Director of Public Prosecutions v Whittle

[2020] VCC 322

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02357

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN WHITTLE

---

JUDGE:	HER HONOUR JUDGE M. SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2020
DATE OF SENTENCE:	25 March 2020
CASE MAY BE CITED AS:	DPP v Whittle
MEDIUM NEUTRAL CITATION:	[2020] VCC 322

REASONS FOR SENTENCE
---

Subject:         Criminal Law
Catchwords:  Contravention of Community Correction Order
Sentence:     TES – 2 months imprisonment and 2 years Community Correction Order.

---

APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Ms L. Murdoch for plea Ms N. Stevic for sentence	CDPP
For the Accused	Ms N. Karapanagiotidis for plea Mr J. McLeod for sentence	James Dowsley

HER HONOUR:

1We will proceed to announce what is going to happen in your matter, Mr Whittle.

2I will not go through the formal things that I would normally do in a sentence.  But I do want to just remind you, Mr Whittle, about what I said to you back in November 2018 when I first sentenced you for the matters that we are now dealing with again.

3I said that if you offend again, with the Commonwealth charges, you would forfeit $800, you would return to prison to serve the remaining two months of the Commonwealth sentence and be re-sentenced by me on the State charges as well as sentencing you for not complying with the court orders.

4I said that will mean more gaol time.  I then said, 'Do you understand what you have at stake?' and you said you did understand that.

5I always have a discretion to consider how I deal with matters.  But the outcome of the fact that you have barely complied with the community correction order and reoffended means that I have decided that you have to have some more gaol time, but taking into account the matters that have been put forward on your behalf, as well as the matters that the prosecution have put forward, I have decided to make that almost wholly concurrent with the sentence that you received in the Magistrates' Court.  Effectively there will be one month extra.  Then I will be releasing you on a community correction order again.

6The assessment from Corrections Victoria was that it was with considerable reservation that they found you to be suitable, because you have already breached three community correction orders.  I agree with all of those reservations, but I have decided that I will be putting you onto another community correction orders for the following reasons.

7One is that from reading Dr Gee's report and reading the community correction assessment report, there is just the chance that you will start to get some insight into what you have to do to stay out of gaol.  As you are still a young man, I need to encourage any prospects there are for rehabilitation, for your benefit but also for the benefit of the community to avoid you reoffending in the future.

8The other reason for putting you onto a community correction order after a further term of imprisonment is that if I simply gave you a straight term of imprisonment, you would be out in the community without any supervision. Without supervision, I suspect that there would be immediate return to drug use and reoffending and that is not in the interests of the community.

9So I will announce the orders in a moment but I have also taken into account the current circumstances in which we all find ourselves of the pandemic and how that may impact on you as a prisoner.  Whilst there are many steps being taken to ease the burden of imprisonment during a pandemic, I recognise that it is still something that will concern you with your family and support out in the community.

10I will come back to you in a moment, Mr Whittle, but can I just check with counsel, that the proposed orders do reflect what I intend to do?

11MS STEVIC:  Yes, Your Honour.

12HER HONOUR:  Thank you.  So that Mr McLeod, if I am right, there should be about five months or a bit less to serve on the Magistrates' Court order, given the pre-sentence detention that was declared?

13MR McLEOD:  That is the case, Your Honour, he is due for release on 7 August 2020.

14HER HONOUR:  So with the effect of my sentence adding that, he has about six months to serve and then the community correction order?

15MR McLEOD:  That is my interpretation of the order today.

16HER HONOUR:  Thank you, that is what my intention is. 

17So Mr Whittle, coming back to you, you are well aware of what the conditions are of a community correction order, but I have to remind you again that on your release, the terms that apply to every order are that you must not commit another offence, the order will be for two years, you must comply with any obligation as directed by Corrections Victoria, and report to and receive visits from Corrections Victoria.

18You must report to the Community Corrections Centre within two clear days of the order starting which will be two days after your release. 

19Now just pausing there, because we do not have the actual address to which you are likely to be released, given that is sometime in the future, but on advice from your lawyers, we have put the Morwell Community Corrections Centre.  But I need to tell you Mr Whittle, that if things change, then if you are going to be living in a different area, then the first thing you need to do on release is get in touch with Corrections Victoria to get the place to go to.

20So do not think that that is a good enough excuse to say, I was living on the other side of Melbourne, it was too hard to get to Morwell.  There will be no excuse.  You simply have to arrange for a different Corrections centre and of course you can telephone your lawyers and get some assistance with that.  But at the moment the order will be for you to attend at Morwell Corrections Service within two days.

21My advice to everybody in your position is it should be the first thing that you do.  I know you will want to see family, in particular your partner, but the first thing you do is go to Corrections, and then you can speak to and see the people that are close to you.

22You have support here in court and they are hearing what I am saying, so even though that might be difficult, that is what needs to happen.

23Going back to the order, the other conditions that are mandatory, that is on every order, that if you do change your address or obtain employment or change that employment, you must let Community Corrections know within two days of that.

24You must not leave Victoria without getting permission from Corrections Victoria, and you must obey all their lawful instructions and directions.

25So they are the conditions that are on every order as you I know are aware from the past.  But I am also putting on some special conditions.

26During the period of the order, which is two years, you must be under the supervision of Corrections; you must undergo assessment and treatment for drug abuse and/or dependency; you must undergo any mental health assessment and treatment; and you must participate in programs that will address factors relating to your offending to try and reduce your risk of reoffending.

27I have also added that you will appear again at court for what is called a judicial monitoring hearing.  That means that I will see you and see how you are getting on, on your order.  Now I have made that 21 October, so that there will be a period of time after your release for you to get to settled down into what the order is going to look like.  Then you come to court and that can be done via video link.  That can be arranged.  Who knows what will be happening in October 2020, but we will arrange video links as necessary, for whatever reason.  Whether it is because the courts are still operating in a different way or whether because you are living outside of Melbourne, either way we can have a video link.

28You do not need to have a lawyer present, although you can if you wish.  That is simply for me to hear from Corrections how you are going and from you how you are going, for me to encourage you, if you have started well, and for me to give you a bit of a rocket if you have not started well, because otherwise you will be breached again and that just means more gaol time.

29So do you understand all of those conditions Mr Whittle?

30OFFENDER:  Yes, I do.

31HER HONOUR:  Do you have any questions about any of that?

32OFFENDER:  No.

33HER HONOUR:  All right, thank you.  That order has been emailed to the prison where you are.  That will be provided for you to sign. 

34OFFENDER:  I have got that in front of me, Your Honour.

35HER HONOUR:  Excellent, so you have been following it as I have been going through.  So do you have a pen there?

36OFFENDER:  Yes, I do.

37HER HONOUR:  Thank you.  So if you could sign there where it says signature of offender.  If you could turn that to face the camera?  Yes, thank you, we can see your signature there.  Just because of the angle of the camera we could not actually see you signing it but it is obviously apparent that you were signing something and I have now seen that signature.

38That will be emailed back to me and I will sign it.  A copy will be provided to your lawyers and ultimately to you.  So I will make the formal orders now then.

39MS STEVIC:  Your Honour, can I just confirm that the $800 is going to be ‑ ‑ ‑

40HER HONOUR:  Yes, that is part of the order.

41MS STEVIC:  The other draft order, Your Honour, that will assist, Your Honour, I just note that it is dated 11 March and will need to be amended ‑ ‑ ‑

42HER HONOUR:  If you could have that e-filed?  We are trying to avoid handing things up in court for obvious reasons.  So if you e-file that, then I will sign that and that could be returned.

43MS STEVIC:  As Your Honour pleases.

44HER HONOUR:  So the formal orders are as follows:

45On being satisfied of the failure to comply with a condition of release on recognisance under s.20(1) of the Commonwealth Crimes Act, which was a condition to be of good behaviour, on Commonwealth Charges 1, 2 and 3, I revoke the order made 26 November 2018 and sentence the offender to serve that is part of the sentence not served at the time of his release, which is two months' imprisonment.

46That sentence starts one month before the expiration of the sentence imposed in the Magistrates' Court on 12 March 2020.

47On the Commonwealth charges, I order that the recognisance of $800 be eastreated.

48On the charge of contravening the community correction order made 26 November 2018, I find the charge proven.

49The offender is convicted and sentenced to one months' imprisonment.  That sentence starts today. 

50On the State charges 4 and 5, the community correction order made 26 November 2018 is cancelled.  On those charges, the offender is convicted and sentenced to an aggregate sentence of one months' imprisonment after which he is to be released on a community correction order for two years with the conditions that I have outlined.  That sentence of imprisonment starts today.

51So the effect of those orders, Mr Whittle, is that the total effective sentence I am imposing today is two months' imprisonment but one month only is cumulative.  So that is what gets us to your ultimate sentence of about six months from the time of the Magistrates' Court order.

52So there is no pre-sentence detention to be declared.  I am not sure if I have to redeclare other orders that were made as such is being sentenced as a serious offender.  I will have to check that.  If necessary, I will put those onto the orders.

53So any other orders required?

54COUNSEL:  No, Your Honour.

55HER HONOUR:  All right, thank you.  Mr Whittle, do you have any questions now that I have made those final orders?

56OFFENDER:  No I do not.

57HER HONOUR:  All right, thank you.  Well I thank everyone for their attendance here today.  Particularly in these circumstances that we are all undergoing.  When that order is provided, I of course will sign it and have that provided to you Mr McLeod and Ms Stevic.

58COUNSEL:  As Your Honour pleases.

59HER HONOUR:  Thank you, I will adjourn the court sine die.

‑ ‑ ‑