Director of Public Prosecutions v Audsley
[2017] VCC 903
•18 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-14-01807, CR-10-02408
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT AUDSLEY |
| AND |
| JASON PARKS |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 May 2017 | |
CASE MAY BE CITED AS: | DPP v Audsley & Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 903 | |
REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Nankin | |
| For the Accused Audsley | Mr G. Traczyk | |
| For the Accused Parks | Mr H. Rattray |
HER HONOUR:
1 Brett Audsley and Jason Parks, you have each been found guilty by way of jury verdict on charges of aggravated burglary (Charge 1), common assault (Charge 2), recklessly causing serious injury (Charge 3) and armed robbery (Charge 4).
2 Your offending occurred on 10 January 2009. That day you and another man, Michael Turner, went to a farming property at Clyde occupied by the Mammone family. Between the three of you, you were armed with a hammer and conduit bar. You went to the property in order to steal cash and/or drugs. Michael Turner admitted that he was involved in this incident. He gave evidence in the trial, having been given an indemnity from prosecution on the basis that he would give evidence.
3 That morning you, Mr Audsley, were driving a vehicle and you and your passenger, Mr Parks, picked up Michael Turner. The three of you drove to the property in Clyde. You arrived there around 11.00am. You entered the house as trespassers. At the time you entered, the occupants of the house were Mr Dominic Mammone and his wife, Colleen, together with their adult daughter, Stacey. Their adult son, Paul, also lived in the house but was out of the house on the property at the time you entered.
4 You were met by Stacey Mammone. You demanded money from her. One of you hit her to the head and she fell to the ground. At that point, one of you was then armed with a knife. Stacey Mammone and her mother were escorted around the house whilst demands were made for money. Stacey Mammone found cash at various points and gave you whatever money she found. At some point during this, Mr Dominic Mammone went outside of the house and was putting on some boots. Two of you went out of the house after him and confronted him. He was hit on the head with a hammer. I am satisfied on the evidence beyond reasonable doubt that the two people who went outside after Mr Mammone were you, Mr Audsley, and Michael Turner. I am not able to be satisfied beyond reasonable doubt which of you it was that hit him on the head with the hammer. Shortly after Mr Mammone was hit, the three of you left the house and drove off in the vehicle in which you had arrived.
5 Mr Dominic Mammone was left on the ground unconscious. His son Paul had observed the incident from a distance and came to assist his father. Mr Mammone was taken to hospital by helicopter ambulance, having suffered a compound depressed skull fracture. Initially Mr Mammone was paralysed through the right half of his body and could not speak. He was operated upon. At the time this matter came to trial before me, he continued to suffer as a result of the damage to his brain.
6 Stacey Mammone had a skin abrasion to her forehead and some soft tissue injury.
7 Victim Impact Statements from Mr Dominic Mammone were tendered as Exhibit A and read aloud in court. In those statements, Mr Mammone describes the emotional impact on him. He describes how the assault has changed his life and the lives of his family. He says that he feels more anxious and is angry and hurt. He is fearful and has difficulty sleeping. He says that his retirement plans have changed. He says he feels embarrassed. He also describes the injury sustained and the results for him. He says he cannot use his right hand and had difficulty speaking. He has learnt to speak again but he considers that his speech is affected and is embarrassed about that. He says that he has lost his first language which was Italian.
8 In his statement in August 2012, Mr Mammone says that he still cannot walk long distances and has difficulties walking on anything but flat ground. He still has difficulties with using his right hand and writing. He says he is still fearful, angry, hurt and frustrated. Mr Mammone also describes the impact on him in terms of his now slow thinking. He says he gets confused easily and is increasingly forgetful. He says:
“My life has changed forever; I will never have back my previous life. Every minute, every hour, every day – I will never be who I was: not physically and not emotionally.”
9 In his final statement in August 2013, Mr Mammone describes the continued impacts on his ability to speak and use of his right arm. He says by that time he had to close down the family business as he was unable to do the farm work that he had previously been able to do.
10 In her Victim Impact Statement (Exhibit B), Mrs Colleen Mammone discusses the impact on her and her husband of this incident. She says that the injury to Mr Mammone has had a huge impact on their lives. She also says she is less trusting of people and is more worried and fearful. She describes her gratitude for the support of their family. Mrs Mammone says:
“You can’t see my injuries – they are internal, very deep, they will be with me forever.”
11 In her Victim Impact Statement (Exhibit C), Stacey Mammone describes the impact on her of this incident. In particular she describes how difficult it was to see the impact on her father. She says she, herself, is also more fearful.
12 Paul Mammone, in his Victim Impact Statement (Exhibit D), describes the impact of this incident on his family and himself. He says that he has more anxiety and stress as a result. He says that he continues to have nightmares and overwhelming thoughts arising from this incident.
13 It is important to explain how it comes about that you offended on 10 January 2009 and are now facing sentence in 2017. You were charged in early 2010. A contested committal took place in late 2010. There was an application from each of you at various times for an adjournment of the trial and trial number one commenced in August 2013. On 1 November 2013, you, Mr Audsley, were found guilty by way of jury verdict. The jury was unable to reach a verdict in respect of you, Mr Parks.
14 On 2 December 2013, you, Mr Audsley, were sentenced by her Honour Judge Cohen to a total effective sentence of seven years and three months imprisonment with a non-parole period of five years. You appealed against the conviction and that appeal was allowed.
15 Your matter, Mr Audsley, was then joined to the retrial of Mr Parks and the second trial commenced on 27 July 2015. That trial went for five weeks. After five weeks of evidence, the jury was discharged and the matter relisted for 2 May 2016. This discharge was due to a jury matter and not any conduct by the parties. On 2 May 2016, the third trial commenced. After four weeks of evidence, the jury was discharged as the Judge became too ill to continue the trial. The trial before me commenced on 7 November 2016. On 19 December 2016, the jury returned verdicts of guilty on the charges.
16 In sentencing each of you I have taken into account your personal circumstances.
17 Mr Audsley, you are now thirty-seven years old. Your counsel advised that your background was as set out in the sentencing remarks of Judge Cohen. The significant change is that you are no longer in a relationship with the mother of your two children. When Judge Cohen sentenced you, you had been in a relationship with your partner for about sixteen years and had the support of your partner. It appears that that situation has not continued. Your parents continue to be supportive, and your father has been in court to support you from time to time.
18 Similarly to the situation when Judge Cohen sentenced you, it appears that you had suffered injuries in a car accident fairly shortly prior to these offences. I have not been provided with any medical information, and it appears, as Judge Cohen said, that you were sufficiently recovered by the time of these offences to be able to drive to the rural property and take part in the activities of that day.
19 You have admitted a prior criminal history which includes four prior court appearances for offences of dishonesty, including burglary and theft. You also have prior convictions in respect of drugs and possession of a controlled weapon without an excuse. You have also breached a suspended sentence. The dishonesty offences are considerably less serious than the offences for which I am sentencing you.
20 Since January 2009 you have again had a number of court appearances in relation to offences of dishonesty and drug offending. You did not admit those appearances in the hearing before Judge Cohen. In the hearing before me the prosecution provided evidence in relation to a number of subsequent court appearances which you had not admitted. You do not dispute those appearances, but I do not have any details of the offending. Your counsel submitted that it was unfair of the prosecution to seek to provide evidence of those court appearances when you did not do so before Judge Cohen. The prosecutor submitted that there was no unfairness in that you were aware that the prosecution was seeking to rely on those matters in some respect and that the prosecution had been caught by surprise by you not admitting them in the hearing before Judge Cohen. I do not consider that there was any unfairness in seeking to prove those matters which may have had some relevance to your prospects of rehabilitation and to the application of the principle of totality, given that you were aware throughout that these matters had been raised by the prosecution.
21 In September 2009 on charges of intentionally causing injury, recklessly causing injury and assault by kicking, you were sentenced to a term of imprisonment of two months to be served concurrently. In October 2009 you were sentenced to a term of imprisonment of three months for offences including burglary. Later in October 2009 you were sentenced to a term of imprisonment of four months for offences including burglary. As I do not have details of the nature of the offending, I can only conclude from the penalties imposed that this offending was considerably less serious than the offending for which I am sentencing you. That offending has some relevance only to your prospects of rehabilitation.
22 Of considerably more significance in terms of your prospects for rehabilitation is offending which occurred in May 2015 for which you were sentenced by his Honour Judge Bourke on 14 November 2016. You were sentenced for offences of kidnapping, intentionally causing injury, possession of a drug of dependence, and the summary offence of possessing firearm ammunition without a licence. You offended with seven co‑accused. The details of offending are set out by his Honour Judge Bourke in his reasons for sentence, which I have had the benefit of reading.
23 You were sentenced to a total effective sentence of four years and nine months' imprisonment with a non-parole period of two years and nine months. 551 days was declared as pre-sentence detention. It is clear that that offending involved significant violence and occurred in the context of asserted drug debts. Judge Bourke says that your imprisonment in respect of that matter was what ended the relationship with your partner. Judge Bourke sentenced you on the basis that you had suffered injuries in motor vehicle accidents when you were seventeen and again in 2008.
24 Judge Bourke referred to a psychological report from Ms Carla Lechner, clinical and forensic psychologist. After reading Judge Bourke’s reasons for sentence I raised with your counsel the question of Ms Lechner’s report. Your counsel agreed that I ought take into account the contents of Ms Lechner’s report. The report of Ms Carla Lechner of 19 October 2016 was tendered as Exhibit A1. A further report from Ms Susan Carey, clinical neuropsychologist, dated 28 October 2016, was tendered as Exhibit A2.
25 Ms Lechner in her report sets out further details about your personal history. It appears that you struggled academically at school, but after leaving school completed an apprenticeship as a boilermaker and then worked as a labourer. Ms Lechner says that you have used illegal drugs from the age of seventeen, and eventually had developed a heavy addiction to ice.
26 Ms Lechner reports that the result of testing placed you in the “mildly intellectually disabled” range of intelligence. Ms Lechner describes how this may impact on your reasoning skills. Ms Lechner says:
“This would imply that Mr Audsley has difficulty with logically linking cause and effect. His abstract verbal reasoning skills are another area of notable deficit. Mr Audsley has a concrete rather than conceptual thinking style. He therefore interprets the world around him in a subjective manner and may have difficulty taking perspectives other than his own.”
27 Ms Lechner says it is not clear whether you have always been functioning in this range or if there has been deterioration in your cognitive skills since the motor vehicle accidents. She says that your history is suggestive also of a longstanding depressive illness, and that since a young age you had found comfort in drug use as a means of coping with the stress.
28 You were referred for a neuropsychological report, but Ms Carey was unable to ascertain whether or not you have an acquired brain injury.
29 Ultimately Judge Bourke was of the view that your intellectual disability did impact on the question of your moral culpability. He applied Verdins principles. He said:
“As stated, I find limited but some impact of Verdins.”
30 I have approached sentencing you in the same way. I consider that your mild intellectual disability does reduce to a degree your moral culpability and your suitability as a vehicle for general deterrence. Your intellectual disability forms part of the background to your offending. That said, it also appears from your history of offending, and the very serious nature of the offending for which Judge Bourke sentenced you, that your prospects of rehabilitation are impacted on by your continued use of drugs and inability to control your own behaviour, which may in part be due to your intellectual disability.
31 Judge Cohen sentenced you on the basis that you had some prospects for rehabilitation. Judge Cohen did not have the benefit of the reports to which I have referred. My assessment of your prospects for rehabilitation, particularly given the offending for which Judge Bourke sentenced you which occurred while you were on bail for the current offences, leads me to the conclusion that your prospects for rehabilitation are very low.
32 Mr Parks, you are now fifty-one years old. You were born and raised in the Melbourne area. You grew up in a relatively prosperous and stable family. Very tragically, your father was murdered in 2000. You have regular contact with your mother, and supportive relationships with other family members apart from one younger brother.
33 You left school after Year 10 and worked constructing portable buildings for 20 years. You have had three significant motorcycle accidents. You suffered injuries in those accidents, with resulting back pain. You became addicted to painkillers and then commenced using illicit substances. In 2009 you were associated with Mr Turner in what was described by your counsel as a drug milieu.
34 You have been married for 23 years. Your wife remains supportive and was in court during the trial. You have five children, and are a grandfather.
35 You have a very limited prior criminal history, involving four court appearances for dishonesty and driving offences.
36 You have had a number of subsequent court appearances which are relevant to your prospects of rehabilitation and potentially for issues of totality. September 2009 you were sentenced to a term of imprisonment of six months for driving and dishonesty offending. In October 2009 you were sentenced to 12 months’ imprisonment with a six-month non-parole period for offences which included burglary, theft, attempted burglary, and carrying a controlled weapon without an excuse. In January 2010 you were sentenced to a term of imprisonment of 12 months for offending including burglary and theft. A new non-parole period of nine months was fixed. I do not have sufficient information to say whether those offences occurred before or after 10 January 2009.
37 In January 2014 you were sentenced on offences of intentionally causing injury, make threat to kill, and dishonesty offending which occurred in August 2013, to a term of imprisonment of one year and eight months, with a non-parole period of 14 months. It is of great concern that this offending occurred while you were on bail for the current offences.
38 Your counsel submitted that you had decent prospects for rehabilitation. Your counsel referred to Exhibit P1, which was relating to your employment, and a reference from your landlady, Exhibit P2. Your counsel said you had no subsequent offending after your release on parole in March 2015. You have full-time employment and pay your rent. Your counsel said that you remain drug free and have cut ties with your previous associates. He says you are actively involved with your family, and that, given your age, you hope that this offending is behind you.
39 I accept that in recent years you have made efforts to remain offence free and in employment. In view of your offending history my assessment is that you have reasonable prospects of rehabilitation.
40 Mr Parks, your counsel addressed me on the potential impact of the Court of Appeal’s decision in Hogarth v R [2012] VSCA 302. In that decision the Court of Appeal was of the view that sentences for what was described as confrontational aggravated burglary ought be increased. I note those matters, but am of the view that it must also be borne in mind that this offending occurred in 2009 prior to the decision in Hogarth, and that there needs to be some consideration of the question of fairness in the light of the sentence imposed by her Honour Judge Cohen on Mr Audsley.
41 It was accepted by the prosecutor that Mr Audsley was entitled to expect that he would not receive a greater sentence than that imposed by Her Honour Judge Cohen. This was the position taken by both defence counsel.
42 In sentencing submissions, your counsel, Mr Audsley, principally relied on the delay in this matter as a powerful mitigating factor. This was on the basis that the matter had been hanging over your head for a lengthy period of time. Your counsel also relied on the application of the principle of totality. Your counsel submitted that the resulting sentence should be less than that imposed by her Honour Judge Cohen and that there should be concurrency with the sentence imposed by Judge Bourke in application of the principle of totality.
43 Your counsel also argued that the 551 days declared as reckoned as served by his Honour Judge Bourke should be taken into account in application of the Renzella principle. I do not accept that submission. The 551 days have already been taken into account in full in Judge Bourke’s sentence. That sentence will be taken into account in application of the totality principle.
44 Your counsel, Mr Parks, relied in mitigation of sentence principally on the delay in these matters and your prospects for rehabilitation.
45 Your counsel submitted that the proper application of the parity principle would result in you receiving a shorter sentence than that imposed on Mr Audsley. Your counsel submitted that your role in the offending was less than that of Mr Audsley and that what happened at the house in respect of Mr Mammone was not part of the original agreement. He submitted that Mr Audsley was the motivating factor for the offence and that you, Mr Parks, had a different motive.
46 The prosecutor in sentencing submissions, as I have indicated, accepted that the sentence to be imposed on you, Mr Audsley, should not be more than that imposed by Judge Cohen although that sentence was not, as he described, absolutely definitive if I thought it was clearly wrong. I do not consider that sentence was such that a greater sentence should be imposed.
47 In respect of the factual findings, the prosecutor submitted that I should accept, on the basis of the evidence of Michael Turner and Mr Paul Mammone, that it was Mr Audsley who hit Mr Mammone on the head with a hammer. I will return to this matter.
48 The offending in which you both engaged was clearly very serious. You invaded the Mammone home and engaged in seriously violent and threatening behaviour over a period of time. There were three of you who were after money and/or drugs and were armed. I am satisfied beyond reasonable doubt that Mr Audsley had a personal grievance against Mr Paul Mammone due to Mr Paul Mammone’s involvement with a woman with whom Mr Audsley had been having a relationship and that Mr Audsley was the instigator of this offending. There is no evidence of any pre-planning or organisation apart from getting together in the car, being armed and having a very general discussion in the car.
49 There was some evidence from Mr Turner that Mr Audsley spoke of exacting some form of retribution on Paul Mammone. As it turned out, Paul Mammone was a witness to part of the incident but was not directly involved in the incident. I am satisfied beyond reasonable doubt that both you, Mr Parks and Mr Turner were aware of Mr Audsley’s attitude and went ahead with the aggravated burglary. The three of you were all motivated by a wish to obtain money and/or drugs. You all went into the house with that motivation. What happened after the entry into the house had nothing to do with Paul Mammone.
50 I am satisfied beyond reasonable doubt that it was you, Mr Parks, who was involved in hitting Stacey Mammone on the head. I am satisfied beyond reasonable doubt that it was Mr Turner who went out of the house first in pursuit of Mr Mammone and that it was either Mr Michael Turner or you, Mr Audsley, who hit Dominic Mammone on the head with the hammer. I am not able to be satisfied beyond reasonable doubt which person it was who hit Mr Mammone on the head. There is no evidence that there was any planning or intention when you entered the house to injure Mr Dominic Mammone. That appears to have been a spontaneous act of aggression.
51 You have both been found guilty by the jury on the basis of engaging in a joint criminal enterprise which means the jury were satisfied beyond reasonable doubt that what took place were acts which were within the scope of the agreement between the two of you and Mr Turner. Legally you are both equally guilty. I have considered parity issues, including moral culpability. It is my view that there is no significant distinction in moral culpability between you, Mr Parks, and you, Mr Audsley. Mr Audsley was involved in the episode outside where Mr Mammone was so seriously injured but Mr Parks was more involved in the assault on Stacey Mammone and the armed robbery. I have reflected that in the orders for cumulation but that does not affect the total effective sentence in view of the circumstances of the offending and matters personal to each of you, including some application of Verdins principles in respect of Mr Audsley.
52 The harm caused by your offending was serious, significant and ongoing. Your offending calls for severe punishment. That punishment ought be severe enough to deter others from similar violent offending and also deter you from further offending. A sentence of imprisonment is clearly warranted for the purposes of denunciation, just punishment, general deterrence and specific deterrence. In respect to you Mr Audsley I consider that community protection needs to be given some weight in sentencing you given your history of violent offending and very low prospects of rehabilitation.
53 In sentencing you both, I have been conscious of the need to avoid double punishment in respect of the different offences.
54 In respect of each of you, I have taken into account there has been considerable delay between you being charged and the finalisation of this matter. I have also taken into account the circumstances of that delay, which has required you to attend court over many weeks. The matters have been hanging over your head for somewhat over seven years given that you were not charged until February 2010. I note that in her sentence, Judge Cohen took into account that at that stage there had been close to four years between the arrest and the sentence and that part of the delay was taken into account in Her Honour sentencing you, Mr Audsley. There has been a further approximately three and half years since that sentence was imposed. I have taken that delay into account in the total effective sentence and in setting the non-parole periods.
55 Mr Audsley, while the additional period of delay must be taken into account and ought result in some reduction in the sentence imposed by Judge Cohen, the extent of that reduction is impacted upon by your further offending after that sentence was imposed and my conclusion that you now have low prospects of rehabilitation.
56 I have taken into account the principle of totality in determining the degree of concurrency or cumulation that the sentence I impose on you, Mr Audsley, ought have with the sentence imposed by His Honour Judge Bourke. I consider that total concurrency would not appropriately reflect the seriousness of the offending, but that some concurrency is warranted in reflection of the totality principle. I am required to fix a new non-parole period in respect of the sentence today and the sentence imposed by Judge Bourke. I have also applied the totality principle in respect of the sentences that each of you have served since this offending in January 2009.
57 Mr Parks, in setting a lower non-parole period that I would have otherwise I have also taken into account you prospects for rehabilitation.
58 Mr Audsley could you stand please.
59 Brett Audsley, on each of the charges you are convicted and sentenced as follows.
60 On Charge 1 of aggravated burglary, four years three months' imprisonment.
61 On Charge 2 of assault, nine months’ imprisonment.
62 On Charge 3 of recklessly causing serious injury, five years and six months’ imprisonment.
63 On Charge 4 of armed robbery, three years nine months' imprisonment.
64 The sentence on Charge 3 is the base sentence. I direct that six months of the sentence imposed on Charge 1, two months of the sentence imposed on Charge 2 and four months of the sentence on Charge 4 be served cumulatively on each other and on the sentence imposed on Charge 3. The total effective sentence is six years and six months’ imprisonment.
65 I declare that you have served 649 days of this sentence by way of pre-sentence detention to be deducted administratively.
66 Four years and three months of this sentence is to be served cumulatively on the sentence imposed by his Honour Judge Bourke. In respect to the sentence I am imposing today and the sentence imposed by Judge Bourke on 14 December 2016 I declare that you are required to serve a period of six years’ imprisonment before being eligible for release on parole.
67 Can you please take your seat Mr Audsley. Mr Parks, can you please stand.
68 Jason Parks, on each of the charges you are convicted and sentenced as follows.
69 On Charge 1 of aggravated burglary, four years and three months' imprisonment.
70 On Charge 2 of assault, nine months’ imprisonment.
71 On Charge 3 of recklessly causing serious injury, five years and six months' imprisonment.
72 On Charge 4 of armed robbery, three years and nine months' imprisonment.
73 The sentence on Charge 3 is the base sentence. I direct that five months of the sentence imposed on Charge 1, three months of the sentence imposed on Charge 2 and four months of the sentence imposed on Charge 4 be served cumulatively on each other and on the sentence imposed on Charge 3. The total effective sentence is six years and six months’ imprisonment. I declare that you are required to serve three years and six months before being eligible for release on parole.
74 I declare that you have served 150 days by way of pre‑sentence detention.
75 Thank you, take your seat, Mr Parks.
76 Would counsel like me to repeat anything?
77 MR NANKIN: Your Honour, if I may just have a few minutes just to - - -
78 HER HONOUR: Yes, certainly.
79 MR NANKIN: Also, I believe Your Honour must declare the date on which Mr Audsley's new non-parole period commences, whether it's today or the date of His Honour Judge Bourke sentence.
80 HER HONOUR: The non-parole period operates from the date of His Honour Judge Bourke's sentence.
81 MR NANKIN: All right, thank you.
82 HER HONOUR: Yes.
83 MR NANKIN: Thank you. Thank you, Your Honour.
84 HER HONOUR: I'm not sure if I have to say that but I'm happy to put that in an order and I can say that.
85 MR NANKIN: I'm just referring to the - - -
86 HER HONOUR: Because it's the - sorry, Mr Nankin, I was just sorting something out.
87 MR NANKIN: No, not at all. Your Honour, I'm just - - -
88 HER HONOUR: What it means is, as far as I can work out that I have said that four years and three months is to be served cumulatively.
89 MR NANKIN: Yes.
90 HER HONOUR: That adds up to - so it's four years and nine months and four years and three months. So that adds up to nine years, is that right?
91 MR NANKIN: Sorry, what were those figures, Your Honour.
92 HER HONOUR: Judge Bourke's sentence was four years and nine months.
93 MR NANKIN: Yes.
94 HER HONOUR: I've said four years and three months of the sentencing I'm imposing has to be served cumulatively.
95 MR NANKIN: Yes.
96 HER HONOUR: That ends up being nine years.
97 MR NANKIN: Yes.
98 HER HONOUR: Then I've said in respect of both those sentences that the non-parole period is six years.
99 MR NANKIN: So effectively the global total effective sentence is nine years, with a new non-parole period of six years .
100 HER HONOUR: Yes.
101 MR NANKIN: Commencing from - - -
102 HER HONOUR: I don't have to say commencing from. Why should I have to say commencing from?
103 MR NANKIN: Your Honour, I'm just referring to the sentence manual, the judicial qualitative sentencing manual and it refers to a case of Bortoli [2006] VCSA 62 at paragraph 49. It's a "Section 14(1)(b) requires the Court imposing the subsequent sentence of imprisonment to determine, first, whether or not “it proposes to fix a non-parole period in accordance with s.11.”If the Court determines that a non-parole period is appropriate, the Court should not consider, or state, what the non-parole period would be with respect to the head sentence which the Court intends to impose. Instead, the Court must fix a new single non-parole period by reference to the total effective head sentence, being the combination of all sentences which the offender is required to serve and complete, including the sentence of imprisonment about to be imposed. The Court must have regard to the totality of the offending, including factors" and so on. And it later says, "When the court fixes a new non-parole period to commence from the date of the new sentence, it must make allowance" - sorry, bear with me, Your Honour.
104 HER HONOUR: No, I'm not going to bear with you, Mr Nankin, I've done this numbers of times. I can put in the orders that the total of the two sentences is nine years.
105 MR NANKIN: Yes.
106 HER HONOUR: Their non-parole period in respect of those two sentences, this is a standard sort of order of the sentencing that I'm imposing today and the sentence imposed by Judge Bourke is six years' imprisonment.
107 MR NANKIN: Yes.
108 HER HONOUR: All right, so those are the orders. I've never been required to set a date before because the problem is that setting a date might confused the issue because of the matter of pre-sentence detention that has to be taken off and I've said it applies to both the sentences together.
109 MR NANKIN: I understand everything Your Honour's said and with respect agree that it's correct. I'm just referring to - - -
110 HER HONOUR: All right, well get to the bit where it actually says something because so far we haven't got anywhere. Yes.
111 MR NANKIN: All right. This is the part I've underlined, "I therefore think it is desirable that there should be uninformative practice and that what now appears to be general should become universal in the sense that all new single non-parole periods should be made to commence on the date on which they are fixed, as regards, new single non-parole periods fixed by this court. Again, I think that complete uninformative practice is desirable and that what was done by this court in Ibrahimoff should be done in other cases. That is to say" - and the rest isn't particularly relevant. But the point that Justice Buchanan said in that case which was Rich, was that it would be desirable for the new non-parole period to commence from the date of the new sentence, to avoid confusion as to whether or not - - -
112 HER HONOUR: I've never had any confusion when I've told the corrections people that it applies to both sentences and that's clear that they're going to be able to work that out, because otherwise it's not going to make any sense. I'm more likely to confuse them, in my opinion, by saying that it starts as at the date of Judge Bourke's sentence, in which case they're then going to say he has to six years from that date or something. They're going to get quite confused by that.
113 MR NANKIN: Now I'm confused.
114 HER HONOUR: Yes. All right, Mr Nankin, I'm leaving it as I've said. I will try and make the orders as clear as possible when I make the formal orders into the computer.
115 MR NANKIN: Yes.
116 HER HONOUR: If there's any problem with it counsel can let me know within a period of time and I can correct things. Yes, Mr Traczyk, did you want to say something?
117 MR TRACZYK: I just want to confirm, Your Honour,that it is your intention that the new non-parole, in fact, does start from the date of His Honour Judge Bourke's sentence.
118 HER HONOUR: It effectively starts - well, yes, I suppose. I mean I'm happy to say that if you don't think it's going to cause any confusion, I can - - -
119 MR TRACZYK: No, I thought Your Honour had said it a couple of times. I just wanted to confirm that that was Your Honour's intention.
120 HER HONOUR: That's the intention that it applies to both of those sentences.
121 MR TRACZYK: Yes.
122 HER HONOUR: And would apply from then. The only problem I've got is - look, I don't have time to go off now and ring up corrections and say which way would they find it clearer to be perfectly honest. I don't know that His Honour Justice Buchanan would know either, particularly about the corrections processes but look, I don't want to get into an argument about this. If you both agree that it would be appropriate to say that the new non-parole period applies to the sentence imposed today by me and by His Honour Judge Bourke on whatever the date is and operates from that date, I'm happy to do that.
123 MR TRACZYK: I would ask Your Honour to do that.
124 HER HONOUR: All right, if you both agree with that I'm happy to do that.
125 MR NANKIN: Sorry, Your Honour, can I just have a few minutes just to - - -
126 HER HONOUR: Do you repeat - - -
127 MR NANKIN: - - - consider all that, because my understanding, I'm sorry to do this again, my understanding was that when fixing a new non-parole period together with a new global total effective sentence, which in itself takes into consideration totality, the previous sentence, the new sentence itself that Your Honour has given today has taken into account all of totality so that the new non-parole period, as I understand, was the practice is that it was to commence from today.
128 HER HONOUR: No.
129 MR NANKIN: As Your Honour pleases.
130 HER HONOUR: That just wouldn't make sense that he had to do six years from today. No.
131 MR NANKIN: Because the six years has been taken into account when assessing all - - -
132 HER HONOUR: No. I'm not going to do it that way.
133 MR NANKIN: As Your Honour pleases.
134 HER HONOUR: I'm going to keep going the way I've done this sort of thing numbers of times before and if we get into trouble we'll find out about it but no, I'm not doing it on that basis. I can understand there might be some principle that you're trying to establish but I'm not going to accept. It seems to me that the fairest way of doing it is the way that I have done it. Now, does anybody want me to go over the figures again. Mr Parks, Mr Rattray says the figures add up from his point of view. Mr Traczsyk?
135 MR TRACZYK: I was a little bit constrained in writing things down, Your Honour.
136 HER HONOUR: He's a bit wounded. That's all right.
137 MR TRACZYK: I'd appreciate it if you could over them again.
138 HER HONOUR: Yes, certainly.
139 MR TRACZYK: Just the final figures.
140 HER HONOUR: Charge 1, four years, three months. Charge 2, nine months. Charge 3, five years and six months. Charge 4, three years and nine months. Charge 3's the base sentence, that's the five years and six months. Six months of the sentence imposed on Charge 1, three months of the sentence imposed on Charge 2 and four months of the sentence imposed on Charge 4 to be served cumulatively on each other and on the sentence imposed on Charge 3, so that's another 12 months. The total effective sentence is six years and six months' imprisonment. So I think that adds up.
141 MR TRACZYK: Thank you, Your Honour.
142 HER HONOUR: All right, thank you. Now please if there is anything of a technical nature that needs to be adjusted, please let me know as soon as possible.
143 MR RATTRAY: Sorry, Your Honour, just as my learned friend, Mr Traczyk, I had no distinction between the sentences, Your Honour, imposed between Mr Parks and Mr Audsley. I'm not sure whether that was just my - - -
144 HER HONOUR: In respect of cumulation?
145 MR RATTRAY: Yes.
146 HER HONOUR: It's deliberate.
147 MR RATTRAY: No, but I think Your Honour just read out that Mr Parks sentence to Mr Traczyk that's all.
148 HER HONOUR: I didn't.
149 MR RATTRAY: You didn't?
150 HER HONOUR: No.
151 MR RATTRAY: Well perhaps, Your Honour, could I just - - -
152 HER HONOUR: The sentences for each sentence are the same. The cumulation's different.
153 MR RATTRAY: Yes, I thought Mr Audsley only had two months on Charge 2, cumulation.
154 HER HONOUR: I might have got that - yes, that's what I - - -
155 MR RATTRAY: Yes, Your Honour said three I think.
156 HER HONOUR: I meant two if I said three.
157 MR RATTRAY: Yes, sorry, Your Honour.
158 HER HONOUR: I mean - - -
159 MR RATTRAY: That's how I had it, I had two for that.
160 HER HONOUR: Thanks, Mr Rattray.
161 MR RATTRAY: Thank you.
162 HER HONOUR: I think we're all - if I said three, I mean two.
163 MR NANKIN: Understood.
164 HER HONOUR: All right, Mr Nankin.
165 MR NANKIN: Yes, Your Honour.
166 HER HONOUR: You're all right. All right. Thank you very much Mr Parks, Mr Audsley can be taken down now thank you. Thank you, Mr Cullen.
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