DPP v Rendell
[2019] VCC 2003
•12 November 2019
IN THE COUNTY COURT OF VICTORIA
Revised
Not Restricted
Suitable for Publication
AT MELBOURNE
CRIMINAL DIVISION
Case No. AP-18-2923
AP-18-2924
DIRECTOR OF PUBLIC PROSECUTIONS
v
ALEXANDER RENDELL
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JUDGE:
His Honour Judge McInerney
WHERE HELD:
Melbourne
DATE OF CONTRAVENTION HEARING:
6 November 2019
DATE OF SENTENCE:
12 November 2019
CASE MAY BE CITED AS:
MEDIUM NEUTRAL CITATION:
DPP v Rendell
[2019] VCC 2003
MEDIUM NEUTRAL CITATION:
[2018] VCC
Subject:
CRIMINAL LAW
Catchwords:
Contravention Community Corrections Order (CCO) – Imposed on Appeal – Original Sentence one of Imprisonment – Breach of Community Corrections Order – Re-sentencing on Original Charges – Whether Further Community Corrections Order appropriate given History of Breaches – Term of Imprisonment Imposed
Legislation Cited:
Crimes Act1958; Sentencing Act 1991
Sentence:
Convicted and re-sentenced to a total effective sentence of 8 months’ imprisonment on AP-18-2923 and 12 months’ on AP-18-1924.
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APPEARANCES:
Counsel
Solicitors
For the DPP
Mr S Davidson for Sentence
Solicitor for the Office of Public Prosecutions
For the Defendant
Ms A Burnnard for Sentence
Theo Magasiz & Associates
HIS HONOUR:
I gave Mr Rendell two Community Corrections Orders (CCOs) on appeal on 21 February of this year. Such orders were made, despite him having been sentenced in the Magistrates’ Court, to gaol. I considered, due to his age, family support and the positive CISP reports that were made in regard to him, that he was worth a further chance.
Unfortunately, such chance has not been taken by Mr Rendell. In a spirited submission to me, on Mr Rendell's behalf, by Ms Burnnard, it was suggested that given some positive aspects in the CCO report, as to supervision and to attending the Australian Community Support Organisation (ACSO), that I should consider continuing the order, or perhaps varying it, by extending the length of the current orders.
The prosecutor, who was then Mr Henderson, submitted, consistent with that submission of Ms Burnnard, an alternative, given Mr Rendell's youth, could be the addition of a more punitive condition such as a work condition which were not on the original community corrections order that I made, they being, essentially, therapeutic.
I indicated I would give such submissions further consideration and adjourn the matter today for sentence.
I have done so, however, despite taking into account the submissions of counsel, I am of the view that the recommendation in the community corrections report should be accepted, that is, that both CCOs be cancelled pursuant to s.83AS and Mr Rendell be re-sentenced in regard to both indictments.
I have decided this for the following reasons. Firstly, each of the charges are serious. In AP-18-2923, Mr Rendell was 22 at the time, the offending occurred on 2 March 2018. The major charge related to trafficking in methamphetamine. The amount involved with which he was found was some 75 grams, which were valued apparently at some $40,000. He was found with cash on him in the sum of $4,565, accoutrements and also capsicum spray.
Insofar as that matter is concerned, on the 10th day of July 2018, the Dandenong Magistrates' Court gave him a Community Corrections Order. Given his youth, and no doubt similar matters that I took into account, for a period of 18 months.
However, Mr Rendell then breached that CCO order 17 days later on 27 July 2018. On this occasion he was found with drugs and cash in the sum of $7,250. The drugs being 21 grams of methamphetamine.
Given the circumstances of the breach, at the Frankston Magistrates' Court on the 29th day of November 2018, Mr Rendell was sentenced to gaol. Twelve months on the original offending and the breach of the CCO, and 18 months on the breach offences.
Such were the sentences appealed to me and, as a result, I, having heard the pleas put to me on his behalf, and for the reasons that I have already indicated, granted Mr Rendell two further CCOs, and warned Mr Rendell at the time that this was his last chance. I stress that was 21 February. Remarkably, four months' later on the 31st day of July 2019, Mr Rendell committed the very same offences again, trafficking in cannabis, possession of GHB and proceeds of crime in the sum of $6,145 found alongside other accoutrements consistent with trafficking.
Mr Rendell was dealt with in regard to those breaching offences at the Dandenong Magistrates' Court on 6 August 2019 and sentenced to eight months' gaol, which he is now serving. I understand he completes his service of such sentence on 30th day of March 2020.
As I said, given the serious nature of this breach offending, despite the valiant efforts of counsel, there is, in my view, and I confirm, no alternative but to follow the course that I had determined should be followed.
Of course in doing so I take into account s.83AS(2) being the extent of compliance in regard to, the albeit limited, but some positive performance of those CCOs.
Formally, I do not know whether we did this last time, we are more concerned with what I was going to do with your client, Ms Burnnard, but do I take it that in regard to each of the CCOs, the plea, pursuant to s.83AD is one of guilty?
MS BURNNARD: Yes, Your Honour, the breaches are both conceded.
HIS HONOUR: Thank you. And just in regard to the pre-sentence detention, as I understand it, prior to being dealt with in the magistrates' court on the 29th day of November there was PSD of 125 days, is that right?
MS BURNNARD: That was right at that time, the position - - -
HIS HONOUR: No, no, just listen to what I'm saying.
MS BURNNARD: At that time, yes.
HIS HONOUR: Yes, and since that time there has been a further 83 days.
MS BURNNARD: Yes.
HIS HONOUR: There was 83 days, in addition, is that correct?
MS BURNNARD: I believe that is right. My total, Your Honour, is 209 days available on the Hessian offending, which is 2924, and four days available on the Murnane offending, which is 2923.
HIS HONOUR: So, wait on. 208 days, 29, I have got it as 28.
MS BURNNARD: No, 209, on 2924.
HIS HONOUR: 125 and 3 makes 8, does it not? Was it not a further 83 days, or is it 84?
MS BURNNARD: 84, Your Honour.
HIS HONOUR: 84?
MS BURNNARD: Yes.
HIS HONOUR: So, 209 days in regard to which one?
MS BURNNARD: 2924.
HIS HONOUR: Right, and then four days in regard to 2923?
MS BURNNARD: Yes, Your Honour. Those four days were served immediately after his remand, very, very early on, before he was released on bail and then went on to do CISP.
HIS HONOUR: Mr Prosecutor, are you happy with those?
MR DAVISON: Yes, Your Honour.
HIS HONOUR: Therefore, if you would stand, Mr Rendell, with that information I intend to sentence you as follows.
On the breach of the two CCOs, that is, the breach of s.83AD in regard to both matters of the CCOs that I imposed on 21 February, I will impose one month gaol in regard to each charge.
Then coming to AP-18-2923. Firstly, on the traffic methamphetamine, you will be sentenced to a period of eight months' gaol.
On Charge 4, drive without a number plate, you are fined $500.
On Charge 6, two months' imprisonment for the possession of prohibited weapon; and
On Charge 8, as happened below, you will be convicted and discharged.
So that the total aggregate period of imprisonment imposed on AP-18-2923 will be eight months; and in regard to that sentence, there is pre-sentence detention of four days.
Coming to AP-18-2924. Charge 1 is again a charge of traffic methamphetamine and you will be sentenced to imprisonment of 12 months'.
On Charge 3, deal in proceeds of crime, you are sentenced to imprisonment of four months'.
On Charge 5, the unlicensed driving, your licence is cancelled and you will be disqualified for two years' from the date the magistrate disqualified you, that is the 29th day of November 2018, from obtaining another licence.
Charge 6, you will be fined $500, that is, driving without registration plates.
That makes a total aggregate sentence in regard to AP-18-2924 of 12 months'.
I order that two months' of the sentence imposed in Sentence AP-18-2924 be served cumulatively upon the sentence imposed in AP-18-2923, making a total aggregate sentence in regard to both matters of ten months'.
I order that six months of this sentence be served cumulatively upon the sentence imposed in the Dandenong Magistrates' Court on the 6th day of August 2019, and in regard to that cumulative sentence, I declare pursuant to s.118, that the 213 days served in regard to both appeals, be declared as periods served in regard to both sentences.
Whether 6AAA applies, I am not sure, because – anyway, assuming it does, all I can say is that had Mr Rendell not pleaded guilty, the aggregate sentence for both appeals I would have imposed is a period of 20 months'.
Ms Burnnard, given the period of which he has served, which seems to me, somewhere about seven months and 16 days, the end result is because of his pre-service of gaol it is probably not going to make much difference in the end, insofar as his ultimate release date.
MS BURNNARD: Your Honour may be right about that. I have not had a chance to do that calculation as yet.
HIS HONOUR: Well, if you work it out, I have ordered that six months of the sentence be served cumulatively, so he has got four months left essentially to the end of March.
MS BURNNARD: Yes.
HIS HONOUR: And then I have said six months be served cumulatively.
MS BURNNARD: That might be taken up by the PSD already, yes, that is right.
HIS HONOUR: This has to be worked out by the Records Office, but I might say I did not design it like that, but given that he has already served seven months and 16 days in regard to both sentences, it has that impact.
MS BURNNARD: Yes, Your Honour, I will explain that to him. If I might just raise a matter?
HIS HONOUR: Yes. Take a seat, Mr Rendell.
MS BURNNARD: Your Honour appears to have engaged in re-sentencing upon offences which were not the subject of the CCO.
HIS HONOUR: No, I have only re-sentenced on what I can re-sentence on.
MS BURNNARD: Your Honour appeared to pass sentence on my note on the registration plates, for example, on 2923.
HIS HONOUR: Well, I just passed the same sentences.
MS BURNNARD: I just wanted to make that clear. Has Your Honour just passed the same sentence?
HIS HONOUR: Yes, because all those matters are just – all the orders are set aside and I have to re-sentence on them.
MS BURNNARD: That's right.
HIS HONOUR: So they are exactly the same sentences, the fines I have not increased any of those and, indeed, your client – it was not confirmed, but apparently this has gone to the – I do not know, did you not tell me last time he has made some arrangements whereby he is able to pay by instalment?
MS BURNNARD: The fines have been called in, yes, Your Honour. That was my first enquiry, just confirming that Your Honour had not – you know, Your Honour was only - - -
HIS HONOUR: I have not changed any of those lesser orders. The only orders I made are the orders in regard to what I see is the real criminality in these matters.
MS BURNNARD: Yes, charges 1 and 3 on 2924, an charges 1 and 6.
HIS HONOUR: Yes.
MS BURNNARD: Because, in fact, it has come to my attention that, for example, the $500 fine on the plates that was imposed at the magistrates' court was, in fact, in excess of what is possible, the maximum penalty - - -
HIS HONOUR: We better not do that then. What is the maximum fine under that?
MS BURNNARD: The maximum fine under that, Your Honour, is two penalty units and by my last calculation, a penalty unit is worth about $170, so $500 would be excessive, but given - - -
HIS HONOUR: It is a relevant penalty unit at the time.
MS BURNNARD: That is right, but given that - - -
HIS HONOUR: What are you saying the penalty unit was?
MS BURNNARD: I do not have a note of it at the moment, but it is about $160 or $170.
MR DAVISON: You are a little bit high there.
MS BURNNARD: Little bit high?
MR DAVISON: Yes.
MS BURNNARD: At the time, Your Honour - - -
HIS HONOUR: The time is – this is the first one – so the time is - - -
MR DAVISON: 2 March 2018.
HIS HONOUR: 2 March 18.
MR DAVISON: Yes. One penalty unit, at that time, is $158.57.
HIS HONOUR: So he has been given – and what the maximum fine is two penalty units?
MS BURNNARD: Correct, for not having a number plate. For having fraudulent number plates it is further, but for not having a number plate it is two penalty units, but Your Honour - - -
HIS HONOUR: All right, I will change that $500 fine to $160.
MS BURNNARD: Well, can I just say this, Your Honour. I am not certain and I might need a moment with my learned friend to be clear about this, but as I understand it, it is not available for Your Honour to re-sentence on that charge because - - -
HIS HONOUR: Because I did not do it any way.
MS BURNNARD: That is right, and Your Honour is only dealing with the charges the subject of the breach.
HIS HONOUR: We will just leave those. No, I think I - - -
MS BURNNARD: Your Honour's power for re-sentencing only comes
from - - -HIS HONOUR: Yes, but I thought I sentenced him on those matters in my original orders.
MS BURNNARD: Yes, Your Honour did, but the re-sentencing – it is my understanding, and I am happy to be corrected, but the re-sentencing only comes from the breach of CCO.
HIS HONOUR: Yes, and then I cancelled the order and then I re-sentenced.
MS BURNNARD: I do not know if Your Honour can do that in relation to matters for which he never received the CCO.
HIS HONOUR: But he did receive the CCO. He had received - - -
MS BURNNARD: Not for those charges.
HIS HONOUR: Let me see my - - -
MS BURNNARD: He received a fine for those charges, Your Honour only - - -
HIS HONOUR: Let me see the original orders. So, 21 February, taking – wait on – taking, let us take 2923 first, if I have got it. There it is. Yes, I think I have to because I set aside all the orders on the appeal. You cannot do the appeal it is de novo jurisdiction, so when this comes up to me on appeal unless the appeals are only in those matters that he got gaol on?
MS BURNNARD: They were, but if I can indicate this, looking at the court - - -
HIS HONOUR: Let me just have a look at what the order says, 2923. Charge 1, 4 – no, I did sentence on – wait on – 1, 4 – yes, when I heard the matter, charges, 1, 4, 6 and 8, the orders made in the magistrates' court were set aside and in their stead the following orders were made.
MS BURNNARD: That is right, and in their stead, Your Honour sentenced on charges 1 and 6 only to a CCO.
HIS HONOUR: 1 and 6.
MS BURNNARD: And then on charges 4 and 8, a thousand dollar fine was imposed, so my understanding - - -
HIS HONOUR: Yes, 4 and 8. Convicted and ordered that Alexander pay an aggregate fine in the sum of $1,000.
MS BURNNARD: But that matter has not gone any further, it is only the breach of CCO that has really livened - - -
HIS HONOUR: No, no, but the breach of the CCO relates to the lot. You see- I see what you mean – yes, yes, yes, I see, so the thousand dollars still stands?
MR DAVISON: Yes, Your Honour.
MS BURNNARD: Yes, because the CCO was only for charges - - -
HIS HONOUR: This is an aggregate fine, okay.
MS BURNNARD: Yes, CCO, was only on 1 and 6.
HIS HONOUR: I apologise. So I do not have to worry about 4 at all?
MS BURNNARD: 4 and 8, no, and then on the other one - - -
HIS HONOUR: Well, 8 was convicted and discharged and that is what we did.
MS BURNNARD: That is right.
HIS HONOUR: And on the other one - - -
MS BURNNARD: The CCO - - -
HIS HONOUR: - - - do not have to worry about the unlicensed driving, do I?
MR DAVISON: That is correct, Your Honour, you do not.
HIS HONOUR: Right.
MS BURNNARD: The 209 days and the three year CCO was only imposed in relation to 1 and 3.
HIS HONOUR: And I do not have to worry about 6?
MS BURNNARD: Correct.
HIS HONOUR: Off the plate?
MS BURNNARD: Correct, Your Honour.
HIS HONOUR: Excellent. There was another matter you had, I thought there was two?
MS BURNNARD: No, Your Honour, that was the issue, the first issue being the maximum penalty, but then the second issue being that that does not really apply because Your Honour is not dealing with those fines.
HIS HONOUR: No, I have already dealt with them.
MS BURNNARD: Correct.
HIS HONOUR: All right, you are quite correct, Ms Burnnard.
All right, Mr Rendell, let us hope that the lessons come home. You come back again before the courts on trafficking, and the next time it will be a big sentence, okay; do not muck around with your life any further.
Happy with all that, Mr Prosecutor?
MR DAVISON: Yes, Your Honour.
HIS HONOUR: Are you happy with that, Madam Associate, do you know where we are?
ASSOCIATE: Yes, I will deal with what has happened in Chambers if that is all right.
HIS HONOUR: Right. Okay. Thank you very much.
MS BURNNARD: May it please the court.
(Prisoner removed.)
- - -
(COURT COMMENCED AT 11.36 A.M.)
(Prisoner absent.)
HIS HONOUR: Are we getting up, Mr Rendell?
MR DAVISON: He is coming up.
HIS HONOUR: Good. I just thought while we were waiting I can – this is the problem of changing original sentences, try and fit in with his exit date. You are quite right when you point out that there is not much use making two months' concurrent when I have given 12 months, because it makes it 12 months.
MS BURNNARD: Your Honour means "cumulative", is that - - -
HIS HONOUR: No, no, I mean, when I have given as a straight sentence, 2923, total effective sentence for that one of eight months', the other one 12 months', okay, then there is not much point in cumulating two months' of the sentence of the 12 months' to the other to make ten when the maximum is 12.
MS BURNNARD: Yes.
HIS HONOUR: That is the point, so I accept that. So there is no need to cumulate it and the sentence will then be 12 months' and six months' will be served cumulatively. It will still probably work out that he has served seven months' and something, that he will not have to serve much extra. But we should formally wait. So I will not make the order cumulating the two months', for obvious reasons, because we have already got the 12.
Yes, I apologise for that, it was trying to sort of work in his pre-days, work in these two new sentences with the old one.
ASSOCIATE: Your Honour, did you want the wording as 'Order that total effective sentence of 12 months is imposed in regards to AP2923 and AP2924?
HIS HONOUR: I do not need an order now because that will be – if I do not make any order they will just be served concurrently.
MS BURNNARD: That is right, and so the total effective sentence will be 12 months.
HIS HONOUR: Total effective sentence is 12 months.
MS BURNNARD: Yes, of which Your Honour is still ordering that six months of that is cumulative - - -
HIS HONOUR: Six months be served cumulatively upon the sentence imposed. So that actually means there is about four months to go, so that is the problem with trying to work it out.
MS BURNNARD: Our calculation, Your Honour, is that - - -
HIS HONOUR: I have got my calculation here somewhere. He gets out on the current - there is about four months to go, is there not? It is 6, 8 – he gets out allegedly at the moment at 30 - - -
(Prisoner brought into court.)
HIS HONOUR: Sorry, Mr Rendell, to drag you back. We are just trying to make sure that the sentence makes sense.
MR DAVISON: Yes, Your Honour, 30 March 2020.
HIS HONOUR: 30 March. So, that is effectively - - -
MS BURNNARD: Your Honour, our calculation is that he has got about six weeks now to serve on top of that earliest release date of 30 March.
HIS HONOUR: That would be about right.
MS BURNNARD: Yes, because he has done four months' and 18 days.
HIS HONOUR: Of that anyway.
MS BURNNARD: Of that anyway, yes.
HIS HONOUR: Just formally for the record, while Mr Rendell's here –
Mr Rendell, trying to work the three of these sentences, I made a mistake and I ordered two months' of your latter sentence of 12 months' to be served as cumulative on your sentence of eight months' making a total of ten months'. But, in fact, having given you a 12 months' sentence on the second one, the maximum sentence I am giving you is, effectively, 12 months' for both of them, all right, not ten, and of that I have ordered that you serve six months' on top of the current one that you are serving, and the effect of that will be – I cannot tell you precisely, but as best as your instructor can work out – what are we saying - - -
MS BURNNARD: About six weeks'.
HIS HONOUR: - - - another six weeks' on top. All right. Six weeks' on top of your release date, all right. Everyone happy with that?
MR DAVISON: Yes, Your Honour.
MS BURNNARD: Yes, Your Honour.
(Prisoner removed.)
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