Director of Public Prosecutions v Tang
[2017] VCC 1478
•11 October 2017
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-01073
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID TANG |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 October 2017 |
| DATE OF SENTENCE: | 11 October 2017 |
| CASE MAY BE CITED AS: | DPP v TANG |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1478 |
REASONS FOR SENTENCE
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Subject:OFABD x 8; total of approximately $130,000, all repaid, early plea, no relevant prior history, long delay
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Howard | Office of Public Prosecutions |
| For the Offender | Mr R. Gipp | JK Legal |
HIS HONOUR:
1David Tang, yesterday you pleaded guilty to eight charges of obtain financial advantage by deception. You have no relevant prior convictions or appearances and no offences have been committed subsequently. The offences on this indictment relate to dishonest conduct committed by you in your prolonged rorting of the multi-purpose taxi program scheme. Your dishonest conduct spanned over two and a half years, but ended way back in May 2012. The charges each roll up a variety of individual dishonest acts with over 4,400 such acts. The maximum penalty for each charge is ten years' imprisonment.
2This matter was opened to me yesterday by Mr Roper, who at that stage, appeared on behalf of the Director of Public Prosecutions. He opened the matter to me in accordance with a quite detailed eight page written opening, dated 6 October 2017. That opening was tendered on the plea and was marked as Exhibit A. Your counsel, Mr Gipp, told me that this was an agreed statement of facts. It is then, in my judgment at least, unnecessary to repeat now in my sentencing reasons the full factual basis of sentencing. Exhibit A will remain available for inspection on the court file and I will not stray beyond those agreed facts.
3As I have said already, this was a quite systematic rorting of this scheme by you, a scheme which you were entrusted to operate honestly. You were the taxi operator. It was a scheme which was Government funded and in existence to entitle persons with severe and permanent disabilities to receive discounted taxi fares. Very many of those who benefited from the discounts at play would, owing to their various intellectual disabilities, have had no real sense of your dishonest conduct at all. Even those with intact cognitive abilities would have had no understanding of the ins and outs of the particular scheme.
4The scheme relied upon taxi drivers, such as you, acting honestly and you acted extremely dishonestly, misusing the members’ cards or misrepresenting the services or overcharging for them. You used the members cards' as a means to make money and you came unstuck, owing, I imagine, to the extravagance of your claims and a reconciliation and investigation that was then conducted. Also there was evidence available from the monitoring of the GPS, which detailed the cabs' location from time to time. It was obviously a complex investigation. There were transactions occurring when the client was absent, or after they had been taken to their care placement, or outside the hours of the placement centre, or even when it was closed, or prior to their collection.
5The summary itself sets out the particulars of each of these eight charges. There were thousands of dishonest transactions over the period where you drove the vehicles. The money obtained by way of financial advantage, went into a family trust, of which you were a beneficiary, but there is no suggestion of any great enrichment by you. Not at all. Nor, for that matter, is there any suggestion at all that you parents were in any way involved in this scheme or had any knowledge of it at all. They were not and they would have been horrified, I imagine, when your conduct was ultimately unmasked. You, in fact, I am told, had been paid a quite modest wage in the relevant timeframe.
6You confessed your dishonesty to carers on the morning of 29 May 2012, but it is very hard to avoid the conclusion that you were getting in ahead of the investigation that you suspected was afoot. The summary, which is agreed, says as much.
7Your police interview in October 2013, is of no assistance to you, as you chose to make a "no comment" interview, as was your right. You were not charged until March of this year. That is puzzling. The extraordinary delay has really not been satisfactorily explained to me, though I accept that the police had to investigate a large number of crimes, in the setting of an accused who had made no admissions upon interview. It must necessarily have been a complex investigation.
8The total advantage obtained dishonestly was a touch over $130,000 and it has been repaid, as Exhibit 3 attests.
9I am sentencing you now in October 2017 for offences which, at the latest, occurred in May 2012. That is a troubling aspect of this sentencing exercise.
Victim Impact
10No victim impact material has been filed. Indeed, though you rorted the scheme shamelessly, the financial advantage was obtained from the Taxi Services Commission. None of the disabled clients that you were ferrying around were out of pocket or inconvenienced, for instance, by your inflated or exaggerated claims, taking them to the discount cap referred to in the summary. These were clients who had unlimited discount eligibility, as I understand it.
In Mitigation
11In an excellent plea conducted on your behalf, your counsel, Mr Gipp, relied upon a number of matters in mitigation. Chiefly he relied upon:
·Your guilty plea and the early stage of that plea;
·The presence of remorse;
·Your background and past good character, as attested to by a number of character referees;
·The delay since the last offending and the absence of any further offending;
·He was arguing that you had good, if not very good, prospects of rehabilitation and a low risk of re-offence;
·He filed a report of Mr Cummins and initially asserted that some of the principles from the case you heard discussed of Verdins v R, had some very limited application here. He went on though to abandon that submission altogether in the course of the plea. Sensibly so, in my judgment.
·He accepted that the offending was serious, given its scale and duration and he conceded the aspect of breach of trust, as the offending was committed by you upon the public revenue. He argued that you could be dealt with by way of a community corrections order.
Prosecution
12Mr Roper, who as I say, appeared yesterday, made some brief submissions as to the gravity of the offending. The Crown conceded that a community corrections order was open in the exercise of my discretion. Hence, the Director of Public Prosecutions of this State was not calling for an immediate term of imprisonment in this case, for the reasons advanced on the plea.
13What you must understand, of course, is that these are just arguments or submissions from counsel. I am not bound to accept submissions made by either counsel. That much is very plain, because after all, I have to exercise my sentencing discretion. I must, as a judge, pass what I judge to be an appropriate sentence for your crimes, in all of the circumstances. Though, of course, I do not ignore any submission made to me by either party.
Background
14I will deal only very briefly with your personal background before turning to these various submissions that have been placed before me. Your personal background was referred to in the written and oral submissions of your own counsel and it was also set out in really quite some detail in the report of
Mr Cummins. I have no reason not to accept the family background that has been placed before me, I just see no utility in restating it in full now. It does not, in my view, fully explain this offending.15You are now 34 years of age, born 27 May 1983. You were born in China and you came to Australia as an eight year old, back in 1991. You have a younger sister. You were educated to the completion of Year 12, though you did not do particularly well. You passed. You certainly did not do as well as your parents' hoped you would. Nonetheless, you went on to tertiary education, but you did not compete that. You had part-time jobs and took up driving for your father, who had a number of taxi licences. You felt some obligation to assist him, but it was no part of his expectation that you would act in the dishonest way that you did. You drove for a little under three years until the offences were detected in May 2012.
16You are back living with your parents now. You always have been there, other than for the period of about a year when you had been in a de facto relationship, which ended back in 2011, I think it was.
17You took on work at a jewellers from 2012 to 2015, at which point you also opened your own jewellery consulting business, though that seems to have gone really nowhere. You now work casually for one of the people who has furnished a character reference, as an event manager.
18You have had two significant relationships with members of the opposite sex. The first of those ended traumatically for you, the second is your current relationship with a Taiwanese woman of a similar age who runs a café.
19You have had one appearance before the court and that is as far as it goes.
I could say nothing more about it, but all I say is this, the criminal record is of no relevance at all to my task and I put it aside altogether.Guilty plea
20I turn then to those matters raised on your behalf, the matters in mitigation. The first of those, of course, is your guilty plea. You have pleaded guilty and you have done that at the earliest stage. That is very important.
21I take into account the fact of your guilty plea and the early stage of that plea and I will reward you for it. You have facilitated the course of justice. Witnesses have been spared the experience of coming to this court to give evidence at trial. No committal was required in the Magistrates' Court and that is because you have accepted responsibility for your crimes. The community has been saved the time, the cost and the effort associated with a trial in this court and
a committal in the court below and but for your guilty plea, I would have imposed a more significant term upon you. This would have been a potentially lengthy and complex trial and, of course, that experience has been avoided by virtue of your plea.Remorse
22I turn now then to the issue of remorse. I have your earliest of guilty pleas and that is ordinarily, not always, but ordinarily an indication of at least some remorse. There is also mention in some of the references and in the report of Mr Cummins, to the presence of remorse. There is also some evidence of it in the way that you presented to witnesses on 29 May 2012, when you disclosed to carers some of your conduct. See the outline of argument at paragraph 10.
23You have now paid back the money in full, though you have received, obviously, assistance from your parents in that regard, following the buyback of the taxi licences.
24I certainly have no sense of your revelling in this offending. In fact, I am confident that you are ashamed of what you have done. You know that you have brought shame upon your family. I am prepared to find then the existence of remorse in this case and I do take that into account in mitigation as your counsel urges me to.
Delay
25I turn now then to the issue of delay. This had not been actually raised in the written outline, but I raised the issue of delay directly with both counsel and your counsel indicated that he was relying upon it in a mitigatory sense. In the period since these offences concluded in May 2012, you have stayed out of trouble. There have been no other offences and you have headed back into the workforce.
26There has been a very lengthy delay here and it is raised by your counsel as a matter in mitigation. What is important generally in this sort of area, is the fact of delay and its effect upon the accused, not who is responsible for it. Having said that though, I still sought to understand how there was such a delay in your even being charged with this offending. I was told that there had been a retirement amongst the investigation team of one of the lead investigators and no doubt that would put a significant dent in the progress of the matter and I do accept that it would have been a complex investigation, but that surely cannot explain the dimensions of this delay. The delay is, to my way of thinking, inordinate and it cannot be laid at your feet.
27The delay provides some real insight into your ongoing rehabilitation in the interim and it supports a conclusion as to a reduced future risk of re-offending. Your counsel also raises the delay as being something of a punishment in itself, with the matter hanging over your head since May 2012 and again since police interview in October 2013. I repeat, you were not charged until March 2017.
28Delay is a very sizeable mitigatory factor here, given the length of the delay and the lack of any apparent reason for it. These are now, for whatever reason, quite stale crimes. You have moved on with life as far as you could with this matter hanging over your head , very much like a black cloud for all these years. How would it all end for you? You could not know. You learn that only today in October 2017.
29That passage of time, a sizeable period indeed and your lack of re-offence in that period, is obviously relevant to my assessment as to your prospects of rehabilitation and the level of risk of your re-offending. It bears also upon the extent to which I emphasise the notions of punishment and specific deterrence and community protection. I accept that it would have been unsettling awaiting the conclusion of the matter, once you made those admissions in May 2012 and once you had been interviewed by the police in October 2013. You were not charged until March of this year. You could not plead earlier than a point in time where you had been charged. Once you were charged, you brought the matter to a head, really as quickly as it could be.
30Your life has then, in this way, been held, to some extent, in suspense since those timeframes. So I take into account the delay in the ways argued by your counsel. I believe it is a powerful factor in this case, setting it apart from many other cases and I will expand upon that towards the end of these reasons.
Rehabilitation
31I turn now then to your prospects of rehabilitation. What are your prospects? Well the offending is judged by all those who write references on your behalf, as being out of character and yet, of course, it was offending constituted by thousands of acts over a lengthy period. It was in that sense, and only in that sense, not out of character at all. You were rorting the system over some years to the tune of $130,000. However, that was many years ago now. You are remorseful, you have pleaded guilty at the earliest opportunity and you have remained out of trouble for many years. I cannot ignore the absence of any relevant past offending and the absence of any subsequent criminal conduct. The fact is, you are otherwise of good character and you now call in aid your past good character. So I take into account the excellent character references placed before me, but see no need to descend to the detail of them in my reasons.
32You have been arrested, interviewed, charged, awaiting sentence and now fall to be sentenced. You have made full repayment. You are ashamed of what you have done. You have been uncertain as to how this matter would play out at court. It has undoubtedly strained your relationship with your family, your father in particular. You will have to serve the sentence that I am shortly to pronounce. This whole process will surely serve to further deter you into the future. I am prepared, on the material placed before me, to find that you have very good prospects of rehabilitation and a quite low risk of re-offending in
a dishonest way in the future.Mr Cummins
33I take into account the report of Mr Cummins, but not as in any way engaging any of the principles from that case you heard discussed of Verdins v R.Mr Cummins has seen you on two occasions. He concluded that you were likely suffering from symptoms of an adjustment disorder at the time of the offending. He advanced an opinion as to the likely impact of that condition.
34Your counsel, Mr Gipp, abandoned any reliance on the case of Verdins following discussion on the plea and chose not to call Mr Cummins. Still, the report is of use to me, setting out, as it does, your background. It may very well be that you felt pressure from your father to perform, to succeed at school and at university and then maybe even the pressure to drive the taxis and succeed in that. You probably felt indebted to your family, your father in particular, as you probably were. You had seen the sacrifices that your parents had made over the years. Maybe the job was not of your choosing, but it was, after all, you who you chose to act dishonestly. There was no pressure on you to do that.
35In fact, there were many other aspects of your life which may have impacted upon your decisions to commit these crimes, including abuse of prescription drugs and cocaine and alcohol and the existence of a gambling habit. You told Mr Cummins why you did what you did, saying, "Oh well, this is a way in which I can generate a bit more income.” See paragraph 28. You told Mr Cummins you always knew that what you were doing was wrong, but you did not give much thought to the consequences.
36Having read the report, my very much provisional view expressed in the course of the plea, was that the principles from that case of Verdins had little, if any, role to play here at all. I told your counsel that this was very much a provisional view, not a concluded one, that I was in no way shutting him out from developing submissions if he chose to, or calling Mr Cummins and/or other evidence on this topic. But I did ask him to spell out which actual principles were being relied upon. Your counsel chose to abandon all of the Verdins submissions and that portion of Mr Cummins' report that dealt with those aspects.
General remarks
37I turn now to some general remarks in relation to sentencing. Sentencing, as
I am sure you will understand, involves a balancing of a number of purposes or principles. I am required to manifest this court's denunciation of your criminal conduct and I do. What you did was, as your counsel correctly describes it, serious criminal conduct. Your conduct is deserving of strong denunciation by this court. You know that. You should be ashamed of yourself. I believe you are.38You must be punished for your crimes, though I must do so justly and proportionately. I am required to consider the need to deter or dissuade you, as well as others, from committing this sort of offence in the future. I am required also to consider the protection of the community as a purpose of sentencing.
39I have to take into account your prospects of rehabilitation and your risk of
re-offence and that risk is, as I have said already, I believe, quite low. When considering the weight that should be given to specific deterrence, that is, deterring you, well I must weigh into the mix the passage of time since your offending; the absence of any relevant offending, past or subsequent; your early guilty plea; and the presence of remorse, as well as my favourable conclusions as to your prospects and my judgment as to your posing a low risk of re-offending.
40This all surely must lead to a significant moderation of the need to give weight to protection of the community or the need to deter you. I am not saying that specific deterrence is irrelevant, it is not, but it can be significantly moderated here. It has been achieved to some extent already. I do not believe the community needs to be protected from you. I believe it is unlikely that you will offend in this way again. You no longer will be able to drive a taxi, that much will be plain and nor do I believe it is likely that you will commit dishonesty offences in other aspects of your life in the future. General deterrence, on the other hand, is still a very significant purpose of sentencing in a case such as this. That is the need for this court to deter others. This court is required to send a loud and clear message to others who might be minded to commit this sort of serious dishonesty offending.
Nature and gravity
41I have to pay regard to the nature and the gravity of the particular offences charged. Your offending was serious, as your counsel correctly concedes. The level of dishonesty was high. Your culpability was quite high. This scheme existed to provide discounts to disadvantaged and vulnerable people. They were doing nothing dishonest. Many of them had significant intellectual disabilities. They, their carer’s and the system trusted you, the taxi operator. You, the operator, decided, in this instance, to rort this scheme, exploiting it virtually in every imaginable way.
42Now I accept that the amounts obtained went into the family trust, of which you were but a beneficiary, and I suppose in that way, the case can be differentiated from a setting where the offender received the direct benefit and was living the high life on ill-gotten funds. That is not the setting here and it does perhaps link back into your desire to, in some way, repay your parents for all they had done for you, or maybe to impress your father by your perceived high level of industry as a taxi driver. In that sense, not in a Verdins sense, there is some very modest reduction in your culpability, but it is not a large point. You knew from Day One the wrongfulness of your conduct, the fact that you were acting dishonestly and you persisted in it for some years.
43What you did, is you set about engaging in a systematic course of conduct directly contrary to your duties owed to the Taxi Services Commission. It was of long duration, made up of thousands of dishonest acts and netted over $130,000. There are some dishonesty offences achieving that monetary total, with but a momentary and isolated dishonest act. A single stroke of a pen on
a cheque. That is not the character of your offending. Here, as I say, there were thousands of relatively small dishonest transactions that are rolled-up into these eight charges spanning a period of over two and a half years.44General deterrence is important in cases of systematic dishonesty offending. This was no crime of passion. It was not isolated. It was systematic, it was ordered, it was calculated offending. Your position permitted you to do what you did. It was no simple business detecting, investigating and then prosecuting this style of crime. You were acting in direct breach of your duty to the Taxi Services Commission.
45The importance of general deterrence is very plain here.
Totality
46I have given consideration to the overall effect of the sentences imposed by me. I have to give regard to the principle of totality of sentence. I have engaged in a last look at the overall effect to ensure that the effect is consistent with your overall criminality and not crushing upon you.
Current sentencing practice
47I must pay regard to current sentencing practices, but other cases will never have the unique features of your case. No cases are ever the same. Nor are any offenders the same and statistics are of no use in this sort of case. The crime of obtain financial advantage by deception covers a large range of factual settings. Well these charges are rolled-up charges, covering thousands of acts. What I must do is pass an appropriate sentence in your case.
Boulton
48Your counsel argued that it was open to place you on a community corrections order and submitted that your offending did not demand an immediate term of imprisonment. That is, that a community corrections order could be open on its own and would meet the various purposes of sentencing. The Director of Public Prosecutions accepted that a community corrections order fell within my sentencing range.
49Sending any person to prison is always a matter of last resort for any court. It always has been and hopefully it always will be.
50I was taken to the case of Boulton v R. That was a decision back in, I think, December 2014, where the Court of Appeal told various judicial officers throughout the State that it would sometimes be open to place a person on
a community corrections order, even for offending that previously would have been met with a substantial or medium term of imprisonment. Well, there has been much water under the bridge since that decision in December 2014. There have been suggestions from the Court of Appeal in other cases that the particular disposition was being misused by judges in this State. See the case of Basic. So too have there been a number of legislative amendments limiting and altering the use of the disposition.51Returning though to the case of Boulton, the reasons in that decision were of an entirely general nature. There was nothing in that particular decision obliging a sentencing judge to reach a particular conclusion in a particular case, as the Court of Appeal made plain enough in that decision itself and reminded the profession of, in many later cases, including the cases of Hutchinson, Scammel and McGrath. The community corrections order disposition is not a "get out of gaol free card". It never was.
52It is obvious that not every offender for every crime can or should be admitted to such an order. That is because, of course, there are some crimes where the purposes of sentencing, they just cannot be given adequate weight by the use of such an order. I have had you assessed for your suitability for a community corrections order. You have been assessed as suitable. I am not surprised to hear that and you are judged to be a low risk of re-offending. Again, I am not surprised by that either.
53Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement, unless the court concludes that the purposes of sentencing cannot be achieved by a community corrections order with specified conditions attached to it. So a court needs to pay careful attention to the purposes for which sentence is to be imposed and consider whether they can actually be achieved by a stand-alone community corrections order. There are some crimes that are just too serious for such an order. That much is obvious.
54The Court of Appeal suggested that judges ask the following question:
"Given that a community corrections order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment, with all its disadvantages, is the only option?"
Sentence
55When I have regard to all that has been placed before me in the course of this plea, my view is that it is open to give adequate weight to the various purposes of sentence and to sentence you without imposing an immediate term of imprisonment upon you. That last resort, prison, has not, to my mind, been reached in this case, by the barest of margins. I am going to place you on a community corrections order on all of these charges. However, I want to make one thing very plain, plain to you and plain to any others, including members of the legal profession, who might somehow seek to rely upon this sentencing outcome in this case in the future before me or any other Judge.
56I want to make very plain that the one aspect which leads me to the view that
a community corrections order is open, is the inordinate delay here in this case. I can tell you, but for that delay, even in the face of all the other mitigatory material placed before me, I would have had no hesitation in sending you immediately to prison. That is what I would have done. However the delay exists here. I cannot just ignore it or wish it away. It is a powerful mitigatory factor, in my view.57The crimes are now, relatively speaking, quite stale and you have not put a foot wrong for over five years and have had the impact of the delay upon you. I am able to make the favourable judgements as to your rehabilitative prospects that may not have been open to me to make had you been dealt with closer to the time of the crimes. So I judge it to be a retrograde step to now, after all these years, send you to prison after such a lengthy delay. So I am going to admit you to a community corrections order on all of these charges for a period of two and a half years and that order will commence on today's date.
58Now I need to explain this order to you and I need to satisfy myself that you understand it and that you consent to it, because, of course, I cannot place you on one of these orders unless you do consent. So this will take me a little bit of time to explain all the detail of the order. You will get a copy of this order too, by the way and once I have explained the nature of the order, I will get your counsel to go down and to make sure that you do understand what you are entering into, because you should not enter into it lightly.
59As I say, it is an order for two and a half years. It commences today. So that would have it ending on 10 April 2020.
60You will be required to attend at the Sunshine Community Correctional Services at 10 Foundry Road, Sunshine, within two clear working days of the commencement of the order. Again, the address will be on the document. So get down there either tomorrow or the next day.
Mandatoryterms
61I know that the broad nature of these orders has been explained to you by the assessment officer, I have a document saying as much with your signature attached to it and also your consent to an order being made by the court, but
I still need to go through it and make sure that you understand, because the last thing I want is for someone that I have placed on one of these orders, to see me down the track in breach of the order and not understand what it was that they entered into or what might happen if they breached it. It will never happen to me because I explain these orders in great detail.62As you understand it, every one of these orders, whether it is you or whoever else happens to be sitting in the dock, they have a set of mandatory terms that apply. Every person who gets one of these orders has these same mandatory terms. You are getting one, so of course they apply to you. They are on the order and they have been explained to you, so I do not need to go through them chapter and verse, but the first of those is, of course, that:
·You must not commit another offence for which you could be imprisoned, in the period of this order. The order spans then two and half years from today's date. You have got to stay out of trouble. That is pretty straightforward. It has been an easy thing for you for most of your life. It should not be a problem for you. But if you commit any offence punishable by imprisonment in the next two and a half years, you will breach this order. And virtually every offence is punishable by imprisonment these days, all right? So that is the first of the mandatory terms;
·You have got to turn up when you are told to turn up. You have got to turn up for unpaid work or for any of the attendances under the order, in a fit state. You have got to be totally unaffected by alcohol, as in, have no alcohol in your system and totally unaffected by drugs, of course;
·You have to report to and receive visits from the Community Corrections officer;
·As I have said, you must report within two clear working days of the order starting, that is pretty straightforward enough;
·You have got to let them know within two clear working days, so let the Community Corrections officer know within two clear working days of any change of address or job. So that is pretty straightforward as well. You do not just get up and leave, you do not change jobs without telling him, you do not change your address without telling him and you do it in
a timely fashion, within a couple of days;·You must not leave Victoria without first getting permission to do so, from your Community Corrections officer. So I do not know whether they will give you permission or not. I do not know whether you want to leave or not, but what I do know is this, you do not just get up and leave. If you do, you will be in breach of this order; and
·You must obey all their lawful instructions, that is, from the Community Corrections officer. So you will have a Community Corrections officer assigned to your case and you will have dealings with them over the course of the order.
63So they are the mandatory terms. You breach any of those, you breach this order.
64Just going back to that first term, just so there is no doubt in your mind about it, that is, you staying out of trouble. You must not commit another offence for which you could be imprisoned. As I say, I could pick up the Crimes Act and virtually every offence set out in the Crimes Act has a term of imprisonment available. In fact, almost every crime does.
65Just to illustrate it further, I am not suggesting it is going to happen, there is no reason for me to think you would do this, but if you went into a newsagent and stole a copy of the Herald-Sun - I do not know that it is worth these days or what it costs for that matter, but if you did that, that would be a theft. It would a theft of an item worth under $2. I do not think there is any magistrate in their right mind who would send someone to prison for that sort of theft, but it is punishable by a term of imprisonment and that would breach the order. So any offence committed in the two and a half years, for which a court could send you to prison, will breach this order.
66Anyway, they are the mandatory terms. Breach any of those, you breach the order.
Conditions
67Then, of course, there are the tailored conditions. They are tailored because
I tailor them to your particular needs, needs in terms of rehabilitation, but also needs in terms of punishment. Because this order is punishing you as well, both by terms of its duration and the particular conditions that apply to your obligations under the order.68Well the first of those is an unmistakable aspect of punishment. It relates to unpaid community work and you have got to do it, and if you do not, you will breach the order. What you must do, is:
·You must perform 500 hours of unpaid community work. That is over the period of this order, as directed. I do not know what they are going to ask you to do, I do not know where they are going to tell you to go to do it. What I do know is, whatever they tell you to do, you do. So 500 hours of unpaid work over the two and a half years;
·You will be under supervision of a Community Corrections officer for the entire period of this order.
69I am also going to make some conditions dealing with treatment and rehabilitation. Drugs and alcohol have been reasonably significant issues in your life at certainly points in your life.
·You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the Regional Manager;
·You must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the Regional Manager; and
·You must undergo any mental health assessment and treatment, as directed by the Regional Manager.
70It is a longer wording to the document, but that is what it amounts to. They will give you directions, in terms of any sort of mental health assessment and treatment. Mr Cummins says you need treatment. You do not think you do. Well, whatever they give you, by way of direction, in terms of attending a mental health assessment or treatment, you must abide by it. I do not know what they are going to ask you to do, in terms of drug testing or assessment or treatment, whatever they ask you to do, you do.
71Likewise in terms of alcohol testing or assessment or treatment. If it is true that you have got no current issues and there is no particular need, no doubt they will find that out fairly swiftly, but again, you must follow their directions, in terms of assessment, treatment and testing. So they are the tailored conditions and in exactly the same way, if you breach the mandatory terms, you breach the order. If you breach any of these conditions, you will breach the order.
72You have never had one of these orders before. You have really only been to court on the one occasion for matters that bear no relationship to my task.
73There are many people I place on these orders who breach them. I do not want to see you in that position. I do not believe I will. But there is quite a high failure rate and the reason there is a high failure rate, is pretty obvious. We are dealing very often with very damaged individuals who are sitting in the dock, people with very significant mental health issues and with sizeable addictions to
a variety of drugs; people who had no supportive family, no education, who have no prospects. You are not one of those.74So many of these orders are breached by people who just have a life that is out of control. And again, you are not one of those. You have got family and your sister and your mother and your father, who are concerned about you; you have got a home to live in; you have got work to go to; you have got a lot of positives in your life that should not intrude upon you complying with this order. I have had people who have breached these orders in every imaginable way, including not even turning up at the assessment appointment within two working days of seeing me put them on the order.
75A lot of people breach them and please, do not put yourself in this position, but a lot of people breach them because they think the court case is finished. They have come to court, they have been worried about coming to court, worried about going to prison, they get an order, a community corrections order, they leave out the door with their family and there is a sense of relief and the sense that the case is finished. It will be finished in two and a half years when you have complied with this order, and not before then. And the very many of the people that breach these orders, they leave court, having consented to the order, well of course they do, I cannot put someone on it without them consenting. Despite their consent, once they are out in the community, they realise that these orders are actually not that easy, they do require some effort.
76There are punishments attached to them, having to turn up when told to turn up, having to do unpaid work. They are not meant to be easy and they are not. What people often do, is they fall out of contact with their Community Corrections officer, or resent the intrusion in their life of the Community Corrections officer, or they think there is something more important than the order and they assign a greater priority to other things in their life and every person who does that, winds up sitting back in the dock and exposing themselves to the serious prospect of going immediately to prison.
77What I suggest you do is, form a good working relationship with the case officer in this case. They will be there to assist you. They are not just there to punish you. I am punishing you. They are not making this order, I am making it. I am making it for the reasons that I have described. They will be there to assist you. If you need assistance in any areas in your life, seek it. But, just a word of advice, so many of these are breached by people who do not turn up at unpaid work or do not turn up for supervision and then try to construct some explanation after the event as to why they did not. If you have got a good reason for not being able to attend an appointment, let them know. They will not be silly about it.
78Let them know in advance, obviously, but even if it was something cropping up on the day, get on the phone and speak to them. I guarantee you, if you do what so many people do, that is, just bury your head in the sand and say nothing, then you will find yourself being breached on the order. Do not put yourself in that position.
79What I have not told you is what happens if you breach this order. Though again, I think it has been explained broadly by the Corrections crowd, but I want to do it a bit more explicitly than they might have.
80You will breach this order by breaching any of the mandatory terms that I have explained or any of those tailored conditions. And if you do that, then that itself is a criminal offence of breaching a community corrections order. That can be punished by, I think it is a term of up to three months' imprisonment. But that is not the major sting for you if you breach the order.
81The sting is this: If you breach this order, you will be brought back to court and I do not imagine that you have been looking forward at any stage over the last period of time to coming to court. You did not know what would lie ahead until right now. But you will put yourself in exactly that same position, except probably not the exactly the same position when you think about it, I am placing you on this order. I am giving you a chance to avoid an immediate term of imprisonment.
82I believe I can, for the reasons that I have advanced in my sentencing reasons to date. But if you breach this order, you will be brought back to court and it will not be the Magistrates' Court and it will not just be any court in this building - well it might be a different court than this, but you will be sitting down in the dock. You will not know what is going to happen to you. There will be a knock on the door and in through the door will come a judge and that judge will be me. It will not be another judge, it will be me. And I will bring the notes that I have made in the course of the plea. I will bring all the documents that have been placed before me and I will then deal with you on the breach.
83Now, it is impossible for me to know what I would do upon a breach, because part of my duty, obviously as a judge, is to it and to understand the nature of the breach placed before me, whether it is a major breach or a minor one, had you tried hard on the order, had you not cared less about the order. How can
I know that now? What I hope is I never see you again. I do not think I will. But if I do see you again in breach, I cannot forecast exactly what it would be that I would do with you. But I think you should work on this theory, at least. The most commonly exercised power by a judge dealing with a breach of
a community corrections order, is to cancel the order.84If the order is cancelled, that judge then has to re-sentence. And I have given you a community corrections order already. You should have no expectation of getting a second community corrections order. You should come with an expectation that you will be sent immediately to prison. All right? So be under no illusions. That is the theory you should work on. And, of course, we need never see each other ever again. You comply with this order and we will not and I do not want to see you again. I am not setting you up for failure. I believe that you have a low risk of re-offending. I think you have very good prospects of rehabilitation. You have committed these undoubtedly serious offences over those years, but many years ago now and I believe that you are a very good bet, in terms of this order. But if I am wrong, I will see you again. If I see you again, look out.
85Now then, Mr Gipp, are you satisfied I have adequately explained the order to your client?
86MR GIPP: Yes, and I should indicate that I have explained that in some detail myself, as well, but I'm just checking.
87HIS HONOUR: Go down and just see if he has got any queries, would you, and - - -
88MR GIPP: Thank you, Your Honour.
89HIS HONOUR: So, Mr Gipp - - -
90MR GIPP: He understands those conditions, Your Honour.
91HIS HONOUR: All right, but is he consenting to the order?
92MR GIPP: Yes, he is.
93HIS HONOUR: Yes, all right.
464ZF
94Look, I will deal with the 464ZF application first. Mr Howard, that has been handed up, but the non-custodial version, which is the version I am signing, has him reporting to the officer in charge of the Bendigo Police Station, which seems a bit of an - - -
95MR HOWARD: Yes, Your Honour, I - - -
96HIS HONOUR: - - - ask for a man living in St Albans. So it would be Sunshine, would it not?
97MR HOWARD: Yes, Your Honour, I apologise for that. Clerical error.
98HIS HONOUR: Look, I will just have those amended by hand and then I will sign those in a moment. Look I will just have the order come down to the Bar table. Let me just look at it myself. It is obviously made with conviction. It seems to fit the bill. Just each of you look at it and just satisfy yourself that it mirrors my stated intention please.
99MR GIPP: That accords with your orders, Your Honour.
100HIS HONOUR: Yes, thanks. Look, I will have - just give me one moment. Just leave it on the Bar table and I will just - - -
101Application has also been made for you to undergo a forensic procedure for the taking of a scraping from your mouth, or a blood sample. Now, I am not authorising a blood sample, I see no need to do that. In the circumstances,
I will fix upon the least invasive procedure. The application is made for a taking of a scraping from your mouth, until a sample of sufficient standard is obtained for placement on the database. There is no opposition to the making of this order, it is consented to by your counsel and I am prepared to make the order, owing to the seriousness of the circumstances of the offending. The fact that it is not opposed and that I judge that the order is in the public interest.102I order then that you, pursuant to the provisions of s.464ZF of the Crimes Act, sub-s.9, that you, for the purposes of undergoing this procedure, report to the officer in charge of the Sunshine Police Station at 497 Ballarat Road in Sunshine, within the relevant timeframe set out in the document, within - during the four week period, commencing 28 days after the day of sentence, and that you have that procedure taken at that stage. What does all this mean? It is a pretty straightforward business.
103You will need to head down to Sunshine Police Station. It will be a mouth swab that will be taken. You take the document with you and they will know why you are there and they will know what to do and it is not particularly invasive. They are not going to come at you with a large syringe or anything like that, it will be a swab that you will be asked to run around the inside of your cheek, so that is to obtain the sample for that then to have your DNA extracted from that and for that sample to be placed on the database.
104Notwithstanding your consent to the order, I am obliged to tell you that, they are entitled, the authorities, to use reasonable force to obtain that sample. They should not need to use any force at all. Of course, it should be a straightforward procedure and no doubt if it presented any difficulties, I would have the authorities back before me, applying for a blood test. But I have signed and pronounced that order.
105Just come out of the dock then please, Mr Tang. Come down towards the Bar table. Just grab a seat there for a moment. Mr Tang, just stand up again please.
106Do you confirm then that you have signed this community corrections order?
107OFFENDER: Yes, Your Honour.
108HIS HONOUR: And you consent to entry into this community corrections order, is that so? And you understand the obligations under the order?
109OFFENDER: Yes, I do.
110HIS HONOUR: All right. You do not want to see me again and I do not want to see you again and if I do not, then it will demonstrate that this order was precisely the right sentence in this case. If I do, well I will and - but I do not want to and hopefully I will not.
111All right, well I will have that copied for you and then you will be free to go. Grab a seat again.
112I have told you already, in the course of my reasons, that were it not for the delay in this case, I would have sent you to prison. And I would have. I am not required to make what is referred to as a s.6AAA declaration and I will not in this case. But what I will say is this: I have told you that I have taken into account the fact of your guilty plea and I have. I want to make it very plain to you, had you pleaded not guilty and been found guilty by a jury following
a contested trial in relation to these matters, again, I would have sent you to prison if you had pleaded not guilty and been found guilty of this offending and I would have fixed a sizeable non-parole period in such as setting as that.113Are there any other matters that I need to deal with, by way of sentence at all, or not?
114MR GIPP: No, Your Honour.
115HIS HONOUR: All right.
116One final matter then and - your father is not here. I think your sister - your sister is here today, is she?
117OFFENDER: Yes, she is.
118HIS HONOUR: And your partner. Now, there is material before me that suggests that your offending caused a great strain in the relationships within the family. That is hardly surprising and particularly with your father. It is not surprising that your father would have felt pretty unhappy about what you had done. He would have had, of course, $130,000 of funds passing into the family trust. It would be unsurprising entirely that you feel that you have let him down to some extent.
119There is also material touching upon perhaps the attitude of the family to your partner. I do not know that that is all about, I do not pretend to understand. What I want to make plain to you and I would have made plain to your father if he was here, but perhaps it can be conveyed to him. You have both got to move forward from this day, all right? There is no point dwelling in the past. If he dwells in the past and simply focusses on your criminal conduct and how that has impacted, then you will never have anything other than a strained relationship and you have only got the one father. You have got to try and deal with these differences and get your lives sorted out and get those relationships sorted out. So not focussing on the past criminal conduct.
120You have got to focus on complying with this order, obviously enough and moving into the next chapter of your life, where you can hopefully, in that next chapter, earn back his trust and his pride. So really I was wanting to convey to him and to you, obviously you have made some awful decisions that bring you before the court, things that have strained the relationship between you and your father, but you have got to move on from that, at least in your relationship. You have got to comply with this order, but move on from simply dwelling on the past mistakes and past crimes that you have committed, all right?
121OFFENDER: Yes.
122HIS HONOUR: So, all right, well anyway, perhaps your sister might convey that to your father as well. Grab a seat, I will just sign this order.
123Yes, all right, look, I have signed that formal order then, so - anyway, there are no other matters?
124MR GIPP: No, Your Honour.
125HIS HONOUR: No, all right. Well that completes the matter then, so I will adjourn until 9.45 tomorrow please.
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