Director of Public Prosecutions v Bhalla
[2021] VCC 1490
•4 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00394
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| PRINCE BHALLA |
---
JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 September 2021 |
DATE OF SENTENCE: | 4 October 2021 |
CASE MAY BE CITED AS: | DPP v BHALLA |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1490 |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Contravention of family violence intervention order –Damaging property – Aggravated burglary – Common law assault – Good prospects of rehabilitation – Family violence – Deportation – COVID-19 pandemic.
Legislation Cited: Migration Act 1958; Sentencing Act 1991 ss 5, 6AAA, 11(1),18.
Cases Cited:Dordevic v The Queen [2016] VSCA 166; DPP v Meyers [2014] VSCA 314; The Queen v Shrestha (1991) 173 CLR 48; Worboyes v The Queen [2021] VSCA 169
Sentence: Imprisonment for a period of 2 years and 8 months with a non-parole period of 1 year and 9 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Champion (plea) | Office of Public Prosecutions |
| Ms M. Vingerhoets (sentence) | ||
For the Accused | Mr P. Dunn QC | Giorgianni & Liang Lawyers |
HER HONOUR:
1.Mr Bhalla, you have pleaded guilty on indictment to the following four charges: Charge 1, contravention of family violence intervention order, intending to cause harm or fear for safety; Charge 2, damaging property; Charge 3, aggravated burglary; and Charge 4, common law assault. The breach intervention order occurred between 10 and 11 November 2019. The damaging property occurred on 10 November 2019 and the remaining charges took place on 11 November 2019.
2.The maximum penalty applicable for the offences are as follows: contravene intervention order, five years imprisonment; damaging property, 10 years imprisonment; aggravated burglary, 25 years imprisonment; and common law assault, five years imprisonment.
3.You also consented to this court dealing with two summary related offences and have pleaded guilty to each: one offence of exceed PCA on 11 November 2019 and one offence of unregistered motor vehicle. The maximum penalty for exceed PCA for a second offence is a fine of not more than 60 penalty units or imprisonment of six months and a minimum licence disqualification of twelve months. The maximum penalty for unregistered motor vehicle is 25 penalty units.
Circumstances of the offending
4.The full circumstances of your offending are set out in the summary of prosecution opening dated 20 September 2021, marked as Exhibit A on the plea. The document forms part of these reasons. I will not repeat the full summary here.
5.The victim in this matter is Stephanie Hales,[1] your previous partner. You commenced a relationship in around 2013 and it had been on again and off again for years. In August 2019, you resumed contact with each other with a view of reconciling. Ms Hales had an existing intervention order varied to permit contact. The order prohibited you from committing family violence against her and Charlotte,[2] her 15 year old daughter. On 10 November 2019, at approximately 6 pm, Ms Hales was in her apartment in Balaclava with her daughter. You began sending her abusive and threatening text messages via WhatsApp, a portion of which are extracted at paragraph 8 of the prosecution opening. In these messages, you called her a 'filthy slag', 'an ungrateful selfish spiteful cunt', threatened her and told her 'Don't EVER contact me again'. These text messages form part of the basis of Charge 1, which is put as a continuing offence.
[1] A pseudonym.
[2] A pseudonym.
6.Ms Hales was on her balcony when she saw you driving your car. She heard smashing noises and later saw you coming through the side gate of her apartment block carrying an axe. You gained entry into the block of apartments on the ground floor, after hitting the front door handle with the axe (charge 2, damage property). You then gained entry into the stairwell, but not into her unit and Ms Hales refused to let you in. You yelled out abuse, including threatening to slit her throat (uncharged acts/context evidence).
7.At 7.27 pm, you sent Ms Hales two text messages threatening to kick down her door (Charge 1, continued). At 7.30 pm, you sent her another text saying 'Okay. 2 minutes left. Don't say I didn't warn you' (charge 1, continued). You smashed a pot in the stairwell (uncharged act/context).
8.After you left, Ms Hales went downstairs to see what you had done. She saw that her car, a black Volkswagen Golf, had been damaged. You had smashed both side mirrors causing both to break completely off (charge 2, continued). After she returned to her apartment, she again saw you through her window carrying a gas blowtorch with a yellow cannister and what appeared to be lighter fluid in a tin. She saw a blue flame come out of the cannister. She saw you holding the blowtorch like a gun. You said 'I'm going to burn you … give you the Glasgow smile’ (uncharged act/context evidence). You left the property.
9.Between 7.50 pm and 8.45 pm, you sent Ms Hales 32 text messages, the vast majority of which were abusive (charge 1, continued). Between 9.37 pm and 9.38 pm, you sent Ms Hales messages saying 'I'm coming', 'bitch, you fucken wait', 'I'm going to kick shit out of your door, you fuking cunt. You wait, I'm gonna scar you for life' (charge 1, continued). It is uncertain at which precise stage during the ongoing incidents these messages were sent.
10.The next day on 11 November 2019, at 6.30 am, you called Ms Hales, abused her over the phone and told her that you were coming over. Ms Hales daughter decided to stay home this day. Between 11 am and 11.30 am, you attended her home address, but did not gain entry and you left.
11.At 11.30 am, you returned to her address. Ms Hales heard the side gate slam and heard smashing noises approaching right up to her unit. You entered her apartment. The wooden door to her unit was locked and she does not know how you gained entry. You went into the lounge room where she was. You were holding a baseball bat and a backpack with items sticking out of it.
12.The prosecution case is that at the time you entered her apartment, you had with you an offensive weapon, knew she was present and entered with an intent to assault her (charge 3, aggravated burglary). You stood over her and held the baseball bat against her face, pushing the large end up against her chin and jaw (charge 1, continued; charge 4, common assault). You went right up close to her face and said 'I'm going to kill you, I'm going to fucking kill you' (charge 1, continued). Ms Hales was crying and hysterical and yelled to you that Charlotte was there. She was in fear for herself and her daughter.
13.You started swinging the baseball bat around the unit, hitting the rubbish bin and clothes horse (uncharged act/context evidence). You then left the apartment. Charlotte had been hiding in her bedroom cupboard. She had heard you smashing things and her mother yelling at you to get out. She called the police at 11.35 am.
14.Soon after, police arrived at the scene and took off in pursuit of you. You were observed nearby in your vehicle and you pulled over. You were arrested and police conducted a search of you and your car. A foldable blade was located and found in your front right pocket. A baseball bat was located on the floor of your car, along with a backpack which contained a number of items, including an axe, a pair of pliers and one roll of tape. Police could smell alcohol on your breath. You underwent a preliminary breath test, which returned a positive result. A subsequent evidentiary breath test confirmed a reading of .062 (charge 11, related summary offence). Your vehicle was not registered (charge 13, related summary offence).
Arrest and procedural history
15.After your arrest on 11 November 2019, you participated in a record of interview. In that interview, you admitted to entering Ms Hales’ unit on
11 November 2019, but denied the offending. You told the police that Ms Hales had invited you over and when you entered the unit, you thought she was going to attack you. You were then remanded in custody where you have remained. To date, you have served a total of 692 days by way of pre-sentence detention. If I may pause there, do the parties agree it's 692 days?16.MR DUNN QC: I believe so, Your Honour.
17.HER HONOUR: Thank you. On 4 March 2020, you were committed for trial, following a contested committal. On 21 April 2021, your case was listed for trial. This date was vacated because of the COVID-19 pandemic. On 2 July 2021, your case proceeded as a sentence indication. On 27 July 2021, you were arraigned and pleaded guilty to the offences.
Nature and gravity of the offending
18.It was agreed between the parties that your relationship with Ms Hales could be described as a toxic or tumultuous one. Since 2013, until the offending period, you had been in an 'on again and off again type relationship'. I was told that you had both held intervention orders against each other at different times and had both appeared for breaching such orders. At the plea hearing, Mr Dunn QC referred to letters dated January 2020 sent to you by Ms Hales, while you were on remand for this offending, in which she declares that she wants a future with you, is in love with you and misses you (Exhibit 3). Mr Dunn QC made it very clear that he was not attempting to blame Ms Hales for your offending, rather, he submitted that these letters illustrate the unusual or unhealthy nature of your relationship. I note that the toxicity of your relationship can also be gleaned from some of the text messages between the two of you.
19.While the nature of your relationship provides some general context, it does not excuse your behaviour in any way and nor should it deflect blame onto
Ms Hales. You were the object of an intervention order which was designed to protect her and that prohibited you from committing family violence against her. You breached this order by sending threatening and abusive text messages to her, on 10 November 2019 and by assaulting and threatening to kill her on 11 November 2019. This charge is comprised of multiple and varying acts which is relevant to an assessment of its seriousness.20.I note with reference to Charge 1, that there is commonality between some of the behaviour which comprises it and Charge 4, the common law assault. Care needs to be exercised to ensure that you are not doubly punished. Also, I am obliged to only sentence you for the offending itself. The other behaviour described in the prosecution opening has been included in order to provide context to the charges and the events.
21.In relation to the aggravated burglary, Ms Champion referred to the Court of Appeal case in DPP v Meyers[3] for its applicable and relevant considerations. In this case, the following can be found by reference to those criteria:
a.I am satisfied that your intention at entry was to assault Ms Hales, as detailed in the charge.
b.Your mode of entry is unknown. You entered through the front door that Ms Hales believed she had locked. There was no damage to the door and no signs of forced entry. This can be contrasted, for example, to a case involving a smashed door or window, or a struggle at the point of entry, which would conceivably make the intrusion even more confronting for the occupant.
c.At the time of entry, you were armed with a baseball bat. The taking of a weapon markedly increases the objective gravity of your offending.
d.You were not in company with anybody else, so this particular aggravating feature is absent in your case.
e.The entry occurred at approximately 11.30 am, as opposed to, for example, in the early hours of the morning, which would likely cause greater alarm.
f.You knew that Ms Hales was inside the apartment, although, as accepted by the prosecution, it is not alleged that you were aware, upon entry, that her 15 year old daughter was also present.
g.Finally, given your conduct the night before, it is reasonable to accept that Ms Hales would have been frightened of you, notwithstanding your recent reconciliation.
[3] [2014] VSCA 314.
22.I consider that this was a significant intrusion into the home of Ms Hales, where she was entitled to feel safe. The courts have emphasised the importance of general deterrence in sentencing for offending that occurs in a domestic violence context. While I regard the offending in Meyers to be objectively significantly more serious than in your case (I did not understand the prosecution to rely upon it as a comparable case on its facts) your offending was serious and your moral culpability was high.
23.While your behaviour was ill-conceived, described by your counsel as designed to intimidate and frighten Ms Hales from doing something, it was clearly not spontaneous or completely unplanned. You had attended Ms Hales’s address the day before, you threatened to attend her home that morning and you did attend armed with a baseball bat.
24.On your behalf, Mr Dunn QC submitted that this offending occurred during a time of traumatic upheaval in your life, where your judgment was clouded by everyday alcohol abuse. In 2019, your consultancy firm lost a major contractor, forcing you into part-time work and to live off your savings. You were residing in temporary rental accommodation, awaiting the settlement of property that was years behind its building schedule, and you and Ms Hales were back together, but were arguing and the relationship was again strained. This caused you to self-medicate by drinking daily. The abusive messages on 10 November 2019, in part related to your perception of Ms Hales’s attitude towards your daughter in the UK. Earlier that year, you learnt that your daughter had been raped when she was only a young child. Apparently you blamed yourself for not protecting her. Discussions between you and Ms Hales relating to your daughter, appeared to have played some part in triggering you at the time of your offending. This can also be discerned from the text message exchange between the two of you and from what you said to the police when they first intercepted you.
25.I accept that around the time of your offending, you were experiencing some turmoil and your judgment was obviously affected by this and your excessive alcohol consumption. Of course Mr Bhalla, this is no excuse for the way you behaved. Mr Dunn QC also submitted that significantly after you entered the apartment, although you held the baseball bat towards Ms Hales threateningly, you did not physically strike her with it, instead, you struck out at the clothes horse and the rubbish bin. I do take this into account in assessing the seriousness of the common law assault, though I note that the assault did involve the use of a weapon against Ms Hales in her own home, causing her to apprehend the immediate application of force. Further, it was submitted that perhaps indicative of some moral compass still intact, you then left of your own accord and walked out of the apartment.
26.Soon after, you were apprehended by the police and you were cooperative with them.
Victim impact
27.Tendered on the plea as Exhibit D, was a victim impact statement of Ms Hales. I have taken into account the content of her victim impact statement to the extent that it relates to this offending. She speaks of the profound impact that your offending has had on her. In her victim impact statement, she refers to herself as 'constantly triggered with the memories of the past' and as feeling 'crippled with fear of [her] future'. She is left feeling 'disrespected, degraded and exploited'. She attends regular sessions with a psychologist. She suffers post-traumatic stress disorder and has found it difficult to work. In the circumstances, your offending would have been terrifying for Ms Hales and I also note that she was observed by witnesses at the time, as appearing frightened and scared.
Plea of guilty and remorse
28.On 27 July 2021, you were arraigned and entered pleas of guilty. Notwithstanding that you chose to run a contested committal, I regard your plea as having a substantial utilitarian value. The witnesses, and in particular Ms Hales, have been spared the distress and ordeal of further delays in this matter, and of having to give evidence in front of a jury.
29.Your plea is particularly valuable in circumstances where there is a large backlog of cases in the court and ‘the system of criminal justice in this state is in crisis’. I recognise the utilitarian benefit of your plea. Your counsel referred me to the Court of Appeal decision of Worboyes,[4] where it was relevantly stated:
'Given the unhappy state of the courts lists, the courts must in an endeavour to alleviate the strain on the system, encourage those accused who are guilty, to so plead. Such encouragement must come from an actual and palpable amelioration of sentence'.
[4] [2021] VSCA 169.
30.At your plea hearing, there was some dispute between the parties as to whether you had directly apologised to Ms Hales when she visited you in custody of January of 2020. On the material before me, I am unable to find that such an apology was made. However, your counsel submitted, and I accept, that your plea of guilty demonstrates some remorse for your offending and does demonstrate an acceptance of responsibility. In all the circumstances, I accept that you are entitled to a substantial discount on your sentence by reason of your plea of guilty.
Personal circumstances
31.In terms of your personal circumstances, they were largely outlined in a chronology, marked as Exhibit 2 on the plea.
32.You are now 53 years of age. You were born in Birmingham England and are of Indian heritage. Your parents are in their 70s and both are retired. You have a younger sister and a brother. You grew up in a mixed area, with a largely migrant population.
33.After secondary school, you enrolled in a technical college to study A levels, physics, maths and engineering. At college, you met Malina Ricketts, whom you later went on to marry. There are three children of the relationship, all now young adults. After college, you joined British Rail Working, in the signals and telegraph area. You then joined Cable and Wireless, before moving into the software area and consulting on networks. At the age of 33, you started your own consultancy business, building and serving networks throughout the UK and Europe.
34.It appears that you have been industrious from a young age. At 21, you bought your first home and then purchased another property before you reached the age of 30.
35.Your marriage experienced problems, largely caused by your wife's troubled brother demanding money off you and assaulting you. In 2002, you separated and you moved out of the matrimonial home. You continued working as a consultant and you continued to pay the mortgage and your children's education.
36.In 2004, at the age of 37, you were brought to Australia by Nortel to work on a Telstra project. You later returned to England, in an attempt to reconcile with your wife, which was ultimately unsuccessful. In 2007, you returned to Australia on a contract from Telstra to run a titan project which was a network rebuild for $28m. You were working six to seven days a week and living in an apartment in South Yarra.
37.In 2010, you purchased a property in Albion Street, South Yarra. You set up a new consultancy company called Ambika-Bleue Network and you were working seven days a week. You were employed as a preferred consultant to Telstra.
38.In 2011 you developed some issues with alcohol abuse in the context of having injured your spine and neck.
39.In 2014, you were introduced to Ms Hales in Melbourne who had two children from a previous marriage. Around this time, you obtained your permanent residency in Australia. Ms Hales and her children moved into your home. The relationship encountered some difficulties and in 2016, there were intervention orders backwards and forwards between the two of you. Ms Hales moved back into her apartment. You later resumed your relationship with Ms Hales, on an on and off again basis.
40.In 2018, you sold the South Yarra property and put a $250,000 deposit on two apartments in Malvern. The properties were put up in the joint names of yourself and Ms Hales as your relationship had resumed. During this year, an American company bought Telstra's vendor management arm and your company failed to fulfil the requirements to be the preferred supplier of Telstra. At around the same time, you were experiencing psychological problems and were receiving treatment from a psychologist and psychiatrist, Dr Wood. You had learned about what had happened to your daughter and you struggled with this information and blamed yourself for not protecting her. You were drinking in excess at the time.
41.In October 2018, you had to vacate your property in South Yarra as it was sold. You rented an apartment in Balaclava near Ms Hales. The settlement of the Malvern properties was delayed. In 2019, you were living near Ms Hales and continued to work as a consultant, though your work was sporadic. You were living on savings, drinking daily and struggling to arrange finance for the Malvern properties. Difficulties continued in your relationship with Ms Hales and you stopped having contact.
42.In July/August 2019, you again attempted to reconcile with her, but you were still struggling in your circumstances and the relationship again soon encountered difficulties, which leads us into the offending period.
Prior criminal history
43.You have admitted a relevant criminal history that was filed with the Court. In fact, and of concern, your offending history is wholly comprised of offending against Ms Hales, aside from 2 traffic infringement notices for exceeding PCA in 2013. On 29 August 2016, you were dealt with for contravening intervention orders x 2, unlawful assault x 2, criminal damage and you were sentenced to a period of 14 days imprisonment, reckoned as wholly served. On 16 July 2018, you were dealt with for contravening an intervention order and you were convicted and fined $1,000. On 26 July 2018, you were again before the court for a persistent contravention of a family violence order, although on this occasion, the charge was proven and dismissed. On 22 May 2019, you received a $1,000 fine for contravening intervention order x 2. I was informed that some of these incidents involved physical violence and you attending at Ms Hales address. Some quite obviously did not involve violence as reflected, for example, in the disposition imposed on 26 July 2018.
44.Mr Dunn QC made the point that your only interactions with the criminal law have occurred within the context of this ‘unusual’ and unhealthy relationship. As he bluntly put it, the two of you should not be together. I was told that you now accept that the relationship is 'well and truly over'. I was also informed that there is currently an intervention order in place protecting Ms Hales until 4 March 2022 and that you consented to the making of this order.
45.In relation to your prior history, you are not to be punished for your prior offending, but it obviously raises concerns as to your behaviours and it has particular relevance to the need for specific deterrence in your case.
46.I have taken into account and had regard to all the factors in mitigation relied upon by Mr Dunn QC, which I will now further address.
Conditions in custody
47.Mr Dunn QC referred to your current conditions in custody. It is now well established that prisoners are subjected to greater restrictions and deprivations than in normal times because of the impact of the COVID-19 pandemic. As a community, we are experiencing our sixth lockdown. I accept that the pandemic causes additional stress and concern to prisoners and that this has, and will continue, to make your time in custody more onerous. I was told that you have experienced greater restrictions and that you have been in quarantine twice already.
48.I was also told that since September of 2020, you have been working as a head billet in the Matilda Quarantine Unit. You have received your double vaccination to do this job. This is a senior and trusted position. All prisoners entering the prison pass through your care. There are two other billets in the unit, whom you have mentored. You have volunteered for this position and applied yourself to it, placing your own health at risk.
49.I was also informed that initially you were working as a billet at Marngoneet, but you were transferred after being assaulted by other inmates. As you understand it, this assault was racially motivated. Consequently, you had to be moved within the prison system. I take into account all these factors as giving rise to a reduced sentence.
Prospects of rehabilitation
50.Your counsel described your prospects of rehabilitation as strong. The prosecutor disputed that it should be put so high, given the nature of the offending and the references to your emotional problems and your alcohol use that has apparently been a problem since 2011.
51.These issues do raise concern, but I am of the opinion that your prospects of rehabilitation are good. Your criminal history does not start until you are approximately 48 years of age. You have otherwise led a productive life. You have clearly worked hard over the years and have had the skill and talent to start your own business and to successfully settle in Australia. You continue to work in custody and you have now been sober I am told for a long time.
52.To the extent possible, you have undertaken courses addressing anger management and alcohol issues. You have also experienced a lengthy period on remand, during harsher times, and I accept that this has caused 'sober and profound reflection’ on your part. You continue to have the support of your family back home and you have had a number of Skype calls with them and your children. On your release, and anticipated return to the UK, it is likely you will have to start again, but you have job skills that are in demand and provided you stay sober, you have the potential to live a full and productive life.
Prospect of deportation
53.Mr Dunn QC submitted that as you are not a citizen, if you receive a sentence of 12 months or more, you will likely be deported. Since your arrest, you have had the threat of deportation hanging over your head. Further, it was submitted that you have been here since 2007 and had always planned to permanently settle in Australia. Recently, however, confronted with the reality of your situation, you have now resigned yourself to returning to the UK and you intend to do so as soon as you can.
54.Ms Champion, on behalf of the prosecution, accepted that the prospect of deportation has some relevance, but only in a limited way, in that it may have affected and weighed upon you in custody. In terms of its consequences, she submitted that even though cancellation is likely to be mandatory in your case, there is a degree of speculation and it is unknown if you would seek a review of any such cancellation. Also, your case was different to someone who wanted to remain in Australia and has continuing ties here.
55.A sentence of 12 months or more, will bring into play the automatic cancellation or revocation provisions pursuant to the Migration Act. Under the Migration Act, a person has review and appeal rights, in respect of cancellation decisions. Mr Dunn QC conveyed your instructions that you would not seek to review or appeal any such decision.
56.In all the circumstances, I am prepared to accept, and I take into account, that the prospect of your deportation has been a matter weighing on you in custody, making your time on remand more burdensome than otherwise would be anticipated. As Mr Dunn QC put it, during this period, you have been living in a 'state of limbo' and uncertainty as to what will happen to you and as to your future.
Other matters
57.Mr Dunn QC also relied upon the extra curial punishment endured by you. You had lost the $250,000 deposit on your apartments, as you were remanded in custody, and unable to secure, or make attempts to secure, finance and settlement on the apartment. You also gave your convertible BMW to Ms Hales. These factors were not disputed and it is for the court to assess the weight that they should be given. I accept that you have suffered a degree of extra curial punishment and I take this matter into account.
58.I also note that, as referred to, there has been delay in the listing of your case due to COVID-19. Consequently, the matter has been hanging over your head for a relatively substantial period of time.
Sentencing principles
59.The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you Mr Bhalla, I am required to have regard to a range of matters such as the seriousness of your offending, your culpability, your personal circumstances and those of your victim.
60.I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant to your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty and in particular, for the aggravated burglary charge.
61.There was no dispute between the parties that a term of imprisonment is warranted in your case. The dispute really centred on the structure of any such sentence.
62.On your behalf, Mr Dunn QC initially submitted that a term of imprisonment that did not attract a non-parole period was justified and appropriate. He submitted that given the circumstances and the impact of Covid-19, in particular, these were 'extraordinary times' and you had paid 'your dues' and now wanted to return to the UK. He initially submitted that a parole period would only serve to keep you in Australia.
63.Ms Champion submitted that given the seriousness of the charges and your criminal record, the only appropriate sentence was one with a non-parole period. I agree.
64.Although in the end, Mr Dunn QC indicated that he had retreated from his position, I have given the matter serious consideration. His initial submission was in some ways appealing because of its pragmatism, i.e. a straight sentence would likely facilitate your immediate return to the UK. But my task is to impose a sentence according to law, one that is just and proportionate and that reflects your overall criminality. The Court of Appeal has also cautioned against sentencing judges artificially structuring sentences of imprisonment, so as to avoid the mandatory requirements of s11(1) of the Sentencing Act.[5] In your case, general deterrence does loom large, as does specific deterrence. I do accept that the substantial time, approaching two years, that you have served in custody with delays and under harsher conditions, has had a salutary effect on you which is relevant to specific deterrence. Your one past experience of prison is limited to 14 days back in 2016. As Mr Dunn QC suggested, you should now have the clear message that your offending is serious and your conduct completely unacceptable. Notwithstanding, the relevant sentencing principles and considerations in your case can only be reflected in a term of imprisonment that requires the fixing of a non-parole period.
[5] see Dordevic v The Queen [2016] VSCA 166.
65.As to the appropriateness of a parole period, in the end it was accepted by both counsel that it is unknown whether any parole period imposed will actually operate to keep you in Australia, or whether in fact you will even be released on parole given your status. I agree that such reasoning is speculative and is irrelevant to my sentencing task. I also note here that even though you are a permanent resident, who is likely to face deportation, the community still has a concern and interest in your rehabilitation which in your case, is best facilitated by the imposition of an appropriate parole period.[6]
[6] see The Queen v Shrestha (1991) 173 CLR 48.
66.Given the circumstances of your case, the principle of totality is an important sentencing consideration that I have had regard to. Mr Dunn QC submitted that one sentence is appropriate without cumulation, given the offending occurred over a short period of time and is related to the one issue. Ms Champion submitted that some cumulation is warranted to reflect the discreet criminality involved, particularly in respect of the aggravated burglary and breach of intervention order. I accept that your offending does occur within a relatively confined period of time and in the same setting, against the same victim. I agree, however, that individual sentences are appropriate, so as to reflect the separate criminality involved, but that any cumulation must also be reflective of the degree of overlap and the principles of totality, proportionality and parsimony.
Sentence
67.So coming to the sentence Mr Bhalla, and this is where I will read out to you the numbers and the actual sentence all right?
68.OFFENDER: Okay ma'am.
69.HER HONOUR: Having taken all of the matters into consideration, including all of the relevant sentencing principles and the matters put on your behalf in mitigation, I sentence you as follows: on Charge 1, breach intervention order, you are convicted and sentenced to a term of nine months' imprisonment.
70.On Charge 2, criminal damage, you are convicted and sentenced to a term of two months' imprisonment.
71.On Charge 3, aggravated burglary, you are convicted and sentenced to a term of two years and six months imprisonment.
72.On Charge 4, common law assault, you are convicted and sentenced to four months' imprisonment.
73.Charge 3 is the base sentence and I order that two months on Charge 1 be served cumulatively on Charge 3. Otherwise, all sentences are to be served concurrently. This should result in a total effective sentence of two years and eight months imprisonment. I set a non-parole period of one year and nine months'.
74.In relation to the summary offence of exceed PCA, you are convicted and fined $750 and your licence is cancelled and disqualified for 12 months, which is the mandatory minimum period. On the charge of unregistered motor vehicle, you are convicted and discharged.
75.Pursuant to s18 of the Sentencing Act, I declare that you have served 692 days by way of pre-sentence detention.
76.Pursuant to s.6AAA of the Sentencing Act I declare that but for your pleas of guilty, that is, if you had not pleaded guilty, I would have sentenced you to a total effective sentence of four years imprisonment, with a non-parole period of two years and eight months'. I make the forfeiture order in the terms sought and note that it was not opposed. Ms Vingerhoets, Mr Dunn, does that deal with all matters?
77.MS VINGERHOETS: Yes, Your Honour.
78.MR DUNN QC: Yes, Your Honour, thank you.
79.HER HONOUR: Very well. And I take it Mr Dunn, there are no custody management issues that I need to ‑ ‑ ‑
80.MR DUNN QC: No.
81.HER HONOUR: ‑ ‑ ‑ note. He's been in custody for a long time.
82.MR DUNN: No, Your Honour, no.
83.HER HONOUR: Very well. Mr Bhalla, I take it that you did - you heard the sentence and you, it seems to me were paying attention. What I'll do now is I will have - I'll just check with my staff that the link can continue for a period, so that Mr Dunn can speak to you. Would that be your preference Mr Dunn?
84.MR DUNN QC: Very much so. Thank you, Your Honour.
85.HER HONOUR: Thank you.
86.MR DUNN QC: Thank you very much. Thank you.
87.HER HONOUR: Very well, thank you. Adjourn the court please.
‑ ‑ ‑
0
4
0