Director of Public Prosecutions v Brereton

[2019] VCC 20

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-01247

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZAC BRERETON

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	24 January 2019
CASE MAY BE CITED AS:	DPP v Brereton
MEDIUM NEUTRAL CITATION:	[2019] VCC 20

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Brown
For the Accused	Mr B Johnston

HIS HONOUR:

1Zac Brereton, you have just recently turned 26.  Notwithstanding your relatively young age, you have already a very troubling criminal history.  However, your offending spree in the first weeks of October 2017, and especially in the four days from 19 October until your arrest on 23 October 2017, lifted your criminality to another level.

2Your conduct involved aggressive violence, disregard for the safety and property of others, highly risky driving endangering others, including police.  This was appalling conduct of a kind that frightens ordinary members of our community.

3Your criminal conduct resulted in the Director of Public Prosecutions indicting you on 23 charges which are as follows:  two charges of criminal damage,
14 charges of theft, one charge of obtaining financial advantage by deception, one charge of armed robbery, three charges of conduct endangering person, one charge of common law assault, and one charge of possession of a drug of dependence.  You also pleaded guilty to a number of summary offences. 

4The summary of the facts of all your crimes was set out in the prosecution opening, which was tendered on the plea as Exhibit A.  I will not repeat all that was set out in that document.  Rather, I will concentrate on the offending over 19 to 23 October.  Having said that, all your offending has been taken into account, as has all matters put on your behalf.

5On 19 October 2017, you stole a car from a car yard in Delacombe.  You drove that car throughout the next few days, routinely stealing petrol by driving off without paying.  The first instance was only hours after stealing the car.

6Later, in the evening of 19 October, you went to a Ballarat supermarket, filling up a trolley with goods to the value of $385.  When you went to the checkout, you told a story to the young employee about leaving your wallet in the car.  You then went to your car.

7At that point, you could have just kept going but you did not.  Rather, you got some sort of other card, and importantly, a taser from your car and returned to the store.  The securing of the weapon makes it plain what your plan and intent was.  You tried first to use the card.  You were told by the employee, politely, that the card that you had would not work.  You then said:

"Annoying people get tasered."

8And with that, you leaned forward and used the taser on the employee, causing shock and a burn.  You then took off with the trolley of goods.  The taser, illegal in your hands, is an inherently dangerous weapon.  This was not just a threat made by you, as is often the case with weapons brandished in armed robberies.  Rather, you used the weapon causing harm.

9That brave employee, after being tasered, still attempted to stop you leaving.  Another employee came to assist.  You met this with cowardly threats to them, pointing to the taser, saying:

"I'll taser you, you dog.  I'll taser you."

10The victim of this violent example of an armed robbery has been badly affected.  In her victim impact statement, she wrote:

"I had headaches and arm and neck pain which got worse over the next couple of days."

11She had to have physio treatment.  She said:

"It took three weeks before I was comfortable, and five weeks that I could not come from home to work because of pain."

12She went on about the emotional trauma.  The attack, that action, your action, took from her sense of being safe.  Walking home became stressful, and she has to take a lot more taxis at a lot more cost.  She concludes:

"But the thing that hurts the most is the feeling of being disposable; that someone could just, in a moment, because of not getting what they want, treat me like I was nothing."

13The next day, 20 October 2017, you were seen by police at your home in Sebastopol.  You got into the stolen car and drove dangerously along the footpath to escape apprehension.  Later that day, you stole alcohol and a CCTV camera at a car wash. 

14In the early hours of 22 October, you were seen by police in the stolen car.  You again drove dangerously to avoid arrest.  You then drove to a service station and were filling up.  The employee there having received information about the car that you were driving being involved in drive-offs turned the pump off and rang the police.  You reacted angrily and dangerously by yelling at that employee:

"I'm going to run over you."

15With that, you drove straight at that employee at a fast rate, causing him to get out of the way speedily.  If he had not, he was at risk of serious injury.

16You later stole number plates, using some of them on the stolen car.

17After other drive-offs, or shop thefts, the next dangerous episode was when you again threatened to use a taser on a service station employee who simply asked you to pay for the fuel that you had taken.  You followed this by getting a knife from your car and walking towards the service station.

18In the morning of 23 October, you again stole fuel.  The police that tried to intercept you saw you driving fast and erratically along the Glenelg highway. 
A police car travelling in the opposite direction saw you driving across double lines to overtake other drivers, getting up to homicidal speeds approaching
150 kilometres an hour.

19You drove at the oncoming police car, forcing them off the road.  This was deliberate, highly dangerous driving conduct, revealing your utter disregard for the safety of others in an aim to escape detection and arrest for all your preceding crimes.

20This continued a short time later after another theft of money from a health care centre.  You were then seen by police in Vale Street, Sebastopol and endeavoured to get away yet again, driving at over 100 kilometres an hour in a suburban street - a good deal of which was on the wrong side of the road, forcing a number of ordinary drivers to take emergency evasive action so as to avoid catastrophe.

21This driving continued along Vale Street and into the area of Smythesdale, Napoleons and Ross Creek.  Ultimately, you lost control of the car, crashing with the car ending up 30 metres into a paddock.  Your speeds through this time were up to 200 kilometres an hour.  The respected reconstructionist,
Dr Meghan, calculated your speed at 137 kilometres an hour when you lost control and went into the paddock.

22You were arrested and taken to hospital.  The testing of your blood, revealed that you had both methylamphetamines and cannabis in your system.  You had cannabis in your pocket.

23As I have already said, your criminal conduct was serious, dangerous, and frightening.  The punishment must reflect the community's deep concern at such appalling conduct on our public roads.

24As to your personal circumstances, as noted, you are 26.  You were 24 when you offended.  As well as mentioning your age already, I have also spoken of your concerning criminal history.  Your criminal history was succinctly summarised to that point by Judge Punshon when he sentenced you for theft and armed robbery on 1 November 2013.  He wrote in his sentencing remarks, at paragraph 8:

"You have an extensive criminal history commencing in late 2006, with the most recent prior matters being in mid-2012.  Your offending history includes crimes for drugs, dishonesty, causing injury, violent offending including robbery, attempted robbery and attempted armed robbery, failing to answer bail, damaging property, driving offences and possessing weapons."

25He went on:

"You have had a number of dispositions, including youth supervision orders, undertakings, youth attendance orders, fines, community-based orders and detention in youth training centres.  You have breached supervisory orders, including a community-based order imposed in November 2011 for not attending the required drug and alcohol courses."

26His Honour noted that you had to that point not been imprisoned.  His Honour, after considering and rejecting the sentence of a Youth Justice Centre detention, imposed a sentence of three years and three months with a minimum of two years upon you.  You instructed your counsel, Mr Johnston, who appeared before me, that you were not granted parole and thus served the whole three years and three months.

27It was within a period of about eight months from your release from that sentence that you resumed unrestrained drug taking and regular, serious offending.  What follows from this is that you did not learn at all from your time in prison, thus, deterrence to you in this sentence looms large.  Also, the confidence that I can have in your future prospects must be very guarded indeed.

28Added to that is your past serious violent and other offending and your offending before me, which means I must give real weight to the protection of the community from you.  This must be achieved initially by incapacitation, and then hopefully by your efforts to reform.

29To return to your background.  You were raised in Ballarat.  Your parents separated when you were young, just about seven years old.  Your mother drank excessively.  That said, you reported and still report that she was a good person.  She remains supportive and has attended court, and is here today.  Your father often worked away from the home.  He remains supportive, and he too is here.  After your parents separated, you remained in contact with your father and he remains supportive to you despite your return to prison.

30Overall, your upbringing was dislocated and chaotic.  You did not get solid role models or proper nurturing.  I take this into account in the way the High Court explained in the matter of Bugmy. 

31Also, you did not gain a lot from education.  You displayed all the problems of someone with ADHD.  After school, you worked as a plasterer for a number of years, to your credit, and as a labourer in construction.  You hope, upon being released from prison, to return to plastering and establish yourself in that field.

32You took up cannabis at around 15 years of age and methylamphetamines at a later time.  Indeed, in a medicolegal report from a Dr Cunningham, he says that you stated that you abused methylamphetamines from the age of 24.

33That seemed very odd, as the previous report provided to Judge Punshon from Mr Joblin, and as set out in the remarks of Judge Punshon, reveal that you had a much longer problem with that drug, ice, than was revealed in
Dr Cunningham's report.  In the end, I do not think Dr Cunningham got that matter right.

34There were other concerning aspects of Dr Cunningham's report, especially regarding your cardiac health.  It was said by Dr Cunningham under the heading of "Medical history", the following:

"Mr Brereton has suffered three drug-related heart attacks.  He is on 20 different medications per day to prevent further heart attacks.  He suffered heart attacks at the age of 16, 18 and 21.  Mr Brereton stated that he crashed his car travelling at 190 kilometres in October 2017."

35Which was the matter that brought about your arrest for these things.  In respect of what he says on your cardiac health, I can find no other evidence regarding this remarkable cardiac history.  There is nothing in any other reports or nothing in Judge Punshon's sentence.  It seems, without investigation by
Dr Cunningham as to your medical records, he simply reported these matters in that way.  I find it very hard to understand or accept what was set out in
Dr Cunningham's report in this regard.

36The more recent report from the neuropsychologist, Dr Treeby, is more helpful.  He took the time to read your medical report.  He says the following:

"Mr Brereton has had multiple presentations to emergency since 2014 in the context of chest pain, which has at times been described as atypical and 'non-specific.'  He has demonstrated tachycardia on some occasions and has been diagnosed with an atrial septal defect, subclinical hypothyroidism, and hypomagnesemia during investigations on
4 November 2015.

At this same admission, there was "no evidence of any coronary artery disease" and an "echo revealed an essentially normal heart."  Mention is made of three previous episodes of acute coronary syndrome, secondary to past cocaine use, in medical records from St Vincent's Health in April 2018.  It is understood he has left to right (indistinct 10:29:03) mitral valve leaflets.

It is unclear from medical records reviewed as to whether there might be an anxiety or functional component to Mr Brereton's complaints of "atypical chest pain.  However, I note that he was diagnosed with chest pain, 'likely musculoskeletal', following one emergency presentation on 3 July 2014."

37It seems to me the conclusions of another medicolegal practitioner psychiatrist, Dr Turnbull, is most accurate relating to your behavioural problems initially as an adolescent and now as an adult.  He wrote - that is, Dr Turnbull, as follows under an opinion:

"The diagnosis of Attention Deficit Hyperactive Disorder was probably reasonable while he was growing up, but I do not see that as relevant to adulthood.  He is free of other psychiatric diagnoses other than labels that could be applied to describe difficulties in his behaviour since an early age.  The main issue this man has is of illicit drug use, and he needs to cease that.  If he does not, he will surely find himself in similar circumstances again."

38This report was provided to Judge Punshon, and of course, you did find yourself in similar circumstances.  Judge Punshon wrote of these matters in the following way - just bear with me for a moment.

39MR JOHNSTON:  Your Honour, my apologies to interrupt.

40HIS HONOUR:  Not a problem.

41MR JOHNSTON:  Is Your Honour referring to the report of Mr Joblin that was provided?  Given that that report of Dr Turnbull is 28 June 2018 and the sentence of Mr Brereton by His Honour Judge Punshon was on 1 November 2013 ‑ ‑ ‑ 

42HIS HONOUR:  I am so sorry.  It was Mr Joblin I was referring to.  If I made cross-reference to Judge Punshon, I apologise.

43MR JOHNSTON:  As Your Honour pleases.

44HIS HONOUR:  Nonetheless.   But Judge Punshon wrote the following at paragraph 21:

"Mr Joblin" - thank you, Mr Johnston - "Mr Joblin noted various diagnoses previously made of you, including ADHD, oppositional and defiant disorder, major disruptive behaviour, and intellectual disability.  You have been on medication such as Ritalin.  Mr Joblin could detect no evidence that you currently have an intellectual disability.  Mr Joblin thought you were easily bored and noted the dangers this posed.

He also noted your serious history of drug and alcohol abuse, particularly in someone so young.  He noted your drug and alcohol use following your release from Parkville.  You stayed at your mother's house, drinking excessively, using amphetamine, heroin and ice, and began a relationship with a young lady who shared your interest in drugs.

Mr Joblin had 'some concern' that your childhood disorders and continued drug use posed the risk that if you were not assisted, you could become antisocial and develop a psychopathic personality, although you have not reached this stage."

45Dr Cunningham made no reference to ADHD or any other drug or prognosis.  Rather, he thought that you had in recent times developed post-traumatic stress disorder from witnessing a jailhouse stabbing and from the car collision which brought an end to your criminal spree in October 2017.

46Also referred to in Dr Cunningham's report was an unresolved question of whether you had an acquired brain injury subsequent to the car collision. 
The plea was adjourned initially so as to allow your lawyers to get a neuropsychological report.

47Before moving to a discussion of that report, it should be noted that although there was a query of acquired brain injury raised by Dr Cunningham, nonetheless, he did a standard IQ test.  His conclusion was that you had a
full-scale IQ of 70, thus at the border of an intellectual disability.

48Mr Joblin did not come to the same conclusion, but oddly, Dr Cunningham does not refer to Mr Joblin's early opinion or analyse Dr Turnbull's report or analyse Mr Joblin's report.  Dr Turnbull, in his report, does refer to Mr Joblin's report and said that Mr Joblin did not accept an intellectual disability.

49Prior to the receipt of Dr Treeby's report, there was nothing in the expert reports that I have confidence in that would lead me to a view that you had an intellectual disability.  You have nothing in your past that positively indicates an intellectual disability.  I did not consider at that point there was sufficient, rigorous evidence for me to conclude that you had an intellectual disability of the kind that would prompt the mitigation such as the lowering of moral culpability as set out in the High Court decision of Muldrock. 

50However, the considered and thorough report of Dr Treeby does change things.  Firstly, there is his view on the absence of an acquired brain injury.  He resolves that matter, as far as I am concerned.  The report of Dr Treeby notes the following under the heading of "Possible head trauma".

"He underwent CT brain scan on arrival at the hospital, which was described as normal.  On the basis of this information, Mr Brereton experienced at most a mild traumatic injury in this event, and he would not have expected to experience any enduring cognitive impairment from the mild concussion type injury of this nature.  He sustained additional injuries such as non-displaced fractures to the left eighth and ninth ribs, laterally, and an annual fibrosis tear.  And he was discharged from hospital on 25 October 2017."

51Dr Treeby also assessed your IQ.  In his report and testing, he helpfully made clear that you satisfactorily passed the criteria that are established for assessing whether you made a genuine effort and whether you were - and you were not - detected as deliberately trying to skew the result.  He concluded that the results gave a reliable cognitive profile.  Dr Treeby also set out all the tests and subtests that he undertook.  In summarising the results, Dr Treeby said the following:

"On neurological assessment, Mr Brereton performed in the extremely low to borderline range on tests considered to be relatively robust to neurological compromise, indicating that he has longstanding intellectual difficulties.  On evaluation, Mr Brereton performed at the extremely low to borderline range on an overall measure of his intellectual ability - full-scale IQ of 70."

52Dr Treeby noted that this was identical to the result achieved by Dr Cunningham in his tests.  Dr Treeby went on to consider what information he had about your maladapted behaviour in the community.  He concluded that the criteria in
DSM-V for a mild intellectual disability were met.  His view was that your cognitive limitations were longstanding.

53Dr Treeby was then asked by your lawyers whether your intellectual disability had "any impact or correlation to the offending behaviour."  He commenced his discussion of this question by noting that because of your intellectual disabilities, your ability to comprehend and understand the wrongfulness and consequences of some of your actions can be considered questionable.

54Thereafter, I discern Dr Treeby concentrated on the impact of your intellectual disability on your capacity to sustain consequential thinking; that is, think about the consequences, as opposed to any limitations that you have on your capacity to appreciate the wrongfulness of your conduct.  In addition, Dr Treeby noted your heavy use of ice at the time and its effect of not sleeping for days. 
Of importance, Dr Treeby went on:

"While Mr Brereton's cognitive limitations and methylamphetamine use almost certainly played a role in his offending behaviour, he now has a long history of difficulties with conforming to social norms with respect to lawful conduct.  He would appear to have enduring Cluster B personality traits and he meets DSM-V criteria for a formal diagnosis of antisocial personality disorder.  He has a history of engaging in externalisation behaviours since childhood, and antisocial personality traits are likely to adversely impact upon his day-to-day decision-making behaviour and conduct more broadly."

55Your counsel urged that I should mitigate your penalty because your intellectual disability lowered your moral culpability and ought bring about a moderation of general deterrence, and moderate your sentence because prison for you would be more burdensome.

56What is needed is a rigorous analysis of the evidence of an impaired mental functioning, being in this case your intellectual disability, but also the relevance of your antisocial personality disorder and your drug-induced disinhibitions, and/or a lower capacity to consider the consequences because of your drug use. 

57Dr Treeby's report allows for that sort of rigorous analysis which was not possible by reason of the report provided by Dr Cunningham.  That is regrettable.  What must be kept in mind is the relevance of the impaired mental functioning to sentencing. 

58This first arose in circumstances where the accused's impairment was nearly, but not quite, at the level of a finding that the accused was - at the time, as it was described, "insane", now described as "mental impairment."  "Insanity", or now, "mental impairment", are met if one of the two criteria set out in legislation are met; that is, that the accused does not know the nature or quality of their act, or cannot reason as ordinary people can as to the wrongfulness of the act.

59The focus was on the incapacity of the accused, by reason of mental illness, to comprehend that the act was wrong.  In more modern sentencing decisions, the relevance of impaired mental functioning is almost always on the impact of the impaired mental functioning on an accused's capacity for clear consequential thinking; that is, the focus is on the accused's capacity to make reasoned and appropriate judgments as to the consequences of an act, rather than its wrongfulness.

60It seems clear, when applying the concepts of instinctive synthesis, that an impaired mental functioning that lowers the capacity of someone to make reasoned judgments does not lower their moral culpability in the same way as might be the case if the impaired mental functioning means that a person does not understand the wrongfulness of the conduct but remains nonetheless not mentally impaired, or as the term was used in the past, "insane."

61While it is clear that an intellectual disability that has effects upon judgment is a mitigatory matter, a complication arises if other factors also potentially play a causative role in the offending or in the lack of consequential thinking - in particular, if those other potential causative effects are drug use that reduces inhibitions or increases risk-taking behaviour, and thereby reducing the capacity to make the reasoned and appropriate judgments, or to consider the consequences.

62Also, separately, and relevantly, in this case, the role of an antisocial personality disorder as a causative factor for ill-considered actions done without regard to consequences.  This too requires rigorous analysis.  In the important decision of O'Neill, the Court of Appeal stated the following at paragraph 71:

"First, the principles, being those that are set out in Verdins and other cases, are enlivened only where the offender suffers from impairment of mental functioning.  Whether there should be any moderation of general deterrence and if so, to which degree, will depend on the nature and the severity of the impairment of mental functioning.  It is important to keep in mind that in Verdins, and in this court's subsequent application of Verdins, the court has consistently stated that the principles in Verdins relate to offenders who suffer from mental impairment or impaired mental functioning, whether at the time of the offending or at the time of sentence.  While the court in Verdins regarded the particular diagnostic labels as not being determinative, the principles expressed have always been confined to cases in which the offender suffered an impairment of his or her mental functioning.  They do not apply to personality disorders such as those from which the respondent suffered."

63The Court then went on, at paragraph 75, to say this:

"To show the necessary connection to the offending, and so to enliven limbs one to four of Verdins, the offender must establish that the mental impairment affected the offender's ability to appreciate the wrongfulness of the conduct, or obscure the offender's intent to commit the offence, or impair the offender's ability to make calm and rational choices and to think clearly at the time of the offences."

64The court in O'Neill referred to earlier decisions, including that of Romero - which, at paragraph 13, makes it clear that an impaired mental functioning includes intellectual disability, which may be a contributing factor to an accused's conduct where there are other explanations.  This was set out succinctly by Justice Redlich in Romero in the following terms, at paragraph 13:

"It is now sufficiently well recognised in this court that an intellectual disability may attract the principles in Verdins as an impairment of mental functioning sensibly encompasses intellectual disability.  But as this court has cautioned in Ash, and DPP v Patterson, it is always necessary to consider how the particular condition affected the mental functioning of the offender at the time of the offence and how it is likely to affect him in the future.  The question must always be whether, in the particular case, it has been shown that the offender's moral culpability or the significance of general or specific deterrence is reduced because of the intellectual disability.  It must therefore be determined whether the applicant's disablement had the effect, in the language of Verdins, of impairing the offender's ability to exercise appropriate judgment, or impairing the offender's ability to make calm and rational choices, or to think clearly at the time of the offences."

65As I have said, and in paragraph 18, Justice Redlich also points out that it is necessary to consider whether there are other contributing or co-contributing factors beyond the intellectual disability.

66Here in this case, Mr Brereton, your conduct was over many days of repeated offending, much of it involving similar behaviour.  Your poor judgment and failure to consider the consequences seems to me was due to your low intellect - that is, your intellectual disability - but also, the interrelated drug use and personality disorder.

67Thus, while not trying to unscramble eggs, I am of the view there ought be some but slight moderation of your moral culpability.  Thus the very significant weight that must ordinarily attach to denunciation will be slightly ameliorated in your case.

68The question of deterrence, both general and specific, is another matter.  I do not consider that our community would think that your impaired mental functioning was of a kind or of a severity that it would not be right to use you as a deterrent to others.  Also, you are capable of understanding that if you continue to offend, gaol terms will be imposed, likely longer.

69As to your time in prison, plainly, on the evidence, you are doing what you can.  But also, you are engaging in concerning self-harm and destructive behaviour.  While again the reason for that involves your personality disorder as well as your intellectual disability, I think in the end there must be some mitigation and there will be because prison for you will be more onerous than it might be for someone in good health and without an intellectual disability.

70In the end, you are still a relatively young man, but the usual emphasis on rehabilitation must yield to other sentencing purposes due to the seriousness of the offences and your poor prior history.  Simply put, you are not a young first offender with prospects of turning things around.  You are, sadly, at an early age, a recidivist offender with deep drug problems that have re-emerged quickly after you have been released from detention.

71To achieve proper denunciation, an important sentencing purpose, deterrence to you and to others, as well as allowing for your rehabilitation, you must unfortunately be sentenced to a lengthy term of imprisonment.

72I have considered all your offences within the short timeframes and then I have revisited the total sentence to ensure that the total sentence is proportionate to your overall offending.  There must be some cumulation, but I have shown appropriate restraint in my view so as to ensure that your sentence is not overwhelming to your prospects for rehabilitation.

73I have utilised aggregate sentencing in some appropriate parts of the sentencing process as well.  I have taken into account in your favour your plea of guilty.  The sentences are less than they otherwise would have been.  I take your plea of guilty as having a utilitarian benefit, as well as a sign of you taking responsibility and expressing remorse.  There did not seem to be other evidence of remorse, apart from what can be deduced from your plea without a contested committal.

74You have been in protection in the prison.  That is still, and I take it as still, a matter deserving of mitigation.  I will apply that principle to you.  I say that, though, the only evidence was that you have done all you could and all the courses you could have on remand and used your time well.  There was no other evidence of the effect of protective custody one way or the other.  What
I do know from acceptable evidence is that you gave evidence against another prisoner who sexually assaulted you, and I take that into account.

75That course that you took is no small matter, and it is deserving of mitigation, and I have ensured your sentence is reflective of that.  Your time in custody dealing with the impact of sexual assaults will not be easy.  As I said, there is also evidence of self-harm.

76Doing the best I can in respect of the large number of charges, I impose the following sentences.  I will take my time about this so those can record it.

77In respect of Charge 1, you are sentenced to one month's imprisonment.

78In respect of Charges 2 and 3, an aggregate sentence of four months' imprisonment.

79In respect of Charge 4, two months' imprisonment.

80In respect of Charge 5, three months' imprisonment.

81In respect of Charges 6 and 7, an aggregate of 12 months' imprisonment.

82In respect of Charge 8, the armed robbery, you are sentenced to four years and six months.

83In respect of Charges 9, 10 and 11, an aggregate sentence of six months.

84In respect of Charge 12, 18 months' imprisonment.

85Charges 13, 14, 15 and 16, an aggregate term of nine months' imprisonment.

86In respect of Charges 17 and 18, 18 months' imprisonment.

87Charge 19, two months.

88Charge 20, 18 months' imprisonment.

89Charge 21, two months' imprisonment.

90Charge 22, two years' imprisonment.

91And Charge 23, you are convicted and fined $300.

92They are the matters on the indictment.

93The orders for cumulation in respect of the matters on the indictment are as follows.  In respect of the aggregate sentences on Charges 2 and 3, one month is cumulative upon each other, the sentence that I am about to announce, and upon the base sentence on Charge 8.  On Charge 5, one month cumulative.  Charge 6 and 7, one month, cumulative.  Charge 12, five months cumulative.  Seventeen and 18, four months cumulative.  Charge 20, four months cumulative.  Charge 22, six months cumulative.

94In my reckoning, that is a total effective sentence in respect of charges on the indictment - I pause for a moment.  I will cumulate some of the other matters and there will be a total sentence thereafter.

95In respect of the summary bail matters, I do not know the numbers, but in respect of the offences while on bail, two months.  The unlicensed driving, two months.  The charges of failing to stop when requested, four months. 
The charge of driving at a dangerous speed, one month.  The charge of possessing a prohibited weapon, nine months.  The charge of possession of a controlled weapon, nine months.  And the charge of driving with drugs in his blood, convicted and fined $300.  In respect of the charges of failing to stop, one month is cumulative.  And in respect of the charge of possession of a prohibited weapon, one month is cumulative. 

96The total effective sentence there is six years and six months, and I fix a minimum non-parole period of four years and four months.

97I declare that 458 days of the sentence that I have just announced has already been served.  This period of time has been reckoned and agreed by the parties.

98I will ensure that this declaration is entered into the records of the court, so that there is little doubt, or no doubt in the minds of those in the prison that you have already served 458 days of the sentence I have just imposed.

99Had you pleaded not guilty to these offences and been found guilty of them,
I would have imposed a sentence of eight years and six months with a minimum term of six years and six months.

100There are two fines.  There will be a month to pay those or convert them.

101Has there got to be an effect upon his license?

102MR BROWN:  Yes, Your Honour, in respect of the fail to stop. 

103HIS HONOUR:  I am sorry, I have not factored that into ‑ ‑ ‑ 

104MR BROWN:  No.  In relation to the fail to stop, there is a minimum period of disqualification of six months.  In relation to the speed dangerous, a minimum period of disqualification of 12 months.  And in respect of the prescribed - exceed a prescribed concentration of drug, a minimum period of six months' imprisonment.

105HIS HONOUR:  But I can exercise discretion under 89 on the theft of the car?

106MR BROWN:  Yes. 

107HIS HONOUR:  Yes.  Thank you.  Your license is cancelled, and you are disqualified from holding a license for driving for a period of three years. 

108MR JOHNSTON:  As Your Honour pleases.

109HIS HONOUR:  Are there any other orders required?

110MR BROWN:  There were, I believe, a disposal order in relation to cannabis ‑ ‑ ‑ 

111HIS HONOUR:  Yes, that will be made.

112MR BROWN: ‑ ‑ ‑ and a forfeiture order in relation to the taser and the knife, Your Honour.

113HIS HONOUR:  Yes.  I will sign those.  Anything else?

114MR JOHNSTON:  No, Your Honour. 

115HIS HONOUR:  Do the maths add up?

116MR BROWN:  On my quick reckoning, yes, but we'll both go over it,
Your Honour, and ‑ ‑ ‑ 

117HIS HONOUR:  Do it while we are here.

118MR BROWN:  All right. 

119MR JOHNSTON:  Your Honour, in my opinion, it is correctly added up.

120MR BROWN:  I agree, Your Honour.

121HIS HONOUR:  Thank you.  Mr Brereton, as I have explained a number of times, the courts are not set up for the interaction with any others.  Your family have been very supportive.  They have come to court in Melbourne and in Geelong, but you have to go with the prison officers.  They will see you in the prison in due course.  Thank you.

122If it has not been made clear, Mr Johnston, I was very much aided by your efforts, ongoing efforts, to get rigorous material before me.

123MR JOHNSTON:  As Your Honour pleases.

124HIS HONOUR:  And putting it in a professional and intellectually rigorous way yourself.

125MR JOHNSTON:  As Your Honour pleases.

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