R v Casley
[2023] VSC 678
•29 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0127
| THE KING | Prosecution |
| v | |
| LIAM CASLEY | Accused |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 July 2023 |
DATE OF SENTENCE: | 29 August 2023 |
DATE OF REASONS: | 30 November 2023 |
CASE MAY BE CITED AS: | R v Casley |
MEDIUM NEUTRAL CITATION: | [2023] VSC 678 |
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CRIMINAL LAW — Sentence — Breach of Community Corrections Order — Non‑compliance and further offending — Index offence of affray — Youth — Plea of guilty to original offence and affray — Disadvantaged upbringing and mental health issues — Crimes Act 1958 (Vic) — Sentencing Act 1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | J O’Halloran | Office of Public Prosecutions |
| For the Accused | J Barrera | Stary Norton Halphen |
HIS HONOUR:
Introduction
Liam Casley, on 17 August 2021, Justice Croucher sentenced you to eight months’ imprisonment, to be followed by an eight month Community Corrections Order [‘CCO’]. The sentence was in relation to a charge of affray, which you pleaded guilty to on 23 June 2021. A chronology of relevant events is attached to these reasons at Schedule 1, given that you have appeared before this court a number of times since the original orders were made in this matter.
The reasons delivered this day by the court should be read in conjunction with the reasons expressed by Justice Croucher in R v Casley [2021] VSC 503, and myself in DPP v Casley [2022] VSC 718. I do not propose to repeat unnecessary matters that have been discussed in the above proceedings.
Background
The index offence
For present purposes, it is not necessary to repeat in detail the circumstances of the index offending, beyond saying that it involved an attack on Cameron Smith by a group of people in Station Street, Seaford. Mr Smith received a fatal stab wound inflicted by one of your group. Whilst you were not responsible for the fatal wound inflicted on Mr Smith, you were part of the group that had attacked him and you yourself inflicted kicks on Mr Smith after he had been stabbed.
A detailed description of these events appears in the sentencing reasons in DPP v Ledlin [2022] VSC 826, which followed a contested trial in which the primary offender was found guilty of murder by a jury.
Previous contravention proceeding
Following the sentence passed on you by Justice Croucher, you came before me on 8 August and 24 October 2022 in relation to contraventions of the CCO imposed by his Honour. The alleged contraventions involved failing, without reasonable excuse, to undergo treatment and rehabilitation on two occasions, failing to be supervised and monitored on three occasions, and being convicted of further offences during the operational period of the order. I note that these matters were meant to be heard in May 2022, but you failed to appear before me in court on that date.
The further offending noted above related to your conviction on 18 February 2022 at the Frankston Magistrates’ Court for a series of offences occurring between 7 and 14 November 2021, including a charge of theft of a motor vehicle, dishonestly receiving stolen goods, unlicensed driving, theft from a shop, contravening a conduct condition of bail, and two charges of committing an indictable offence whilst on bail.
On 4 November 2022, I sentenced you as follows:[1]
[1]DPP v Casley [2022] VSC 718 (Champion J).
(a) on the summary offence of breaching a CCO contrary to section 83AS(1) of the Sentencing Act1991 (Vic) [‘the Act’], you were convicted and discharged;
(b) pursuant to section 83AS(1)(c) of the Act, I exercised the power to re‑sentence you on the charge of affray. On that offence, you were convicted and sentenced to eight months’ imprisonment combined with a CCO of 12 months’ duration; and
(c) I declared that a period of pre‑sentence detention being 264 days be reckoned as having been served as part of the sentence.
I imposed various conditions on the CCO, namely:
(a) reporting;
(b) supervision;
(c) treatment and rehabilitation in respect of the following:
(i) assessment and treatment (including testing) for drug abuse or dependency;
(ii) assessment and treatment (including testing) for alcohol abuse or dependency;
(iii) mental health assessment and treatment that may include psychological, neuropsychological and psychiatric assessment and treatment; and
(iv) any program that addresses factors related to your offending behaviour.
Of real significance is that, in the face of the breach proceedings instituted in 2022, I was persuaded to extend a further opportunity for you to continue a rehabilitative program at the Gippsland Youth Residential Rehabilitation Centre [‘GYRRC’] facility in Traralgon. You had been provided with a previous opportunity to attend that facility by the Magistrates’ Court in the course of a bail application. It was acknowledged that your time at the facility had not been completely smooth sailing, but it was submitted that your response had been positive in key aspects. Furthermore, a pre‑sentence report from the Department of Justice and Community Safety [‘the Department’], dated 21 October 2022, assessed you as suitable for a further CCO at that time. It was submitted on your behalf, and I accepted, that you should be granted a further CCO despite your breaching failures. Accordingly, I imposed the sentencing outcome as described immediately above, in the hope that you would find it in yourself to comply with the opportunity that had been provided to you by this court.
Regrettably, you failed to take advantage of the opportunity to begin your rehabilitation.
Alleged contraventions
You have now been brought before me again, charged on the basis that, “the accused has without reasonable excuse failed to comply with the conditions of their community correction order”.
In short, in relation to the CCO imposed upon you on 4 November 2022, and expiring on 12 February 2024,[2] it is alleged, and you have admitted, that you contravened the CCO without reasonable excuse in three ways:
[2]The CCO imposed on 4 November 2022 was suspended by Community Corrections for 101 days from 23 November 2022 to 3 March 2023 due to the accused being remanded in relation to further offending.
(a) first, you failed to undergo treatment and rehabilitation as required on three separate dates;
(b) second, you failed to be supervised, monitored and managed as directed on two dates; and
(c) third, you were convicted of the offence of contravening a conduct condition of bail during the operational period of the order imposed on 4 November 2022, in that on 3 March 2023, you were convicted and sentenced to one month imprisonment, concurrent with other sentences, with an effective total term of five months’ imprisonment. Further, you were convicted and sentenced to a CCO for a period of 18 months. The commission of these offences took place between 3 and 23 November 2022.
Evidence
In this proceeding, the court was provided with a report from the Department, authored by Ms Andrea Minty, an Advanced Case Manager with Dandenong Community Correctional Services, dated 16 June 2023.
In her report, Ms Minty describes your response to the CCO imposed upon you by this court on 4 November 2022. She notes that on 23 November 2022, the Department was notified by Victoria Police that you had been prematurely discharged from the GYRRC facility due to poor behaviour. This was a breach of your bail conditions. You were remanded in custody from 23 November 2022 until 3 March 2023, and you were consequently unable to make further progress on your CCO. Furthermore, it is to be noted that matters predating the CCO imposed upon you in November 2022 were finalised in the Dandenong Magistrates’ Court on 3 March 2023, where you received an 18 month CCO and were released into the community.
Having been released on the 18 month CCO by the Magistrates’ Court, you allegedly failed to comply with various conditions, and by 23 April 2023 you appear to have been remanded in custody for further matters relating to family violence allegations made against you.
It turns out that, despite being scheduled to graduate from the GYRRC facility on 13 January 2023, your unplanned exit due to poor behaviour resulted in your placement being cancelled, thereby resulting in a breach of your then existing bail conditions. A conversation that occurred between you and Ms Minty indicated that, by 1 March 2023, you were expressing no motivation to return to an inpatient facility on your release, but were prepared to commit to receiving continued support through community‑based providers. Ms Minty notes that, having been remanded due to alleged further offending, you have made no further progress in respect of your CCO.
Ms Minty also notes that you are 21 years of age, that you contravened your bail conditions by being exited from the drug rehabilitation program on 23 November 2022, and that you had made some limited gains towards the completion of your mandated conditions up to the point where you were remanded in custody due to alleged further offending on 23 April 2023. Ms Minty concludes that, although you appeared to initially demonstrate a willingness to work with stakeholders, you accrued five absences from supervision and did not provide documentation to support your absenteeism. Your service providers remained flexible and attempted to support your participation in various supports being made available to you. However, Ms Minty states that, as you remain on remand, you have made no further progress towards your mandated conditions.
Ms Minty recommends that your CCO be cancelled and you be resentenced in respect of your index offending, but acknowledges that this is a matter for the court.
Submissions
Submissions for the prosecution
In written submissions dated 2 July 2023, the prosecution outlined the history of your matters and submitted that, consistent with the recommendations of the Department, your CCO should be cancelled and you should be resentenced on the index offending. It is submitted that you have been provided with many opportunities to engage with rehabilitation, but you have failed to comply on multiple occasions with your CCO conditions. The prosecution contended the court should take the view that, in light of your failure to comply with multiple CCOs, your prospects of rehabilitation should no longer be regarded as reasonable and should instead be regarded as poor.
The prosecution also submitted that you have been convicted for a significant number of offences committed during the intervening period between when the original CCO expired and the commencement of the current CCO.
The prosecution noted that, if the court decides to resentence you to a further term of imprisonment on the index offence, then the original custodial term of 264 days would be referable as pre‑sentence detention.[3] Further, it was submitted that the maximum penalty for the index offending, namely affray, is five years’ imprisonment,[4] and that the maximum penalty for contravening a CCO is three months’ imprisonment.[5] The prosecution also noted that the section 6AAA declaration made by Justice Croucher on the index offending was a term of 12 months’ imprisonment, coupled with a 12 month CCO.[6]
[3]Luu v The Queen [2018] VSCA 92, [20]-[24] (Ferguson CJ, Osborn and Beach JJA).
[4]Crimes Act 1958 (Vic), s 195H.
[5]Sentencing Act 1991 (Vic), s 83AD.
[6]R v Casley [2021] VSC 503, [137] (Croucher J).
Submissions for Casley
Counsel appearing on your behalf reminded the court that you are still only aged 21, that you are significantly immature with a background of disadvantage, and that you have a diagnosis of depression, complex Post Traumatic Stress Disorder [‘PTSD’], and Attention‑Deficit Hyperactivity Disorder [‘ADHD’]. In written submissions dated 4 July 2023, your counsel listed a number of matters relied on at the original plea hearing, and at the first contravention hearing, which are considered relevant for resentencing purposes. I have taken these matters into account.
Your counsel also submitted that you arguably had a statutory defence to the charge of failing to comply with the directions of GYRRC, as the offence does not apply to a contravention of a conduct condition requiring an accused to attend and participate in bail support services. Despite this, it was noted that you pleaded guilty at the earliest practicable opportunity.
It was also submitted that you did comply, to some degree, with the second CCO, attending some mental health sessions and engaging with Corrections for a time. I acknowledge that, prior to your remand on 23 April 2023, you made some progress in the community, having sourced accommodation through Westernport Accommodation and Youth Support Services [‘WAYSS’], and obtaining employment as a concrete labourer and in a factory. WAYSS have expressed their ongoing support and willingness to welcome you back to the Enhanced Youth Refuge, in a letter dated 26 April 2023.
Your counsel pointed out that, in dealing with you on the current matters, there are a number of options. First, it was highlighted that the court is not required to resentence you. Your counsel submitted that the court could cancel the applicable CCO and make no further order. It was not suggested that you should be given a further opportunity on the CCO. Second, your counsel submitted that the time spent by you in custody on the index offence of affray is sufficient to meet the applicable sentencing purposes. Third, in dealing with the charge of contravening the CCO, the court could either make no further order or impose a penalty. Again, it was not submitted that a further CCO is appropriate, given you are currently on a CCO imposed by the Magistrates’ Court.
Your counsel pointed out on your behalf that the maximum penalty for a contravention of a CCO is three months’ imprisonment, and that your early guilty plea should be given full weight. However, your counsel reminded the court that on the previous occasion when you were sentenced, the court simply convicted and discharged you on the charge of contravening a CCO. It was submitted on your behalf that the court should be mindful of the principle of totality, and that the time you have served is sufficient.
Analysis
I have given your matter considerable thought since hearing the submissions made on your behalf. There is no doubt that your age and substantial immaturity are significant factors weighing in your favour. You have also had a very disrupted, disadvantaged and difficult upbringing, and you are attended by some mental health issues which have been previously discussed. For a person of such young age, you have accumulated a sorry criminal history involving a combination of offences for violence and dishonesty, which along with some driving offences, provide some real concern about your future prospects of rehabilitation.
On the other hand, you have now spent a significant time in and out of custody. Further, the fact that you have been required to appear at a series of different courts is, to my mind, relatively de‑stabilising. At your young age, I am not going to conclude at this point that your prospects of rehabilitation are closed off. In all the circumstances, I regard the time you have spent in custody in an adult setting as sufficient for the purposes of punishment and deterrence, and other sentencing purposes.
Your counsel has submitted the options to deal with you include cancelling the applicable CCO and making no further order. It was also pointed out that the court is not required to resentence you, and it was not submitted that you should be given a further CCO. It was contended that the time spent in custody on the index offending is sufficient to meet the applicable sentencing purposes. Furthermore, in dealing with the charge of contravening the CCO, the court could either make no further order or impose a penalty. Again, it was not submitted that a further CCO is appropriate, given your current situation, which includes you being on an 18 month CCO imposed by the Magistrates’ Court. That order is still to run its course, and to that extent you will remain amenable to the jurisdiction of the Magistrates’ Court.
However, I do note that during the operational period of that order, you are alleged to have committed further offences which are yet to be resolved. I have not taken them into account for the purpose of this proceeding. Further, I do not regard the fact that you have been subject to two CCOs at the same time as very helpful.
In the circumstances, I propose to adopt the recommendation of the Department and cancel the 12 month CCO I imposed on you on 4 November 2022.
Furthermore, I am required to consider what penalty should be imposed, if any, in respect of the contravention offence. Having considered all matters, and bearing in mind the maximum penalty is set at three months’ imprisonment, and that you have pleaded guilty to the offence, I have determined that a short custodial sentence is appropriate in the hope that it will send a clear message to you that your breach and any further breaches in the future are to be taken seriously.
Sentence
Having considered all relevant matters, and balancing the competing factors as best I can, the CCO I imposed on you will be cancelled. In all the circumstances I do not propose to re‑sentence you for the index offence.
On the charge of contravening the CCO I imposed upon you, I sentence you to be imprisoned for one month.
Section 6AAA declaration
I have imposed on you a less severe sentence than I otherwise would have because you have pleaded guilty to this offence. Pursuant to section 6AAA of the Act, I declare that but for your plea of guilty, I would have sentenced you to six weeks’ imprisonment.
As to pre‑sentence detention, I further declare that pursuant to section 18 of the Act, any period you may have served in custody in relation to these proceedings will not be reckoned as a period of imprisonment already served in respect of the offences I imposed on this day.
Schedule 1 – Chronology of relevant events
DATE
EVENT
SENTENCE
25 November 2020
Commission of index offending:
· Affray
· Commit indictable offence whilst on bail
· Contravene conduct condition of bail
17 August 2021
Sentenced in the Supreme Court by Justice Croucher
Convicted and sentence to 8 months’ imprisonment for affray.
Convicted and sentenced to an 8 month CCO with various conditions.
Charges of committing an indictable offence whilst on bail and contravening conduct condition of bail – convicted and discharged.
26 August 2021
First CCO commenced
3 September 2021
Non‑compliance: Failure to undergo treatment and rehabilitation
6 September 2021
Non‑compliance: Failure to be supervised
27 September 2021
Non‑compliance: Failure to be supervised
7–8 November 2021
Commission date of offending (Informant TRUE)
· Theft of Motor Vehicle
· Commit Indictable Offence Whilst on Bail
9 November 2021
Non‑compliance: Failure to undergo treatment and rehabilitation
11–12 November 2021
Commission date of offending (Informant TRUE)
· Commit Indictable Offence Whilst on Bail
14 November 2021
Commission Date of Breaching Offending (Informant TRUE)
· Dishonestly Receive Stolen Goods
· Unlicensed Driving
· Theft from shop
· Contravene a Conduct Condition of Bail
18 February 2022
Sentenced at Frankston Magistrates’ Court (Informant TRUE matters)
Convicted and sentenced to 105 days imprisonment (aggregate) and convicted and fined $100 for a traffic offence.
18 February 2022
Sentence lapse – released from custody
29 March 2022
Commission Date of Breaching Offending (Informant MORRIS)
· Criminal Damage (Intent to Damage/ Destroy)
· Unlawful Assault
8 April 2022
Non‑compliance: Failure to be supervised
25 April 2022
First CCO expires
25 May 2022
Commission Date of Offending (Informant SILK)
· Theft of Motor Vehicle
25 May 2022
Contravention of CCO proceedings commence before Justice Champion; adjourned to 8 August 2022
10 June 2022
Commission Date of Offending (Informant McDONALD)
· Theft of Motor Vehicle
14 June 2022
Commission Date of Offending (Informant McDONALD)
· Aggravated Burglary
· Commit Indictable Offence Whilst on Bail (x2)
· Theft from Motor Vehicle
· Burglary
· Theft of Motor Vehicle
· Theft
15 June 2022
Commission Date of Offending (Informant McDONALD)
· Theft from Motor Vehicle
· Attempted Aggravated Burglary
16 June 2022
Commission Date of Offending (Informant McDONALD)
· Unlicensed Driving
22 June 2022
Commission Date of Offending (Informant SHAKES)
· Dangerous Driving While Pursued by Police
· Unlicensed Driving
9 July 2022
Commission Date of Offending (Informant MUNRO)
· Burglary
12 July 2022
Commission Date of Offending (Informant FROST)
· Burglary
· Theft
· Theft of Motor Vehicle (x2)
· Attempted Theft
· Possess Controlled Weapon Without Excuse
· Unlicensed Driving
13 July 2022
Commission Date of Offending (Informant FROST)
· Theft from shop (shopsteal)
14 July 2022
Commission Date of Offending (Informant McDONALD)
· Attempted Burglary
· Commit Indictable Offence Whilst on Bail
· Possess Controlled Weapon w/o Excuse
8 August 2022
Contravention of CCO proceedings before Justice Champion are again adjourned until 24 October 2022
24 October 2022
Contravention of CCO proceedings before Justice Champion reserved and adjourned until 4 November 2022
4 November 2022
Sentenced by Justice Champion for contravention of CCO.
Second CCO commences.
Resentenced for index offence: convicted and sentenced to 8 months’ imprisonment.
Convicted and sentenced to a 12 month CCO with various conditions.
Convicted and discharged for breach of CCO.
3–23 November 2022
Commission Date of Breaching Offending (Informant TA’UFO’OU)
· Contravene a Conduct Condition of Bail
3 March 2023
Sentenced in Melbourne Magistrates’ Court (re Informants McDONALD,
MORRIS, SILK, MUNRO, TA’UFO’OU, SHAKES and FROST)
Sentenced to total of five months’ imprisonment. As 163 days of pre‑sentence detention reckoned, released from custody.
Convicted and sentenced to an 18 month CCO with various conditions.
20 March 2023
Alleged non‑compliance with CCO:
· Failure to undergo treatment and rehabilitation
· Failure to be supervised
· Failure to undergo treatment and rehabilitation.
23 March 2023
Alleged Commission Date of Breaching Offending (re Informant BEAUMONT)
· Theft of Motor Vehicle
· Drive in a Manner Dangerous
· Drive Carelessly
· Drive Whilst Disqualified
· Fail to Have Proper Control of a Vehicle
· Fail to Stop Immediately After an Accident
· Fail to Immediately Render Assistance After an Accident
· Fail to Give Name and Address/ Vehicle Owner’s Name and Address after an Accident (x2)
18 March 2023
Alleged non‑compliance with CCO:
· Failure to undergo treatment and rehabilitation
22–23 April 2023
Alleged Commission Date of Further Offending (re Informant ALLEN)
· Kidnapping (common law)
· False Imprisonment (common law)
· Intentionally Cause Injury
· Recklessly Cause Injury
· Common Law Assault (x2)
· Unlawful Assault
· Affray
· Drive Whilst Disqualified
· Contravene Family Violence Safety Notice
Remanded in custody
11 May 2023
Charges and summons issued for second breach
5 June 2023
Charges and summons served for second breach
6 July 2023
Contravention of CCO for second breach listed before Justice Champion in the Supreme Court of Victoria
17 July 2023
Listed, Committal Case Conference and Committal Mention
Melbourne Magistrates’ CourtRe Informant ALLEN (41234)
24 August 2023
Listed, Dandenong Magistrates’ Court
Re Informant BEAUMONT (43573)
12 February 2024
Second CCO expires (original expiry date was 3 November 2023 but order was suspended from 23 November 2022 to 3 March 2023)
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