DPP v Brittain [2017] VCC 394 (7 April 2017)

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL BRITTAIN

JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	5 April 2017
DATE OF SENTENCE:	7 April 2017
CASE MAY BE CITED AS:	DPP v Brittain
MEDIUM NEUTRAL CITATION:	[2017] VCC 394

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Clancy	Office of Public Prosecutions

For the Accused	Mr J. Miller	Victoria Legal Aid

1 Daniel Brittain, you have pleaded guilty to one charge of armed robbery. The maximum penalty is 25 years’ imprisonment. You have also pleaded guilty to one charge of theft of a motor vehicle, with a maximum penalty of ten years’ imprisonment.

2 These crimes arise out of events which occurred on 18 August 2016 and involved co-offenders, Daniel Gretelianos, who I have previously sentenced on one charge of armed robbery, and Shane Hodgson, who is yet to be dealt with and has a contested committal hearing listed on 11 May 2017 at the Melbourne Magistrates' Court.

3 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient, for present purposes, to simply say that the facts in this case are most serious and disturbing.

4 I turn to a brief summary of your offending. I digress, however, and urge my sentencing remarks in relation to sentencing your co-offender, Gretelianos, should be read in conjunction with these reasons for sentence for a complete picture.

5 You are 23 years of age at the time of sentence and were 23 when you committed this offence. Your co-offender, Hodgson, was 22 years of age at the time and Gretelianos 23 at the time of both offence and sentence.

6 The primary victim of your offending, Andrea North, was working as a Compliance Manager at the Ferntree Gully Bowling Club at the time of this offending.

7 Referring to the circumstances of your offending. On 14 July 2016, Thi Thuy Pham had her 2015 Holden Cruze sedan stolen from the driveway of a residential address in Clayton. There is no evidence as to who stole that vehicle.

8 At some time between 14 July 2016 and 18 August 2016, the stolen vehicle came into the possession of your girlfriend and registration plates, XNL 938, were affixed to the vehicle.

9 In the early hours of Thursday, 18 August 2016, Gretelianos attended your address in Dandenong. You took the stolen Holden Cruze and drove Gretelianos to Hodgson’s address in Ashwood and picked him up (Charge 1, theft of a motor vehicle).

10 At some time during the morning of the armed robbery, stolen number plates, PG1 892, were fixed over the existing number plates on that stolen vehicle. The prosecution does not allege you affixed the stolen number plates to the vehicle. At the plea of Gretelianos, the prosecution were unable to say who attached the number plates.

11 At 7.20 am the three of you attended the Ferntree Gully Bowling Club. The Club was not open at the time and CCTV footage from the Club showed you walk to the front door of the premises and check the opening time of 10.00 am, before returning to the car and advising your co-offenders that the Club opened at 10.00 am.

12 The three of you then left. The prosecution accepts you were not aware of your co-offender’s plan to rob the bowling club at that time.

13 At approximately 10.30 am, the three of you returned to the Club. You were not told of the co-offender's plan to commit the armed robbery, rather, thought you were dropping Gretelianos and Hodgson off to meet a friend.

14 As you turned into Merrick Close, which runs adjacent to the Club, you saw Gretelianos putting on a white mask with black features on it. You parked the car and your two co-offenders told you to wait. You saw Gretelianos take a machete from the black bag that Hodgson was carrying and saw Hodgson in possession of a sawn-off over and under double shotgun.

15 Gretelianos was wearing a mask and armed with a machete. Hodgson was wearing a black balaclava, carrying a black coloured backpack and, as I say, with an over and under double-barrel sawn-off shotgun.

16 You remained in the car while your co-offenders entered the bowling club to commit the armed robbery. It was at that time, the prosecution submitted, you became party to the agreement to commit the armed robbery. You had the opportunity to leave, but chose not to, knowing what your co-offenders were doing.

17 At the time your co-offenders entered the Club, there were approximately 25 patrons inside. The primary victim, North, was in the gaming room bar making coffee when she saw your two co-offenders walk through the Club’s entrance. Hodgson walked directly towards North and told her to “go and get the money”. North initially said “No”, but then your co-offender, Hodgson, pointed the gun at her chest and pulled the trigger, making a clicking sound, but did not fire. Hodgson, again, told North to “go and get the money”.

18 North walked to the strong room where the Club’s safes were kept and told Hodgson the safes were on time-delay and they would have to wait ten minutes. In the strong room, North set the time-delay on the black safe. Hodgson opened the door of the grey safe and demanded North open the drawer located inside the safe. She told him that there was nothing in there and he, again, demanded she open it. North opened the drawer of the safe and stood back to show Hodgson there was no money in it.

19 Hodgson then pointed to the Chubb safe and told North to open it. She told him it was a two-key safe and that the Club only had one key. Hodgson located a set of keys in a drawer and unsuccessfully attempted to open the Chubb safe. Hodgson then took cash from the locked box on the wall and pointed the gun at North’s chest again, looked her in the eye and said “open the safe”. North thought that Hodgson was going to shoot her and she was terrified and she, again, explained the time delay.

20 Hodgson left the strong room and took cash from the cashier’s drawer and put it into the black backpack, then returned to the strong room and told North to give him the rest of the money. While Hodgson was in the strong room, Gretelianos was outside the entrance to the gaming room bar telling the other patrons to ‘keep down’. He banged the machete on the counter and said “Stay where you are and you won’t get hurt” and “Don’t call the cops and you won’t get hurt”. At times he waved the machete around and struck the counter and the wall with the machete.

21 Both Gretelianos and Hodgson left the venue and returned to the waiting vehicle, where you then drove them away from the scene.

22 Your co-offenders were inside the venue for a total of three minutes and stole $5,000 in cash from the Club. You were paid $200 for your involvement.

23 The offending was captured on the Club’s CCTV system and I viewed that again, having viewed it previously in the Gretelianos plea, the footage for the purposes of your plea hearing.

24 At approximately 11.00 am, you were then observed to be driving at high speed and constantly changing lanes by motorist, D’Arcy. D’Arcy also observed the car’s rear number plate appeared to be covering up another number plate and took a photo of it.

25 D’Arcy pulled over, called police, and while on the phone saw the same car displaying a different registration number plate beginning XNL.

26 At approximately 1.40 pm, co-offender Hodgson contacted an associate, Andreas Sianas, arranging to meet him to hand over the firearm to store on Hodgson’s behalf.

27 On 6 September 2016, police downloaded the contents of Gretelianos’ mobile phone located on him during his arrest and located Facebook messages between Gretelianos and Hodgson from 17 August 2016 at 5.56 pm.

28 On 13 September 2016, police executed a search warrant at Sianas’ address and located the over and under double-barrel sawn-off shotgun.

9.20 pm on 18 August 2016. A search warrant was executed at the address and the stolen Holden Cruze used in the armed robbery was located. Inside the car, a number of items were found by police, as set out within Exhibit A (paragraph 33). Police also seized clothing worn by Gretelianos and his mobile phone.

30 You made admissions to your involvement in the armed robbery, as well as the involvement of your co-offenders. You said you knew Gretelianos as “Danny”. You did not know the name or identity of the other offender, only knew he was a friend of Gretelianos and that you picked him up from that address in Ashwood.

31 You also made three statements to police outlining your involvement and the involvement of your co-offenders.

32 Co-offender, Gretelianos, was interviewed on 19 August 2016 and answered ‘no comment’ to the allegations. Hodgson was arrested on 23 September 2016, and also made a ‘no comment’ record of interview.

33 You have indicated that you are prepared to give an undertaking to assist in the prosecution of co-offender, Hodgson, and I shall return to that in a moment.

34 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your pleas of guilty to these two charges, been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. Further, I take into account that you indicated your intention to plead guilty to these charges at an early stage. You were charged on 4 October 2016 and at a second committal case conference on 29 November 2016, were committed by way of straight hand-up brief to a plea hearing in the County Court. I also note, as previously stated, that at the time of your interview with police you also made admissions to your offending and also that of the co-offenders also in subsequent statements. In the circumstances, I am prepared to accept that your pleas of guilty indicate remorse for your offending, also your making of the statements implicating both co-offenders.

35 You have one prior court appearance from Dandenong Magistrates’ Court on 9 January 2015, where you were dealt with on offences of reckless conduct endangering life, failing to stop after an accident, failing to report to police if a person was injured and failing to render assistance after an accident. You were, without conviction, fined $1500 and your licence was cancelled and disqualified for six months from that date.

36 You have a subsequent court appearance on 1 February 2017 which concerns me when assessing your rehabilitation prospects, and I shall return to this later.

37 Counsel who appeared on your behalf, Mr Miller, prepared a written outline of submissions for your plea hearing (Exhibit 1). He relied heavily upon your three statements to the police in which you admitted not only your role in this offending but also described that of your co-offenders.

38 Mr Miller also referred to the prosecution’s concession that your involvement in this offending was limited to you waiting in the car for the two co-accused to return and then driving them away. He, however, conceded you were aware there was an armed robbery to take place when the weapons were removed from the bag, as your co-accused left the car.

39 I accept, consistent with the submissions by Mr Miller, that there was no preplanning involved in the agreement between yourself and the co-accused, given the timing of your awareness an armed robbery was to take place. I am also aware that the co-accused had been in contact with each other through phone messages prior to 18 August, specifically the day before.

40 Mr Miller conceded, however, as was appropriate, that the armed robbery itself was a serious example of that offence and he is correct. He, however, distinguished your involvement in this to that of your co-offenders and I am well aware of that.

41 You are, as I have said, 23 years of age at sentence, and Mr Miller described you as a youthful offender, and you are. The importance of an offender’s rehabilitation, if youthful/young, is a relevant sentencing consideration. Such has been stated in cases including R v Mills [1]. Each case, however, depends on the circumstances of the offending and the offender.

42 As I observed in Gretelianos, in Scott v The Queen [2], the Court cited with approval the observations of Redlich JA in Azzopardi:

44 As I have previously stated, I have concerns regarding your rehabilitation prospects, in particular relevant to your subsequent court appearance referrable to a significant number of separate dates of offending.

45 Mr Miller conceded this offending had adversely impacted upon Ms North, consistent with the contents of her Victim Impact Statement.

46 Turning to our background, you are the middle child in a family of three siblings, with an older sister and a younger sister and are of indigenous background.

47 You live with your mother, Jodie, and her partner in Rowville, and are in a relationship with Brittany Kandetzki.

48 You attended Albany Rise Primary School and Wellington Secondary College in Mulgrave.

49 Your parents' relationship broke up approximately 15 years ago. You said your father was violent and abusive towards your mother and that she currently had a 15-year Intervention Order in place against him. You had limited contact with your father.

50 You left school after Year 10 and worked at McDonald’s for two years, between 16 and 18 years of age. When you left that employment you started using Ice, having been introduced to it by your friends at the time.

51 You then left Victoria with your then girlfriend, Steph, to work and live in Tasmania, where you ceased using drugs. There you worked in civil construction and at Huon Valley Timber Mill.

52 You returned to Melbourne in 2015; however, as a result of the break-up of your relationship with Steph in 2016, you again returning to using Ice. As your Ice use escalated, you started associating with a negative peer group, including spending time with Gretelianos prior to this armed robbery.

53 You instruct that you have ceased Ice use, moved back in with your mother since your arrest and been doing some work for your mother’s partner at Precision Bowring Excavations.

54 You also, as I understood it, have recently sought a referral to a counsellor at the Aboriginal Metropolitan Ice Partnership Program with an appointment on 10 April 2017. Correspondence was before me from Julie Walters, Alcohol and Other Drugs Counsellor of Monash Health dated 3 April 2017, confirming your first appointment scheduled for 10 April.

55 Mr Miller submitted that your rehabilitation prospects were, in essence, good. I, however, relevant to your rehabilitation prospects turn now to your subsequent court appearance at Dandenong Magistrates’ Court on 1 February 2017, when you then appeared in relation to a number of charges committed on various dates, otherwise known I assume as a consolidation. There was offending initially on 19 July 2016 of assisting in the retention of stolen goods. The offences before me occurred approximately one month after that offending.

56 Then on 15 September 2016, that is approximately a month after your offending before me, you committed the offences of trafficking and possessing methamphetamine, theft of a motor vehicle, retention of stolen goods, unlicensed driving, negligently dealing with proceeds of crime and going equipped to steal. I note that at the time of that offending, the co-offender was the person you have stated is your current partner. She was also arrested on that occasion, although as I understand the charges against her were withdrawn. I refer to your partner, as I understood your counsel to be suggesting that the relationship with her was a protective factor regarding your rehabilitation.

57 Also dealt with at Dandenong Magistrate’s Court on 1 February were other offences, some committed on 25 October 2016, a month after the previous offences to which I have just referred on 15 September 2016. Those offences involved theft of a motor vehicle, committing an indictable offence whilst on bail, and assisting in the retention of stolen goods.

58 You were also on 1 February 2017 dealt with for offending that occurred on 28 November 2016, being a charge of failing to answer bail.

59 Then a few weeks later, on 13 December 2016, you committed an indictable offence on bail and also theft that time of a trailer. A couple of weeks later, on 23 December 2016, you committed the offence of theft again. Approximately ten days after that, theft of a motor vehicle. Six days after that, assist in the retention of stolen goods. Eleven days after that, assisting in the retention of stolen goods. It is also apparent from your criminal record that there was another charge of theft of a motor vehicle, although the date of that was unknown.

60 For all that offending, you were convicted and placed on a Community Correction Order for a period of 12 months effective from 1 February 2017, with a number of conditions, including supervision, treatment and assessment for drug abuse, mental health assessment, offender behaviour programs and a curfew that you reside at 9 Gilda Court, Rowville, daily, between the hours of 9.00 pm and 6.00 am, unless in the company of your mother or stepfather. The curfew was to run for six months from 1 February 2017.

61 Information was given during your plea hearing by your current Community Corrections worker, Krystel Dromart. A number of summaries of your offending relevant to that Community Correction Order were provided by her.

62 The prosecutor also understood you had outstanding charges to be dealt with in the Magistrate’s Court on 10 April 2017, that is, apparently the day after your plea hearing, or coming up soon, being charges of burglary committed on 3 May 2016 and on 10 May 2016 dealing in proceeds of crime, those two charges apparently relating to a motorcycle.

63 Given the ultimate submission by Mr Miller that he urged you be placed on a Community Correction Order, I sought information from Ms Dromart as to your compliance to date, albeit the order was only made relatively recently. She described your initial compliance as sporadic and that you had missed three appointments. Since then you had attended five appointments and engaged well. You had also attended for assessments as required.

64 Your history of offending, both prior to this armed robbery and subsequently, as I have said, cause me concerns when assessing your rehabilitation prospects. At best your prospects are guarded. Hopefully they will improve if you cease your drug use entirely and avoid negative peers.

65 Two references were also placed before me, and I discussed the contents of both with Mr Miller, including some concerns I had regarding some of those contents.

66 When sentencing you I must, however, seek to maximise your prospects of rehabilitation as they may be.

67 An undertaking was given by you in this court that you would give evidence consistent with your statements to police regarding co-offender Hodgson in the upcoming contested committal and trial, should there be one. As previously stated, that contested committal is listed for 11 May 2017.

68 Mr Miller submitted that the fact that you were prepared to give evidence to assist the prosecution in relation to your co-offender, Hodgson, was an important mitigating factor, referring me to the decision of R v Crossley [4]. I agree.

69 Mr Miller, understandably, relied very heavily on that undertaking that you gave to this court to give evidence against your co-offender, Hodgson.

70 Regarding the quality of that information you provided, Mr Miller referred to your identification of Hodgson on the photoboard, of also providing police with the nickname that Hodgson used and helping to lead police to his arrest. I accept that is so.

71 Turning to the value of the information, Mr Miller submitted it led to the arrest of Hodgson and that your information was invaluable to the prosecution.

72 Mr Miller referred to the risks that an informer such as yourself can be exposed to and, in that regard, referred to Hodgson being well-known to the police and that they believed he was a person who carried a loaded handgun with him.

74 Mr Miller submitted your moral culpability in this offending was less than that of Hodgson, who entered the premises with a gun and used it in the manner that we saw on the CCTV footage.

75 Whilst Mr Miller conceded general deterrence was an important sentencing consideration, he also relied, as I said, on the decision of Crossley, which refers to encouraging offenders to inform on co-accused (paragraph 31).

76 Consistent with the undertaking you have made to the court, the sentence that I have imposed upon you is a reduced sentence, consistent with s5(2B) of the Sentencing Act 1991.

78 There is no ‘standard’ discount to be given for assistance to the authorities. In Cartwright [5] it outlined the relevant general sentencing principles adopted more recently in Su[6].

79 I direct, therefore, it be noted in the records of the court that I have imposed a sentence less severe than I would have otherwise imposed as a direct result of the undertaking given by you.

80 I turn to the Victim Impact Statement of Andrea North, sworn 10 February 2017. She described the robbery as having had a huge impact on her emotional, physical and financial well-being. As a result of being terrorised with a sawn-off shotgun and machete, she had to deal with fear, physical shaking, hot and cold sweats, nervousness, nightmares, sleeplessness and the terror of reliving the event.

81 For weeks after the armed robbery she had to take sleeping tablets to assist her to sleep, and medication for heart palpitations due to anxiety and stress. For a number of months, she was not able to find joy in things that usually made her happy. She felt incapable of organising activities with her children. She found running into anyone wearing a hoodie over their head, she was concerned about that as that is what the robbers wore.

82 Ms North also had to see a psychologist on a weekly to fortnightly basis for counselling. The offending had also traumatised her family and affected her young son’s schooling.

83 After the robbery she tried to get back to work, however, she had increased anxiety and panic attacks and was not able to concentrate on her duties. After 12 weeks of persisting with efforts to return to work, her anxiety was so bad her psychologist insisted she take a two-month break. At the time of the armed robbery, she was about to sign a contract for a promotion she had spent 18 months working towards. This offending had stolen her ability to accept that role and impacted on her finances as a result.

84 As at the date of her Victim Impact Statement, she had not been able to return to work. She was angry that the robbers had turned her life upside down.

85 The effects upon a victim are a relevant sentencing consideration (see s5 of the Sentencing Act 1991). I am aware, however, that I must not allow the effects upon a victim to swamp the sentencing process.

86 The victim of your offending, however, has suffered considerably in the manner described in her Victim Impact Statement.

87 A number of authorities have also referred to the effects upon a victim, including DPP v Toomey [7], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[8].

88 Whilst the offences involved in those cases are very different from yours, that notion still has a place in sentencing.

89 Your counsel, Mr Miller, submitted that the appropriate disposition in your case, conscious also of the principle of parity, was a Community Correction Order.

90 In that regard, he was relying on the decision in Boulton & Ors v R [9]. Community Correction Orders have both punitive and rehabilitative elements.

91 In Boulton the Court urged judges to "rethink the conventional wisdom about whether prison is really the only option". Boulton has been referred to and approved in a number of decisions subsequently.

93 Regarding the gravity of your offending, the prosecution submitted you entered into an agreement to commit a serious example of armed robbery when you agreed to be the get-away driver for your co-offenders, knowing they were going to commit an armed robbery. They were ‘in company’, and you knew they had a firearm and a machete, and were wearing disguises, and at a venue where there would likely be multiple people present.

94 Ms Clancy referred to the impact upon Ms North of the offending, describing it as profound, to the point where she was unable to return to her workplace. Further, her sense of safety in the community had been undermined for fear of running into people wearing hoodies over their heads. She was still receiving ongoing counselling.

95 The prosecution conceded, and I am aware, of a number of matters in mitigation. You are a ‘youthful’ offender, although I note you do have a troubling criminal record including a prior history, and subsequent history.

96 The prosecution accepted, as do I, you pleaded guilty to this offending at the earliest opportunity.

97 The prosecutor referred to your one prior court appearance on 9 January 2015 for those offences of reckless conduct endangering life, failing to stop a vehicle after an accident, failing to report to police that a person was injured and failing to render assistance after an accident, resulting in an arguably ‘light’ sentence of a $1,500 fine, without conviction. Such reflects the gravity of that offending.

98 The prosecutor noted, as do I, you made admissions in your record of interview and nominated co-offender, Gretelianos, and gave information to assist police to identify the other alleged co-offender, Hodgson.

99 The prosecution also referred to the undertaking that you gave to this court to give evidence against Hodgson.

100 The prosecution accepts you made full admissions in your record of interview and made your first sworn statement to police that same day, that is, 19 August 2016.

101 You were then asked by police on 22 September 2016 to view a photo board to assist police to identify the person who was wielding the firearm and you identified Hodgson.

102 As a result of that identification, I was told Hodgson was arrested and charged the following day (23 September 2016).

103 Ms Clancy referred me to Saner v R [10], referable to the strong public policy of encouraging cooperation by offenders with authorities. From that case:

104 The prosecution accepted that your assistance in relation to Hodgson was genuine and that you told police all the information that you had about him. The prosecution submitted that the assistance provided by you was of great value in the prosecution of Hodgson. Further, that your co-operation with police was immediate. It was open to me, Ms Clancy urged, to find that your co-operation was also evidence of your genuine remorse and I accept that is so.

105 Ms Clancy referred to you also, however, being sentenced for the additional offence of theft of a motor vehicle.

106 Turning to the question of parity, I discussed this numerous times with both counsel throughout the course of your plea hearing and the importance of the principle of parity when determining the appropriate sentence for you, given I have already sentenced Gretelianos on 10 March 2017. In that regard, I discussed the sentence that I imposed upon Gretelianos and the urged Community Correction Order in your case.

107 Ms Clancy submitted Gretelianos’ moral culpability in relation to the armed robbery was higher because, unlike you, he had participated in the planning of the armed robbery and was aware of false registration plates having been placed on the get-away car, and that he had the opportunity to desist from committing the offence between 7.30 am and 10.30 am and also, whilst not on bail, nevertheless had two outstanding warrants for his arrest at the time of this offending.

108 Further, Ms Clancy submitted relevant to parity, your co-operation with police in giving statements should be treated as a significant factor in mitigation of sentence and that Gretelianos did not offer any assistance to authorities.

109 It was also submitted by the prosecution that there were material differences when considering the appropriate disposition for yourself in light of the sentence imposed on Gretelianos.

110 It is clear that parity is a relevant sentencing consideration and in that regard I am aware of decisions such as R v Taudevin [11] and Postiglione v The Queen[12].

111 Ultimately, the prosecution submitted also being mindful of principles of parity, that the undertaking you gave to the court to give evidence against Hodgson was of such importance that it would warrant me acceding to the submission by Mr Miller that you be assessed and if suitable be placed on a Community Correction Order for your offending. The transcript will reveal that discussion.

112 Ms Clancy referred to the difficulty in finding factually similar cases to yours. As I have often observed over the years, it is very difficult comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation and personal to an offender.

113 Ms Clancy did, however, provide the decision of DPP v Glasby, DPP v Robinson [13]. I discussed with Ms Clancy the disposition imposed in relation to both those offenders and that, in my opinion, such a disposition would be in your case manifestly inadequate, even taking into account your assistance to the authorities which, of course, I do.

114 Ms Clancy conceded that there were significant matters in mitigation militating in your case against the requirement of an immediate custodial sentence, including your cooperation with authorities, youth, plea of guilty, spontaneous involvement and lack of relevant prior convictions.

115 As such, Ms Clancy submitted it was open to the court to impose a ‘lengthy and onerous’ Community Correction Order in all the circumstances.

116 I arranged for you to be assessed for a Community Correction Order and received a report prepared by Ghill De Rozario, Community Corrections officer, dated 6 April 2017.

117 The conditions and requirements of such an order had been explained to you and you agreed to comply with conditions of the Order. You also signed the consent to the making of the order.

118 As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as general deterrence, which is of considerable importance in a case such as this. There have been numerous pronouncements of the Court of Appeal to that effect regarding the offence of armed robbery on 'soft targets', i.e. people going about their daily business being confronted with armed robbers.

119 There is also the need for specific deterrence required when sentencing you as you do have a prior criminal history, albeit limited.

120 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I am concerned about that; however, if you abstain from drug use then there will be less need to protect members of the community from you.

121 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.

122 What I am proposing by way of sentence is as follows. This is my proposal. On Charges 1 and 2 a conviction would be recorded and that you be placed on a Community Corrections Order for a period of 4 years from today's date, being 7 April 2017.

123 Before I ask you whether you consent to such an order being made, I must also tell you about the Order, so that you understand what it means.

124 There are a number of Core conditions that will apply to this Order and they also apply to you. So this applies to everyone but you as well:

125 They are Core conditions, but with you I am going to impose a number of other conditions. These are additional and they also apply to you so you had better listen carefully so you know what you are agreeing to if you do decide to agree to it:

• You have to perform 200 hours of unpaid community work over a period of 18 months of the Order as directed by the Regional Manager (s48C). Same thing, Corrections worker.

• You must be under the supervision of a Community Corrections Officer for the full 4 years, 48 months.

• You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager, i.e. Corrections worker (s48D(3)(a)).

• You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager, i.e. Corrections worker (s48D(3)(e)).

• You must remain at 9 Gilda Court, Rowville between the hours of 9.00 pm and 6.00 am, that is a curfew, until 31 July of this year - and I will come back to that - unless you are in the company of your mother or step-father (s48I).

• You must attend for review of your progress and compliance or otherwise with conditions of the Order and you are going to come back before me on 27 July this year at 9.30 am (s48K). I will come back to that.

• I direct that I be advised by your Corrections Officer - this is an important point because this is something I insist on in any Corrections Order - of any non-compliance of any of those conditions (s48(1)) and I will then determine if the matter should be brought back before me to have a chat to you about it.

126 So you do not get eight non-attendances or the three that you had before. I will be told after the first one.

128 HER HONOUR: You are going to have to be very careful. Just so you understand a little bit about that curfew, I am, of course, conscious that curfews are very restrictive. The magistrate on the current Community Correction Order imposed a curfew to that same date, 31 July. I am going to leave it at that point at the moment .

130 HER HONOUR: But there is a sting. I want to see you on the 27th, four days before that. We will then see how you have been going. I may or may not remove the curfew.

132 HER HONOUR: I am aware that it is extremely strict. It is an imposition on your movements, so to speak, and I am conscious of that.

134 HER HONOUR: But it may still remain. You really need to comply with the Order, is a little bit of advice, which you may or may not accept.

136 HER HONOUR: I can only impose a Community Correction order if you agree to such an Order being imposed so I need to tell you a little bit more about it.

137 I should advise you that if you contravene or breach that Order by committing any further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)).

138 You can also be re-sentenced for the two charges that are before me. One of the options available to me includes a term of imprisonment (s83A(s)).

139 So you are going to have to be extra careful for the next 48 months. That is four years of your life, which is a long time. No committing any further offences that may incur a term of imprisonment, otherwise you are back before the court. Any breaches you are potentially back before the court, you have to be extra careful.

140 I also have to tell you that if you fail to comply with any direction of the Secretary to the Department of Justice, i.e. Corrections worker if you like, as part of this Order, a substantial fine can also be imposed (s83A(e) and A(f)).

141 Before you consent or otherwise to that order being made, did you want to have a chat to Mr Miller about it or do you understand it?

145 HER HONOUR: Yes, and you then signed a document saying that you consented to the order, is that right?

147 HER HONOUR: Mr Miller, just to cover all bases, is there anything you wanted to speak to your client about that he understands before he consents or otherwise to this order?

149 HER HONOUR: Yes, probably a good idea. How did you go, Mr Miller? Had a chance?

151 HER HONOUR: Well done. Thank you for that. Having heard everything I have said about the conditions of the order, both the core conditions and the additional conditions, do you consent to the order being made in those terms?

154 On Charges 1 and 2, you are convicted and sentenced to be on a Community Correction Order for a period of 4 years commencing on today's date with all those conditions I have just explained to you, and I am not going to repeat again.

155 Pursuant to 6AAA Sentencing Act 1991, I declare that had you been found guilty of these two charges following a plea of not guilty and jury finding you guilty of them, I would have sentenced you to a term of imprisonment of 5 years with a non-parole period of 3 years. So if you had pleaded not guilty to those two charges and been found guilty, I would have sentenced you to 5 years' gaol, non-parole 3.

156 Pursuant to s89 Road Safety Act, I cancel and disqualify you from obtaining a licence for a period of 16 months effective from today's date. In imposing that length of time I am conscious, in determining the length of that period, of R v Lefebure [14] referrable to rehabilitation.

157 For completeness, I note you have not spent any days in custody by way of pre-sentence detention should I need to revisit this sentence, which I hope I do not. Any days in pre-sentence detention?

161 HER HONOUR: All right, the paperwork is on the way. You have to sign a few documents before you leave and before I leave, so just wait. While that is happening, I should make it clear, Mr Miller, when he comes back before me on 27 July there may well be judicial monitoring after that. That is just the first date that I have given.

163 HER HONOUR: So if you want to explain that to him if you think he needs to know. What date is the hearing, remind me again, of Mr Hodgson.

165 HER HONOUR: Do you want to go back with him, Mr Miller? Up to you. Anything further?

County Court of Victoria

DPP v Brittain [2017] VCC 394 (7 April 2017)