DPP v Boulton
[2013] VCC 972
•20 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-02361
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES BOULTON |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 & 18 June 2013 | |
DATE OF SENTENCE: | 20 June 2013 | |
CASE MAY BE CITED AS: | DPP v. Boulton | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 972 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: Armed robbery – cause injury recklessly – poly-substance abuse – deprived background – psychological illnesses – prior criminal convictions
Legislation Cited: s.75A(1) of the Crimes Act 1958 – s.18 of the Crimes Act 1958
Cases Cited:R v. Verdins [2007] VSCA 102
Sentence: Charge 1: Convicted and ordered to serve a Community Corrections Order for a period of 8 years. Charge 2: Convicted and ordered to serve a Community Corrections Order for a period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Hogan | Office of Public Prosecutions |
| For the Prisoner | Mr J. Williams | Victoria Legal Aid |
HIS HONOUR:
1 Mr Boulton, you can stay seated for the moment. There are a number of things I have to go through in regard to your background and as to the circumstances which have led to your sentence. I need to record those for posterity, and should anyone want to look at such, or should they be required to be examined by any other Court. Most importantly, of course, so you know why you have been sentenced.
2 In regard to the document I just referred to, which is the assessment of 12 June 2013, a positive assessment, I would like to thank the assessing officer, Mr Bain, for preparing the report so promptly at the Court's request.
3 Mr Boulton has pleaded guilty to two charges in Indictment Number C12721142. Mr Boulton was represented by Mr Williams, and Ms Hogan appeared on behalf of the Director.
4 Those two charges arose on 26 September 2012 at the Box Hill Gardens. Charge 1 is an armed robbery, which is a breach of s.75A(1) of the Crimes Act 1958, for which the maximum penalty prescribed by Parliament is one of twenty-five years' imprisonment. Charge 2 is of one of cause injury recklessly, a breach of s.18 of Crimes Act 1958, for which Parliament has prescribed a maximum penalty of five years. Each of those penalties, in particular of the armed robbery, indicate the serious nature of such crimes, and the manner in which Parliament, on behalf of the community, views such crimes.
5 Exhibit A was tendered by consent of each counsel, and contains the facts upon which this plea was undertaken by you, Mr Boulton. To say the least it displays outrageous behaviour. A member of the public walking through a local playground in Box Hill is confronted by you, ultimately with a weapon, whereby cash and a wallet is demanded from him. As the learned prosecutor says if that is not bad enough, your behaviour was persistent. You wrestled with him. The victim was particularly concerned when he saw the knife in your hand. During that time he was assaulted by others. You are not sentenced for those assaults. However the fact that you assaulted and committed these crimes while in the company of others is an aggravating factor.
6 The struggle between you and the victim continued unabated and at some stage the blade on this small knife broke and the victim took the knife in his own hands. I am not too certain whether that is where he suffered the injury to his hand which subsequently required three stitches, it probably is. Subsequent to that, you then punched him three times into the right eye area and temple area. Bystanders then came and dragged him away. He was then again pursued by you, and apparently another. He defended himself. Indeed, he defended himself pretty well in the circumstances and got to a situation where he was apparently on top of you, with the knife in his hand at this stage, controlling you.
7 This must have been a pretty dangerous position because when the police arrived they drew their weapons and threatened the victim himself. The victim being in possession of the knife at that stage dropped it when requested. However obviously such was a very dangerous situation brought about for him by your actions. You were arrested and at that stage it was found that the $20 that the victim was missing was on your person, and that makes up the armed robbery charge.
8 As I say, in the victim impact statement, the only effective injury was the three stitches caused by the handling of the knife. There was no allegation of you in fact stabbing him. Insofar as the victim impact statement was concerned, the victim expressed anger. He was concerned in particular about innocent people, as he called them, walking through parks being subjected to knife attacks and not able to defend themselves. However, as he pointed out, he was capable of defending himself in the circumstances.
9 Objectively such represents grave criminality. This was a sustained attack, as described by the learned prosecutor, on a member of the public committed when you were in the company of others. As I say, you are not to be sentenced in any way for their actions. However insofar as the circumstances surrounding the victim, you were indeed in company of others and the prosecutor described this, in terms of the victim impact statement, as something that was terrifying and it was clearly instigated with the intent by you to steal something at least.
10 In those circumstances the proffered sentencing submission by your counsel of a Community Correction Order was submitted by the learned prosecutor as being outside the range, and she further submitted that imprisonment was the only sentencing disposition that was within range.
11 In regard to Mr Williams' plea, he did not gainsay the seriousness of these offences. Counsel’s aim of course, as I have said, was to persuade the Court that by way of a combination of a period of three months' gaol and a Community Correction Order in its modern form, being the only alternative now provided by Parliament to a direct term of imprisonment, that in all the circumstances such was an appropriate sentence.
12 Insofar as your priors, Mr Williams submitted it was necessary to look at their context, that being the context of your whole life. As I think I said during the hearing, albeit an armed robbery charge when you were eighteen years of age, given your background, the priors were certainly not what could be expected. Your upbringing is quite remarkable, and is ascertained by an analysis of your background provided in the various exhibits tendered.
13 The first of those is Exhibit 1 which is the psychological report of Dr Janev. At p.2 of that report is your background history. To say the least it is somewhat remarkable. It reminds me of the types of histories that I get when I have to sentence Indigenous members of our community. You, like they, come to be sentenced like everyone else in the community without any special preference being shown. Everyone is equal in front of the law. However what is relevant is an understanding by a Court of the socio‑economic circumstances and environment in which a person has been brought up insofar as it has relevance by way of shedding light as to the particular offences committed, and the circumstances of the offences.
14 Your background, to be precise, family background, seems to be particularly difficult. Your actual father has never been met by you and nor do you apparently wish to meet him. Your adoptive father seems to have been particularly inappropriate to adopt children, given the beatings and viciousness with which you were brought up. Equally, you seem to be unlucky enough to have a birth mother who treated you in a most outrageous manner.
15 As described by the psychologist at paragraph 2.3, you impressed Dr Janev as a man deeply traumatised by early neglect, abandonment and abuse experience. She described your history, which seems to be good by way of hard work, albeit that you did not get an extensive education. Dr Janev described your current relationship which has had difficulties, essentially in regard to substance abuse of your partner, Danielle, and yourself and your own mental issues.
16 You have been supported by way of a disability support pension since 2001. Paragraph 5 describes your long standing poly-substance abuse. You, because of your upbringing, were addicted to alcohol. It seems remarkable to say but it would appear from the age of twelve, as it almost natural in those circumstances, you moved on to many other substances. Ultimately you became addicted to heroin and indeed amphetamines. At the age of twenty-five you apparently received some assistance in regard to heroin, however you continued to utilise speed.
17 Your mental state was tested and appropriately analysed and the diagnoses in regard to you were detailed at paragraph 8, p.7 of this report. They show a plethora of problems, essentially multi-substance dependence disorders, a depressive disorder, post-traumatic stress disorder, in conjunction with a borderline personality disorder. At paragraph 8.2 Dr Janev said this:
"Mr Boulton's conditions are of a pervasive nature dating back to his childhood years. They are likely to require a comprehensive and long-term treatment approach to achieve diminution of symptomatology."
18 Your presentation is fragile and it would appear, if one is looking at rehabilitation that you are at frequent risk of relapse without such treatment. Your risk of relapse, which she describes as moderate by way of recidivism, depends obviously upon such treatment. Dr Janev wondered whether there is some cognitive impairment and suggested that there was a strong relationship between the multitude of disorders you were suffering at the time of offending and your capacity and vulnerability to erroneous actions, inability to disassociate yourself, being impacted by your impulsivity and reactivity to the moment. Indeed she said that your mental condition was such as to decrease your capacity to form rational and clear thoughts and judgments, regulate your emotions or choose alternatives to offending and carefully consider the consequences of your actions.
19 Dr Janev spoke of the problems, without treatment, that you will suffer in the future but also was of grave concern as to the detrimental effect and impact upon your mental state of incarceration. She considered you were appropriately remorseful and indicated that you were very keen to engage in the community and a positive life away from drugs and crime. Given the concern as to your neuropsychological state a report was provided by Arbias, which was tendered as Exhibit 2, and that was a neuropsychological assessment of Dr Hutchins of 20 May 2013.
20 It would appear, despite the concern that you do not in fact suffer any neuropsychological factor which can be sheeted home as a cause of this criminality, as Dr Hutchins says at p.3:
"There is little evidence that your weaknesses on cognitive testing contributed to you offending."
21 Dr Hutchins points to the substance dependence disorder and your mental health issues, of which I have already discussed, as being clearly related to your offending behaviour. It is also noted that you had encountered problems of self harm within the prison environment and also that you had breached rules despite your professed desire to give up and deal with your alcohol problem, one of those breaches being that you were found in prison with alcohol.
22 A report of your general practitioner, Dr Radcliffe, of 2 December 2012 was tendered as Exhibit 3. Such report I think must have been associated with you obtaining bail. I am not sure about that. But certainly that is the date.
23 The mental health issues of which you were seeking assistance with were noted. It was noted that insofar as your consultations with the doctor, she had observed a hopelessness and a sadness about you and she noted on p.2 the history of dependence that I have referred to, the alcohol abuse, your being a victim of gross child abuse and a generalised anxiety and depression that have dogged your life since that time.
24 Again, the doctor was concerned about the effect of imprisonment upon you. Dr Radcliffe thought that it would increase both your sense of hopelessness and failure, and confirmed in her view the need for a stable therapeutic relationship with an appropriate psychiatrist to be built up over time.
25 In this regard, also tendered was Exhibit 4. Exhibit 4 is a report from a counsellor, Ms Campbell, who was in fact at and about the time of these offences, attending to your mental and drug problems. They apparently had come about from issues within the family and problems with family child protection in about the January of the year that these offences occurred.
26 It was noted that your goal for counselling was to cease drinking alcohol. It was noted also that you had recognised the negative effects when you were drinking, that you were more prone to express anger and not to function effectively. Indeed at p.4 of Exhibit 4 it was noted that prior to these crimes you had attended for assessment, firstly for mental health in the June and September and then for a number of counselling sessions, with Dr Radcliffe, I should say, that I have already referred to, and then for a number of counselling sessions with Ms Campbell.
27 It was Ms Campbell’s intent at about the time of these crimes to try to find a mental health professional with expertise in the treatment of traumatic stress who would look after you. In particular leading up to these crimes she noted that you were going through a distressing time, reporting uncontrollable memories about a person who had died and your own traumatic memories from childhood, apart from some specific issues with your partner's son. Significantly it would appear on the day these crimes were committed you expressed such concern and ongoing issues. There was a clear recommendation as to appropriate need for treatment of your numerous conditions by that counsellor.
28 Insofar as the plea was concerned, conducted as I said by Mr Williams, those matters were relied upon particularly as a background to these crimes. He took me to your own prior convictions and, on your instructions, to the circumstances just prior to these crimes. Apparently you had had a consultation with your adoptee parents, and particularly your adopted mother. There was an issue that was raised insofar as the treatment upon you by your adopted father, which apparently she denied. As a result thereof, consistent with your inability to control your emotions and your resort to alcohol, it appears that you went on a, I think I might have used the term "a bender" leading up to the circumstances of these offences.
29 It was put that in the record of interview you had been frank. That it was an early plea and that you had accepted your responsibility from the start. Indeed, as it was pointed out, you could not believe that you had behaved in such a manner. I make the point in that regard that your prior offences certainly give no indication of a person prone to violence while under the effect of alcohol. On your own admission you are prone to anger. However, you have had a continued period from a very young age through to your current age when you have no prior offences whatsoever for violence.
30 Your circumstance on this particular day cannot be recognised as a reaction and crimes committed by someone who was, and should have known better, as to how they may react under alcohol. Mr Williams submitted that these crimes were not planned, that they were spontaneous. I do not think there could be any dispute in regard to that.
31 Mr Williams relied upon the background which I have detailed and he went through to those circumstances as to your adoption at a young age, your formal adoption, the problems with your mother and your father and the manner in which you were treated. All of those matters are specifically set out in the reports and I am not going to go through them again. Your reduced level of education, the manner in which you were at the age of eighteen given a sentence for attempted armed robbery in a youth training centre and that you completed youth parole without a problem.
32 You met your current partner in 2009. There are problems within the family. There is apparently a product of that relationship, and if I use that in the nicest way, that is your child, Jasmine. And there are problems in this relationship because of addiction problems of your partner. The circumstances as to your attempt, as set out in the counsellor's report, to try and rid yourself of the impact of substance abuse were detailed. It was obvious that such report shows the mental distress and the fact that you were not coping leading up to these crimes.
33 It was put that I should accept that the circumstances here do show a particular relationship on R v. Verdins [2007] VSCA 102 principles between your mental state and the criminality on this day. I accept that proposition. It seems to me clearly beyond dispute on the medical material before me, that your capacity to control, to appreciate and to have appropriate balance in your life was grossly impaired. It may well still be. Your judgment also to think calmly remains so affected and I have no doubt of the causal connection between your mental state and the conditions diagnosed, which I have detailed, and the crimes here. .
34 That of course in one way does not make my task any easier. As I say, when one looks at your prior offences it is, it seems to me somewhat remarkable. If you look at what can only be described as your exceptional upbringing, for a person who has been so afflicted by way of substance abuse, apart from the attempted armed robbery when you were eighteen, and the significant penalty you suffered. From that time to this, that is over ten years of your life, during the whole time of you then suffering from mental problems and substance abuse, you have had really one minor offence. It is indicative of some inner strength which gives me hope as to your rehabilitation if you receive the appropriate treatment.
35 The principles of Verdins apply very much, in my view. The culpability of your crimes on this day was reduced. I also have no doubt upon the reports, albeit that you have been in gaol for some time, that there are grave issues insofar as the impact upon you of a gaol term. I would also have hope, given your background and the somewhat remarkable circumstances of your lack of criminal offences, of rehabilitation for you.
36 Unfortunately this must also be balanced against the severity of the attack. As I said, in one way this is an armed robbery almost at its lowest point, an armed robbery of only $20, which as I said, is almost incidental to the circumstances. However on reassessing it, it really was the basis of the attack. You wanted, whether it was $20, it might have been $200 in the person's wallet. You wanted something from this poor individual who was passing through and you were prepared to use force to get it, indeed you used a knife.
37 I think the evidence, and I accept your statement that you did not bring the knife, but clearly it came from somewhere and you clearly utilised it on the victim. In analysing the criminality, Mr Williams put that it was spontaneous and I have no doubt about that considering your alcoholic state. Such state is confirmed by the fact that the police officers determined it was inappropriate and that you could not be interviewed for some considerable time. I have no doubt that this criminality was not planned.
38 Fortunately for you no long-term injury was caused, apart from the emotional effect upon the victim, to which he has spoken. As I say, objectively, these crimes are highly culpable and call for the need for a sentence which effects denunciation, general deterrence and specific deterrence. However the sentencing principles that I have been referring to in Verdins call for and impel the Court to pass a sentence which appreciates the reduced culpability for these crimes brought about by the mitigating effect of your travails in life and your addictions. I have no doubt of the causal impact in those regards.
39 Your counsel described such background and the impact upon you at the time of these crimes as one that was exceptional. I accept that in the particular circumstances of your case and the manner in which you have been brought up and the intensity of your polysubstance abuse. The balancing of such factors in this case has not been easy. As I say, I am fundamentally concerned about appropriate punishment being metered out to someone who attacks a person and an innocent person in this manner. However I think a proper analysis of the actual criminality, and the surrounding circumstances does call for a sentence which may be seen as exceptional.
40 One of the reasons why I have determined, subject to what Mr Williams has to say, to consider his proposition is your very capacity to live a crime-free life. As your records show from the time of eighteen, when you were placed in youth detention for the attempted armed robbery, you have not been involved in any criminal activity. That shows very clearly to me that the circumstances on this day in your life must have been exceptional. There is psychiatric proof that the lead-up to these crimes and your reaction on this day or your criminality on this day was predicated by grave mental distress which was no doubt exacerbated by the amount of alcohol you had on this day. You say in your record of interview you have no memory of what you did. I must say I question that. However it may well be that you do not have any precise memory of what you did, but as I said you were very open and honest about accepting responsibility.
41 At the time I called for the Community Correction Order assessment report which is now Exhibit C. I indicated that you should not conclude in any way that the Court would thereby make such an order. The report is positive and it talks about the need for treatment. For one reason or another you have failed to fully benefit from any treatment you have had to date. It seems to me that if you are going to live a worthy life, get back to the life that you have led in the last ten years without assaulting people in parks, then you need extensive treatment, as each of these medical reports say. The only way one can be assured that you do get that is if you were under a regime, and such a regime is now postulated by the Government by the introduction of these Community Correction Orders.
42 What I want to say, firstly and before I get your consent to this is this. It may well be said that you are being set up here to fail. Given your traumatic background it may well be that you simply cannot comply with the conditions and the real answer may be that it is better if you go to gaol and serve your time. You have been now in gaol for a considerable period.
43 I am however in all the circumstances prepared to give you a Community Correction Order. However it would be for a considerable period. I would envisage a period where you are under the auspices of such an order for a period of eight years. During that time there will be an intensive period of three years, during which you will have to perform community work as explained to you for a period of three hundred hours.
44 Throughout the whole term of that eight years it would be my intent that you are subject to assessment and supervision and treatment for your issues. It is important for you to understand and I will ask Mr Williams and I will leave the Bench so he does it that a breach of any of those conditions can now be a breach of these new orders. That would bring you back before this Court. The other matter is this, as I read the Sentencing Act 1991 and in particular s.44(1)(b), what I would envisage is sentencing your client, Mr Williams, providing he was prepared to enter into such an order, on the armed robbery charge to a period of imprisonment of three months, and on Charge 2 to a period of two hundred and sixty-five days.
45 Now as I read s.44(1)(b), as I say none of us have a lot of experience in this, given its new passage but if I pass the Community Correction Order in regard to both offences:
"A Court may make a community correction order in addition to imposing a sentence of imprisonment only if -
a) any sentence of imprisonment imposed is not suspended"
46 Well that is not the problem. And:
"the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under s.18 is reckoned to be a period of imprisonment or detention already served) is 3 months or less."
47 So it seems to me what it envisages is that I would deduct the 265 days, which I will make the imprisonment, I make them cumulative, so the sentence would be 265 days plus three months. 44(1)(b) would mean that that period is already deducted. That would leave three months to go. So effectively your client is getting a prison sentence of 265 days plus three months, but a community correction order is still possible under this. You agree with that,
48 MR WILLIAMS: Yes.
49 The period would be eight years and I just want to say that that is going to be a significant period and a significant demand upon your client and I do not want to be here to set him up for failure. He has had enough problems. There is an alternative argument it might be better if I just sentence him to gaol. So I really need you to explain what is involved and for him to understand fully before I give him - the point about it though is that he would be getting treatment not in circumstances where I questioned while the trial was on, "How is he ever going to pay for it?", but in circumstances where that treatment is being paid for under the auspices of a community correction order.
50 But again, that puts him under a lot of pressure. So I will stand down while you talk to him.
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51 HIS HONOUR: Yes, Mr Williams.
52 MR WILLIAMS: Your Honour, I can indicate I have explained the proposed order to my client. He has indicated to me that he is prepared to consent to the order. He understands the onerous conditions.
53 HIS HONOUR: Well I think they are meant to be onerous now because this is now the only alternative provided by parliament to gaol.
54 MR WILLIAMS: Yes.
55 HIS HONOUR: Obviously given the type of crime that would only be exceptionally used, as you put yourself, albeit your client fitting in, that does not make it any easier for him. In fact it might make it hard because of those circumstances. But one thing that consoles me is the manner in which he has conducted his life since he was 18 and he has a chance in the interests of the community to lead a proper life, provided he gets the treatment that he has not had. Now that might be because he simply has not been determined enough but I think the report of the counsellor shows he has shown determination and he has got to just get himself under control so this does not occur again because it is almost incomprehensible in his 10 year background as an adult how he would behave in this manner.
56 MR WILLIAMS: Yes.
57 HIS HONOUR: That is what gives me some consolation. You might explain to him it was not an easy determination in this case and I would be very disappointed if he came back, failing to honour the trust that he has now been given.
58 MR WILLIAMS: Yes.
59 HIS HONOUR: I will just make it clear that I only intend the work component to be done over the first three years but I do intend the rest of the matters because that is so important for him to be having the treatment et cetera. I have not made an alcohol exclusion. It seems to me that is ridiculous but I would have thought for your client self alcohol exclusion would be so important.
60 MR WILLIAMS: Yes.
61 HIS HONOUR: And any other drug. But that is easier said than done. In the circumstances of this case I think for compliance with parliament's requirements under s6AAA of the Sentencing Act 1991 is almost impossible. All I can say is I would not given a community correction order had your client not pleaded guilty.
62 MR WILLIAMS: Yes.
63 HIS HONOUR: I have signed a disposal order and a compensation order. Madam Prosecutor, is there any thing else.
64 MS HOGAN: No, nothing further, Your Honour.
65 HIS HONOUR: All right well formally then, if you just stand, please, Mr Boulton. On the first count of armed robbery you will be sentenced to a period of imprisonment of three months and on the second count of recklessly cause injury you will be sentenced to a period of imprisonment of 265 days. I order that the second sentence be the base sentence and on top of that be served cumulatively with the sentence for armed robbery, making a total of 265 and three months. Pursuant to the provisions of s.18 of the Sentencing Act I declare the 265 days you have served to date be service of this sentence and that declaration will be noted in the records of this Court.
66 Hence in conformity with s.44(1)(b), having taken account of the s.18 declaration the total sentence that you are to serve for both of these offences therefore, well it is not technically both but what you will be left with is a period of three months, and in that regard I can impose a community correction order as well which I do for a period of eight years. Pursuant to s.41 that community correction order relates to both offences. I will impose an intensive correction period pursuant to s.39(1) of three years and order that you perform unpaid community work of 300 hours over that intensive correction period.
67 Pursuant to s.45 you will be subject to the usual terms of a community correction order and pursuant to s.48(d) and (e) you will be subject firstly under (d) to the treatment assessment and medical, mental and offending behaviour programs, as detailed in the report and under (e) to the supervision as detailed in the report. As I said to your counsel, Mr Boulton, one understands that given your background what I have just assigned you is not going to be easy. However you have got over a bit in your life that has not been easy. It seems to me you have been able to lead 10 years of crime-free life, with appropriate treatment, which the community now will give you, you have got a chance of making sure you are not in front of this Court again and I hope you can take that chance. All right. Good luck.
68 Either counsel do I need to attend to any other matters.
69 MS HOGAN: No, Your Honour.
70 MR WILLIAMS: No, Your Honour.
71 HIS HONOUR: We will just get the order formally done. I thank both counsel for their assistance in this matter. Yes, now, Mr Boulton, it will take a few days. You have got to go back to gaol. I think they have to get all the paperwork. I am not too certain how long it takes but it will take a few days. All right. But essentially my intent is that you are out as soon as possible. Then you have got to report pursuant to that order. Anyway, Mr Williams will explain all that to you.
72 MR WILLIAMS: I will, Your Honour.
73 MS HOGAN: As Your Honour pleases.
74 HIS HONOUR: Yes, take the prisoner away.
75 MR WILLIAMS: As Your Honour pleases.
76 HIS HONOUR: I thank counsel again for their assistance in this matter. Yes, I excuse counsel. Thank you.
20 JUNE 2013
77 HIS HONOUR: Mr Wiliams, your client on holiday I hear.
78 MR WILLIAMS: Yes, Your Honour. Yes. To his credit he's here this morning.
79 HIS HONOUR: I can't quite understand how Corrections managed to let someone out when they shouldn't be let out and there's an order which, on any reading, is that he shouldn't have been let out.
80 MR WILLIAMS: Yes.
81 HIS HONOUR: Anyway we'll make some investigation about that as to who was at fault but the problem is, and then it brings it up, it's a combination of problems, there's the clunky system and as a result of that there's some amendments needed to the original order so all in all it's good that your client's back.
82 MR WILLIAMS: Yes.
83 HIS HONOUR: Albeit he's had a day out. Now I'm not too certain, Madam Prosecutor, whether you pointed this out but what was clearly meant that this didn't need to be an order pursuant to s.41 because that compromises the length provisions in regard to the second charge.
84 MS HOGAN: Yes, Your Honour.
85 HIS HONOUR: So it seems to me that the correction to that should be to simply make them individual and s.41 provides that the terms of each one are served concurrently/
86 MS HOGAN: Concurrently, yes.
87 HIS HONOUR: So that's really what was meant and I think we put them together in good sense but without thinking of that aspect of it.
88 MS HOGAN: Yes.
89 HIS HONOUR: And the other amendment, the original order punches out you'll see total effective sentence is three months, 265 days. Now whether that led to some confusion I'm not sure but it's the clunky system, it should say three months and 265 days.
90 MS HOGAN: Yes, which is what Your Honour said in Court.
91 HIS HONOUR: I did say it in Court.
92 MR WILLIAMS: Yes.
93 HIS HONOUR: So it's purely a mistake but I'm not too certain how Corrections decided that they'd read that, that he could go.
94 MS HOGAN: Yes.
95 HIS HONOUR: But they did apparently and, as I say, we're all happy that Mr Boulton's here and we can remedy the matter. So what I think we should do subject to your views or both of your views is one, I remedy the orders that were made and then we draw a new order which Corrections can have and so there shouldn't be any issues.
96 MR WILLIAMS: Yes, Your Honour.
97 HIS HONOUR: All right. So the original order made on the 18th will stand, and pursuant to S412 of the Criminal Procedure Act 2009 I will amend the order to correct the error made therein being to make only one Community Correction Order and I will impose today two separate Community Correction Orders and pursuant to S 104A of the Sentencing Act 1991 I will also amend such order so that the total effective sentence will now read as three weeks and 265 days.
98 MS HOGAN: Yes, Your Honour.
99 HIS HONOUR: I'll use both of those to make the following amendments.
100 Firstly, direct that three months of the sentence - which I did say - three months of the sentence on Charge 1 is to be served cumulatively upon that imposed on Charge 2. That then gives us a total effective sentence of three months and - it really should be 265 days plus three months. That's the way it should go. Because the first sentence is 365 days and then the second sentence is three months.
101 MR WILLIAMS: Yes.
102 ASSOCIATE: So put Charge 2 first of 265 days, Your Honour?
103 HIS HONOUR: No, it's Charge - - -
104 ASSOCIATE: Charge 2 is 265 (indistinct).
105 HIS HONOUR: I suppose it doesn't matter. Well, yes, because I've cumulated the 265 upon the three months. No, I'm cumulated three months of the sentence on Charge 1 be served cumulatively upon the sentence in Charge 2.
106 ASSOCIATE: Yes.
107 HIS HONOUR: Yes, that's right, sorry. So the total effective sentence is 265 days plus three months.
108 ASSOCIATE: That's right.
109 HIS HONOUR: That's right. So then the s.18 then works, that gets rid of the 265 days and what you've go left is the three months. Then insofar as the Community Correction Orders I'll simply say on Charge 1, convicted and ordered to serve a Community Corrections Order for a period of eight years which is permissible under that matter because there's 25 years.
110 Then Charge 2, convicted and ordered to serve a Community Corrections Order for a period of five years. I don't have to put this in but pursuant to s.41, that provides that they run concurrently.
111 Then the Community Corrections Orders imposed on Charges 1 and 2 commence pursuant to s.44(3) of the Sentencing Act on the release of the offender from imprisonment. So that will mean s.18 gets rid of the 265 days. He then does his three months. He comes out and he's on the concurrent Community Correction Orders. Then we're right. Then no-one should release him hopefully until he does three months.
112 So that's the order we're making today and then we thought we would give Corrections now the order as it stands amended so there won’t be any misunderstanding. Are you happy with that?
113 MR WILLIAMS: Yes, Your Honour.
114 HIS HONOUR: All right. Yes, and we'll need your client to sign the two Community Correction Orders which impose the same conditions except that one's for eight years and the other is for five.
115 MR WILLIAMS: Yes, Your Honour. He understand that.
116 HIS HONOUR: I suppose I have to say to you, Mr Boulton, we're sorry for the messing round but I suppose you got a holiday out of it so there you are. There's a bonus with all these things. I'm told you told the authorities you really shouldn't be going and they said yes, you should.
117 OFFENDER: Yeah.
118 HIS HONOUR: Well there you are.
119 VOICE (from the body of the Court): Central Records have the last say at all times so they would have sent a bit of paper back to say release.
120 HIS HONOUR: Release.
121 VOICE (from the body of the Court): Yeah, we can't do anything until they confirm - - -
122 HIS HONOUR: It's not Corrections so - it's not Corrections to speak - - -
123 VOICE (from the body of the Court): It's Central Records.
124 HIS HONOUR: - - - it's Central Records.
125 VOICE (from the body of the Court): Yes.
126 HIS HONOUR: Well I think my Associate's had some florid or coloured talks with Corrections in the last couple of days.
127 VOICE (from the body of the Court): They always tell us we don't make mistakes.
128 HIS HONOUR: Exactly.
129 VOICE (from the body of the Court): This will have to go up in lights.
130 HIS HONOUR: Yes.
131 VOICE (from the body of the Court): To them, yes.
132 HIS HONOUR: Of course they'll blame - - -
133 VOICE (from the body of the Court): They'll blame us.
134 HIS HONOUR: Either you or me, one or the other.
135 VOICE (from the body of the Court): Yes, I know we can't take (indistinct).
(Community Corrections Orders signed and acknowledged.)
136 HIS HONOUR: Officer, what we'll give you today is the final version. There's two orders essentially but so that it's easier for you we'll give you the final one.
137 (Community Corrections Orders signed and acknowledged.)
138 VOICE (from the body of the Court): Thank you, Your Honour.
139 HIS HONOUR: My Associate will be able to sleep tonight. You gave my Associate heart failure, Mr Boulton.
140 MS HOGAN: Yes, I apologise for not bringing that to Your Honour's attention.
141 HIS HONOUR: It’s not an issue. I think in the - it was fairly unique and I think in understanding the uniqueness of it we all perhaps forgot the precise clauses.
142 MR HOGAN: Yes.
143 HIS HONOUR: Yes, well Mr Boulton don't forget what I've said, all right?
144 OFFENDER: Yeah, no worries
145 HIS HONOUR: Good luck.
146 OFFENDER: Thank you.
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