Director of Public Prosecutions v Swanson
[2020] VCC 2073
•17 December 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 19-01478
CR 19-01479
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN SWANSON |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 December 2020 | |
DATE OF SENTENCE: | 17 December 2020 | |
CASE MAY BE CITED AS: | DPP v Swanson | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2073 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991;
Cases Cited: Carter v R [2020] VSCA 156; R v Verdins (2007) 16 VR 259
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A. Malik | Valos Black and Associates |
HIS HONOUR:
Introduction
1 Benjamin Swanson, you have pleaded guilty to an indictment containing eight charges: three charges of common law assault, which carries a maximum penalty of 5 years' imprisonment; four charges of persistent contravention of a family violence intervention order, which carries a maximum penalty of 5 years' imprisonment; and one charge of attempting to pervert the course of justice, which carries a maximum penalty of 25 years' imprisonment.
2 You have also admitted your criminal record.
Circumstances of Offending
3 The circumstances of your offending were set out in the amended prosecution outline on plea dated 15 December 2020. That document sets out the factual basis for the offending upon which you will be sentenced.
4 Your offending can be briefly summarised.
5 Your victim in this matter is Kimberly Sullivan[1], who was 23 years old at the time of your offending against her. You were then aged 36 and had been in an on‑and-off relationship for approximately two years before the offending.
[1] A pseudonym.
6 On 22 March 2018 you were released from prison, having served a sentence of imprisonment imposed in July the previous year for charges which included persistent contravention of a family violence intervention order in relation to a previous partner. Later that day you were involved in an incident at the home of Ms Sullivan, which resulted in a family violence safety notice being served on you on 23 March 2018. That family violence safety notice was varied on 28 March 2018 to allow contact between you and Ms Sullivan as long as you were not drug or alcohol affected.
7 A few days later on 1 April 2018, you and Ms Sullivan were staying at a Coburg motel. Following an argument between you in relation to you gaining access to a password to Ms Sullivan's computer, Ms Sullivan snapped her laptop in half. You then picked her up by the throat and threw her against a brick wall, causing pain to her elbow. You then picked her up by the throat again and threw her across to the other side of the room onto the bed and slapped her on the buttocks. Your conduct in this regard forms the basis of Charge 1 on the indictment, common law assault.
8 On 1 May 2018, you and Ms Sullivan were staying at an Airbnb property in Seaford. You sent Ms Sullivan out to get drugs. Upon her return, you became angry due to the time she had been gone and her failure to get the drugs. You pulled her hair, grabbing her by the throat, and threw her. Your conduct in this regard forms the basis of Charge 2 on the indictment, common law assault.
9 As a result of domestic violence allegations made by Ms Sullivan to police, an interim family violence order was made and served on you on 30 May 2018. That order prohibited family violence abuse, including physical, sexual, emotional abuse, threatening and coercive conduct, and any conduct that in any way controls or dominates a family member and causes the family member to fear for their safety or well-being. The order also prohibited any contact or communication with Ms Sullivan by any means. Accordingly, as of 30 May 2018 not only could you not commit family violence on Ms Sullivan, you were prohibited from making contact with her.
10 On or about 31 May 2018, immediately after being served with the interim family violence order, you sent Ms Sullivan six individual text messages conveying your desire to re-establish a relationship with her. In addition, between 31 May 2018 and 27 June 2018, you continued making contact with Ms Sullivan by sending MMS messages, voice messages and making phone calls to her. Your conduct in this regard forms the basis of Charge 3 on the indictment, persistent contravention of a family violence intervention order.
11 Over the weekend of 3 June 2018, you stayed with Ms Sullivan at an address in Mornington for two nights. On the Sunday morning you became angry with Ms Sullivan leaving a door open and pushed her. Your conduct in this regard forms the basis of Charge 4 on the indictment, common law assault.
12 You were remanded in custody on 19 June 2018. Between 29 June and 27 July 2018 you used the prison phone calling system to continually contact or attempt to contact Ms Sullivan in breach of the interim family violence order. Ms Sullivan spoke with you because she was scared. You made contacts, including purportedly contacting Ebony Sullivan[2], who is the sister of your victim, or Danielle[3], her sister-in-law. Your conduct in this regard forms the basis of Charge 5 on the indictment, persistent contravention of a family violence intervention order.
[2] A pseudonym.
[3] A pseudonym.
13 Between 27 June 2018 and 30 July 2018, you called Ms Sullivan from prison, and again Ms Sullivan spoke with you because she was scared. In the course of 35 phone calls during this period, you attempted to have Ms Sullivan go to the prosecution to tell them that the offending did not take place and to have the intervention order varied. You told Ms Sullivan to make a statement withdrawing the allegations, that would allow the charges to be resolved and/or allow you to make a bail application. You made these contacts and demands in an attempt to pervert the course of justice. Your conduct in this regard forms the basis of Charge 6 on the indictment, attempting to pervert the course of justice.
14 Between 25 November and 22 December 2018 you continued to make contact with Ms Sullivan in breach of the intervention order, by telephoning Ms Sullivan in the same manner to which I have earlier described. During this period - pardon me, I am just checking something. This is Charge 7, Mr Devlin, it's 33 times. Is that correct, down from 38?
15 MR DEVLIN: Yes, Your Honour.
16 HIS HONOUR: Yes. I will start that paragraph again.
17 Between 25 November and 22 December 2018 you continued to make contact with Ms Sullivan in breach of the intervention order, by telephoning Ms Sullivan in the same manner to which I have earlier described. During this period you contacted or attempted to contact Ms Sullivan approximately 33 times from prison. Your conduct in this regard forms the basis of Charge 7 on the indictment, persistent contravention of a family violence intervention order.
18 During 24 December 2018 and 18 January 2019 you engaged in similar behaviour by contacting or attempting to contact Ms Sullivan approximately 46 times from prison, purporting to speak with Danielle. Your conduct in contacting or attempting to make contact with Ms Sullivan in contravention of the intervention order forms the basis of Charge 8 on the indictment, persistent contravention of a family violence intervention order.
19 When later interviewed by police, you denied assaulting Ms Sullivan, and admitted being served with the full intervention order on 30 May 2018.
Impact on Victim
20 Your victim in this matter, Kimberly Sullivan, provided a victim impact statement dated 14 December 2020. In that statement, Ms Sullivan describes the emotional, physical, financial and social impacts of your offending on her. She describes feelings of anxiety when leaving the house even now, due to her fear of seeing you. She describes having nightmares almost on a daily basis and being constantly scared. She describes having to have security around her house and being scared for her life. Ms Sullivan refers to time spent in psychiatric wards due to the trauma and she describes her psychiatric treatment as still ongoing. Ms Sullivan also described that her mental state has not allowed her to work as she struggles to leave her home. Ms Sullivan concludes:
'I still struggle on a day-to-day basis to carry out the daily activities of what I used to be able to do as I'm scared I'm not doing it right and I now struggle talking to [others] and leaving the house at all, my anxiety and depression has worsened since Ben's been [released] and feel unsafe due to his capabilities. I just want to be able to move on in my life and try to live a normal life, but this is hard knowing he is back on the streets.'[4]
[4]Kimberly Sullivan, Victim Impact Statement (14 December 2020)
21 Victim impact statements are an important means through which victims of crime can meaningfully participate in the sentencing process by informing the court of the often long-lasting and catastrophic impacts of offending upon them.
22 In formulating an appropriate sentence in your case, I have taken into consideration as one of the relevant sentencing factors the impact of your offending on your victim, Ms Sullivan.
Procedural Chronology
23 As I have stated, you were remanded in custody in relation to these matters on 19 June 2018. As reflected in the indictment, your last contact with Ms Sullivan from prison was on 18 January 2019, 23 months ago. No doubt, due to the gravity of your conduct together with your substantial and concerning criminal history, you remained in custody for some time in relation to these matters.
24 A committal hearing listed on 2 April 2019 was adjourned due to the police informant's illness. The committal hearing subsequently commenced on 25 June 2019 but could not be completed as the police records of interview involving you had not yet been transcribed. The committal was finally completed on 23 July 2019 and you were committed to stand trial.
25 On 24 July 2019 at an initial directions hearing in this court a trial was set down for 20 July 2020. That trial, and indeed the movement of your matter through the criminal justice process in this court, was impacted by the COVID‑19 pandemic, which has caused significant delays and disruptions to the disposition of trials in Victoria.
26 On 20 August 2020 you were bailed by me with stringent conditions, having spent 733 days in custody on remand for these matters. The matter then proceeded through the emergency case management protocol. Following resolution discussions, which resulted in a decision by the prosecution not to proceed with two charges of recklessly cause injury and one charge of false imprisonment, the matter proceeded before me as a sentence indication hearing on 8 October 2020. You were subsequently arraigned and pleaded guilty to the charges on the revised indictment on 30 October 2020, where the matter was adjourned to today's date and I ordered an extended pre-sentence report in relation to your suitability for a community correction order.
Personal Circumstances
27 A detailed account of your personal history was contained in the report of psychologist Sandra Cokorilo, dated 9 August 2020[5].
[5]Ms Sandra Cokorilo, Confidential Psychological Report (9 August 2020)
28 You are now 38 years of age. You were born in Frankston. Your mother raised you in Frankston with one younger brother, Matthew, after your parents separated when you were aged two. Your mother worked as a personal assistant to the director of nursing. You maintained contact with your biological father after the separation of your parents. When you were aged 10 your mother repartnered with your stepfather, who had previously worked as a police officer. You have described a positive and stable childhood with no exposure to family violence or any trauma.
29 You lived with your mother until about the age of 18, when you moved out with a partner with whom you shared a home for the next six years. Other than a period of some two or three years in Darwin between 2010 and 2013, you appear to have resided in Victoria.
30 In terms of your education, you completed Year 10 at Frankston Secondary College. You then attended a spray painting apprenticeship followed by some work as a car salesman in Darwin. You have also worked as a wheel suspension specialist, a warehouse stock manager, in an abattoir and you have had your own business as a spray painter. You therefore have, I accept, a good work history.
31 You have reported being diagnosed with bipolar disorder in 2013, at the age of 28, and subsequently prescribed Seroquel, an antipsychotic, as well as an antidepressant. You have also reported being previously diagnosed with depression around the period of 2010 following a relationship breakup.
32 You have had four significant relationships in your lifetime and you have reported that family violence has occurred in relation to three of them. You have two sons to your second partner, Victoria: Mitchell, now aged 13; and Boyd, now aged 12. You have a five-year-old daughter, Olivia, from your third relationship with Jasmine. Your fourth significant relationship was with the victim in this matter, Ms Sullivan, which commenced in the middle of 2016.
33 In terms of alcohol and drug-related issues, you have reported to the author of an extended pre-sentence report from Corrections Victoria that illicit drugs became a concern for you following an accident in November 2017, where Ms Sullivan accidentally reversed a car, crushing you between the car and a trailer, resulting in broken ribs and a shattered pelvis and your subsequent treatment at the Alfred Hospital. You have reported that this accident was traumatic for you, causing severe physical and mental health impacts. You were apparently in a wheelchair for approximately three months. You have acknowledged self-medicating with cannabis and methylamphetamine and that your ice use became a daily habit following the accident. Indeed, you have informed Corrections that you were under the influence of illicit drugs throughout the majority of the offending for which you now fall to be sentenced.
34 You have a concerning criminal record dating back to August 2001 when you were aged 19. You have multiple prior convictions for driving matters, dishonesty matters and, of relevance to this matter, family violence and previous breaches of supervisory orders. According to the extended pre-sentence report, you have previously received six community-based dispositions and all but one have been contravened due to further family violence offending. Clearly previous penalties which have included sentences of imprisonment have not deterred you from reoffending in a similar manner. As I earlier indicated, concerningly, your current offending commenced just a matter of days after your release from your last sentence of imprisonment.
35 In terms of your explanation for the current offending, you informed psychologist, Ms Cokorilo, that upon your release from prison you found yourself homeless, unemployed, suffering a major depressive episode and post-traumatic stress disorder in relation to the impacts of the car accident in November 2017. You were depressed, angry, feeling worthless, helpless and hopeless. You suffered chronic pain with reduced mobility and feared that you may not be able to walk independently again. In that context you began to self-medicate with cannabis and methamphetamine. You have reported that your interactions with Ms Sullivan became more challenging as you both struggled to cope with deterioration in mental health following the trauma, your mutual homelessness and drug abuse.[6]
[6]Ms Sandra Cokorilo, Confidential Psychological Report (9 August 2020), paragraph 66
Sentencing Factors
36 Pursuant to the Sentencing Act 1991, I am required to have regard to various sentencing factors when formulating an appropriate sentence in your case. I have already referred to the maximum penalties for your offences and the impact of your offending on Ms Sullivan.
Nature and Gravity of Offending
37 The gravity of your offending is of course reflected in the maximum penalties applicable in relation to each of the offences, particularly the charge of attempting to pervert the course of justice. I regard your offending collectively to represent serious and concerning examples of family violence. Your conduct in relation to Ms Sullivan was deliberate, sustained and exhibited many of the hallmark features of family violence, as you clearly demonstrated your willingness to behave in a menacing, threatening, controlling and ultimately violent manner.
38 The existence of a court order prohibiting any contact with Ms Sullivan clearly had no impact whatsoever upon you. You flagrantly disregarded this court order in a sustained, determined and serious manner. It appears that your persistence in maintaining your contact with Ms Sullivan could not even be deterred through your detention in custody, as you continued to breach a court order in this environment.
39 Of course, the most serious conduct in which you engaged is that captured by the serious offence of attempting to pervert the course of justice, which carries a maximum penalty of 25 years' imprisonment. Through your admitted conduct, you illegally sought to persuade Ms Sullivan to falsely withdraw her serious allegations of family violence against you. Such conduct strikes at the very heart of the administration of justice and must be viewed seriously and denounced properly (Carter v R[7]).
[7]Carter v R[7] [2020] VSCA 156, paragraph 70
40 Family violence is often described as the scourge of society. You have an extensive criminal history for such conduct and, as I have stated, previous dispositions have not deterred you in the past. Any penalty imposed by me must reflect the sentencing purposes of denunciation of your serious offending, together with general deterrence, specific deterrence and community protection.
Your Level of Responsibility and Moral Culpability
41 Your substantial criminal history for similar offending elevates your degree of responsibility and culpability for the offending to which you have now pleaded guilty.
42 In her psychological report, Ms Cokorilo[8] outlines her opinions in relation to the impacts of your pre-existing bipolar disorder, your post-traumatic stress disorder following the car accident in 2017 and your admitted self-medication with methamphetamine during the offending period and your offending behaviour. She refers to the disinhibition associated with your bipolar disorder, together with the impulsiveness associated with the disorder and the emotional dysregulation associated with your post-traumatic stress disorder, together with the heightened risk of engaging in impulsive and reckless behaviour whilst affected by drugs.
[8]Ms Sandra Cokorilo, Confidential Psychological Report (9 August 2020), paragraphs 95-103
43 Ms Cokorilo concludes:
'It appears that there are a number of factors outlined above which are causally linked to Mr Swanson's behaviour and impaired functioning at the time of the offending. Whilst his methamphetamine use may have contributed to the offending, his deteriorated mental health, psychosocial adversity and lack of appropriate support also played a significant underlying role in the incidents and in his self-medicating. There does not appear to be evidence of a criminal belief system; Mr Swanson's actions are more a reflection of his untreated psychological symptoms, distress, and self-medication with methamphetamine.”[9]
[9]Ibid paragraph 103
44 In all the circumstances, whilst the opinions of Ms Cokorilo provide a degree of context and explanation for your conduct they in no way excuse your behaviour. Furthermore, I do not regard the opinions of Ms Cokorilo to provide any basis for any reduction in your moral culpability on the basis of the well-known mental impairment principles.[10] Your conduct, which is consistent with your criminal history, took place over a sustained period of time. You had ample time, in my view, for reflection and cessation therefore of your offending behaviour. In these circumstances, your level of culpability remains significant, in my view, for the offending.
[10]R v Verdins (2007) 16 VR 259
Plea of Guilty
45 As is your right, you participated in a contested committal hearing in the Magistrates' Court, where your victim, Ms Sullivan, was cross-examined on 25 June 2019. This matter subsequently resolved to a plea of guilty in relation to charges which were reduced from those initially contained in the trial indictment, as I have previously outlined. You were arraigned and pleaded guilty to those charges on 30 October 2020, following this matter being accepted into the emergency case management protocol in September 2020. Your resolution of this matter, therefore, took place within the context of the COVID-19 pandemic.
46 As the authorities have made clear, a significant discount on sentencing for utilitarian reasons is warranted due to your plea of guilty in these circumstances. Your plea of guilty has saved your victim the ordeal of being cross-examined at trial and, in circumstances where there are considerable delays with regard to criminal trials in Victoria, your plea of guilty has an increased benefit, as the court and community has been spared the delays and costs associated with a criminal trial.
47 Whilst your plea of guilty could not be categorised as an early plea, nevertheless it followed a reduction in the charges brought against you and, in these circumstances overall, a substantial discount is warranted by virtue of your plea of guilty.
48 Whilst it is often submitted that a plea of guilty is consistent with remorse, in the circumstances of your case I am unable to make a positive finding in that regard, particularly having considered the contents of the extended pre-sentence assessment report dated 1 December 2020 from the Department of Justice and Community Safety. In summary, whilst you appear to have accepted responsibility for some of your behaviour, your concerning attitudes in relation to Ms Sullivan appear to remain. In these circumstances, I am unable to afford you a further sentencing discount on the basis of remorse.
Period in Custody
49 As I have already indicated, you spent a very considerable period in custody on remand prior to being bailed, a period of 733 days. Given the physical and psychological impacts upon you of the motor vehicle accident in November 2017, I am satisfied that this period would have been arduous for you given you physical and psychological ailments. As I have previously outlined, there were delays associated with this matter which appear to have been due to the prosecution.[11]
[11]Illness of informant at first listing of committal hearing on 2 April 2019, and records of interview not being transcribed at second listing of committal hearing on 25 June 2019
50 I accept that you have spent a considerable time in custody in difficult circumstances, including from March this year until your bail application in August, in the COVID-19 pandemic. As is often stated, the COVID-19 pandemic has made time in custody particularly onerous, given the cessation of all personal visits, ongoing lockdowns and severe restrictions on work and therapeutic programs. In addition, all prisoners have had to live with the anxiety associated with the likely consequences of COVID-19 entering the prison system. In all the circumstances, a mitigatory allowance is warranted in these circumstances.
Progress Since Bail – Prospects of Rehabilitation
51 Having considered all of the relevant material that has now been tendered and recent submissions made I am satisfied that you have been compliant with strict bail conditions since August and those conditions have included a nightly curfew and provision of material in relation to drug abstinence to the police informant. I am satisfied that you have been abstinent from illicit drugs since being granted bail and in the context of your history this is a matter which stands to your credit.
52 You have been residing with your father, who gave evidence before me during your bail application and who I note is present in court today, thus evidencing the ongoing support he has for you.
53 I am satisfied globally that you have conscientiously sought to engage with therapeutic-based programs and activities, notwithstanding the obvious logistical challenges associated with COVID-19 and the lockdown that occurred in Melbourne, obviously restricting the ability to engage in such pursuits. I will not now rehearse the matters set out in the table at paragraph 3 of the defence outline of submissions. Suffice to say that I have considered each of the supporting documents that have now been tendered at your plea hearing and I am satisfied that you have been doing your best to engage in treatment and assistance in relation to mainly your drug problem. But also you have made some inroads in relation to obtaining appropriate mental health referrals and access to specialist services in relation to family violence.
54 An assessment re your prospects of rehabilitation is, I must say, complicated. You have a significant and relevant criminal history. You clearly have ongoing insight issues as demonstrated through the extended pre-sentence report, which do you no credit. I accept that you have had no contact with your victim for almost two years and you have made positive progress since being bailed in August in very challenging circumstances. In all the circumstances I consider your prospects of rehabilitation to be somewhat guarded and dependent very much on specialist interventions.
Extended Pre-sentence Report
55 As I indicated, I ordered extended pre-sentence report in relation to your suitability for a community correction order. I will not now again repeat the aspects of the report that have given me concern, save to say that the report is littered with problematic articulations by you which clearly demonstrate your insight problems and the rather urgent need for specialist interventions.
56 Ultimately that report found you unsuitable for a further community correction order at the time. Of course that is not the end of the matter and I, pursuant to the Sentencing Act 1991, have other matters to consider. And for the reasons that I have previously indicated in discussion with the parties, it is my intention to impose a combined sentence of imprisonment with a community correction order.
57 The author of the report, Brianna Goddard, was a participant in today's plea hearing and was able to clarify with me what would be involved in terms of recommended conditions and specialist interventions in relation to a community correction order. Those clarifications have been helpful in assisting me in formulating an appropriate sentence in your case.
Sentence
58 In all the circumstances, I am of the view that your offending warrants a term of imprisonment coupled with a community correction order, your considerable time having been spent to date means that there is no need for you to return to prison. I am satisfied that all of the respective sentencing factors and principles can be met through an appropriately tailored combination sentence. Ultimately in my view the protection of the community in this case is best met through you being appropriately rehabilitated and importantly through specialist intervention enabling you to take responsibility for your offending behaviour. Put simply, people with whom you conduct an intimate relationship have the right to personal autonomy, to be treated with dignity and respect. Your shameful behaviour towards Ms Sullivan must not be repeated, otherwise you will find that your liberty will be jeopardised with ever increasing sentences of imprisonment being the inevitable consequence.
59 Mr Swanson, would you please stand.
60 On Charges 1,2 and 4, these being offences of a similar character, the common law assault charges, you are convicted and sentenced to an aggregate sentence of 9 months' imprisonment.
61 On Charges 3,5,7 and 8, those being the persistent breach of family violence intervention order charges, these being offences of a similar character, you are convicted and sentenced to 15 months' imprisonment. Those two sentences are aggregate sentences. They are to be served concurrently with each other and with the sentence I am about to impose in relation to Charge 6.
62 On Charge 6 on the indictment, attempt to pervert the course of justice, you are convicted and sentenced to 23 months' imprisonment. Pursuant to s.18 of the Sentencing Act 1991 I declare a period of 23 months has been served by way of pre-sentence detention and that is to be deducted from the sentence of imprisonment. To be clear it is my intention therefore that you do not need to serve any further period of imprisonment. In addition to the sentence of imprisonment in relation to Charge 6 I order that you undergo and complete a 2 year community correction order with a number of additional conditions.
63 Those conditions will be that you be appropriately supervised. There will be a condition in relation to drug abuse and dependency which will require you to submit to drug testing, assessment and treatment as required. There will be a separate condition relating to alcohol. That is alcohol testing assessment and treatment as required. There will be a mental health assessment and treatment condition. There will also be a condition in relation to your participation in offence-specific programs. It is my intention that such programs, for obvious reasons, will focus upon family violence and behavioural change on your part.
64 I will also impose a condition in relation to judicial monitoring that will require you to attend before me for the purposes of monitoring your progress on the order. Your first appearance before me will be in three months' time. A date will be provided in a few moments.
65 In relation to the orders that I have imposed, I acknowledge that you have served 733 days in prison in relation to these matters. Due to the particular provisions of the Sentencing Act 1991, I have only declared 23 months by way of pre-sentence detention. I acknowledge that that does not incorporate the entirety of the 733 days. Should there be any need in the future for you to be resentenced those days can be counted at an appropriate time.
66 I also want to make clear that again because of the provisions of the Sentencing Act 1991 I have imposed aggregate sentences and concurrency to facilitate your commencement and ongoing participation immediately in relation to a community correction order. The fact that the sentences are concurrent is not to be taken in any way as diluting from the gravity of your conduct and the separate criminality involved in relation to the three different types of charges.
67 Pursuant to s. 6AAA of the Sentencing Act 1991 I declare that had you pleaded not guilty but been found guilty I would have imposed total effective sentence 5 years' imprisonment with a non-parole period of 3 years and 6 months.
68 Mr Devlin, there are no ancillary orders sought?
69 MR DEVLIN: No, Your Honour. As Your Honour pleases.
70 HIS HONOUR: Yes. Take a seat for a moment, Mr Swanson. Yes, the judicial monitoring date will be Wednesday, 17 March at 9.30 am. Just whilst the documentation is printing, Mr Devlin, any issues with regards to the sentences, any ambiguities or have I missed anything?
71 MR DEVLIN: No. The only matter I raise, and it might be my hearing, Your Honour, you certainly at the end indicated quite properly that the bail commenced on 20 August 2020.
72 HIS HONOUR: Yes.
73 MR DEVLIN: I think there was one date earlier where you may have said another date, but it may have been my hearing.
74 HIS HONOUR: Yes. He was bailed on 20 August.
75 MR DEVLIN: Yes, Your Honour.
76 HIS HONOUR: Yes, thank you. Mr Malik, any issues?
77 MR MALIK: No, thank you, Your Honour.
78 HIS HONOUR: Thank you. Sorry, there's just an issue with our printer. I might temporarily stand down so that I can check the document when it prints. I'll be back in a matter of minutes.
(Short adjournment.)
79 HIS HONOUR: Mr Swanson, can you please stand. Sorry about that, everyone, it was the mother of all glitches, but anyway the document has been printed happily. All right, thanks. Mr Swanson, can you please stand.
80 In order for me to impose a community correction order on you, you need to consent to that order and you will reflect that consent shortly by signing the document. Before you do so, I need to make sure that you understand what is involved in this order and what can happen if you breach the order. In other words you are going to give me informed consent.
81 So the CCO as I explained some time ago now will run for 2 years from today. There are mandatory conditions that apply to all CCOs and I am going to read them to you. In short compass you must not commit any other offence punishable by jail during the period of the CCO. You have to comply with any obligations or requirements, you must report to and receive visits from Corrections, you just report to the local community corrections centre within two clear working days of the order starting. I would strongly suggest you do that tomorrow, but you have two working days from today. It is Frankston Community Correctional Services, the address is on this document.
82 You have to let a community corrections officer know within two clear working days if you change your job or your address. You must not leave Victoria without first getting permission to do so. You have to obey all lawful instructions and directions.
83 In addition to those, the conditions that I have attached to your order are as follows. You must be under the supervision of a community corrections officer for a period of 24 months. That means regular appointments with someone from Corrections. You must undergo assessment and treatment, including testing for drug abuse or dependency as directed. You must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed. You must undergo any mental health assessment and treatment; that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed.
84 You must participate in programs and/or courses that address factors relating to the offending as directed. And finally, you must reappear at court for a review of your compliance with the order on 17 March next year at 9.30 am before me. Do you understand those conditions?
85 OFFENDER: Yes, Your Honour.
86 HIS HONOUR: If you breach the order by either not following those conditions, so you don't turn up to appointments, basically say, 'Look, I'm not doing what you require of me', in terms of alcohol, drugs, mental health, offending behaviour, if you don't turn up to judicial monitoring or if you commit an offence punishable by jail you'll be in breach of this order. If you are in breach of the order you'll be brought back before me.
87 On a breach hearing I can fine you and/or send you to jail in relation to the breaching offence, but also I can resentence you. Now, I want you to be very clear: I have given you a sentence which enables you to stay out and carry on with your life, get a job, get rehabilitated, attend to these programs and move on with your life. If you come back on a breach before me I can resentence you. The attempt to pervert charge has a maximum penalty of 25 years. Do you understand?
88 OFFENDER: Yes, Your Honour.
89 HIS HONOUR: There will be likely significant consequences, so I'll be watching closely. You'll be back before me in March. I sincerely hope I get a positive report. If I don't, consequences could flow.
90 OFFENDER: Yes, Your Honour.
91 HIS HONOUR: Knowing all of that, do you agree to comply with this order?
92 OFFENDER: Yes, Your Honour.
93 HIS HONOUR: I don't want to hear in the future that you didn't quite understand it, there was a condition which you didn't get but you said yes anyway. Now is your time if you have any questions. Ask them now.
94 OFFENDER: No, you've made it very clear.
95 HIS HONOUR: All right. The document will come down to you for signing. You can take a seat for a moment, Mr Swanson. There are COVID-19 protocols which mean that this is a bit involved, but it will happen in a minute or two. Yes, you'll get a copy, or I hope you'll get a copy of that before you leave. Thanks.
96 All right, Mr Swanson, I'm not going to say anything else to you. Please comply with the order. Do you understand?
97 OFFENDER: Yes, Your Honour.
98 HIS HONOUR: Yes, all right. That completes the matters, Mr Swindon.
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