Director of Public Prosecutions v Al-Hasan
[2023] VSC 376
•30 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0042
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| SALEM AL-HASAN | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 January & 20 June 2023 |
DATE OF SENTENCE: | 30 June 2023 |
CASE MAY BE CITED AS: | DPP v Al-Hasan |
MEDIUM NEUTRAL CITATION: | [2023] VSC 376 |
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CRIMINAL LAW — Make threat to inflict serious injury, conduct endangering life, conduct endangering person and damaging property — Guilty plea — Rolled‑up count — Accused drove motor vehicle at wife’s brother and then into the front of the house — Victims of crimes were the accused’s wife and members of her family — Family violence — Accused 50 years old with no prior convictions — Refugee background — Post‑traumatic stress disorder — Accused ‘stateless’ — Risk of deportation constituting significant extra‑curial punishment — At least reasonable prospects of rehabilitation — Total effective sentence of four years and three months’ imprisonment with a non‑parole period of two years and 10 months’ imprisonment — Hague v The Queen (2022) 98 MVR 503; [2022] VSCA 17.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Porceddu | Office of Public Prosecutions |
| For the Accused | Mr T Battersby | Sarah Pratt and Associates |
HER HONOUR:
Salem Al‑Hasan, you have pleaded guilty to the following four charges: make threat to inflict serious injury, conduct endangering life, conduct endangering persons and damaging property. The maximum penalty for make threat to inflict serious injury and conduct endangering persons is five years’ imprisonment. The maximum penalty for conduct endangering life and damaging property is 10 years’ imprisonment.
The offending
The victims of your offending are your wife, Baidaa Hussein (‘Baidaa’), and members of her family. It is necessary to refer briefly to your background so as to place the offending in context.
In around 2005, while living in Syria, you met and married Baidaa. In 2018, you were both granted protection visas and moved with your three children to Australia. After your arrival, you lived together in Meadow Heights and had one further child.
During 2020, the marriage between you and Baidaa deteriorated. You prevented her from seeing family and friends; controlled the family finances; and would threaten to break things in front of the children if she refused you sex. Baidaa did not have keys to the house or a credit card of her own. I note that some of these facts are disputed, but your counsel conceded that the offending occurred in what may be broadly described as circumstances of family violence. Given that concession, it is not necessary to make any particular finding about individual background facts.
On the night of 27 December 2020, Baidaa refused you sex. You told her that it was your legal right to be able to have sex with her, became angry and smashed a glass ashtray. You told her you were taking her and the children to her parents’ house, and threatened Baidaa that if she did not get ready quickly, you would burn her and the house down. This is charge one, threat to inflict serious injury. The threat was overheard by your second‑eldest son, who was aged 10 at the time.
Baidaa woke the children and put them in the family car. You then drove to Baidaa’s parents’ house in Roxburgh Park. You drove very quickly, causing your youngest child to start crying. You blamed this on Baidaa’s poor parenting skills, and shouted and swore at her during the drive. That night, Baidaa and your four children slept at Baidaa’s parents’ house.
The following day, you collected your three eldest children and took them to lunch, returning at around 3:00pm. The children went inside, and your second‑eldest son approached Baidaa’s brother, Ahmed Alborrah (‘Alborrah’), and told Alborrah you wanted to speak with him. Alborrah had some awareness of your marital problems. He knew Baidaa and her four children were staying at the Roxburgh Park house, and that you had previously sought a divorce.
Alborrah approached your vehicle, where you were seated, and you told him that you no longer wanted to be married to Baidaa. An argument ensued and you both became angry. You asked for the children, and Alborrah said that was not going to happen. During the argument, you threatened to kill Alborrah and the whole family, and threatened to run the family down. Fedal, the father of Baidaa and Alborrah, heard you threatening to drive into the house, saying ‘everyone will die’. Your son, Hazem, heard you say you would ‘break the house’ if Alborrah kept talking.
You reversed out onto the street and drove towards a roundabout. You then started heading back towards Alborrah at a fast rate of speed. You drove partly around and then over the roundabout, drove over a bollard, travelled across the nature strip, knocked down a tree and continued onto the front lawn. Alborrah saw you and described you as heading straight at him at high speed. He dived out of the way of your vehicle just prior to being hit. This conduct constitutes the charge of reckless conduct endangering life. As your vehicle passed Alborrah, it hit him in the leg, causing him pain. Alborrah also pushed his father, Fedal, out of the path of your vehicle, and this conduct forms part of charge three, reckless conduct endangering persons. Your vehicle continued on and crashed through the front of the house, causing major damage. This constitutes the charge of damaging property. The value of the damage was later assessed at $19,000.
Charge three, the charge of reckless conduct endangering persons, is a rolled‑up count. Along with Fedal, there are four other victims: Souhaila, Baidaa, Mohammed, and Hadel. Souhaila, Baidaa’s mother, was standing with Baidaa inside the house at the front window. She was terrified by your driving, and just before you collided with the front window, she pushed Baidaa away from the path of your vehicle. Mohammed, Baidaa’s brother, was inside the front bedroom of the house and placed at risk of serious injury by your driving, as was Baidaa’s sister, Hadel, who was in the open plan kitchen area.
Your driving was witnessed by neighbours, one of whom described you as deliberately driving into the home. By your plea of guilty, you admit that you foresaw your driving would probably place Alborrah at risk of death, and probably place Baidaa, her parents, her brother and her sister at risk of serious injury.
After crashing into the house, you tried unsuccessfully to reverse your vehicle. You then drove forwards and backwards until you were able to dislodge your vehicle and drive away. During the incident, some of the glass and collapsing bricks hit Alborrah, causing scratches and cuts to his face and body. A small piece of glass lodged in his eye. Baidaa suffered scratches to her leg and hand.
Police arrived at the scene. Your four children had been in the house at the time of your driving, but fortunately it seems they were in a room towards the back of the premises at the time you collided into the front of the house.
You drove to a nearby 7‑Eleven store and phoned 000. You told the operator that you had driven into the house in a state of shock and you did not know what you were doing. You remained at the store until police arrived, whereupon you were arrested. You were cooperative with police and participated in a record of interview. You told police that you wanted to have sex with Baidaa but she refused, and for a wife to refuse sex to her husband is completely unacceptable in your religion. You admitted that you tried to run Alborrah over, as you were trying to pay him back. You said you were furious with Alborrah and honestly, you wanted to kill him. Given the charges, I treat this statement as reflective of your level of anger, and not a statement of intention. You were remanded into custody, where you have remained since.
Victim Impact
Victim impact statements of Baidaa and Alborrah were read to the Court by the prosecutor. Alborrah wrote that when he was hit on the right leg by your car, it caused a burning pain. Further, there has been a great financial impact on the family due to the damage you caused to the house. The property was rented, with three months remaining on the lease. The family had to live with the damage for six weeks; they then moved out, but continued to pay rent until the end of the lease and lost their bond. Additionally, furniture was damaged and they had to pay moving costs. After the incident, Alborrah said he received threats from your brothers overseas, and felt that others thought he had caused the problem. The whole incident caused exhaustion and stress to his family and has impacted their relationships. He had to take time off work to move house, deal with police, and take care of his family.
Baidaa, positively, has experienced less restrictions since you were remanded. She now takes her children to school and play group, she drives a car, and in some ways, her emotional wellbeing has improved. Since the incident, she feels that she can go out with her children and take better care of them. However, she is worried about what will happen when you are released from prison. She has four children, and the youngest is just three years old. Your actions have had a severe impact on all of them, and disrupted their lives in many ways.
Personal circumstances
You are a Palestinian man born in Iraq in 1973. You do not hold citizenship of any country. Your parents were Palestinian‑born, but forced to leave due to escalating unrest in the region. They relocated to Iraq, however conditions there proved equally difficult. The Iran‑Iraq war broke out when you were seven years old, and you were exposed to the trauma of that decade‑long war. Later, as an adult, you experienced the trauma of the USA‑Iraq conflict.
You have three brothers and five sisters. Your home life was unstable due to your father’s frequent violence. You witnessed your mother being assaulted, and were also a victim of your father’s violence. Police were occasionally called to the house in response to this violence, but your father was never removed.
As a child in Iraq during wartime, you recall seeing buildings destroyed by bombs and friends were killed. You attended secondary school in Iraq until the age of 15, which you hated because you and your friends were often beaten by teachers. You then assisted your father to manage a supply business and also worked as a mechanic, fixing cars. You later established your own business, working as a boiler‑maker. By this stage you were a 30‑year‑old man. You remained living in the family home, and took on the responsibility of supporting your family after your father’s deteriorating eyesight forced him to give up work.
Your workshop was in a very dangerous area of Baghdad and the USA‑Iraq war led to increased violence. A friend was executed in front of you, and you saw children killed in bomb blasts and body parts lying in the street. You were kidnapped and tortured by an armed militia over a period of three days, during which the militia sent a ransom note to your family and removed four of your teeth without anaesthetic. Following this, you became increasingly scared for your safety and frightened of the deteriorating conditions in Iraq. In 2005, you left Iraq with your mother and two siblings, and made your way to Syria. Your father remained in Iraq in an attempt to locate your missing brother, who you learned later had been killed. Your father then joined you in Syria.
You and your family settled in Damascus, where you remained for 12 years. While in Syria, you met and married Baidaa, who was 20 years your junior. You, your wife and your young children lived with your parents in Syria. As far as you were concerned, there were no problems between you and your wife during this time, and your family treated her well. In 2018, you were granted a protection visa by the Australian Government and moved with your wife and children to Australia. Initially, you lived with your wife’s family, before moving into your own rental accommodation. You were able to find some work as a mechanic in the Melbourne area.
According to you, your wife’s family was interfering, which led to difficulties between you and Baidaa. You acknowledge there were other problems in the marriage, including arguments and incompatibility. You attributed these problems, in part, to the pressure of adjusting to a new culture and being the sole supporter of your young family. After your fourth child was born, the marriage deteriorated further, leading to the offending which brings you before this Court.
Psychological material
The provision of psychological material has caused considerable delay in this matter.
At the hearing on 31 January, a report of Lisa Jackson, psychologist, was tendered on your behalf. She interviewed you in November 2022 with the assistance of an interpreter. She described you as cooperative, but very anxious and tearful. There was a discrepancy between your version of the offending and the police summary, suggesting you have problems with insight and judgment. Despite this discrepancy, you acknowledged the seriousness of the charges, and stated you would be prepared to engage with support services and obey directions when released.
According to Ms Jackson, you have symptoms consistent with post‑traumatic stress disorder (‘PTSD’) in relation to your history of trauma in Iraq. You have never been formally diagnosed with a mental health condition, but in Ms Jackson’s opinion, you also have symptoms indicative of a major depressive disorder with psychotic features or, possibly, a bipolar disorder. The experience of custody has increased the potential for active symptoms, given your pre‑existing PTSD symptoms and experiences in Iraq.
On the basis of Ms Jackson’s report, I was prepared to accept that Verdins[1] principle 5 has some application here. That is, your PTSD means a sentence of imprisonment would weigh more heavily on you than a person with normal mental health. However, principle 5 overlaps with other reasons as to why you would likely find imprisonment more onerous. These include your limited English language skills, and more acutely, your anxiety arising from your concerns about deportation, which I will come to.
[1](2007) 16 VR 269 (‘Verdins’).
Given Ms Jackson’s reference to psychotic symptoms, and, possibly, a bipolar disorder, your counsel sought an adjournment in which to obtain a psychiatric report. A nominal adjournment of eight weeks was sought and granted. Regrettably, Dr Lester Walton did not examine you until 16 June, via video conference. He provided a four‑page report bearing the same 16 June date.
Dr Walton agreed with Ms Jackson that you would attract a diagnosis of chronic PTSD associated with significant mood disturbance and very frightening dreams. In his opinion, a diagnosis of any psychotic illness can be safely excluded. Dr Walton considered you to be a person of somewhat volatile temperament, and those tendencies would likely be aggravated by your PTSD. In his opinion, when in a state of high agitation, you would be unlikely to give proper thought to the consequences of your actions. Dr Walton believed it would be a ‘fair comment’ that given your history of trauma and kidnapping, you would find imprisonment more onerous than many other prisoners. In my view, Dr Walton’s report confirmed the relevance of Verdins’ principle 5.
Dr Walton also described you as an ‘inconsistent provider of information’, and lacking insight into your motivation and behaviour. The descriptions you gave Dr Walton of both your relationship with Baidaa and the offending were somewhat self‑serving, although you did apologise and express regret for the offending.
Nature and circumstances of the offending
Your counsel conceded that an aggravating feature of all the offending is that it occurred in circumstances of family violence. He submitted that the threat to inflict serious injury was not accompanied by any actual violence or other indication that the threat would be carried out, and it is not the most serious example of this offence. He conceded the offending constituting charges two and three was very serious, but submitted it may fairly be characterised as ‘mid‑range’ offending. It was sudden and disorganised; there was no pre‑meditation; and there was no risk to the general public or other road users. Your counsel submitted that the charge of damaging property was serious, given the nature of the damage and the quantum involved.
The prosecution submitted that the offending occurred in the context of family violence, making general deterrence and denunciation very important sentencing considerations. The prosecution referred to two appellate decisions where courts have emphasised the need to denounce family violence, and impose sentences that give full weight to specific and general deterrence.[2] The prosecution also referred the Court to other examples of reckless conduct involving the use of motor vehicles.[3] On the charge of damaging property, the prosecution submitted the quantum of damages is only one factor when assessing objective gravity, and it is necessary to consider both the manner in which the damage was inflicted, and the reason for the conduct. The prosecution submitted your moral culpability for all the offending is high.
[2]DPP v Reynolds (a pseudonym) [2022] VSCA 263 [71]; Mercer (a pseudonym) v The Queen [2015] VSCA 257 [54].
[3]Those cases included Russell v The Queen (2021) 97 MVR 149; [2021] VSCA 221; Navaratnam v The Queen [2021] VSCA 26; Cardona v The Queen [2021] VSCA 9; Haberman v DPP [2020] VSCA 286; Chamma v The Queen [2020] VSCA 232; Kettyle v The Queen [2019] VSCA 220; Martinez v The Queen [2019] VSCA 135; DPP v Rivette [2017] VSCA 150; Sadiq v The Queen (2017) 79 MVR 419; [2017] VSCA 64; Aggelidis v The Queen [2014] VSCA 6.
In my view, charge one is not the most serious example of making a threat to inflict serious injury. However, it was made against your wife and overheard by your young son, which aggravates the offending.
The offending on charges two and three is objectively serious. You drove your motor vehicle deliberately at your brother‑in‑law, who was on foot and very vulnerable. I accept your offending was spontaneous and short‑lived, both in terms of time and distance. The speed of your vehicle is unknown, but it was enough to terrify Alborrah and the occupants inside the house, and cause considerable damage. They were in their own home, where they are entitled to feel safe. The damage you caused to the house was intentional and considerable, and again inflicted in the context of family violence. I agree with the prosecution that your moral culpability for all the offending is high.
Charge three is a rolled‑up count, reflecting more than one instance of criminality. Here, the charge reflects that there are five separate victims. Whilst it is not the most serious example of a rolled‑up count — some of which encompass multiple crimes committed over many months — I must pay due regard to the totality of harm you caused.
Other matters
You were originally committed to stand trial in this Court on multiple charges, including attempted murder. After case management and negotiation, the matter resolved in September 2022 and you pleaded guilty in October 2022. In those circumstances, I regard your plea of guilty to the current plea indictment as being made at a reasonably early opportunity.[4]
[4]Cameron v The Queen (2002) 209 CLR 339, 345–346 [20]–[22], citing Atholwood v The Queen (1991) 109 A Crim R 465, 467–468 [10] (Ipp J).
Your guilty plea entitles you to a significant sentencing discount. It has facilitated the course of justice, shows an acceptance of responsibility by you for your crimes, and has a substantial utilitarian or practical value. It has saved the witnesses — who would have included your wife and potentially your elder children — the trauma of giving evidence in a criminal trial. Additionally, given your plea was entered at a time when the Court’s listings remained impacted due to the COVID‑19 pandemic, your guilty plea has an additional benefit which must be reflected in the sentence I impose.[5]
[5]Biba v The Queen [2022] VSCA 168 [26], referring to Worboyes v The Queen (2021) MVR 344; [2021] VSCA 169.
You entered custody at a time when conditions were more difficult and isolating, due to the COVID‑19 pandemic and the resulting restrictions. This is particularly onerous for a first‑time offender. You have been subject to strict lockdowns, and the opportunity for your sister to visit you has been restricted, particularly during the early part of your remand. I accept that your time on remand has been more onerous due to the COVID‑19 lockdowns and restrictions, and I take this into account by way of mitigation.
Your plea of guilty evidences some remorse, however remorse in this case is clouded by your lack of insight and subsequent explanations for your offending. I agree with the prosecution that your most candid and accurate account of what occurred is found in your police record of interview. Your conduct immediately after the offending also suggests you quickly regretted your behaviour, and recognised the serious nature of the incident. Overall, I accept you have some remorse for this offending.
Your counsel raised the relevance of the Bugmy[6] principles, given your early exposure to the trauma of war. He conceded there was no link between your offending and your background; however, he submitted there is a ‘general broad discretion’ to take the circumstances of your early life into account. Further, he submitted that your cultural background in part explains, but does not mitigate, your conduct. You hold very traditional views of marriage, informed by your religion and upbringing. You also felt goaded, belittled and insulted by Alborrah in a way that is more readily understood when viewed through the lens of your culture and faith.
[6](2013) 249 CLR 571 (‘Bugmy’).
On the evidence before me, the principles in Bugmy have no real application here. The trauma you were exposed to in early life did not cause or contribute to this offending, and your background does not explain your behaviour on the days in question. The evidence does not allow me to conclude, in a general sense, that your moral culpability is lessened as a result of your childhood exposure to war and violence.[7] That is not to say those matters are not significant or relevant; they are. Prior to arriving in Australia, you faced the type of violence, trauma and fear that most people would never experience in their lifetime. In my view, and as required by the Sentencing Act 1991 (Vic) (‘the Act’),[8] the trauma of both your early and later life, your mental health, your culture, and your religion, all combine when considering your character and the overall context of your offending on this day. Not every relevant sentencing consideration needs to be given a label.
[7]Bugmy v The Queen (2013) 249 CLR 571, 594–595 [40], [43]–[44]; DPP v Hermann (2021) 290 A Crim R 110, 118–122 [36]–[48].
[8]Sentencing Act 1991 (Vic) ss 5(2)(da), 5(2)(f), 5(2)(g).
A number of character references were tendered on your behalf. You are seen by your male friends and family as a person of good character, who cares deeply for his wife and children. Of course, the referees can only observe your marriage from a distance, and I place limited weight on that aspect of the references. That said, the referees collectively describe you as supportive, caring, hardworking and generous. Many of the referees knew you in Iraq and Syria, as well as in Melbourne. You have helped many of your friends over the years, and assisted with the care of your father‑in‑law once in Melbourne. You have no prior convictions and there have been no incidents since you were remanded. On a personal note, you enjoy music, including singing and playing the flute.
Your prospects of rehabilitation are somewhat difficult to assess. You have obviously survived through a great deal of adversity in your life, and spending over two years on remand has no doubt gone a very significant way to deterring you from further offending. Despite minimising your offending to Ms Jackson, you nonetheless accepted your conduct was serious, and displayed an intention to abide by any conditions imposed on your release. There is an intervention order in place protecting your wife and children, and you have not tried to breach that order from gaol. Your sister and brother‑in‑law remain supportive of you, and they both attended the plea hearing, together with one of your good friends. Overall, I regard your prospects of rehabilitation as at least reasonable, if you are released and not deported.
The prospect of deportation is a significant matter in your case. Your current visa remains valid, and I am prohibited from having regard to any possibility or likelihood that the length of your sentence will be affected by executive action of any kind.[9] The parties agree that pursuant to s 501 of the Migration Act 1958 (Cth), if you are sentenced to a single sentence of more than 12 months, you will not pass the ‘character test’ and face mandatory cancellation of your visa. If that were to occur, you would then be almost certainly deported, unless you request revocation of that decision and your request is successful.[10] In all the circumstances, given the sentence I will impose, I accept there is a real prospect you will be liable to deportation. As recently set out in Hague v The Queen,[11] the Court may consider the considerable chance you will be deported in a number of ways. First, the prospect of deportation is a form of extra‑curial punishment. This is particularly so when your four young children live here, and if you are deported, there is a real chance you will lose the opportunity to have a meaningful relationship with them or play any real role in their lives. You have endured a great deal throughout your life, and are now nearly 50 years old. As a result of this offending, you may have lost your chance to settle in the only peaceful country you have ever known. Second, your time in custody will undoubtedly be more burdensome than it is for other prisoners, due to your anxiety about the prospect of future deportation. This is particularly acute in your case, given you are a non‑citizen, and the Australian Government cannot deport a stateless person. Such a scenario could result in you languishing in immigration detention after your sentence expires, until you are granted a visa by another country. For these reasons, the prospect that you will not be able to remain in Australia constitutes substantial extra‑curial punishment and meaningfully mitigates the sentence I would otherwise impose.
[9]Sentencing Act 1991 (Vic) s 5(2AA)(a).
[10]The prosecution provided a copy of Direction No. 99, Migration Act 1958, Directions under Section 499, dated 25 January 2023, one purpose of which is to guide decision‑makers in performing functions or exercising powers under s 501 of the Migration Act 1958 (Cth). The document sets out a number of matters which must be considered, where relevant, including whether the non‑citizen committed family violence and the application of the character test.
[11](2022) 98 MVR 503, 513–514 [28]–[31]; [2022] VSCA 17 [28]–[31].
Your counsel also argued that if your visa is cancelled, it may reduce or eliminate your prospects of being granted parole, and in turn your concern about whether you will be granted parole will also add to your burden of imprisonment. In my view, in the circumstances here, that factor is of little weight for two reasons. First, a court fixes a head sentence on the assumption that a prisoner may serve every day of that sentence.[12] Second, given the magnitude of the other matters that make the prospect of deportation additionally burdensome in your case, this additional factor is really subsumed by those other matters.[13]
[12]See DPP v Karipis [2005] VSCA 119 [15] (per Callaway JA).
[13]In Hague v The Queen, the question of whether the applicant’s perception of his reduced parole prospects added to the burden of his incarceration arose. Without deciding, the Court at [32] noted that the question was ‘subsumed by the other more prominent factors that add to the applicant’s custodial burden’.
Some cumulation of sentences is necessary here, to reflect the breadth of your offending and the number of victims. In my view, charge two is the most serious charge and should form the base sentence. Given that charges two, three and four may fairly be seen as a single episode of offending, I accept it is appropriate to moderate any cumulation, bearing in mind that charge three is a rolled-up count and there were five victims of that charge.
The most serious aspect of all your offending is that it arose in circumstances of family violence. The courts are all too often faced with serious crimes committed by men because they are angry with their partner or former partner. Your offending impacted your young children, your wife and many members of her family. Through sentencing, the courts must try to send a message to other would‑be offenders that if you commit crimes of family violence, you should expect to receive stern punishment.
On charge one, you are convicted and sentenced to three months’ imprisonment.
On charge two, you are convicted and sentenced to three years’ imprisonment.
On charge three, you are convicted and sentenced to two years’ imprisonment.
On charge four, you are convicted and sentenced to 18 months’ imprisonment.
The sentence on charge two is the base sentence. I direct that nine months of the sentence on charge three and six months of the sentence on charge four be served cumulatively upon the sentence on charge two and upon each other. For the avoidance of doubt, the sentence on charge one is wholly concurrent.
This makes a total effective sentence of four years and three months’ imprisonment. I fix a non‑parole period of two years and 10 months’ imprisonment.
I declare that you have served 914 days by way of pre‑sentence detention, such period to be reckoned as time already served under this sentence.
Three of the charges involved the use of a motor vehicle, effectively as a weapon. Given that, it is appropriate that there be some interference with your licence.[14] Pursuant to s 89A(1) of the Act, any licence or permit held by you is suspended for a period of 12 months, such period to commence today.[15]
[14]I note that none of the offences are a ‘serious motor vehicle offence’ as defined in s 87P of the Sentencing Act 1991 (Vic), which would have triggered a mandatory period of disqualification pursuant to s 89 of the Act.
[15]Sentencing Act 1991 (Vic) s 89B.
Pursuant to s 6AAA of the Act, I am obliged to state what sentence I would have imposed but for your plea of guilty. This is always quite artificial when the charges include a rolled‑up count, as a rolled‑up count can only be dealt with on a guilty plea. Nonetheless, I declare pursuant to s 6AAA that but for your plea of guilty the total effective sentence I would have imposed is five years and six months’ imprisonment and I would have fixed a non‑parole period of four years.
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