Director of Public Prosecutions v Stewart

[2019] VCC 1882

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

AT GEELONG
CRIMINAL JURISDICTION

CR-19-00454

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK STEWART

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	14 November 2019
CASE MAY BE CITED AS:	DPP v Stewart
MEDIUM NEUTRAL CITATION:	[2019] VCC 1882

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry
For the Accused	Mr G. Nikolovski

HIS HONOUR:

1Patrick Stewart, you have pleaded guilty to two charge of supplying a drug of dependence to a child.  The drugs were cannabis and methylamphetamine.  The victim was a 16 year old with intellectual disabilities and language difficulties.  She was particularly vulnerable.  She lived in supported accommodation, but unfortunately often absconded.

2On 22 June 2018, she left her accommodation and went to central Geelong.  There, she met you and told you she had run away from her home.  You were 52 years old, living with your then partner in Herne Hill.  You took the victim to your house where you gathered items for sleeping elsewhere.  You took the victim then to a number of abandoned premises or squats in Geelong.

3You stayed at one place with the victim for the weekend.  During the weekend, you gave the victim cannabis in a bong to smoke, and ice in a pipe to smoke as well.  Ultimately, on the Sunday, the victim went to a nearby McDonald's store in the city and spoke to the manager about her ordeal.  The police came and spoke to the victim, who set out in detail all that occurred.  That has been read to the court in a summary earlier in these proceedings.

4Police ultimately arrested you about a month later.  You were remanded in custody and have remained there to this point, now some 476 days; that is beyond 15 months.  After a committal, you made an application for a sentence indication hearing, and that was before me.  I granted that application on
5 August 2019.  You pleaded guilty thereafter.

5I arranged for an assessment for a community corrections order.  That has been done and you found to be suitable.  At the time of the sentence indication hearing, I considered the gravity of your offending such that imprisonment was required.  I took into account aspects about you, including your unfortunately long criminal history.  What I concluded was that imprisonment was required but not anymore than you had already served. 

6The gravity of the offence is such that a prison term is required because vulnerable children need to be protected.  Those that exploit them and supply them with drugs will face stern punishment.  Deterrence is a very important matter in these sorts of cases.

7As to your personal circumstances, you grew up in a large family with a violent father.  This caused a chaotic upbringing with limited education.  You turned to drug use and mixed with others with similar inclinations.  You were before the Magistrates' Court or have been many, many times.  You have prior convictions dating back for over 30 years.

8Many are for violence and for drug use, and for trafficking in drugs, which is relevant.  You have had many sentences, both rehabilitative and gaol terms.  From 2009 to 2015, you remained out of trouble.  But you relapsed back into drug use and were back before the courts and back in prison after 2015. 

9As part of your upbringing you did work with a brother as a painter and decorator but from about the age of 30, you have been on social welfare benefits.

10You married about 35 years ago and have five children.  The marriage ended in 2007.  You remained close to one of your daughters who resides in the Cobram area.  She was to have you stay once you were released, but that is now uncertain.  You have temporary accommodation in Geelong and are on a priority for public housing.  This is riskier for you, but in the end, it is up to you to stay away from drugs and drug users.  You must be firm about this.

11The plan, as I understand it, is that as soon as your daughter's own housing becomes settled, you will move to that district to be with her and remain rehabilitating in that district on a community corrections order.

12You were using drugs heavily at the time of your offending.  You have been able as I indicated earlier, to stay off drugs for lengthy periods.  But you relapsed in 2015.  Forced abstinence while you have been in custody for the last
15 months, and the courses that you have undertaken in prison, give some hope that you will put drugs permanently behind you.

13You will need assistance from programs available on a community corrections order.  In this way, the community corrections order will facilitate your rehabilitation.  But as I have already emphasised, it is up to you to persevere.

14You have had mental health problems and will again need help on release to deal with those problems, without turning to self-medication with illegal drugs.  Your plea of guilty in this matter is important.  You relieved a very vulnerable witness of having to give evidence about what had occurred.  Thus, your sentence is less, because of your plea.

15What I intend to do is impose a sentence in precise terms with what you have just served.  It is tailored, but that is necessary given how much time you have spent in custody thus far.

16So for committing the crime of supplying a child with a drug of dependence, as an aggregate term I sentence you to 476 days imprisonment.  In addition, you will be placed on a community corrections order for 15 months.

17Program conditions that I will impose are to require to undergo assessment and treatment for drug addiction for mental health problems and you must do programs to reduce your re-offending.  You must be under the supervision of the Office of Corrections for the full 15 months.  In addition, pursuant to s.48F, I order that you do not have contact or associate with the victim in this matter, which I necessarily need to name, Jean Brilli.  Her name is not to be published other than within this order.

18There will be no unpaid community work required, given the amount of time you spent in prison.  Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a penalty of three and half years, with a non-parole period of two and a half years.

19There is a forfeiture order, is that so?

20MR McKENRY:  Yes, Your Honour.

21HIS HONOUR:  There is an application for forfeiture of a number of items and I will make that order.  Is there anything else required?

22MR McKENRY:  No, Your Honour.  As Your Honour pleases.

23HIS HONOUR:  The document will be produced.  It will require you to sign it.  It is necessary for you to go back down the stairs, for prison authorities here to check for central records.  That there is nothing further holding you, because I have not done it, I do so now.  That you have been on remand for 476 days, this amount of days having been reckoned.  I declare that it is part of the sentence that I have just imposed; indeed it is every single day of the term of imprisonment that I have just imposed.

24Ensure that this declaration is entered into the records of the court, so that the present authorities are left in doubt that you have already served each and every day of the sentence that I have just imposed and will commence your community corrections order thereafter.  I will read to you the conditions of the community corrections order when the document is produced.

25Mr Stewart, the conditions of your community corrections order are that it will last for 15 months.  It will start today upon the completion of your term of imprisonment and run for 15 months.  Conditions that apply to everyone on a community corrections order are these.  They apply to you.

26The first of these is the most important for you to understand.  You must not commit another offence, which you could be imprisoned during the time the order is in force.  That is any offence, that is punishable by imprisonment.  That is almost every offence you can think of.  You commit a crime within the next 15 months, you will come back before me, and inevitably you will be returned to gaol.

27Now, the next set of conditions, really are about cooperation with the Office of Corrections.  So, you must comply with obligations relating to regulations, sentencing regulations.  They will need to identify you by photograph and the like.  You have got to cooperate with all that.  You have to report to and receive visits from the Office of Corrections.  You must report to the Community Corrections centre there, it is in Little Mallop Street, the address is there, within two clear working days the order starting.  So, get on to that tomorrow.

28You must let a community corrections officer know within two clear working days if you change your address or your job.  You must not leave Victoria, without getting permission to do so, and you must obey all lawful instructions from the Office of Corrections.

29Now the things that apply to you specifically on this order are that you must be under supervision for 15 months.  So, they will need to know where you are.  You will have to come and report.  There will be phone contact.  You must do everything they say in supervision.  Do you follow?  Further, you must undergo assessment and treatment for drug abuse and dependency.  So, do what is required of you in respect of drug use.

30You must undergo mental health assessments and treatment that they arrange for you.  You must participate in programs that address factors relating to your offending, and you must not contact or associate with the victim during the period, for a period of 15 months.  Sign that.  Head downstairs, it brings the matter to an end.  Can you just take it down to him, please, Mr Nikolovski?

31MR NIKOLOVSKI:  Sorry, Your Honour?

32HIS HONOUR:  Can you take it down to him, for him to sign?

33MR NIKOLOVSKI:  Yes.  Thank you.

34HIS HONOUR:  All right, that is signed.  You will get a copy of that.  But you need to go downstairs, just to - for the various record checks to be done.  Then you will be released, I would understand from the cells here.  So, have you got an instructor here, Mr Nikolovski?  Do you have an instructing solicitor here or not?

35MR NIKOLOVSKI:  No.  No, Your Honour.  No.

36HIS HONOUR:  Well, someone has got to make sure that he leaves, that he does so heading to the right places.

37MR NIKOLOVSKI:  Yes.  I will go down and see him.

38HIS HONOUR:  Thank you, Mr Nikolovski.

39MR NIKOLOVSKI:  As Your Honour pleases.

40HIS HONOUR:  Thank you.  You are removed, thank you for your assistance.  Head downstairs.

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