Director of Public Prosecutions v Walker
[2013] VCC 1729
•6 November, 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
GEELONG, (SITTING AT MELBOURNE)
CRIMINAL DIVISION
Case No. CR-12-00514
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JULIE WALKER |
---
JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 November, 2013 | |
DATE OF SENTENCE: | 6 November, 2013 | |
CASE MAY BE CITED AS: | DPP v Walker | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1729 | |
REASONS FOR SENTENCE
---
Catchwords: Sentencing; subsequent administrative decision of Adult Parole Board rendering original sentence impossible; resentencing on charge on which CCO had been imposed; CCO cancelled and no further order made on charge 2.
Legislation: Sections 16(3B), 48M(1)(a) & (2)(c) Sentencing Act 1991
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R. Champion | Office of Public Prosecutions |
| For the Corrections For the Accused | Mr D. Dcruz with Ms T. Irenyi Mr M. Thomas | Ann Valos |
HER HONOUR:
1 I have not prepared neat reasons for decision in this case, but I think I have formed my views and can make my orders accordingly, with ex temp reasons.
2 On 30 August, 2013 I sentenced Ms Walker following a trial in which a jury found her guilty on two charges of recklessly causing injury. She was found not guilty of more serious charges. I sentenced her on one charge to a sentence of 3 months’ imprisonment, and on the other to a Community Corrections Order to commence on the day after her sentence of imprisonment was completed, and to last for 18 months. That was intended to address her rehabilitation, by requiring her to continue to engage with the agencies with which she had been co-operating and addressing her very long-standing problems, under supervision and with the sanction of being able to be breached for non-compliance or further offending.
3 Since the sentence was imposed, a decision by the Adult Parole Board has required Ms Walker to serve 11 months and 25 days of unexpired parole from a previous sentence. That has rendered the CCO which I imposed inoperable.
4 There is an application before me by Community Corrections for the Community Corrections Order that was due to commence on 16 November 2013 to be cancelled. As a CCO can only be imposed in combination with a term of imprisonment of no more than three months, that order now clearly does need to be cancelled as it could not be performed, due to the circumstances of Ms Walker having materially altered by her being required to stay in prison for longer than the three months that I had imposed (s 48M(1)(a)).
5 So far as the sentence I imposed on Charge 7 was concerned, that was a straight sentence of three months' imprisonment of which 14 days of pre-sentence detention was declared reckoned served. I tried to make clear in my sentencing reasons that I believed that would not be required to be served cumulatively on any other sentence, because although s.16(3B) of the Sentencing Act would normally require it to be cumulative, I did not expect any administrative action would be possible to require any further sentence to be served. Therefore, even if I had the power to direct other than cumulation, there being no administrative action taken at that time, I did not do so.
6 What I intended was a relatively short, but nonetheless for Ms Walker salutary sentence of imprisonment, to convey the seriousness of Ms Walker having become involved whilst on parole in an incident in which the jury must have found she was carrying a knife or other sharp implement, to be followed by an extended period of supervision and rehabilitative efforts under a Community Corrections Order.
7 The issue is whether having cancelled the Community Corrections Order I should make an alternative sentencing order, or as urged by Mr Thomas for Ms Walker, make no further order. This is one option if I find it appropriate under s.48M(2)(c), that is to cancel a CCO and make no further order with respect to the offence for which the Community Corrections Order was imposed. Otherwise I should resentence her on this charge.
8 I take into account that the original sentencing range as put forward by the prosecution was of a considerable term of imprisonment. I still do not feel, as I did not at the time of sentence, that that range of length of time as a straight term of imprisonment was required, even for the combined offences, each of which carried a maximum of 5 years imprisonment. I may well have structured the sentence very differently had I known at the time what was to occur, but I could not have known that, and was not permitted to speculate about it.
9 In all the circumstances I cannot totally restructure the sentences, as I have no power to resentence on charge 7 and that sentence stands, and is almost completed; that is the charge of recklessly causing injury to Ms Watson. To try to resentence on charge 2 to restructure the sentence at this stage seems to me would be a totally artificial situation.
10 Given that since my sentence a decision of the Parole Board has restored 11 months and 25 days of prison time which will be served cumulatively on the 3 months I imposed on charge 7, subject of course to any further administrative decision by the Parole Board, in my view the new total time which Ms Walker might have to serve reaches a level which would be sufficient punishment for both of the charges for which I sentenced her. Therefore, I have decided there should be no further order imposed on the offence under Charge 2.
11 I want to stress that that does not mean that that was not an offence which warranted considerable punishment. I imposed a Community Corrections Order, which although aimed largely at rehabilitation, was to last for an extended period and was to be in conjunction with the other three months of imprisonment. Now Ms Walker faces a potential of a total of almost 15 months' imprisonment, but certainly of many more months imprisonment than she was sentenced to by me originally. If I had not imposed the CCO, I would have sentenced her to imprisonment on both charges, with some cumulation between them to acknowledge that there were two victims, but also allowing significant concurrency as both arose in the one overall incident. If I resentenced on charge 2 to any term of imprisonment, that sentence would start today, I could not declare time reckoned served, and it seems to me it is totally artificial to try to reconstruct a sentence in these circumstances.
12 For these reasons I have decided that the appropriate order is to cancel the Community Corrections Order and make no further order in respect of Charge 2.
13 MR THOMAS: If Your Honour pleases
14 MS CHAMPION: If Your Honour pleases
15 HER HONOUR: Now, I will try to - on the assumption that will be transcribed at some stage, I will neaten up the reasoning. I know it's very ungrammatical and it rambled, but that was because I was making the decision here and now. What further actions are taken or decisions made by the Parole Board are well out of my hands.
16 Ms Walker, do you understand what's just occurred?
17 PRISONER: Yes.
18 HER HONOUR: It effectively means that from the point of view of my sentences, the three months that I imposed on one charge is now the only sentence standing. On the other charge I've made no further order.
19 PRISONER: Yes, Judge Cohen.
20 HER HONOUR: So that one runs out, I think, on 15 November, and what else happens next depends on what decisions the Parole Board makes.
21 PRISONER: All right. Thank you.
22 HER HONOUR: Just for the record, so far as Community Corrections are concerned, that report had a number of mistakes but the most - the one that I think requires changing on the record, so to speak, is that it refers to - I don't think any of the two people - no, it's one person there - I don't think you prepared it, I'm not casting blame, but the second paragraph sets out that Ms Walker was sentenced by the County Court on the 30th of the 8th whereby she was found guilty of recklessly causing injury, intentionally cause injury, intentionally cause serious injury and making a threat to kill. She specifically was found not guilty on three of those charges.
23 MR DCRUZ: I see, Your Honour.
24 HER HONOUR: So the record shouldn't have that she was found guilty of all of those matters. She was found guilty by a jury on two counts of recklessly causing injury, but none of causing serious injury and none of intentionally causing injury and none - and she was not found guilty of making a threat to kill.
25 MR DCRUZ: My apologies for that, Your Honour.
26 HER HONOUR: Just so the record is there amended so it doesn't get taken into account in some other context. All right. I think that disposes of that matter. Thank you for attending at an unusual time of day.
- - -
0
0
0