Director of Public Prosecutions v Brown
[2017] VCC 1838
•23 October 2017
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 17-00247
Indictment No.G12779862
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES JOHN BROWN |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2017 | |
DATE OF SENTENCE: | 23 October 2017 | |
CASE MAY BE CITED AS: | DPP v Brown | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1838 | |
REASONS FOR SENTENCE
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Catchwords: Criminal Damage x 2, Aggravated burglary, RCI, ICI, Possess Drug, Summary offences: unlawful assault, trespass, refuse to state name and address and committing an offence whilst on bail.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms H. Bate | Office of Public Prosecutions |
| For the Accused | Mr J. Mortley | Victoria Legal Aid |
HIS HONOUR:
1 James John Brown, you have pleaded guilty to six charges that are on the indictment that has been filed in this court, as well as four related summary offences. The indictment charges involve offences of criminal damage, two of those offences (Charge 1 and Charge 5) an aggravated burglary; one offence of intentionally causing injury; one offence of recklessly causing injury; and one charge of possession of a drug of dependence, in this case, cannabis. The maximum penalties for those matters and for the four summary charges that are before me, that is, unlawful assault, trespass, refuse to state your name and address and committing an offence on bail, the maximum penalties are correctly set out in the prosecution summary, so I do not see the need to restate them now in my reasons.
2
You have a very brief criminal history before the courts, involving, as you know, only two court appearances in the Magistrates' Court. There are some matters outstanding and they are due to be dealt with in the Magistrates’ Court later this month, but I really do not believe that I can have any regard to them at all. It is not even clear what course you are adopting, by way of plea in those cases and so I put them aside entirely. You are 35 years of age and you have quite
a lengthy history of treatment for serious mental health issues.
Facts
3
The prosecutor, Ms Bate, opened this matter to me earlier today, in accordance with a written prosecution opening that was marked as Exhibit A and dated
1 June 2017. I enquired of your counsel and was told by your counsel,
Mr Mortley, that this was an agreed statement of facts. In the circumstances then, I see no need to describe the full factual setting in these, my sentencing reasons. I will incorporate that agreed statement of the facts into my sentencing remarks. In addition, as you have seen, there is also CCTV footage that has been placed before me and marked as Exhibit B and that provides footage of your conduct, the subject of Charges 2, 3 and 4 on the indictment.
4 Your own counsel conceded that your offending was serious and he was clearly right to make that concession. It was serious offending. Charge 1 involved some pointless and wanton damage committed at the Green Gully soccer club on 6 October. So too, Charge 5 dealt with greater damage committed at the same premises on a later date, this time 9 October, as well as the summary trespass on that day. That is the subject of Charge11.
5 Indictment Charges 2 and 4 and Summary Offence No.9, involve a most unpleasant incident at the pharmacy in St Albans, where you entered the closed off area with the intent to assault and then did just that, engaging in really what was a starting and unprovoked attack upon Ms Phan and a non-physical assault upon the pharmacist’s assistant, Ms Nikolovski.
6 The attack upon the unfortunate Ms Phan, brought her to ground. You then kicked her twice in the face, as she lay defenceless on the ground. You intended to cause her injury and in that you clearly succeeded. She was taken by ambulance to hospital and she was admitted into the intensive care unit. She was vomiting, she underwent some scans and she sustained a nasal fracture, bruises, soreness and pain. They are just the physical injuries.
7 A little bit earlier on the very same day, you had launched a totally unprovoked attack upon another woman, this time a much younger woman, at the Kmart in Keilor Downs, striking a young student, Laura Shaw, with a single punch to the face, without any warning at all. She had asked to see your bags as you left the Kmart, that was her job and this was your response.
8 You were arrested on 9 October at the Green Gully soccer club and you refused to state your name, hence Summary Offence No.12. You were clearly unfit to be then interviewed and a mental health assessment was conducted at the Sunshine hospital, prior to your being released. It was the intention to charge you on summons.
9 You were re-arrested the next day in your car and some cannabis was found in your car and that founds Charge 6 on the indictment, the possession of a drug of dependence.
10 Now, you were on bail when you committed the criminal damage on 9 October, hence the Summary Offence No.15.
11
You were interviewed by the police on 10 October and you did not make too much sense at all when you were talking to them. You clearly were in
a disturbed state then and also at the time of the offending. You have been in custody since.
Impact
12 There is a single victim impact statement that has been filed on the plea. That is an impact statement from Ms Laura Shaw. That is Exhibit C on this plea and I take that statement into account.
13 Of course, there is also material making plain that the pharmacist that you assaulted, Ms Phan, was significantly affected by your crimes. It is very clear from reading the impact statement from Laura Shaw, that is the girl in Kmart, that your crime impacted upon her. She was only in Year 12 at the time, just a young girl and this was a very nasty event in her young life, to be assaulted in the way that she was, to be struck in the face. She now does not feel as safe as she once did. You have changed then, to a degree, her outlook on life, though one hopes that that will not persist too deep into her future. It is equally obvious that the physical attack upon Ms Phan was a bad one and had significant impact. I take the impact of your crimes into account.
Mitigation
14 Now, your counsel, Mr Mortley, raised a number of matters in an excellent plea of mitigation, conducted on your behalf. He relied upon a well set out written defence outline of plea submissions.
15 He relied mainly upon:
· Your early guilty plea;
· The presence of some remorse;
· He took me to your background, part of which was the long-term mental health issues that you have laboured under for many years, including, of course, at the time of the offending. It was highly relevant to sentence, he argued, as was the fact that you had a very short criminal history;
· He relied upon a report of a psychiatrist, Dr Best, that was marked as Exhibit 2 on the plea and he made some submissions as to the relative seriousness of the offences before me. However, he conceded the inevitability of a term of imprisonment here. He abandoned any argument as to the availability of a combination-type disposition such as a term of imprisonment, with release onto a community corrections order. His written submissions had raised that possibility, but had been founded on the incorrect assumption that there was a prison sentence available of up to two years, which, of course, is no longer the legal position.
Prosecution
16 Ms Bate, who appeared on behalf of the Director of Public Prosecutions of this State, had initially argued against a combination-type disposition as not meeting the needs of sentence in this case. But once it was apparent that your own counsel was in fact explicitly abandoning that submission, she put other submissions to the court as to the gravity of the offending and the way in which your future prospects might be judged and the need to take care to avoid double punishment. The Director accepted some of the matters that were raised in mitigation. For instance, the contention as to there being relatively spontaneous offending and the application of the principles from the case of Verdins that you had heard discussed briefly this morning.
Guilty plea
17
I turn then to consider the various submissions that have been raised on your behalf. The first of those is your guilty plea. You have pleaded guilty and you have done so at what I will treat as the earliest possible stage. I take that matter into account in mitigation of sentence. You have taken responsibility for your offending. I give you credit for your decision to plead guilty. It has had a practical consequence as well. Witnesses have been spared the experience of coming to court, this court or the Magistrates' Court for that matter, to give evidence. That is worth a lot. The community has been saved the time, the expense and the effort that is associated with the conduct of a committal hearing in the Magistrates' Court, or a trial up in this court. In these ways you have facilitated the course of justice. I must reward you for your decision to plead guilty and at the early stage which you did. I am required to pass a lesser sentence upon you than I would have imposed, had you been found guilty by
a jury.
Remorse
18 I turn now to the question of remorse. It is a far less simple proposition, it seems to me. It is true that you have taken legal responsibility for your crimes by pleading guilty and at the earliest stage and it is true that a guilty plea is usually evidence of at least some remorse. It is not always the position though. The trouble is, you seemingly have very little, if any, recollection of many of the acts that you committed and of course, that is because you were not in an optimum state at the time. Far from it. Such recollection that you do have still reflects, to a degree, your disturbed and irrational state at the time. It is hard to divorce yourself from looking back and then seeing how you felt at the time. You felt the way you felt at the time, but the way you felt had no sensible basis. You had, in your mind, some grievance against this pharmacy, but not Ms Phan, who just happened to be on duty on the day in question.
19 You do tell your counsel that you regret your actions and you recognise there was no need for physical violence and you could have simply spoken to your victim.
20 There is still perhaps a degree of lack of awareness of how serious and wrong and uncalled for your actions were. No doubt though, that is a product of your illness at the time and even now. You were very dismissive indeed of Ms Phan when you were speaking to police in the October 2016 police interview, but I do not hold that against you, because of course, you were very disturbed at that time. You seem less disturbed now, but there still is, seemingly at least, aspects in your mind of her having somehow wronged you. Well, of course she had not. She had done nothing. She had not even met you before. I do accept that you are plagued by mental health issues, both back then and still and this probably leads to some real limitations upon your feeling full and genuine remorse.
21 I am though, ultimately prepared to find that you do have at least some remorse and that is what your counsel was suggesting I should find and I do reach that finding.
Background
22
I have not even descended to your background at this stage and I do not see any great need to go to it in enormous detail. Why will I not go into it in detail? Well, it is because I accept the personal and family background that has been placed before me in the very thorough plea conducted by your counsel,
Mr Mortley. It is dealt with in his written outline, it has been dealt with, to some extent, in his oral presentation of the plea. It is also contained in some detail in the psychiatric report of Dr Best. So I just do not see any need to restate to you now, your own background. You know what it is.
23 Very briefly, you are 35 years of age. You were one of four children and you had a pretty uneventful childhood, with no hint of trauma that I can see. You were educated to Year 9. You were expelled from school. You have had only brief employment in the course of your life. You had an apprenticeship that you worked within briefly, upon leaving school. You later worked for your parents who had a cleaning company and that was for something approaching a year or two.
24 You were diagnosed with schizophrenia when you were 18 and you have been on a disability support pension since you were about 21, so that explains the absence of a long-term employment record. It has been a real issue for you. It is a serious illness.
25 Drugs have also been a serious issue. They have been a long-term problem for you over many years. So too has your non-compliance with medication.
26
Homelessness has also clearly been an issue, more so in recent years and was particularly an issue at the time of this offending. You had been evicted from
a house in April of last year. You were really homeless. You were using the soccer club and your car as almost a home base and at times you were taking whatever drugs you could get your hands on, though it would seem you were focusing more on cannabis at the time of this offending. It is obvious that you were labouring under your mental illness, there can just be no doubt about that and I do not need an expert report to tell me as much. The offences themselves, the violence offences, just make no sense.
27
The short prior criminal record was admitted by you earlier this morning and there is a prior for assault, but I am told that occurred in the context of a family violence safety notice and related to your ex-partner. The various matters on the criminal record were not further explained to me by your counsel. The criminal record is not irrelevant to my task. Of course it is relevant. I have regard to your background generally, but you have been punished for that offending in the past and those two appearances, one in 2015 and one in 2016, they do not greatly inform my task at all. In a way, perhaps it is best to approach it from another direction. It is, perhaps, surprising and to your credit that there is not a longer criminal history, given the duration of your mental illness issues, your past
non-compliance with medication, a long history of illegal drug use and issues of lack of support in the community and homelessness.
Report of Dr Best
28 I have commented already on the report of Dr Best and I am not going to engage in a restatement of all that she says in that report. Unlike many reports that are placed before the courts, this strikes me as being a highly satisfactory one and one that delves also into an established psychiatric history, with admissions in the past and community treatment orders. It does not just involve a consultant speaking to a person acting on what the persons says and then making a diagnosis. There is firm basis for literally everything that is contained in that report, so it is far more satisfactory than most that are uttered upon the court and I do accept the report.
29 She reports on your lengthy psychiatric history, a diagnosis of long-term schizophrenia and a number of admissions. You have only limited insight as to your mental illness, you have been non-compliant with medication in the past, as well as using illegal drugs which would tend to work against the prescribed medications. I want to make plain that none of these matters are matters of aggravation.
30 Even once in custody, your condition deteriorated, such that you were transferred to Thomas Embling earlier this year. So it is beyond dispute that you have a serious psychiatric illness and it is not confined just to points in time when you are using drugs. The suggestion is that your condition is "resolving" may be the wrong word, but it is becoming stable to a degree.
31 Dr Best suggests there is a casual relationship between illicit drug use and your illness which increases the probability of violence and violent offending. You are, she reports, ambivalent about ceasing drug use. Well of course it is critical that you desist from using, illegal drugs. Your position is complicated enough without throwing in the impact of illegal drugs into the mix. Illegal drugs taken by you, they might seem to you to assist you, but they cannot be improving your position and they can only increase your risk of relapse, deterioration and of offending. If we add to this the homelessness that has been a pressing issue in the lead-up to this offending, the sad lack of support that seems to exist in the community and it is a bit hard to know what the future holds for you.
32 But I have no doubt at all that your psychiatric condition, both at the time and now, is relevant to my task as a sentencing judge. You were and are far from being in optimum health. It is obvious that you were significantly disturbed at the time of the offending and to an extent, really where you were acting under some form of delusional state. How much of this can be put down to the use of drugs, how much can be put down to your actual illness, well it is impossible for me to know, but what is clear to me, is that your psychiatric illness is a serious condition and one that clearly had you acting with an impaired level of functioning and a clouded judgment, owing to that illness.
33 As I say, I note that even having been in custody for some months, your condition deteriorated earlier this year, leading to transfer to Thomas Embling. So that is, even without illegal drugs, you still have sizeable mental health issues. So I believe, in all the circumstances, it is correct to conclude that your moral culpability is reduced to a degree. The weight that can be given to general and specific deterrence though, by no means eliminated, can be sensibly moderated here and it is reasonable to think that there is an increased custodial burden in this case, owing to your serious mental health issues. So I take into account the various Verdins principles that have been isolated and relied upon by your counsel, both in his written outline and in his oral development of the argument. However, your condition, its long-term nature and the complexities caused by illegal drug use and non-compliance commented upon by Dr Best, also has to be taken into account when making judgements as to your prospects into the future and your future risk.
Prospects of Rehabilitation
34 I turn then to consider your prospects of rehabilitation. Life has not been that easy for you with the mental illness that you have had. You have this serious mental health issue. It has afflicted you for over half your life and as I have said, not being critical of you, but you have some limits to your insight into the illness and how it is best to be managed. You sometimes do not take medication that you should take, you often enough use illegal drugs that you clearly should not take and those things seriously complicate your condition. These have been issues for many years, but of course, be that as it may, I am not faced by a person with lengthy criminal history at all.
35 Once in the throes of the illness and the illness in its deteriorating state, you do not act rationally, you do not act in your own best interests and this offending has to be seen in that light.
36 The process of being arrested and charged and then remanded for the period that you have been held, a significant period and then sentenced by this court, well hopefully all of this will have some role in deterring you from future offending. You are in a much better state of mind today than you were back last year. It is clear that you need ongoing treatment, it is clear that you need structure in your life, it is clear that you need to be medication compliant and it is clear, desperately clear that you need to totally abstain from the use of illegal drugs. You need a home to live in, a roof over your head, you need stability in the community. You do not seem to have much by way of support in the community, which is a bit sad.
37 There have been some fractures within your family relationship which are not really explained by you, so I do not really know what that is all about, but sadly, no one is at court for you, other than your counsel. You say that your family are too busy. The relationship with your ex-partner has broken down again. It is very sketchy as to why you do not like to talk about that, but it is plain enough then that there is little by way of support.
38
Your counsel argues that the court can have some guarded optimism as to your future prospects. I think the Crown was probably suggesting that that might be a slight overstatement as to the way it should be viewed. As far as I can gauge and it is never easy making these judgments sitting up here, looking into
a crystal ball, I do not have a crystal ball, so I have to make judgments about your future prospects, so I sense that your prospects are actually quite reasonable. I think I can have some guarded optimism. Your prospects will really depend on taking the advice of your expert health practitioners, taking your medication, totally abstaining from illegal drugs and that is a big ask for you. It has not been easy for you in the past. But I am at least encouraged by the short criminal history and as I say, I cannot and I will not have any regard to the outstanding matters that are listed in the Magistrates' Court, given that your guilt of those matters is yet to be determined and is not suggested that you are pleading guilty, so I put those matters aside.
The Offences
39 I turn to consider then the offences that are before me and really your counsel conceded that this was serious offending. We have got three totally innocent women who have been assaulted, two of them physically assaulted.
40 The aggravated burglary is clearly not as serious as some instances of that crime that are committed and that come before the court. Your counsel spelt out the absence of some features of aggravation. That is, you were not in company with others, it was daylight hours with entry to business premises, there was no weapon carried and your mental state makes it clear that there was no "sensible" or "considered" premeditation at all. In that way, the offending was spontaneous. It was disordered offending and driven by the fact that you had it in your mind that your victim within the pharmacy had done you some mischief, in terms of stopping your methadone. Of course she had not.
41 There has been much discussion in the Court of Appeal of this State about the inadequacy of sentencing practice for the crime of aggravated burglary and the manner of assessing the seriousness of the given offence. See the cases of Hogarth and Meyers [2014] 44 VR, as well as the more recent case of Bowden [2016] VSCA 283.
42 In the case of Meyers, a number of considerations were set out by the court, though obviously they are not exhaustive. They include the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside and whether the offender was someone of whom the victim was particularly frightened.
43 Well, as your counsel correctly submitted, you were not in company, it was not in the early hours of the morning when people were asleep. There was no weapon. You entered the business premises with the intent to assault and it was quite spontaneous and disordered. Of course, you were on bail at the time. You had an intent, let us not hide that at all, you intended to assault. You entered the closed-off area, intending to assault the woman inside that area. You had no doubt as to who was there. You could see her. No doubt your attendance at the address, that is, at the chemist shop, was caused by your disordered state and your clouded judgment. So I am prepared to accept the submission as to this being quite spontaneous offending, but I am dealing with the absence of a feature of aggravation. That should not be misconstrued as me saying this is a minor example of this offence. It was not.
44 This crime is punishable by a 25-year maximum term of imprisonment. It is an inherently serious offence to enter any premises as a trespasser. That is so whether those premises are a business or residential premises. You entered the part of the premises and did so as a trespasser, as you were intending to assault. You knew who was there. You could see it, the person behind the counter. It was a woman.
45 I must be careful to avoid double punishment in this case and must not factor into the aggravated burglary sentence, a component for the intentionally causing injury and summary assault that actually then took place, subsequent to entry. The act of burglary was complete, technically upon entry, but of course a court can sometimes have regard to later action within the premises and that is so, even in the absence of specific charges, because that is an aspect of one vice of a burglary or aggravated burglary, that is the loss of privacy and the impact of that, so the way in which privacy is breached, can be of relevance. See the case of Ashdown [2003] VSCA 216 and also Spero [2006] 13 VR 225.
46 So too is the intent upon entry relevant. Well here, as I have said, it was an intention to assault and you knew who was in the area you sought to trespass in. You could see her, you had asked her to come out from behind the counter and when she would not, you chose to enter her area intending to assault her. So I pay regard to those cases dealing with the need to avoid double punishment.
47
The fact is, not every aggravated burglary leads on to actual violence. Some do not. But yours certainly did and that violence is covered by the other charges and the violence was serious. It was a quite dreadful attack upon Ms Phan,
a totally innocent, unprepared female at a place where she should have been safe, her workplace, in broad daylight.
48 The instance of intentionally causing injury was, in my judgment, a serious example of that offence, in terms of the mechanism. A punch to the face and then two kicks to her face as she lay defenceless on the ground. It is pretty awful stuff and with serious enough impacts. She was taken to hospital, after all, by ambulance, admitted to the intensive care unit and sustained a fracture and bruises and took some time off work.
49 Ms Bate, I should have raised this with you earlier. There are some photographs of the victim that are attached to the depositional material. You have not separately tendered those, but you rely upon those, obviously?
50 MS BATE: Yes, Your Honour, and certainly it hasn't been flagged earlier today, so in fairness to my learned friend, as long as there's no objection to taken with that and the late juncture of it, I should say.
51 HIS HONOUR: Well they are in the depositional material. Mr Mortley, you are awake to those photographs, some photographs of the victim?
52 MR MORTLEY: Aware of them, Your Honour, there's no objection there, before Your Honour.
53 HIS HONOUR: Yes, all right.
54 The other woman in the pharmacy observed all of what you did and she, herself, was a victim. She was intimidated by your conduct, hence the summary assault charge laid in relation to it. It is far less serious, plainly.
55 The earlier assault at Kmart upon the unfortunate Laura Shaw was a very upsetting and startling event to befall a young girl and someone who had done nothing to you and your conduct must be very strongly denounced. It is obvious enough that the conduct relating to the damage at the soccer club was far less serious and the cannabis offence less serious still. I accept that the lower penalty provision applies to that charge, given the small quantity involved and my satisfaction that the possession was not in any way connected to trafficking.
56 The refuse to state name is what it is and must be seen in light of your disordered state. You were not even fit to be interviewed. Though I have said what I have about the impact of your disordered mental state, of course none of that is any consolation at all to any of the victims. They were being assaulted for no reason and there is no consolation for any of them to learn, after the event, that the person who was assaulting them happened to be a very disturbed individual. None at all.
Purposes
57 I turn then to consider some of the purposes of sentencing. As you may or may not be aware, I have to consider a number of purposes of sentencing and they are not limited only to your prospects of rehabilitation. Your prospects of rehabilitation are still an important consideration for any court. I do not ignore them and as I say, I think they are quite reasonable.
58 I am required to impose a just and proportionate sentence in relation to your offending.
59 You must be punished, of course, that is an important sentencing purpose.
60 A court must also denounce your conduct and I do. Again, that is an important matter. Your conduct was very wrong and serious offending and you really should be ashamed of what you did. I strongly denounce your conduct.
61 There are other purposes of sentence and one of those is the need for this court to seek to discourage or to deter you from offending in the future. Well I must give that principle of specific deterrence some weight in my sentencing task, given the nature of your offending and that fact that it occurred in the currency of a bail undertaking.
62 I moderate specific deterrence to a degree, given my findings as to your prospects of rehabilitation and also as a result of the impact of your mental health condition. It can be sensibly moderated, for the reasons that I have described. I must at least give some weight to the protection of the broader community from you. So random was this offending and so serious the nature of the conduct the subject of the pharmacy entry and the intentionally causing injury within.
63 General deterrence is another principle that ordinarily would have a very significant sentencing purpose in this sort of case, but it can be sensibly moderated, owing to the mental health conditions spoken of in Dr Best’s report. However, it is far from eliminated as a purpose of sentencing.
64 I have regard to current sentencing practices, as I am required to. In the course of the plea, I was alerted to the Sentencing Advisory Council's snapshot in relation to the offence of aggravated burglary, Snapshots No.184 of June 2016 for that crime. I have looked also at Snapshot 189 of 2016 for the intentionally causing injury and 190 of that same year for recklessly causing injury. The aggravated burglary snapshot discloses that where prison was selected, there was a median sentence of two and a half years' imprisonment. Half were longer, half a shorter. The most common prison sentence for aggravated burglary was two years to less than three years, but the second most common sentence was three years to less than four years, with the third most common prison sentence being one year to less than two.
65 Now, I have looked at all of that statistical material in those various snapshots. That is all it is, it is statistical material and it is obvious that statistical material has a number of inherent limitations. It says nothing about the individual features, either of the case, or of the offender. It says nothing about the actual crime or features of aggravation and comparable cases also have many and inherent limitations. I have looked briefly at the Judicial College of Victoria's sentencing manual, dealing with overviews of sentences of aggravated burglary, intentionally causing injury and recklessly causing injury. The case of Hogarth, a Court of Appeal decision also has some useful guidance in relation to the crime of aggravated burglary, as well as a large table of cases. This is a confrontational aggravated burglary committed by you here, albeit one committed by a person with a very much disturbed state.
Concession
66 Your counsel, Mr Mortley, conceded that there was a need for an immediate term of imprisonment. He pointed out though that you had already spent over 12 months in prison. He accepted that it was not open to release you on a community corrections order in all the circumstances and that the court would be required to fix individual terms, mark out levels of cumulation and reach a head sentence in this way and then to fix a non-parole period. He was arguing for a shorter non-parole period.
67 Notwithstanding that concession, of course I have to exercise my own sentencing discretion. Sending any person to prison is always a disposition of last resort. It always has been and it always will be.
68
The Court of Appeal of this State in a decision published back in December of 2014, told judicial officers that sometimes it will be open to place a person on
a community corrections order, even for offending that previously would have been met with a substantial or medium term of imprisonment. What the same Court of Appeal made plain enough in that decision, is that this is only if it is appropriate in the particular circumstances of the particular case.
69 It is blindingly obvious that not every offender for every crime can or should be admitted to such an order. There are some crimes where the purposes of sentencing cannot be given adequate weight by the use of such a disposition. Parliament has, earlier this year, moved to restrict the availability of community corrections orders and they have set out some offences for which an order cannot be imposed, other offences where certain circumstances must exist and across the board, limited the order being made, in combination with a prison sentence of greater than 12 months. See the Sentencing (community corrections order) and other Acts, Amendment Act 2016.
70 Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement, any sentence of confinement, unless a court concludes that the purposes of sentence cannot be achieved by a community corrections order, with specified conditions attached. Well, there are some crimes that are just too serious and yours clearly are. I am entirely confident that it would not be permissible to place you on a community corrections order for offending such as this. Your counsel is not even suggesting that that is possibility.
71
I accept that your counsel’s concession was well made. It is my judgment that your offending demands that you serve a substantial term of imprisonment. There is no question in my mind as to that fact. I believe your crimes are too serious to do otherwise. A court can almost always see some advantages in a community corrections order disposition, but it is no part of my function to select that disposition and then plot some path in a determined effort to reach it.
I must take into account relevant sentencing considerations and impose appropriate sentences. I do not believe that a community corrections order disposition, either on its own or even in combination with
a term of imprisonment can meet the various needs of sentencing.
72 You have already served over a year to this point. I have, of course, considered whether that is adequate. I do not believe it is. I do not believe it comes close, even in combination with a suitably conditioned community corrections order. Such a disposition would not, in my view, achieve the purposes for which sentence is imposed.
73 I believe that I must impose a sentence which will significantly extend your stay in prison. I do not believe it is open or appropriate to admit you to a community corrections order in this case, in combination with a term of imprisonment. The offending is just too serious. The sentence needs to adequately reflect general and specific deterrence, denunciation and punishment, even general and specific deterrence sensibly moderated, as it is in this case. I believe I must do as your counsel concedes, pass appropriate individual sentences, express some level of cumulation as between some of those sentences and then fix
a non-parole period.
74 I believe that the Adult Parole Board will be in a far superior position to assess your needs at around the time of your becoming eligible for release on parole and that is still, I am afraid, a distant event. Whether you will be released on parole or not is not a matter for me to consider. I cannot consider it. I have no power over the Adult Parole Board and I am not permitted even to take their possible action into account. What I must proceed on is the footing that you will serve every day of the head sentence which I will soon pronounce.
Totality
75 I have though, taken into account the principle of totality. As I have said, not every aggravated burglary moves on to a physical assault. Yours did. A bad assault upon Ms Phan and a far less serious assault upon her offsider. As to Ms Shaw, she is a totally unconnected victim, a totally unconnected crime, but obviously one occurring on the same day, so there is that temporal connection. The criminal damage charges are very different offences, targeting a different victim on differing days. It is obvious that some cumulation is required as between the various sentences imposed here, given the differing crimes, differing elements, differing conduct and separate victims. They were not trifling crimes. The summary offence relating to offending on bail is very much founded on the act, the subject of the indictment charge of criminal damage, so I am at pains to avoid any double punishment in that area.
76 I have engaged in a last look at the sentences imposed by this court and the total effect of them, in endeavouring to guard against the imposition of what might be viewed as a crushing sentence upon you. Ultimately though, despite all the matters raised in mitigation, I have reached a conclusion that there really is no alternative but to impose an immediate term of imprisonment upon you and to fix a non-parole period. In each step of the process and that is, the selection of the individual sentences, the selection of the measure of cumulation and the fixing of a non-parole period, I take into account the various matters raised in mitigation, including, of course, the Verdins factors which undoubtedly operate here.
77 The sentence I am going to pass in relation to the aggravated burglary may, at least at first blush, appear not to pay adequate regard to the decisions of Hogarth and Bowden, however, I must not overlook the particular matters raised in mitigation here, including, in my judgment, the sizeable contribution of your mental illness.
Disposal order
78 There are two formal orders that are required, ancillary orders. The first of those is a disposal order. That just relates to the cannabis that was found in your car and there is no opposition to the making of that order. Upon convicting you of that offence, I am satisfied that the property referred to in the schedule is a drug of dependence, that it was used in connection with the offence before me. It clearly was. I order, pursuant to s.78(1) of the Confiscation Act, the forfeiture to the State of that property, I direct that it be held and dealt with in accordance with the written terms of the disposal order which I have now signed.
Section 464 ZF
79 The second ancillary matter is the application that is made for what is referred to by us lawyers as a 464ZF forensic procedure. That is the application. It is an application brought by the prosecution for you to undergo a forensic procedure to obtain a sample of sufficient standard to be obtained for placement on the database. There is no opposition to that order being made. I believe that it is appropriate for me to make that order and I am satisfied that I am justified to make that order, owing to the seriousness of the offending, the fact that it is not opposed and that I judge it to be in the public interest.
80 I am authorising the least invasive procedure, so I have deleted from the order the taking of a blood sample, I am authorising, pursuant to the provisions of the Crimes Act, and ordering that you undergo a forensic procedure for the taking of a scraping from your mouth, in accordance with the provisions of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database.
81
You need to understand that the authorities are entitled to use reasonable force to take that mouth scraping. It should not be a difficult business. The authorities will approach you. They will either run around the inside of your mouth, or get you to run around the inside of your mouth, a swab, so that the sample can be taken. It is not difficult, it is not particularly invasive. No doubt if they encountered any difficulties, the authorities would be back before me, making application for
a blood sample, which to this point, I have not authorised, but I have signed that order as well.
82
Now, look I think I will just have you remain seated actually. There are quite a few separate sentences I am going to pass. You will lose track of what I am pronouncing and do not just fall into the step of adding everything up, I am going to pass the individual sentences, then
I will tell you how much there is overlapping between these various sentences and then I will tell you what the non-parole period is. So, I will explain all this in due course.
Sentence
83
But firstly on Charge 1, criminal damage and Charge 5, criminal damage,
I believe that it is open to me to pass an aggregate sentence, given the nature of the charges, the timeframe concerned and the commonality of the victim. In the circumstances on those charges, I convict and sentence you to an aggregate period of three months' imprisonment.
84 On Charge 2, which is the charge of aggravated burglary, I convict and sentence you to two years' and two months' imprisonment.
85 That is the base sentence.
86
On Charge 3, recklessly causing injury to Laura Shaw, that is at the Kmart,
I convict and sentence you to nine months' imprisonment.
87
On charge 4, the intentionally causing injury to Ms Phan at the pharmacy,
I convict and sentence you to 22 months' imprisonment.
88 On the summary offence of assault, that is Summary Offence Charge 9, relating to Ms Phan's pharmacy assistant, I convict and sentence you to two months' imprisonment.
89 On Charge 6, the possession of cannabis, you are convicted and fined $300.
90 On Summary Charge 11, that is the trespass, you are convicted and fined $300.
91 On the Summary Charge 15, that is of committing an indictable offence whilst on bail, you are convicted and fined $300.
92 On the charge of refusing to state your name and address, you are convicted and fined $100 in relation to that matter.
93 So the base sentence is the two years and two months imposed on Charge 2, the aggravated burglary, 26 months.
Cumulation
94 I direct that nine months of the sentence imposed on Charge 4; five months of the sentence imposed on Charge 3; one month of the sentence imposed on the summary assault, Charge 9; and one month of the aggregate sentence imposed on Charges 1 and 5, be served cumulatively upon the base sentence and upon each other. So let me just repeat that, because your counsel and the prosecutor are down there having to jot all this down.
95 So, nine months of the sentence imposed on Charge 4; five months of the sentence imposed on Charge 3; one month of the sentence imposed on the summary assault, Charge 9; and one month of the aggregate sentence imposed on Charges 1 and 5, are to be served cumulatively upon the base sentence and upon each other.
96 The other sentences will be served concurrently with the other sentences that I have pronounced.
Total effective sentence
97 What this results in, is a total effective sentence of - well my intended total effective sentence. I hope the maths is correct. A total effective sentence of 42 months, or three and a half years' imprisonment.
98 I am going to fix a non-parole period that reflects the various mitigatory matters that have been raised. Indeed, the head sentence does as well. But I fix a period of 21 months, during which you will not be eligible for release on parole.
Pre-Sentence Detention
99 Now you have been in custody already for a period of 378 days. So you have already served 378 of this sentence and that declaration is to be noted in the records of the court, pursuant to s.18 of the Sentencing Act.
Section 6AAA
100 I told you that but for your guilty plea, I would have imposed a longer sentence. I would have. I now tell you the dimensions of that discount that you have received. Had you been found guilty of these offences following a contested trial, I would have convicted and sentenced you to five and a half years' imprisonment. I would have fixed a non-parole period of three years and nine months. That s.6AAA statement is to be noted in the records of the court.
101 Let me just check with the parties. Firstly, are you each - have I dealt with everything that needs to be dealt with, in terms of the indictment charges and the summary charges?
102 MR MORTLEY: Yes, Your Honour. And I believe the next question, the cumulation appears 42 months, by my calculation.
103 MS BATE: And mine, Your Honour.
104 HIS HONOUR: So the mathematics at least is correct. So you are awake to the nature of the cumulation that I have proposed, the maths is correct, in terms of it resulting in that total effective sentence and I have fixed the non-parole period at 21 months. So, it represents a non-parole period of half of the head sentence.
105 All right, are there any other matters that I need to deal with at all then, or not? You will not want a stay on the fines or anything like that?
106 MR MORTLEY: No, Your Honour.
107 HIS HONOUR: I mean, he will be able to have those dealt with, I would have thought and cut out by way of time served. He will need to make an application, I think, these days back to the court, I think it is, but anyway, you are not seeking a stay.
108 No other matters that I need to deal with? No?
109 MS BATE: No, Your Honour.
110
HIS HONOUR: All right. You will go down and see your client downstairs,
Mr Mortley?
111 MR MORTLEY: Yes, Your Honour.
112 HIS HONOUR: All right.
113 Mr Brown, that completes the matter then, all right? So Mr Mortley is going to come down. He will have a chat to you about it and explain all of that, but he will come down and see you downstairs soon, all right? So you can head off with the officer, thank you.
114 Yes, 9.45 tomorrow then, thanks.
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