DPP v Fleming [2021] VCC 1264

3 All of the charges before the court occurred in the period between 10 October 2019 and 17 October 2019. At the time you were 41 years of age.

4 The full circumstances of the offending are set out in the 'Revised Summary of Prosecution Opening for Plea' dated 18 April 2021 which was tendered as

5 However, in briefer compass, at approximately 2.30 am on 15 October 2019, Constable Tayla Spence and Constable Stephanie Ryan were on duty in their police vehicle in Rosanna. You also happened to be driving in Rosanna at the same time. The police members ran checks upon your vehicle's details and determined that it was registered to you, and that your driver's licence was suspended.

6 You were then intercepted by police on Rosanna Rd and were directed to pull into the next side street - which you did. The street you pulled into was a no through road. You stopped your vehicle approximately 11 metres from the intersection with Rosanna Rd. There were no vehicles parked in front of your vehicle. The police vehicle stopped approximately five metres behind your vehicle.

7 Constable Ryan approached your vehicle and asked you for your licence and your name and address. You said that you did not have your licence on you, and you provided her with false details. After conducting further checks on your details and a further conversation with you, during which the suggestion was made to you that you may be taken to the police station to confirm your identity, both Constable Spence and Constable Ryan returned to the police vehicle and got in.

8 Once in the vehicle, Constable Spence saw your reverse lights activate and alerted Constable Ryan. You began to reverse towards the police vehicle at an angle before moving forward to straighten up. You then reversed towards the police vehicle again at a fast rate of speed. Constable Ryan immediately put the police vehicle into reverse and accelerated heavily to avoid being hit. The police vehicle reversed out onto Rosanna Rd facing south on the correct side of the road. You also reversed out onto Rosanna Rd, facing north on the wrong side of the road, and narrowly missing the police car. As a result of these manoeuvres, both vehicles ended up facing each other approximately three to four metres apart, with your vehicle on the wrong side of the road. You then accelerated heavily and drove straight at the police vehicle. Constable Ryan again had to take evasive action - swerving onto the wrong side of the road to avoid being hit. (The conduct described in this paragraph is the subject of Charges 1 and 2 - recklessly exposing an emergency worker to risk by driving).

9 You continued driving at a fast rate of speed on the wrong side of Rosanna Rd and turned right onto Plenty Rd. Police performed a U-turn and pursued your vehicle for a short period until they lost sight of you.

10 Approximately 20 minutes later - at 2.50 am - you were driving along Greensborough Highway. The speed limit on that section of the road was

80 km/hr. You were captured on traffic cameras driving through the intersection of Greensborough Highway and Grimshaw Street against a red light. You entered the intersection 3.2 seconds after the light had turned red and were travelling at 184 km/hr. At the time there was another vehicle in the eastbound lanes on Grimshaw Street. This conduct constitutes Charge 3, reckless conduct endangering serious injury.

11 At the time of these incidents your licence was suspended, having been suspended on 20 August 2019 for a period of three months due to excessive speeding (related summary Charge 1 - drive whilst suspended). You were also on bail (related summary Charge 12 - commit indictable offence whilst on bail). One of the conditions of your bail was that you reside at a specific address in Pakenham. During the course of the investigation, police attempted to locate you at that address and were told that you had not been seen at that address for several days. You indicated to police on arrest that you had been staying with a friend in Fawkner for about a week (related summary Charge 13 - contravene a conduct condition of bail).

12 Police ultimately arrested you on 17 October 2019 at Fawkner. You underwent a recorded interview on that day where you made some admissions to your conduct.

13 You accepted that you had given a false name and had driven off. You said that you did this because you had panicked. You also accepted that you had reversed, that the police members were in their car when you reversed, and that you had both reversed on to, and driven on, the wrong side of Rosanna Road.

14 However, you maintained that you did not reverse very fast, that there was plenty of room for you to go through and that you were not trying to run over the police members. You further stated that the police version, that they had to accelerate heavily to avoid being hit, was false.

15 I note that you were not asked any questions specifically about Charge 3 - the reckless conduct endangering serious injury charge - as this conduct was unknown to the police at the time of the interview.

16 I was provided with a victim impact statement from one of the two victims in the matter - Constable Spence.

17 In her statement, Constable Spence described the effects of this incident on both her and her family in the weeks immediately following the incident. Her sleep was impacted, she was tense and edgy, and she felt guilty about the concern and apprehension for her safety that this incident had caused for her family and friends.

18 Further, Constable Spence detailed that her ability to perform her work duties at a level that she expects of herself has been, and continues to be impacted by this incident. Constable Spence described being reminded of your actions each day that she attends work and says that your actions make her apprehensive and cautious of intercepting vehicles - a task which she has to undertake multiple times throughout each shift. She described that each intercept she undertakes reminds her of the level of fear and vulnerability she felt on the night of this incident.

19 It is apparent that your offending has had a significant impact on Constable Spence and I take this impact into account in sentencing you.

20 You have a relevant prior criminal history in respect of driving matters.

21 Of particular relevance to my sentencing task; in 2007 you appeared at Heidelberg Magistrates' Court in respect of one charge of driving in a manner dangerous and one charge of failing to stop your vehicle after an accident, and were convicted and placed on a community based order for a period of 12 months.

22 On 8 January 2009 you were sentenced to a term of imprisonment of 1 month wholly suspended for a period of 12 months for driving whilst disqualified. Then on 18 August 2017 you were again charged with driving in a manner dangerous and were convicted and fined $750.

23 As appropriately conceded by your counsel, these prior matters are relevant to the assessment of the weight to be given to specific deterrence in sentencing you for these current offences - that is, greater weight should be given to deterring you from acting in a similar manner again in the future than might otherwise be required, having regard to the fact that this is not the first time you appear before the court for behaving in either a reckless or dangerous manner on the road. Further, I am of the view that your history is also relevant to determining the weight which I must give to community protection in sentencing, given the nature of the current offences taken in light of your history of driving offences.

24 I note that between January and April 2020 you were also sentenced in respect of two further sets of matters which included two further charges of driving whilst disqualified and a number of charges relating to possession and trafficking of drugs of dependence. In respect of the one set of offences, for which you were sentenced in January 2020, you received an aggregate fine; for the other set of offences, for which you were sentenced in April 2020, you received a term of imprisonment of 6 months of which you had already served 171 days.

25 In considering the sentence to be imposed on the matters before the court, I cannot, and do not intend to, further punish you in respect of the matters for which you were subsequently sentenced. They are, however, relevant in three ways to the current sentencing exercise.

26 First, they are relevant to the consideration of totality. Whilst you were remanded in custody upon your arrest on 17 October 2019, and not bailed until 24 June 2020, the intervening term of imprisonment means that you only have 66 days of

pre-sentence detention available to you. You did however spend just over eight months in custody in total, with all of the pre-sentence detention for this matter being served in the restrictive prison conditions brought about by the pandemic. Both your counsel and prosecuting counsel submitted that totality is a relevant sentencing consideration in this case, and I agree with that submission.

In particular, given the chronology of the current matter, you lost the opportunity for the matters to be heard at a time proximate to each other when effect could have been given to a level of concurrency between any terms of imprisonment imposed in respect of each set of offending. I have taken this into account when determining an appropriate sentence in this case.

27 Secondly, the period of eight months which you spent in custody subsequent to this offending was your first time in custody. It was submitted on your behalf by your counsel that that period of imprisonment has had a deterrent effect upon you and that this is reflected in the changes you have made to your behaviour and lifestyle since your release from custody.

28 Thirdly, when considering the chronology in this case, the offences for which you have been sentenced subsequently must have been committed prior to the current offences. This means that prior to your remand on these offences you clearly had issues with drugs and were engaging in offending behaviour. However, you have not offended since your arrest on the current matters in October 2019, and have undertaken a number of steps both whilst in custody and subsequently to address some of your issues - all of which is relevant to my assessment of your prospects of rehabilitation, and the weight which I might give to rehabilitation as a sentencing purpose. I will return to this issue in due course.

29 Turning now to an assessment of the gravity of your offending.

30 The legislature regards the safety and protection of police officers and other emergency workers whilst they are performing their duties as a matter of particular importance, especially in respect of the danger which is posed to them by persons driving motor vehicles. The day-to-day job of a police officer is difficult enough as it is, without having to also contend with being put in danger by members of the community when they are simply doing their job. That is reflected in the maximum penalty of 10 years' imprisonment ascribed for the offence of recklessly exposing an emergency worker to risk by driving. Whilst this offence is the lowest in the hierarchy of offences involving endangerment of emergency workers by driving, it is still a serious offence.

31 It was submitted on your behalf that your offending falls between the mid and lower end of the range for this type of offending on the basis that it was spontaneous, and in short compass. Further your counsel relied on your cooperation with police and psychological profile as matters supportive of a conclusion that your offending fell into this category.

32 Putting to one side any personal circumstances which may mitigate your offending, and dealing purely with the gravity of your offending, I am of the view that your offending is serious and falls in the mid-range of this kind of offence.

33 In respect of Charges 1 and 2, whilst I accept that the offending occurred over a relatively short period of time, arose spontaneously, and ultimately nobody was physically injured, two police officers were put at risk by your driving. You drove towards their vehicle three times and your actions caused the victims in this matter to not only have to reverse and swerve to avoid being hit by you on two of those occasions but resulted in them ending up on the wrong side of the road with the danger that such positioning carries with it. Further this incident happened in circumstances where you were on bail, and due to your licence being suspended you should not have been driving in the first place. These latter two aspects are the subject of separate summary charges. However, given my view that they aggravate your conduct on Charges 1 and 2, any sentence imposed in respect of related summary Charges 1 and 12 will be framed in such a way as to avoid double punishment.

34 Charge 3 similarly constitutes serious offending. You drove through an intersection, against a red light, in circumstances where you were driving over 100 km/hr faster than the speed limit and in circumstances where there was another vehicle at the intersection for whom there was a green light. Again, it was very fortunate that nobody was actually seriously injured. I similarly consider this offending to fall into the mid-range of seriousness for this kind of offending.

35 Insofar as the related summary offence of contravene conduct condition of bail is concerned, I note that it has not been submitted that there are any aggravating features in respect of this offence, and it is the first time you fall to be dealt with for contravention of a condition of bail. Accordingly, I regard this offence to fall at the lowest end of the scale of such offences.

36 This matter has a lengthy history - not through any fault of yours.

37 You were charged on 17 October 2019 and this matter was first listed for filing hearing in the Magistrates' Court on 17 December 2019. At that stage you were charged not only with the offences which are now proceeding but also with the more serious offences of intentionally exposing an emergency worker to risk by driving and conduct endangering life. Plea offers, which included an offer to plead guilty to current Charge 3, but did not contain an offer to plead to current Charges 1 and 2, were made on your behalf on 12 December 2019 and 30 January 2020. There was a further discussion between your lawyers and the prosecution on

5 February 2020 where your lawyers asked whether a plea to the current Charges 1 and 2 would be considered by the prosecution. It was the prosecution position at that time that a contested committal hearing should run, and that further consideration would be given to a resolution after the committal hearing. Accordingly, your lawyers did not pursue the resolution proposal and the matter was listed for committal on 11 May 2020.

38 The pandemic then intervened causing multiple adjournments of the matter, with the contested committal not proceeding until 4 December 2020. At the conclusion of the contested committal, you indicated an intention to plead guilty to the current Charges 1 and 2 as well as the related summary charges.

39 The matter was ultimately listed for a Judge Alone Trial due to commence before me on 7 April 2021. Just prior to arraignment on that day, prosecuting counsel asked for the matter to be stood down to see if it could resolve. The matter did resolve to the charges which are now before the court.

40 Given the chronology of the proceedings, and despite the late stage at which this matter resolved, I accept that your plea of guilty should be considered an early plea. The fact that the victims were cross-examined at the committal is very unfortunate but does not detract from the weight of your plea in circumstances where, as at the time of the committal, and indeed right up until the day of trial, you were facing more serious charges than those which are now proceeding before the court. I note that the prosecution concedes that an offer should be considered to have been made at the earliest opportunity in the circumstances.

41 Your plea has saved the time and cost of a trial being conducted and saved the witnesses - and in particular the victims - from having to give evidence again. The value of the plea is also enhanced in the current circumstances of the pandemic which is causing unprecedented disruption to the smooth running of the justice system. Accordingly, I am of the view that your plea both facilitates the course of justice and is of significant utilitarian benefit. I also accept that your guilty plea is indicative of acceptance of your conduct and remorse for your conduct - the latter also being confirmed through your conversations with psychologist Ms Cidoni and Rachel Kuang from Corrections.

42 Overall, taking each of the above matters into account, I accept that you are entitled to a substantial discount on your sentence by reason of your plea of guilty.

43 You are now 42 years of age. You were born in New South Wales and were one of three siblings born to your parents Cheryl and Ian. Your family moved around a lot both between states and within states whilst you were young due to your father's work. In 1986 your family moved to Victoria and you attended a number of different primary schools once you arrived in Victoria. Your primary schooling was also disrupted by your brother committing suicide in 1989 when you were

11 years of age. You were diagnosed with depression in the aftermath of his death and did not attend school for a period of six months. You then saw a counsellor at the Austin Hospital and were diagnosed with Post-Traumatic Stress Disorder ('PTSD').

44 You eventually managed to return to school, and attended Grades 7 through to 11 at MacLeod Technical School. You left school halfway through Year 11 to undertake full time work at Kentucky Fried Chicken.

45 Since that time, you have been fairly consistently employed, albeit working in many different workplaces and in many different roles. You have undertaken work in the area of laser cutting and in hospitality with periods of employment ranging from six months to five years in any one job. You are currently unemployed, having lost your most recent laser cutting job on being remanded into custody for these offences, and having been unable to obtain new employment since that time.

46 You lived at home until you were 26 years of age. You then moved out and lived with friends for four years, until meeting and then moving in with your former partner Denille in June 2010. The relationship continued until April 2019 and you have three children - aged 8, 6 and 4 years of age - all from that relationship. You do not currently have any contact with Denille or your children, which is causing you some distress.

47 Your relationship with your father and sister is also strained. However, your mother is supportive of you and has both provided a character reference on your behalf and been present during the plea hearings.

48 You have a history of abuse of alcohol and drugs. You were assessed by Gina Cidoni, psychologist, for the purposes of this plea. During that assessment you reported that you have used cannabis excessively since you were 18 years of age, and at the time of being remanded on these matters you were smoking up to

2 grams of cannabis per day. Further you identified that you tried amphetamine and ecstasy when you were in your early 20's and used ice on and off for 4 years from 2002. You also engaged in binge drinking in the years between 2009 and 2019.

49 In her report, Ms Cidoni says that you reported experiencing significant withdrawal symptoms whilst you were in custody. However, I note that despite those symptoms, you remained drug-free whilst in custody (as evidenced by drug urine screens), and also engaged in a considerable number of courses - both in respect of drug and alcohol issues and other aspects of your behaviour. On the material before the court, you engaged in at least 18 hours of courses directed at drug and alcohol issues, and a further 51 hours of behaviour-related courses.

50 Additionally, since your release from custody you report that you have managed to remain abstinent from drug use. This is supported by the considerable number of clean urine screen results which have been submitted on your plea and which cover the period between 3 July 2020 and 4 August 2021. This is a significant achievement given your longstanding history of drug abuse. Your ability to remain drug-free for an extended period of time is a positive factor when considering your prospects of rehabilitation.

51 As previously mentioned, you were diagnosed with PTSD when you were in primary school following the death of your brother. According to Ms Cidoni, you continue to suffer from this condition to date. Additionally, Ms Cidoni has assessed you as suffering from Borderline Personality Disorder (BPD); and as presenting with comorbid depressed mood and anxious distress.

52 On the plea I received two written reports from Ms Cidoni, as well as hearing oral evidence from her on 13 August 2021 which, in my view, supplemented to a significant degree the material contained in her reports.[1] In Ms Cidoni's opinion the combination of the two disorders have resulted in you having moderate to high psychological dysfunction which has impacted upon you in the past, impacted upon you at the time of the offending, and continues to impact upon you now.

53 In her oral evidence Ms Cidoni explained that BPD is a condition which develops, and comes into full force, in adulthood. In your case it causes you to have a distinct view of the world which is different from those without the condition; to suffer from emotional dysregulation; and to have difficulty in self-calming which means that once activated there is very little you can do to calm down. Further, you are impulsive, take risks, use lying as a means of concealing mistakes, and have comorbid symptoms of chronically depressed mood and anxiety.

54 Insofar as your PTSD is concerned, Ms Cidoni said that it is apparent that this was triggered in childhood and that you had a severe response as reflected in your inability to attend school for an extended period despite receiving treatment at the time. You still have significant symptoms of PTSD including nightmares, exaggerated startle response and hypervigilance, as well as undertaking avoidance measures to avoid circumstances associated with traumatic events.

Ms Cidoni identified that your PTSD can be activated as part of everyday life and leads to reactivity in the form of either fight or flight in response to any situation where you feel that you are being attacked.

55 In Ms Cidoni's opinion, when she looks at the dysfunction in other parts of your life including the failure of relationships - both familial and personal, and your on and off again employment record, she is of the view that your dysfunction as a result of the combination of these conditions is quite severe. She also offered the opinion that these are signs that your symptoms have existed for a long time.

56 In Ms Cidoni's view the combination of these disorders did contribute to your offending on this occasion. In her opinion someone with PTSD alone could have reacted in the manner in which you did on this evening because of fight/flight arousal. However, Ms Cidoni is of the view that in your case it was the interplay of your disorders which contributed to your behaviour. In her view the intercept alone would have placed you in a heightened state where you would not have been able to calm down. As the situation progressed you would have become increasingly distressed and have no control over that distress due to your lack of resources and inability to self-soothe, and this would have been combined with high adrenaline giving you the feeling of needing to get away as quickly as possible. In Ms Cidoni's opinion, ultimately it was the combination of these symptoms that resulted in your reckless and irrational response in driving erratically from the scene.

57 Ms Cidoni explained that whilst the threat of being taken to a police station may not seem that great for the average person, and they would be able to think of options other than flight, for you the impact is exaggerated due to your distorted view caused by your BPD in combination with the severity of your PTSD symptoms. In your particular case, a confrontation would not need to be great in order for a highly exaggerated response to be triggered. Further, Ms Cidoni identified that the fight or flight which is triggered is a biological response which once triggered can take a long time to dissipate - and potentially explains why you were still driving recklessly some 20 minutes later when police were not in pursuit.

58 During rigorous cross-examination, Ms Cidoni accepted that there could be alternative hypotheses for aspects of your behaviour but maintained her original opinion that the interplay of your PTSD and BPD symptomology was a significant contributing factor to your behaviour during the incident, and that it impaired your ability to exercise appropriate judgment, make calm and rational choices and think clearly.

59 Your counsel submitted, on the basis of Ms Cidoni's evidence, that the impact of your mental health conditions upon you should be taken into account in sentencing in a number of ways. He submitted that it reduces your moral culpability for the offending, moderates the weight to be given to general deterrence and specific deterrence, and should be taken into account when considering the type of sentence to be imposed. He also submitted on the basis of material in Ms Cidoni's report that you would find your time in custody more onerous.

60 Mr Albert submitted that given Ms Cidoni's evidence it was a matter for me, when considering the impact of your mental health upon your moral culpability for the offending, as to whether I was satisfied that your mental health conditions contributed to your offending, and as to the level of any such contribution. Further he submitted in respect of deterrence that general deterrence should not be greatly moderated, and that your condition actually spoke towards a higher need for specific deterrence and community protection rather than a reduced need. Insofar as the impact of your mental health in custody, Mr Albert submitted that this was a question of degree and that no evidence had been presented of any particular difficulty which you had faced during your 8-month period in custody.

61 Ultimately, I do accept Ms Cidoni's opinion that the interplay of your BPD and PTSD contributed to your offending on the evening, and that your ability to exercise appropriate judgment, make calm and rational choices and think clearly were all impaired at the time of the offending. I am of the view on the basis of all of the material before the court that your moral culpability for the offending is reduced to a moderate degree, and further that there should also be a modest reduction in the weight to be given to general deterrence due to the impact of your mental health issues at the time of the offending.

62 However, as submitted by Mr Albert, the severity of your condition and the potential for you to overreact, and overreact in a reckless, extreme and criminal manner, when faced with a minor confrontational situation is of particular concern when considering the aspect of community protection. This is relevant to the type and length of any sentence which I impose, and the manner in which it should be served.

63 I note that in both her oral evidence and her reports, Ms Cidoni identified that you require significant treatment in respect of your mental health issues which assists you to both increase insight into your mental health issues and to develop techniques to more effectively manage your symptoms. This treatment will need to be long term and tailored to your particular issues, and it is not treatment which you will be able to receive in custody. It is obviously imperative that you receive such treatment if your risks to the community are to be reduced.

Community Protection and Prospects of Rehabilitation

64 Ultimately, taking into account all of the matters before the court, but in particular the extended period of abstinence from drug use, your willingness to engage in rehabilitative treatment as demonstrated by the many courses which you undertook in custody, and the fact that you have not re-offended in almost two years, I am satisfied that you have reasonable prospects of rehabilitation despite the impact of your mental health upon your functioning and the risks that may pose into the future. Your long-term rehabilitation, and long term community protection, will both ultimately be dependent upon you remaining drug free, and also receiving and engaging in appropriate treatment for your mental health issues such as the dialectical behaviour therapy described by Ms Cidoni in her oral evidence. In sentencing you I have borne in mind that such treatment needs to occur over an extended period of time and is not available within the prison system.

Additional Hardship in Custody - Impact of COVID-19

65 It was submitted by your counsel, that I should take into account the impact that the COVID-19 pandemic had upon your period on remand for this offence, and the impact that it would have upon any further period of imprisonment imposed.

66 Given the current state of the pandemic (and the fact that you were also previously remanded during a significant period of community lockdown), I do take into account that the time you have already spent in custody in respect of this offence and any further time that you might spend would be more onerous than in

non-pandemic times due to the need for quarantining upon remand; the reduced access to programs, education, employment and face-to-face contact with family and friends; and the additional stress for both you and your family in respect of concern for your health in custody and your family's health in the community.

67 Mr Rofe submitted on your behalf that given all of the circumstances in this case, a Community Correction order would be an appropriate disposition. As a secondary submission, Mr Rofe submitted that if I was to impose a term of imprisonment, that any such term should be limited to the time you have already spent in custody and be served in combination with a Community Correction order.

68 Prosecuting counsel conceded that a combination sentence would be open to the court in the circumstances but did not concede that any term of imprisonment should be limited to that already served.

69 I note that I have had you assessed for a Community Correction order and that you have been assessed as suitable for such an order. According to the assessor you engaged well throughout the assessment process, were polite and forthcoming with information, and offered admissions and remorse for your actions. Further it is apparent that you have some level of insight into the precursors to your offending and your treatment needs within the community, and you expressed a willingness to engage in ongoing programs to address factors contributing to your offending.

70 Having carefully considered the various sentencing considerations raised by this case as outlined in these reasons for sentence and also taking into account the principle of parsimony and current sentencing practice, I am of the view that despite the seriousness of your offending and your bad driving record, all of the sentencing purposes can be achieved in this case through the imposition of a combination of the time which you have already served in custody and a Community Correction order with a community work component as well as treatment conditions.

71 I am of the view that to place you back in custody now would not be conducive to your ongoing rehabilitation, nor to ensuring long term community protection especially given the significant steps you have already taken towards rehabilitation during the delay in this proceeding. However, a Community Correction order can be appropriately tailored to not only meet the sentencing purposes of rehabilitation and community protection, but to also appropriately denounce your conduct, and to act as a deterrent for both yourself and others from engaging in this kind of offending into the future.

72 To be completely clear, whilst I consider that a term of further imprisonment is not required in this case to meet all of the sentencing purposes, especially given the mitigating material before the court, your offending was serious and weight still has to be given in the sentence I impose to denunciation, just punishment, specific deterrence and general deterrence (albeit moderated). I am of the view that it is necessary in order to adequately punish and denounce your offending that there not only be a term of imprisonment imposed, but also a community work component to the Community Correction order. Further I also consider it necessary in order to give appropriate weight to the purposes of punishment, denunciation, community protection and general deterrence (albeit moderated), that the Community Correction order which I impose be of some length.

74 On Charges 1 and 2 you are convicted and sentenced to an aggregate term of imprisonment of 66 days.

75 Additionally, on Charges 1 and 2, and on Charge 3 you are convicted and placed on a community correction order for a period of 2 years. That starts today. In addition to the mandatory conditions of the order you will be subject to the following special conditions:

**(i) you must report to South Morang Community Correctional Services within 2 clear working days of the commencement of this order.

I understand that will be done by phone rather than in person given the current restrictions;

(ii) you must perform 250 hours of unpaid community work during the period of the order;

(iii) you will be under the supervision of a Community Corrections officer for the entire period of the order;

(iv) you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed. I understand that you are currently clean and have been clear for a significant period of time. That condition is there to help deal and to allow you to have the resources to ensure that there is no relapse into the future;

(v) you must undergo mental health assessment and treatment as directed;

(vi) you must participate in programs and/or courses that address factors relating to the offending as directed; and

(vii) you will be subject to judicial monitoring, which means that you must

re-appear at Court for a review of your compliance with the order as directed by the Court. That means you come back before me, all right. Your first review will be at 10.30 am on Wednesday 20 October 2021.**

76 On related summary Charge 1, drive whilst suspended, you are convicted and sentenced to 28 days' imprisonment to be served concurrently with all other terms of imprisonment imposed today.

77 On related summary Charge 12, commit an indictable offence whilst on bail, you are convicted and sentenced to 14 days' imprisonment to be served concurrently with all other terms of imprisonment imposed today.

78 On related summary Charge 13, contravene a conduct condition of bail, you are convicted and discharged.

79 The total effective sentence is therefore a period of 66 days' imprisonment, plus a 2 year Community Correction order with the special conditions I have already outlined.

80 A period of 66 days of pre-sentence detention is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court. So, you have got 66 days' imprisonment, but you have done the 66 days' imprisonment, so as I say, your

81 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges and been convicted of them, you would have been sentenced to a total effective sentence of 14 months' imprisonment and a Community Correction order. I indicate that that would have been possible in this case, given the pre-sentence detention that had already been served. If anyone is wondering about the ability to combine 14 months with a CCO.

82 Charges 1 and 2 are defined as serious driving offences pursuant to s87P of the Sentencing Act, and accordingly I am required to cancel any driver's licence which you may hold and disqualify you from driving for a period of not less than

24 months in respect of each of those charges. Whilst I am very aware that the inability to drive can hamper rehabilitative efforts, given your prior driving history, the fact that you were suspended from driving at the time of this incident, and the need to protect the community, any driver's licence which you hold is cancelled and you are disqualified from driving for a period of 30 months from today in respect of Charges 1 and 2.

83 Further, in respect of related summary charge 1 (drive whilst suspended), your licence is also cancelled, and you are disqualified from driving for a period of

6 months, such period running concurrently with the period of disqualification ordered on Charges 1 and 2 on the indictment. So, you are off the road for

30 months from today. It is imperative you do not get back in a vehicle and drive until you have your license back. All right.

84 Counsel, before I explain to Mr Fleming the consequences of breaching the Community Corrections order, are there any matters which either of you wish to raise at this stage in respect of either the sentence or reasons for sentence?

89 Mr Fleming, I have already run through the special conditions which you will be subject to whilst on the Community Corrections order. In addition to those there are mandatory conditions which include the following:

• you must not commit another offence for which you could be imprisoned during the time that the order is in force;
• you must report to, and receive visits from, the Secretary (or delegate);
• you must let a Community Corrections officer know within two clear working days of you changing your address or job;
• you must not leave Victoria without first getting permission to do so from the Secretary (or delegate); and
• you must obey all lawful instructions from and directions of the Secretary

90 Do you understand all of those conditions on the order, both the mandatory conditions and the special conditions that I have imposed?

92 HER HONOUR: I must tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by Corrections and the matter will be brought back before me.

93 So just as an example, given that I have disqualified you from driving for the next 30 months, if you were to get in a vehicle and drive during the period of the Community Correction order you would be committing an offence punishable by imprisonment and would be in breach of your order. You would then be brought back before me on the breach and one of the potential outcomes would be that you are re-sentenced on this matter and face further gaol time. Do you understand that?

95 HER HONOUR: Given all of those matters which I have told you and the conditions which will apply, do you consent to undertaking that Community Correction order?

97 HER HONOUR: All right, thank you. So, what will happen is that we will forward through - my staff will forward through a copy of that order which I will sign and it will be noted on the orders that you have orally consented. Your oral consent has been recorded in court today, so there is a recording of you having just agreed to the order, if an issue ever comes up in relation to that. You will need to make - you will get through a copy of that order, so that you know what the conditions are and you have got a copy of those. You need to make sure you make that phone call to Corrections within the next 48 hours, so that they can get you started on your order. All right?

100 OFFENDER: Does the report have the number I call or - - -

101 HER HONOUR: Yes, it will have the number for Corrections on there. So, it will be towards the top of the order when you get it. It will also have an address, but you need to do the report by phone and then they will tell you what to do from there. All right. Anything further from counsel?

104 MR ROFE: No, Your Honour. May it please the court.

105 HER HONOUR: All right. Mr Rofe, did you want an opportunity to have a quick chat to Mr Fleming on the link? It will have to be quick, because we have another matter later. But before - - -

106 MR ROFE: No, I will call him on his mother's phone, so I will do it that way.

109 HER HONOUR: All right, well adjourn the court. Thank you.

[1] I also received a report authored by Charles Huson, registered psychologist, dated 17 August 2017.