Director of Public Prosecutions v Abalos

[2016] VCC 973

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00750

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRANDON ABALOS

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2016
DATE OF SENTENCE:	8 July 2016
CASE MAY BE CITED AS:	DPP v Abalos
MEDIUM NEUTRAL CITATION:	[2016] VCC 973

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms M. Mahady	Office of Public Prosecutions
For the Accused	Mr G. Connelly	Matthew White & Associates

HIS HONOUR:

1Mr Abalos, you have pleaded guilty to one count of causing serious injury negligently and two counts of theft. You have further consented, pursuant to s.145 of the Criminal Procedure Act to this court dealing with some summary offence matters. You have been charged with unlicensed driving. That is a summary offence. You are consenting to that being dealt with by this court.

2You have heard the learned prosecutor, Ms Mahady, tell this court that the maximum sentence that may be imposed for these various offences are as follows:  For causing serious injury negligently, ten years' imprisonment; for theft, and you have got two counts of theft.  On each count the maximum sentence is ten years' imprisonment; and for the summary offence of unlicensed driving you can be fined 250 penalty units, which means a whole lot of money, 250 multiplied by about 160.  It comes to a large sum of money, or three months' imprisonment.

3For having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty.

4Mr Abalos, the circumstances of your offending were briefly as follows.  The victim of the negligently causing serious injury count, Mr Joshua Clearihan, had attended a function at the Melbourne Showgrounds on 14 October 2015.
Mr Clearihan had attended the function accompanied by his father and his girlfriend.  Her name was Erin Smith.  These people had been at the function for approximately 12 hours, from 7 am in the morning until 7 pm at night.

5On leaving the showgrounds the group, to their distress, found that the battery of Clearihan's car had become flat, as he had left the headlights on and they had been on all day.  Joshua Clearihan and his girlfriend, Erin, then arranged for the car to be started using jumper leads.  The couple then drove to Port Melbourne so as to attend a restaurant for their evening meal.  His dad flew off back to Queensland from whence he came.

6Mr Clearihan parked the vehicle, that his vehicle, directly outside the restaurant in Port Melbourne, facing south on Bay Street.  Clearihan decided to leave the vehicle running in order to charge the battery.  Mr Clearihan and Ms Smith then entered the restaurant and were seated by staff at a table directly adjacent to the front window, enabling them to have a clear and uninterrupted view of Clearihan's motorcar which was parked just outside the restaurant.

7At approximately quarter past eight you attended at Coles Supermarket at the intersection of Bay Street and Lairdet Street in Port Melbourne.  At the time you were wearing a black super dry jacket with a red emblem on the sleeve, dark shorts, a grey singlet, a beaded necklace with a crucifix and a pair of blue Nike runners.

8Mr Abalos, you are depicted on the store's CCTV footage walking the aisles of Coles and you selected a packet of potato chips which you opened and then began to eat.  You subsequently left the store via the checkout area without attempting to pay for the potato chips.  You exited on to Lairdet Street.  You turned left and walked in a northerly direction on the western side of Bay Street.  You continued eating the potato chips and you were captured on numerous TV cameras in Bay Street.

9At the intersection of Bay Street and Bridge Street you then crossed over the road and continued walking in a northerly direction on the eastern side of Bay Street.  You finished your potato chips and placed the empty packet in a rubbish bin outside the Bay and Bridge Hotel.  You continued walking north and are last seen on the CCTV footage from The Prince Alfred Hotel at approximately 8.31 pm as you walked towards Mr Clearihan's parked vehicle.  As I said earlier,
Mr Clearihan was seated in the restaurant, facing south and he observed you walking towards his vehicle.  Mr Clearihan saw you pause and look at the vehicle and then you continued to walk north.

10Mr Abalos, a few minutes later Mr Clearihan observed you to return to his car and then get into the driver's seat of that car.  Clearihan immediately jumped up and ran outside.  You began reversing the vehicle as Clearihan opened the rear passenger side door, yelling to you, "Stop stealing my car".  You then accelerated the vehicle in reverse, quickly, causing the open rear passenger side door to pin Clearihan, and while this is happening he managed to twist his ankle, his right ankle.  Clearihan has his right arm on the roof and his left arm was resting on top of the open, rear passenger side door.  Raising his injured right foot off the ground he again yelled, "Stop the car.  You're hurting me", as he hopped backwards on his left foot with the momentum of the reversing vehicle.  Clearihan was then thrown to the ground, hitting his head, rendering him unconscious.  You continued reversing the vehicle and hit a red  Mitsubishi that was parked behind Clearihan's vehicle, breaking the rear, left taillight.  You then accelerated forwards and drove away in a southerly direction on Bay Street.  You were last seen on the CCTV from the Prince Alfred Hotel at 8.35 pm, turning left into Spring Street East.

11Numerous witnesses rushed to Mr Clearihan including an off-duty registrar from The Alfred Hospital.  That person was Priya Rao.  This person administered first aid to Clearihan before the ambulance arrived and then conveyed Clearihan to The Alfred Hospital.  He was then in a critical condition.  I think he was indeed fortunate the medical registrar immediately attended to him on his head hitting the ground.  It may have even been the gutter.

12Mr Abalos, you drove Clearihan's vehicle approximately 1.2 kilometres to the intersection of Draper and Montague Streets in South Melbourne where you parked the vehicle.  You then stole Clearihan's backpack and Ms Smith's Apple laptop and Apple iPhone.  You rummaged through the backpack and dumped it in a rubbish skip outside No.18 Draper Street, South Melbourne.  You continued walking and threw the vehicle keys into a drain.  You then walked directly to the Department of Human Services housing apartments at 200 Dorcas Street, South Melbourne and you are captured again on CCTV footage at approximately 8.50 pm, walking into that building, carrying Ms Smith's silver Apple laptop.  At 9.48, nearly 10 to 10, you are then captured on CCTV footage walking into your home address at 332 Park Street, South Melbourne.

13Later, at 7.52 am on Tuesday, 27 October, quite some time later, Detectives Justin O'Brien, Michael Crawford, Robert Brain and Adam Burnett, of St Kilda Crime Investigation Unit, attended at and executed a search warrant at your apartment, that is 101/332 Park Street, South Melbourne.  You were not present during the search.  The police located and seized a black Superdry jacket, a beaded necklace with a crucifix and blue Nike runners.

14A week or ten days later, on 8 November, police officers became aware that you were at The Alfred Hospital due to injuries you had sustained during an aggravated burglary at your apartment.  You were, apparently, the victim then of a very nasty offence.  I say more about that in a moment.  You were arrested upon your release from The Alfred Hospital.  I just say this.  The aggravated burglary was committed by three individuals in what, in the vernacular, is often called a run through.  Mr Abalos, you suffered numerous stab wounds, having been stabbed with a screwdriver, and you were also severely bashed.  I come back to that event a little later.

15Having been released from hospital, as I just said, you were arrested and then on Monday, 9 November 2015 you were discharged from the hospital and taken to the St Kilda Police Station.  During a recorded record of interview you made full admissions, stating that you saw the motor vehicle was running, the engine was running, and there was nobody in it.  You admitted reversing the vehicle whilst Mr Clearihan had the rear passenger side door open.  You admitted that you were aware that Clearihan had fallen to the ground during this incident and stated that you did not want to hang around to find out what had happened.  You stated that you dumped the car in the street approximately 200 metres from your apartment and took the stolen Apple laptop and Apple iPhone to the Dorcas Street flats where you gave them to an associate to hold on to.  You stated that this associate had given the property to yet another associate and you believed the property had since changed hands a number of times since the incident first took place.

16Mr Abalos, you said that from about 10 am on the day of this incident you had smoked approximately one gram of ice and, further, had smoked a couple of cones of cannabis.  You stated that you were aware of what you were doing but you were not in control of your actions.

17Mr Abalos, you admitted your identity as was shown on the CCTV footage and, further, you admitted stealing the packet of potato chips from Coles Supermarket, stating that you were hungry and that you had no money.  You were visibly upset when admitting these offences and stated that you were deeply and utterly disgusted in yourself for what you had done to Clearihan and his family.  You stated that your behaviour was "unhuman", "like things to do", an unhuman-like thing to do, which you attributed to your use of ice.  However, you stressed you were not using your ice addiction as an excuse for your behaviour.  It is to your credit that you made those admissions and that you were obviously very distressed about what you had done.  Again, I mention that again later.

18The victim, Joshua Clearihan, suffered severe, life threatening injuries.  They may be summarised as follows.  Scans revealed that Clearihan suffered a traumatic brain injury, being a right, extradural haematoma which required a craniotomy, a right subdural haematoma, a subarachnoid haemorrhage and a diffuse axonal injury with scattered petechial haemorrhages.  He also suffered a right - a fractured right squamous temporal bone, a laceration to his right eye and a laceration to his right earlobe.

19As a result of the injuries Mr Clearihan suffered he also suffered post-traumatic amnesia for approximately 28 days.  That meant he could not remember a thing for at least 28 days, to put it simply.

20In the weeks following this incident Mr Clearihan was transferred from The Alfred Hospital to the Epworth Centre in Richmond where he was placed in a low stimulation environment.  He suffered from headaches and persistent right temporomandibular pain which was amplified when he opened his mouth.
Mr Clearihan is still receiving treatment.  He is, to put it simply, learning to pronounce his words again.  Obviously there is very severe injuries to his mouth.  That word that has got about 19 letters in it, temporomandibular - mandibular is something to do with the mouth.  He has obviously got significant problems that he is still struggling with, hence he has got to learn how to speak again and use his mouth and tongue, et cetera for speech.

21He is still undergoing outpatient community rehabilitation programs and this gentleman is unable to return to work.  As I understand the material, Clearihan was an elite chef, that is judged by other chefs in Australia.  Having lost his capacity to smell he may never successfully return to cooking.

22At the time you stole this motor vehicle and drove off you, Mr Abalos, were unlicensed.  Mr Abalos, you have been before the Children's Court on nine separate occasions for many and various offences.  You have four separate appearances for driving whilst unlicensed.  You are charged yet again with this offence.  You are consenting to the matter being dealt with today.  That summary offence.  Mr Abalos, your forensic history, despite your young age, is both extensive and disgraceful.  You are still a very young man with an extensive history.

23The well known consultant psychologist, Carla Lechner, has provided a report dated 27 May 2016.  In that report Ms Lechner writes of you, so I am quoting mostly what she says, so it is the first person from Lechner's report.

24Mr Abalos, you were born on 7 July 1997.  You are now age 19.  Today is
8 July.  Your birthday was yesterday if that is right.  You are now aged 19 and this is what Ms Lechner said about you:  "Brandon Abalos, aged 18, is the only child of Leanne Deo and Luvn Abalos.  His father is of Filipino heritage.  His parents separated when he was very young and he grew up with his father, having no contact with his mother or older half siblings.  Jenny, 35, Rosalyn, Emmalyn and Lester on his father's side.  He has three older half-siblings on his mother's side, one of which is deceased, and a younger half-brother, Henry, age six years, also on his father's side.  Brandon was in a long term relationship with Stephanie, but they have now separated.  She apparently fell pregnant twice but both pregnancies were terminated.  Brandon has no children.  He only has meaningful contact with Jenny, that is one of the sisters, and to a lesser extent, Rosalyn, again one of the sisters.

25She says this of you:  "It is still speaking of you.  He met his mother last year, describing it as very confusing.  He has no emotional connection with her and stated that she would not talk about his history".

26Mr Abalos, you advised Ms Lechner that you had a most difficult childhood and adolescence.  You do not know why you had no contact with your mother.  Your instructions to Ms Lechner are that you grew up with your father, you attended Toorak Primary School from prep to Grade 6.  Your dad drove you to school to Grade 4.  Thereafter you had to fend for yourself.  Each morning and then again after school, as Dad was at work.  That is a pretty tough upbringing.  Grade 4 onwards you are on your own.

27You describe yourself as an average student.  Ms Lechner advised that on the material available to her that, and I again quote her, this is what she said:

"He was not diagnosed with ADHD but his report suggests he had all of the hallmark symptoms and behaviours of such a condition.  He also had a speech therapist for about eight months.  He stated that by the end of Grade 5 or the start of Grade 6 he was smoking cigarettes and skipping class on a regular basis.  'Thereafter things turned for me.  Dad would belt me.  He'd get frustrated and belt me.  He was an alcoholic.  He'd belt me and he'd say he'd take me to my mum'".

28Later in Ms Lechner's report she says what I call your totally inadequate secondary education, she speaks of that, and I again quote from her report.  She says this:

"Brandon attended two days of high school at Malvern Central and never went back.  He attended at Prahran Community Learning Centre, 'and then Dad kicked me out.  He kicked me out with the clothes on my back.  A couple of months later I went back and stole his stuff.  I started at 13 years old and never stopped'.  He came to the attention of DHS Youth Justice by virtue of his criminal activities and was placed into a residential unit" - - -

29Perhaps that is the lady that is here now.  "From that home on" - and at least she is supporting you still.  She is there for you.

"He had the assistance of Berry Street and also spent time in secure welfare.  He was  regularly using marijuana and ice from the age of 13 or 14.  Brandon attended the Berry Street school intermittently.  He recently completed one unit of a scaffolding course at the Berry TAFE.  He has never had employment".

30Mr Abalos, throughout your teenage years you have been caught up in a criminal lifestyle.  You have been a victim of crime.  Your residence experienced what is known in the criminal world as a run through, and that is what I was speaking of earlier, and I said I would return to it.  On this event you were bashed and stabbed, resulting in your hospitalisation - as I said, I spoke of this earlier - and that the police arrested you on your discharge from The Alfred Hospital.

31Ms Lechner does report that you respond very well to supervision from Youth Justice.  I again quote at length on your troubled young life from Lechner's report.  This is what she said:

"Brandon stated he felt different when he woke up in hospital but did not complain of ongoing cognitive problems.  Brandon exhibits a range of symptoms of both complex trauma and post-traumatic stress disorder, the latter arising from the assault in his home.  He also claims to have witnessed the death of his street dad, who was allegedly murdered by. 'the same people who ran through my house'".

32Lechner goes on to say:

"Although not formally assessed in this regard, Brandon impressed as being of average or low, average intelligence.  He has the capacity to reflect on the impact of his behaviour, that it has on both himself and others but is easily overwhelmed by social and emotional factors that, together with his drug use, undermine his judgment and decision making.  Furthermore, on account of having to fend for himself, he has adopted a more egocentric view of the world in which he has put his needs first.  He can be impulsive in nature and often has a low tolerance to frustration.  Brandon can identify some triggers to his negative feelings but has learnt to block out internal distress with drug use from an early age.  He stated he feels depressed and full of anxiety and hears certain things in here, certain things on the television or certain music, 'and I get flashbacks out of my mine'".

33I think when she says "in here", you're speaking of what you've seen in prison and what's on television.  She does not say that but that is what it reads.  I will read it again:

"He stated he feels depressed and full of anxiety.  In here certain things on the television or certain music, 'and I get flashbacks out of my mind, everything I've gone through, anxiety.  I'm being assaulted.  Anxiety around other people'. He feels angry about people, 'doing things in front of me that I don't like'".

34As you know, the man you call, Uncle, your street dad, was murdered.  It is understood that those that performed the run through of your home are the self same persons responsible for your uncle's murder.  One of the individuals apparently has been arrested.  Indeed, as I understand what's been said to me by both the prosecutor and your counsel, that individual is imprisoned in the Melbourne Remand Centre, the same prison in which you find yourself contained.  I am assured steps have been taken to keep you separate and apart from that person.

35Again I quote Ms Lechner because her report is so extensive and I see it as being very helpful.  She reports as to your use of drugs and alcohol.  This is what she reports:

"Brandon stated he has used cigarettes, choof, alcohol and ice since the age of 13 years.  Initially this was on and off but within a year he was using on a daily basis and except when in custody or secure welfare.  Between the ages of 16 and 18 he was using 1.7 grams of ice a day.  The longest he has stayed up without sleep is about 15 days.  He reports that he was probably psychotic but did not come to the attention of psychiatric services.  He has used cocaine twice, heroin every now and again to come down, GHB and Xanax occasionally.  Prior to his arrest he was abusing Seroquel, 'because I was disgusted with life and wanted to numb myself'.  He stated that ice - 'Ice smokes my feelings away.  Feelings of being neglected, abandoned, no one there for me'.  He is not taking any prescribed medication.  With respect to alcohol Brandon stated he used to drink heavily before using ice regularly.  He added, 'The last time I drank I kicked out a tooth'".

36Ms Lechner then goes on and tells me a lot more information about you.  I am not going to read the entire report to you but I believe what I am reading is important to be on the transcript of this sentencing process.  Later in the report Ms Lechner formed this opinion, and I am inclined to agree with that opinion.  This is what Lechner said:

"At interview Brandon impressed as street smart but emotionally arrested.  He has never felt safe or protected in his life, hence views the world as hostile and a threatening place that he has to survive.  He finds it hard to develop and maintain trusting relationships.  Whilst able to identify some triggers to his negative feelings, he has learnt to block them out with drug use from an early age.  This most likely masks longstanding depression and anxiety that is now more apparent in the absence of his drug use, with scores in the mild range on the Beck depression and Beck anxiety inventories."

37What she is referring to there, Ms Lechner, is she is comparing what you are telling her with published documentation on how to assess fellows with the significant problems that you are wrestling with in your young life.  I return to the report of Ms Lechner.  She says this:

"Brandon needs to develop the skills to tolerate his psychological distress without resorting to drug use.  A residential rehabilitation program would assist most in this regard.  He would also benefit from a clinician who specialises in treating trauma in relation to his symptoms for post-traumatic stress disorder".

38Lechner goes on to say:

"Brandon expresses regret and shame for his actions.  He states he was significantly drug affected at the time.  This adversely affecting his judgment, decision making and capacity for impulse inhibition.  He is sorry for the injuries that the victim sustained".

39So you told the police officers that and now you have told Lechner that.
Mr Abalos, you are still only aged 18, having turned 19 yesterday.  Classically, you are within the description of a young offender.  Your young life, in terms of neglect, is horrific.  In one sense it is not surprising that you have already achieved an extensive forensic history.  You have had to survive, and to survive you have had to commit crime.  That is the reality of life and it is very, very sad.  Perhaps the wrong people are sitting - or the wrong person is sitting in the dock.  It perhaps should be somebody else.

40The Victorian Court of Appeal in the case or R v Mills [1998] 4VR at 235, observed, and I quote directly from that case:

"The following general propositions are relevant to the sentencing of youthful offenders.   Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises."

41You are still a youthful offender.  You are certainly not a first offender but you're certainly a youthful offender:

"In the case of a youthful offender rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending".

42And then:

"A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality".

43I hope that you are, by your responses to Lechner and your immediate responses to the police officers, starting to realise that you have got to do something about your own drug habit so as to avoid crime.  You have had a terrible card dealt to you in terms of cards being used as an example, and they have all been bad cards.  You have not had a decent card yet.  Lechner says:

"Brandon is a young person in need of intensive community support and supervision.  He has shown a capacity to respond positively to Youth Justice in the past and may again benefit from their involvement.  Given his  young age and level of psychological distress, if he is to receive an immediate gaol sentence for this offence it is hoped that for his suitability for a Youth Justice Centre will be considered".

44In 2015 a pre-sentence breach report was prepared in relation to you for earlier criminal activity, and I am not going to go back over that.  You are not being dealt with for that, but there was a report prepared and in that report there is some very useful observations, so I am quoting from that.  The person that prepared that report was a lady called Melanie Raike.  She was then a case manager with Youth Justice and she said this of you back then:

"Brandon is a young person who has displayed excellent compliance with Youth Justice during the deferral period, demonstrating insight into his offending and the attributing factors of this.  Brandon has increased his victim awareness by participating meaningfully in group conferences where he has agreed to make amends for harm he has caused, by completing his outcome plan".

45What was happening there, young man, that is in the previous case where there were deferrals, you were under the care of those in Youth Justice and apparently at that time you were responding very well.  Those comments made by Raike of course pre-date this offending.  Nevertheless they indicate some hope for you to grasp the opportunity to live, if possible, a crime free life.
Ms Raike, from Youth Justice, reports as to your various and significant personal issues.  Ms Raike has concerns as to your cognitive functioning and your ability to focus on tasks and develop coping strategies to curb your offending behaviour.  All of those things were spoken of in almost the same terms by Ms Lechner.

46Mr Abalos in the Victorian Court of Appeal in the case of Harrison v The Queen and Rigogimanis v The Queen, the court was looking then, that is the Court of Appeal, was looking then where young men a little older than you, they were not youthful offenders in the sense they were over 21, and there was more driving in terms of not a reversal and then taking off, but still, this is what was said in that court:

"Negligently causing serious injury by driving is frequently committed by young offenders with otherwise good character, who have a limited criminal history and good prospects of rehabilitation".

47As was said in the Director of Public Prosecutions v Neethling:

"In respect of injuries such as those imposed here, without getting technical, it is precisely because of the tendency of young drivers to drive dangerously, that general deterrence must be regarded as of great importance and youth must be given relatively less weight.  The objective seriousness of the offence is such that the importance of general deterrence and denunciation is heightened.  As the importance of these factors increases there is corresponding diminution in the mitigating effects of factors such as the offender's youth and prospects for rehabilitation".

48The same view was expressed by Mr Justice Redlich in Azzopardi v The Queen in connection with serious vicious assaults by youths in public places.  Then at para.122 in the same case the court said:

"Each offender must be sentenced by reference to the particularities of his or her offending conduct and personal circumstances".

49That is what I have done with you, because your personal circumstances, as I have already said, are horrific, and because you were such a young individual you did not have control over your life.  You are too young to really fully understand what is happening to you, to be able to make informed and proper decisions.  From the time you are in Grade 4 onwards you have really been on your own.  It is a disgrace.

50The critical features of offending which recur are speed - this is in this offence - the critical features that occur in offending such as this type of offence - that is negligently causing serious injury when driving, are these:  speed; inattention; in toxication, which is alcohol or drugs; and often prior convictions for driving offences.  In your instance there is no speed, because it was a reversal. Inattention - well, I am not too sure where that fits with what happened here because I think you knew what was happening, but certainly drugs significantly took part.  As I have already said, this is at least your fifth visit to the court for the offence of unlicensed driving on its own.

51Ms Raike in her excellent current report, updating the previous one that I quoted from, mentions:

"Mr Abalos has presented with immense guilt".

52Mr Abalos, I assure you that I have taken into account all that has been said on your behalf by your counsel, Ms Connelly.  I take into account your early plea of guilty.  This plea is indicative of your remorse and I have noted that the observation of Ms Raike, you have presented with immense guilt.  When interviewed by the investigating police officers you did not seek to externalise the serious consequences that had occurred to the victim, Mr Clearihan.  You again indicated shame for your actions.  So obviously you are full of remorse and are now sorry for what has happened, because the drugs are now out of your system and you can think clearly.

53Mr Abalos, in sentencing an offender such as yourself the core conditions of the principles of general deterrence and specific deterrence in arriving at a just sentence, a just sentence must be imposed and in your case you are a young offender.  Particular emphasis, as I read from Mills case, is on rehabilitation. Further, taking into account the provisions of s.32 of the Sentencing Act, it is really - this is probably something you do not understand, but it certainly
Mr Connelly and Ms Mahady do, that sort of transposes over on top of what s.5 talks about in the general principles, so I specifically refer to those sections because I have read and re-read them in arriving at - I found it a very difficult process, always is - but further, taking into account the provisions of s.32 of the Sentencing Act, sub-s.(1), (2) and (3) in particular, you will be convicted on Count 1 and ordered to be detained within a Youth Justice Centre for a period of three years.  On Count 2 you will be convicted and ordered to be detained in a Youth Justice Centre for a period of 12 months, and on the summary offence you are ordered to be detained in Youth Justice Centre for a period of seven days.  All of those sentences are concurrent.

54So that is a total of three years.  Keep in mind you heard what we said earlier.  It is up to you.  You will be released much sooner than that if you comply with and participate in all the rehabilitation programs, and the better you are, the sooner you are out.

55I further say that pursuant to s.35 of the Sentencing Act you are to be given credit for having served - is it 88 days that was agreed?

56MS MAHADY:  Eighty-six, Your Honour.

57MS CONNELLY:  I've got 86, Your Honour.

58HIS HONOUR:  Sorry, 86 days of detention.  As I have said before, and I do not want to keep harping on it, Mr Abalos, your offending is to be denounced in the strongest of terms.  It has had dramatic and dreadful effects upon
Mr Clearihan.

59MS CONNELLY:  Sorry, Your Honour, I missed your sentence on Charge 3, which was - - -

60HIS HONOUR:  Seven days.

61MS CONNELLY:  Charge 3 of the indictment being the second charge of theft.

62HIS HONOUR:  On theft it is the same on both.

63MS CONNELLY:  Thank you, Your Honour.

64HIS HONOUR:  Sorry.

65MS MAHADY:  Your Honour, just - a 6AAA.

66HIS HONOUR:  Pursuant to s.6AAA the sentence otherwise would have been three years with a minimum of two years in an adult prison.

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