DPP v Rider [2021] VCC 1481 (4 October 2021)

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSH RIDER

JUDGE:	Her Honour Judge Brimer
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2021
DATE OF SENTENCE:	4 October 2021
CASE MAY BE CITED AS:	DPP v Rider
MEDIUM NEUTRAL CITATION:	[2021] VCC 1481

Catchwords: Cancellation of CCO – circumstances of offender materially altered since CCO imposed - unable to satisfy conditions of CCO due to being on remand – intentionally causing injury - resentencing – general deterrence
Legislation Cited: Sentencing Act 1991 ss 6AAA, 48M, 48N
Sentence: Term of imprisonment of nine months

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Atkinson	Office of Public Prosecutions

For the Accused	Mr T. Antos	Marcevski Lawyers

1 This is an application by Corrections for cancellation of your community correction order (CCO) pursuant to ss48M and 48N of the Sentencing Act 1991 (the Act).

2 On 18 October 2019, I imposed a two year CCO on a charge of intentionally causing injury. The CCO is due to expire on 17 October 2021. The basis of this application is that you were remanded for alleged serious offending on 22 January 2020, and have been in custody since. Under s48M of the Act, if I am satisfied that your circumstances have materially altered since the CCO was made such that you will not be able to comply with any condition of the CCO, then I may deal with the CCO in a number of ways, including by cancelling the CCO and dealing with you for the offences with respect to which the order was made.

3 It is the prosecution's view that you are unable to engage in a further CCO, and that an immediate term of imprisonment is warranted in relation to the original offending. Your counsel, Mr Antos, submitted that in light of you being remanded in custody, you do not have any meaningful capacity to continue engaging with the CCO. Accordingly, the CCO ought be cancelled and you will be resentenced.

4 I am satisfied that your circumstances have materially altered since the CCO was made. Consequently, you will not be able to comply with any condition of the CCO. The circumstances of your offending are set out in detail in my reasons for sentence. I will not repeat them here, other than to recall that the circumstances of the offending involved a cowardly, nasty attack.

5 The injuries to the victim were significant, although you were sentenced on the basis of causing injury intentionally, not serious injury, and I have had careful regard to that. Your conduct requires significant weight, however, to be given to the principles of general deterrence, to deter others from engaging in this type of conduct.

6 Your personal circumstances were also set out in detail in my reasons for sentence and also in the report of Mr McKinnon, to which I had regard at the time of sentencing you and again now, as well as to the matters outlined briefly in Mr Antos' written submissions.

7 You are currently engaged to your partner of three years. Mr Antos submitted that you separated at the end of 2019, at which time you began using methylamphetamine during the period of the CCO.

8 He submitted that you commenced using methylamphetamine when you were approximately 20 years old. You were abusing methylamphetamine at the time of the CCO breaches occurring. Your criminal record is admitted. It is submitted that a significant portion of your history is comprised of drug and driving related matters. As I did at the time of sentencing, I have considered your offending in the context of your disadvantaged upbringing, your background and substance abuse, the breakdown of your parents' marriage and your homelessness from the age of 13.

9 I accepted at the time of sentence and reiterate that you ought be given the benefit of an early plea of guilty, both as an indication of remorse and for the utilitarian benefit your plea of guilty has had in avoiding a trial. I have also had regard to the delay that was agitated in some detail on the original plea, and is set out again in detail in the reasons for sentence.

10 Pursuant to s48M(3) of the Act, I must make the decision on the basis of my assessment of the extent to which you have complied with the CCO. The report from Corrections concludes that you are a 30 year old male with a Victorian criminal history commencing in 2018, comprising largely of driving related and violent offences. Your engagement on your CCO had been poor: you incurred nine unacceptable absences in a three month engagement period between the commencement of the CCO and 22 January 2020, when you were remanded into custody on serious alleged further offending. You have remained in custody since 22 January 2020, with all CCO conditions largely remaining outstanding.

11 In the three months prior to your being remanded in custody, your engagement with the CCO was inconsistent, with non-compliance commencing less than two weeks into the term of the CCO. As I said, Mr Antos submitted that that ought be considered in the context of the breakdown of your relationship and resumption of your use of methylamphetamine.

12 You breached the CCO by non-attendance on nine occasions prior to your remand, although I note, and Mr Antos drew to my attention, that you attended supervision on two occasions and attended two drug ACSO meetings. You initially attended a review regarding programs to reduce offending and you completed 21 hours and 20 minutes of the 250 hours of community work, bearing in mind that you only spent three months on the CCO before being remanded.

13 You allegedly committed further offending of a serious nature less than a month into the operational period of the CCO. You were remanded three months into the CCO. Mr Antos submitted that the sentence I impose ought be moderated in light of your non-compliance being as a result of you being remanded and not due to complete disregard of the CCO. Given the delays caused by the COVID-19 pandemic, it may well be that you are in custody for a significant period of time before your trial and the jury reaching a verdict. You have been in custody for approximately 600 days and, as articulated by Mr Antos, you will remain in custody for the immediate foreseeable future.

14 Mr Atkinson, counsel for the prosecution, took no issue with those submissions. He noted the seriousness of the offending. The prosecution considered an immediate term of imprisonment to be appropriate at the time of the sentencing and is still of that view. He acknowledged, however, that delay was an issue which was taken into account at the time.

15 The prosecution does not contend I ought impose a sentence in respect of the contravention, but rather in respect of the original offending. I have taken into account the submissions made by Mr Antos regarding moderating the sentence, in particular, the more onerous conditions in custody due to the COVID-19 pandemic.

16 Having regard to my reasons for sentence dated 18 October 2019, and having considered the matters raised by your counsel and the prosecution in both written and oral submissions, I cancel the CCO pursuant to s48M(2)(b) of the Act.

17 I will resentence you in respect of the original offending, on the charge of intentionally causing injury.

18 On the charge of intentionally causing injury, I impose a term of imprisonment of nine months.

19 There are no days of pre-sentence detention to be declared as having been served.

20 Pursuant to s6AAA of the Act, I declare that had you not pleaded not guilty to this offence and been found guilty at trial, I would have imposed a term of imprisonment of 18 months.

23 HER HONOUR: Yes thank you for your assistance Mr Atkinson, Mr Antos and Ms Rotondo. You may adjourn the court.

County Court of Victoria

DPP v Rider [2021] VCC 1481 (4 October 2021)