DPP v De Luca

[2019] VCC 1813

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

Case No. AP-17-1712

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD DE LUCA

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JUDGE:

Lewitan

WHERE HELD:

Melbourne

DATE OF HEARING:

20 August, 15 and 25 November 2019

DATE OF SENTENCE:

25 November 2019

CASE MAY BE CITED AS:

DPP v De Luca

MEDIUM NEUTRAL CITATION:

[2019] VCC 1813

REASONS FOR SENTENCE

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Subject:         Contravention of Community Correction Order

Catchwords:  Contravention by non-compliance and further offending

Legislation cited:      Sentencing Act 1991, ss 83AD, 83AS.

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APPEARANCES:

Counsel

Solicitors

For the DPP

Mr G Buchhorn

John Cain

Solicitor for

Public Prosecutions

For the Accused

Ms L Ristivojevic

Sarah Tricarico

Lawyers Pty Ltd

HER HONOUR:

On 11 September 2017 you, Mr De Luca, were convicted of one charge of possess methylamphetamine (charge 6), affix number plate other than issued to vehicle (charge 7), possess alprazolam (charge 12), possess a schedule 4 poison (charge 13), fail drug blood test within 3 hours of driving charge 15). You were ordered to serve a Community Correction Order for a period of 12 months to commence upon completion of a term of imprisonment imposed for the commission of further offending. 

You were released from custody on  12 April 2018 and  the Community Correction Order commenced on that day.  The Community Correction Order expired on 11 April 2019.

It is now alleged pursuant to s83AD(1) of the Sentencing Act 1991 (Sentencing Act) that you have contravened the Community Correction Order  without reasonable excuse as follows:

1.        You failed to undergo treatment and rehabilitation as required on 12 October 2018.

2.        You failed to be supervised, monitored and managed as directed on 24 July 2018, 28 August 2018 and 25 September 2018.

3. On 4 June 2019 you were convicted of further offences during the operational period of the Order. You were convicted of prohibited person possess firearm, traffick heroin, possess methylamphetamine, deal property suspected proceeds of crime, resist emergency service worker on duty, unlicensed driving and state false name when requested. You were sentenced to 2 years imprisonment. Time held in custody was reckoned as 255 days. The sentence of imprisonment was to be served by way of a drug treatment order under s18Z of the Sentencing Act 1991.

On 13 August 2019 you were remanded in custody for alleged further offending for attempt to possess butanediol, possess methylamphetamine, prohibited person possess firearm and traffick methylamphetamine.  The offences are due to be heard on 31 January 2020.          

A report dated 19 August 2019 and addendum report dated 7 November 2019 have been prepared in relation to the Drug Treatment Order for which you were sentenced on 4 June 2019 with an expiry date of 3 June 2021.  In the addendum report, Adam Nixon Case Manager and Jennifer Grass Supervisor, Melbourne Drug Court Community Correctional Services, state:

Mr De Luca has made limited progress on his DTO due to his period of remand and may benefit from a further opportunity to engage with the service if his alleged further matters are favourably resolved and he is still eligible to continue his DTO.

Section 83AD of the Sentencing Act 1991 (Sentencing Act) provides:

(1)       An offender who is subject to a community correction order must not contravene that order, unless the offender has a reasonable excuse.

Penalty:         3 months imprisonment.

I find that you have contravened the Community Correction Order imposed by this Court on 11 September 2017.  You are convicted of breach of the Community Correction Order and sentenced to a term of imprisonment of one month.

Section 83AS of the Sentencing Act sets out the powers of the court on a finding of guilt for contravention of a Community Correction Order in the following terms:

(1) If a court finds a person guilty of an offence under section 83AD (in addition to sentencing the offender for the offence) the court must –

(a)       vary the order in any manner set out in section 48M(2)(d),(e), (f), (g) or (h); or

(b)       confirm the order originally made; or

(c)       cancel the order (if it is still in force) and, whether or not it is still in force, subject to subsection (2), deal with the offender for the offence with respect to which the order was made in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence; or

(d)       cancel the order and make no further order with respect to the offence with respect to which the order was originally made.

Section 83AS(2) provides that in determining how to deal with a person who has breached a Community Correction Order, the Court must take into account the extent to which the offender has complied with the order.

In a report dated 24 June 2019 Melissa Harty, case officer, Box Hill Community Correctional Services advised that you engaged well in the first two months of the order after your release from custody on 12 April 2018.  You successfully attended 8 consecutive supervision appointments.  Your attendance rapidly declined in June 2018. 

Treatment and Rehabilitation – Drugs

You were assessed for treatment with ACSO COATS on 9 April 2018 while you were in custody and successfully completed the four required sessions of treatment and support at Eastern Access Community Health on 30 April and 8,15 and 29 May 2018. 

Treatment and rehabilitation – Mental Health

You provided a medical certificate on 13 June 2018 from your general practitioner, Dr Dean Membrey.  Dr Membrey’s certificate dated 7 May 2018 stated that he completed a mental health assessment and did not find a need for further mental health support.

Treatment and rehabilitation offender behaviour program

A referral for an offending behaviour program was made by the Box Hill Community Correctional Services.  You were added to the wait list however a pending assessment was deferred due to your reoffending.

Judicial Monitoring

The Judicial Monitoring hearing scheduled for 7 December 2018 was vacated due to your further offending.

The Box Hill Community Correctional Services acknowledged the engagement that you displayed at the commencement of the Order.  It was also noted that you are currently the subject of an order with the Drug Court and recommended that your order be cancelled.      

Taking into account the submissions made by your counsel, the extent to which you complied with the conditions of the Community Correction Order, your pleas of guilty and the principles of totality, I propose to cancel the Community Correction Order and make no further order with respect to the offences with respect to which the order was originally made.