Director of Public Prosecutions v Bell

[2022] VCC 1736

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MILDURA

CRIMINAL JURISDICTION

CR-19-00620

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

MILLIN BELL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	12 October 2022
CASE MAY BE CITED AS:	DPP v Bell
MEDIUM NEUTRAL CITATION:	[2022] VCC 1736

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 A. Grant	Office of Public Prosecutions
For the Accused	Mr A. Pyne	Greg Thomas Barristers & Solicitors

HIS HONOUR:

1Millin Bell, you are a 40 year old Aboriginal man and have pleaded guilty to one charge of intentionally causing serious injury.  That crime carries a maximum penalty of 20 years' imprisonment.

2You pleaded guilty to a settled indictment and I take that into account and I accept that there is appropriate remorse bearing in mind that I also accept that you have very little, if any, memory of this incident.

3It is a situation where your plea of guilty is of real value to the Crown and I will be referring to that when I go through the summary of the evidence.  There is also the important utilitarian effect of that plea of guilty.

4The situation was indicated during the course of the plea.  The damage done to this old was dreadful and it is a situation where it is quite distressing to read what occurred and to read the victim impact statements of his children.  A jury have been saved the experience of having to look at the photographs and hear that evidence.

5Also this plea of guilty comes at the time of Worboyes and a significant discount must be given for saving the system the cost of a trial.  That decision has been effectively confirmed in the decision of Barnard and it must be a significant discount that is to be given.

6Also in your situation there has now been a delay very close to five years since the offending occurred.  I am well aware of the authorities in relation to that, in particular The Queen v Merritt which I was referred to but also going back now a couple of decades to a decision of The Queen v MWH where Justice of Appeal Callaway said:

'Where there is a delay attributable to the prosecution', I am not saying that is the case here, 'or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light there may be practical considerations that require a marked degree of leniency to be extended.  The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation.  The person standing for sentence may have been rehabilitated in one or more ways.  He may have given up a form of substance abuse that contributed to the offending.  He may have reordered his life.  He may have changed morally so that, quite apart from being older, he would not be likely to re-offend.  He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment.  So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed.'

7I think that is a very significant case in the circumstances that we are dealing with here.

8In Merritt the court there pointed out the significance of a delay and the delay here is very close, if not equal to, the delay that occurred in Merritt.

9The delay here is also a situation where you were not charged until some nine months after the event and have spent a very significant period of time on quite strict bail and I will refer to that again shortly.

10After you were charged with the matters you then spent 161 days in custody.

11Insofar as your prior convictions are concerned you have previously had community corrections orders and have been able to comply with both.  Corrections have confirmed that in a report that I saw.  Your prior convictions are now of some antiquity and date back to the early 2000s.  You have clearly been of good behaviour now for many years and that again is something you can certainly call in aid in this particular situation as will become clear as I read out the summary.

12It is a situation, while calls for the application of general and specific deterrence, denunciation and appropriate punishment and generally, as was pointed out and has been pointed out Court of Appeal decisions, gaol would be inevitable.

13In this situation s5(2H) of the Sentencing Act applies and I will be referring to that in a few minutes.

14I then turn to the offending itself. 

15You were in a relationship with a Ms Jackson and on Wednesday, 13 December 2017 the pair of you had clearly been drinking heavily.  There was an argument at a house that you were at, which it appears that Ms Jackson, your partner, was the precipitator of.  Police were called and after that she abused the person again.  The two of you were drunk and were told to leave by police.

16You were followed along the street by two police officers and this is in Mildura obviously.  You walked to Ninth Street and along Pearl Avenue.  You reached Tenth Street.  You were observed as walking a bit behind Ms Jackson as you were more affected by alcohol.  You stopped and sat down on the side of the road.  The police told Ms Jackson to go and collect you and take you home as well.  Police watched the two of you walk along Tenth Street towards your home address and the two of you were not arguing at the time.  Police left you in Tenth Street.  It is very difficult to ascertain what occurred after that.

17Brian Lansburgh was at his home address on this night with his son, Alex, who was asleep.  The last thing Alex heard was around midnight when he heard Mr Lansburgh laughing and watching television.  Investigators apparently believe Mr Lansburgh had been drinking that night.  A blood test later returned a blood alcohol content of .013 which is obviously not a very high level at all.

18But in any event, the two of you were walking along the street and heading in the general direction of Mr Lansburgh's house.  Sometime between 2 am and 3 am on 14 December 2017 Mr Lansburgh, who was in his mid-80s, exited his residence at 56 Tenth Street which has a laneway to the right.  He apparently said afterwards, 'It's very rare that I go for a walk.  I remember thinking it was a really nice time for a walk'.

19The circumstances of all this cannot be determined.  Indeed Mr Lansburgh, when found, was in his underwear and socks without any other clothing and he had clearly in this situation taken a drink with him.

20But in any event, at around 2.30 am or 3 o'clock a witness, Lisa Ferguson, heard significant banging on a tin fence from the residence she was staying at directly across the road from the laneway.  She said that she heard a woman's voice in the street, possibly near the laneway.  She sounded like she was in the same vicinity as where the banging was coming from.  She apparently yelled out, 'Yeah'.

21Importantly, the witness also stated that she heard two male voices, one of which was deep and sounded like an Islander voice saying, 'Let's go'.  She heard car doors open and close and a vehicle leave the scene.

22It is clear in this situation that you have told the police you do not remember anything.  I accept that.  I will be coming to the forensic evidence in a moment.  But bearing in mind what that witness has to say and assuming that what she heard was indeed the incident of Mr Lansburgh being assaulted, your plea of guilty is of real value to the Crown as there may have been reasonable doubt involved.  But you have taken responsibility and as I indicated you have to get an additional benefit for that.

23Mr Lansburgh was assaulted to the face, head and body.  Ms Jackson sustained two cuts to her face during the incident.  One above her left eye and the other to her left cheek.  A broken drinking glass was located in the laneway which clearly came from Mr Lansburgh's residence and matched another glass in the house.

24Forensic analysis later revealed that his blood was on items of clothing that you and Ms Jackson were wearing on the night and there is also transference between the two of you.  Ms Jackson had been bleeding heavily it would appear and I do not need to go through the nitty gritty of what blood was on each of you but each of you did have blood of Mr Lansburgh which indicated that you had been in close proximity to whatever happened when he was assaulted.

25The Crown, very appropriately in this situation, have agreed that the evidence does not establish precisely what happened to the victim in the laneway.  It establishes that your co-accused, Jackson, received the injuries consistent with being glassed during the incident with the complainant.  Indeed when I read the Crown affidavit from the bail application the Crown stated that there indeed had been a glassing and on evidence that I cannot quite work out, said it was done in self-defence.  But in any event, that is just looking back at the history of it.

26It is conceded that the evidence does not establish to the criminal standard that you inflicted any particular blow or that you personally caused serious injury.

27It is not established to the criminal standard that you were the primary offender but it does establish that the victim was struck multiple times, at least three, with a degree of force.  Again as I have said, because of the bloodstaining you were close to the complainant at some point and obviously you have pleaded guilty so you are complicit in the offence itself.

28Mr Lansburgh was found at the front of Halls Memorials in Almond Avenue and he was in a very distressed state indeed.  He was sitting up against the wall.  He had blood all over his face and body and as I have said, he was dressed only in his underwear and socks.  He was unable to explain what had occurred or how he got there.  He was transported to the Mildura Base Hospital for treatment.  He was then flown to Melbourne.

29In the laneway next to his house was a large pool of blood in the gutter against a tin fence.  At that position was a broken drinking glass which I have already referred to.  I would have to find on the balance of probabilities here that indeed that glass caused the injuries to Ms Jackson.

30It is clear that Mr Lansburgh was able to make his way from that laneway down around the corner and a trail of blood was followed by police.

31At approximately 8.55 am police attended and spoke to a person who said that you and your co-accused had been in the area and that Ms Jackson had two cuts to her face.  Ms Jackson stated that she was attacked by the 'bee man' before you jumped in to help and assaulted him.

32This is where it gets very difficult.  It appears that Ms Jackson identifies the person as the bee man by the sound of his voice, not by vision.  I am unaware of what the state of lighting was in that area at the time and I will come back to that in a moment.

33Police seized clothing and indeed I do not have to go into the detail of that.  Blood spatter and transfer was found on your clothing and on that of Ms Jackson.

34You were interviewed and essentially said that as you walked home you remembered seeing Ms Jackson with blood on her face stating that it was 'All over her face, it was coming down', and you repeatedly told police you could not remember anything about what caused it and simply left it at that.  You told police that you simply could not remember.

35Jackson, in her interview and I am careful not to crossover this because she is yet to be sentenced but Jackson in her interview said that a man had attacked her from her right side with an unknown object.  She was slashed on the face with the object but did not recall what it was and used the shirt she was wearing to hold over her face to stop the bleeding.

36On that basis it seems that it is inevitable I have to, at least on the balance of probabilities, find as I have in regard to the glass.  One has very deep suspicions about all this but I have to sentence according to the factual basis that is open, not one that might give rise to speculation or suspicion.

37She said that she thought Mr Lansburgh was her backyard neighbour because he sounded like him.

38Again the Crown opening has been tendered.  A stubby holder was found in the area which had Ms Jackson's DNA profile on it.  I have already indicated that the bloodstains and blood testing made it clear that you were close to the situation.

39You were then interviewed again. There was discussion with an undercover police member where on the face of it, it might be seen as an admission but it seems pretty clear to me it was simply you repeating something that had been told to you by somebody else and I do not really take that into account.

40I then turn to the injuries sustained by Mr Lansburgh from at least three blows.  In this situation I am in no position to decide who threw those blows, how they were thrown.  I have got no indication as to the time frame.  I am aware that three blows of that force could be thrown in literally 10 or 15 seconds so I cannot work on the basis that this was a long sustained attack.  I do not know whether there was kicking or punching.  Certainly there was no weapon involved on any basis though it is clearly a savage attack albeit maybe of short duration.

41As a result of it Mr Lansburgh suffered bleeding on the brain.  Multiple facial fractures including the right upper jawbone.  Fracture involving the wall of maxillary sinuses.  Complex 10 to 12 millimetre lower aspect of the eye socket wall including the inner wall endangering vision and eye movements.  Complex nasal bone fractures.  Bruising, swelling and blood collections around both eyes and both ears.  He sustained fractured right ribs from number 3 to 12.  Fractured left ribs 3, 6 and 7.  He had multiple displaced sternal fractures, spinal bone fractures L1 to 4 and also suffered cuts and abrasions, intraabdominal bruising and problems with breathing.  He further suffered post traumatic amnesia and confusion.

42The forensic physician, Dr Schreiber, stated that, 'Even against a frail person of this age substantial force is required to produce these injuries', and he said that there were at least three blunt force impacts.  Again I am not to speculate any further than that.

43Mr Lansburgh remained in ICU in hospital for a number of weeks.  It is clear, as pointed out by Dr Schreiber, 'These injuries will have adverse consequences to his work and social life with low quality of life and that he suffered serious injuries'.  There is no doubt that the injuries are serious.  It is clear to me that without medical treatment he may well have died and I regard these injuries as very serious and at the high level of injury.

44That is what you fall to be sentenced upon and the first thing I do in regard to that is look at what is happening with your co-accused.

45She has a prior finding of guilt at least for violence and she has been sentenced subsequently twice for violence.  I am not aware of the details of those. 

46She pleaded guilty apparently after a trial.  So clearly she would not have got the same benefit of remorse and utility benefit.  It seemed to me pretty clear that she would not have got the same level of Worboyes' discount that you are to get.

47What has happened with her is that another judge of this court has given a sentencing indication that he will give her a community correction order.  My understanding is that that is to be a community correction order simpliciter.

48It is difficult in these circumstances but I have indicated that on the face of it, in my situation, I cannot determine which of you started this or how it started or how it even finished.

49I will make it clear that I would not necessarily have given such a sentencing indication but that is not the point.  His Honour is, by law, now obliged to impose no greater sentence than that.  Clearly insofar as parity is concerned I have to take all those things into account without engaging in guesswork which is a little bit difficult in these circumstances.

50In any event, delay and parity are important matters at this stage.  Delay in particular for reasons I will outline.

51I then turn to the victim impact statements of two of Mr Lansburgh's boys.  I think in this situation I will quote significantly.

52As I have indicated, I personally find what occurred here distressing.  It is distressing what happened to Mr Lansburgh but also what happened as a consequence to his family and his quality of life.

53Mr Will Lansburgh said, and I will not be reading from his brother's because essentially they say very much the same thing.  He said,

'My dad was a completely independent 85 year old.  He still drove a car.  He lived independently and took care of himself.  To me he was more like a 60 year old.  He was physically strong, had a lot of muscle on him.  He was a fantastic conversationalist.  Always interested in others and wanted to hear all about his family members.  He was happy.  He enjoyed life and enjoyed living.

The day that these vile people attacked an incident elderly man who was completely vulnerable ended by Dad's life as he knew it.  The physical injuries were shattering and he spent copious amounts of time in hospital and attending medical appointments afterwards.  He lost sight in one eye.  He was crushed by them physically and mentally.  The supports Dad needed after this assault were beyond what we thought he would ever need.  Before this he was so determined, so strong.  They decimated him.

Afterwards Dad needed 24/7 permanent care.  He turned into a shell of a person.  He lost so much muscle mass he really felt like skin and bone.  It was so shocking to see my strong and independent father that way.  I could not recognise this man.  He was suddenly a grey, frail man shuffling around.  Dad could not trust anyone and was constantly fearful.  He would spend copious amounts of time hidden away in his bedroom, something he never did before this happened.  Dad was the bloke who always wanted to be where people were.  That was instantly lost.

He appeared to have some brain damage to me.  He did not recognise me and struggled to remember things he once did without thinking.  I could no longer have a conversation with him.  He could not follow it.  He would lose track of what had been said and so he would remove himself to his room or burst into inappropriate laughter as his way of responding.  It caused so much stress for him he fully lost his ability to respond to people appropriately.  We just did not see him.  He did not want to interact.  It was too hard.'

54He then goes on to say that the stress of the entire situation has had a big impact on him as well as indeed it has on his brother.

55Taking into account that I can only give sentence on the medical evidence that has been given in terms of the nature of the injury, what has been described there is that the assault that night, however it came about or however it was carried out or however it was ended, took away the independence of an 85 year old happy man and turned him into a frightened shell of a man.  It is a dreadful consequence.  It has stolen from him his last years on earth and stolen from his children his last years on earth.

56The consequences here are very, very serious and very, very unfortunate.

57It is a situation where, as discussed and very properly put by the learned prosecutor, that is a very significant factor in this sentencing process.  However, as I have already indicated and I think everyone understands the situation, it is not determinative of it.  There are a lot of factors that have to be taken into account in the sentencing of an accused person.

58I have now been through the aspects against you and I will now go through the matters that you call in aid. 

59The assault, however it occurred, cannot be said to have been premeditated.  It is not a situation where certainly you went out looking for somebody to fight.  I have got no idea how it started and I can only sentence you on the basis of beyond reasonable doubt.

60As I have indicated, there is clearly no weapon used apparently except by the victim and I am in difficulty in terms of where I take it from there.

61Plea submissions were put on your behalf. The first thing I think I will deal with is s5(2H) of the Sentencing Act as it stood at the time.  There is a very helpful Court of Appeal decision of Fariah v The Queen in which Justices of Appeal Priest and Beach go through the provisions that are in place.

62They refer to s5(2H) which basically says that a person must be sent to prison for this offence without a community correction order unless there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under division 2 of part 3.

63That provision that they are referring to was not in existence at the time and the words exceptional and rare were not contained within it.  So it should be read that what Their Honours said when dealing with this matter referred to a much more stringent test than the one that you have to face.

64I look at in determining whether a substantial and compelling circumstance is part of this intention which I do take into account and whether the cumulative impact of the circumstances of the case would justify departure from such a sentence.

65These matters were first referred to, as I understand it, in the decision of Farmer but I do not need to go through all that.

66At paragraph 24 of the decision of Fariah inter alia the Court of Appeal said,

'We accept the submission of the applicant's counsel that s5(2H)(e) (which you rely upon) does not impose a burden on an offender to prove on the balance of probabilities the existence of substantial and compelling circumstances that are exceptional and rare.'

67I have already said I do not have to look at exceptional and rare.

'That is an evaluative judgment for the judge to make once the relevant underlying facts have been established in accordance with settled principle. We also consider that the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare. Every case will necessarily depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception in s5(2H)(e).'

68Then it went on to say in that case they had been enlivened.

69That is the principles that I need to apply as to whether a combination sentence can be given in these circumstances.

70During the course of the sentencing indication I made my views clear and it is my view that there are substantial and compelling reasons.  I will be outlining those as I go through the matters that relate to you.

71Your counsel submitted that the delay was sufficient in itself and I think that is probably correct.  Whether that be so or not there are a number of other factors which, in my view, make it clear to me at least that the exception does apply.

72You, as I have said, are an Aboriginal man.  You were brought up in a happy family.  Your Aboriginality comes through your mother, who I understand is, amongst other nations, Wamba Wamba.  You hail from around the Swan Hill area. 

73You were, it seems, a happy child until you were in your mid-teens.  Around about that time you started to use substances and started to be aggressive.  You were seriously assaulted, it would seem, and after that a reference from your mother says that you started to behave badly, to put it that way.

74Your parents separated when you were in your mid-teens and that clearly seems to have had a deleterious effect upon you.

75Around about that time, 15 or 16, you started to use heroin, you started to use other drugs and you used them for some period of time.

76To your credit you were able to turn your life around.  You went to Western Australia and worked over there and worked there successfully for some period of time.  You started a painting apprenticeship.  You came back to Victoria and you completed that apprenticeship and without offending you were able to keep working all the way up until this occurred.

77Since this has occurred, in the Swan Hill area where your bail requires you to be, painting during COVID became a fairly precarious occupation and to your credit, you commenced work and continue to work at the local abattoirs.

78I have before me two references from the abattoirs which are very supportive of you.  One from Mr Boucher says,

'I'm a cold store manager at Woodward Foods, Swan Hill and have known Mr Bell for the last nine months.  In this time Mr Bell has demonstrated his diligence not only to his task being undertaken but also to the tasks assigned to other staff members in his team.  Mr Bell is a highly regarded member of the logistics team in aspects including but not limited to the following.  Training and execution of tasks and meeting critical KPIs.  Forecasting consignments.  Ensuring fellow staff members are working in a safe and productive manner.  Mr Bell is a calm operative and has the ability to breakdown difficult situations and work out the best methodology to achieve the results needed.  Mr Bell has great potential for future growth in the logistics sector.  It is my duty and pleasure to ensure that he has every opportunity to achieve this.'

79That material was also confirmed by a Mr Rudder who was the plant manager.

80So your work history is very good for someone with your difficulties as a teenager and your rehabilitation has been already carried out in my view to very large effect.

81I have already mentioned a number of the matters that your counsel puts in his plea of mitigation.  The value of your plea.  I accept that.  Your limited criminal history.  I accept that.  Your history of compliance with sentencing orders.  I accept that.  Also the delay which has occurred in this matter.  I accept that.  Not only the situation of prospects of rehabilitation as he described it.  In my view, there is a demonstration of, in fact, rehabilitation in the past, not just necessarily what will occur.

82It is clear to me that on this night, whatever the circumstances were, you were heavily intoxicated.  That does not excuse the situation at all but it does put it into a context of, I think, this sort of behaviour for you is out of character.

83It may not be out of character for your then partner but that is a matter for another judge, not for me.

84I have indicated that you were not charged for a period of nine months and you were then charged and were in custody for 161 days.  Whilst you were in custody your father died.  I understand and I do not profess to be an expert at all but I understand from many years in Koori Court that to be in custody when sorry business should be taking place is a very significant punishment indeed and is one that can take quite a lot of coming back from.

85But in any event, when you were released you were bailed with rehabilitative conditions.  You reported to support services from Mallee District Aboriginal Services with whom you engaged and I have read a very encouraging report from them.

86As I have indicated, you have a strong employment history.  Indeed at the Swan Hill abattoirs at the moment you are working night shift in cold storage five days a week with additional shifts sometimes on Saturdays.  As I pointed out, you are a qualified painter and worked in that capacity for 15 years.

87Your current circumstances are stable again which is encouraging with your background and with your difficulties.  You live with your mother in Swan Hill.  She is a respected community Elder.  You live with her and her adopted daughter.  You have a son, Preston, who is 10 who you see on holidays.  You have a daughter, Willow, with the co-accused who is now 18 months old and you see her regularly.

88You have taken steps to control your drinking.  Clearly drinking has been a problem for you in the past and as I understand it your father was indeed an alcoholic.

89You engage with MDAS, with the Mallee District people and whilst you may not have been totally abstinent you have clearly been able to get your drinking very much under control.  I have received a report from Corrections about that and they are satisfied that you are doing very well with that but if a community correction order is to be given they still think that an alcohol assistance condition should be in place.

90You are further supported by extended family in Western Australia and in Victoria you have, as I mentioned, your mother and also your cousins.

91Again, this was something that was referred to when you were given bail in the Supreme Court and you wanted, if I might put it that way, that bail by not offending again and by getting on with your life.  Often people in your situation completely drop their bundle and do nothing.

92It is pretty clear that, I mentioned the sorry business, that you have been on bail with fairly significant conditions for an extended period of time.

93I think it is also a situation where in the future I am confident that - you are described by Corrections, I think, as a medium risk of reoffending.  If you can keep off the grog, to use the vernacular, I think your risk of reoffending is very low indeed.

94So overall I have an Aboriginal man who is 40 years of age who became involved with drugs and misbehaviour in his mid-teens and acquired criminal convictions.  You have been able, since that time, to rehabilitate yourself and apart from this one dreadful night you have solid work.  You have stable accommodation.  You have commitments, that is to your mother, to your child or children and indeed, in one sense, also to your partner.

95There has been a very long delay which is not attributable to the Crown.  I accept that.  Your counsel describes your bail conditions as being house arrest and I think that is probably a fair description.

96I have been given comparative cases by the Crown and the difficulty with comparative cases in a situation like this is that they do vary.  I have read all of those.  I do not think it necessary to go through them in detail.

97Those cases often involve a weapon or a very extended assault.  I just cannot make any of those findings.  They all seem to me clearly distinguishable from the situation that you are in.  I am also very much aware obviously of the principles outlined in the decision of Boulton which was subsequently confirmed by cases such as Bradshaw.  That it is a situation where courts should be alert to not destroying rehabilitation when it is well and truly on the way.

98In those circumstances I refer to the decision of Tongoonin where Justice of Appeal Neave referred back to the DPP v Leach.  She quoted from that case.

'It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped.  That, after all, may be a decision which redounds very much to the benefit of the community.'

99She further went on to say, as President Maxwell said in DPP v Tokava.

'A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community's interest will be best served by that course.  This court should seek to promote public understanding of the fact that apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.'

100It seems to me that one does occasionally come across those comments that are very pertinent in this particular situation.

101As I said, when I take into account all the factors here and the limitations placed upon it I am satisfied that there are substantial and compelling reasons and I am quite comfortably satisfied of that.

102Some may see the sentence I am to impose as lenient.  I can understand that and I can certainly understand that the children of Mr Lansburgh would indeed think so.  But as I hope they can understand I have to sentence according to law. 

103You have to go to gaol for conduct such this and I have already indicated that the decision so far as Ms Jackson is concerned may not have been a decision that I would have made.

104But the situation is that you have been in gaol for 161 days, you have been released and you have been able to behave yourself ever since then.

105I think it is a set of circumstances where there is an element of mercy to be applied despite the dreadful consequences of what you and Ms Jackson, were somehow or other between you, able to attain.

106Accordingly in those circumstances on the charge on intentionally cause serious injury you are sentenced to imprisonment for a period of 161 days.

107I direct that 161 days be reckoned as having been served under that sentence.

108As well as that, you will be placed on a community correction order with conviction for a period of 42 months.  I have had you assessed and you have been found suitable.  There will be 300 hours of community work and I impose conditions of supervision and the alcohol condition.  I direct that all hours spent on programs or the like can be deducted from the work hours described.

109As people would understand in a situation such as this supervision requires you to attend.  People keep an eye on you and it also puts you in a situation if things do start to go wrong with your life you have got people that you can go and talk to.  It is a significant disposition and will curtail your freedom of movement for a significant period of time.

110In all those circumstances, as I have said, some people may see it as lenient but I see it as the appropriate disposition.

111I also point out that I am aware that the Crown submission is that the only suitable disposition is a head sentence with a minimum term and I certainly take that into account.  But in the overall circumstances here I do not believe it is appealable error and accordingly that is the sentence I impose.

1126AAA, it is extremely difficult in a situation such as this because had there been a trial all sort of things could have happened.  You might have even been acquitted.  But for these purposes I will say that 6AAA, 12 months' imprisonment with a CCO to follow which I do not think is a proper 6AAA but it will have to do.

113MR PYNE:  If Your Honour pleases.  There's a disposal sought.

114HIS HONOUR:  I have already signed.  I signed that last time I think.

115MR PYNE:  Yes, Your Honour.

116HIS HONOUR:  Yes.  Yes.  Yes.  So if you just approach the dock.  If you wouldn't mind going down with it, Mr Pyne.  Thank you.

117MR PYNE:  Yes, Your Honour.

118HIS HONOUR:  All right.  I will sign that in a moment.  Just stand up for me, Mr Bell, just for a moment.  All right.  You understand that if something like this happened again you are in - - -

119OFFENDER:  Yeah. 

120HIS HONOUR:  - - - and for a long time, all right?  You have done well since.  You have been doing well for years previously but I have no doubt you understand the dreadful consequences of what happened that night, whatever may have happened.  As I said, some people might see it as lenient but I am giving you that chance.  It is up to you to - and I have got no doubt that you can do it.  It is up to you to comply with that, all right?  If things do start to go wrong, particularly in terms of how it works and things like that get in touch with your lawyers or get in touch with Corrections because it can always be brought back to be extended or whatever.  So do not - if things start to go a bit pear shaped do not put your head in the sand, all right?

121OFFENDER:  Yeah. 

122HIS HONOUR:  Something can always be organised even if it means it goes for longer.  All right.  All right.  Well that is signed by me and is now in place.  There are no other orders I need to make?

123MR PYNE:  No, Your Honour.

124HIS HONOUR:  No, right.  Yes thanks, Mr Grant.  Thanks, Mr Pyne.

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