The Queen v Deing [2014] VSC 270 (11 June 2014)


IN THE SUPREME COURT OF VICTORIA		Not Restricted

THE QUEEN

and

DAVID DEING	Accused

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2014
DATE OF SENTENCE:	11 June 2014
CASE MAY BE CITED AS:	R v Deing
MEDIUM NEUTRAL CITATION:	[2014] VSC 270

CRIMINAL LAW – Sentence – Breach of community correction order (CCO) by non-compliance – Abject failure to comply with CCO – Accused in dire straits in early stages of CCO – Original offence of intentionally causing injury – Assault by three onto one over dispute in public car park – Spontaneous incident – Complainant stabbed multiple times but accused sentenced on basis of causing bruising and pain only – Youth – Pleas of guilty to original charge and to breach of CCO – Remorse – Prior Children’s Court appearances for violence – Significant assistance to authorities in prosecution of co-accused provided after original sentence imposed and after failure to comply with CCO – Reasonable prospects of rehabilitation – Sentencing purposes – Parsimony – Crown concession as to suspended sentence being open – On breach of CCO, accused convicted and discharged – CCO cancelled and accused resentenced on original charge to nine months’ imprisonment wholly suspended for nine months – But for plea of guilty and assistance to the authorities, sentence of 18 months’ imprisonment with a non-parole period of six months.

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D Piekusis	Office of Public Prosecutions

For the Accused	Mr D Holding	Greg Thomas, Solicitors

1 On 20 May 2014, David Deing pleaded guilty to a charge that, contrary to s 83AD(1) of the Sentencing Act 1991 (Vic), he, without reasonable excuse, failed to comply with the conditions of a community correction order (“CCO”).

2 I imposed the CCO on 25 November 2013 after Mr Deing pleaded guilty to a charge of intentionally causing injury arising out of a serious assault.[1] The CCO was of 18 months’ duration and contained all the standard conditions as well as some additional conditions as to treatment and rehabilitation, supervision and unpaid community work.

3 The failure to comply with the CCO was constituted by Mr Deing’s failure to do the following things:

a) report to the specified Community Corrections Centre (“CCC”) within two working days after the CCO came into force;

d) engage in supervision, monitoring and management as directed on 27 November and 10, 11 and 19 December 2013 and 2, 9 and 15 January 2014.

4 On the plea, Ms Piekusis, who appeared for the Director, tendered a report dated 27 February 2014 by Community Corrections Officers detailing the circumstances of Mr Deing’s failure to comply with the CCO (Exhibit 1) and an addendum report dated 21 March 2014 (Exhibit 2). Mr Holding, who appeared for Mr Deing, did not dispute the contents of those reports.

5 In the first report, it is alleged that Mr Deing failed to report to the specified CCC by 27 November 2013, i.e. within two days of the imposition of the order. The order expressly required Mr Deing’s attendance within that period.

6 Numerous attempts were made the same day to contact Mr Deing but there was no response until 28 November, when he left a voicemail saying he overslept. On his next contact with the CCC, Mr Deing said he did not attend because he was feeling stressed about court. As a result of some confusion, Mr Deing then failed to attend a rescheduled appointment on 29 November and was given another appointment on 3 December. He attended that day, when his obligations under the order were explained. He failed to attend his next appointment on 10 December. Mr Deing said he had a medical appointment at the same time. Yet another appointment was given for 11 December, but not attended. Mr Deing said he had missed the bus, so the appointment was rescheduled for later in the day. When he attended, Mr Deing explained that the car he usually drove was being fixed and he was not aware of the bus timetable. Mr Deing failed to attend his next appointment on 19 December. Attempts to telephone Mr Deing were unsuccessful. The CCC mailed a letter advising Mr Deing to attend on 2 January but, again, he failed to attend. The same day, a final warning was given, requesting him to attend on 9 January, which appointment was not kept. When contacted by telephone that day, Mr Deing said he was busy over the Christmas period and did not have time to contact the CCC. He said he was willing to attend the following week, so a new appointment was arranged for 15 January but, yet again, he failed to keep it. The decision was then taken to initiate contravention proceedings.

7 The report also details a failure to attend the CCC for the purpose of undergoing treatment and rehabilitation as required on 12 December and failures to attend for community work on 13, 20 and 27 December.

8 On 28 February, Mr Deing rang the CCC and asked whether there was anything he could do to continue with the CCO. He was told that, given he had ceased contact with the CCC and failed to comply with the CCO, contravention proceedings would be commenced and he was no longer required to attend the CCC. Mr Deing said he had not received any correspondence, although he confirmed he continued to reside at the same address, and that his mobile telephone had been disconnected and he had been feeling depressed.

9 The addendum report referred to an alleged offence of driving whilst suspended that had not yet been determined. That was not, and, given it was not yet determined, could not be, a particular of the offence of failing to comply alleged against him. Accordingly, I have ignored that allegation.

10 Mr Holding explained that, around the time the order was imposed, Mr Deing was considering making a statement and giving evidence against his co-accused Kevin Nguyen. That was something that troubled him a good deal. Mr Nguyen was, after all, his cousin. Thus the reference in the first report to his being stressed about court. I shall return to this issue shortly.

11 Further, Mr Deing was living away from his family home in the early stages of the order, which he did not disclose to the CCC, and he had not paid his telephone bill. The reason he was away from home was his strained relationship with his step-father. Mr Holding also tendered a report from Dr Aaron Cunningham, a forensic psychologist. Dr Cunningham is of the view that Mr Deing was, at the time of the breach, and, is still, suffering from a persistent depressive disorder. Mr Holding submitted that these things explain in part why Mr Deing did not respond to letters or telephone calls when he should have done. Ultimately, Mr Deing returned to the fold towards the end of January and then contacted the CCC in February.

12 I turn now to the nature and gravity of the breaching offence. Failing to comply with a CCO carries a maximum penalty of three months’ imprisonment.[2] Mr Deing’s failure to comply was extensive. He failed to attend the CCC from the outset and attended only twice thereafter, despite being given numerous opportunities by the officers administering the order. It was only after the decision had been taken to institute breach proceedings that Mr Deing belatedly contacted the CCC and asked what he could do. Whilst I accept that his living away from home, the stress of potentially giving evidence against his cousin and his dire straits generally all made compliance more difficult, Mr Deing was well aware that he was subject to an order, was capable of complying with it and knew that the onus was on him to make reasonable efforts to make contact with the CCC so that he could comply with the order.

13 Since, for reasons that I shall explain shortly, I have come to the view that the CCO must be cancelled and that Mr Deing will have to be resentenced on the original charge, I shall set out the circumstances of that offence.

14 Those circumstances were outlined in a written Summary of Prosecution Opening (Exhibit A) tendered on the original plea in mitigation on 22 November 2013. Mr Gyorffy SC, who appeared for the Director on that occasion, opened the matter from that document, although he made a couple of corrections in the course of that opening. He also tendered two photobooks (Exhibits B and C). The Director’s summary, allowing for Mr Gyorffy’s corrections, and some other minor ones, was as follows:

[1] On 1 September 2012, Mr Greaves and his girlfriend, Chantelle Tamblyn, went to the K-Mart shopping centre on Burwood Highway, Burwood East. They drove there in Ms Tamblyn’s silver Mazda.

[2] After completing their shopping, they went back to the car to leave. Just as they were leaving, a red hatch-back, driven by an Asian woman, pulled into the car park next to them.

[3] As Ms Tamblyn’s car was reversing out of the car space, one of the occupants of the red hatch-back opened the door, almost hitting her car.

[4] Ms Tamblyn continued to reverse out of the car space. Occupants of the red hatch-back walked in front of her car, causing her to brake suddenly.

[5] Mr Greaves stuck his head out of the front passenger side window and yelled out words to the following effect: “Fucking idiots, watch where you’re going”.

[6] At this stage, Ms Tamblyn observed three or four Asian males kicking her car and yelling at her and Mr Greaves. She drove off to get away from them. There was a car blocking their exit and they had to stop.

[7] At that stage, Mr Greaves opened the door to get out and tell the people not to hit the car. As he was getting out of the car, a group of Asian males sprinted towards him. There were three or four who ran over.

[8] They were yelling “Do you want to fight” and repeating that. One of these men was wearing a black jumper with red writing. He had black messy hair with some brown or red colour in it. The prosecution says this was the accused David Deing.

[9] Mr Greaves says there was another male wearing a red top and black pants. He had black shoes with a white sole. That was Kevin Nguyen. There was a male wearing a black jacket with a white t-shirt. That was Kenny Nguyen.

[10] As they came towards him, yelling, Mr Greaves kicked out a couple of times. Then he started wrestling with the man the prosecution alleges is David Deing. He was put in a headlock with both of Mr Deing’s arms around his neck. Eventually, Mr Greaves was forced to the ground.

[11] While in a headlock and effectively disabled by Mr Deing, two other men – the prosecution says Kenny Nguyen and Kevin Nguyen – were striking at Mr Greave’s body in what appeared to be punching motions.

[12] Daniel Crawt, who was in the car park and saw this occurring, said four men were punching and kicking Mr Greaves, who was trying to cover up and protect himself. Mr Crawt said:

I saw them all still going at him and decided to help out. I saw the main Asian male that was involved jabbing at the Aussie with his right hand, it was a strange motion as it wasn’t a fist; it was more of the way you would hand-ball a football. He was hammering into him whilst another Asian male was kicking him.

[13] Mr Crawt gives a description of the man he called “the main Asian male”. The prosecution says that fits the accused Kevin Nguyen. The other male doing the punching and kicking, the prosecution says, is Kenny Nguyen.

[14] Mr Greaves got David Deing off him by squeezing his testicles. Mr Crawt intervened along with others and the other males ran off towards Blackburn Road.

[15] David Casey said he saw a male he describes, and the prosecution says was Kenny Nguyen, duck down and put something under a car as he was running away.

[16] The car was a maroon colour with registration number OAW 901, which was two car lengths from where the assault occurred.

[17] The knife with Kenny Nguyen’s DNA on it was found at that spot. That knife had DNA on the blade. It was inconclusive whether that was from Mr Greaves.

[18] After the assailants had escaped, it was found that Mr Greaves had several stab wounds in the back. He had a punctured lung and was losing blood from his injuries.

[19] He was taken to the Alfred Hospital where surgeons operated on him. He was in hospital for a week.

[20] Angela Cao and Henry Nguyen said that, after the incident, they all went back to Robert Vo’s place nearby and talked about the incident. They said that Kevin Nguyen told them that he had taken a knife to the scene and he stabbed Mr Greaves.

[22] On this state of evidence, the prosecution is unable to assert beyond reasonable doubt that it was Kevin Nguyen or Kenny Nguyen who used the knife to stab Mr Greaves.

[24] Intent has to be inferred from the surrounding circumstances. The prosecution says that this was a brutal and callous assault where two accused [i.e. Kenny Nguyen and Kevin Nguyen] had an intent to cause serious injury.

• They beat him severely, even after he was overpowered, and stopped only when others intervened;

• They were each angry and seeking to exact revenge for what they perceived as an insult when Mr Greaves yelled at them; and

[26] Insofar as Kenny Nguyen is concerned, the prosecution says he participated in the assault on Mr Greaves with the intention to cause serious injury. The serious injury he contemplated was injury that would be caused by punching and kicking. That included bruising and pain.

[27] Photograph 9 of Photobook 4 [Exhibit B] shows very heavy bruising below the knee of Mr Greaves that is not associated with a knife wound. There are other areas of bruising where subsequent knife wounds have been inflicted. The prosecution contends that it is possible some of them were inflicted by punches and kicks but cannot identify specifically which injuries fit that category because of medical intervention. It is contended, however, that there was a number of bruises and pain, which is consistent with the assault inflicted on Mr Greaves.

[28] The prosecution agrees that the injuries inflicted are at the bottom end of the range of serious injury.

[29] David Deing was the first to engage with Mr Greaves. He was wrestling him to the ground. He hit Mr Greaves a few times.

[30] The actions of David Deing support an intention to cause injury, because they were not as extensive as those of Kenny Nguyen. Those injuries would include pain and moderate bruising.

15 Mr Holding, who also appeared for Mr Deing on the original plea, accepted the substance of that summary, although he pointed to parts of the depositions that qualified aspects of it. In particular, he submitted the following was apparent from the depositions: First, Ms Tamblyn conceded that it was difficult to be precise about the number of people kicking her car. Secondly, Mr Greaves conceded that he was unsure whether they had to stop because of the other car blocking their path. Thirdly, Mr Greaves conceded he might have got out of the car because he was angry about the men having dealt with his girlfriend’s car. Fourthly, Mr Greaves conceded that he delivered kicks before any contact from the accused and that he may have thrown punches at the person wrestling with him.

16 For the purposes of sentencing Mr Deing originally, I accepted the relevant parts of the prosecution summary and the contentions therein, as qualified by the points made by Mr Holding, as an accurate account of the circumstances of the offence.

17 Mr Gyorffy tendered a victim impact statement made by Mr Greaves (Exhibit D). Not surprisingly, Mr Greaves was terrified by the incident. As Mr Gyorffy properly conceded, however, given Mr Deing’s offence did not involve any liability for the knife wounds, it would not be permissible to take into account the physical and psychological impact of those wounds in sentencing him. But I did take into account the terror and injuries Mr Greaves suffered as a result of the offence committed by Mr Deing.

18 I turn now to the nature and gravity of the original offence. Intentionally causing injury can be a serious offence. It involves intentionally causing another person injury and carries a maximum penalty of ten years’ imprisonment.[3] Whilst Mr Deing’s offence did not involve a severe level of injury, it was not at the lowest end of the scale of injuries that can make out the offence. Further, Mr Deing also participated in a terrifying assault by three men onto one. On the other hand, Mr Deing’s involvement was confined to wrestling and punching, and did not involve the kicking or stabbing that his co-accused engaged in. The offence was not premeditated. Rather, Mr Deing responded spontaneously – to the perceived slight and then to kicking and perhaps punching by Mr Greaves – albeit without any lawful justification or excuse, as his plea of guilty conceded.

19 Mr Deing has a prior criminal history for appearances in the Children’s Court. He was born on 5 November 1993. He was aged 18 at the time of the offence and 20 at the time of sentence. On 4 December 2009 (at age 16), Mr Deing appeared in the Children’s Court on charges of recklessly causing injury, threat to kill and arson and was placed on probation, without conviction. On 23 July 2010 (at 16), he appeared in the Children’s Court on various driving offences and again was placed on probation, without conviction. On 27 June 2012 (at 18), he appeared in the Children’s Court on a charge of affray and again was placed on probation, without conviction.

20 In my view, Mr Deing’s prior history for violence adds to the weight to be accorded to specific deterrence, although I recognize he was very young at the time of those prior offences.

21 At the original plea, I was informed by Mr Holding that Mr Deing had been charged with assault-related offences arising out of an incident at the Melbourne Custody Centre after he was arrested on the current injury and related charges, and that he would be pleading guilty to an assault-related charge or charges. As I said at that time, I regard this incident as relevant to Mr Deing’s prospects of rehabilitation and to the weight to be accorded to specific deterrence, although it is difficult to accord much weight to this incident as I know very little about it and, as at the time of the current plea, he still had not been dealt with on this subsequent matter.

22 Mr Deing was originally charged with attempted murder, intentionally causing serious injury and other alternatives. At a committal hearing in the Magistrates’ Court, he was discharged on attempted murder but committed for trial on intentionally causing serious injury and the other charges, to which he pleaded not guilty. Prior to the committal hearing, however, Mr Deing had offered to plead guilty to affray and to an assault charge that excluded any complicity for the knife wounds. In pre-trial discussions in this Court, Mr Holding indicated that Mr Deing would plead guilty before the jury to affray if the matter went to trial on the more serious charges. Ultimately, once the Director was prepared to accept the plea to intentionally causing injury on the facts outlined, Mr Deing pleaded guilty immediately. In those circumstances, Mr Deing’s plea of guilty was one made at the first reasonable opportunity and was (and is still) deserving of significant weight in mitigation.

23 His plea of guilty to the breaching offence was also made at the first reasonable opportunity and is also deserving of significant weight in mitigation.

24 At the original plea, I was satisfied that Mr Deing was genuinely remorseful. He offered to plead guilty at an early stage and did plead guilty. Further, I observed him throughout the proceedings and came to the view that he very much regretted what he had done and the harm suffered by Mr Greaves.

25 Despite his failure to comply with the CCO, my view about Mr Deing’s remorse has become even firmer. As I shall explain shortly and as alluded to earlier, subsequent to his plea and sentence, Mr Deing made a statement implicating his cousin Kevin Nguyen in the stabbing of Mr Greaves and gave evidence before me on a contested plea. It was plain to me that Mr Deing felt morally responsible for being involved in the assault on Mr Greaves.

27 Mr Deing was aged only 18 at the time of the original offending and 20 at the time of sentence. Whilst the seriousness of his offending and his prior and subsequent criminal history reduced the weight to be accorded to his youth, I still regarded his youth and maximizing his chances of rehabilitation as important considerations. I remain of that view, although his failure to comply with the CCO has dented his prospects of rehabilitation.

28 As indicated earlier, after the original plea and sentence, Mr Deing made a statement to police implicating Kevin Nguyen, principally by way of confession, as the person who stabbed Mr Greaves. Subsequently, in late-January this year, he gave evidence before me in accordance with that statement. That evidence was very important to the Director’s case against Kevin Nguyen.

29 Assistance to the authorities of this type can be, and is in this case, a powerful factor in mitigation. To have taken such a course against a close relative, as was the case here, must have been a difficult choice. This assistance also had the unusual feature that it was not offered in exchange for the promise of anything in return from the Crown. It was apparent to me when observing Mr Deing give evidence that he was motivated to do the right thing rather than acting out of a hope or an expectation of reward. Yet it is very important to the administration of justice that such assistance be encouraged and rewarded when it is offered or given.

30 In those circumstances, I am of the view that Mr Deing’s assistance to the authorities – both in providing a statement and in giving evidence – is a very significant factor in mitigation.

31 At the original hearing, I formed the view that, despite his criminal history and the fact that he committed the offence whilst on probation, Mr Deing had good prospects of rehabilitation but that he was in need of supervision of the type a CCO would involve. There were several reasons. First, Mr Deing was still young, had pleaded guilty and was remorseful for his actions. Secondly, he had the support of his family, including his mother, uncle and grandmother, all of whom attended the plea. (His mother again attended the plea on the breach proceedings.) Thirdly, he had the deterrent experience of spending 73 days in adult custody before being bailed. Two weeks of the period was spent in the Melbourne Custody Centre with no natural light. Mr Holding explained, and I accepted, that Mr Deing found that whole period rather difficult. Fourthly, upon his release, Mr Deing did not reoffend. On the other hand, he failed to comply with a curfew condition of his bail, which saw him incarcerated for an additional five days before being bailed again. Fifthly, he participated successfully in the Court Integrated Services Programme (“CISP”). This involved inter alia engaging with a psychologist, which he did, and taking prescribed medication to deal with an alcohol abuse problem. Finally, whilst he did not have a solid work history, he had shown in the past that he could work and study, which gave me some hope that he would become gainfully employed in the future.

32 Since then, two things of considerable significance have occurred. First, Mr Deing failed to comply with the CCO. In my view, Mr Deing’s disappointing failure to take up the rehabilitative chance offered to him by way of the CCO undermines his prospects of rehabilitation. I am still prepared to accept that he has reasonable prospects of rehabilitation, but they are simply not as good as I thought they were back in November.

33 Secondly, however, in another respect, Mr Deing has redeemed himself in a manner as striking as was his failure to comply with the CCO. And that is through his considerable assistance to the authorities. But, despite the importance of that assistance as a mitigating factor, it does not make him a candidate for a further or extended CCO. The conundrum is that I still think that Mr Deing could well benefit from a CCO – and indeed the community would benefit too if he were able to complete a CCO successfully – but I do not have sufficient confidence that he will comply with an order of that type to warrant taking such a course. Mr Deing must be rewarded for his assistance to the authorities, and he will be, but that assistance does not in this case make appropriate a type of rehabilitative sentence in which he has shown insufficient interest and to which he has not even remotely applied himself.

34 In my view, general deterrence, just punishment and denunciation are important considerations in the present case. Others in the community should understand that anyone who might be minded to act in the way Mr Deing did when he assaulted Mr Greaves, and cause the harm he caused, will receive significant and just punishment. The community should also know that the courts will denounce such behaviour. And I do.

35 Others in the community should also understand that, whilst each case turns on its own facts, abject failures to comply with rehabilitative orders such as CCOs will mean that courts may well be disinclined to extend leniency by confirming or extending such orders when breaches are established.

36 Whilst specific deterrence was also an important consideration, particularly in light of Mr Deing’s prior and subsequent appearances for criminal offences and his offending whilst on probation, I considered, and still consider, that factor to be of less weight than otherwise on account of his pleas of guilty, remorse, youth, assistance to the authorities and (his lesser but still reasonable) prospects of rehabilitation.

37 Mr Deing’s part in the assault was serious enough, but the weight to be given to the other sentencing purposes already mentioned will produce a sentence of sufficient severity to protect the community without the need to resort to an additional component in the sentence for community protection. As for rehabilitation, which remains an important consideration, I am of the view that that purpose will have to be achieved by a sentence other than a further CCO.

38 Section 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. Section 5(4) provides that a court must not impose a sentence that involves confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve confinement of the offender. These provisions reflect the common law principle of parsimony. I have applied this principle and these provisions when fixing sentence.

39 In so far as I can determine them, I have had regard to current sentencing practices for the offence of intentionally causing injury. I have considered the latest Sentencing Snapshot on this offence and read the reasons for sentence and judgments of the Court of Appeal in cases for this offence in recent years. It is almost always difficult usefully to compare sentences imposed in other cases and divine solid information from sentencing statistics, but I have found these sources of some assistance. In the end, however, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentences.

40 In considering this matter, I have had regard to the sentences imposed upon Kenny Nguyen and Kevin Nguyen for their respective offences, albeit that they both pleaded guilty to the more serious offence of intentionally causing serious injury and, in the case of Kevin Nguyen, his was a much more serious example of that offence.[4]

41 Mr Holding submitted that, despite Mr Deing’s performance on the CCO (which, he accepted, was properly characterized as dismal), I should consider varying or confirming that order pursuant to s 83AS(1)(a) or (b) of the Sentencing Act. Mr Holding emphasized the difficult personal circumstances Mr Deing faced at the time of commencing the order, his offer to comply with the order in February, his earlier compliance with CISP, his youth, the lack of drug use or violent offending since the CCO was imposed, his assistance to the authorities and the importance of rehabilitation. Mr Holding acknowledged that, in the particular circumstances, to place Mr Deing back on a CCO may only be setting him up to fail. Unfortunately, I think that that is the truth of the matter. In the alternative, Mr Holding submitted that a wholly suspended sentence of imprisonment should be imposed.

42 Ms Piekusis submitted that it was open to impose a wholly suspended sentence of imprisonment or a period detention in a youth justice centre.

43 Balancing all matters as best I can, I have determined that Mr Deing is to be dealt with as follows:

44 On the charge of failing to comply with the CCO, pursuant to s 73 of the Sentencing Act, Mr Deing is convicted and discharged.

45 Further, in my view, in the circumstances of this case, the only appropriate course is to exercise the power under s 83AS(1)(c) of the Sentencing Act by cancelling the CCO and resentencing Mr Deing on the charge of intentionally causing injury. On that offence, Mr Deing is convicted and sentenced to nine months’ imprisonment. Pursuant to s 27(1) of the Sentencing Act as it applied at the time of the commission of this offence, I am satisfied that it is desirable to suspend all of that sentence for a period of nine months, and I do so.

46 Whilst no declaration of pre-sentence detention is necessary, I note for completeness that Mr Deing spent 78 days in custody attributable to the matter for which I imposed sentence.

47 Section 6AAA(1) of the Sentencing Act compels a declaration of the sentence that would have been imposed on Mr Deing for intentionally causing injury but for his plea of guilty. There is a degree of imprecision and artificiality in that exercise. It is further complicated by the fact that, subsequent to pleading guilty to the original offence, Mr Deing provided assistance to the authorities. Nevertheless, allowing for those difficulties, I can declare that, but for Mr Deing’s plea of guilty and his assistance to the authorities, I would have imposed a sentence in the order of 18 months’ imprisonment with a non-parole period in the order of six months.

48 Since s 6AAA(3) allows, but does not compel, a declaration of the sentence that would have been imposed but for the plea of guilty when an accused has been convicted and discharged, I decline to make such a declaration in respect of the sentence that might have been imposed for failing to comply with the CCO.

I certify that this and the 16 preceding pages are a true copy of the reasons for sentence of Croucher J of the Supreme Court of Victoria delivered on 9 May 2014.


	Associate