Director of Public Prosecutions v Barker

[2021] VCC 1864

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01454

CR 20-01457

DIRECTOR OF PUBLIC PROSECUTIONS

v

CONRAD BARKER

JAMES NICHOLS

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 November 2021
CASE MAY BE CITED AS:	DPP v Barker & Anor
MEDIUM NEUTRAL CITATION:	[2021] VCC 1864

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For Accused Barker	Mr M. McGrath
For Accused Nichols	Mr T. Marsh

HIS HONOUR:

1Conrad John Barker and James Lee Nichols, you were arraigned on separate indictments and you both pleaded guilty to one charge of carjacking, one charge of common law assault and one charge of robbery.  You, Barker, also pleaded guilty to one charge of possessing a drug of dependence, and you, Nichols, pleaded guilty to one charge of arson. 

2Your offending occurred on 7 January 2020.  You, Nichols, had used the Facebook Messenger account of an ex‑girlfriend to set up a conversation online with your victim, Dean.  Dean believed he was communicating with your ex‑girlfriend and made arrangements to meet up with her for a drug transaction in Ghazeepore Road, Torquay.

3You both enlisted the assistance of a 20 year old female friend, India Braniff, to drive you two and an unknown third man to the Torquay area to purportedly purchase drugs.  At about 6 am, Dean drove his Holden utility, towing a trailer, north along Ghazeepore Road, between Coombes Road and Blackgate Road.  Braniff got out of her car and waved Dean over.  When he stopped, you two and the third man got out of Braniff's vehicle and approached Dean.

4You ordered him out of his vehicle.  He was grabbed, told not to look at his assailants, and hit to the back of the head.  He was dragged to the rear of Braniff's vehicle, where he was repeatedly kicked and punched.  His mobile phone was taken by one of you.  You two got into his vehicle and drove away in it. 

5The remaining male assailant got into Braniff's vehicle and Dean ran away, across the surrounding paddocks.  He ran to a nearby house and asked the owner to call the police.  He was panicky and distressed.  He sustained bruising to his body, grazing to his hands and a large graze to his right knee.

6The forceful taking of Dean's utility constitutes Charge 1, the carjacking charge that you each pleaded guilty to.  The punch and kicking constitute the assault charge.  In Dean's vehicle was a quantity of drugs.  The forceful theft of his mobile phone, the drugs in the utility and the trailer attached to it constitute the charge of robbery. 

7Shortly before 10 am the same day, you, Nichols, drove Dean's Holden utility to Peter Street, Grovedale.  You splashed petrol inside the cabin and set it on fire.  You were driven away from the scene in Braniff's vehicle.  Fortunately, that fire did not take, and only minimal damage was caused to the passenger seat.  This is the basis of Charge 4, arson, to which you, Nichols, pleaded guilty. 

8Police located Dean's trailer, dumped in Barwarre Road, Grovedale, that morning. 

9The police investigation discovered your, Barker, DNA on the steering wheel of Dean's utility.  Analysis of both your mobile phone records showed numerous telephone calls and SMS messages between the two of you from 3.37 am and 5 am on 7 January 2020.  The repeated contact ceases at the time of your offending.  Records show that your phone, Nichols, was communicating with a cell tower in the Torquay area, close to Ghazeepore Road, at the time of your offending.

10On 25 March 2020, India Braniff and you, Barker, were arrested.  Braniff told the police that early on 7 January 2020 she drove you to Ghazeepore Road and you met up with a man in a ute.  You two drove off in the man's ute.  She said you, Barker, borrowed the car she was driving at about 9 am and returned it about 1 pm. 

11You, Barker, were found with a small quantity of methamphetamine in a snap‑lock sealed bag in your wallet, and this is the basis of Charge 4, to which you pleaded guilty, possession of a drug of dependence.  You were interviewed at Geelong police station that day.  You predominantly exercised your right to silence, but did say you used to hang out with India Braniff in January 2020.  You remembered she had a hire car, but you falsely denied being involved with Dean at Ghazeepore Road, but you admitted possessing methylamphetamine.

12You, Nichols, were arrested by police on another matter on 21 January 2020.  You were remanded in custody on that matter.  On 2 March 2020, police sought to interview you in relation to the offending to which you have now pleaded guilty before me, but you declined to be interviewed.

13Each of you have admitted prior criminal histories.  You, Barker, have 69 prior offences from five court appearances, as I calculate it.  On 8 January 2013, you were fined for possession of methylamphetamine and a weapons charge.  On 11 May 2017, you were before Geelong Magistrates' Court on a large consolidation of charges.  You were sentenced to imprisonment on charges of dangerous driving, failing to stop after an accident, handle stolen goods and thefts of motor vehicles.  On other charges, you were sentenced to a community based order.  The effective term of imprisonment imposed was 12 months. 

14You appealed that sentence to this court, and on 9 November 2017,
Judge Allen set aside the orders in the Magistrates' Court and imposed an effective sentence of eight months' imprisonment, which had already been served by way of pre-sentence detention, and released you on a community corrections order for two years, with conditions of drug assessment and treatment and judicial monitoring.

15On 29 October 2019, you were sentenced to 180 days' imprisonment - that is, with 153 already served - on offences of possession of drug of dependence, possess MDMA, deal with proceeds of crime, fraud, commit indictable offence on bail, burglary, theft and thefts, plural, of motor vehicles. 

16These offences breached the community corrections order imposed by His Honour Judge Allen.  However, I was informed by your counsel that His Honour Judge Allen extended your order until 2022 upon that breach.  The offending for which I am to sentence you breaches the community corrections order made by Judge Allen, and, of course, this aggravates your offending. 

17Your prior criminal history, Nichols, is extensive and makes depressive reading.  You have a pattern of offending, being imprisoned and re-offending shortly after each release from custody.  Your counsel has summarised your history in his submissions, Exhibit N1.  I calculate that you have 59 prior offences from
11 appearances. 

18In May 2010, you were sentenced to three months' imprisonment, wholly suspended, for theft and assault.  On the same day, you were sentenced to nine months' imprisonment, to be served by way of an intensive corrections order, for the offence of aggravated burglary.  You failed to comply with that order, and on 17 February 2011 you were sentenced to a further term of three months' imprisonment, to be served by way of an intensive corrections order.

19In November 2011, you were fined for theft and attempting to obtain property by deception.  On 14 January 2013, you were sentenced to a 12‑month community corrections order by the Geelong Magistrates' Court on charges of criminal damage, recklessly causing injury and assault by kicking.  You breached that CCO and, on 9 December 2013, were re-sentenced to a three‑month term of imprisonment, wholly suspended for 12 months. 

20On 9 December 2013, you received an effective term of imprisonment of
12 months, for offences of intentionally cause injury, possess controlled weapon, recklessly cause injury and possession of ecstasy.  On 15 August 2016, you were sentenced to an effective term of imprisonment of 12 months, together with a 15‑month community corrections order, for offences of burglary, theft, theft of motor vehicles, prohibited person possessing a firearm, receiving stolen goods, committing an indictable offence on bail, going equipped to steal, recklessly causing injury, possessing ammunition, possession of drugs and misconduct in prison.

21You appealed the sentence to this court, and on 10 October 2016, as I read it, the court, effectively, reimposed the same sentences as those imposed in the Magistrates' Court.  You breached the community corrections order imposed on 5 July 2017 and you were re‑sentenced to a term of eight months' imprisonment.

22On 27 August 2018, you were before the Warrnambool Magistrates' Court on 24 separate charges, including offences of reckless conduct endangering serious injury, attempting to intentionally cause injury, assault; thefts, plural, of motor vehicles; burglary, multiple thefts; assault emergency worker on duty, deal with proceeds of crime, dangerous driving whilst pursued by the police, and possess methylamphetamine.

23You were sentenced to 22 months' imprisonment, with a non-parole period of 14 months.  You were not granted parole and were released from custody in December 2019, shortly before the offending for which I am to sentence you.  In that time, you had committed other offences that saw you remanded in custody on 21 January 2020. 

24On 8 April 2021, you were sentenced to a two‑month term of imprisonment for those other offences.  So you have been in custody continually since 21 January 20, and you have 593 days in that period of pre‑sentence detention on these matters, and I take into account the fact that you have, effectively, been in continuous custody for 623 days. 

25Both of you were listed for trial on more serious charges before me in October this year.  India Braniff had been granted a separate trial from your trials, plural, by His Honour Judge Wraight.  India Braniff sought a sentence indication from this court and pleaded guilty to charges of carjacking, assault and robbery on 27 September of this year.

26Both of you also pleaded guilty to the charges you now face on that day.  It has been proposed that the prosecution could call Ms Braniff as a witness in any trial of both of you.

27There has been no victim impact statement made by Mr Dean.  I was informed by the learned prosecutor, Mr O'Doherty, that he was given the opportunity to do so but he declined.  I do note that he received only minor injuries and his utility and trailer were returned to him.  He lost his phone and his drugs.  I also note that, in my view, Mr Dean was perhaps understandably less than frank with investigating police.  He did not disclose that he was attempting to sell drugs on the morning of 7 January 2020 and that those drugs were stolen.

28The offence of carjacking is a serious criminal offence.  Parliament has mandated that a term of imprisonment must be imposed unless special circumstances exist.  It was conceded by the prosecution that Ms Braniff's cooperation with the police and the making of a statement implicating you established those special circumstances in her case.  Further, she was 20 years old at the time of offending and had no prior criminal history. 

29On 28 September 2021, Ms Braniff was sentenced to a two‑year community corrections order with Corrections, with conditions including 250 of unpaid community work and judicial monitoring.  Ms Braniff's position was clearly very different to the position that each of you are in. 

30Turning to your personal circumstances and dealing firstly with you, Barker.  You are now 27 years of age, being born on 20 December 1993.  Your history is comprehensively set out in your counsel's submissions, Exhibit B1, and the psychological report of Warren Simmons, Exhibit B6.

31You grew up in Point Lonsdale.  Your parents separated when you were two or three years of age and your mother re‑partnered two years later.  You were raised by your mother, with two older sisters and two older stepbrothers.  You are estranged from your father but have a close relationship with your mother.

32You were educated to Year 11 level at Bellarine Secondary College.  You were expelled at the age of 17 years.  You left home and moved in with friends, but completed Year 12 at Gordon TAFE before working as a concreter for some approximate two years.  You lost that job due to drug abuse.  You worked intermittently as a fencer and with a truss manufacturer, but drug use saw you 'running amuck' and imprisoned. 

33You obtained work with a boatbuilder upon your release but soon relapsed into drug use and criminality.  You were again imprisoned.  Upon your release, you moved to Queensland.  However, a friend of yours was murdered in 2019 and you returned to Geelong for his funeral.  Whilst here, you returned to drug abuse and offending until you were remanded on these matters in March 2020.

34You have had two relationships.  One saw you becoming a father to your now eight year old son.  He lives with his mother in Ocean Grove.

35You were bailed on 29 January of this year, having spent over 10 months on remand.  Your bail conditions were strict.  You were to reside with your mother in Queenscliff.  You reported to the police daily and have a 9 pm to 6 am curfew. 

36You found employment as an arborist and your employer, Dylan McEwan, provided a reference, Exhibit B2, which states that he has known you for about 20 years.  You began working for him in early May 2021.  You approached him for work, and he says:

I could see it was clear that he genuinely had had a change in character and was looking for an opportunity to prove himself.  The opportunity was granted, despite the large financial costs and against a lot of people's opinion based on the person Conrad used to be.

I speak with Conrad on a daily basis since he first approached me with the sincerity that he wanted to change his life.  Some examples of this including fitting his strict bail conditions around extremely heavy workload I put upon him and not letting it impact his work, which I thought was a task that was near impossible; completing his certificates in arboriculture and all applicable power courses, safety training and requirements in a timely fashion that exceeded any other employee by one month. 

37Mr McEwan continues:

I engage in common conversation with Conrad regarding the above charges daily, to get a gauge on how he feels about the situation he has created.  Conrad fully acknowledges the mistakes he has made and does not want them to reflect on what he wants to be in the future. 

38He describes you as someone that will go above and beyond to prove himself, but, more importantly, to help others.  An example of this is recently, when the devastating storms hit Gippsland and other local areas:

Conrad stepped up and used his leadership skills and initiative without being asked.  He led a large crew of my employees to assist people in the community, who were dependent on power for various reasons, including people that required power for medical conditions to stay alive.  Because of this, I decided to put him in the bushfire prevention scope role.  Leading into bushfire season, Conrad is extremely valuable to my company and the community.

39As part of your bail conditions, you were required to attend upon Lamberti Associates rehabilitation consultants and to obey lawful directions in relation to treatment and rehabilitation.  You were prohibited from possessing or using drugs and required to provide twice‑weekly drug screens to the police informant. 

40Damian La Peyre, a drug counsellor contracted with Lamberti Associates, gave impressive evidence upon your plea.  He is an experienced and well‑qualified drug and mental health practitioner who has had regular contact with you since you were bailed.  He gave evidence that you had not used methylamphetamine since being bailed.  He gave evidence about the protective factors that foster your rehabilitation, including your family support, your job and your changed cohort of associates.

41He said you have a high chance of living a fulfilling life, but said that a return to custody would be a massive backward step to your rehabilitative prospects.  He said you had let go of your old life, and placing you back in that cohort would be a risk to the therapeutic steps you have taken this year.  A written report, Exhibit B5, from Lamberti Associates states:

Mr Barker is a 27 year old male whose psychological profile is characterised by persistent depression and anxiety, which he has largely self‑medicated with illicit substances since adolescence.  From age 17, Mr Barker reported using amphetamines on a regular basis and, within the duration of one month, his use had escalated to daily use of approximately half a gram. 

42At the age of 18, your daily amphetamine habit was replaced by the more potent methamphetamine, and:

From the age of 25 years, Mr Barker reports a poly‑substance abuse pattern consisting of daily use of gamma hydroxybutyrate, daily use of Xanax and daily use of methamphetamine.  His preoccupation with substance use invariably led him to impoverish other social activities, and he became somewhat estranged from mainstream society.  His ability to remain gainfully employed was impeded, and his capacity to maintain a steady relationship was subsumed by his drug use.

Mr Barker has maintained an abstinent lifestyle, and his condition is now in what would have been specified as a period of sustained remission.  He has evidence in the form of via twice‑weekly urinalysis, and I note that no sample provided by Mr Barker has indicated the presence of any substance in which he has not been lawfully prescribed. 

Since his release to bail, Mr Barker has remained domiciled with his mother.  He has been able to address his rehabilitative needs, as well as lead Mr Barker to adapt to remaining extricated from drug‑using subculture.  He has made good use of his time since his arrest and engaged in a number of productive and meaningful pursuits.  He has maintained reliable employment, has cultivated attachments with non‑drug using peers and is paying attention to his physical and mental well-being.

43I understand that that involves you attending at a gymnasium.  Your mother, who provided the helpful reference, Exhibit B3, also gave evidence upon your plea.  She described your ongoing relationship with your son, who you see on a daily basis.  She outlined your daily commitments, including work, counselling, seeing your son and reporting to police. 

44She said you had complied with your curfew requirements and swore that you are now a completely different person than you were before going into custody.  She described the change in you as amazing.  She will support you and provide ongoing accommodation.  Her evidence and the contents of her reference demonstrate the anguish a parent has watching a child's life ruined by illicit drugs.  She concludes:

For the first time in many years, Conrad has genuinely become a committed and reliable part of the family.  He is an active role model for his eight year old son, spending quality time with him in his spare time outside of work.  He maintains a strong friendship with his son's mother.  This time has been hugely beneficial to mending Conrad's relationship with his son, who had suffered from Conrad's previous absences in prison.

Conrad has reconnected with old friend that are a positive influence on his sobriety from drugs.  He has submitted for regular check‑ins and drug tests throughout his time on bail, and refrained from illicit drug use and is committed to remaining so.  He is engaged in regular counselling, working hard to equip himself with the tool he needs to beat his addition. 

As a result of his sobriety, my relationship with Conrad has also greatly improved.  He is more open with me about his previous mental battles and has expressed remorse to me in the crimes he has committed in the past to support his drug addiction.  His personality these days is energetic and humorous, a complete contrast from his days of using.

45Your counsel, Mr McGrath, in a succinct and powerful submission, argued that a combination of factors in your case establish special circumstances that remove you from the operation of the mandatory custodial sentencing provisions that apply to category 2 offences. Carjacking is a category 2 offence, and the Court must sentence an offender to a term of imprisonment and not a combination sentence of imprisonment and a CCO unless the offender falls within a number of exceptions. The only relevant exception in your case is s5(2H)(e) of the Sentencing Act:

If there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3'

46Section 5(2HC) states:

In determining whether there are substantial and compelling circumstances under sub-s2H(e), the court must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in s5(1); (b), must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and (c), must not have regard to an early guilty plea; or prospects of rehabilitation; or parity with other sentences.

47In determining whether there are substantial and compelling circumstances, the court must have regard to Parliament's intention that in sentencing an offender for a category 2 offence, a term of imprisonment should ordinarily be made.  Mr McGrath submitted that, in combination, there are exceptional and rare circumstances in your case.  He argued that you had actual rehabilitation from long‑term drug use, as distinct from prospects of rehabilitation.

48He has pointed to your stable employment; your cessation of offending, with no matters pending; the continued family support you enjoy; your relationship with your son; your plea of guilty, in circumstances where, he argued, there was limited evidence against you; an absence of previous convictions for violent offending; a plea of guilty in the time of COVID and its impact in relation to the administration of justice; and the fact that you had been found suitable for a CCO.

49He further submitted that if exception on rare circumstances are not found, he submitted that all of the above remain relevant to sentencing and would allow for imprisonment alone for the carjacking offence and a community corrections order on the remaining offence.

50Having carefully considered the legislative provisions, and s5(2HC) in particular, I am of the opinion that the factors argued by Mr McGrath do not amount to circumstances that are substantial or compelling, exceptional or rare.  Parliament has, effectively, mandated a term of imprisonment for carjacking. 

51Your prospects of rehabilitation are excluded from my consideration by Parliament, and I must give effect to Parliament's stated intention that a term of imprisonment should ordinarily be made to promote general deterrence and denunciation of your conduct are important considerations in carjacking cases.  That does not mean that the factors relied upon by Mr McGrath are irrelevant.  Those factors reduce the length of the term of imprisonment that must be imposed in your case - on the carjacking charge - and bear upon the type of sentence to be imposed on other charges.

52I take into account, in that regard, the matters set out by Mr McGrath in his submissions.  Your childhood insecurity left you vulnerable to drug abuse and resultant criminal activity.  Despite your significant prior criminal history, you have demonstrated significant and commendable rehabilitation.  You are now free of drug addiction, and if you maintain that status you will have successfully turned your life around.

53I accept that you have developed insight and have expressed genuine remorse for your offending.  You have secure employment, demonstrated pro‑social conduct and resurrected your relationship with your mother.  In my view, to return you to prison after the substantial gains you have made would be detrimental to both you and to the community, which clearly has a strong interest in you remaining drug‑free and offence‑free.

54I considered imposing a term of imprisonment longer than the amount of
pre-sentence detention you have served.  Such a term would only be, if I did so, a few months longer than the time you have, in fact, already served.  I accept the evidence of Mr La Peyre that to do so would represent a massive step backwards for you, and intend to impose a sentence that is both parsimonious and merciful.

55Mr McGrath referred to the oft‑cited decision of Boulton v The Queen [2014] VSCA 342, where the Court of Appeal explained the true value of community corrections orders. In a much‑quoted paragraph, paragraph 131, in dealing with when a community corrections order would be available or suitable, the court said:

It follows from what we have said that a community corrections order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide).  The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly‑conditioned community corrections order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.

56Earlier in the judgment, the court said, at paragraph 2:

The community corrections order is a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously.  The community corrections order can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re‑offending by promoting the offender's rehabilitation.

57I have determined that the factors that I have referred to dictate that this is the appropriate course for me to take in your case.  I have had you assessed for the suitability to undergo a community corrections order and you have been found suitable to do so.  Various conditions are suggested to promote your rehabilitation. 

58I propose to add to the punitive nature of a community corrections order by imposing unpaid community work, and I will come to the terms of the community corrections order later.  I intend, to make it clear, to impose a term of imprisonment of time served, effectively, in respect of the carjacking offence and, in relation to the other offences, for the reasons I have set out, impose a community corrections order.

59Turning to you, Nichols.  You are now 30 years of age, being born on 1 February 91.  You had loving, caring and supportive parents, who divorced when you were nine years of age.  Your mother re‑partnered and until recent years, you had a good relationship with your stepfather.  You were a good student until you began associating with negative influences in your later years at high school.

60You began to use drugs.  A reference from your mother, Exhibit N2, describes the transformation drugs caused to your life.  You were expelled from school at the end of Year 9.  You moved to St Joseph's and managed to complete Year 12.  After leaving school, you found intermittent work as a roof tiler before you started an apprenticeship in your family's electrical contracting business.

61You failed to commit to study.  You turned up late to work, and your employment was terminated when you presented for work affected by drugs.  You involved yourself with drugs and criminal activity.  At the age of 19, you received your first gaol term, albeit a suspend term.  Thereafter, you were regularly offending, breaching court orders and re-offending. 

62In 2018, you were sentenced to 22 months' imprisonment and, as I said earlier, released in December 2019, and started reoffending almost immediately.  The offending for which I am to sentence you was part of a drug‑fuelled spree you embarked upon upon your release from prison.  

63You claimed that your period on remand for these offences has been a wake‑up call for you.  Your mother writes that you have been drug and alcohol‑free for 18 months and you want to improve your life.  One can only hope that this is true, although your past history makes your prospects for rehabilitation gloomy unless you do rid yourself of your illicit drug use.

64Your prospects are enhanced, in my view, by the support offered by your mother.  Whilst in custody, you have engaged with the ReStart program, an organisation that will assist you, upon your release, with housing, drug and alcohol treatment and provide a reintegration plan and transition plan to prepare you for release.  See Exhibit N3.

65You have completed in‑custody courses and provided clean drug screens to demonstrate your drug‑free status in custody.  You have sought assistance with managing drug‑abuse issues and gambling issues whilst you are in custody.  You have worked where you could in prison.  I was informed that at present you are a carer for a wheelchair‑bound prisoner at Port Phillip Prison. 

66Your counsel properly submitted that your prospects of rehabilitation must be seen as guarded, but submitted that your prior criminal history is not as bad as it looks.  His submissions, Exhibit N1, set out tables attempting to support that submission.  In my view, your offending history is significant and serious for someone your age.

67Your counsel relied on a number of matters in mitigation of your offending.  The impact of COVID-19:  your time in custody has been and will continue to be more onerous because of limitations to visits, phone calls and lockdowns.  I take that into account in sentencing you.

68As with your co‑accused, I take into account your pleas of guilty.  Those pleas facilitate the course of justice, save the community the expense of a trial.  You are entitled to a reduction in sentence, to reflect those pleas of guilty.  The value of those pleas is increased because of the effect of COVID-19 on our justice system.  Your facilitation of the course of justice entitles you to an increased reduction in sentence as a result.  I am obliged to state the effect of the reduction for those pleas of guilty and I will return to that subsequently.

69Thirdly, your counsel submitted that your prospects of rehabilitation are boosted by your improved family relationship, the courses undertaken in custody, your addressing drug, alcohol and gambling issues, and I take these factors into account in sentencing you.

70Fourthly, as I said before, you have been in custody now since 21 January 2020.  In that time, you have served two months on an unrelated sentence, and I take that account on a totality basis - your protracted time on remand.

71You are in a different position from Barker.  His prior criminal history is, arguably, less significant than yours, and he has been fortunate to have been able to demonstrate rehabilitation since being bailed.  Your counsel properly conceded that terms of imprisonment are appropriate for your offending, but urged substantial concurrency between the sentences.

72On all charges, you will both be convicted.  Would you both stand up, please.  On Charge 1, the charge of carjacking, you, Barker, are sentenced to
10 months' imprisonment.  Nichols, you are sentenced on that charge to two years' imprisonment.  On Charge 2, the charge of assault, you, Nichols, are sentenced to 12 months' imprisonment.  On Charge 3, the charge of robbery, you, Nichols, are sentenced to 12 months' imprisonment.  On Charge 4, the arson charge, you are sentenced to six months' imprisonment, Nichols. 

73I order that six months of each of the sentences imposed on Charges 2 and 3 and three months of the sentence on Charge 4 be serve cumulatively on the sentence imposed on Charge 1 on you, Nichols.  That is an effective term of imprisonment of three years and three months, and I order that you serve two years of that sentence before being eligible for parole.  I declare that you have served 593 days of that sentence by way of pre‑sentence detention.

74So far as you are concerned, Barker, on Charges 2, 3 and your Charge 4, possession of a drug of dependence - on those three charges, you will be released on a community corrections order for a period of three years, with special conditions that you perform 250 hours of unpaid community work, you undergo treatment and rehabilitation for drugs, you undergo treatment and rehabilitation for programs to reduce offending.

75You will be under supervision, and I intend to impose judicial monitoring.  We will come back to the first date of that judicial monitoring in your case shortly.  I declare that you have served 310 days of pre‑sentence detention, which means you have served the sentence that I have imposed upon you.

76Pursuant to s6AAA of the Sentencing Act, I indicate that but for your pleas of guilty I would have imposed upon you, Mr Barker, a term of imprisonment of three years, with a non‑parole period of 18 months; and you, Mr Nichols, four years and six months, with a non‑parole period of three years.

‑ ‑ ‑

77HIS HONOUR:  Have a seat, both of you, and I want to work out now a convenient date when it would be - for judicial monitoring.  Madam Associate, do you have the calendar there for next year?

78ASSOCIATE:  Yes, Your Honour.

79HIS HONOUR:  I'm back on 17 January.  So I'd like to see him very shortly after I get back.

80ASSOCIATE:  Yes.

81HIS HONOUR:  Have we got any days there that look suitable?

82ASSOCIATE:  There's nothing booked in there, Your Honour.

83HIS HONOUR:  We'll make it 19 January.  19 January 2022.  I will be, probably, in Melbourne.  I would probably like - at least for the first occasion, I'd like Mr Barker to appear personally in front of me, in Melbourne, Mr McGrath.

84MR McGRATH:  Yes, Your Honour.  Just on that, I don't know if I'll be appearing on the return date - or my instructor will be, and ‑ ‑ ‑

85HIS HONOUR:  He can come on his own.

86MR McGRATH:  Well, he could.

87HIS HONOUR:  If you want him to.

88MR McGRATH:  Well, no, no, that - no doubt that he'll be performing very well, Your Honour, but ‑ ‑ ‑

89HIS HONOUR:  I get a report ‑ ‑ ‑

90MR McGRATH:  Yes.

91HIS HONOUR:  ‑ ‑ ‑ prior to the day, so I'll know whether he's going all right.  And I'd like to just have a chat to him about how he's going and remind him that I'm looking over his shoulder, so that he knows that if he breaches the order he's going to gaol.

92MR McGRATH:  Yes, Your Honour.  Yes, Your Honour.  Well, perhaps we'll just leave it 19 January, then.

93HIS HONOUR:  Yes.  And at 10 am.  Now, I'm mindful of the fact that he is employed and he's got job commitments.  I will have further judicial monitoring over the term of it, but we may be able to do it via video link thereafter if it goes well.  So I'm going to not try and disturb - and he may, in fact, be able to present at community corrections and we'll do it from there.

94MR McGRATH:  Yes, Your Honour.

95HIS HONOUR:  On the first occasion, on 19 January, at 10 am, I want to see him in front of me.

96MR McGRATH:  Yes, Your Honour.

97HIS HONOUR:  All right.  Mr O'Doherty, are there any other orders required?  Can't hear you.  You might turn your microphone on.

98MR O'DOHERTY:  Yes, Your Honour.  Disposal of the drugs and the phone.

99HIS HONOUR:  Yes, I'll make that order.

100MR O'DOHERTY:  Did Your Honour ‑ ‑ ‑

101HIS HONOUR:  Anything else?

102MR O'DOHERTY:  Did Your Honour declare 310 (indistinct words).

103HIS HONOUR:  No, I declared - yes, I declared 310 days served, which is more than the 10 months he's done.

104MR O'DOHERTY:  Yes.  It should be 312 days.

105HIS HONOUR:  Should it?  All right.  Well, I apologise.  I'll make it - I'll revise that order to 312.

106MR O'DOHERTY:  Thanks.

107HIS HONOUR:  All right.

108MR McGRATH:  Your Honour, no issue with the additional PSD - is 312 days.  Your Honour, one matter - I clearly take no issue with the disposal of the drugs that were found.  I just don't have a copy of the disposal order in front of me, but I think Mr O'Doherty mentioned a phone.  I don't know if the ‑ ‑ ‑

109HIS HONOUR:  Whose phone was taken, Mr O'Doherty?  Do you know?

110MR McGRATH:  There's no ‑ ‑ ‑

111HIS HONOUR:  No?

112MR McGRATH:  There's no suggestion that the phone ‑ ‑ ‑

113MR MARSH:  Your Honour, it was Mr Nichols' phone, I think.

114MR McGRATH:  Yes, it might be Mr ‑ ‑ ‑

115HIS HONOUR:  It's Nichols' phone, Mr McGrath.

116MR McGRATH:  ‑ ‑ ‑ Nichols' phone.  I don't - well, as long as it's not Mr Barker's phone, Your Honour.

117HIS HONOUR:  Yes, there you go.  Well, the phones were somewhat tied up in the planning of the offence, but it's not your phone anyway, Mr McGrath, so ‑ ‑ ‑

118MR McGRATH:  Yes, Your Honour.

119HIS HONOUR:  All right.  Now, Mr Barker has to sign the community - Mr Barker, can you come forward to the lectern next to Mr McGrath, please.  Did you understand what I said in relation to the community corrections order?

120OFFENDER BARKER:  Yes, Your Honour.

121HIS HONOUR:  Two hundred and fifty hours over three years.  It's a bit more extra work for you.

122OFFENDER BARKER:  Yes.  That's all right, Your Honour.

123HIS HONOUR:  But there's going to be - you're going to undergo programs for - we're going to keep monitoring your drug position and have programs to reduce the risk for you of re‑offending.  I'm going to order that the hours you spend on those programs can be deducted from the unpaid community work. 

124You will have to do what they tell you to do, because of the supervision, and you'll have to come and see me by way of judicial monitoring, where I'll be checking on how you're going.  The first of that occasion's on 19 January.  You need to understand that if you - I'll wait till you - you need to understand if you breach that order by re‑offending or non‑compliance, you'll give me no choice but to put you back where you don't want to go.  Do you understand?

125OFFENDER BARKER:  Yes, Your Honour.

126HIS HONOUR:  I'm giving you an opportunity to prove that what you've said and what you've demonstrated over the last nine months or so on bail is going to be maintained in the future.

127OFFENDER BARKER:  Yes, Your Honour.  Thank you.

128HIS HONOUR:  All right.  You've signed that order?

129OFFENDER BARKER:  Yes.

130HIS HONOUR:  All right.  You can leave, and I'll terminate the link in relation to Mr Nichols and counsel.  Thank you for your assistance, counsel.

131OFFENDER BARKER:  Thank you.

132MR McGRATH:  Your Honour pleases.

133MR O'DOHERTY:  Thank you, Your Honour.

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