Director of Public Prosecutions v Wale

[2018] VCC 90

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01926

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES WALE

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 December 2017 and 29 January 2018
DATE OF SENTENCE:	29 January 2018
CASE MAY BE CITED AS:	DPP v Wale
MEDIUM NEUTRAL CITATION:	[2018] VCC 90

REASONS FOR SENTENCE
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Subject:Contravention of Community Correction Order - sentencing

Catchwords:             Dangerous driving causing serious injury – breach of community correction order

Legislation Cited:     Sentencing Act 1991

Cases Cited:

Sentence:18-month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Thomas	Office of Public Prosecutions
For the Accused	Ms V. Parbhoo	Victoria Legal Aid
For Werribee CCS	Ms E. Ibrahim Ms M. West

Pages 1 - 9

 

 

1HIS HONOUR:  Mr Wale, you were before me on 4 February 2015, nearly three years ago, on one charge to which you pleaded guilty, that on 28 July 2013 you drove dangerously causing serious injury.

2Your driving on that occasion involved making a right-hand turn from a middle lane against a red traffic arrow. 

3As a result of your action, your car crossed immediately into the path of another vehicle which had entered the intersection with a green light.

4As a result of the inevitable collision your passenger, a close friend aged 19, suffered serious life threatening injuries and was placed in an induced coma for ten days before being discharged into his family's full-time care in November 2013.

5Amongst other injuries, the victim suffered severe traumatic brain injury with consequent and enduring cognitive impairment.

6On 11 February 2015 you were sentenced by me, with conviction to serve a community correction order for a period of two years.  The order imposed conditions that you perform 200 hours of unpaid community work, together with assessment and treatment for drug abuse and dependency, mental health assessment and treatment, and other programs or courses aimed at addressing factors relating to your offending, as directed by the regional manager, with particular reference to a road trauma awareness program.

7On 14 November 2017 a charge was filed against you alleging that you had breached the community correction order imposed by me on 11 February 2015.  You were served with a summons alleging the breach on 12 December 2017 and appeared before me on 20 December 2017, just before Christmas last year.

8On that date you were unrepresented, and the matter was adjourned to today for you to obtain legal assistance.

9The breaches alleged included failing to report as directed on three occasions between April and September 2015, failing to perform unpaid community work as required on 38 occasions and failing to undergo treatment and rehabilitation as required on 15 occasions.

10Further detail has been provided in the breach report prepared by case manager Chrissy McKie and dated 23 November 2017.

11The report reveals that from the inception of the order, you appeared to minimise your offending behaviour, displayed a poor attitude towards your sentence, regarded the order as unfair and inhibiting your ability to move forward with your life.  Your attendances were sporadic with multiple occasions of non-compliance. 

12Despite a non-compliance meeting on 30 November 2015 and subsequent attempts by Corrections staff to assist you by discussing and engaging alternative community work addressing your reasons for non-compliance, your sporadic compliance continued.

13In addition, you failed to attend three consecutive appointments for drug counselling and were subsequently exited from treatment for lack of commitment.  Your excuse was an inability to attend the Hoppers Crossing area, so a variation of treatment was arranged to assist you to attend a provider more suited to your address.  Again, you failed to attend three consecutive appointments, and accordingly you were exited from treatment.

14Due to your lack of engagement and self-disclosed daily cannabis and sporadic alcohol use, Corrections referred you to assessment and treatment.  You were found suitable for complex counselling and referred to Odyssey House.  Again, you failed to attend as required on multiple occasions and were exited from the treatment program for non-compliance.     

15Following the commencement of the order, you provided a Mental Health Plan which stipulated engagement in psychological counselling to address a diagnosis of mixed anxiety and depression as well as ongoing feelings of post-traumatic stress disorder, understandably flowing from the circumstances of your original offence.

16As a result, you were referred to a consulting psychologist.  Again, you were exited from the service for non-compliance.  

17You were therefore reassessed and referred to Wings Wellness in Hoppers Crossing as well as the Wyndham Clinic.  Again, you failed to engage with these services.  Due to the forthcoming expiration of the community correction order, the service was unable to monitor any further arranged engagement with treatment providers. 

18The order expired on 10 February 2017.

19Overall, your failure to comply with the order is significant and reflects a clear lack of motivation and unwillingness to properly engage with the order requirements. 

20Added to the fundamental and continuing lack of your compliance in these sorry circumstances, is also the complete failure, in my view, by Corrections to have brought breach proceedings against you in a timely manner. 

21It should have been obvious to Corrections supervisors that it was not only justifiable, but necessary, to bring breach proceedings before the end of the expiry period of the order or, at the very least, immediately after the expiry date. 

22As it is, the proceedings were not commenced until some ten months after expiry.  This is wholly unsatisfactory and amounts to a serious failure by the Department to properly implement a judicial order, and amounts to a gross impediment to the administration of justice.

23A community correction order is an alternative sentencing option where a court is otherwise considering a term of imprisonment.  Consequently, there is a high responsibility on those who manage correction orders that Corrections supervisors act efficiently, competently and productively to ensure that the orders of the Court are properly and fully complied with.

24As a result of the delay in instituting proceedings, you fall to be considered for re-sentencing three years after the imposition of the original order, and over four and a half years after the date of the offence.  This lack of attention is intolerable, and should never be repeated.  The community, as well as the Court, is entitled to be outraged that the proper effect of the order has been subverted and the offender permitted to continuously evade the full terms of his punishment and reformative programs.

25These remarks will be forwarded to the responsible senior management of Corrections Victoria and Community Correctional Services.

26Returning to the matters immediately before me, I find the breach proven and, on the basis of the extensive non-compliance, I propose to resentence you.

27Mr Wale, the sentence will reflect the purpose and intentions of my sentence of 11 February 2015, taking into account your youthfulness, being aged 18 at the time of the offence and 19 at the time of the original sentencing, your personal circumstances including substance abuse and mental health issues, but also taking into account:

(a)the extent to which you have complied with the original order, principally in terms of little over half the unpaid community work component;

(b)that you have not been charged with any further offences from the date of my original sentence to the present date; and

(c)that you appear to have matured and realistically explained the reason for previous non-compliance as "stupidity" and, if given the opportunity, are prepared to recommit yourself to full compliance.

28For Ms Parbhoo's benefit, that explanation was given by Mr Wale when he appeared unrepresented on 20 December last year.

29In my view, despite the previous lack of commitment on your part it would not be appropriate at this stage to sentence you to a term of imprisonment in light of the matters that I have just mentioned and the delay in bringing your breaches to the attention of the court.

30An earlier intervention and warning by the court, combined perhaps with judicial monitoring, may have had the effect of concentrating your efforts, and by now you may otherwise have completed that order.

31Mr Wale, if you consent I am going to resentence you to a further community correction order.  If you would please now stand.

32On Charge 1 of dangerous driving causing serious injury, you are again convicted and ordered to serve a community correction order for a period of, this time, 18 months.

33The community correction order commences today and ends on 28 July 2019.

34The corrections centre you will attend is the Werribee Community Corrections Services at 87 Synnot Street Werribee, and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm this Wednesday, 31 January 2018.

35Again, all the mandatory terms of the community corrections order apply, and the additional conditions I impose are that:

·you be under the supervision of a community corrections officer;

·you perform 50 hours of unpaid community work as directed by the regional manager;

·you undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager;

·you undergo mental health assessment and treatment.  That may include psychological, neuropsychological and psychiatric, or treatment in a hospital or residential facility if necessary; and

·you attend for Judicial Monitoring – I will explain this condition further shortly.

36These conditions are not designed to be wholly punitive.  They are conditions that it seems are necessary for you also to embrace in order to help you.  If you fully embrace these programs, if you open yourself to them and listen to the people and try and work through the courses they have, you will find they will help you.  They are not just there for the fun of it.  They can work, but they can only work if you embrace them.

37I think you are smart enough and sensible enough to do that, despite what really is, as has been described by the prosecutor, a gross inability to comply with the original order, but I think you can do that.

38This is a lifeline for you, and with what you have done, which is really creditable, through the apprenticeship with your carpentry, you can build a very, very good career for yourself, you could have your own business in carpentry or building, you could employ 20 people one day.  All that is possible, so you have just got to apply yourself and this can be a great springboard for the rest of your life, and that is why I have provided the indulgence that I have for you, because I think you can do it.

39I have also imposed a special condition that you attend for judicial monitoring.  What that means is you have to come back to this court every so often - it will be every three or four months or so - for me to see how you are going, are you attending the courses? is there an issue? 

40If there is an issue about you not getting the resources that you are entitled to under the order, then you have an issue with Corrections and I can deal with that, so it is not just a question of you not performing, it is a question of whether Corrections are performing.  Do you follow that? 

41These orders have to work and sometimes people get shunted along because, you may have heard me say it before, a lot of people at Corrections are overworked, they are understaffed, they have a lot of work to do and people can get lost in the system.  It happened in your case.  It should not happen – and this is to monitor that as much as you.  But I also want to make sure that you are applying yourself too and give you the support for that.

42Your first attendance for judicial monitoring is to be on 28 May 2018 at 10 am. 

43Even though you have already had the mandatory terms of the community correction order explained to you, I will go over them again now. 

44The mandatory (or compulsory) terms are that:

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

·     you must report to and receive visits from a community corrections officer;

·     you must report to the community corrections centre, that is the Werribee centre, within two clear working days of the order, that is, by 4pm on Wednesday this week;

·     you must notify a community corrections officer of any change of address or employment within two clear working days after the change;

·     you must not leave Victoria without first getting permission to do so from a community corrections officer; and

·     you must obey all lawful instructions from and directions of community corrections officers - such directions may be given either orally or in writing. 

45Do you understand and agree to those conditions, Mr Wale?

46OFFENDER:  Understood and I agree.

47HIS HONOUR:  They will be on the community correction order that you will sign and I will countersign.

48OFFENDER:  Yep.

49HIS HONOUR:  I also advise you that if you get sick or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the Werribee Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen.

50What that means is this: the community welfare services are there to help you, so if there is an issue in your life that is troubling you or is causing you difficulty in complying, it is all about communication, so speak to them about it and you will find they will help you through these things, they are not there to oppose what you are trying to do.

51However, fundamentally I must warn you again that if you breach any condition of this order you will be brought back before me, back to court and before me, and one of the options open to me it to cancel the new community correction order and resentence you again on the original charge, and I may also deal with you for the breach itself by sending you to prison for up to three months. 

52You are still at serious risk, if you breach this order, of being sent to gaol for the original offence which occurred in 2013.  If you do breach it and you show a complete unwillingness to comply with the order, it is unlikely that the result will be anything other than me then saying that there is no other appropriate sentence in the circumstances and you will have to go to gaol.

53OFFENDER:  Understood.

54HIS HONOUR:  You do not need that in your life.  Do you understand the consequences of breaching your community correction order?

55OFFENDER:  Yeah, I understand.

56HIS HONOUR:  All right.  I will ask you to sign that community correction order now.  You can take a seat for the moment and it will be passed to you through your counsel.  You can leave the dock for that purpose.

57MR THOMAS:  Your Honour, just on the separate charge of the actual breach Your Honour has found proven.

58HIS HONOUR:  Yes.

59MR THOMAS:  You have not read any penalty.

60HIS HONOUR:  No.

61MR THOMAS:  Is it going to be a non-conviction?

62HIS HONOUR:  On the breach offence I simply find the matter proven.

63MR THOMAS:  Sure, yes, Your Honour, thank you.

64(Community correction order signed and acknowledged.)

65Mr Wale, is there any reason why you cannot be a model client for community services now?

66OFFENDER:  No, there's no reason why I can't.

67HIS HONOUR:  All right.  There is nothing more I would like than you to be able to write a letter to me in five years' time and say, "This is what I've done, I worked through my carpentry and I'm building houses or I'm repairing houses, I've been doing this, I've settled, and all this other stuff is now in the past".

68OFFENDER:  Yeah, I want to write that letter too.

69HIS HONOUR:  You can do it, but it is up to you and it is not going to be easy.  There will be temptations and there will be challenges, but if you work with community corrections services, you will be able to get through those.  If you do not work with them, that's unlikely that you will, or it is less likely, put it that way.

70OFFENDER:  Yes.

71HIS HONOUR:  All right. 

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