Director of Public Prosecutions v Sultana

[2019] VCC 1184

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

AT MELBOURNE
CRIMINAL JURISDICTION

AP 17-1989

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENDAN SULTANA

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2019
DATE OF SENTENCE:	29 July 2019
CASE MAY BE CITED AS:	DPP v Sultana
MEDIUM NEUTRAL CITATION:	[2019] VCC 1184

REASONS FOR SENTENCE
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Subject:         CRIMINAL LAW
Catchwords:  Sentence – Contravention of Community Corrections Order

Sentence:Contravention charge proven – fined $300.00 with a 6 months stay of payment – Re-sentenced on original 3 charges (all Drive whilst authorisation suspended) – Further Community Corrections Order imposed including conditions of supervision, unpaid community work, assessment and treatment for drug and alcohol abuse and unpaid community work

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Buchhorn	Solicitor for Public Prosecutions
For the Accused	Ms H. Whalley	Michael Gleeson & Associates

HER HONOUR:

1Brendan Sultana, I gave you an opportunity to stay out of gaol by undertaking a community corrections order, when you appealed to this court.  However, you failed to comply with that order both by way of re-offending and by not observing all of the requirements of the order.

2The re-offending has since been dealt with and you were sentenced to 37 days' imprisonment being time served.  This was your first term of immediate imprisonment and I was told that it was a salutary experience.

3I understand that upon your release from gaol, you were homeless for a short while before turning to your parents, who have now taken you in, and so you have the very protective factor of stable accommodation working in your favour.

4The community corrections order that I previously imposed has now expired and it was the agreed position of the parties that you ought be re-sentenced in respect of the matters for which that order was imposed.  In
re-sentencing you, I have taken into account the degree to which you complied with the order which was rather impressive in some ways-in particular, you did rather well in respect of the treatment and rehabilitation aspects of the order, although you failed to comply with two testing requirements in February 2018, which is of concern.

5Further, allowing for the successful completion of a number of hours in respect of the rehabilitation and treatment conditions, you had 57 or so hours outstanding of the 100 hours that I ordered.  You had five absences from supervision and six absences in respect of the treatment conditions.

6It is unclear as to whether your subsequent offending involved alcohol use but some cannabis was found in your possession, so it may well be that substances including alcohol are still an issue for you, although I am told by you through your counsel that they are not.  In any event, despite making some progress on the community corrections order in some ways, your re-offending indicates that the progress was not enough to stop you from re-offending.

7However, I spoke with the community corrections officer who was case managing you.  He said that notwithstanding your subsequent offending, she would have had you continue on the community correction order if you had been able to.

8You have a qualification in respect of pressure hoses and the like and you previously ran your own business.  Your expertise in this area may well stand you in good stead with further employment.  I do hope that it does, but you must also pay a penalty in respect of the offending, which was the subject of the community correction order before me and the breaching offence as well.

9I had you assessed for yet another community correction order and you were deemed suitable although the author of the report had some reservations.  I must say that some of the things that you said in the course of that assessment give me some cause for concern as you still seem to lack full insight into your offending in the past.

10If you fail to develop full insight into your own behaviour and taking responsibility for it, there is a real danger that you will be returning to gaol for ever increasing periods.  Do you understand that?  So, you need to get with the program and be open to positive change in your life.

11Could you please stand up?

12I cancel the community correction order that I previously imposed and in respect of the offence of breaching the community correction order, I find the offence proven and you are convicted and fined $300.  I will give you six months to pay the fine.  I have taken into account your poor financial position but I have also borne in mind that you are living at home now and it is not appropriate to simply make no order in respect of your breaching the community correction order that I imposed, especially in view of your criminal history and track record with community corrections orders.

13In relation to the offences of drive whilst authorisation was suspended, three charges, and exceed prescribed concentration of alcohol, I set aside the previous community correction order that I imposed but I propose to convict you and re-sentence you to a community correction order, having taken into account the degree to which you complied with the previous order.

14I intend to place you onto a further community corrections order but I can only do this with your consent so you must listen carefully to the order that I propose:

15The community correction order would run for a period of one year.

16The conditions of the order would be as follows:

17The mandatory terms that apply to all community correction orders, which are:

18You must not commit another offence for which you could be imprisoned during the time that the order is in force;

19You must comply with any obligation or requirement prescribed by
Regulation 17 of the Sentencing Regulations 2011;

20You must report to, and receive visits from, the Secretary to the Department of Justice or his or her delegate;

21You must report to the Coolaroo Community Corrections Centre before 4 pm this Wednesday 31 July 2019.  If I were you, I would go tomorrow.

22You must let a community corrections officer know within two clear working days of you changing your address or job;

23You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate;

24You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.

25There will also be conditions in addition to the mandatory ones and they are:

26Community Work

27You must undergo 58 hours of unpaid community work within the next
12 months.

28Supervision

29Secondly, you must be under the supervision of a community corrections officer for the next 12 months.

30Treatment and Rehabilitation

31The third condition is that you must undergo assessment and treatment including testing for drug and alcohol abuse or dependency as directed by the regional manager.

32Up to 27 hours of the unpaid community work condition may be satisfied by the successful completion of the equivalent period of the treatment and rehabilitation condition.

33Do you consent to the terms and conditions of the order?

34OFFENDER:  Yes I do, Your Honour.

35HER HONOUR:  Now, I should tell you that if you do not comply with all of the requirements of this order then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to gaol.  I would regard a breach of the community correction order as a most serious matter, especially in your case given your history, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

36Do you understand this?  Do you still consent to the order?

37Therefore in relation to the charges, you are convicted and sentenced to a community correction order in the terms and conditions that I have just set out.

38I will ask your counsel to assist you with the signing of the order.  Take a seat please.

39Yes, I have signed that order.  Ms Whalley, please impress upon your client how close he came to going to gaol and if he mucks up again, that is probably what is going to happen.

40MS WHALLEY:  Certainly will do, Your Honour.

41HER HONOUR:  All right?  There is, in all likelihood, no more chances for him.  All right, is there anything further?

42COUNSEL:  No, Your Honour.

43HER HONOUR:  All right, thank you for that.

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