIS HONOUR: Or would it be easier to sit down? There is no problem.
49 OFFENDER STEPHENSON: Yeah, it would be easier.
50 HIS HONOUR: All right, sit down, that is fine.
51 OFFENDER STEPHENSON: Thanks.
52 HIS HONOUR: I did not realise you had them. What is wrong with him?
53 MS DWYER: Your Honour, he had a seizure on the top bunk, fell off and has injured his back.
54 HIS HONOUR: I see. All right, thanks.
55 Mr Stephenson, I have had regard to all of the contents of the assessment report and, as I say, you have been assessed as suitable for release on a CCO, and I do propose to allow that to happen if you consent.
56 (Short adjournment for first offender to go to the toilet and return.)
57 A Community Correction Order is a community-based sentence that addresses your particular offending and your personal circumstances. It is designed to punish you and to assist in your rehabilitation. It will serve both your interests and those of the community. If you engage with it appropriately, it will improve your life and help those around you. This is a golden opportunity to turn your life around for the better.
58 Upon completion of the sentence on the armed robbery charges, I propose to release you on the CCO on charges 1, 3, 4 and 5. Before doing that I need to explain what is involved and to obtain your consent to the CCO. If you do not consent, I cannot allow you to be released on the CCO. I would then have to sentence you in another way which may place you in a worse position.
59 I know the nature of the proposed CCO has already been explained to you by the author of the assessment report and you have agreed to undergo the proposed CCO, but I need to go through it with you myself so I know you understand what is involved and so I can be sure that you are providing informed consent.
60 For instance, do you understand that you have signed a form acknowledging that you may be called upon by Corrections Victoria to fund yourself some of the rehabilitation programs that have been recommended for you? You do understand that?
61 OFFENDER STEPHENSON: No, I don't understand.
62 MS DWYER: May I approach, Your Honour?
63 HIS HONOUR: Yes, you talk to him.
64 MS DWYER: Thank you. Thank you, Your Honour.
65 HIS HONOUR: Do you understand that?
66 OFFENDER STEPHENSON: Yes.
67 HIS HONOUR: The CCO will last for two years. It will commence on completion of the sentence on the two armed robbery charges and your release from prison. There are mandatory terms - that means compulsory ones - and there are rehabilitation conditions, all right? The mandatory terms, that is, the compulsory ones that apply to all CCOs are as follows.
68 First, during the period of the order you must not commit, whether in or outside Victoria, an offence punishable by imprisonment. There are many such offences including driving offences. Secondly, you must comply with any obligation or requirement prescribed by the Sentencing Regulations 2011, particularly Regulation 17. Thirdly, you must report to and receive visits from the Secretary of the Department of Justice or delegate during the period of the order. When I refer to the Secretary or delegate, this means in practice a Community Corrections officer. Fourthly, you must report to the Werribee Community Corrections Centre specified in the order within two clear working days of the order starting. Fifthly, you must let the Secretary, that is, Corrections, know within two clear working days of you changing your address or any job of any kind you may have even if such change is only temporary. Sixthly, you must not leave Victoria without first getting permission to do so from the Secretary, that is, Corrections, either generally or in relation to a particular case. Finally, you must comply with any direction given by the Secretary, that is, Corrections, whether oral or written, which is necessarily given to make sure that you comply with the order.
69 So do you understand all of those mandatory, or compulsory, terms that apply to the proposed CCO?
70 OFFENDER STEPHENSON: Yes, I do.
71 HIS HONOUR: Do you have any questions about any of them?
72 OFFENDER STEPHENSON: No.
73 HIS HONOUR: All right. There will also be certain conditions which, as I have said, are designed to punish you and also to address the underlying causes of your offending to provide treatment to you and to promote your rehabilitation, all of which is in your interests and those of the community.
74 You must perform 200 hours unpaid community work over the whole period of the order, as directed by a Community Corrections officer. This is a punishment for your offending, but it may help you to understand that there are others who are far worse off than you are. Remember that you will be mixing with other offenders who may try to lead you astray, so make sure that that does not happen. If you have any concerns about that sort of problem, then seek guidance and assistance from a Community Corrections officer. I will order that all the hours you perform satisfactorily for treatment and rehabilitation are also to be counted in your favour as completed unpaid community work.
75 I also propose that you undertake certain treatment and rehabilitation conditions as follows. First, assessment and treatment including testing for drug abuse and dependency. Next, assessment and treatment including testing at a residential facility for withdrawal from or rehabilitation for drug abuse or dependency. You are to go to Destiny Transformations at 37-43 Graham Court, Hoppers Crossing, 3029, if a placement becomes available upon release from prison. Otherwise you are to go to a similar such residential program. Next, you are to undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the regional manager. Finally, you must participate in programs and/or courses that address factors relating to the offending, as directed by the regional manager.
76 Next, you must be under the supervision of a CCO officer for two years. You should rely a lot on that experienced person to help you deal with your problems. If you are having any problems, tell them about what is troubling you and work closely with them to make life better for you and others that you care about.
77 Do you understand all the conditions that will apply to the proposed order?
78 OFFENDER STEPHENSON: Yes, I do.
79 HIS HONOUR: You do?
80 OFFENDER STEPHENSON: Yes.
81 HIS HONOUR: Next, I need to tell you about the consequences if, during the course of the order, you contravene the order. If you have done that without reasonable excuse, in certain circumstances, you will face a punishment of three months' imprisonment just for the breach. If you break the law, that is, you commit any offence for which you could be imprisoned during the time that the order is in force, that would constitute a breach of the community correction order. Also, even if you are not breaking the law but you fail to comply with the mandatory, that is, compulsory, terms of the order or any of the conditions of the order which I have explained, in an administrative sense, such as failing to attend community work or supervision meetings or failing to comply with directions or programs concerning assessment and treatment, absent any reasonable excuse, you would also be in breach of the CCO.
82 In any circumstances where you are in breach of the order, you should expect to be brought back to this court, and if that happens, the court may vary the order, confirm the order made or cancel the order and deal with you for the original offences for which the order was made, which may involve sentences of imprisonment being imposed again on you; or the court could take no further action.
83 So do you understand the serious consequences if you were to breach the CCO?
84 OFFENDER STEPHENSON: Yes, I do.
85 HIS HONOUR: Do you understand that you could be sent to gaol if you were to breach the COO?
86 OFFENDER STEPHENSON: Yes.
87 HIS HONOUR: Do you consent to the proposed CCO as I have explained it to you.
88 OFFENDER STEPHENSON: Yes, I do.
89 HIS HONOUR: All right.
90 Sentence - Stephenson
91 Mr Stephenson, on each of charges 2 and 6, the armed robbery matters, you will be convicted and sentenced to nine months imprisonment on each charge. The sentence on charge 2 is the base sentence. Three months of sentence passed on charge 6 is to be served cumulatively on the sentence passed on charge 2. The total effective sentence is 12 months' imprisonment.
92 I declare that the period of 242 days pre-sentence detention, up to, but not including, today, be reckoned as already served on that sentence and that such declaration be entered in the records of the court. The effect of that order is that you will be released from prison in about four months' time.
93 On charges 1, 3, 4 & 5, you will be convicted and released on a CCO for a period of two years which will commence upon your release from prison after serving the sentence on charges 2 and 6. The conditions will be as set out already and agreed to by you. I will ask your counsel to check the draft community correction order with you and, if you agree with its terms, to have you sign it. Thank you, Ms Dwyer.
94 All right, thank you. I have signed that order, and copies can be made available to the parties.
95 Ms Dwyer, it was proposed regarding Destiny Transformations that a bed be available in two years' time. He is going to be released in about four months. So I think you need to take steps to advise that organisation and to liaise with Corrections - - -
96 MS DWYER: Yes, Your Honour, I will do those things.
97 HIS HONOUR: - - - so that that condition can be implemented in an efficacious way.
98 MS DWYER: Yes, Your Honour, I will do that.
99 HIS HONOUR: Thank you.
100 Mr Stephenson, but for your pleas of guilty, on all matters I would have imposed a total effective sentence of three years' imprisonment with a minimum of two years.
101 No forensic sample order is sought in your case.
Caharija – charges 1, 3, 4 and 5 - explanation of CCO
102 Mr Caharija, would you please stand up. I propose to outline to you the community correction order, all right, so I need you to listen carefully to what I say. I have had regard to all of the contents of your assessment report and, as I have noted, you have been assessed as suitable for a CCO and I do propose to allow that to happen if you consent. I am going to go through the same things that I said to the other offender, but that is because it is important that I say them to you directly, even though you might have been listening closely.
103 A Community Correction Order is a community-based sentence that addresses your particular offending and your personal circumstances. It is designed to punish you and to assist in your rehabilitation. It will serve both your interests and those of the community. If you engage with it appropriately, it will improve your life and help those around you, and as I said before, this is a golden opportunity to turn your life around for the better.
104 Upon completion of the sentence on the armed robbery charges, I propose to release you on the CCO on charges 1, 3, 4 and 5. Before doing that I need to explain what is involved and to obtain your consent to the order. If you do not consent, I cannot allow you to be released on the community correction order. I would then have to sentence you in another way which may place you in a worse position.
105 I know the nature of the proposed CCO has already been explained to you by the author of the assessment report and you have agreed to undergo the proposed order, but I need to go through it all with you myself so I know you understand what is involved and so I can be sure that you are providing informed consent.
106 For instance, do you understand that you have signed a form acknowledging that you may be called upon by Corrections Victoria to fund yourself some of the rehabilitation programs that have been recommended for you?
107 OFFENDER CAHARIJA: Yes, I do, Your Honour.
108 HIS HONOUR: The CCO will last for 18 months. It will commence on completion of the sentence on the armed robbery charges and your release from prison. The mandatory terms, that is, the compulsory ones, that apply to all community correction orders are as follows. First, during the period of the order you must not commit, whether in or outside Victoria, an offence punishable by imprisonment. There are many such offences including driving offences. Secondly, you must comply with any obligation or requirement prescribed by the Sentencing Regulations 2011, particularly Regulation 17. Thirdly, you must report to and receive visits from the Secretary of the Department of Justice or delegate during the period of the order. When I refer to the Secretary or delegate, this means in practice a Community Corrections officer. Fourthly, you must report to the Werribee Community Corrections Centre specified in the order within two clear working days of the order starting. Fifthly, you must let the Secretary, that is, Corrections, know within two clear working days of you changing your address or any job of any kind you may have even if such change is only temporary. Sixthly, you must not leave Victoria without first getting permission to do so from the Secretary, that is, Corrections, either generally or in relation to a particular case. Finally, you must comply with any direction given by the Secretary, that is, Corrections, whether oral or written, which is necessarily given to make sure that you comply with the order.
109 So do you understand all of those mandatory/compulsory terms that apply to the proposed CCO?
110 OFFENDER CAHARIJA: Yes, I do, Your Honour.
111 HIS HONOUR: Do you have any questions about any of them?
112 OFFENDER CAHARIJA: No, Your Honour.
113 HIS HONOUR: All right, thanks. It might be a good idea just to come up where the microphone is, thanks, so we can pick up what you say. Thanks. So I think you said you understood.
114 OFFENDER CAHARIJA: Yes, Your Honour.
115 HIS HONOUR: And you had no questions about them?
116 OFFENDER CAHARIJA: That's correct. Your Honour.
117 HIS HONOUR: There will also be certain conditions which, as I have said, are designed to punish you and to address the underlying causes of your offending to provide treatment to you and to promote your rehabilitation, all of which is in your interests and those of the community.
118 You must perform 150 hours unpaid community work over the whole period of the order, as directed by a Community Corrections officer. This is a punishment for your offending, but it may help you understand that there are others who are far worse off than you are. Remember that, as I said to the other gentleman, you will be mixing with other offenders who may try to lead you astray, so make sure that that does not happen. If you have any concerns about that sort of problem, seek guidance and assistance from a Community Corrections officer. I will order that all of the hours you perform satisfactorily for treatment and rehabilitation are to be counted in your favour as having been completed unpaid community work.
119 I also propose that you undertake certain treatment and rehabilitation conditions as follows. That you undergo assessment and treatment including testing for drug abuse or dependency, as directed, and that you be under supervision of a CCO officer for 18 months. You, too, should rely a lot on that experienced person to help you to deal with your problems. If you are having any problems, tell them about what is troubling you and work closely with them to make life better for you and others that you care about.
120 Do you understand all the conditions that apply to the proposed order?
121 OFFENDER CAHARIJA: Yes, I do, Your Honour.
122 HIS HONOUR: All right. Next, I need to tell you about the consequences if, during the course of the order, you contravene it. If you have done that without reasonable excuse, in certain circumstances, you will face a punishment of three months' imprisonment just for the breach. If you break the law, that is, you commit any offence for which you could be imprisoned during the time that the order is in force, that would constitute a breach of the order. Also, even if you are not breaking the law but you fail to comply with the mandatory/compulsory terms of the order or any of the conditions of the order, which I have explained, in an administrative sense, such as failing to attend community work or supervision meetings or failing to comply with directions or programs concerning assessment and treatment, absent any reasonable excuse, you would also be in breach of the CCO.
123 In any circumstances where you are in breach of the order, you should expect to be brought back to this court, and if that happens, the court may vary the order, confirm the order made or cancel the order and deal with you for the original offences for which the order was made, which may involve sentences of imprisonment or the court could take no further action.
124 So do you understand the serious consequences if you were to breach the CCO?
125 OFFENDER CAHARIJA: Yes, I do, Your Honour.
126 HIS HONOUR: Do you understand that you could be sent to gaol if you were to breach the order?
127 OFFENDER CAHARIJA: Yes, I do.
128 HIS HONOUR: Do you consent to the proposed order as I have explained it to you?
129 OFFENDER CAHARIJA: Yes, Your Honour.
130 HIS HONOUR: All right, thanks, have a seat. Sorry, just wait one moment. I am sorry. Yes, just remain standing.
131 Sentence - Caharija
132 Mr Caharija, on each of charges 2 and 6, the armed robbery matters, you are convicted and sentenced to six months' imprisonment. That is on each. The sentence on charge 2 is the base sentence. I order that two months of the sentence passed on charge 6 is to be served cumulatively on the sentence passed on charge 2. The total effective sentence is eight months' imprisonment.
133 I declare that the period of 89 days pre-sentence detention, up to, but not including, today, be reckoned as already served on that sentence and that such declaration be entered in the records of the court.
134 The effect of that order is that you will be released from prison in about five months' time, as I work it out.
135 On charges 1, 3, 4 and 5, you will be convicted and released on a CCO for a period of 18 months which will commence upon your release from prison after serving the sentence on charges 2 and 6. The conditions will be as set out already and agreed to by you. I will ask your counsel, Mr Lindner, to check this draft order with you and, if you agree with its terms, to have you sign it. Thank you, Mr Lindner.
136 Thank you. I have signed that order, and copies can be made to the parties.
137
Mr Caharija, but for your pleas of guilty, on all matters I would have imposed a total effective sentence of two years' imprisonment with a minimum of
15 months.
138 I will make the forensic sample order which has been sought by the prosecution and which is not opposed by you. Pursuant to s.464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with subdivision 30A of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I consider that the making of the order is justified because of the seriousness of the circumstances of the offending, the order is by consent and the granting is in the public interest. I need to inform you that notwithstanding your consent to the taking of that order, and it is a simple matter of having a swab taken from inside your cheek, the police may use reasonable force to enable the forensic procedure to be conducted including taking a blood sample if you do not agree to that. Do you understand?
139 OFFENDER CAHARIJA: Yes, I do, Your Honour.
140 HIS HONOUR: All right, thank you. I have signed that order. Hand that to the prosecution, thank you. I will hand back the non-custodial drafts. Thanks.
141 Mr Caharija, you may sit down for the moment, thanks.
142 I will make the forfeiture and disposal orders sought by the prosecution, which are consented to by each of the offenders. I hand down those signed orders. Can I ask counsel, are there any other matters arising from the sentence that I have imposed?
143 MR CROSBIE: No, Your Honour.
144 MS DWYER: No, Your Honour.
145 MR LINDNER: No, Your Honour.
146 Thank you all for your assistance in the case which has taken quite a long time and, at times, become quite complex. Thank you, each of you need to go now with the prison officers. Please remove the offenders. [Offenders removed]
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