Director of Public Prosecutions v Aiono

[2014] VCC 2229

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01187

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARLENE AIONO

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	2 July, 5 September and 10 November 2014
DATE OF SENTENCE:	17 November 2014
CASE MAY BE CITED AS:	DPP v Aiono
MEDIUM NEUTRAL CITATION:	[2014] VCC 2229

REASONS FOR SENTENCE
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Subject:  Sentencing; plea of guilty

Catchwords:             Recklessly causing serious injury; recklessly causing injury; glassing; intoxicated; seeking subsequent confrontation; mother of 2 babies

Legislation Cited:     Sentencing Act 1999
Cases Cited:            -

Sentence:TES: 12 months imprisonment and CCO for 12 months after release

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Manova	OPP
For the Accused	Ms N.D. Kaddeche	Turnbull Lawyers

HER HONOUR: 

1Marlene Grace Tiatia Aiono, you have pleaded guilty to one charge of recklessly causing serious injury to Earl Moroney and one charge of recklessly causing injury to Belinda Stanway.  You have also pleaded guilty to two charges of unlicensed driving, which are summary charges arising from your conduct on the same days as the other offences and which you have agreed to have heard in this court with those.  You have also admitted a previous court appearance, to which I shall refer later.

2The maximum penalty for recklessly causing serious injury is 15 years' imprisonment and for recklessly causing injury five years' imprisonment.  For unlicensed driving it is 25 penalty units or three months' imprisonment.  Those maximum penalties reflect the relative seriousness of how offences of each of these types are regarded by parliament on behalf of the community, and I must and do take that into account. 

3Just before I continue, I have no problem with the young children being in court, but if they are a distraction to you or upsetting to you it is better that they be looked after outside the courtroom.  If they are distracting you or upsetting you, I will ask that they be taken out. 

4OFFENDER:  No, they're not.  All right.

5HER HONOUR:  All right.  These charges arise from events in early December 2012.  On 1 December 2012, you went to a barbecue party at a private home of people you did not know, but were invited through your friendship with Ms Belinda Stanway. She knew the woman who was the householder there, you knew her as the mother of a close friend of your then 11-year-old daughter.  You went to this party in company with your partner, Mr Sullivan, your eldest daughter, then 17 years old, and two other men.  You took a quantity of alcoholic drinks with you.

6Also there was Mr Earl Moroney, who had been drinking heavily, and at some stage in the evening went indoors and fell asleep on a couch.  You had not met him before and had not interacted with him at the party before he went inside.  Shortly after midnight, a number of people, including you, were in the room where Mr Moroney had been asleep on the couch.  He had stirred and waved his arm, in a drunken manner, which hit his partner.  Waving his arms around whilst slumped or seated on the couch, he also broke the vodka bottle from which he had been drinking, and the broken pieces lay on the floor.  Although five months' pregnant at the time, you had been drinking heavily.

7I just do need to ascertain there is someone with the baby.  All right. 

8VOICE (from body of the court):  Sorry.

9HER HONOUR:  She has come back in.

10VOICE:  Please. 

11HER HONOUR:  All right.  I know young children do not understand what is going on, and there is stress amongst those adults who do understand what is going on, but I have to try to ensure that Ms Aiono is in a calm enough state to be able to concentrate and to hear the sentencing reasons. 

12I had described the circumstances up to the point of Mr Moroney being on the couch, having fallen asleep from drunkenness, having smashed the vodka bottle and having, with his arm, hit or slapped his partner. Coming now to your circumstances there.

13Although five months' pregnant at the time, you had been drinking heavily.  You subsequently told police you had drunk a bottle of Cougar, a half bottle of wine and Jägermeister.  You had been dancing and enjoying yourself, but by this stage were seated on the floor.  Some minutes after Mr Moroney's action, which hit his partner - you estimated to police that was about five minutes after it had occurred - you got up and picked up the neck of the broken bottle and struck the still seated Mr Moroney with it, forcefully pushing the broken glass into his face.

14This attack on Mr Moroney by you was described by a witness as “coming completely out of the blue”.  You were told by others to leave, and you and your party did leave and you drove your party away. 

15Mr Moroney suffered serious facial injuries and was driven to hospital.  He suffered multiple lacerations to his right forehead and the area around his right eye and eyelid, but causing the most serious long-term consequences was a deep laceration to his right eyeball resulting in haemorrhaging and loss of blood volume, distortion and loss in vision.  He underwent surgery that day in hospital, and has had three further operations due to ongoing pain and bleeding.  Despite treatment, he has been left disfigured in that his eye appears to be directed at a marked angle, and that attracts people's attention.  The misshaping of the eyeball has limited the use of fitted lenses to correct his impaired vision and he has been left with permanently impaired vision.  He was described by a forensic physician, Dr Parkin, as having a poor prognosis with severe visual loss from the right eye.

16I have read his Victim Impact Statement and accept that he continues to suffer headaches and interrupted concentration as a result.  I note his descriptions of the distress and frustration from the consequences to him, and that he has also suffered depression as result of the effects of this injury, the multiple surgical treatments and the impact on his work and interaction with other people who notice the disfigurement in his eye.  This was on any view a very serious injury that you caused. 

17I must assess your blameworthiness, your culpability, for this offence.  As an instance of what has become known as "glassing", you picked up and used an already broken piece of glass, the broken neck of a bottle, and thrust it at a seated man who was not otherwise in physical contact with you and not threatening you physically at all.  I have assumed that the feature of the circumstances reducing the charge from intentional to reckless causing of serious injury, was because, in your state of intoxication, you may not have actually intended to cause serious injury but ignored the probability of doing so, because the forceful application of broken glass to a man's face would certainly carry the risk of causing him serious injury, as indeed eventuated.

18I accept that your attack on him was spontaneous and not pre-planned or premeditated, but he had done nothing to you to provoke it.  I have had regard to some of the other instances of so-called glassing cases, and accept that each must be assessed on its individual circumstances to reach a view as to the seriousness of the offending, but I also take into account that the seriousness of this type of assault has been noted by the Court of Appeal as usually requiring stern enough punishment to strongley convey deterrence - that is to discourage others from such behaviour - and also adequate punishment and denunciation on behalf of the community.  I  regard this instance as well into the medium range of seriousness for an offence of this type.

19It is said that the attack on him was a reaction to his having slapped his partner, provoking over-reaction from you because of your own history of experiencing domestic violence in a past relationship, and which has continued to your suffering post-traumatic stress disorder.  I shall discuss the role of your background and that condition shortly.  However I do not regard Mr Moroney's drunken slapping of his partner, who apparently did not treat it as deliberate, and although certainly not drunken behaviour to be admired, as justifying or significantly reducing your moral culpability for this offence.  You deliberately got up, picked up a broken bottle and hit him in the face with it while he was still seated on the couch and by which stage he was making no more threatening movements towards you or anyone else. 

20Your assault on Mr Moroney occurred in the early hours of 2 December 2012 and it would seem that not only your own party but at least one other person present was unwilling to make a statement to police about it.  That was Belinda Stanway, a friend of Mr Moroney's partner, who drove him to hospital and visited next day to check how he was.  As I have said, you had become friendly with her because your 11-year-old daughters were close friends.

21On the night of 3 December 2012 you drove to her house, arriving about 11.30 pm.  You had a man with you whom you said in your record of interview was your partner, Fabian Sullivan, but elsewhere it is said it was another man whose identity is unknown.  You knocked on Ms Stanway's door, which at first she did not open to you, saying that she was not making a statement to police, meaning about the incident with Mr Moroney.  You said you were there about something else and would not hurt her and urged her to open the door to you.  When she did so, you reached in and grabbed her by her jumper and pulled her out through the door and pushed her up against a brick wall and punched her a number of times to the side of her face.

22She screamed, causing her children to come out to see what happened, and her son began pulling at you to try to stop you.  You apparently told the man with you to lock the children inside the house.  Her son went inside and rang 000.  Meanwhile, you were accusing Ms Stanway of disrespecting your young man, meaning Mr Sullivan.  When you heard her son ring 000, you yelled and swore at her what could be interpreted as a threat not to interfere with you and you then departed. 

23Ms Stanway got inside the house and was so frightened that she locked herself and her children inside until police arrived.  She then took her children and left the house that night, feeling unsafe there.  The injuries your punches caused her were not particularly serious, but, although she has not made a victim impact statement, I infer from what she did at the time and what she told police at the time that she was very frightened by your actions and felt insecure for herself and her children in their home afterwards. 

24Even though her injuries were not serious, and the charge is much less serious than the one in relation to the injuring of Mr Moroney, that is Charge 2 in relation to recklessly injuring Ms Stanway, there are features of that offence which I find of great concern and add to your culpability.

25The reasons you have given for your assault on Ms Stanway reflect either revenge for a perceived insult against your boyfriend, or jealousy for your perception that she was making eyes at him.  She initially thought you had come to threaten her not to make a statement to police about your injuring of Mr Moroney.  Whatever the reason, you sought out a confrontation with Ms Stanway by driving yourself to her home late at night, taking a man with you and then used a ruse to persuade her to unlock the door to you.  Moreover, you should have known that her children were likely to be present and, even when you saw her son come out to try to help his mother, you continued your assault both physically and verbally on her.

26You are shaking your head, but those are the facts on which I am to sentence you.

27That this was the mother of a close friend of one of your daughters makes the confrontation even more selfish on your part.  Indeed, as I shall explain shortly, it seems to me that it is your middle daughter, aged 11 at the time, who has been placed in the most unfortunate position of all in your family by this whole episode, and may be left suffering the most from it.

28Perhaps the most concerning aspect of the assault on Ms Stanway is that it occurred only two days after your attack on Mr Moroney.  If, as character references from people close to you have written, it was indeed entirely surprising and out of character for you to have attacked Mr Moroney as you did, then it is even more worrying that, far from having been shocked, yourself, by your own behaviour and its consequences in relation to Mr Moroney, you had clung to a perceived grievance against Ms Stanway and went out of your way to confront and indeed to assault her for it.

29The claim that your injuring of Mr Moroney was out of character for you is in my view considerably undermined by the circumstances of the second incident. Even though there was no weapon or item such as a broken glass involved, neither incident can be described as a single, isolated outburst of violence by you or in singularly provocative circumstances.  Nor do I accept the submission in your counsel's original written outline that the two charges really arise out of the one incident.  There may well be a link between them; indeed there seems to be, but you had almost two days to cool down or reflect on the perceived grievance against her before you sought out Ms Stanway by driving to her house late at night to assault her.

30Each charge of unlicensed driving is based on admissions you made, namely by telling police when interviewed about the assaults that you had driven to and from the premises where you committed those assaults.  I give some leniency due to the fact that the police may not have known of those offences had you not told them you drove on those occasions, but it would seem that there was no mitigating need for you to drive on either of those occasions.

31In all of the circumstances of this case, I am going to impose sentences for those summary offences, which will be served wholly concurrently with the sentences on the more serious offences. However, it should be made clear to you and others that driving when unlicensed is not an insignificant offence and, as your only prior court appearance was for offences that included unlicensed driving, I am satisfied that you knew that you were offending and deliberately drove on each of those occasions, knowing that you were unlicensed and with no compelling reason to do so.

32I must take into account that you have a prior criminal history.  Yours is a modest one, of one court appearance about 18 months before these offences, when you were dealt with for several charges which did not involve any violence, but did include unlicensed driving.  That means that you cannot claim a previously unblemished record, but yours does not reflect entrenched criminal behaviour by you and, in particular, despite what I am told is a long history of alcohol abuse, you have not come to police attention for violence in the past and your previous offending was not of nearly as serious a nature as what brings you before me.

33You made admissions to police when interviewed, although also trying to give excuses, and you pleaded guilty at the committal hearing when some resolution of charges was reached and before witnesses gave evidence.  You are entitled to leniency for the utilitarian value of this course - that is for saving the community the time and cost of disputed hearings, and saving witnesses not only having to attend a trial but also having to recount and relive their memories of these events.  As this included Ms Stanway's children, I give that aspect more weight.

34Even though the case against you was strong on both of the assaults, as you were known to witnesses, by pleading guilty I take into account that you have accepted responsibility for your offending.  In your record of interview there was little to indicate remorse.  Your regret seems for some time at least to me to have been primarily for the consequences to you and your family rather than empathy for the people you hurt.  Your counsel says that you have more recently said that if you could give your own eye to Mr Moroney you would. If that is so, it does indicate a more insightful expression of remorse by you.  I give you credit for sparing him or his partner having to give evidence in court. 

35I turn now to your personal circumstances.  You were aged 36 at the time of these offences and will turn 38 this week.  You are the mother of five children, about whom more must be said.  You were born in New Zealand with a twin sister and two older siblings.  Your parents separated when you were aged two and you were raised by your mother and a stepfather, apparently according to Jehovah's Witness faith.

36You did not like school and left; at one stage it says at about Year 7 and in another report at about Year 10.  You started a hairdressing training until you first became pregnant.  It would seem that your upbringing was reasonably stable until your mother's death from cancer, when you were aged 16, which you took particularly hard and after which, you say, you went a bit wild. 

37At age 17 you started a relationship with a man some ten years older than you and he became the father of your elder two children.  That relationship, I am told, lasted about five years.  You told Dr Cunningham that during that there was verbal abuse and you began drinking alcohol as a result.

38Your next relationship was for about four years with a man you describe as very violent and a substance abuser.  You told Dr Cunningham he would hide you in different houses so that you could not obtain support.  He was the father of your third child, your daughter now aged 13.  You say that it took you years to break away from him.  It is not clear to me whether you moved to Australia while still in that relationship or after it, but you eventually did move to Australia and to Melbourne, where your father and stepmother lived and still do.

39I am told you obtained employment in housekeeping for a motel, then a dry-cleaning company and then in catering.  You told Dr Cunningham you had ceased employment on becoming pregnant with your fourth child, although your counsel had submitted that she understood until shortly before these incidents you were employed by Qantas.  I understand that you have not been in employment since the time of these incidents.

40About three years ago you formed a relationship with Mr Fabian Sullivan, who is in his early 20s, so considerably younger than you.  You have two young children with him.  The elder is a girl now aged about 18 months, your having been pregnant with her at the time of these offences and who was born with foetal distress due to your alcohol abuse during your pregnancy.  You found stressful a separation after her birth that interfered with bonding.  In May of this year you gave birth to another baby, a boy, clearly conceived after you indicated that you would plead guilty to these charges.  The hearing of your case was adjourned late last year until after the birth of this youngest child.  I was told he was six weeks old on the first day of the hearing in this matter and, after adjournments to allow for further evidence to be obtained on your behalf, he must, on my calculations, now be about six months old.

41You have continued to live with Mr Sullivan, who works full-time as a despatch worker.  Your household also contains your three youngest children.  You currently live in rented premises leased only in your name.

42I accept that references reflect that you always appear as a caring mother for your children and you have not been seen by any of the people who wrote references who have seen you with your children to be drunk or violent in their company.  You and your children have never had issues bringing you to the attention of the Department of Human Services.  I accept from all of this that you have been a caring mother and that, despite your difficulties with alcohol, you are deeply attached to them and they have not been exposed directly to harm since their births.

43I also accept that, while having a history of anxiety, you have suffered increased anxiety over the nearly two years since these offences occurred from concern as to the outcome of these charges and its impact on your family.  While this case was first listed for hearing a year ago, so the last year has been of adjournments brought about by applications on your behalf to adjourn, I do take into account that there has been a considerable period during which I accept you have suffered increased anxiety awaiting the outcome of this case.

44It has been submitted on your behalf that you are a different person now than you were when you committed these offences.  I am told that you have attempted to reduce your alcohol consumption.  You told your general practitioner that you abstained from alcohol during your last pregnancy.  I take the recent report of Dr Cunningham to reflect that you now say that you still drink some alcohol but have reduced the amounts and that you have sought out and are finding some assistance in doing this through contact with a Jehovah's' Witness group.

45The issue of your being able to withdraw from alcohol abuse is obviously critical to your future, and what is talked about as your future rehabilitation, and it being the greatest risk factor for you offending in the future in any way, but particularly with violence.

46A psychological report was obtained on you from Dr Aaron Cunningham.  He considered that you presented as showing panic and anxiety on his meeting with you.  You told him of trouble sleeping, having nightmares and night sweats and unstable mood, which became worse after you fell pregnant with your second-youngest child.  Dr Cunningham assessed you as meeting the diagnostic criteria for post-traumatic stress disorder, having experienced abuse and trauma in the context of your relationship with the father of your 13-year-old, and experiencing distressing recollections of those traumas.

47He thought you experienced negative alterations in thinking and mood and feelings of worthlessness and that this affects your concentration, muscle tension, sleep disturbance, irritability and causes some outbursts of anger and reckless and self-destructive behaviour.  You were assessed by him as of average intelligence with no indication of intellectual impairment.  Dr Cunningham gave the opinion that you were predisposed by the trauma of your mother's death to develop post-traumatic stress disorder, which was precipitated by the abuse you experienced from your second partner.  You told him you were also overwhelmed by the stress of finding yourself pregnant again with your second-youngest child and by the separation and interruption in bonding after her birth due to difficulties due to foetal distress.

48You told him that your alcohol abuse escalated after her birth, to cope, and then your partner left for a while due to your alcohol abuse, which further heightened your anxiety.  His view was that your perceptions become distorted and you overestimate the level of threat you are experiencing because of this underlying condition of post-traumatic stress disorder.  In that way he concludes that that condition, combined with your alcohol abuse, would have impaired your judgment with respect to your offending behaviour.  He did note that there were protective factors which hopefully would reduce your risk factors and stabilise you within the community, in that you are currently sourcing support to address your alcohol use and you have found motivation to continue to support your children and engage in psychological intervention.

49Dr Cunningham recommends treatment for your post-traumatic stress disorder, which, if left untreated, he thought would cause a term of imprisonment to weigh more heavily on you than if you did not have that condition.  He also thought exposure to threat in a prison environment would aggravate your symptoms of hypervigilance.  He also thought you would benefit from drug and alcohol counselling to support abstinence from alcohol.

50I accept that the anxiety and other post-traumatic stress symptoms you may suffer are likely to make a sentence of imprisonment weigh more heavily on you, especially if you perceive threats in that environment.  On the basis of Dr Cunningham's opinion, I also accept that your reaction to Mr Moroney's drunken slapping of his partner may have been amplified in significance in your mind as a reminder of your own violent previous relationship and had prompted some reaction from you to what otherwise was not directed at you or apparently perceived by his partner as requiring criticism, let alone physical reaction.

51However, I cannot accept that there was sufficient proximity to you to perceive any real threat to you, and I conclude that the contribution of the alcohol you had drunk was a much more immediate reason for your outburst of violence in picking up the broken bottle and pushing it into his face. 

52As for any purported link between your post-traumatic stress disorder and the assault on Ms Stanway, I am not satisfied that such condition is likely to have significantly contributed to you making a decision to go out late at night, drive to confront Ms Stanway, and use a ruse to get her to open the door to you.  I do not accept that your moral culpability for that offence is lower due to the condition of post-traumatic stress disorder diagnosed by Dr Cunningham.

53I do accept, and take into account as mitigatory, that you have been experiencing increased anxiety as a result of your concern about the outcome of this case and its impact on you and your family and such symptoms are likely to bear more heavily on you than on a person in prison who does not suffer those symptoms.  I also take into account Dr Cunningham's opinion that, with your underlying condition of post-traumatic stress disorder, your symptoms may be aggravated or exacerbated if you experience threats in the prison environment.  It is to be hoped that your condition can be addressed with both counselling and medication if required, but those matters are for prison authorities to determine.

54I turn to more of your family details, which are of relevance, because the original submission on your behalf was to be that there was hardship to your children and partner that should persuade me to not impose a term of imprisonment on you, or not one requiring any more time to actually be served in custody than the four days you were remanded after your original arrest.

55I read a letter from Mr Sullivan, stating that your behaviour on the night of the first offence shocked him, as he had never seen you do that type of thing, and urging me not to imprison you and thereby break up his family.  Your two eldest children live independently.  I should say at this stage the reason I am not mentioning the names of any of your children is to protect their privacy.  It is not out of any disrespect for them or indeed for you but so that their identity is not revealed through these reasons, which ultimately are published.

56Your two eldest children live independently.  The eldest, your son, is about 20 and has been in court on each occasion, showing his support for you.  Your eldest daughter, now 19, has herself given birth to a baby, since the first hearing date in this case.  She lives in Perth, although she came to Melbourne and to court last week and may well still be here today. 

57Your middle daughter, now aged 13, lives with you and your partner.  There is no further contact with her father.  Some reports about her were tendered, including an interim school report as to her progress in Year 7, reflecting her performance as very good or excellent in most subjects and in her behaviour.  I have also read letters reflecting that she has been engaged on the leadership committee of a youth holiday program, attended a training program to become a peer leader, and has displayed leadership skills and commitment to that role.  She has also engaged in a Maori traditional performing arts group and is described as an absolute delight in her participation there both in terms of becoming a cultural ambassador and in her singing abilities.

58I regard as greatly to her credit that she has apparently maintained her focus and endeavours in her activities while she must have been aware and concerned about the consequences of the offending which brings you before this court.  Those circumstances included the assaulting of the mother of her then close friend.  No doubt she has felt real insecurity about her home environment being put at risk.

59Your own father and stepmother still live in Melbourne and have been associated with these hearings to support you.  Your sister apparently came to Melbourne from New Zealand to look after your family when you were first arrested almost two years ago.  I gather she now lives here, has her own commitments to her family, but is also supportive of you.

60I have little doubt that the impact of a sentence of imprisonment on you will cause hardship to all members of your family.  One reason for an adjournment of your hearing was for application to be made to the prison authorities for your two youngest children to be taken into prison to live with you.  This has been granted, although the arrangements must be such that they would need to be taken there a day following you. 

61Prison could never be an ideal environment to raise young children, but I consider that they are both young enough that they will not understand where they are at the time, or the implications of where they are.  Except to the extent that they will no doubt miss their next sister and  be separated, and their father, on a daily basis, I do not regard the impact on them to be of extreme hardship, or certainly not to an extent that would be regarded as exceptional.

62The eldest two children will no doubt be upset by your being imprisoned, as they are old enough to understand that circumstance and why, but there is nothing to indicate that they will suffer exceptional hardship.  Your partner, Mr Sullivan, will also feel the impact of the break-up of his home life and separation from you and his two young children for whatever period you must serve in prison. 

63I have already said that I regard the impact of a term of imprisonment on you as having the most serious potential impact on your middle daughter.  There is no prospect of her living with her own father, and it would seem unlikely that it would be possible or even suitable for her to live just with Mr Sullivan.  I am told that she can probably live with your sister, and her grandfather and his partner are in Melbourne and may also be able to assist.  I do not overlook that she is at an age when the presence and guidance of a mother is very important. Nevertheless, she is doing well, apparently through her own motivation, at school and showing strength of character and endeavour in other activities.  Assuming that she will live with your sister, I cannot find that it is likely there would be exceptional hardship to her.

64During submissions, your counsel conceded that it would be difficult to establish in the circumstances of your family that there will be exceptional hardship, as it has been interpreted by courts, warranting that type of leniency or mercy so as not to impose a sentence of actual imprisonment otherwise required by sentencing pricniples.  I am not satisfied that the hardship will be so exceptional as to warrant the exercise of that degree of mercy, although I do not doubt that there is considerable hardship on a number of people likely to occur.

65I do take into account as mitigatory, and therefore warranting some leniency, that you will, yourself, feel extra concern or worry for your other children, especially your middle daughter, and for your partner, as you will be separated from them.  That is likely to make your experience of imprisonment harder for you than for a person not worried about those family circumstances.

66For the reasons I have outlined, I regard the circumstances of your offending, especially the very serious and long-term consequences of the injury you caused to Mr Moroney and the fact of your deliberately seeking out and assaulting Ms Stanway, as being such that general deterrence and the need for just punishment and denunciation of your conduct requires that no sentence other than imprisonment would be appropriate to adequately meet those sentencing needs.  I have moderated the terms I will impose to take into account your lack of significant prior criminal history, your plea of guilty and prompt admissions to police and, in particular, the fact of the impact on your family, whilst it is not an exceptional circumstances, and especially on your three youngest children.

67To achieve the purposes I have outlined but also to take into account that for you and your children, your eventual rehabilitation is in your own and the community's best interests, and that there are good prospects of that rehabilitation, I have decided that, rather than impose a sentence with a non-parole period, I should fix the length of time you are actually to serve in prison and also impose a community corrections order for the purpose of supervision and rehabilitative programs on your release.  For that reason, the sentence I am going to be imposing on Charge 1 will appear less than what I would otherwise impose were it a straight period of imprisonment, because I am imposing a community corrections order with it, which will commence after your release from prison.

68Would you stand up now, please, Ms Aiono. 

69On each of these charges you are convicted and sentenced as follows.  On Charge 1 of recklessly causing serious injury to Earl Moroney, ten months' imprisonment and a community corrections order to commence on your release from prison and to last for 12 months with conditions of supervision and that you undergo assessment and treatment as directed for alcohol abuse, mental health conditions and programs to reduce the risk of you re‑offending.  On Charge 2 of recklessly causing injury to Belinda Stanway, six months' imprisonment.  On each of the summary charges of unlicensed driving, you are sentenced to seven days' imprisonment.

70I direct that two months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1.  As the balance of that and other sentences will be served concurrently, that makes a total effective sentence of 12 months' imprisonment with a community corrections order to commence on your release and to last a further 12 months.  I declare four days spent in custody after you were arrested as pre-sentence detention to be reckoned served towards this sentence and direct that that be recorded in court records.  It will be adjusted administratively.

71I must explain the terms and conditions of the community corrections order to you.  I know it was explained when you were assessed as suitable for such an order, but I am obliged to explain it also.  The conditions I have imposed are of supervision, that you undergo assessment and treatment as directed for alcohol abuse, for mental health problems and for any other programs assessed by Community Corrections as suitable to reduce the risk of you offending in future.  I make the point that I am not imposing unpaid community work as a penalty.  The penalty to you is the imprisonment.  In this case I have ordered a community corrections order to produce supervision and rehabilitative support over the 12 months after your release from prison.

72In addition, all usual terms of community corrections order apply.  Those are that you are to report to a Community Corrections office within two clear working days of your release from prison.  The address of that will have to be provided once it is known, coming towards the end of your time in prison.  You are to advise Community Corrections officers within two working days of any change in residential address or, if you have employment, of any change in that.  You are to accept visits and obey all lawful directions of Community Corrections Officers.  You are not to leave Victoria without prior permission from Community Corrections officers. 

73In particular, and most importantly, you are not to commit any further offence which could be punished by imprisonment during the period of that order.  If you did, not only would that be an offence that might have to be dealt with by a court, but it would breach the community corrections order.  I must make clear that any offences of violence are offences that might attract imprisonment.  Unlicensed driving has a maximum term of imprisonment, as you have learnt, and so do a variety of other offences, not that they specifically are part of your past.

74If you breach the community corrections order by not complying or by further offending, you could expect to be brought back in front of me and possibly, depending on all the circumstances, to be resentenced on Charge 1. 

75I will just wait so you are not distracted.

76I must ask if you understand the terms of the community corrections order.  You are nodding; is that a yes?

77OFFENDER:  Pardon?

78HER HONOUR:  Do you understand - - -

79OFFENDER:  Yes.

80HER HONOUR:  - - - the terms of the community corrections order?  Do you agree that you would comply with them?

81OFFENDER:  Yes.

82HER HONOUR: I state for the purposes of s.6AAA - could people please not walk - no, nobody is to approach Ms Aiono. I know this is stressful for the whole family, but nobody should be approaching her while I am sentencing her. Thank you.

83I state for the purposes of s.6AAA of the Sentencing Act that, if you had not pleaded guilty to these charges and been found guilty of each of them by a jury, and if all other circumstances had been the same, your sentence would have been a total effective sentence of three years' imprisonment with a non-parole period of 20 months. 

84The prosecution has made application for a forensic sample to be taken from you for the purpose of having your DNA placed on the state's database.  I take into account that you left the scene of each of these assaults.  I accept that was partly to diffuse any further confrontation and that you were known to the people you had assaulted and that you did not deny your involvement when questioned by police.  Owing to the seriousness of the violence involved, however, I am satisfied that this order should be made.  I shall limit it to a scraping from the mouth, which is like having a swab rubbed on the inside of your cheek, which should not be invasive or uncomfortable unless you resist.  I warn you, as I must, that if you do resist then an authorised officer may use reasonable force to take that sample.

85Finally I make an order for disposal of the remains of the broken bottle which was used on Mr Moroney.

86You can take your seat for a few minutes while these orders are finalised.  We need to get the orders produced, because there's a CCO.  Is there anything that I have announced that needs addressing or anything I have left out.

87MS KADDECHE:  No.

88MS MANOVA:  No, Your Honour.

89MS KADDECHE:  No, Your Honour.

90HER HONOUR:  Thank you.  In that case, as soon as possible this order will be produced so that the CCO can be produced and checked and signed.  The draft of the community corrections order that - it is not that that needs correcting, it is the cumulation and concurrency issue, so I will have this shown to counsel, please, and checked.

91While that is occurring, my understanding is that the children will join you, Ms Aiono, tomorrow.  They will be taken to the prison and join you there.  It seems to me we have reached the stage that they should be removed from the courtroom so as not to be further upset themselves or upset you further.  It really is obviously of distress to you and I understand that, but it is also distressing a very young child, and a distraction.  I understand she will be joining you tomorrow.  I am assuming that was the 18-month-old who was crying.  Yes, sorry.  I just cannot see clearly enough the other two babies in court.  Thank you.

92Just before it is finalised, is there an issue in relation to - - -

93MS KADDECHE:  No, Your Honour.  Just in relation to - this is what we were just discussing.  Is the community corrections order attached solely to the recklessly cause serious injury?

94HER HONOUR:  Yes, it is.

95MS KADDECHE:  Yes.

96HER HONOUR:  On the face of it, ten months' imprisonment would not be sufficient.

97MS KADDECHE:  Yes.

98HER HONOUR:  But it would have either been a higher term of - - -

99MS KADDECHE:  Non-parole.

100HER HONOUR:  A longer term of imprisonment and then ultimately a non-parole period, but that is why it is attached there very specifically.

101MS KADDECHE:  Yes.  We were only asking just in relation to the CCO order.

102HER HONOUR:  Yes.  Yes, the order will only reflect that it refers to recklessly causing serious injury.  I am aware that, were it to be breached - and I am not expecting it would be, but were it to be breached it is only Charge 1 that would come back.

103MS MANOVA:  She would have served her time then for - - -

104HER HONOUR:  Should have served - - -

105MS MANOVA:  That's right.

106HER HONOUR:  - - - on the other matters and that includes two months' cumulation for the second charge.  In that case, we will have this order confirmed, thanks.  We have got the CCOs printed out, too.

107There is to be no physical contact, I am afraid, with Ms Aiono, while she is in the dock.  Family members should understand that.  Could this be - Ms Kaddeche, is it best if you take it to your client.

108MS KADDECHE:  Yes.

109HER HONOUR:  Or my associate can.  I need her obviously to read and check it.  I have explained it,  I hope she was able to follow.  I k now there were a lot of distractions.

110MS KADDECHE:  I can take it.

111HER HONOUR:  Thank you.

112MS MANOVA:  Your Honour, I have a matter before Judge Bourke.  Would Your Honour mind - I have looked at the order now - if my instructor could remain so that the other matter is not - - -

113HER HONOUR:  That's all right.  We're really - I have to sign this order and then I have already signed the 464ZF and disposal orders.  If your instructor takes over, that is fine.

114MS MANOVA:  Thank you, Your Honour.  I apologise.

115HER HONOUR:  I know the matter was delayed at the start.

116MS MANOVA:  I'm just conscious that - thank you very much.

117HER HONOUR:  If you need the confirmation, my associate can confirm to Judge Bourke's associate that you were held up here for longer than expected.

118MS MANOVA:  Thank you, Your Honour.

119HER HONOUR:  All right.  I have now signed that order.  It will copied and a copy given to each side together with a copy of the disposal and 464ZF orders.  I do not see any need for this to go with Ms Aiono.  It can be forwarded to her later, so I think at this stage I will ask that Ms Aiono be removed from the courtroom, please, and taken into custody.  I am assuming there are arrangements made for a bag of belongings to meet up with her.

120MS KADDECHE:  Tomorrow.

121HER HONOUR:  But her belongings for overnight?

122MS KADDECHE:  I understand - - -

123HER HONOUR:  She has got a bag there.  All right.

124MS KADDECHE:  I understand that she was aware that she was going in.

125HER HONOUR:  All right.  Those orders will be copied.  I have also signed the actual orders that are needed to allow Ms Aiono to be processed in this court building without delay.  Yes.  If the disposal order is forwarded later today, is that sufficient?

126MS KADDECHE:  Sorry, Your Honour.

127HER HONOUR:  It has been signed.  It seems it may have been left back on my associate's desk, the actual disposal order.

128MS KADDECHE:  They could be scanned.  Well, I have got no problem with them being all scanned.

129HER HONOUR:  I have already signed them.  Scanned and sent to you?

130MS KADDECHE:  Scanned and sent.

131HER HONOUR:  Yes.  We will have the court adjourned to midday.

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