Director of Public Prosecutions v Bennett

[2019] VCC 179

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18 02026
CR 18 01874

DIRECTOR OF PUBLIC PROSECUTIONS

v

JORDAN BENNETT
JACOB HOBAN

‑‑‑

JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2018
DATE OF SENTENCE:	6 February 2019
CASE MAY BE CITED AS:	DPP v Bennett & Anor
MEDIUM NEUTRAL CITATION:	[2019] VCC 179

REASONS FOR SENTENCE
‑‑‑

Subject:  CRIMINAL LAW

Catchwords:  Armed Robbery; Using petrol as offensive weapon; Material distinction drawn between offenders; Sentence of 6 years imprisonment with 4 year non-parole period on principal offender; Other offender sentenced to 4 year CCO with 400 hours community work.

Legislation Cited:                  Sentencing Act 1991 (Vic)
Cases Cited:  R v Verdins & Ors (2007) 16 VR 269

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson	Office of Public Prosecutions
For Accused Bennett	Ms G. Donohoe	Victoria Legal Aid
For Accused Hoban	Mr W. Barker	Balmer & Associates

1HIS HONOUR:  Jacob Hoban and Jordan Bennett, you can remain seated.  You have each pleaded guilty to one charge of armed robbery in that at Bayswater.  On 5 December 2017 you both robbed a shop assistant of certain property and at the time had with you an offensive weapon namely petrol.

2You, Jordan Bennett, have additionally pleaded guilty to one further charge that on 31 January 2018 you possessed a drug of dependence, being a small quantity of methylamphetamine. 

Offending

3At the hearing of this matter the prosecutor relied upon a summary of prosecution opening dated 30 November 2018. That summary sets out the details of your offending.  In short compass it involved the following:

4You met each other about one month before this offence through the dating application Grindr. You quickly formed a relationship and spent a good deal of time together. 

5On the evening of 5 December 2017 you both travelled to Bayswater and parked your car in a residential area about a kilometre from the Club X adult store located at 25 Scoresby Road, Bayswater.

6You both walked from the car along Railway Parade to Mountain Highway and, then, onto Scoresby Road. You walked past the Club X shop on the opposite side of the road and, then returned back towards the store.

7At 11.52 pm you both entered the store via the side entrance.  You, Hoban, were wearing a beanie, leaving your face exposed, and you carried a bag over your shoulder.  Inside the bag was a plastic bottle filled with petrol.  You, Bennett, were wearing a dark blue hoodie and a light blue baseball cap also with your face exposed.

8The only person inside the shop was the female victim.  At the time you both entered, she was standing behind the counter at the computer.  You, Hoban, walked directly towards the counter, removed a sports water bottle containing petrol from your bag.  The victim said, "Do you know what you are after?  We are closing soon," and you responded, "Yes, I know what I want."  In a thrusting motion you then doused the victim's chest in petrol from the bottle.  The victim immediately recognized the smell as petrol and was understandably terrified.  In response, she turned and ran into the back room of the store and kicked the store safe shut.    You, Hoban, then jumped over the counter and chased the victim into the back room. 

9The prosecution accept that, at the time of entry to the store, you, Bennett, were not aware of the bottle of petrol in Hoban's bag.  When Hoban jumped over the counter you remained in the public area of the shop and did nothing.

10In the back room the victim screamed, "Leave me alone, leave me alone."  You, Hoban, stated in response, "Do what I say or I am going to light you up."  

11You further threatened the victim by stating, "I’ve brought cable ties and I will use them on you if you do not cooperate." You, Hoban, then moved the victim back towards the service counter and yelled at her a number of times to "open it", referring to the cash register.  You, Bennett, remained on the public side of the front counter.  You did nothing and said nothing.

12The victim opened the cash register with a key and you, Hoban, repeatedly yelled at her, "put it in," meaning put the cash in the bag.  As this was done, you, Hoban, said to the victim, "I want the amyl," referring to amyl nitrate.  

13Although there was no amyl nitrate present in the store, the victim pointed to similar products in a glass cabinet at the service counter. You, Hoban, yelled at Bennett to get those items out.  However, you, Bennett, simply stared at the cabinet without taking anything.  

14You, Hoban, then, instructed Bennett to monitor the CCTV on the computer screen at the service counter to see if anyone else came to the shop. The victim suggested that the front door should be locked and, in what appears to be some frustration at Bennett's lack of participation, you, Hoban, shoved Bennett and yelled at him to go and "lock the fucking door". 

15You, Hoban, then, took the victim back to the rear room and yelled at her to open the safe.  She told you that it was on a time delay and would take some time to open.  You responded, "you had better hurry up." 

16As this was said the victim struggled to open the safe because she was panicking and was also experiencing difficulties in breathing because of the fumes from the petrol on her clothing.  

17You, Hoban, asked the victim where the CCTV recorder was located and she told you that it was recorded directly to head office.  You took a USB drive from the media unit above the safe, believing that it was the CCTV recording.  However, that device actually contained pornographic material.

18Once the correct combination had been entered into the safe the victim told you, Hoban, that it would take a few minutes before the safe would open.  At this time the victim removed her outer top because of the effects of the petrol fumes.

19You, Hoban, then, instructed the victim to collect all of the boxes of digital scales near the safe.  She was told to fill your bag and other plastic bags with the scales and the items she had said were similar to amyl nitrate.        You, Bennett, continued to remain passive and did not participate.  

20When the safe indicated that it was ready to be opened the victim asked you, Hoban, "You promise you will not hurt me when I open the safe?"  You responded that you would not.  She was, then, directed to remove the money from the safe and place it in the bag.

21Once the money was loaded you, Hoban, then, brought the victim back towards the service counter.  You, Bennett, were hunched over that counter with your head down as you had been for some time.  You both, then, walked with the victim to the front doors, before running out of the store via the side entrance.  The victim called 000 immediately.

Investigation

22On 7 December 2017, you, Bennett, told a friend that you and Hoban had held up an adult store in Melbourne and stolen cash, scales and amyl nitrate.  You, then, gave your friend a bag containing the clothing that you had worn during the armed robbery.  He, then, disposed of that clothing.

23On 31 January 2018, police attended a 301 White Road, Wonthaggi, where you, Bennett, were living at that time.  You were arrested and sets of electronic scales that had been stolen in the armed robbery, Hoban's mobile phone and a small quantity of methylamphetamine were located in the house.

24In your subsequent record of interview, you, Bennett, made a full confession to your involvement in this offending. You explained the following.  

·That on 5 December 2017 you and your boyfriend had robbed Club X on Scoresby Road.

·That earlier that same night, Hoban had suggested that you "go rob some place".

·You told police that you did not think Hoban was serious.  

·You said you had taken methylamphetamine intravenously prior to the offending.

·The pair of you had inspected other locations, such as bottle shops, before deciding to rob this shop. 

·You told police that Hoban had pulled out a squeezy bottle full of petrol and sprayed it on a person before stating, "I have got a lighter and I will set you on fire." 

·You described yourself standing "like a stunned mullet" during the time that the armed robbery was carried out.

25As to, you, Hoban, on 1 February 2018 police attended your former partners address and located a mobile phone that you had used.  The phone contained photographs of items stolen in the armed robbery, together with outgoing text messages you had sent in an attempt to sell the property depicted.  You were, then, arrested on 13 February 2018.  You made a no comment record of interview.

26At the plea hearing the prosecutor tendered and played the CCTV footage which depicted what happened during the armed robbery.  The footage runs for 14 minutes and, whilst the footage is consistent with the events described in the summary of prosecution opening, viewing that footage emphasizes the very lengthy time over which the victim was subjected to this ordeal.

Victim Impact

27No victim impact statement was provided to the court and whilst it is plain that the victim behaved with remarkable courage and composure, I have no doubt that she was nonetheless terrified by the prospect that, you, Hoban, could set her alight at any moment.

28I am readily satisfied that putting the complainant through that experience would have caused her lasting harm and you should understand that the impact your offending has had on this victim must be an important consideration in the formulation of the sentence that I must now impose.

Personal circumstances

29I will now turn to your personal circumstances.

Jacob Hoban

30You, Jacob Hoban, were born 10 January 1985 and are now 34 years of age.  Significantly, your parents attended court at your plea hearing and they provided a written reference and remain supportive of you.  That support, in my view, enhances your prospects for rehabilitation.

31You appear to have been brought up in a caring, family environment where your parents both worked hard to provide for you.  You grew up around the Ferntree Gully and Emerald areas.  Both your primary and secondary schooling was somewhat difficult.  You were a victim of constant bullying about your weight and although you say you did well academically, you left at the end of Year 10, essentially, because you were not enjoying school.

32As was emphasized on your plea, you have a solid work history.  At the age of 16 you commenced working in a gutter cleaning business.  When your family moved to Wonthaggi, you started work in the local Woolworths.  You did that for about 18 months or so.  You left there to work at a local abattoir, but it closed shortly after you started.

33You, then, started work with a cleaning company in Melbourne and for the next two years travelled to and from Wonthaggi each day to work in Melbourne.  At the age of 21 you moved to Melbourne and commenced working in an abattoir in Brooklyn.  You had been working there for about three years when you were sentenced in this court for sexual offences to a total effective sentence of three years and nine days with a non-parole period of six months.

34It appears that offending was detected in the context of you revealing to your sister-in-law that you were bisexual.  The victims were related to you, although, you continue to maintain that you did not offend as alleged.  I was told that you served eight months of that sentence before being released on parole.  You completed the lengthy parole period that followed without breach.

35After your release you worked in a timber frame factory in Wonthaggi for about 18 months and a further 12 months at another abattoir.  You were then returned to custody in August 2013 and served a six month sentence for what was described as drug related offending involving offences of dishonesty and violence.  When you were released from that sentence you worked in a number of roles, including building trusses and forklift driving.

36When you turned 30 you started your own business as a handyman and labourer using Air Tasker to find work, such as handyman repairs, mowing lawns, rubbish removal and the like.  On your plea a compilation of the positive reviews you had received for your work was provided and it is clear that you showed a good deal of enterprise in establishing this business.  Unfortunately it deteriorated due to your relapse into further drug use.

37As to your problems with drugs, you were apparently exposed to some illicit drug use at an early age through your half-brothers who were much older than you.  You first started experimenting with drugs when you were about 14 years of age and used cannabis consistently until your mid-20s.  You also tried methamphetamine when you were about 14 years of age and after your first prison sentence your abuse of that drug escalated.

38Over time, that methamphetamine abuse affected your capacity to maintain employment and led to much of the offending that comprises your criminal record between 2012 and this offence.  That drug abuse also interfered with the relationship you had formed with a young woman after your release from prison in 2014.  The arguments and breaches of intervention orders during 2017 are largely explained by your continuing drug abuse.

39You told your assessing psychologist Mr Stephen Gault that by the time of this offence, you were using around half a gram of ice per day.  You had fallen behind in payments for your work vehicle and you owed money for drugs.  In that setting it was said you committed this offense, in order to try and repay those debts.

40As to the offending, itself, Mr Barker who appeared on your behalf acknowledged that you were the principal offender.  He also quite properly acknowledged that the use of petrol as a weapon was a particularly serious feature of this offence.  He pointed to some aspects of your offending, such as the lack of effective disguise in premises which were very likely to have CCTV, as indicating a lack of sophistication.

41He further submitted in mitigation that it was not alleged that you were actually carrying a lighter at the time and it could not be said, therefore, that you had the capacity to carry out your threat to light the complainant on fire.

42I should indicate to you, now, that I do not find that submission persuasive.  What you did was calculated to instil terror in the victim so that she would comply with your demands and, as Mr Barker acknowledged in complying in the way that she did, the victim must have believed she was at risk of being set alight.  No doubt that was the point in dousing her with petrol and what mattered, in my view, was what you caused the victim to believe, not whether you could in fact carry out your threat.

43You have now been in custody, at least in respect of this matter, since 25 February 2018.  Having served an earlier short term of imprisonment after this offence, but before being charged, I accept that you have been trying to use your time in custody as productively as you can by keeping fit, working in the meat department and completing most of the courses available to you whilst on remand, including cookery classes, computing, using MYOB software and other courses related to substance abuse.

44In your psychologist Mr Gault's assessment you do not appear to suffer from any particular psychological condition, save for what he describes as a diagnosis of methamphetamine use disorder in early remission.

45At paragraph 53 of his report of 30 October 2018 on the question of your risk of reoffending, Mr Gault states,

"Mr Hoban scores moderately on the HCR-20, a standard psychometric instrument used to assess risk of reoffending.  The factors I consider to be a primary significance in assessing Mr Hoban risk of reoffending are his prior criminal history, the fact that substance abuse has been implicated in his offending both on this and on previous occasions, and that he has not demonstrated the capacity to remain abstinent of substances for a significant period when not incarcerated. Apart from completing some short courses on substance use while in prison, and several short term treatments with therapists in the community, Mr Hoban does not appear to have engaged with any substantial ongoing treatment for his substance abuse.  If Mr Hogan can effectively engage with treatment for his substance abuse, or cease it through personal resolve, then his likelihood of reoffending would be substantially reduced.  Until he can demonstrate a significant period of abstinence from substance use while living in the community, I would rate his risk of reoffending as moderate to high."

46As to your prospects for rehabilitation, Mr Gault states at paragraph 54,

"There are a number of factors I consider potentially encouraging in regard to Mr Hogan's prospects of rehabilitation.  Mr Hoban is not unintelligent.  His comprehension and use of language is indicative of at least average intelligence, higher than would be expected of someone with a year ten education.  In spite of losing employment on numerous occasions due to substance abuse, Mr Hoban has had a reasonably consistent work record, maintaining a variety of jobs for extended periods.  Mr Hoban claims that the seriousness of his current offending has given him pause to reflect on the consequences of his substance use and associated criminal behaviour.  Mr Hoban says he has recognised the need to cease associating with other people with substance use problems.  Mr Hoban states that his parents remain supportive of him and he has several friends in the community who do not use substances.  It remains to be seen whether Mr Hoban can overcome his substance abuse problem when not incarcerated and whether his current offending has 'woken him up' as he claims and produced a change of attitude.  If that is the case, Mr Hoban will have to demonstrate it through his behaviour after his release from prison.  Overall, Mr Hoban has the capacity and skills to rehabilitate himself and lead a constructive life."

47Mr Barker emphasized that you had indicated your preparedness to plead guilty prior to committal and that you had never disputed you were the main aggressor.  He said you had shown remorse in entering a plea at what should be regarded as an early stage of the proceedings.  You had also demonstrated remorse through your letter of apology and had shown some insight into the impact this offence is likely to have had on the victim in your comments to Mr Gault.  

48He submitted that the appropriate disposition in your case would be a term of imprisonment, combined with the imposition of a Community Corrections Order.  Taking into account your pre-sentence detention that would amount to an effective sentence of 21 months served before commencing the Community Corrections Order.

Jordan Bennett

49Turning to you, Jordan Bennett, you were born on 7 January 1992 and you were 25 at the time of the commission of this armed robbery; you are now 27.  You have only one finding of guilt constituting your prior criminal history and that matter involved offences of criminal damage and failing to answer bail which occurred in the context of the breakup of your only long term relationship.

50In October 2017 you were placed on an adjourned undertaking to be of good behaviour in respect of those offences.  Your father and mother have both suffered mental health problems.  When you were eight your parents separated, due to your father's psychiatric difficulties.  You had no real relationship with your father, but remain close to your mother.

51Your mother re-partnered, however, the relationship she formed became violent and abusive.  When you were about ten or eleven years of age you, your mother and younger brother were forced to flee your home and moved to a different town to escape him.  When you were 14 years of age you essentially became the primary carer of your 10 year old brother, due to your mother's mental health conditions at the time.  You left school at that time and started work to support them.

52Your schooling was difficult.  You were hyperactive, distractive and could be disruptive.  You were bullied because of your sexuality.  You were medicated to Grade 6 for Attention Deficit Hyperactivity Disorder.  You describe yourself as being of average intelligence.

53Since leaving school you have worked as a tyre fitter and labourer in an automotive shop.  You also worked as a chef and in other aspects of hospitality, including a two year stint at a resort on Phillip Island. You appear to have found it difficult to sustain employment because you have significant memory problems that often result in you forgetting to perform basic tasks.

54Between the ages of 15 to 25 you were in a long term relationship with a man named Graham.  That relationship broke up in 2017.  As I indicated earlier, you met your co-offender Mr Hoban through Grinder in about October 2017.  You quickly became close.  You started using methamphetamine for the first time with Mr Hoban.  Initially recreationally, but your use quickly escalated to frequent intravenous use.

55Your assessing psychologist Ms Carla Ferrari in a report of 2 December 2018 suggests that your mental state went through an acute deterioration in the lead up to the commission of this offense in that you had experienced the breakdown of a significant long term relationship and had taken to methamphetamine use in the new relationship as a means of managing your emotions.

56She found that you showed no evidence of a personality disorder or an anti-social thinking style.  Your lack of prior criminal history supports this.  In addition, you presented with significant mental health conditions including post-traumatic stress disorder and a major depressive disorder.  In essence, you were a young man with a very fragile and vulnerable mental state.

57The combination of your mental health problems were submitted sufficient to invoke the application of the principles in Verdins case.  It was submitted that, properly analysed, your moral culpability should be reduced and that there should be some moderation of general and specific deterrence.

58I should say at this point that having regard to Ms Ferrari's findings and the nature of your role in this offending, which I will explain in a moment, I do accept that the Verdins principles are engaged and that your moral culpability is lessened and that there should be some moderation of general and specific deterrence.

59Relying on the following passage from Ms Ferrari's report, it was also submitted that prison would be more onerous for you.  Ms Ferrari stated that paragraph 76 of her report as follows:  

"It is my professional opinion that Mr Bennett's recovery is highly contingent on the outcome of this sentencing.  It would be detrimental both to his mental health and safety for him to be placed in custody and there is real concern that this would exacerbate his pre-existing psychological symptoms which are already within the moderate to severe range.  The effect that a custodial sentence would have on his fragile mental state should be considered in sentencing, as well as the interruption to his current treatment and the limited access he would have to a psychologist who can provide regular trauma focused interventions within the prison system.  There is research which demonstrates that PTSD which is left untreated can worsen symptoms and prolong the effects of the disorder, as well as contributing to the development of comorbid mental health conditions.  There is also no scope for him to address these ADHD symptoms in prison through, either, psychotropic medication nor psychological intervention, given this is a particularly niche area in the adult population." 

60I should also say that I accept what Ms Ferrari says in that regard. 

61Ms Dempsey, who appeared on your behalf, emphasized your lesser role in the commission of this offence.  I should say, now, that, in my view, there is substantial evidence which objectively supports her submission that you played a significantly lesser role in this offending.

62The prosecution accepted that you did not know of the bottle of petrol when you entered the shop.  Mr Hoban entered the shop first and threatened the complainant, whilst you remained silent and passive.  Mr Hoban dealt with the complainant throughout whilst you remained at a distance and did not participate.  Standing "like a stunned mullet" was how you described it in your record of interview.

63Mr Hoban undoubtedly directed these events.  At one point Mr Hoban yelled at you to get items from a glass cabinet, but you simply stared at the cabinet without grabbing anything or, indeed, doing anything.  Apart from watching the computer screen as you were instructed, you did very little.  For a good deal of the time during the incident you were hunched over the service counter with your head down.  At one point Mr Hoban shoved you, it appears out of frustration at your lack of participation and yelled at you "Lock the fucking door."

64You made a full confessional record of interview describing the discussions that led to you becoming involved in the robbery as something you did not think was serious, until it actually occurred.  Your demeanour is consistent with that assertion.

65My assessment of the CCTV footage confirms your lesser role.  Indeed, it might be said that your behaviour during this offence was so unusual that it is unlikely that you contributed very much, if at all, to the fear felt by the victim throughout her ordeal.

66I am satisfied that the matters relied upon by Ms Dempsey in combination with your relative lack of prior history and precarious mental health justify a material distinction in the way that you should be dealt with in comparison with your co-offender.  Ms Dempsey also relied on your early plea of guilty that when regard had to the factual basis for sentencing accepted by the Crown.

67Together, with what she argued, was your very strong remorse.  Ms Ferrari's finding that you were a low risk of reoffending and your performance on bail since your arrest.  She submitted, in those circumstances, your offence was able to be dealt with by way of a Community Correction Order.

68The prosecutor Mr Cookson pointed to the aggravating features of the offending, in particular, the terrifying ordeal the complainant was put through which, as I have said, lasted 14 minutes.  Contrary to defence submissions he suggested there was an attempt to conceal identity albeit rudimentary and that Mr Hoban had tried to take the CCTV footage which would have identified him. 

69Mr Cookson submitted that in respect of you, Mr Hoban, the only appropriate disposition was the imposition of a term of imprisonment with a non-parole period, having regard to your role, the extended duration of the offending, the use of petrol as a weapon, the impact that must have had on the complainant and your prior criminal history, including the fact that you were already on a community corrections order at the time the offence was committed.

70In respect of Mr Bennett, no particular issue was taken with Ms Dempsey's submissions. As I understood Mr Cookson's position, a community corrections order of appropriate length and severity was said to be open in the circumstances.

71As to my findings, although I accept much of what was submitted on you, Jacob Hoban's behalf, I am not persuaded that it is appropriate to impose a community corrections order in combination with imprisonment.  Your offending is simply too serious and I am not satisfied that such a disposition would adequately emphasise general and specific deterrence nor would it sufficiently punish and denounce your conduct.

72The complainant in this shop was alone late at night and very vulnerable.  In responding to your violence, she showed extraordinary composure.  But any person in her position would, no doubt, have been terrified.  

73I explained earlier in these remarks that the impact of your offending on her is an important matter to be taken into account in formulating sentence and that factor tells very much against the imposition of any penalty other than a term of imprisonment with the fixing of a non-parole period.

74Mr Hoban, would you stand, please? 

75On the one charge of armed robbery you will be convicted and sentenced to be imprisoned for a period of six years. I will fix a non-parole period of four years. I will declare pursuant to s.18 of the Sentencing Act 1991 (Vic) that you have served 347 days by way of pre-sentence detention and I will cause that declaration to be noted in the records of the court.

76I will further declare pursuant to s.6AA of the Sentencing Act but, for your plea of guilty, I would have sentenced you to a term of imprisonment of seven years and six months with a non-parole period of five years and six months; and I will cause that declaration to also be noted in the records of the court.  You may be seated, please, Mr Hoban.

77In respect of, you, Jordan Bennett, you are in a very different situation.  Whilst involvement in an armed robbery to any degree is an extremely serious matter, I accept Ms Dempsey submissions as to your role and as to your personal circumstances which, taken in combination, are exceptional.  It follows that a very different disposition may be imposed in your case.

78You have been assessed by the Office of Corrections to determine your suitability to undertake a community corrections order.  The assessment report states as follows, in part,

"Mr Bennett engaged well during the assessment process confirming his commitment to engage with Community Corrections Services to reduce his risk of any further offending.  Mr Bennett demonstrated some remorse for the offending behaviour and advised of mental health barriers that would impact his capacity to participate in unpaid community work.  Mr Bennett indicated his understanding that he will need to prioritize his scheduled appointments and in case he is not able to attend, to provide a reasonable excuse."

79Mr Bennett, in respect of both the charge of armed robbery and the possession of a small quantity of methylamphetamine, you will be convicted and, with your consent, you will be placed on a community corrections order for a period of four years, conditional upon you performing 400 hours of community work, undertaking rehabilitative treatment in respect of drug abuse, undertaking rehabilitative treatment in respect of your mental health, that you be supervised by the Office of Corrections and that you be subject to judicial monitoring. I will declare, further, pursuant to s.6AAA of the Sentencing Act that, after your plea of guilty, you would have been sentenced to a term of four years with a non-parole period of two years.  You may be seated, please.  

80Mr Bennett, I must explain to you that as part of this order, before you consent to it, you should understand that it will require that you not commit any offence; it will require you to report to and receive visits from the Office of Corrections; it will require that you let them know of any change of address or job.  You must not leave the state of Victoria without permission from them and you must obey all of their lawful directions and instructions.  The order requires that during the period of four years you perform 400 hours of community work.  200 hours of the treatment and rehabilitation that you will undertake are to be counted as hours of unpaid community work, but you will also be required to perform an additional 200 hours of unpaid community work in the community.

81You must undergo supervision and you must undergo rehabilitative treatment in respect of both drug abuse and, indeed, your mental health problems. You will also be required to return and appear before me for the purposes of being monitored on 25 November 2019 at 9.30 am.

82Mr Bennett, you should understand that if you breach any of those conditions if you agree to this order, you are liable to be brought back before me and resentenced in respect of this matter and for the breach of the community corrections order.  Do you understand that?

83OFFENDER BENNETT:  Yes, Your Honour.

84HIS HONOUR:  Do you agree to undertake this order?

85OFFENDER BENNETT:  I do.

86HIS HONOUR:  I will have that passed down and, Ms Donohoe, if you wouldn't mind having your client sign it.  Mr Cookson, no order is sought with respect to Mr Hoban under 464ZF?

87MR COOKSON:  No, Your Honour, already profiled in that regard.

88HIS HONOUR:  But such an order is sought with respect to Mr Bennett?

89MR COOKSON:  That is correct, Your Honour.

90HIS HONOUR:  Now, Ms Donohoe, I propose to make their order that is with respect to s464ZF.  I cannot recall whether Ms Dempsey made submissions about it, but it seems appropriate in the circumstances, here. 

91MS DONOHOE:  Yes, Your Honour.

92HIS HONOUR:  Do you wish to say something about it?

93MS DONOHOE:  I do not, Your Honour.

94HIS HONOUR:  Thanks, Ms Donohoe.  Mr Bennett, one other matter I must explain to you is that I have made an order that the police will be entitled to take a forensic sample from you.  That sample involves the taking of a mouth swab from you.  If you refuse to provide that sample, then, the police have the power to take a blood sample and may use reasonable force for that purpose.  You should understand that and that I have made an order to that effect.

95OFFENDER BENNETT:  Yes, Your Honour.

96HIS HONOUR:  Yes, with respect to the remission of the charge for failure to appear, I should have remitted it to a specific date, Mr Cookson.

97MR COOKSON:  Yes, Your Honour.

98HIS HONOUR:  My associate advises me, now, that date is 7 March 2019.

99MR COOKSON:  Yes, Your Honour.  I mean in terms of the section, I believe Your Honour highlighted s.168 by an understanding s.168 for indictable tribal summarily that's remitted s.242 sub-s.5 would be what myself and counsel for Mr Bennett agree would be the section for a summary referral.

100HIS HONOUR:  Yes, I understand that.  Thank you for that.  I will make that amendment.

101MR COOKSON:  Thank you, and I think we have just got forfeiture and disposal as the other matter.

102HIS HONOUR:  I will make the order sought, with respect to forfeiture and disposal.  They weren't contested on the last occasion.  Is there any other matters arising out of the sentence?

103MR COOKSON:  No, Your Honour.

104MS DONOHOE:  No, Your Honour.

105HIS HONOUR:  I will stand down.

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