Director of Public Prosecutions v Wighton
[2021] VCC 2045
•10 Dec 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 21-01680
Indictment No. L11673404
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| James WIGHTON |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 Dec 2021 | |
DATE OF SENTENCE: | 10 Dec 2021 | |
CASE MAY BE CITED AS: | DPP v WIGHTON | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2045 | |
REASONS FOR SENTENCE
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Catchwords Aggravated burglary. Persons present; intent to assault. Summary assault and commit indictable offence on bail. 36 years old as at sentence. Early guilty plea (Worboyes) – COVID-19. Reasonably extensive criminal history. On two CCO’s and bail at time. Mental health issues; Verdins. Ongoing rehabilitation
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Glass | Office of Public Prosecutions |
| For the Accused | Mr T Marsh | Stary Norton Halphen |
HIS HONOUR:
1 James Wighton, you have pleaded guilty to one charge of aggravated burglary. You have also pleaded guilty to two summary offences being one charge of summary assault and one charge of committing an indictable offence on bail.
2 You were born on 9 December 1985. So you turned 36 years of age yesterday. You have admitted a long enough criminal history. You were on bail and two community corrections orders at the time of this offending.
3 The maximum penalty for aggravated burglary is 25 years 'imprisonment. The summary offences each have a three-month maximum prison term.
Facts
4 Mr Glass appeared to prosecute on the plea and he relied upon a written summary of prosecution opening dated 8 November 2021 which was marked as Exhibit A. Your counsel, Mr Marsh told me it was an agreed summary.
5 So, I see no need to set out the full sentencing facts in these my reasons because I will sentence pursuant to that agreed material. I will say something only very briefly then so these reasons can be understood by anyone who happens to read them.
6
On the night in question which was the 13 July 2020, you and a number of others were being housed in emergency hotel accommodation amidst the global pandemic. It was hardly an ideal setting, but no doubt was better than the alternative which may have been living out on the streets for some. Your unit was on one floor of the Park Squire Motor Inn at 94 Flemington Rd Parkville. Your unit was located immediately above the flat where the victim Warren Halbish had previously been living with his partner Ms Selover. He had in fact, been moved to another unit. On the night in question, you heard noise emanating from the flat below yours. Mr Halbish and his partner
Ms Selover were having a verbal argument and there was some swearing. It was not the first time you had heard sounds of confrontation from that flat. In a nutshell, you then stuck your nose in where you really should not have, going down and kicking the door literally off its hinges. The occupant behind the door, Mr Halbish, told you to go away but not in as polite a fashion as that. He then saw you outside his apartment. You headed back upstairs. He rang reception and he did that to obtain assistance and to have the police called. It was the very step that really you should have taken given your concerns about what you were hearing in the unit.
7 The receptionist rang Triple 0 and then made his way up, and as he was knocking on the door and the door was then opened by Mr Halbish, you, who were lurking in that area, seized that opportunity to run past and into the flat, where you then launched an assault upon Mr Halbish. You took him to ground and got in a few punches to the face, one which cut him to the bridge of the nose. His partner Ms Selover was in another room but she came out and was scared by what she saw and she was yelling out for you to leave. You were overpowered and pushed out of the apartment. So, throughout, you were in the wrong acting as you did. There was really no reason why you could not have reported your concerns to reception.
8 Police attended, they arrested you and you provided admissions in the course of a formal interview conducted at the Melbourne West police station. The matter settled amidst a contested committal in August of this year and you have spent two distinct periods in custody referrable to this matter amounting to a total of 109 days.
9
So much then for my short summary of the summary. I will sentence pursuant to the more detailed agreed statement which is marked as
Exhibit A on the plea. There are also some photographs of the scene and also of the injury to Mr Halbish. I was told that he did not need any medical treatment.
Impact
10 There is no victim impact statement though this was obviously an alarming enough incident. He was concerned enough, Mr Halbish to ring reception and ask that the police be called. I note that Ms Selover who presumably, you thought you were acting to assist, was scared by your entry into her apartment. She was telling you to get out. You were a trespasser and a violent one at that. That's why you are sitting where you are sitting, here today.
In Mitigation
11 Your counsel Mr Marsh conducted the plea on your behalf and he relied upon a 40-paragraph written outline dated 5 December of this year. That was marked as Exhibit 1. There were a range of other materials assigned Exhibit numbers, many of them focusing on your mental health predicament, so the reports or letters from Dr Penn, Dr Banerjee and Dr Zimmerman. There was a Neighbourhood Justice Centre report as well as three references, one of those from your sister and one from your mother.
12 That material, including the written plea submissions, set out the details of your personal and family background including your educational, employment, drug and mental health history. Mr Marsh made some submissions as to the relative gravity of the offence, your rehabilitative prospects as well as the relevant sentencing principles at play in this case. He pointed in particular to the treatment gains which had been made here and the far more stable setting which currently existed, and the risk of those gains being lost in the event that you were returned to prison.
13 In a thorough plea, Mr Marsh raised the following matters in mitigation:
· Your relatively early guilty plea in the midst of the global pandemic;
· The presence of some remorse;
· Your mental health at the time and now and the application of some of the principles from the case of Verdins[1]; the 3rd, the 5th and the 6th limbs from that case;
· The impacts of COVID-19 upon your custodial experience, when you were held in custody.
[1]R v Verdins [2007] VSCA 102; 16 VR 240
14 He conceded the relevance of your past criminal history and demonstrated non-compliance with a variety of court orders, as well as the inherent seriousness of the offending, but he argued that it was open here to not return you to prison. He argued that it might be open to release you directly onto a community corrections order. Or if necessary, do that in combination with a prison sentence but one equating to your existing pre-sentence detention.
Prosecution
15 Mr Glass who appeared to prosecute, made some brief oral submissions as to the matters of seriousness here. I do not intend to repeat all those matters. They really were not controversial.
16 The prosecution submitted that a combination type sentence would be open here. Whether that required further time to serve was a matter for the court. But I am not bound to act on the submissions made by either party as to the appropriate sentence. What I have got to do is actually exercise my own discretion.
Background
17 I turn then to your background, but I am going to do that pretty briefly. Though there were some inconsistencies in some of the accounts given by you set out in the materials, as to your background, the critical matters seem clear enough.
18 You are 36 years of age. You were brought up in New South Wales. You moved to Melbourne as a child. Your father was a heroin addict. Your mother and he separated and she re-partnered. You are the middle of three children with an older and younger sister. Jumping ahead, your father died of a heroin overdose when you were about 19.
19 You started using drugs at a young age. You were expelled from school in Year 9 or thereabouts, and at one point you were living with an uncle down in Anglesea and working as a gardener. Your mother and stepfather had separated, and you lived between them after that separation. You have predominantly worked in unskilled jobs but it is not a strong employment record, as I understand it. Homelessness and drug abuse have no doubt each had a role to play in that state of affairs. Cannabis was your drug of choice but you have used a variety of other drugs. You have attracted a variety of mental health diagnoses over the years. Drugs have from time to time been implicated with the suspicion of a drug induced psychosis. That has not actually been definitively ruled out and it is in fact, in one of the documents placed before me, spoken of as a differential diagnosis.
20
It would seem though that the more likely diagnosis is that you suffer from Schizophrenia. I act on that diagnosis. However, it is equally clear that the use of illegal drugs complicates what is an already complicated position. You are now in receipt of regular depot antipsychotic medication and you are receiving support from the Wyndham Community Health team.
Dr Banerjee’s report, marked as Exhibit 4, is of great use to me. A GP is also onboard, that's Dr Penn and you are back living at home with your mother and sister, each of whom have provided valuable references for you.
21 On the materials before me, there is just no direct link or even any realistic connection between your mental health condition and this offending. That is conceded to be the position by Mr Marsh.
22 You have spent a couple of periods in prison recently and have been diagnosed as HIV positive, a diagnosis that you tend not to believe.
23
I am not going to waste your time or my own setting out bits and pieces from the various reports before me. I act on the basis that you are diagnosed correctly, as suffering from Schizophrenia. Though the report of
Dr Zimmerman is dated and predates your improvements made under the team at the Wyndham Community Mental Health team, I am prepared to accept that there is an increased prison burden owing to your mental health condition. That 5th limb of the case you heard discussed, Verdins, is engaged. Though there is a level of speculation, I am also prepared to give some weight to the 6th limb from that case.
24 There is no realistic connection such as to justify any Verdins reduction in your moral culpability, or in the weight given to specific deterrence. Having said that though, it is quite apparent to me that you are not the ideal vehicle for the full weight to be given to the principle of general deterrence. You are hardly in optimal mental health and you still to a degree struggle with insight. So, I accept the various Verdins submission made on your behalf.
25 You have had these significant issues with drugs and with mental health. That much is very clear from all the materials that are placed before me. You have relevant criminal history and a disturbing history of non-compliance with court orders. You were on bail and two community corrections orders at the time of this offending.
26 I see no need to go line by line though your criminal history. You do not fall to be sentenced a second time for any of those past matters. You have received and served those past sentences, but that history does assume some importance when I consider the need to deter you, protect the community from you, and the judgments that I reach as to your prospects of rehabilitation. It is true though that this offence is more serious than many you have committed in the past. There are some very old burglaries, but as I say they're dated.
27 It is plain that at the moment you are probably travelling as well as you have for a very significant period. You have supports in place. You are receiving treatment and you are engaging well with that treatment team. You are living at home and you are doing your best. You are on another community corrections order at the moment with monitoring due to take place in early January of next year. That order was only imposed on 30 November for offences some of which post-date the ones I am dealing with. That order and the existence of it does not commit me to place you on one.
28
I should also make plain that there are two entries on the criminal history before me that are not actually prior convictions at all including that
30 November appearance that I have just mentioned. The Magistrate who will be monitoring you in January of next year is also considering what do to with one of your past breaches. Otherwise though, I am told that there is nothing outstanding.
29 I turn then to the other matters raised by your counsel.
Guilty plea
30 The first of those is your relatively early guilty plea. It was entered at an early enough stage and before Ms Selover gave evidence at the committal. Regrettably, Mr Halbish had been cross examined. However, many pleas are a good deal later than yours. By pleading guilty you have taken, what I judge to be, early responsibility for your offending. As a result of your early plea, the time, cost and effort of a full-blown committal hearing in the lower court or a trial up in this court have been avoided. Mr Halbish has at least been spared the experience of giving evidence up in this court.
31 You have in these ways then facilitated the course of justice.
32 Your guilty plea is also worthy of extra weight for the many reasons set out in the decision of Worboyes[2]. You would not be aware of this, but there is a large backlog of cases waiting for a hearing in this court. Well, your case is not one of them. You have pleaded guilty.
[2]Worboyes v The Queen [2021] VSCA 169
33 Further, you did co-operate with the police, there is no question about that, and you made a number of admissions to them against your interest.
34 I take these various matters into account in mitigation.
Remorse
35 On the issue of remorse, I have your early guilty plea. A guilty plea can be indicative of remorse, but that is not always the position. There is not much else suggestive of remorse here. In your interview for instance, you had difficulty concluding that you had actually done anything wrong. That seems to be the position in your discussions with Dr Zimmerman, but that was quite some time ago now. Certainly, there was nothing that Mr Marsh could take me to suggestive of full remorse in this case. That is not a matter against you. It is not a matter of aggravation. I am pretty confident that your mental health issues intrude and perhaps your empathy will develop in time.
36 I am prepared then to find that there is some remorse in this case and I take that into account in your favour.
Rehabilitation
37 I turn to your prospects of rehabilitation. It seems to me at least, that those prospects will be very much bound up in your ability to abstain from illegal drug use and to continue to comply with your prescribed medication and the directions of your medical treatment team. Also, of course to maintain some stability in housing. Some of these areas have been problematic over the years. The fact that things are going relatively well at the moment, while it is a good thing, it does not mean that will continue into the future. I hope that they do continue in that way. At least though, there is some stability in those areas presently. That is a big positive and if I may say so, you are to be congratulated for engaging, voluntarily in the way that you have with the mental health team.
38 You pleaded guilty at an early stage and you do have some remorse.
39 Your criminal history and the chronology of offending is disturbing enough. You have not taken many of the chances offered to you by the courts, but that must be seen in the light of what was an undiagnosed and untreated mental health condition.
40 You have long term significant issues with drugs of dependence. That always casts something of a shadow over a person's future prospects. So, of course do your past failures to abide by court orders. You have in my view a decent enough risk of re-offending. The community corrections order assessment report says the risk is high.
41 I would hope that the fact of being arrested and charged and being brought before the court and being on remand for some periods to this point, would have served to deter you, at least to a degree. So too of course the sentence which I will soon impose.
42 You still have family support from your mother and your sister who have each written those valuable references demonstrating their support for you.
43 Your counsel argues that you are doing pretty well at the moment. He didn't from my memory, use an adjective to describe your prospects of rehabilitation, but I infer that he was submitting that those prospects were realistic here. Further, that those prospects may well be compromised in the event that you were to be returned to prison.
44 As I said a moment ago, ongoing abstinence from illegal drugs and compliance with your treatment regime will be critical. You have a serious mental illness and you are perhaps for the first time coming to understand that fact. It is after all a recent enough diagnosis. The management of that illness will be significantly compromised if you continue to use illegal drugs in the future. If you keep using illegal drugs you will have very poor prospects of rehabilitation into the future. The same applies if you go off your legal medication or you shy away from the medical practitioners and the team who are so usefully treating you at the moment. But I do accept that you have realistic prospects of rehabilitation. They will depend on you maintaining your links to the treatment team and receiving your regular injections and not using illegal drugs of dependence.
COVID-19
45
I accept the submissions made by Mr Marsh as to the impact of the
COVID-19 restrictions on your custodial experience. Now that of course, has only been a period of some 109 days all up referable to these matters to this point.
46 It is clear that the COVID-19 virus and the response to it by those who run the prisons has increased your prison burden for those periods when you were in custody. Prison would have been a more stressful environment in the two periods that you were held there. Social distancing would not have been easy. There would have been a worry about catching the virus in such a setting as that where, unlike someone in the community, there is just no level of autonomy. There would have been some lockdowns and I was told that there were two periods of quarantine. There were limitations to visiting and to the full range of courses in those two periods in which you have been held. It was not a good time to be locked up.
47 What lies ahead on the pandemic front in the future is really impossible for me to determine. I am not able to guess about these things. I cannot speculate for instance about how long restrictions on prison visits will persist should you be returned to prison. We are starting to open up in the community with further easing of restrictions a few weeks back. Prisons seem to have lagged a bit behind the community in terms of restrictions being lifted. Presumably though, the restrictions in a prison setting will lift in the not too distant future. I cannot say exactly when that will happen.
48 I do take into account though that it seems likely that these current restrictions would continue into the future at least in the short term. No doubt that would produce some ongoing worry and uncertainty and increased burden should you return to prison in such a setting. I do not accept that any increased burden arises from the emergence of a new strain of the virus. That would involve me guessing about the impact of the virus and I just cannot and would not do that. Other than that matter though, I take into account the submissions as to the increased burden in the ways contemplated by Mr Marsh.
49 I have already mentioned of course, that I accept that there's an increased burden in your case, arising in a Verdins fashion. I have regard to that as well.
The Offences
50 I must pay regard to the nature and the gravity of the offences before the court. It is accepted by your counsel that aggravated burglary is inherently serious. Well, it is. The Court of Appeal in this State has spoken often enough as to the seriousness of confrontational aggravated burglary. The case of Hogarth[3] was one such case which spoke of the seriousness of that style of offence. That case has been picked up my others including cases of Meyers[4] and Bowden[5].
[3]Hogarth v The Queen [2012] VSCA 302; 37 VR 658
[4]DPP v Meyers [2014] VSCA 314; 44 VR 486
[5]DPP v Bowden [2016] VSCA 283
51 In those cases and others, the Court of Appeal have set out what are described as the non-exhaustive considerations relevant to the assessment of the seriousness of the offence of aggravated burglary. I have regard to those matters though, see no need to slavishly set them all out.
Mr Marsh submits this is a low level example of the offence and I believe that submission to be correct. There was not too much sophistication or planning in this offence. It was though an entry upon residential premises with you rushing past the receptionist. You were entering with an intent to assault, so it is undoubtedly, a confrontational aggravated burglary and of course you knew that there was someone within. There is no recklessness about that. You knew. At least you were alone and you were not armed. It was a relatively brief entry. Regrettably you moved on to commit a separate assault within the apartment. Not every aggravated burglary leads onto other offences. This one did.52 All this occurred whilst you were on bail and on two community corrections orders. Your status as a person on bail and on those two orders, is a matter of some aggravation. It seems to me though that your motivation was some misguided attempt to intervene in what you believed might be happening in that downstairs unit. That is, on any view of it, an unusual motivation for an offence such as this. Do not misunderstand what Mr Marsh was saying. He was not, by saying that this was a lower order example of aggravated burglary, suggesting to the court, that it was not serious. As I have said, aggravated burglary is an inherently serious offence. It's punishable by 25-year maximum term of imprisonment. He was just comparing it to more serious examples of this offence, and I accept those submissions in that regard.
53 I have to punish you justly and proportionately and punishment is obviously of some importance here. I must also denounce your conduct.
54 I must also deter you. That concept known by us lawyers as specific deterrence is of some importance and that is so despite your mental health issues. You must be deterred. The same can be said for community protection. It is of relevance to my task. You must not feel free to commit this style of crime ever again. I have to send a message to you. I must also protect the community from you. But how are they best protected? Are they protected by a sentence that removes you from the community, or is long term protection better achieved by maintaining your current treatment regime? That is the dilemma in this sort of case.
55 General deterrence, which I've mentioned a moment ago, is the need to deter others and that is still of some importance in this case. I must send a clear message to any like-minded person thinking of being engaged in this sort of activity into the future. I must seek to deter not just you but those future potential offenders as well. I am though prepared to moderate that purpose owing to your mental health issues, but it is far from eliminated as a purpose and it must still be given adequate weight.
56 I must pay regard to current sentencing practices, but it is not a controlling factor.
57 I have looked at the online statistics held by the Sentencing Advisory Council as well as cases within the Judicial College of Victoria sentencing manual. Also the relevant Sentencing Advisory Council's snapshot. No. 237 of 2020.
58 The statistics disclose that whilst not every offender is gaoled for aggravated burglary, the vast majority are. The most common prison sentence imposed for this crime is a term of imprisonment falling between three and less than four years. So sizeable sentences are imposed.
59 But what do statistics tell me about what must happen in this case? Well nothing at all. That is because they have inherent limitations and so too do other cases.
60 Other sentences imposed on other offenders for other crimes are not precedents. Every case is very different. So too is every offender. Nor is there any such thing as one correct sentence to be imposed. The fact that a particular disposition is the most common statistically, says nothing about what is required in your case. As I've said, this strikes me as a quite unusual example of aggravated burglary. You were not driven by a desire to steal or by jealousy or a desire to seek revenge arising from some long running disagreement or feud. You were motivated by what you believed was happening in that downstairs flat and your desire to intervene. There was nothing wrong at all in wanting to draw the authorities' attention to what you were hearing, but you just went about it in entirely the wrong way by going down there and doing what you did. Of course, that is why you are sitting in the dock of a court.
61 What I must do at the end of the day is pass an appropriate sentence for your crimes. I had you assessed for your suitability for a community corrections order. I have received back one assessment report and also a brief email relating to the mental health condition. It occurs to me I should mark those as exhibits. They're not Crown exhibits, but I'll mark them as Exhibit B on the plea. Apparently, there were issues with the mental health assessment being conducted as there was no capacity to undertake it. That had nothing to do with you.
62 You were judged to be suitable for a community corrections order and pretty obviously a mental health condition would be desirable in the event that I decide to place you on such an order. You have a high risk of re-offence. Can I release you onto such an order and if so when? Or am I required to return you to prison with that release fixed sometime down the track either onto a community corrections order or even provide for the possibility of release by fixing a non-parole period. Your being judged to be suitable for a community corrections order does not provide the answer to that question.
63 There would, as you have heard me say, be nothing unusual about a sentence of some years being imposed for an instance of a confrontational aggravated burglary. As I said a moment ago, the most common prison sentence fell in the range of three to under four years. Must I sentence you at that level and fix a non-parole period, as your possible release mechanism? Or is it open to me to impose a combination sentence here with a prison term, perhaps even a term equating with the existing pre-sentence detention of 109 days?
64 There is material before me that leads me to think that returning you to prison may be the very worst thing, not just for you, but probably also for the community. The community has a vested interest in your ongoing rehabilitation. Sending you back to prison now may well actually increase your future risk by interrupting the treatment regime and breaking the bonds that exist between you and your current treaters. That treatment seems to be working pretty well. Interrupting it might in fact be a very bad step, not just for you, of course it would be for you, but also for the community.
65 I do not however believe that a standalone community corrections order can achieve all the purposes of sentencing in the circumstances of this case.
66 I believe however, that it is open to me to admit you to a combination type order. So, prison together with a community corrections order, and in the circumstances, I believe it would be a retrograde step to return you to prison today. I may have to in the future if you breach my order, do not think I would not. But at this point, I believe it is open to me to convict you on all charges and to impose an aggregate prison sentence of 109 days as well as admitting you to a two-year community corrections order. So, that 109 days as part of a sentence, has already been served by you so of course you will not return to prison today.
67 So, on all charges, I am going to convict you and sentence you to 109 days and as I say admit you to a two-year community corrections order.
68 Now, I need you to understand what I am proposing as I can only place you on an order such as this, if you consent. I will explain what the order involves and ask if you consent to it, and I will give you a chance if you need to speak Mr Marsh, Mr Wighton. You have had these orders before and I'm sure you have an understanding of what they involve. You have not been particularly successful in complying with them. You may even have been lucky in terms of the way in which you have been dealt with upon breach, when you have been taken back to court. I never want anyone to consent to one of these orders and to come back and breach, and say to me ‘I did not know what could happen’. You will know because I am telling you now.
69 So let me deal with the order. As you know, it will be a two-year order and you will be required to attend at the Werribee Community Corrections Services and the address is on the document within two working days. But in fact, I think your starting point will be to ring the number on the document, and they will then give you further instructions.
70 These orders have mandatory terms, they apply to every person who gets one. You are getting one, so they apply to you. They are the same mandatory terms that have applied in the past to you, which you had difficulty complying with. The first of them is a pretty obvious one. You must not commit any offences. So, you must not commit any offence, for which you could be imprisoned during the time that this order is enforced. It is in force for two years, from today, you have got to stay out of trouble. You do not commit crimes.
71 Virtually every offence these days is punishable by a term of imprisonment. If you commit an offence that in theory could be punished by a term of imprisonment, then you will breach this order. To give you a further example of it, not that I am suggesting you are going to do this. But just supposing you went into a milk bar and you were tempted to take a - what is it a 50 cent, Freddo frog or something like, a little chocolate bar or something like that, that is a charge of theft that would be laid against you. I do not think there's any Magistrate in their right mind who would send someone to prison for stealing a Freddo frog, but theft of even an item like that, would breach this order.
72 In other words, you stay out of trouble. Using drugs. Possessing drugs, you have got to possess them to use them, and possession of drugs very often will carry with it a term of imprisonment. So, even that would breach this order. You must stay out of trouble.
73 You have to report to and receive visits from the community corrections officer. You have to report within two clear working days, by ringing that number on the document. You have got to let them know, within two clear working days of changing your address, or your job if you get one. So, you are going to be remaining at home with your mother and your sister. You cannot just get up and leave. You get up and you tell corrections where you are going. You don't tell them a month after you have moved. Corrections have to know where you are, and you have got to tell them. You have got to do it within two working days of any change.
74 You are not allowed to leave Victoria without first getting permission to do so from your corrections officer. Now, I am not saying they would not give it to you. If you are doing very well on the order and there is some particular reason for you to want to travel interstate, no doubt, they would give you permission. But you do not just get up and leave. You do that and you breach the order.
75 You have also got to obey all their lawful instructions. So they are the mandatory terms, they apply to you, in the same way as they apply to anyone who get one of these orders.
76 Then there are the conditions that I tailor to meet your needs, and also the needs of sentencing. Now, one of these is unmistakably punitive and it is going to involve you having to do some unpaid work. It will be a very modest amount of work in the circumstances. That is over the period of this order. Get it over and done with as soon as you can, would be my advice to you. You must perform 125 hours of unpaid community work, over the period of this order, as directed. You are going to be under supervision, of a community corrections officer for the full period of this order. You have to undergo assessment and treatment including testing for drug abuse, or dependency, and for alcohol abuse or dependency. You must undergo any mental health assessment and treatment. It is a longer condition than that but that is what it amounts to. Any mental health assessment and treatment as directed by your corrections officer. You must participate in programs and/or courses, that address factors relating to the offending as directed by the regional manager.
77 So there is a fair bit in all of that. But they're the full suite of mandatory terms and conditions that apply to this order. You comply with them and we will never meet again. If you fail to comply with them then you will be breached, and you will be brought back to court. You have had these orders in the past. You have probably not been appropriately medicated in the past when you have had them. You have probably not even been appropriately diagnosed I suspect. Things have fallen into place a bit in that respect now.
78 Treat your community corrections officer with respect. Keep them informed about what is going on in your life. They will be able to assist you. If you are needing assistance, no doubt they will be able to assist you. If you are finding yourself having trouble in terms of relapsing in relation to drugs, get some assistance from them. Do not be ducking and weaving away from requirements to be tested. It is much better to turn up at a test, even if you think that you have had a relapse and you might provide a dirty sample. If they see that, they are hardly going to rush you back to court to breach you on this order. If there is an indication that you need further assistance in terms of drug and alcohol counselling, then they will assist you further. But if you are ducking and weaving and trying to avoid being tested, you will find your way back to court by way of breach.
79 If there is any sort of issue in terms of turning up under this order for any of the reasons you might be directed to attend, either to unpaid work, or for some sort of assessment or treatment, if you think there are going to be problems doing that, raise them in advance. Even if there was something urgent that cropped up on the day, do not just bury your head in the sand. Get on the phone to them and put them on notice that you are having trouble. Then no doubt they will reschedule your obligation under the order. So many people get these orders. They are pretty happy to get them when they get them. It is better than the alternative of being sent to prison. They are relieved to get them and they get back out in the community and then they realise they are actually not that easy to comply with.
80 You have had these orders in the past. You have not found them easy to comply with in the past. So you have got the chance to avoid this matter being taken any further of course, simply by complying with this order.
81 I haven't told you the ramifications if you breach, and I think I had better, because you have been taken back for breach from time to time, and I do not think too much has happened to you. Do not work on the theory, that is what will happen if you breach this order, all right? I do not want you working on that theory. If you breach this order, either by breaching any of the mandatory terms, by committing offences or by not complying, not turning up at unpaid work or whatever it might be, then that itself is a criminal offence of breaching a community corrections order.
82 That is the starting point but that is not the real sting. The sting is this. You get brought back to court. And you get brought back to this court. You will not be taken to the Magistrates' Court. You come back in front of this court and you come back in front of this judge. Me. I will have a note of what I am telling you now, and not only a note of it, I will have a video of what I am saying. I will watch it before I come on and deal with you for any breach. I will see the warning that I am extending to you.
83 So, what can a judge do, with a person that comes back in breach? I do not think too much has happened to you in the past, but as I say, do not think that is the likely outcome if you breach this order. You are before me on an aggravated burglary and these other charges. I am dealing with you in a combination fashion, by sentencing you to prison for 109 days, plus the community corrections order.
84 The court has only got very limited options in dealing with a person who is brought back in breach. Of course I would have to take into account anything that was said on your behalf, I would have to make an assessment of the nature of the breach and the efforts that you had made on the order. So, I cannot say exactly what I would do. I would need to listen and act according to the matters before me as they then existed. But I can tell you, I have been a judge for over 10 years and for the vast majority of matters that come back for breach of a community corrections order, I cancel the order.
85 Well, that probably sounds an attractive option, what could be better than having the order cancelled? The trouble is, I cancel the order and then I re-sentence you. So, I have to re-sentence you on the same three charges. You really need to work on the theory, if that takes place, if you breach this order, you are likely to be sent to prison with a prison sentence with a head sentence with a non-parole period.
86 Now, let me just satisfy myself that I have going to get an informed consent, Mr Marsh do you want to have a chat to your client, or are you satisfied that I have adequately explained it and that he will understand what I have said or not?
87 MR MARSH: Although I'm confident Your Honour has adequately explained everything, I might just, in the circumstances just take a moment just to speak to Mr Wighton, if you don't mind?
88 HIS HONOUR: Of course, yes.
89 MR MARSH: Would you mind if I just approach the dock, Sir?
90 HIS HONOUR: Do you need a copy of the order or not?
91 MR MARSH: No, Your Honour, I don't.
92 HIS HONOUR: All right. Well, you pop down and - - -
93 MR MARSH: Your Honour I'm satisfied that Mr Wighton understands both the terms of the order and the consequences of a breach of the order.
94 HIS HONOUR: Yes, all right, thank you. Look I'll sign it and get him to sign it as well and then we'll be - - -
95 MR MARSH: I'm sorry, Your Honour, I should say and consents to it, of course. Yes.
96 HIS HONOUR: Yes, thank you. As is apparent from my reasons, my greater focus in terms of this order is on the aspect of treatment and rehabilitation. So, what I am going to do is I am going to allow for the hours performed by way of treatment and rehabilitation, to be counted as hours of unpaid work without limit. So, at least there is that ability to credit as against the unpaid work for his efforts on the other part of the order.
97 MR MARSH: Yes, Your Honour.
98 HIS HONOUR: I'll sign that. I wonder if you would be good enough to have that taken down to your client and get him to sign it, Mr Marsh and - - -
99 MR MARSH: Of course, Your Honour. Just one matter occurs to me as I'm on my foot.
100 HIS HONOUR: Yes.
101 MR MARSH: It may be that you were coming to this, but 6AAA declaration.
102 HIS HONOUR: No, it will be coming shortly.
103 MR MARSH: Thank you, Your Honour.
104 HIS HONOUR: Well I wonder if you would just stand up then please, Mr Wighton. Do you confirm then that you are consenting to entry onto this community corrections order?
105 OFFENDER: Ah, yes.
106 HIS HONOUR: All right, grab a seat then and you will get a copy of the order in due course, all right?
Pre-sentence detention s18
107 I have made a declaration pursuant to s18 of the Sentencing Act as to the time that he has already served in custody. I declare that the period of 109 days has already been served pursuant to this sentence. That amount is to be noted in the records of the court. It follows then that you do not return today to prison today, it is 109 days plus a two-year community corrections order and you have got credit already for the 109 days you have served.
6AAA
108 I have told you that I have reduced your sentence because you have pleaded guilty, and that is the fact. Let me tell you the dimensions of the reduction. If you had run a trial and been convicted of these offences, I would have sentenced you to be imprisoned for a period of three and a half years. I would have fixed a non-parole period of two years and four months. So, that is also to be entered in the records of the court.
109 Let me just see if there is anything else I need to deal with? Anything from your perspective Mr Glass or not?
110 MR GLASS: No, Your Honour.
111 HIS HONOUR: Mr Marsh, anything from you?
112 MR MARSH: No, Sir.
113 HIS HONOUR: No, all right. Thank you. All right, well look that completes the matter then and no doubt Mr Marsh will have a chat with to you, once I've left the Bench and once you are out of the dock as to what this all involves. You understand that you've consented to this order. Just explain to your client again though the very limited options that exist in the event he breaches an order such as this Mr Marsh.
114 MR MARSH: I've posed the question to him, Your Honour, and his answer was, 'I will go to gaol.' So, I think he - I think that's right.
115 HIS HONOUR: Yes, that's a fair assumption, so all right. Well, that completes the matter. Thank you very much each of you for your assistance,
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