Director of Public Prosecutions v Topalis
[2024] VCC 1520
•9 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00266
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSE TOPALIS |
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JUDGE: | HER HONOUR JUDGE RIDDELL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 December 2023; 14 December 2023 |
DATE OF SENTENCE: | 9 February 2024 |
CASE MAY BE CITED AS: | DPP v Topalis |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1520 |
REASONS FOR SENTENCE
Subject: CRIMINAL LAW --- SENTENCE
Catchwords: Theft of three caravans --- High Value Theft --- Early Plea of Guilty --- Prior Dishonesty Offences --- ADHD --- Long Standing Neurodevelopmental Disorders --- Positive Steps Towards Rehabilitation
Legislation Cited:
Cases Cited:The Queen v Bugmy (2013) 249 CLR 571 --- Sabbatucci v The Queen [2021] VSCA 340 --- Roosevelt Newton (A Pseudonym) v The King [2023] VSCA 22 --- Berry v The Queen [2019] VSCA 291 --- R v Verdins (2007) 16 VR 240 --- Chamma v The Queen [2020] VSCA 232 --- Clark v The Queen [2013] VSCA 98 --- Boulton v The Queen (2014) 46 VR 308
Sentence: 41 Days Imprisonment --- 18 Months CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecutions |
For the Accused | Mr J. Mortley | Emma Turnbull Lawyers |
HER HONOUR:
1Jesse Topalis, on 9 August 2023, you indicated your intention to plead guilty to one charge of theft and a number of summary charges. Your plea was adjourned so that psychological and neuropsychological assessments could be conducted and so that evidence could be called from one of those assessors. Ultimately, you were arraigned on 1 December 2023.
2You have also pleaded guilty to four summary offences relating to commit an indictable offence whilst on bail, contravene a conduct condition of bail and possession of prohibited weapon without exemption or approval.
3Your offending occurred on 28 August 2022. You were 31 years old and you are now 32. The details of the offending are contained in the summary of prosecution opening. In short, on Sunday 28 August 2022 at 4.30 pm, you, in company with two other men, attended the commercial premises of Regent RV Pty Ltd located at 24 Stanley Drive, Somerton. That business is a caravan sales business. You were the front passenger in a blue Ford Territory with one co-offender and your other co-offender drove a white Holden Colorado utility. A fourth person was also involved.
4The Ford Territory rammed the front gate, pushing it down and allowing the Holden Colorado to gain entry to the premises. The Holden Colorado entered and an object was placed under the gate preventing it from closing. The Holden Colorado then exited through the gate with the first caravan attached to the towbar. You and your co-offender in the Ford Territory entered the yard and you and he attached the second caravan to the towbar of the Ford Territory and exited the premises towing the van. The Holden returned and towed away a third van.
5The three caravans were taken from the premises and were parked at Platinum Street, Thomastown. The total value of the three stolen caravans is $210,000. The charge of theft is a rolled-up charge reflecting that criminality. The following day, the production manager for Regent RV noticed that the three caravans were stolen and reported this to police. Two of the caravans were found on that day and were towed back to Somerton. One of them had sustained damage to the front left side. The third caravan was found in a vacant lot in Campbellfield a couple of weeks later on 14 September 2022.
6At the time of this offending, you were subject to two sets of bail which included conditions of a curfew and reporting to Broadmeadows police station. Summary charge 4 reflects your commission of an indictable offence while on bail. Summary charge 5 reflects your failure to report on 26 September 2022 and summary charge 5 reflects your absence from your home address at 4am on 27 September in breach of your curfew. When police attended your premises on 30 September to execute a warrant, they located an extendable baton in a cabinet drawer in your bedroom. That is summary charge 7.
7You were arrested and participated in a record of interview on 30 September 2022. You made admissions about the offending. Although there is some circumstantial evidence of phone tower signals and the CCTV footage, including a numberplate linked to your partner, those admissions were of significance to proving your involvement in this offending. To that end, I note the two other men were charged however identification was not established and as a result you are the only person prosecuted for this offending.
8The principles of sentencing are clear in relation to offences of theft and in particular theft of items of significant value. The sentence I impose must generally deter others from offending such as this. It must also deter you from further offending. It must denounce this behaviour on the part of the community and justly punish you. In assessing the objective gravity of this offending, I take into account the following. This was a targeted theft, premeditated and deliberate, targeting a commercial premises and items of value.
9You did not plan it, but you were a willing participant in it as demonstrated by your active involvement on the day. The value of the theft is reasonably high, $210,000. It is that value which brings the matter to this court and the combination of value, planning and targeting a commercial premises which makes this a mid-range example at least of a theft offence. You told police during a record of interview that you participated in this offending because you needed money to obtain drugs. You told police that there was to be a split of $4,000. You concede that your portion of that money would have been spent on drug use and gambling.
10It is a matter of good fortune and not thanks to you or your co-offenders that the caravans were recovered and returned to the business. It can be easier for offenders to dismiss theft from businesses as less invasive than a theft committed against a private individual. However, there is always cost and inconvenience caused to businesses after events such as this. Although I do not have a victim impact statement from Regent RV, I can reasonably expect that this case was no different. No doubt there was a cost involved to Regent RV for repair to the damaged van and also to their gate. No doubt there was inconvenience in dealing with insurance and the like.
11I take those matters into account. In your case, I must also give weight to specific deterrence. You have a long history of dishonesty offences, including burglaries and theft. At the time of this offending you were on bail as I have described. That fact aggravates the offending here. I will return to those matters in due course. I turn now to your personal circumstances. I have been assisted by a psychological assessment report dated 8 September 2023 and authored by Warren Simmons and a neuropsychological assessment report dated 3 November 2023 authorised by senior clinical neuropsychologist, Amy Duzniak.
12I have had the benefit of hearing viva voce evidence from Ms Duzniak today. Your developmental history is neatly summarised by Ms Duzniak as follows:
'Mr Topalis' narrative and the information available to me indicates that he has faced difficulties in his life. He was exposed to family violence which precipitated his parent's separation when he was five years of age. He remained in the care of his mother who had gambling issues. Mr Topalis had behavioural challenges in the home and school setting and his mother reportedly found him difficult to manage. He was referred to be assessed for ADHD but never received a formal diagnosis. He went to live with his father at age 12 for around six months where there was physical conflict. He was reportedly rendered homeless when asked to leave by his father and spent time in residential care. He had learning difficulties and left school during year 8 and he has recorded minimal formal employment. He started using substances in adolescence and has used methamphetamine and GHB throughout his adulthood to date'.
13To elaborate on that history, you are currently 32 years of age and grew up living between Melbourne and Geelong. You have a 30 year old sister and
21 year old half-sister. Your parents separated when you were five years old due to your father's alcoholism and violence. You have strong memories of his abuse of your mother and his physical abuse of you and of police being called to attend. After their separation, you had no contact with your father until you turned 10 years old. Your relationship with your mother was loving, but she had gambling issues and as a result there was financial insecurity.14You attended six different primary schools and repeated a year in either prep or grade 1. You struggled academically due to disruptive behaviour, functional illiteracy and struggled to form attachments with peers. You recall an assessment of some description in late primary school and you recall being referred to a paediatrician for assessment regarding the possibility of ADHD, however you refused to attend. As a result, in childhood you were never diagnosed with any behavioural disorder or learning difficulty. When you were aged 12, your mother determined that she was unable to manage your behaviours and sent you to live with your father.
15Living with your father was unsuccessful. You say you reminded him of himself. He was violent towards you in the context of alcohol and cannabis use. You attended two different secondary colleges but failed to complete year 8 and left school. At age 14, he told you, that is your father, to leave his home and you spent time on the streets. You were placed in residential care and spent a lot of time with peer groups engaging in fights and binge drinking. Perhaps unsurprisingly in the context of that background, you commenced drug use at an early age. By your mid-teens you were using methamphetamine and GHB and this usage has continued in your adult life.
16You have experimented with other drugs, including abusing prescription drugs. Your drug use continues to be problematic. Paradoxically, and potentially related to your diagnosis of ADHD, you report that methamphetamine has a calming effect on you and makes life more manageable. As a result, your attempts to cease use have been largely unsuccessful. Your counsel submitted that your history enlivens the principles enunciated by the High Court in Bugmy v The Queen[1]. That is, your early life experiences, including of domestic violence, instability, homelessness and associated with negative peers and drug use, have left their mark on you and work to reduce your moral culpability for your offending.
[1] (2013) 249 CLR 571.
17This was not conceded by the prosecution with Mr Gray submitting that although I can and should take into account the impact of your formative years, the level of deprivation is not profound and does not reach what was contemplated in Bugmy. More recent decisions in my view establish that deprivation does not have to be profound in order to enliven those principles. In Sabatucci[2] the Court of Appeal made the following comments:
'Moreover it will always be a matter for evaluation by the sentencing court whether the circumstances of disadvantage relied on warrant the conclusion that the offender should be viewed on that account as less morally blameworthy than another person committing the same offence who did not have the same deprived background. Such a conclusion does not of course depend upon the court first being satisfied that the circumstances in question constitute profound disadvantage or profound deprivation. It will be a question of fact and degree in every case'.
[2]Sabbatucci v The Queen [2021] VSCA 340.
18The court then referred approvingly to comments made in Berry v The Queen[3] where the Court of Appeal said of that offender:
'His difficult upbringing was noted by the judge who applied the principles explained in Bugmy. The applicant's mother suffered from drug abuse and has a criminal record leading to an absence of a steady environment for the applicant. The evidence did not permit any detailed findings in this regard and the level of deprivation does not rise to the type considered by the High Court in Bugmy. Nevertheless, it moderates at least to some modest degree the moral culpability of the applicant. He was diagnosed with ADHD as a teenager, began using cannabis at 14 and turned to methamphetamine and heroin in his late teens'.
[3]Berry v The Queen [2019] VSCA 291.
19Their Honours in Sabatucci continued:
'The question for the sentencing court is whether and to what extent the moral judgment expressed through sentencing is affected by the circumstances of disadvantage relied on. As mentioned at the outset of these reasons, that evaluation will depend on the court's assessment of the nature and circumstances of the offence, the nature and severity of the disadvantage and whether it can be seen to be in any way explanatory of the offending conduct'.
20In a 2023 decision of Roosevelt Newton (a pseudonym) v The King[4] the court referred to the general way and the specific way in which Bugmy could apply. Their Honours held that the sentencing judge was wrong to conclude Bugmy did not apply in essence because the childhood deprivation was not of such a profound level. The Court of Appeal said with reference to Bugmy:
'The High Court then observed that the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending. Nothing in this part of the court's judgment however imposed any requirement that childhood deprivation must be profound before a sentencing judge is able to consider whether that deprivation might be relevant to the assessment of moral culpability'.
[4] [2023] VSCA 22.
21In your case, I am of the view that the principles in Bugmy are enlivened in a general way. The nature of your early experiences set you on a path involving drug use and addiction to gambling. I take those matters into account. What that means is equal justice means I should not treat you the same as a person who came from a stable home environment and was provided with positive opportunities for development. In that way, there is some moderation of your moral culpability as it applies to sentencing.
22You have a prior criminal record related to your drug use and dating to 2010. You have a number of driving offences and drug offences, two convictions for recklessly cause serious injury and a number for weapons offences. Most relevant for my purposes that history includes a number of convictions for breaches of bail and for dishonesty offences. They include burglaries, thefts, theft of motor vehicle, handling or dishonestly receiving stolen goods and criminal damage. The first of those dates to 2013 where you received a total effective sentence of eight months' imprisonment with a non-parole period of four months' imprisonment in relation to what appears to be a consolidation of matters dealt with in the Magistrates' Court.
23In 2010, you were again dealt with for burglary and theft where you received three months' imprisonment. In 2016, for a range of dishonesty, drug and weapons offences, you were sentenced to your first community correction order of 15 months' duration. That order included assessment and treatment for drug abuse. You breached that order by way of further offending including possession of GHB, methamphetamine and other drugs, theft, fraud, reckless conduct endangering life and driving offences. For the breaching offences and the breach of the community correction order, you received a total effective sentence of 12 months' imprisonment with a non-parole period of nine months' imprisonment. You had spent 193 days pre-sentence detention.
24There is a gap between that offending dealt with in September 2017 and the most recent prior matters which appear in 2020 and involving burglary, thefts and deceptions. You again served a term of imprisonment being six months. Some care needs to be taken when reading your prior criminal history due to a series of breaches and therefore the repeated listings of various offences.
25Turning to consideration of Verdins[5]. Mr Simmons in his report raised questions regarding whether you have an acquired brain injury and whether you are properly diagnosed with ADHD. For those purposes he recommended a neuropsychological assessment. The neuropsychological report of Ms Duzniak confirms that on testing your full-scale IQ is 73 being in the borderline range. She diagnoses you with attention deficit hyperactivity disorder of the combined type, stating:
'Mr Topalis' clinical history, deficits in aspects of executive function impulsivity, hyperactivity and self-reported difficulties are consistent with a DSM-5 diagnosis of attention deficit hyperactivity disorder combined type'.
[5]R v Verdins (2007) 16 VR 240
26She also diagnoses you with a language disorder which she clarified is a cognitive impairment and dyslexia which is a learning disorder. In relation to the language disorder, Ms Duzniak describes it as:
'A condition from childhood resulting in an inability to acquire language skills at the same rate as peers, to form complex language and to participate in verbal discourse. As childhood progresses, if untreated, those deficits remain and have an impact on academic function self-esteem and commonly on social function'.
27In evidence, Ms Duzniak also made reference to your trauma history.
Ms Duzniak did not find evidence of an acquired brain injury despite your involvement in a serious car accident in 2018 and despite your chronic drug addiction. Mr Mortley relies on the diagnoses of ADHD in combination with the language disorder and learning disorder to find a submission that Verdins limbs 1, 2 and 3 are enlivened as a result of that expert opinion. That is, that your moral culpability should be reduced alongside the considerations of using you as an appropriate vehicle for general deterrence and in relation to specific deterrence.28Mr Gray, on behalf of the prosecution, opposed that submission. He submitted that your diagnosis of ADHD should not enliven Verdins or this would, in his words, open the floodgates, given what he submitted was a prevalence of ADHD in the population. Further, he submitted that in your case I could not conclude your mental impairment had a causal relationship to your offending in the context of your chronic drug addiction. In other words, he submits your illicit drug use is the primary driver and cause of your criminal behaviour.
29Mr Duzniak gave evidence that ADHD is a neurodevelopmental disorder properly characterised as a psychiatric disorder. Treatment by way of medication is only possible via a psychiatrist. The manifestation of behaviours in a person with ADHD will vary depending on the nature of the symptoms and criteria which establish that diagnosis. In your case, that condition impacts your executive function as follows. Specifically, Ms Duzniak confirmed in evidence the follows passages from her report:
'Functionally, due to his ADHD, Mr Topalis experiences considerable difficulty paying attention, concentrating and completing and prioritising tasks. He has deficits in executive function that impact on his ability to logically reason through problems and engage in consequential thinking. His results suggest that he has a markedly concrete, rather than conceptual, thinking style, meaning that he has trouble with abstract concepts, responding flexibly to new situation and resolving conflict. Given those difficulties, he may tend towards ineffective, concrete and maladaptive problem solving or coping strategies such as aggression, avoidance or withdrawal'.
30Further, in her report, she stated:
'Mr Topalis' language disorder, dyslexia and ADHD are all neurodevelopmental disorders, meaning that they are long-standing, i.e. from childhood, and permanent. The often co-occur and would have been present at the time of the alleged offending and will be present at the time of sentencing. It does not appear that he ever received appropriate interventions or treatment, e.g. psychostimulant medication, for his conditions. With his difficulties being undiagnosed and untreated, they likely had a significant adverse impact on his social, emotional and behavioural development and can account for his marked learning difficulties and poor school experience. His neurodevelopmental difficulties may have predisposed him to early initiation of substance use which can be observed in individuals with untreated ADHD and consequent association with negative peers'.
31While I accept diagnostic labels are not important, it is clear, firstly, that ADHD is a recognised disorder or mental impairment pursuant to the diagnostic and statistical manual or DSM-5. It is an organic impairment and lifelong. Not all persons diagnosed with ADHD will exhibit behaviours which lead to the applicability of Verdins. However, on the basis of Ms Duzniak's expert opinion and in particular the portions to which I have just referred, I accept that it has played its part in your development over the course of your life.
32As she stated in evidence, you have a pre-existing lifelong deficit in the area of executive functioning primarily. While there may be an additional contribution by drug use, she did not agree that drug use was the primary cause of your offending. She could not of course estimate the percentage or proportion to which drug use or your mental impairment contributed. Further, in my view, your impairment has a causal connection to your offending behaviour. That connection has occurred though in parallel or tandem with those other life forces which have enlivened the Bugmy principles.
33That is, you are person who was born with a mental impairment and who has grown up with instability and disadvantage. In that context, your mental impairment was undiagnosed and untreated. Those two forces have played a part in your disconnection from school, your association with negative peers and involvement in drug use. Disentangling those considerations is not possible. However, in sentencing, I am of the view that I must take those matters into account when I consider your moral culpability and the applicability of principles of general and specific deterrence. Having said that, of course the interplay of your ongoing illicit drug use sits at the foreground of your offending. You accept this.
34Ms Duzniak confirmed that it is possible your condition was exacerbated by drug use and that illicit drug use could be a significant factor in your offending. Mr Gray referred Ms Duzniak to the following portion of her report as follows:
'In my opinion, Mr Topalis has poor capacity for consequential decision making as a result of his underlying cognitive limitations that was possibly exacerbated by his substance use at the time of the offending. He said he was using GHB and methamphetamines heavily and had not slept in several days. When under the influence of substances, Mr Topalis' ability to think clearly and make calm reasoned decisions would likely be even more impaired. He has pleaded guilty and appeared to accept responsibility for his actions although stated it was dumb decision and stupid'.
35The important parts of that paragraph to my mind are the fact that the expert witness says 'drug use exacerbates the underlying cognitive limitations'. Sensibly, your counsel accepts that the overlay of drug use means that Verdins can only result in a modest reduction in sentence. I agree, particularly as you are someone who has been dealt with many times by courts. You have capacity when sober to understand that drug use is a fast track to committing criminal offending. In other words, although I must and do take into account your underlying conditions, moderation of sentence through the principles of Verdins can only be modest because of interplay of drug use.
36It is the interplay of those considerations, the considerations of Bugmy principles and your progress since this offending which, taken together, have been important in combination to mitigate sentence. In relation to your drug use, when you are in custody you have remained sober and have repeatedly expressed a desire to rid yourself of drug addiction. To that end, you have made various attempts at abstinence including undertaking drug courses in custody. During 2020, you participated in 'The Cottage' residential rehabilitation program in relation to drug addiction. While you found that program helpful, you were unsuccessful in ceasing your substance use.
37You have previously attempted CISP bail, however you did not manage to complete it. Looking at your progress since this offending 18 months ago, you were initially remanded for 41 days in 2022. In November 2022 you were placed again on CISP bail. You did successfully complete that program and the completion report from March 2023 confirms that you attended all scheduled appointments, that you provided updates and communication between appointments, that you engaged with therapeutic supports in the community. Upon completion of the standard episode of drug and alcohol counselling, you requested ongoing support and as a result your treatment episode was extended. You completed another two counselling sessions.
38You attended on your general practitioner who conducted a mental health review and prescribed anti-anxiety medication and gave you a referral for mental health counselling. According to that report from your general practitioner, due to a nationwide extended waitlist for mental health support, you had not secured an appointment at the date of that report in March 2023. It is a shame that you have not obtained psychological report to date. However, you reported that your mental health was positive due to positive relationships with your family, reduction in gambling and obtaining employment leading to financial independence.
39This is the first time you have received a formal diagnosis for ADHD or dyslexia. Your intention now is to pursue psychiatric treatment, including obtaining appropriate medication. Further, you have an intention to pursue a package of support through the National Disability Insurance Scheme on the basis of Ms Duzniak's opinion. As a result of the diagnosis of ADHD, you now have two referrals for counselling or psychiatric treatment and support. The first is a referral by your general practitioner to North Park Private Hospital. Secondly, you have learnt that your sister has a diagnosis of ADHD and is seen at the Wyndham Private Clinic by Dr Hyacinta Zavier.
40You now have a referral to that psychiatrist at Wyndham Private Hospital, although you have been told there is a three month waiting list. You have been informed that there will be an initial consultation and assessment and then a likely exploration of referral to the NDIS for ongoing support and intervention. Although you find that process daunting, it is clear you are motivated by finally having a diagnosis to pursue that treatment. The CISP report describes you as:
' …engaging to a high degree, exploring referrals, maintaining engagement with all services and appearing to remain motivated to maintain abstinence and improve your quality of life'.
41According to you, that is the first time you have completed anything in your life. Since completing CISP, you have had a reduction in heavy levels of substance use. There is no doubt that abstinence from substances is the key to your rehabilitation. Until that time, your prospects of rehabilitation are at best reasonable. However, with cessation of drug use and gambling, in my view they could be positive. There are some glimmers of hope in that regard. First, you are now 32. Perhaps with age, you are recognising the need to move away from your past associations and lifestyle.
42You have not come to the attention of police for any further offending. You
self-referred to Gambler's Helpline and you were referred on to Banyule Community Health for gambler's support. You attended an appointment in December 2022 and maintained regular contact with that service until at least March 2023 with a goal of ceasing gambling. You report some success in that regard.43In this period of bail, you obtained full-time employment. That is significant in the context of your history. You obtained a job with Civic Construction working on excavation. You were working full-time and reported enjoying that employment, although the work has dropped off since just before Christmas. Your employer allowed you flexibility to attend your CISP and court commitments. At present that work is on hold until the conclusion of these matters. You are booked to undertake an excavator course.
44You are currently in a relationship with a supportive partner who's been present throughout these proceedings. She has demonstrated her capacity to positively influence you, for example, by way of her involvement in the neuropsychological assessment. You are motivated to maintain that relationship and your role as stepfather to her children. Your connection to them in apparent from your comments in your record of interview in this matter. I take those matters into account. They are positives for you.
45I take into account your plea of guilty. It was a relatively early plea and one which was entered at a time when the remaining court backlog, as a result of the COVID-19 pandemic, entitles you to an additional and palpable discount. I take into account the utilitarian benefit of your plea of guilty. That is, it saves the court and the community the cost and time of a criminal trial. In matters where a plea reflects genuine remorse, that is an additional consideration given it is usually reflective of some insight into the offending and a positive marker towards rehabilitation and away from the need for specific deterrence.
46I accept that your plea in this case is a reflection of some remorse for your offending behaviour. I requested a community correction assessment report on 1 December 2023 to determine your suitability for such an order. You expressed remorse and regret for your involvement in this offending during that assessment. You acknowledged that your ongoing drug use us problematic. Mr Mortley submitted that although your criminal history suggests that imprisonment is the only option here, on your behalf he submitted that the sentence I impose should continue your path towards rehabilitation by way of now releasing you to a community correction order.
47In contrast, the prosecution submits that only a period of imprisonment with a head sentence and a non-parole period is appropriate and specifically that a combination sentence with time served is not within range. I have taken into account current sentencing practices. As always there are differences in offender and offending. Mr Gray helpfully referred me to two comparable cases to provide guidance as to the ultimate sentence, Chamma v The Queen[6] and Clark v The Queen[7]. I take those matters into account. I take into account the maximum penalty of 10 years' imprisonment.
[6] [2020] VSCA 232.
[7] [2013] VSCA 98.
48This has been a difficult sentencing task. As I stated earlier, the value of the theft brings you to this court. However, all vans were recovered. You were not the architect of the offending, but a willing participant who stood to gain from it. Your history of dishonesty is serious, however you have only had one CCO in the past. You are now 32. Your background enlivens Bugmy. You now have a formal diagnosis of a mental impairment which is likely to be amenable to treatment and, in turn, medication which may eliminate your reliance on illicit substances. You made fulsome admissions, pleaded guilty and expressed some remorse. You have taken positive steps towards your rehabilitation through CISP, completing it for the first time.
49You have obtained employment and are in a steady, supportive relationship. You have now been on bail for almost 18 months. Imprisonment, while appropriate, must be the last resort. The question for me was whether a head sentence and a non-parole period is required here, or whether a term of imprisonment in combination with a community correction order was appropriate to meet the sentencing synthesis and, if so, whether that would require your return to imprisonment or whether the time already served is the appropriate sentence in all the circumstances.
50Ultimately, I have concluded that returning you to imprisonment would likely enmesh you again with antisocial peers and influences. I have concluded that there are enough positives to give you the opportunity to undertake a community correction order aimed both at punishment and at therapeutic intervention. I am mindful of the Court of Appeal's statements in Boulton[8] when reaching that conclusion.
[8]Boulton v The Queen (2014) 46 VR 308
51You have been assessed as suitable in that regard. The mental health assessment conducted by Forensicare confirms you have a moderate level of impairment and recommends various interventions, including engagement with a psychiatrist and psychologist along with drug and alcohol counselling.
52Mr Topalis, if you can stand, please. On these charges, I sentence you as following.
53On Charge 1 of theft, you are convicted and sentenced to 41 days' imprisonment and a community correction order of 18 months' duration. I will return to the conditions of that order in a moment.
54On summary Charge 4 of committing an indictable offence whilst on bail, you are convicted and sentenced to one month imprisonment.
55On summary Charge 5 of contravening a conduct condition of bail, you are convicted and sentenced to one month imprisonment.
56On summary Charge 6 of contravening a conduct condition of bail, being the breach of curfew, you are convicted and sentenced to 14 days' imprisonment.
57On summary Charge 7, of possessing a prohibited weapon without exemption or approval, you are convicted and sentenced to one month imprisonment.
58I make no orders in relation to cumulation. In relation to the community correction order on Charge 1, the conditions I will impose are as follows.
a)That you be under supervision.
b)That you undertake assessment and treatment in relation to drug use.
c)That you undertake assessment and treatment in relation to your mental health, including both psychiatric and psychological treatment, as directed.
59In addition, I impose 150 hours of unpaid community work and I allow an offset of up to 50 hours. So in other words, the more treatment you do, the less unpaid community work you can do.
60Before I can impose that order, I need you to indicate whether you would agree to undertake that order. Would you agree to undertake that order:
61OFFENDER: I don't understand.
62HER HONOUR: Mr Mortley, you might have to approach, I think.
63MR MORTLEY: He certainly consents, Your Honour, but the question could be asked again.
64HER HONOUR: All right, thanks. Mr Topalis, do you understand what I am doing in effect is sentencing you to the 41 days you have already undertaken, plus I now release you onto a community correction order of 18 months. Do you understand that?
65OFFENDER: Yes.
66HER HONOUR: And do you agree to undertake that community correction order?
67OFFENDER: Yes.
68HER HONOUR: Do you understand if you breach that order, you come back to me and I will then be looking at re-sentencing you on the offending that is here, the theft of the caravan offending. It would re-open and obviously imprisonment would be a significant risk.
69OFFENDER: Yes.
70HER HONOUR: Do you understand that?
71OFFENDER: Yes, I do.
72HER HONOUR: And you understand a breach could be committed either because you commit further offending or you don't comply with the conditions of that order? So if Corrections say you have to come for supervision, that is what you have to do.
73OFFENDER: Yes.
74HER HONOUR: If they say you have to attend a psychiatrist's appointment, that is what you have to do. Do you understand that?
75OFFENDER: Yes.
76HER HONOUR: All right and you understand if a breach, it would come back to me for re-sentencing?
77OFFENDER: Yes.
78HER HONOUR: All right. I will have that order printed in just a moment and I will get your signature on that. Your signature in effect is your promise that you will complete that order.
79I declare that you have already spent 41 days in custody and I declare that that period should be reckoned as having been served under this sentence.
80Finally, but for your plea of guilty, so if you had not pleaded guilty, the sentence I would have imposed would have been a sentence of two years and eight months' imprisonment with a non-parole period of 12 months' imprisonment. Have a seat there while we have the order printed out.
81OFFENDER: Thanks.
82HER HONOUR: Mr Gray, there's a disposal order I believe as well.
83MR GRAY: Yes, apologies, it's just been lodged, Your Honour. It's for an extendable baton.
84HER HONOUR: That is okay. All right, any objection, Mr Mortley?
85MR MORTLEY: I imagine not, Your Honour, but I will formally seek those instructions.
86HER HONOUR: Thanks.
87MR MORTLEY: Unopposed, Your Honour.
88HER HONOUR: Thanks very much. I will make that in the terms sought,
Mr Gray.89MR GRAY: Thank you, Your Honour.
90HER HONOUR: Mr Mortley, perhaps if you approach the dock and just take
Mr Topalis through that, thanks.91MR MORTLEY: Thank you, Your Honour.
92HER HONOUR: As I said, Mr Topalis, your signature on that document is your agreement that you will undertake that order.
93OFFENDER: Yes.
94HER HONOUR: All right. Any other matters, counsel?
95MR GRAY: No, Your Honour.
96MR MORTLEY: No, Your Honour.
97HER HONOUR: All right. Thanks very much for your assistance in this matter. We will now adjourn. Thank you.
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