Director of Public Prosecutions v Barnes

[2014] VCC 2155

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00728
CR 14-01198

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW BARNES
JAKE WILKINS

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2014, 10 September 2014, 3 December 2014
DATE OF SENTENCE:	10 December 2014
CASE MAY BE CITED AS:	DPP v Barnes & Anor
MEDIUM NEUTRAL CITATION:	[2014] VCC 2155

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper	OPP
For the Offender Barnes	Mr C. Farrington	Patrick Dwyer Lawyers
For the Offender Wilkins	Ms C. Beissmann	VLA

HIS HONOUR: 

1You, Matthew Luke Barnes pleaded guilty to one count of attempted aggravated burglary on 5 May 2014. On that occasion you also pleaded guilty to a related summary offence that was before me by reason of the relevant section of the Criminal Procedure Act, being one count of assaulting a member of the police force in the execution of his duty. Exhibit 1 tendered on 1 May 2014, the date of your plea, is the summary of prosecution opening on the plea. I was informed by means of that document that on Saturday 8 December 2012, shortly before 3 am the victim in this matter was woken by someone banging on the front door of the house. His 14 year old daughter was home at the time. Mr Singh heard someone calling out to open the door. Mr Singh replied, "Who's there?" And somebody apparently responded "the police". The person also asked if "Sim" was there. Sim apparently referred to the name of a 14 year old, Simajot Singh who normally resided at those premises.

2You, Matthew Luke Barnes, were one of the people outside the door and in an effort to force your way inside the premises, you bent back the metal security door.  You intended to enter the premises to commit an assault on the person inside and your fingerprints were located on the bent security door.  You and your friends attempted to enter the house, but you were repulsed and the three residents managed to push the wooden door shut.  As the result of your leaving your fingerprints on the door, the police attended at your premises on Monday 17 December 2012. 

3After some prevarication, your mother informed the police that you resided in the garage in the back of the premises.  When the police officer stepped into the garage, you ran towards him with your arms bent and your fists raised like a boxer and those matters gave rise to the summary charge of assaulting police.  You were sprayed with OC spray and then arrested.  You made a record of interview that day in which you claimed you were drinking during the day and otherwise apparently had little memory of the occasion.  The three victims of the matter were each offered the opportunity of making a victim impact statement but declined.

4The boy who was apparently the intended victim of the assault had at one stage travelled overseas because of his fear as a result of this incident.  Your co-offenders have not been identified.  The prosecution sought a number of orders including a compensation order for the damage to the door and the window, a forensic sample and a disposal order for the metal pole found at the scene.  There being no objection to those orders when they are produced to me in chambers.

5Your plea of guilty, whilst not offered at the first opportunity was offered in time to resolve the matter just prior to the final directions hearing.  You spent four days in custody from 17 December 2012 until you were bailed on 20 December and those four days of detention are very relevant to this matter in my view.  I understand that there was at the time some dispute as to your birthdate.  According to you, you were born in 1989, whereas police records have you born in 1991. 

6After pleading guilty to these matters and your counsel tendering a number of reports on your behalf, the matter was adjourned given that there was to be a committal mentioned on 9 May of a number of further matters including the making of pipe bombs and other matters.  In the circumstances, I will later refer to the report of Dr Cidoni, dated 20 September 2012 exhibit A, the report of Geoffrey Cummins dated 17 October 2014, exhibit B, and the NMIT certificate in electro-technology in exhibit D and the submissions made on your behalf on that occasion. 

7As to the matters giving rise to the joint indictment.  You, Matthew Barnes, and Jacob Wilkins appeared before me on 10 September 2014 when you were each arraigned on an indictment and you each pleaded guilty.  In your case, Mr Jacob Kevin Wilkins, to three charges of causing an explosion likely to cause serious injury to property, charges 1, 8 and 9.  You also pleaded guilty to three charges of intending to cause an explosion likely to cause serious injury to property, charges 2, 5 and 7.  You also pleaded guilty to two charges of arson, charges 3 and 6. 

8You, Matthew Luke Barnes, on that occasion pleaded guilty to three charges of intending to cause an explosion likely to cause serious injury to property, charges 2, 5 and 7, you pleaded guilty to two charges of arson, charges 3 and 6, you pleaded guilty to one charge of reckless conduct endangering a person, charge 4 and you pleaded guilty to two charges of causing an explosion likely to cause serious injury to property, charges 8 and 9.

9You, Mr Wilkins, also pleaded guilty to one count of using an unregistered motor vehicle on 20 November 2013, which matter was before me pursuant to s.145 of the Criminal Procedure Act being a related summary offence. You, Matthew Luke Barnes, on that occasion pleaded guilty to three summary charges which were before me pursuant to the relevant legislation and they were using a mobile phone whilst being the driver of a vehicle that was moving on a road, being the Epping/Kilmore Road on 14 November 2013 and on the same day you were charged with and pleaded guilty to driving without being the holder of a driver's license permitting you to drive, and you also pleaded guilty on the same day to a charge of using an unregistered motor vehicle.

10Exhibit 1 is the amended prosecution opening, relevant to the charges on the second indictment which concerns you both.  It was tendered on 10 September 2014.  You were 24 years of age and you Mr Barnes, accepting you were born in 1989 were also 24 when you both in early November 2013 experimented with homemade explosives.  You created improvised pipe bombs by filling lengths of galvanised pipe with explosive powder scraped from party sparklers or from cap-gun shots.  You then inserted a lit sparkler into a pipe to ignite the device.  More specifically, your offending occurred in the following manner.  Charge 1, causing an explosion likely to cause serious injury to property relevant to you, Mr Wilkins.

11Between 8 and 14 November, you made a pipe-bomb at your home in Riversdale Street, Craigieburn.  You then detonated the device in nearby Victor Foster Reserve, Craigieburn.  Nothing was damaged as a result of the explosion and police were alerted to this incident by you after your arrest.  And of course that is a relevant matter as directed by the sentencing authorities.  That is that the matter was only brought to light by your own admission. 

12On 14 November 2013, you both went to an old firearm in Beveridge.  A vacant caravan was located amongst the farm buildings and you then video recorded yourselves on a mobile phone, inserting a lit sparkler into a pipe while standing in front of the caravan which you stated had 100 litres of paint thinners placed inside.  You then put pipe bombs into the caravan, intending to cause an explosion and damage the caravan.  You pleaded guilty to the second charge which concerns you both of intending to cause an explosion likely to cause serious injury to a property as a result of these matters.

13Charge 3 of arson, which concerns both of you arises when both pipe bombs fail to ignite, and as a result of which you set fire to the caravan, the fire then destroyed that caravan.  At about midday on that day, passers-by noticed smoke and alerted the fire brigade.  Mobile phone footage depicts you, Barnes, driving away from the scene of the caravan.  You can be seen driving onto the verge of the roadway towards the cyclist travelling in the same direction as the vehicle, placing the unknown cyclist in danger of serious injury and that matter gives rise to charge 4 of reckless conduct endangering a person, and of course concerns only you Barnes.

14The mobile phone recording was made by you, Barnes, whilst you were driving and that matter gives rise to charge 8 of using a hand-held mobile phone whilst driving.  Investigations reveal that at the time you, Barnes, also known as Matthew Sparks were not licensed to drive a vehicle and the vehicle in which you were driving was unregistered and those two matters give rise to summary charges nine and ten, being unlicensed driving and driving an unregistered vehicle.

15The following day, 15 November 2014, you both returned to the farm on Epping Kilmore Road, you placed a pipe bomb near a building intending to cause an explosion and destroy the building.  The sound of an explosion can be heard on the mobile phone recording made by you, Barnes.  However, the building did not ignite and so you set fire to it and destroyed the shed.  That gives rise to charge 5 intending to cause an explosion likely to cause serious injury to property and concerns you both and of course also charge 6, a charge of arson which again concerns you both.

16On November 2013, you were driving when you located a semi-rural property in Wollert.  Again your actions were recorded on a mobile phone.  You placed a pipe bomb in a wheelie bin at this address and tried to ignite it, intending to cause an explosion and destroy the bin.  The device malfunctioned and did not explode.  However, it was left in the bin and you left the scene and those matters give rise to charge 7, intending to cause an explosion likely to cause a serious injury to property and that concerns you both. 

17Charge 8 which is a charge of causing an explosion likely to cause serious injury to property concerns you both when you went to the Craigieburn golf course and placed a pipe bomb in a storm water drain intending to detonate the device and destroy the drain.  Mobile phone footage shows the large explosion caused when the bomb was detonated.  You then each went to the laneway at the rear of the property in Grattan Cove, Craigieburn and placed a pipe bomb in a wheelie bin and ignited it and the subsequent explosion destroyed the bin.  A tradesman was working nearby and was approximately twenty to 30 metres from the explosion.  That matter was recorded on Barnes' mobile phone and of course gives rise to charge 9, causing an explosion likely to cause serious injury to property and concerns you both. 

18When the pipe bomb exploded, the tradesman saw the lid of the bin shoot up into the air and he saw and reported the fact of two men in a Suzuki Swift, one of whom was recording something on a phone and noted the registration number of the car.  Of course those details were passed onto the police.  Mobile phone footage shows you, Wilkins, driving between the above locations on 20 November and investigations reveal that the car was unregistered at the time and that gives rise to a summary charge 18 which concerns you, Wilkins, of driving an unregistered vehicle.  Police executed a search warrant at your house, Wilkins, in Craigieburn on 29 November 2013 and there recovered a significant quantity of pipe-bomb components and explosive materials.  Your were interviewed on that day and made some admissions which you recorded in paragraph 16 of the opening.

19On 23 December 2013, police executed a search warrant at your address, Barnes, in Craigieburn.  A mobile phone was seized and found to contain the various recordings related to the incidents alleged in charges 2 to 9 which I have set out in the sentence.  You were interviewed and made no comment in answer to the questions that police asked of you. 

20The maximum penalties for these various crimes were set out in exhibit 1 and further there were orders sought by the DPP which were not opposed by counsel on behalf of you seeking disposal of the explosive components and disposal of the mobile phone which belonged to you, Barnes, and accordingly I have made those orders and if I have not already signed those orders I will do so when they are produced to me in chambers.

21No victim impact statements were tendered in the matter, although it was clear that your actions caused damage which I was able to observe by means of the fact that of course you recorded what you actually did on the mobile phone. 

22As was pointed by each of your counsel on the day of your pleas and subsequently there are a number of mitigating factors.  Certainly you have each pleaded guilty and you are each entitled to have that fact taken into account in your favour and I do so.  The community has by your pleas been spared the time and cost of a trial.  Perhaps trials.  And witnesses have been spared the evidence or the ordeal of giving evidence upon your trial and I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

23Further, I take into account your pleas of guilty and the timeliness of them.  You were apprehended in the circumstances described and admissions made by you, Wilkins, to some extent is outlined in exhibit 1.  In the circumstances, I do appreciate that in each of your cases your pleas do indicate true remorse for your actions and these are matters which are highlighted in the written submissions made on behalf of each of you. 

24In addition to the material tendered on your behalf on 1 May with respect to you, Barnes, and I have already highlighted that material - additional materials were tendered on 10 September which included written submissions, character references and various documents regarding your qualifications and correspondence from Dr James and a letter from Angela Barnes.  I have read those matters and of course take them into account.  With respect to you, Wilkins, on 10 September matters tendered on your behalf included an outline of submissions, a chronology of events relevant to you and further a chronology of the mental illness of your father and two reports of Carla Lechner, dated 30 August 2014 and 1 February 2013.  A letter from Essendon Private Hospital dated 26 May 2014.  Three testimonials and the decision of Judge Murphy and the Court of Appeal of 24 June 2009, 26 June 2009 respectively which of course concerned one of your private convictions and I will refer to that in a moment.  I have of course read each of those documents and will refer to some of them in due course.  On 10 September after hearing and preliminary submissions made on each of your behalves, I thought it appropriate to seek a psychiatrist report concerning each of you. 

25At that stage of course it was an open question as to whether there was something more sinister in your behaviour with regard to the explosions or whether it was to be more appropriately regarded as an act of utter stupidity in the context of excessive use of drugs and/or alcohol.  On 3 December the pleas continued on your behalves and the Forensicare reports were marked as exhibits.  In view of all the materials that I have read and considered and have been tendered and are exhibits before me, I have come to the very firm conclusion that your acts on that day or those days were simply the acts of young, stupid males, possibly affected or fuelled by drugs and/or alcohol but nevertheless there was nothing more sinister in your behaviour at least as far as the evidence reveals.

26Of course, I have regard to the materials and your backgrounds insofar as they are revealed by those materials and also oral submissions made on your behalf.  With respect to you, Jacob Wilkins, you are aged 25 and as I have said Judge Murphy had to sentence you on 24 June 2009 for a number of offences which referred  to "alcohol-fuelled public violence" in respect of which the victim suffered a serious head injury following a punch to the head from yourself.

27His Honour in that sentence and particularly at paragraph 15 and 16 spoke of your personal circumstances and significantly in my view then described what he referred to as your post-offence conduct in paragraph 17 to 24, inclusive, and I have read those comments and of course they also refer to the report that was before His Honour of Ms Matthews who had prepared a report that was put before the court on that occasion.  I think it appropriate to briefly refer to your personal circumstances in terms that Judge Murphy set out.  He said, and I quote at paragraph 15,

"You are one of three children from a happy intact family which has had its share of travails.  You were not academically oriented at school and left Whittlesea Technical School in the middle of year 11.  You excelled at sport.  You have worked in labouring oriented occupations since that time with a year as a builder's labourer and you commenced a wall and tile apprenticeship in 2007 but ceased that for economic reasons.  In recent months you worked casually with South Pacific Tiles and recently you have applied for a forklift driver's license.  You became involved with cannabis use at age 15 or 16 and were using that drug daily prior to the offending.  Your use of cannabis was such that your father had asked you to leave the house until you could address the problem and had banned you from contact with Mr Gul.  He was the victim in this matter.  Subsequent to the offence, you have had an opportunity to take stock of yourself and sought to address your cannabis use.  You have also been accepted back into your family home.  You have undertaken counselling and there has been an attempt to access a cannabis withdrawal trial.  You have also been seeking permanent employment with the defence forces.  The matters put by counsel indicate that you are somewhat at risk on the labour market.  You are seeking to obtain permanent employment and you have to date a good work ethic.  You have been seeking to address your substance abuse problem".

28These are all comments made by His Honour in 24 June 2009 and of course I sit here now in December 2014 and with the advantage of hindsight, one can see that the various matters raised and addressed to His Honour have not been as successful as His Honour would have hoped, particularly in light of the matters to which you now plead guilty before me.  I particularly note His Honour's comments with respect to post-offence conduct, and the hopes that were engendered by the submissions made on your behalf and the report of Pamela Matthews that you were a young man who was psychologically vulnerable and you were moderately immature for your chronological age and the other matters there referred to.  Clearly the hopes of the persons then concerned with your welfare and no doubt yourself did not obtain. 

29The matter was then appealed by the Crown as being manifestly inadequate.  The court rejected that appeal unanimously and Justice of Appeal Buchanan drafted the lead judgement with which Justices of Appeal Weinberg and Coghlan agreed and at paragraph 4 forward, set out your personal history noting he report of the tender of the psychologist's report.  In paragraph 13 quoted the President in the case of Tokava which I have also relied upon very significantly in this matter.

30Before me also, I have of course the reports of Carla Lechner in addition to the one she prepared that was before Judge Murphy.  Ms Lechner authored two further reports dated 1 February 2013 and 30 August 2014 and I propose to read briefly from the report of 2014 which is marked as exhibit A4 before me. 

31In the introduction Ms Lechner says, and I quote,

"I note that has a prior history of offending.  Jake emanates from difficult family circumstances.  His father suffers bipolar mood disorder and is often unwell leaving Jake in a position of having to baby-sit him to ensure no suicide attempts or to placate his fanciful ideas when he is manic.  I previously assessed Jake in January 2013, and formed the view that he is an immature young man who has struggled with low mood for a number of years but masked his depression cannabis use.  On this occasion, he presents as clinically depressed and in need of psychological and possibly medical treatment.  His offending appears to be a function of his immaturity."

32She refers to the documentation available to her when she prepared the report.  She sets out your personal history and I say, it does not seem in the circumstances useful to repeat any of that material but it is there to be read if necessary.  I think it appropriate to highlight some of the matters and particularly the difficulties if I can refer to them in that way, with respect to you and the assistance you give to your father in what can only be regarded as difficult circumstances.

33Ms Lechner very appropriately and in a detailed way sets out the various issues that have arisen in that regard and I will not need to quote them in detail but simply refer to the fact in your personal history, a significant part of that personal history is really little more than detailing the difficulties you have had in trying to assist your father in the circumstances that she there sets out in some detail, particularly with respect to your father's safety.  She also refers to your sister and the fact that she has been diagnosed with a major mental illness.  Ultimately saying this;

"This family background of mental illness suggests that Jake may have a genetic predisposition for developing a mood disorder, hence he needs to be cognisant to stressors that may trigger a decline in his mood state."

34Under the heading of "Offending behaviour" notes that you expressed appropriate and significant remorse.  In her summary and opinions she says she had previously assessed you in 2013 and you continued to present as a cognitively and emotionally vulnerable young man who was significantly stressed by the decline in your father's mental health.  You currently exhibit symptoms of major depression and cannabis use disorder.  At paragraph 3, she said;

"Interviewee Jake continued to present as cognitively and emotionally immature.  Jake is evidencing symptoms of major depression.  This being confirmed by a score in the extreme range on the Beck Depression Inventory.  It is likely he has a genetic disposition for developing a mood disorder hence a psychiatric opinion is recommended."

35In consequence of that recommendation, I thought it appropriate to secure a Forensicare report and that of course is now before me as exhibit 4 and I will briefly refer to the report prepared by Dr Claire McInerney, dated 19 November 2014.  It was submitted on behalf of Mr Wilkins that the principles enunciated in the case of Verdins are applicable to him in his situation on the basis of the report of Ms Lechner. It seems to me that the report of Ms McInerney is against that submission, at paragraph 9.10;

"I cannot say with uncertainty, however, that a sentence would weigh more heavily on Mr Wilkins as a result of his mental health history than it would on any other person in normal health."

36Apart from that opinion, I agree with the other opinions and therefore do not believe that the principles that are outlined in Verdins have any applicability as submitted on your behalf.  I do however believe that in the event that a sentence of imprisonment was imposed, it would weigh more heavily on you as a result of your mental health history in your current situation than it would on any other person in normal health and I do so on the basis of the evidence before me, particularly Ms Lechner's report and particularly the chronology which is also before me and to which I will refer in a moment."

37I also accept the submission made on your behalf as to the applicability of the principles in the case of Markovic (2010) VSCA 105, that is in my view exceptional circumstances are established and that hardship would occasion to the family if you were imprisoned.  And I make that conclusion on the basis, particularly, of the material set out in Ms Lechner's report to which I have referred in part.  Particularly gathered under the heading "Personal history".  I also refer to exhibit A3, in particular the chronology regarding - the chronology of the events regarding your father's mental illness, which I have again re-read this morning and also of course exhibit A to the chronology which is also before me.  As I say, in my view, those matters do establish the exceptional circumstances required for that matter to be taken into account in your favour with respect to sentencing and I will do so.

38I also note and accept the submissions made with respect to community corrections orders at paragraph 12.4 of the written submissions, which I have found helpful.  I have also had to regard, as I say, the other materials tendered on your behalf which I have earlier set out.  In addition, I have also noted the fact that you were sentenced to a community corrections order on 7 February 2013 for offences of burglary and theft and that community corrections order was for 12 months.

39You, Matthew Barnes, are aged 24.  Your prior convictions are before me and there is an appearance in the Melbourne Magistrates' Court on 5 March 2012 in respect of which you were ordered to a community corrections order and there was a second appearance for a breach of that order on 8 February 2013. 

40There are also various other Children's Court appearances and your prior criminal record is summarised in the report of Mr Geoffrey Cummins at paragraph 5.  Mr Cummins' report is an exhibit before me.  His report is dated 17 April 2014 and he very helpfully of course summarises your personal circumstances and I intend to summarise that report with respect to those matters, and also of course, Mr Cummins had available to him the psychiatric report prepared by Dr Anthony Cidoni, which was dated 20 September 2012. 

41Mr Cummins refers initially to the matters the subject of the first indictment, which occurred in Craigieburn in the early morning of 8 December 2012, and he has had regard to the various matters surrounding that indictment.  He also notes in the report at paragraph 4 by way of general background that he is aware of you being charged in other matters which involve the matters the subject of the second indictment.  He has also had regard to your prior criminal record in paragraph 5 in a way that I do accept.  He has also had regard to a number of letters which are also before me, materials on your behalf, being letters from Dr David James which date back to 1999 and he has referred to these concerning your various diagnoses over time.  He has also read Dr Cidoni and he assessed you in relation to the breach of your community corrections order.

42He notes that you struggled - this is Dr Cidoni and Mr Cummins' summary of his report, that you struggled at school and you had an integration aid at primary school and you were disruptive in secondary school and thereafter had a number of jobs, and you were sacked from many of these jobs as a result of your playing pranks and being impulsive.  Dr Cidoni concluded that you had a history of ADHD and opined you were still experiencing symptoms of this disorder with ongoing impulsivity and hyperactivity and associated anxiety.  It was Dr Cidoni's recommendation that you should be reviewed with a view of re-establishing the prescription of stimulant medication.  As to that of course, one, if I might interpolate, should read the report of Professor Mullens from Forensicare dated 21 November 2014 who was very anxious about such a recommendation for reasons he sets out.  It goes on in paragraph 8;

"Mr Barnes was also diagnosed with the history of cannabis usage and cannabis induced psychosis, Dr Cidoni expressed the opinion Mr Barnes had some cognitive impairment which required further assessment through neuropsychological testing.  Dr Cidoni thought Mr Barnes would benefit from ongoing specialist substance abuse monitoring and treatment and opined imprisonment was likely to lead to difficulties with coping and an escalation of his anxiety.  Dr Cidoni specifically stated, "In my opinion with better treatment of his mental health issues, he would be in a position to comply with a community order".

43With regard to your personal background, you are 24, you have been born in Melbourne, you reside with your mother and two younger brothers in Craigieburn.  From the age of 18 you lived away from that address with your maternal grandmother.  You first met your biological father at age 16, she lives interstate and suffers a life-threatening cardiac problem and worked as a mechanic.  Your stepfather is aged in his 50s and lives in Broadmeadows and works as a landscape gardener.  Your mother is 52 or was at the time of the report, and is single and is employed as a carer for the disabled.  You have one brother who is aged 26, married, and lives in Sunbury and works at Star Track Express. 

44You talked about difficulties with your stepfather which are there set out and indeed another matter which was also raised.  You attended Craigieburn Primary School through Grade 6 and you talk about the difficulties you there suffered, and in particular Craigieburn Secondary College until the end of year 10 but you withdrew just prior to sitting the exams.  You completed 11 months of a cabinet-making apprenticeship and then worked in the caravan industry and then multiple labouring jobs which are there set out.

45In 2013, you attended the Epping campus of NMIT to undertake a Certificate II in Electro-technology and there are various certificates available to me which evidence that matter.  In Mr Cummins' opinion, you acknowledged you have an alcohol problem and recently committed to attending AA, remembering of course that this was a report authored in 17 April 2014.  You acknowledge you have a long-term dependency on cannabis.  In his opinion, you are diagnosed with an alcohol use disorder severe in type.  You are also diagnosed with cannabis use disorder at least of moderate severity with psychological to physiological dependency. 

46You were assessed by the psychiatrist Dr Cidoni in September 2012 with regard to ADHD.  And as I say, he and Dr Cidoni express views in paragraph 35 which Professor Mullens was concerned about.  Paragraph 37, in his opinion, that is Mr Cummins, it is highly significant you have never received any ongoing psychiatric or psychological treatment and in his view, his opinion, you have been suffering from a chronic adjustment disorder with anxiety at least from early mid-teenage years.  In his opinion, on balance there has been a nexus between your suffering from symptoms of ADHD, anxiety and your overuse of alcohol and cannabis, and on your own cannabis played a very significant disinhibiting role in your offending on 8 December 2012 and played a causative role in your inability to recall events.

47He did say in his opinion your prospects for long-term rehabilitation are favourable.  As I say, in the circumstances I asked for a Forensicare report to be prepared and that was prepared by Professor Mullens and made available to the court after he had authored it on 21 November 2014.  Professor Mullens, in his usual robust style, noted that he had had the various reports of Mr Cummins and Dr Cidoni, and his prior convictions and he says in part that you have had a major problem with alcohol and drug abuse.  You are currently attending alcohol and drug counselling and you claim to be drinking only very occasionally.  Perhaps, he said, a single drink every week or so.  You also reported you had given up cannabis last month and not smoked for four weeks and you further reported that having stopped cannabis had changed you and you then reported how that was the case in your view.  Your life was currently on hold, pending the resolution of this matter.

48Professor Mullens went on that you showed no serious abnormalities in your state of mind, there were no signs of depression although you remained anxious and apprehensive, particularly about the forthcoming sentencing.  Your only explanation for the offending was that you were intoxicated and influenced by your co-offender and you expressed appropriate regret for your actions.  In his opinion, and I quote, Mr Barnes does not currently show any signs of mental disorder though he gives a clear history of a depressive episode earlier this year.  He was treated for ADHD during childhood and adolescence.  He has had serious problems with alcohol abuse and the abuse of cannabis.  If his account is to be accepted, he has made major steps in overcoming both of these disastrous habits and I have, as I say, relied on that there being nothing to the contrary, and it seems to me that you have, on the basis of those materials at least, made significant steps towards your rehabilitation.  He concludes, as follows, that is Professor Mullens and I quote,

"Though not an accepted term in psychiatry, my general impression of Mr Barnes was that he was rather silly.  I suspect he would be easily led.  If he is to avoid future offending, it is essential that he remains abstinent from cannabis and does not return to the abuse of alcohol.  It is to his credit that he has apparently been attending his alcohol and drug counsellor regularly.  The other important element is returning this man to something approaching full-time open employment.  He appears to cope poorly with the lack of structure and organised activity."

49Of course, in addition to those matters, I have already remarked upon the fact that you spent four days in custody.  As I understand it, neither of you have been in trouble since the commission of these offences.  Indeed you have each sought to deal with your own difficulties with alcohol and drugs and you have rehabilitated yourselves, each of you, in a meaningful way which is reflected in the materials which are available to me and which are exhibits. 

50In my view, you should be each offered the opportunity to continue with the rehabilitation that you have begun, bearing mind of course that each of you have a very troubled background for a whole variety of reasons which are set out in detail in the materials available to me.  Nevertheless, I have been particularly persuaded by the remarks of the President in the case which I have already quoted.  I am on balance satisfied that you each have reasonable prospects of rehabilitation, notwithstanding as I say your prior convictions and difficult circumstances and also the offending on this occasion. 

51Since this offending, you have both mad a solid start towards your rehabilitation.  With respect to your roles in this matter, I treat you each as equally responsible on the basis of the materials outlined in the opening to which no exception was taken.  Of course I should also say with respect to you, Mr Barnes, there has been delay since that first matter in Craigieburn in December 2012, almost two years ago and of course you are entitled to have that fact taken into account in your favour and I will do so.  Clearly the delay would have caused you apprehension with respect to a potential gaol sentence, and further you have utilised the passing of that time to affect your rehabilitation which is disclosed in the documentary material and both those matters of course are to your advantage in the sentencing process, as directed by the relevant sentencing authorities.

52I must also take into account general deterrence which is very important in a case such as this, of course, involving as it does explosives and the use of them by immature young males and particularly, as was rightly pointed out in the circumstances by Ms Harper, that on one occasion at least a person was in what may be described as the near vicinity.  In your case, of course, Barnes, also there is the unwarranted intrusion on a person's house late at night in the circumstances disclosed in the opening. 

53Specific deterrence is of some relevance given the fact that both of you have prior convictions, although nothing of course relevant to the matters set out in the indictment concerning the use of the explosives.  I must also consider the protection of members of the community from you and bear in mind the likelihood of your re-offending, which I find to be problematic but diminishing in view of your commitment to your rehabilitation, certainly as the evidence currently indicates.  I have already made the various orders sought by the prosecution and not opposed by counsel on your behalf, and also of course the section 464(zf) orders with respect to both of you.  They will be orders made on the basis of your prior offending and the current seriousness of the charges, and of course you must understand that that involves wiping a swab inside your mouth and although you have contended to do so, if for any reason that becomes difficult then of course the police are entitled to use force to effect that.

54Yes, if you could both stand please? 

55These are without doubt serious offences, and with respect to you Mr Barnes, on indictment number 1, there will be an order with conviction of a community corrections order with 375 hours community work and the other conditions recommended in exhibit 5, all of which I adopt and they include a treatment and rehabilitation condition with respect to drug assessment and treatment and also alcohol assessment and treatment and also mental health and treatment.  There will also be a supervision condition, and there will also be judicial monitoring.  That is, I want you to come back, at a time which I will discuss with your counsel, regularly so that I can assess just precisely how you are going on your community corrections order. 

56On indictment number 2, there will be with conviction, a community corrections order in a term of three years, and there will be an order for 450 hours community work and again all of the conditions recommended that I have just outlined in exhibit 5 will be implemented.  My order is that those two community corrections orders are to run concurrently.  I understand, but I will hear from counsel that I am able to make orders with respect to the unpaid community work and what I want to achieve is that 250 hours of that voluntary work, unpaid community work on indictment 1 will be cumulative on the order made on indictment number 2, the effect of which will be that therefore there will be a community corrections order with conviction for a period of three years and there will be a total unpaid community work order of 700 hours.

57With respect - I'll hear from counsel in a moment as to whether that order technically accomplishes what I set out to do.  With respect to you, Mr Wilkins, there will be with conviction a community corrections order and that order will be for a period of two and a half years and there will be an order for 400 hours of unpaid community work and all of the conditions recommended in exhibit 4, and they include treatment and rehabilitation for assessment and treatment including testing for drugs and alcohol, mental health and offender behaviour programs.  There will also be a supervision condition and also a judicial monitoring condition in your case as well.

58Of course with respect to you, Mr Barnes, the four days pre-sentence detention is to be taken into account under the Sentencing Act s.18(4) as time served in respect of this matter and none other, and for the purpose of s.6(aaa) had you not pleaded guilty with respect to you, Mr Barnes, there would have been a total effective sentence of three years' imprisonment with a non-parole period of two years and that meant on indictment number 1, there would have been a sentence of 18 months with a non-parole of nine months and on indictment number 2, a sentence of 24 months' imprisonment with a non-parole period of 12 months and with respect to you, Mr Wilkins, had you not pleaded guilty there would have been a sentence of 24 months' imprisonment with a non-parole period of 12 months. If you could just please be both seated.

59MS HARPER:  The s.464 forensic sample orders, Your Honour, on reflection; both were taken, so they were retention samples ‑ ‑ ‑ 

60HIS HONOUR:  They were retention orders?  All right ‑ ‑ ‑ 

61MS HARPER:  Because it's after 14 July of this year, there's no need for an order that's automatic retention ‑ ‑ ‑ 

62HIS HONOUR:  All right.

63MS HARPER:  So there's no need for those orders to be made.

64HIS HONOUR:  Excellent.

65MS HARPER:  And I can indicate that license disqualification is discretionary on the summary offences ‑ ‑ ‑ 

66HIS HONOUR:  I think in the circumstances given the change that I apprehend in these young men, hopefully insofar as they need their licenses to get work and keep work, I trust all cyclists will be safe in future.

67MS HARPER:  Indeed.  I don't suggest otherwise, Your Honour, I just raise the because Your Honour raised it earlier.

68HIS HONOUR:  Yes.

69MS HARPER:  There are no other matters from the prosecution.

70HIS HONOUR:  Thank you.  Anything from defence counsel at all?

71COUNSEL:  No, Your Honour.

72HIS HONOUR:  Gentlemen, Mr Wilkins, Mr Barnes, all I need to say is the you and I both need to be very clear that the next three years, everything you do will be monitored by me and I am just going to hear from counsel.  I am proposing to have you each come back every three months so that I can hear what I hope to be the good news and about each of you, that each of you are in employment, that you have come to deal with your drug and alcohol problems and that you are setting out to be the young men that you, I think, have the potential to be if you choose to be. 

73If you fail to attend any of those work obligations or any of those counselling appointments then of course that all goes down and it all comes back before me.  In each of your cases, I want you to be perfectly clear that those appointments are not at your discretion, they are obligatory.  And again, I think you both understand that  you have come very close to the wind.  That you have put yourselves at great risk of a lengthy term of imprisonment, but because you have each committed to your rehabilitation in a meaningful way and over a period of time, you are to be allowed the opportunity to continue that.  But it means just that, that you need to make sure that you do not smoke marijuana, that you do not drink alcohol and I am sure you have been down this path before with lots of counsellors and the like but in the end you understand each of you are at risk, and it is your choice when you leave here today, your future is in your hands and you have got the choice. 

74You either do that, or you come back here and you go to gaol and as you understand, that is going to be for a lengthy time and I would imagine nothing less than a year just to start.  So if you need a little bit of inspiration to keep on the straight and narrow, that might serve to be it.  I hope it does.  But in any event, as I say, you have earned the chance to keep doing what you are doing because you have made that commitment to your rehabilitation.  All right, just be seated there, gentlemen.

75MS HARPER:  As Your Honour pleases.

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